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A criminal defendant who gives her lawyer fraudulent documents to be used at her trial forfeits her right to “effective assistance of counsel,” the 3rd U.S. Circuit Court of Appeals has ruled. In United States v. Lamplugh, a unanimous three-judge panel overturned a lower court’s decision that granted Theresa Lamplugh a new trial on the grounds that her lawyer had provided the prosecutors with the evidence used to convict her by turning over the fraudulent tax documents in the middle of the trial — before he had thoroughly reviewed them himself. Chief U.S. District Judge Thomas Vanaskie of the Middle District of Pennsylvania found that the lawyer was ineffective for two reasons: failing to inspect the documents and failing to warn his client of the consequences of producing documents that could be viewed as fabrications. But the 3rd Circuit ordered Vanaskie to reinstate the conviction, finding that such a defendant loses her right to have a competent lawyer. Attempts to hoodwink one’s own lawyer, a jury and the court should never pay off, the court said. “If this court were to grant Mrs. Lamplugh a new trial based on her claim of ineffective assistance of counsel, we would allow a defendant to manipulate the justice system by knowingly presenting fabricated written documents to her counsel in an attempt to deceive the court, the jury, and the government into accepting her theory of defense, or by successfully gaining a new trial when the strategy failed because the defense counsel did not detect the fraud,” visiting Senior Judge Arthur L. Alarcon of the 9th Circuit wrote. According to court papers, Theresa and Harry Lamplugh operated a gun show promotion business that came under scrutiny by the IRS and the Bureau of Alcohol, Tobacco and Firearms because it generated a cash flow from gate receipts and display table rentals. In a raid on the Lamplugh home in 1994, agents seized numerous firearms and financial documents. They later subpoenaed the couple’s bank records. Ultimately both of the Lamplughs were indicted on firearms charges. A few months later, prosecutors added tax evasion charges, alleging that the couple had failed to file federal income tax returns for 1991 and 1992. Vanaskie agreed to bifurcate the trial so that the tax charges would be decided first. In October 1998, just four days before the trial was scheduled to begin, the Lamplughs gave their lawyer a box of documents that they claimed the IRS and the ATF had overlooked during the raid. Among the documents were copies of what appeared to be the couple’s tax returns for 1991 and 1992. Theresa Lamplugh’s lawyer told her that in order to use the documents at trial, he would be required to turn copies over to the prosecutor under Rule 16 of the Federal Rules of Criminal Procedure. But the lawyer also agreed that if the prosecutors introduced the documents at trial, Lamplugh could preserve her credibility for the second phase of the trial by avoiding having to testify about the tax charges. On the third day of trial, the defense lawyer told the trial judge about the box of documents, noting that although he had not “finished fully inventorying” them, he intended to use them during cross-examination of a government agent. The strategy backfired. The Lamplughs’ original defense was that they didn’t file tax returns for the two years because they hadn’t earned any income. But the theory of the defense at trial was that the Lamplughs had filed returns in 1991 and 1992, and the IRS misplaced or lost them. But the prosecutors set out to prove two things: that the documents were fakes and that they showed the couple had even more income than the government originally alleged. The jury found both of the Lamplughs guilty on the tax charge. The same jury then heard evidence on the firearms charge and acquitted Theresa Lamplugh. (Harry Lamplugh has since died.) Monday’s decision by the 3rd Circuit marks the second time the court has addressed Theresa Lamplugh’s case. In the first appeal, the court sided with Lamplugh and ordered Vanaskie to hold an evidentiary hearing because “it appears that Lamplugh’s trial counsel may have turned over the records without having read all of them.” Now the court has ruled that Vanaksie erred by focusing on the lawyer’s incompetence while ignoring Lamplugh’s own role in creating the problems by creating false documents. In appealing Vanaskie’s decision, the government said that Lamplugh had engaged in “obstructive conduct” and that she was guilty of “duping her attorney into using false documents.” As someone guilty of those offenses, prosecutors said, Lamplugh “should not be able to complain that her counsel was ineffective in failing to discover her duplicity.” Alarcon found that the government’s appeal “presents us with this novel question: Does a defendant forfeit her right to the effective assistance of counsel by presenting falsified copies of tax returns to her attorney in support of her theory of defense that the originals of such documents were properly filed in compliance with federal law?” Alarcon found that the precise question “has not been considered by this or any other court.” But Alarcon found that 3rd Circuit law is already clear on a broader question. In several cases, he said, the appeals court has held that a defendant forfeits the Sixth Amendment right to counsel by engaging in extremely serious misconduct. In one case, Alarcon noted, the 3rd Circuit held that a defendant had forfeited his right to counsel at sentencing by physically attacking his lawyer in full view of the trial court. In Lamplugh’s case, Alarcon found that the evidence showed she “acted with unclean hands.” “Lamplugh forfeited the right to the effective assistance of counsel because of her extremely serious misconduct in presenting falsified copies of federal income tax returns, in a willful attempt to obstruct the proper administration of justice,” Alarcon wrote in an opinion joined by 3rd Circuit Judges Dolores K. Sloviter and Richard L. Nygaard.

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