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USCA1 Opinion
September 16, 1996 [Not for Publication] [Not for Publication]
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________
No. 95-1602
UNITED STATES,
Appellee,
v.
JOSEPH DAVIS, A/K/A JOSEPH MILLS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge] ___________________
____________________
Before
Selya and Stahl, Circuit Judges, ______________
and Torres,* District Judge. ______________
____________________
David L. Martin on brief for appellant. _______________
Sheldon Whitehouse, United States Attorney, Margaret E. Curran, __________________
Assistant United States Attorney, and Gerard B. Sullivan, Assistant ___________________
United States Attorney, on brief for appellee.
____________________
September 13, 1996
____________________
____________________
*Of the District of Rhode Island, sitting by designation.
STAHL, Circuit Judge. A jury convicted appellant STAHL, Circuit Judge. _____________
Joseph Davis of heroin trafficking and firearms offenses.
Davis appeals the district court's denial of his motion for a
new trial, which was based on his claim of ineffective
assistance of counsel at trial. Because we conclude that any
deficiencies in counsel's performance did not result in
prejudice to Davis, we affirm.
I. I. __
Factual Background Factual Background __________________
In early January 1994, Detective David Lussier, a
Providence, Rhode Island, police officer specializing in
narcotic cases, began investigating suspected heroin dealer
Joseph Davis, a/k/a Joe Mills ("Davis"). The suspected
trafficking was being conducted out of an apartment that
Davis shared with his mother and niece. Detective Lussier
conducted sporadic surveillance of the apartment, stopping by
at various times of the day and night for five to thirty
minutes. He frequently observed a black BMW automobile
parked in front of the apartment, and on several occasions
saw Davis park the BMW and thereafter use his keys to enter
the apartment.
To confirm his suspicions, Detective Lussier
successfully orchestrated a controlled buy of heroin from
Davis at the apartment. Lussier searched the buyer, a
confidential informant, before he entered the apartment and
-2- 2
then watched him enter, exit, and return directly to
Lussier's car. The informant then delivered a packet of
heroin to Lussier, stating that it came from "Joe."
Relying on the controlled buy to establish probable
cause, Lussier obtained a warrant to search Davis's
apartment. On January 24, 1994, several Providence police
officers executed the search warrant at Davis s apartment.
The police knocked on the door, and Davis s niece, the only
one home at that time, admitted the officers.
The apartment had two stories and a basement. The
bedrooms on the upper level were used by Davis's mother and
niece. The basement was divided into a laundry/storage area
and a third bedroom, apparently used by Davis. The police
found numerous drug-related items in the basement bedroom
area, including seventy-seven packets of heroin, twenty-three
bags of marijuana, a coffee grinder used to mill heroin, a
respiratory dust mask,1 a stamp commonly used to mark heroin
packets, and thousands of empty glassine packets. The police
also seized from the bedroom area $10,563 in cash ($3,663 in
a bank shaped like a large Coca-Cola bottle and $6,900 in a
"Snickers" box), two gold chains (also in the "Snickers"
box), and a loaded .38 caliber revolver in a box on the
second shelf of an entertainment center. A number of found
____________________
1. One of the officers who searched the apartment testified
at trial that these masks are used by persons who process and
package heroin in order to avoid inhalation of heroin dust.
-3- 3
items established that the basement bedroom was Davis's
(letters, a birthday card, a photograph album, a bill for
pager service, etc.). Detective Lussier called the pager
number listed on the bill several times after the raid and
before Davis s arrest. Each time, Lussier, who had known
Davis for four or five years, recognized the voice returning
the page as that of Davis. Moreover, the caller confirmed
for Lussier that he was Joe Mills, another name used by
Davis. The police seized the BMW and found Davis's driver's
license inside, which bore the address of the apartment.
Providence police officers arrested Davis on March
4, 1994, about six weeks after the search. The arresting
officers seized from Davis forty-two packets of heroin marked
with the brand name "Snake" from the front pocket of the
sweatshirt Davis was wearing. They also seized a pager and
$300 in cash. At the police station, Davis gave the
apartment as his residence address. Detective Lussier
subsequently interviewed Davis and told him that they had
seized heroin from the apartment. Davis responded (to the
effect that) "You only got 72 bags." Lussier also told Davis
they seized marijuana. Again, Davis responded, "You only got
about 20 bags." Finally, Lussier told Davis that the gun
made the problem more serious. Davis rejoined, "The revolver
wasn't hidden. It was only a .38, just for protection."
Detective Lussier had not told Davis the quantity of the
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drugs seized or the caliber of the gun prior to Davis s
admissions. The arresting officer also turned the seized
pager over to Detective Lussier. Lussier dialed the number
he had previously used to page Davis and keyed in a three-
digit code. The code appeared on the pager s display.
It is also undisputed (based on trial stipulations)
that: (1) Davis had been convicted of a felony prior to
January 24, 1994, (2) the R.G. Industries .38 caliber
revolver had traveled in and affected interstate commerce and
it had been test-fired and worked, and (3) the packets seized
from the apartment, the residue on the coffee grinder, and
the packets seized from Davis s person all contained heroin.
II. II. ___
Procedural Background Procedural Background _____________________
On March 17, 1994, a federal grand jury charged
Joseph Davis with two counts of possession with intent to
distribute heroin in violation of 21 U.S.C. 841(a) (Counts
One and Four), one count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. 922(g) (Count
Two), and one count of using a firearm during a drug
trafficking crime in violation of 18 U.S.C. 924(c) (Count
Three).2 On August 2, 1994, after a two-day jury trial at
____________________
2. Count Three was eventually dismissed, and Davis's
ultimate sentence adjusted accordingly, in light of Bailey v. ______
United States, 116 S. Ct. 501 (1995) (clarifying the meaning _____________
of "use" of a firearm during drug trafficking under 18 U.S.C.
924(c)).
-5- 5
which Davis presented no witnesses or evidence, Davis was
convicted on all four counts.
On August 11, 1994, Davis filed a pro se motion for ______
a new trial, alleging that he had received ineffective
assistance of counsel. The district court denied the motion.
Davis subsequently discharged his retained trial counsel, and
new counsel was appointed by the court. Davis s new counsel
moved for reconsideration of the denial of the motion for a
new trial. The district court agreed to reconsider and heard
arguments on the merits of the ineffective assistance claim.
The district court found both that trial counsel's
performance was adequate and that, even if it had been
deficient, Davis suffered no prejudice.
III. III. ____
Discussion Discussion __________
Davis appeals the district court's denial of his
motion for a new trial, arguing that he received ineffective
assistance of counsel at trial.3 Typically, the courts of
appeal hear claims of ineffective assistance on collateral
review, because such claims usually are not presented to and
decided by the district court prior to the direct appeal.
See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), ___ _____________ ____
____________________
3. Davis also appeals certain aspects of his sentence under
the United States Sentencing Guidelines, but our review of
the record reveals that the asserted errors have been
corrected by the district judge. Thus, we need not address
them here.
-6- 6
cert. denied, 114 S. Ct. 1839 (1994). In this case, though, _____ ______
Davis had new counsel appointed after trial, and the
ineffective assistance claim was briefed and argued to the
district court, which determined that trial counsel's
performance was neither deficient nor prejudicial.
Accordingly, "the record is sufficiently developed to allow
reasoned consideration of the claim." Id. ___
A. Governing Principles ________________________
To establish a Sixth Amendment violation of the
right to effective assistance of counsel, a defendant must
show: (1) that counsel's performance fell below an objective
standard of reasonableness; and (2) that prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Scarpa __________ __________ ______
v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994), cert. denied, 115 S. ______ _____ ______
Ct. 940 (1995). Among the basic duties of an attorney is "to
bring to bear such skill and knowledge as will render the
trial a reliable adversarial testing process." Strickland, __________
466 U.S. at 688.
In evaluating an attorney's performance, we
"indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action `might be
considered sound trial strategy.'" Id. at 689 (quoting ___
Michel v. Louisiana, 350 U.S. 91, 101 (1955)). We must make ______ _________
-7- 7
"every effort . . . to eliminate the distorting effects of
hindsight" and to evaluate counsel's conduct from his or her
perspective under the circumstances as they existed at that
time. Id. "The proper measure of attorney performance ___
remains simply reasonableness under prevailing professional
norms." Id. at 688. ___
A defendant establishes prejudice from counsel's
substandard performance if he or she can show that, but for
counsel's errors, "there is a reasonable probability . . .
that the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at 694. We do not ___
focus solely on the outcome; however, we also consider
"whether the result of the proceeding was fundamentally
unfair or unreliable." Scarpa, 38 F.3d at 16 (quoting ______
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). "In making ________ ________
this determination, a court . . . must consider the totality
of the evidence before the judge or jury." Strickland, 466 __________
U.S. at 695.4 We need not decide if counsel's performance
____________________
4. There is some uncertainty surrounding the standard of
appellate review. Strickland instructs that "both the __________
performance and prejudice components of the ineffectiveness
inquiry are mixed questions of law and fact," 466 U.S. 668,
698 (1984), and, accordingly, this court has stated that "we
review these issues de novo," Matthews v. Rakiey, 54 F.3d __ ____ ________ ______
908, 916 (1st Cir. 1995). Five months earlier, however, this
court explained that before Strickland, "we reviewed a __________
district judge's determination as to competence only for
clear error," but "[s]ince Strickland, the standard of review __________
may be more rigorous where the issue is not a matter of
-8- 8
was deficient if it is apparent that no prejudice resulted
from the alleged errors. Id. at 697. ___
B. Trial Counsel's Alleged Deficiencies ________________________________________
Davis propounds ten specific deficiencies in trial
counsel's performance: (1) failing to discuss with Davis,
before trial, the evidence and important tactical decisions;
(2) failing to challenge the legality of the search of the
apartment; (3) failing to seek dismissal of the jury panel
based on allegedly prejudicial statements by prospective
jurors during jury selection; (4) making an incoherent
opening statement; (5) making prejudicial statements about
the defendant at trial; (6) failing to object to
inadmissible, prejudicial testimony about outstanding
warrants for prior charges; (7) conducting ineffective and
damaging cross-examination; (8) failing to call witnesses to
challenge the credibility of government witnesses; (9)
failing to present a witness (Davis's mother) to explain the
presence of the pistol; and (10) failing to request a
limiting instruction regarding Davis's prior convictions.
____________________
historical fact but of deciding how much competence is
enough." United States v. Raineri, 42 F.3d 36, 43 (1st Cir. _____________ _______
1994); cf. United States v. McGill, 11 F.3d 223, 226 n.2 (1st ___ _____________ ______
Cir. 1993) (comparing alternative interpretations of
Strickland's impact on our standard of review). __________
Here, given the strength of the evidence against
Davis, we focus on whether the alleged deficiencies in
counsel's performance were prejudicial. Our review is
extensive, but we are not obliged to decide which standard of
review obtains, because the result is the same under any
standard.
-9- 9
C. Analysis ____________
We have carefully reviewed all of the alleged
deficiencies in counsel's performance, as well as the
evidence presented at trial. Although Strickland's __________
"prejudice prong" is the basis for our decision, some
comments on counsel's performance are in order.
Trial counsel's performance could undoubtedly have
been better; in particular, he could have refrained from
telling the jury that his client was a heroin dealer with a
lengthy criminal record. There was, however, some method in
counsel's apparent madness. That seemingly prejudicial
statement was concededly part of a strategy to convince the
jury that the police had framed Davis, both at the time of
the search and upon his arrest, because he was a known
convicted felon. Counsel also argued and attempted to show
through cross-examination that Davis had too much experience
with the criminal justice system to make the damaging
statements that the police claimed he made (e.g., "You only ____
got 72 bags"). Trial counsel's statement that this was "a
prosecutor's dream case" and therefore "too good to be true"
was also part of the same strategy. Counsel tried to
convince the jury that the police had lied and planted the
evidence found in the apartment and on Davis's person. As
further support for the claim that his client had been
framed, counsel pointed to the fact that no fingerprints were
-10- 10
found on the heroin-related items allegedly seized at the
apartment. While counsel's approach ultimately proved
unsuccessful, we are hard pressed to think of an alternative
trial strategy in light of the overwhelming evidence against
Davis.
Even assuming, however, that counsel's performance
was constitutionally deficient, we ultimately find that there
was no prejudice to Davis. The evidence against Davis was so
overwhelming that, as to nine of the ten alleged errors,
there is no reasonable possibility that the jury would have
acquitted Davis even without counsel's allegedly deficient
performance. The remaining error, the failure to move for
suppression of the evidence resulting from the apartment
search, cannot be dismissed on the basis of overwhelming
evidence. Thus, we will discuss that claim in some depth.
We also examine whether a constitutionally adequate trial
lawyer could have convinced the jury that the police lied and
fabricated evidence. As to all the other asserted errors,
there is no need to treat them individually -- we find the
evidence of Davis's guilt (if believed) to be so compelling
that he utterly fails to satisfy the prejudice prong of
Strickland. See 466 U.S. at 696 ("[A] verdict or conclusion __________ ___
only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record
support."); see also United States v. Jackson, 918 F.2d 236, ___ ____ _____________ _______
-11- 11
243 (1st Cir. 1990) (holding that overwhelming evidence of
defendant's guilt negated any reasonable probability that
error by counsel affected outcome of trial).
Although Davis points to a plethora of asserted
deficiencies, he concedes that trial counsel's errors were
non-prejudicial if one accepts the testimony of the four
police officers about the seizures of heroin and a gun at the
apartment, and the heroin on Davis's person upon arrest.
Boiled down to its essence, Davis's appeal is founded upon
his claim of extensive police perjury, and an assertion that
competent counsel could have either (1) suppressed the search
evidence because of that perjury or (2) obtained a verdict of
acquittal by convincing the jury that the police lied and
fabricated essential evidence.
Thus, our task is to assess Davis's showing of
police perjury and evidence fabrication. We first analyze,
and reject, Davis's police perjury arguments in the context
of a potential Fourth Amendment challenge to the apartment
search. We then use that analysis to conclude that there is
no reasonable probability that, in the absence of these
purported errors by counsel, a jury would have accepted the
perjury arguments and acquitted Davis.
1. Suppressing the Search Evidence ___________________________________
Davis argues that the warrant to search the
apartment was invalid because Detective Lussier lied about
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conducting the controlled buy. First, Davis points out that
Lussier's warrant affidavit contained little detail about the
controlled buy or the informant; in particular, the affidavit
did not provide the date of the controlled buy or the amount
of heroin or currency involved.5
Second, Davis asserts that Lussier's warrant
affidavit contained a logical inconsistency concerning
Davis's physical description that suggests fabrication. The
affidavit stated that Davis was 5'8" tall and weighed 145
pounds, when in fact he was 5'11" and 170 pounds. The
affidavit also stated that the informant, after completing
the buy, "provided me with a physical description matching ________
____________________
5. The affidavit stated:
Within the last few days I contacted
a confidential and reliable informant,
this informant has in the past provided
me with information that has resulted in
successful narcotics arrest [sic], and
narcotics seizures. I spoke with this
informant who agreed to make a controlled
purchase from apartment F-8 in Wiggins
Village. I drove the informant into the
area of the apartment and searched
him/her for any contraband or currency.
After finding none I provided the
informant with US currency and sent
him/her to the apartment. I then watched
as the informant knocked and went into
the apartment. After about 5 to 10
minutes the informant exited the same
door and walked directly to my vehicle.
Once inside the informant handed me a sum
of heroin, stating that it came from
"Joe." The informant then provided me a
physical description matching Joe Davis .
. . .
-13- 13
Joe Davis" (emphasis added). Davis's argument is somewhat
subtle: if there had really been a controlled buyer who
dealt with Davis, the buyer would have accurately described
Davis, and that accurate description would not have "matched"
Joe Davis in Lussier's mind, because Lussier was mistaken
about Davis's actual height and weight. Thus, Davis contends
that Lussier fabricated both the confidential informant and
the controlled buy.
Davis also makes several other arguments about
police perjury. Although these arguments relate to events
that occurred after Lussier filed the warrant affidavit, we
address them here because Davis argues that the subsequent
conduct of the police corroborates the falsity of the
affidavit. After Davis was arrested, the arresting officers
seized the packets of heroin, the pager, and three hundred
dollars. About sixty-six dollars, however, was left in
Davis's possession after the initial post-arrest search,
apparently not discovered when the officers found the other
items. Davis argues that the officers would have found the
sixty-six dollars if they had in fact searched Davis and
found heroin and another wad of cash. Therefore, Davis
asserts, the arresting officers lied about finding heroin on
Davis, and they fabricated the physical evidence presented at
trial.
-14- 14
Davis also contends that the police lied when they
said that the "Coca-Cola" bank was found in Davis's basement
bedroom, providing as support for that contention affidavits
from Davis's mother, sister, and a neighbor stating that the
bank belonged to the mother and was kept in her upstairs
bedroom. None of those three testified at trial. Finally,
Davis accuses the police of stealing nearly $500 from his
mother's bedroom, based on his mother's affidavit that the
money was missing after the search.
When an ineffective assistance claim is grounded on
a failure to litigate a Fourth Amendment claim, the defendant
must prove "that his Fourth Amendment claim is meritorious
and that there is a reasonable probability that the verdict
would have been different absent the excludable evidence."
Kimmelman v. Morrison, 477 U.S. 365, 375 (1985). We assume _________ ________
for the sake of argument that the verdict would have been
different if the evidence resulting from the search was
excluded, and we focus on whether an effective counsel could
have successfully suppressed the evidence resulting from the
apartment search on Fourth Amendment grounds.
Davis argues that, had his counsel requested it, he
would have been entitled to a Franks hearing, the first step ______
in seeking to suppress the evidence obtained in the search.
Under Franks v. Delaware, 438 U.S. 154, 155-56 (1978), a ______ ________
defendant may overcome the presumption of validity
-15- 15
surrounding affidavits that support search warrants and
obtain an evidentiary hearing, if he "makes a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of
probable cause." Here, of course, the allegedly false
statement is Detective Lussier's assertion that a controlled
buy was conducted at Davis's apartment, which was the only
basis for probable cause in the affidavit.
We hold, however, that Davis's allegations of
perjury by Lussier do not amount to the "substantial
preliminary showing" required for a Franks hearing. The ______
Supreme Court explained in Franks that: ______
To mandate an evidentiary hearing, the
challenger's attack must be more than
conclusory and must be supported by more
than a desire to cross-examine. There
must be allegations of deliberate
falsehood or of reckless disregard for
the truth, and those allegations must be
accompanied by an offer of proof. They
should point out specifically the portion
of the warrant affidavit that is claimed
to be false; and they should be
accompanied by a statement of supporting
reasons. Affidavits or sworn or
otherwise reliable statements of
witnesses should be furnished, or their
absence satisfactorily explained.
Allegations of negligence or innocent
mistake are insufficient.
Id. at 154. Davis's showing of falsity in the Lussier ___
affidavit is based on (1) the lack of detail about the
-16- 16
circumstances of the controlled buy, (2) the error in
Lussier's account of Davis's "approximate" height and weight
coupled with the statement that the controlled buyer gave a
"matching" description, and (3) the assertedly dishonest
subsequentpolice conduct. As we explain, this is not enough.
While further detail about the controlled buy might
have been desirable, the lack of specificity about the date
of the buy or the quantity involved is not necessarily
probative of falsity. The concern for keeping the buyer's
identity confidential is a more likely explanation for the
lack of those details. See United States v. Carty, 993 F.2d ___ _____________ _____
1005, 1008 (1st Cir. 1993) (district court credited trial
testimony that it was "customary to avoid precise
specification of the dates of controlled buys in order to
protect the identity of informants"). Moreover, Lussier's
affidavit did describe the means by which he "controlled" the
buy (i.e., a prior search of the confidential informant and
personal observation of him before entering and after exiting
Davis's apartment). See United States v. Rodgers, 732 F.2d ___ _____________ _______
625, 630-31 (8th Cir. 1984) (description of means of control
"tended to substantiate the fact that [defendant] was selling
cocaine from his residence"). We conclude that the lack of
detail does not amount to a "substantial showing" of falsity
in the affidavit.
-17- 17
As to Lussier's misstatement of Davis's height and
weight, Davis does not allege that those data were material
to the warrant to search the apartment, which need only
describe with particularity the place to be searched. The _____
argument, again, is that the discrepancy shows that Lussier
lied about the controlled buy, without which there would have
been no probable cause. This ingenious argument, however, is
too thin a reed to support a claim of police perjury.
Lussier's affidavit did not state in what regard the
informant's description "matched" Davis (height? weight? age?
race? facial characteristics? hair style? mannerisms?
clothing? other distinguishing marks or features?).
Moreover, the affidavit only stated that Davis was
"approximately 5'8" 145" (in fact he was 5'11" and 170
pounds). The "matching" by the informant may have also been
merely an approximation. Hence, because Lussier gave only an
"approximate" description, and because we do not know in what
sense or how closely the buyer's description "matched" that
approximation, there may have been no discrepancy at all.
And to the extent there was a discrepancy, it was just as
likely a negligent or innocent mistake as a perjurious
fabrication. The inference that Davis asks us to draw from
this alleged discrepancy, that no controlled buy occurred, is
too strained and too speculative.
-18- 18
Davis's other allegations of police untruthfulness
(i.e., the sixty-six dollars inexplicably left on Davis's
person after arrest, the location of the "Coca-Cola" bank,
and the money missing from Davis's mother's bedroom) do not
make a substantial showing, either. It is not reasonable to
infer, from the fact that sixty-six dollars was left on Davis
after his arrest, that the police planted heroin on Davis.
The failure of the police to find the sixty-six dollars more
likely resulted from inadvertency than from a conspiracy to
falsely convict Davis. And the testimony of Davis's mother,
niece, and neighbor about the location of the "Coca-Cola"
bank and the missing money does little to substantiate that
Lussier lied about the controlled buy, even if we ignore our
concerns about the potential bias of those affiants.
We do not blindly assume the credibility of police
officers, but Davis's assertions do not persuade us that
competent trial counsel could have made a substantial showing
that the warrant affidavit was falsified as part of a
perjurious police conspiracy. Absent that showing, Davis
would not have received a Franks hearing,6 let alone ______
____________________
6. We recognize that when an affidavit relies primarily on
information provided by a confidential informant, a defendant
will often lack the information needed to make a Franks ______
showing. See United States v. Higgins, 995 F.2d 1, 3 (1st ___ ______________ _______
Cir. 1993). In such cases, where the defendant challenges
the accuracy of the affidavit but has failed to make the
"substantial preliminary showing" required by Franks, the ______
court may conduct an in camera interview of the __ ______
officer-affiant, and, if necessary, of the informant. See ___
-19- 19
successfully surmounted the next hurdle, convincing the
district court to suppress the evidence because of a perjured
affidavit. Thus, we conclude that there is no reasonable
probability that the search evidence could have been
suppressed, and no prejudice suffered by Davis.
2. Convincing the Jury of Police Perjury _________________________________________
Davis's trial counsel did attempt to convince the
jury that the police were lying about the evidence, but the
jury evidently was not persuaded. Trial counsel cross-
examined Lussier about the controlled buy and the discrepancy
in the description in Davis's height and weight; he also
cross-examined the arresting officer about the sixty-six
dollars left on Davis's person after his arrest. He argued
____________________
United States v. Southard, 700 F.2d 1, 10-11 (1st Cir.), ______________ ________
cert. denied, 464 U.S. 823 (1983). A district court is not _____ ______
required to do so, however; the decision whether an in camera __ ______
proceeding is needed to test the officer-affiant's
credibility rests entirely with the district court. See ___
United States v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990). ______________ _______
We review a district court's denial of a defendant's request
for an in camera proceeding for abuse of discretion. See __ ______ ___
United States v. Valerio, 48 F.3d 58, 62-63 (1st Cir. 1995); ______________ _______
Higgins, 995 F.2d at 3. _______
Moreover, Davis has argued neither that trial
counsel should have requested an in camera hearing, nor that __ ______
such a proceeding would have led to the suppression of the
search evidence. And, although a "confidential informant"
was used to conduct the controlled buy, there was no reliance
on any information provided by the informant; rather, Lussier ___________
personally observed that the informant went into the
apartment without heroin and came out with heroin. That is
enough for probable cause to search the apartment, based on
the officer's own perception. Thus, many of the credibility
concerns that arise when probable cause is based on
information provided by a confidential source are not present
in this case.
-20- 20
to the jury that these facts indicated that the police were
lying, and that the drugs were planted on Davis.7 It is true
that trial counsel did not present testimony by Davis's
mother, sister, or neighbor about the Coca-Cola bank or the
money allegedly stolen by the searching officers. These
allegations do not, of course, directly attack the major
evidence against Davis, but if believed they could have
impugned the credibility of the officers involved in Davis's
case. We are very doubtful, though, that a jury would have
been persuaded by the testimony of Davis's mother, sister, or
neighbor, for the reasons alluded to earlier. Suffice it to
say that we see no reasonable probability, given the
extensive evidence against Davis, that the jury would have
acquitted Davis if trial counsel had presented the additional
evidence of alleged police perjury, had made the perjury
arguments more artfully, and had not made the other supposed
errors that Davis points to. The evidence was simply too
voluminous and compelling, while the argued inferences of
police perjury were too speculative and tenuous.
IV. IV. ___
Conclusion Conclusion __________
____________________
7. The trial court sustained the government's objection when
Davis's counsel, in closing argument, stated "I don't know if
they enjoyed planting drugs on him." However, the overall
theme of the defense closing argument -- police perjury and
fabrication of evidence -- was nonetheless made obvious to
the jury.
-21- 21
For the foregoing reasons, we conclude that none
of the alleged errors by counsel resulted in prejudice to
Davis, given the overwhelming record evidence of his guilt.
The decision of the district court is affirmed. affirmed ________
-22- 22
Document Info
Docket Number： 95-1602
Filed Date： 9/16/1996
Precedential Status： Precedential
Modified Date： 9/21/2015