The opinion of the court was delivered by: Judge James T. Moody United States District Court
This matter is before the court on defendant-movant Matthew Hale's motion pursuant to 28 U.S.C. § 2255 (DE #1), fully-briefed by his brief in support (DE #18) and addendum (DE #8-3), the United States of America's (hereinafter, "government") amended response (DE #30), and Hale's reply brief (DE #36) and exhibits thereto (DE #36-1). In addition, Hale obtained leave to file a supplemental brief amending one of his arguments (DE #37), to which the government filed a responsive brief (DE #42) and Hale a reply brief. (DE #46). Hale also recently filed a supplemental notice. (DE #48.) Because this court's review of the parties' briefs, supporting documentation and the record of prior proceedings in this action allows the court to determine that the facts Hale has alleged, even if proven, would not entitle him to relief, an evidentiary hearing is not required. 28 U.S.C. § 2255(b); Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001); Stoia v. United States, 22 F.3d 766, 768 (7th Cir. 1994).
Hale was the leader, with the title "Pontifex Maximus," of an organization known as the World Church of the Creator (hereinafter, "WCOTC"). The WCOTC was involved in civil trademark litigation with another organization using the term "Church of the Creator," see TE-TA-MA Truth Foundation-Family of URI, Inc. v. World Church of the Creator, 297 F.3d 662 (7th Cir. 2002), being presided over by United States District Judge Joan H. Lefkow. Hale was indicted for, and stood trial on, two counts of solicitation to commit a crime of violence-the murder of Judge Lefkow-in violation of 18 U.S.C. § 373, and three counts of obstruction of justice in violation of 18 U.S.C. § 1503. On April 26, 2004, the jury found him not guilty of one of the solicitation counts, and guilty of the remaining four counts. On November 10, 2004, the court partially granted Hale's motion for a judgment of acquittal pursuant to FED. R. CRIM. P. 29(c), vacating the verdict on one of the obstruction of justice counts. On April 6, 2005, the court sentenced Hale to consecutive terms of imprisonment to arrive at a total term of imprisonment of 480 months. Hale took a direct appeal, and his convictions and sentence were affirmed. United States v. Hale, 448 F.3d 971 (7th Cir. 2006). His petition for certiorari was denied on October 1, 2007. Hale v. United States, 549 U.S. 1158 (2007). His § 2255 motion was timely filed within one year thereafter.
A § 2255 motion allows a person in federal custody to attack his or her sentence on constitutional grounds, because it is otherwise illegal, or because the court that imposed it was without jurisdiction. Hale raises two grounds which he believes require that his conviction be vacated: violation of his right under the Sixth Amendment to the United States Constitution to effective counsel; and violation of his right under the Fifth Amendment, and under FED. R. CRIM. P. 43(a), to be present at every critical stage of his trial.
I. Ineffective assistance of counsel
The test to determine whether a defendant's right to assistance of counsel as provided by the Sixth Amendment has been violated is set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland test has two prongs. First, the "defendant must show that the performance of counsel fell outside the 'range of competence demanded of attorneys in criminal cases'--i.e., that it 'fell below an objective standard of reasonableness.'" Barrow v. Uchtman, 398 F.3d 597, 603 (7th Cir. 2005) (quoting Strickland, 466 U.S. at 687). There is a strong presumption of competence. Id.
Second, the defendant must show that he suffered prejudice as a result of his counsel's ineffectiveness. Id. In other words, the defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The court should deny an ineffective assistance of counsel claim if the defendant has made an insufficient showing on either prong. Strickland, 466 U.S. at 697. The court may assess the prongs in whichever order it chooses. Id. Additionally, while Hale makes multiple allegations of error to support his claim that his counsel was constitutionally ineffective, it must be kept in mind that:
[I]neffective assistance of counsel is a single ground for relief no matter how many failings the lawyer may have displayed. Counsel's work must be assessed as a whole; it is the overall deficient performance, rather than a specific failing, that constitutes the ground of relief.
Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005) (citing Bell v. Cone, 535 U.S. 685, 697 (2002); Strickland, 466 U.S. at 690; Holman v. Gilmore, 126 F.3d 876, 881-84 (7th Cir. 1997)).
A. Overview of Hale's Ineffective-Assistance Claim
With this in mind, although Hale has broken his argument into nine "instances" of ineffective assistance (nearly every instance consisting of several different allegations of error), one overarching theme permeates almost every allegation in one way or another. This makes an overall comment on that theme appropriate, that is, a look at the forest before getting lost in the trees. The theme, stated as the first "instance" of ineffective assistance (with six sub-allegations of error), is that, with respect to Hale's conviction on the solicitation count in violation of 18 U.S.C. 373, his counsel's performance fell below the level of competence required because he pursued the wrong defense, and not Hale's "best" and "true" defense. Hale argues that if his attorney had pursued Hale's "actual, bona fide defense which was much stronger," taking that course "would likely have resulted in Mr. Hale's exoneration." (DE #18 at 13.)*fn1
This argument, to be blunt, is preposterous. First, because it is built entirely on the incorrect premise that if his attorney failed to pursue Hale's "best" defense, that automatically equals ineffective assistance of counsel. That premise finds no support in the law governing ineffective-assistance claims. As long as Hale's attorney utilized a defense strategy that was not so misguided that it fell outside the wide range of professional competence, Hale received constitutionally-effective representation. As the Court of Appeals has remarked, "the Constitution does not ensure that every defendant receives the benefit of superior advocacy-how could it, given that half of all lawyers are below average?" Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994).
Second, and more compelling, it is the court's view that Hale's attorney in fact did utilize the best defense, or at least one better than the one he proposes now. But even if the court's opinion in this regard is incorrect, and Hale's opinion more accurate, clearly the defense pursued was not so beyond the pale that it fell outside the wide range of professional competence. Comparing the essence of the defense that was used to the defense Hale believes should have been used makes this plain.
The defense Hale's attorney used, briefly stated, was that the evidence showed that Hale lacked the intent to solicit a crime of violence, instead it was the government's informant, Tony Evola, who proposed the crime and solicited Hale's participation through repeated entreaties. Hale never agreed to the plan or, if he did, he did so only because his will was overborne by Evola's persuasion. There was sufficient evidence to support this defense, and the court gave the jury an instruction on entrapment as final instruction number 20. (1:03CR11 DE #160 at 23.)
Now, Hale argues that pursuing an entrapment defense was not a strategic choice, but instead an error that resulted from his attorney's*fn2 failure to understand the basic facts of his case. Hale argues that, had his attorney understood the facts, counsel would have realized that the evidence clearly showed that Hale believed he and Evola were discussing the murder of a lawyer named James Amend, not Judge Lefkow, and that once Hale realized that Evola actually meant Judge Lefkow, Hale "categorically rejected" the plan. (DE #18 at 2; DE #8-3 at 9 ¶ 8, 10-11 ¶ 13.) In other words, Hale is contending that it would have been a better defense for his attorney to admit that Hale wanted Evola to murder someone, essentially conceding the most difficult material elements of the crime-Hale's intent that Evola commit a felony involving physical force, and his solicitation of Evola to commit that felony-and hinging his entire defense on his supposed misunderstanding of who that someone was. Bluntly put, Hale's "bona fide" defense, as he describes it now, is that the jury should have been shown that he wanted Evola to murder lawyer James Amend, not Judge Lefkow.
Based on the strength of the government's case, however, the court has no doubt that, had this defense been pursued, Hale would nevertheless have been found guilty and would be arguing now that his attorney was ineffective for admitting his murderous intent instead of denying that intent and pursuing an entrapment defense. Viewing the argument in these simple terms-that it would have been a better defense to admit that Hale and Evola were agreeing to the murder of Amend, than to admit that Judge Lefkow was being discussed, but it was Evola who solicited Hale-is to see how meritless it is to claim that the defense chosen was so outside the realm of competence as to be ineffective. Perhaps this is why Hale doesn't argue that the defense used was a strategic choice at all, instead contending that his attorney accepted that Judge Lefkow was the object of the plot, using the wrong defense because he didn't fully investigate and understand the case and so did not understand that the alternate defense existed.*fn3
To be absolutely clear, the court rejects Hale's argument that his defense counsel's choice of defense was an ignorant blunder, and not a strategic choice. According to Hale, he plainly and repeatedly informed his counsel that he initially thought that he and Evola were discussing Amend, and not Judge Lefkow, and of evidence that would support this theory, but his attorney refused to investigate, develop and use that defense. (DE #8-3 at 9-10 ¶¶ 8, 11, 12.) Thus, by definition, his attorney did make a choice as to what defense to use. The court must view that choice with great deference, and to demonstrate ineffective assistance, Hale must overcome a presumption that, under all of the circumstances, his attorney's choice "might be considered a sound trial strategy." Strickland, 466 U.S. at 690 (internal quotation marks and citation omitted); Valenzuela v. United States, 261 F.3d 694 (7th Cir. 2001). It is hard to imagine any set of circumstances where admitting solicitation to commit murder, and arguing about the identity of the victim, would be such a better strategy that it would make a decision to contest the intent element-in a case with enough evidence to support an entrapment instruction*fn4 -an unsound strategy. Hale has certainly not persuaded the court that this is that case.
It should be noted that the court arrived at its understanding of Hale's argument-that he would have admitted his solicitation of Evola to murder Amend-before the court read the government's response, in which the government reaches the same conclusion. In his reply brief, Hale vigorously protests this conclusion, arguing that "counsel would not have been forced to concede that Mr. Hale approved of or solicited Amend's murder." (DE #at 1.) Whatever the nuances of this argument may be, the court fails to appreciate them. The point cannot be made clearly enough that Hale's original argument is based on the idea that he would have admitted his solicitation of Evola to murder Amend, so that his later comments could be cast as a rejection of the "new" plan to murder Judge Lefkow. As stated in his opening brief:
[T]he jury found Mr. Hale guilty without the benefit of evidence proving... that Mr. Hale thought Evola was saying "consider it done" to lawyer Amend's murder, that the December 9, 2002 email told Mr. Hale that Evola had changed his target from a "Jew rat" (lawyer Amend) to a "femala rat" (Judge Lefkow); and hence when Mr. Hale repeatedly said on December 17, 2002, that he could not be a party to Evola's plot against Judge Lefkow, he was absolutely rejecting Evola's new proposal to kill Judge Lefkow rather than indulging in "plausible deniability." (DE #18 at 14.) All that the argument in Hale's reply does-for example, he argues that he would have testified that his response "good" when Evola said "consider it done" as to Judge Lefkow's murder was merely a facetious remark (DE #36 at 2)-is split hairs and show how difficult his supposed "best"defense would have been, and so demonstrate why his counsel's decision to use a different defense strategy was not outside the acceptable boundaries of professional competence.*fn5
Finally, even were the court to accept Hale's argument that the defense used was a blind error, not a strategic choice, or was such a poor strategy as to fall below the minimum threshold of professional competence, and proceed to analyze Hale's claim solely in terms of whether he suffered prejudice, his ineffective assistance claim fails that prong of the test as well. This is not only because of the strength of the evidence against Hale, but also because the defense he now argues was stronger is at best weakly supported by the evidence, and the arguments Hale believes his attorney improperly failed to pursue would have played directly into the strength of the government's case.
For example, although Hale argues now that, once he understood that Evola was proposing the murder of Judge Lefkow, he "categorically rejected" the plan (DE #18 at 14), this is a classic attempt to make a silk purse from a sow's ear. Nowhere on the audio recordings or e-mail messages admitted into evidence does Hale tell Evola not to commit such an atrocious crime. Instead, after Evola made it clear that he was discussing the murder of Judge Lefkow,*fn6 Hale simply stated that he wouldn't be a party to the scheme, told Evola that "whatever a person does is according to the dictates of their own conscience," and compared himself to the fictional POW camp guard Sergeant Schultz, known for comedically exclaiming "I know nothing." (1:03CR11 DE 249 at 16-17.)
The government's theory was that Hale encouraged his acolytes to commit violent acts while at the same time denying personal involvement to create "plausible deniability." This conversation is entirely consistent with that theory, and, had Hale conceded that he was soliciting Evola to murder someone other than Judge Lefkow, the government's case would have been made easier, leaving it necessary to prove only the proposed victim's identity. Even if Hale's defense counsel had done everything which Hale now believes was warranted, the court believes that the evidence-in particular the key conversation Hale focuses on-still strongly indicates that Hale understood Evola's target from the beginning to be Judge Lefkow, and Hale therefore would still have been found guilty.*fn7 In short, Hale's arguments concerning the defense he believes should have been used do not "undermine confidence in the outcome" by showing a reasonable probability that the result of the proceeding would have been different, which means prejudice did not result. Strickland, 466 U.S. at 694.
This conclusion means that if the court were to proceed in the narrowest fashion possible, it is not necessary to examine in detail the sub-arguments Hale makes as to why his attorney's choice of defense was improper. (In fact, the analysis of the entire ineffective-assistance could almost stop here, because Hale's argument about the defense strategy that should have been used factor into most of his other arguments.) Nevertheless, in the interest of being thorough and because doing so makes it even clearer that Hale's proposed "wrong target" defense does not show that his attorney pursued a defense so flawed as to be ineffective (that is, looking at the individual trees doesn't change the court's opinion of the forest), the court will briefly address each of the individual issues Hale raises in support of that aspect of his ineffective assistance claim, along with its discussion of the remainder of his ineffective-assistance arguments.
B. Hale's Specific "Instances" of Ineffective Assistance
In the analysis that follows, the court tracks Hale's organization of his ineffective assistance claim into nine "instances" of ineffective assistance of counsel, many of those instances being composed of several alleged lapses in counsel's performance. Thus, each of the section headings below is identical to the one used by Hale in his supporting memorandum, enclosing in brackets the numeric designation where it is found in Hale's memorandum, for easy reference to Hale's brief in support. As a result, however, there is some redundancy, because many of Hale's arguments themselves are overlapping. This is not surprising, really, since ineffective assistance of counsel is a single ground for relief, no matter how many mistakes are made, and it is the attorney's overall performance that must be considered. Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005).
1. "Failure to Present the Correct Theory of Defense" [Hale's II.B.1]
First, Hale outlines the reasons why the evidence demonstrates: 1) when Evola initially met with him on December 5, 2002, to propose "exterminating" the "Jew rat," Hale thought that they were discussing lawyer Amend; 2) only after Evola mentioned a "femala rat" in a December 9, 2002, e-mail message did Hale understand that Evola had "switched" the target of the plan to Judge Lefkow; and 3) Hale then met with Evola on December 17, 2002, and categorically rejected the "new plan," by stating he could not "be a party to such a thing." (DE #18 at 14-16.) Hale's argument is that his attorney failed to present additional evidence which would have proved Hale's original understanding that Evola was proposing the "extermination" of lawyer Amend, and that that failure had the consequence of allowing the jury to accept the government's theory that the December 17, 2002, conversation with Evola was Hale's attempt to engage in "plausible deniability," rather than understanding that Hale was rejecting outright the "new" plan directed at Judge Lefkow.
Before addressing Hale's elaboration of all of the subparts of this argument, a few overall observations are important. First, Hale has already made essentially this same argument in post-trial motions (1:03CR11 DE ## 219; 221; 233; 245); and the court has already painstakingly explained why, when the evidence is viewed as a whole, the most plausible interpretation of the initial conversation between Hale and Evola is that Hale understood Evola to be referring to the "extermination" of Judge Lefkow. (1:03CR11 DE ## 244 at 4 n.6; 249 at 15 n. 16; 250-1 at 4-5.) The court incorporates all of its prior explanation and analysis here by reference, and nothing Hale discusses now, concerning the additional evidence he asserts that his attorney failed to offer, persuades the court that the evidence should be viewed differently.
Second is a point which the court has not clearly made until now, and which bolsters the court's view that the most plausible interpretation of the first conversation between Evola and Hale is that both participants understood it to concern Judge Lefkow. Considering that Hale's assertion is that he "categorically rejected" the new plan after Evola supposedly "switched" the target, it is odd that Hale never expressed disappointment at Evola's abandonment of the existing plan, surprise, shock or dismay: i.e., he never said anything to Evola along the lines of "wait a minute, I thought we were talking about Amend, let's get back to that plan," or "are you crazy? I don't want a federal judge murdered!"*fn8 In his reply brief Hale argues that it was unnecessary for him to "correct" Evola, because he hadn't solicited Evola to do anything in the first place. (DE #36 at 2.) As has been explained previously and again herein, while that might be a reasonable view of the evidence, it is not the only reasonable view, and is one the jury rejected.
Third, and despite Hale's reply argument to the contrary, arguing that Hale understood Evola to be talking about attorney Amend, but called the plan off when it switched to Judge Lefkow, would have effectively amounted to a concession that Hale had solicited Evola to murder Amend. Thus, his entire defense would have hinged on whether the jury could have been persuaded that Hale was, in his mind, talking about Amend, not Judge Lefkow. Obviously, this would have been a highly risky strategy, particularly when, as explained herein and in the prior orders and opinions in this case, a completely plausible view of the evidence is that Hale understood the discussion to concern Judge Lefkow from the start.
The court now individually addresses each of Hale's sub-arguments.
a. "Failure to Understand the Facts of Hale's Case" [Hale's II.B.1.a]
In this section of his brief Hale makes three points: 1) his attorney failed to understand that Hale's use of the word "information" in a conversation with Evola on December 5, 2002, meant the addresses of several individuals, including Judge Lefkow, which in turn meant that Evola's use of the word "it" later in the conversation referred to all of those addresses, not just Judge Lefkow's, showing that Hale thought lawyer Amend was being discussed; 2) that "part of the reason" for the attorney's failure to understand was that the attorney "failed to adequately consult with Mr. Hale prior to trial, refusing to visit him in jail and refusing to investigate Mr. Hale's adamant and repeated statement[s] to counsel that Judge Lefkow was not 'the rat' or 'Jew rat' referred to" in the conversation, lawyer Amend was" (DE #18 at 16-17); and 3) counsel failed to present this defense because, as he admitted during closing argument, he didn't think a defense was necessary, thereby "testing the fates with Mr. Hale's freedom." (DE #18 at 17.)
As to the first point, this is the same argument Hale made in post-trial motions, which the court has already considered and rejected. (1:03CR11 DE #25-1 at 4-5.) The conversation Hale is referring to is as follows:
Evola: Well, I got your e-mail about the Jew judge...
Evola:... you wanting his address and [all his rats'].*fn9
Hale: That information, yes, for educational purposes and for whatever reason you wish it to be.
Evola: Are we gonna... I'm workin' on it. I, I got a way of getting it. Ah, when we get it, we gonna exterminate the rat?
Recorded conversation of 12/05/02.
The only thing the court will add to its prior discussion of this argument, directly in response to Hale's contention that his attorney didn't understand that "information" referred to several addresses, is that it is doubtful that defense counsel-or for that matter, anyone hearing/reading the conversation quoted above (no matter that the transcript of the bracketed portion actually read "the other rats")-would fail to understand that in context, "that information" may very well have meant several addresses, not just Judge Lefkow's. In fact, as the government points out in response to Hale's motion (DE #30 at 6), defense counsel's cross-examination of Evola shows that counsel understood that to be the case: "Now, that e-mail I just showed you, December 4, that was an e-mail where he's [Hale] asking for addresses, correct?" (Tr. Vol. 9 at 76.) "And it says in there [December 5 e-mail] that he's [Hale] in the process of getting the people's home addresses in there, correct?" (Id. at 79.)
More importantly, that understanding-that Hale was seeking to obtain multiple addresses-doesn't change a thing. This is because Evola's focus in the conversation is singular: the email about "the Jew judge," Hale wanting "his address"*fn10 and when the information was obtained using it to exterminate "the rat." Hale never explains why it logically follows, from any interpretation of this conversation, that "the rat" was lawyer Amend.*fn11 Apparently this is to be inferred from the phrase "his address and all his rats," in other words, "his" refers to the "Jew judge" and "all his rats" must therefore refer to the attorneys involved,*fn12 one of whom was Amend.*fn13 And if that is the interpretation, Hale also doesn't explain why he would have understood Evola to be singling out Amend from the group of attorney rats as the one rat chosen for extermination. In fact, Hale's insistence that the phrase "all his rats" was used makes it seem more-not less-likely that he understood the discussion to concern Judge Lefkow: wouldn't it be more likely to consider exterminating the leader of the group, than one of several unnamed rats?
Hale's second point is that "part of the reason" his attorney supposedly failed to understand that Hale thought Evola was initially proposing the murder of lawyer Amend was that he "failed to adequately consult with Mr. Hale prior to trial, refusing to visit him in jail and refusing to investigate Mr. Hale's adamant and repeated statement[s] to counsel that Judge Lefkow was not 'the rat' or 'Jew rat' referred to" in the conversation, lawyer Amend was." (DE #18 at 16-17.) Besides the internal contradiction in the sentence-how could Hale have made repeated statements to his attorney if his attorney wasn't meeting with him?*fn14 -Hale fails to explain how any investigation would have uncovered evidence revealing Hale's thought processes at the time he and Evola had the initial conversation.*fn15
For example, if Hale had a contemporaneous conversation with another person confirming that he and Evola were plotting to murder Amend, he hasn't revealed that evidence. In fact, and to the contrary, there was evidence at trial that Hale contemporaneously asked another of his followers to murder Judge Lefkow,*fn16 a further reason why the defense Hale propose now would have been a poor strategic choice. In short, however, relief will not be granted under § 2255 based on an assertion that an inadequate investigation was conducted when the movant does not explain what the investigation would have uncovered and how it would have helped his defense. Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003).
Hale's third point is that his lawyer didn't present the defense Hale now believes would have been better, because the attorney didn't think it was necessary. This really isn't an argument that Hale received ineffective assistance of counsel, it is simply a reiteration of Hale's belief that his attorney was ineffective for not pursuing the alternative defense Hale now argues would have been better. The court will only add that the best, and perhaps only, evidence of what Hale understood Evola to have been proposing at the time they first spoke would have had to come in through Hale's own testimony at trial, as Hale admits: "Counsel had, but failed to present, the testimony of... Mr. Hale himself that would have refuted the government's claim." (DE #18 at 14.)*fn17
The decision whether or not to testify in his own defense was Hale's alone, Rock v. Arkansas, 483 U.S. 44 (1987); United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir. 1984), and Hale, who is an attorney, has not alleged that he did not understand that: in fact, he executed a written waiver of his right to testify. (1:03CR11 DE #147.)*fn18 Taking the stand to testify in one's own defense is typically not a wise tactical decision, however, Curtis, 742 F.2d at 1076, and undoubtedly that was true in this case. The court cannot fault defense counsel for not putting Hale on the stand to testify in support of what would have been, for all the reasons given herein, an ill-chosen defense.
b. "Failure to Advocate the Truth of Mr. Hale's Case" [Hale's II.B.1.b]
In this subsection of his brief, Hale simply reiterates his previous argument that his attorney did not pursue the correct defense. He adds only that when his attorney cross-examined Evola, he pressed Evola to admit that on December 5, 2002, Evola was talking about killing a judge, which was "adverse to the truth and very detrimental to the defense," and again shows that "counsel failed to realize and argue that Mr. Hale had rejected Evola's plan on December 17, 2002." (DE #18 at 17.) As the government points out in its response, obtaining such an admission would have supported Hale's entrapment defense, and, for the reasons explained above, the court does not fault counsel's pursuit of an entrapment defense in place of the supposedly better defense that Hale thought Evola meant to murder Amend. Thus, this argument lends no support to Hale's claim of ineffective assistance.
c. "Failure to Call Exculpatory Witnesses Greenwald, Schlismann, Reardon and Mr. Hale Himself to Support This Defense" [Hale's II.B.1.c]
Hale argues that these witnesses should have been called, because all have testified that Hale had previously used the term "Jew rat" to refer to lawyer Amend, thus contradicting the government's claim that Hale's December 5, 2002, email message concerned Judge Lefkow. In addition, Hale and Schlismann would have testified that Evola himself had used the term "Jew rat" to refer to lawyer Amend.
As the government points out in its response, during defense counsel's cross-examination of Evola, Evola admitted that "rat' was a term used frequently for "traitors or somebody who was against the church," and that Amend was a traitor so the term could have been used on occasions for him. (Tr. Vol. 9 at 7-76.) Therefore, not calling additional witnesses to testify to essentially the same fact does not fall below a minimal standard of competence. This is particularly true where, as the government argues, these witnesses were likely to create other problems for the defense. For example, proposed witness Greenwald, an attorney who had previously represented Hale in several civil cases, states in his declaration that he would have testified that Hale had clearly expressed that he believed only in peaceful activism and was opposed to violence and illegal conduct. (DE #8-3 at 4 ¶ 2.) This testimony would have been difficult to reconcile with the defense that Hale proposes, that he was soliciting Evola to murder Amend, rejecting the plan only when Judge Lefkow became the target; moreover, failing even then to counsel Evola against carrying out the plan. In short, there was no error in failing to present essentially cumulative evidence that "rat" was a term frequently used by Hale to refer to Amend and others.
d. "Failure to Hold the Government to its Burden of Proving That Evola Was Referring to Judge Lefkow and Not Lawyer Amend on Dec. 5, 2002" [Hale's II.B.1.d]
Hale's argument is that "there was no direct evidence-only attorney argument-that the 'rat,' 'Jew rat,' referred to in the Dec. 5, 2002 conversation was Judge Lefkow," and that defense counsel abdicated his duties by failing to argue during closing that the government had failed to meet its burden of proof on that issue. This argument ignores the fact that cases can be proved entirely by circumstantial evidence, and as has been discussed herein and in prior orders in the criminal case, there was ample circumstantial evidence to allow a reasonable jury to conclude that Hale and Evola were referring to Judge Lefkow. Moreover, in context, the conversation itself is essentially direct evidence of who was meant by "rat." Hale's attorney did not fail to hold the government to its burden of proof.
e. "Erroneous Stipulation to the Accuracy of the Government's Transcripts" [Hale's II.B.1.e]
During many (if not most) of his meeting with Hale over a period of several years, government-informant Evola wore an electronic device which allowed the government to monitor and record the conversations. Several of the recordings were admitted as evidence and played for the jury. Transcripts of the recordings were furnished for the convenience of the jurors as they followed along. Hale argues that his attorney's stipulation to the accuracy of the transcripts was an error, because the transcripts themselves contained errors which harmed his defense or the defense which should have been used. Specifically, Hale complains of: 1) an extra comma inserted between "lawyer rat" which turned that reference to one person into a reference to two persons; 2) that there should have been an apostrophe making "rats" possessive so the jury would have understood that Evola's reference to Hale "wanting his address and the other rats" meant Hale had asked for four addresses,*fn19 in turn indicating that there was no proof that Judge Lefkow was "the rat, Jew rat" in question in the conversation; and 3) that a transcript should not have indicated that Hale had "chuckled" when Evola expressed designs on Judge Lefkow's life.
As the government indicates in its response, the jurors were repeatedly instructed, as the recordings were played, that the transcripts were furnished only for assistance, that the recordings themselves were the evidence, and that, should they notice a discrepancy with the transcript, they should consider only what they heard on the recording. (See, e.g., Tr. Vol. 7 at 9, 13, 18.) The final jury instructions the court read to the jury, and provided each juror a copy of during deliberations, repeated this information as Instruction No. 14, specifically stating: "It is up to you to decide whether the transcripts correctly reflect what was said" and that "[i]f you noticed any difference between what you heard on the recordings and what you read in the transcripts, you must rely on what you heard, not what you read." (1:03CR11 DE #160 at 16.) Juries ...