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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[Not for Publication]


[Not for Publication]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
__________________
Assistant United

States Attorney,

States Attorney,

Margaret E.

Curr

and Gerard B. Sullivan, Assist


___________________

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

assistance of counsel at trial.

deficiencies

in

counsel's

his claim

of

ineffective

Because we conclude that any

performance did

not

result

in

prejudice to Davis, we affirm.

I.
I.
__

Factual Background
Factual Background
__________________

In early

Providence,

Rhode

narcotic cases,

Joseph

Davis,

January 1994, Detective

Island,

police

David Lussier, a

officer

began investigating suspected

a/k/a Joe

Mills

("Davis").

specializing in

heroin dealer

The

suspected

trafficking

was being

Davis shared

conducted

with his mother

out of

an apartment

and niece.

that

Detective Lussier

conducted sporadic surveillance of the apartment, stopping by

at various times

minutes.

of the

day and

He frequently

parked in front

observed

of the apartment,

saw Davis park the BMW

night for

five to

black BMW

and on several

thirty

automobile

occasions

and thereafter use his keys to

enter

the apartment.

To

confirm

his

successfully orchestrated

Davis at

the

apartment.

suspicions,

Detective

controlled buy

Lussier searched

confidential informant, before

he entered the

Lussier

of heroin

the

from

buyer,

apartment and

-22

then

watched

Lussier's

him

car.

enter,

exit,

The informant

and

then

return

directly

delivered a

to

packet of

heroin to Lussier, stating that it came from "Joe."

Relying on the controlled buy to establish probable

cause,

Lussier

apartment.

obtained

On January

warrant

to

24, 1994, several

search

Davis's

Providence police

officers executed

the search

The police knocked on

warrant at

Davis s apartment.

the door, and Davis s niece,

the only

one home at that time, admitted the officers.

The apartment had two stories and

bedrooms on the upper

niece.

and

found

a basement.

level were used by Davis's

The basement was

The

mother and

divided into a laundry/storage area

a third bedroom, apparently

numerous drug-related

used by Davis.

items in

The police

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.

also

The police

seized from the bedroom area $10,563 in cash ($3,663 in

a bank shaped like a

"Snickers"

box),

and a

large Coca-Cola bottle and $6,900 in

box), two

gold

loaded .38

second shelf of an

chains (also

caliber revolver

entertainment center.

in the

in a

"Snickers"

box on

A number

the

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.

-33

items

established

(letters, a

pager

that

birthday card,

service, etc.).

number

the

Detective

arrest.

several times after

Each time,

page as that of

for

Lussier

Davis.

that he

Davis.

was Joe

Mills,

for

the pager

the raid and

Lussier, who

Moreover,

Davis's

a bill

Lussier called

Davis for four or five years, recognized the

the

was

a photograph album,

listed on the bill

before Davis s

basement bedroom

had known

voice returning

the caller confirmed

another name

used by

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

4, 1994, about

six weeks

after the search.

The

on March

arresting

officers seized from Davis forty-two packets of heroin marked

with

the brand

name "Snake"

from the

sweatshirt Davis was wearing.

$300

in cash.

apartment

At

as

subsequently

his

the

They also seized a

police

residence

station,

address.

interviewed Davis

seized heroin from

and told

the apartment.

about 20 bags."

hidden.

Finally,

Detective

It was

Lussier had

pager and

gave

the

Detective

Lussier

him that

they had

the

Lussier also told Davis

Again, Davis responded, "You only got

Lussier told Davis

made the problem more serious.

wasn't

Davis

of the

Davis responded (to

effect that) "You only got 72 bags."

they seized marijuana.

front pocket

that the

gun

Davis rejoined, "The revolver

only a

.38, just

for protection."

not told

Davis the

quantity

of the

-44

drugs

seized

admissions.

pager over to

or the

The

the

arresting officer

Detective Lussier.

he had previously

digit code.

caliber of

used to page

gun prior

to Davis s

also turned

the seized

Lussier

dialed the number

Davis and keyed in

a three-

The code appeared on the pager s display.

It is also undisputed (based on trial stipulations)

that:

(1)

January

Davis had

24,

1994,

been convicted

(2)

the

R.G.

of

a felony

Industries

.38

prior to

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

Joseph Davis

March 17,

1994, a

with two

counts of

distribute heroin in violation

One and

Four), one

federal grand

jury charged

possession with intent

of 21 U.S.C.

count of possession

of a

to

841(a) (Counts

firearm by

convicted

Two),

felon in

and one

count

trafficking crime

Three).2

violation of

of

using

18 U.S.C.

in violation of 18

On August 2, 1994,

firearm

922(g) (Count

during

U.S.C.

drug

924(c) (Count

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)).

-55

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


______

new

trial,

alleging

assistance of counsel.

that he

had

received

ineffective

The district court denied the motion.

Davis subsequently discharged his retained trial counsel, and

new

counsel was appointed by the court.

moved for reconsideration of

new trial.

Davis s new counsel

the denial of the motion

for a

The district court agreed to reconsider and heard

arguments on the merits

of the ineffective assistance claim.

The

district

performance

court

was

found

both

adequate and

that

that,

trial

even

if it

counsel's

had

been

deficient, Davis suffered no prejudice.

III.
III.
____

Discussion
Discussion
__________

Davis

appeals the district

motion for a new trial, arguing that

assistance of

appeal hear

review,

counsel at trial.3

claims of

court's denial

of his

he received ineffective

Typically, the

ineffective assistance on

courts of

collateral

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

the United
the

record

States Sentencing
reveals

that

corrected by the district

aspects of his sentence under


Guidelines, but our

the
judge.

asserted

review of

errors

Thus, we need

have

been

not address

them here.

-66

cert. denied, 114 S. Ct. 1839 (1994).


_____ ______

Davis

had

new

counsel

appointed

In

after

this case, though,

trial,

and

the

ineffective assistance

district

court,

performance

was

Accordingly, "the

claim was

which

briefed and argued

determined

neither

that

deficient

trial

nor

counsel's

prejudicial.

record is sufficiently developed

reasoned consideration of the claim."

to the

to allow

Id.
___

A. Governing Principles
________________________

To establish

right to

show:

Sixth Amendment

effective assistance

violation of

of counsel, a

the

defendant must

(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).

bring to bear

trial a

Among the basic duties of an attorney is "to

such skill

and knowledge as

reliable adversarial testing

will render

process."

the

Strickland,
__________

466 U.S. at 688.

In

"indulge a

evaluating

strong presumption

within the wide range

that is,

under the

considered

an

performance,

that counsel's

we

conduct falls

of reasonable professional assistance;

the defendant

circumstances,

sound

attorney's

must overcome the

the challenged

trial strategy.'"

Michel v. Louisiana, 350 U.S. 91,


______
_________

-77

Id.
___

presumption that,

action

`might

at 689

101 (1955)).

be

(quoting

We must make

"every

effort . . .

hindsight"

Id.
___

the circumstances as they

"The

proper measure

remains simply reasonableness

norms."

distorting effects of

and to evaluate counsel's conduct from his or her

perspective under

time.

to eliminate the

Id. at 688.
___

of

existed at that

attorney performance

under prevailing

professional

defendant

establishes prejudice

substandard performance if he

counsel's errors,

or she can show that,

"there is a

probability

is

solely

"whether

unfair or

Lockhart
________

this

the

on

the

result

probability

unreliable."

38 F.3d

we

also

was

to

We do not

consider

fundamentally

at

v. Fretwell, 506 U.S. 364, 369 (1993)).


________

16

(quoting

"In making

determination, a court . . . must consider the totality

of the evidence before

U.S.

proceeding

Scarpa,
______

sufficient

Id. at 694.
___

outcome; however,

of the

. .

would have been different.

undermine confidence in the outcome."

focus

but for

reasonable probability .

that the result of the proceeding

A reasonable

from counsel's

at 695.4

We

the judge or jury."

need not decide

Strickland, 466
__________

if counsel's performance

____________________

4.

There is

appellate

some

uncertainty surrounding

review.

performance and

Strickland
__________

instructs

prejudice components of

inquiry are mixed questions

the standard
that

"both

these issues

of law and fact," 466

de novo,"
__ ____

908, 916 (1st Cir. 1995).


court

explained

district

that

the

the ineffectiveness
U.S. 668,

698 (1984), and, accordingly, this court has stated that


review

of

Matthews v. Rakiey,
________
______

"we

54 F.3d

Five months earlier, however, this

before

judge's determination

Strickland,
__________
as

to

"we

reviewed

competence only

a
for

clear error," but "[s]ince Strickland, the standard of review


__________
may be

more rigorous

where the

-88

issue is

not

a matter

of

was deficient if

it is apparent

from the alleged errors.

that no prejudice

resulted

Id. at 697.
___

B. Trial Counsel's Alleged Deficiencies


________________________________________

Davis

propounds ten specific deficiencies in trial

counsel's performance:

(1)

before trial, the evidence

(2)

failing to discuss

and important tactical decisions;

failing to challenge the

apartment;

based

jurors

on

(3) failing to

allegedly

during

jury

with Davis,

legality of the

seek dismissal of

prejudicial statements

selection;

(4)

making

search of the

the jury panel

by

an

prospective

incoherent

opening

the

statement; (5)

defendant

at

making prejudicial

trial;

inadmissible,

prejudicial

warrants for

prior charges;

(6)

failing

testimony

the

to

about

(7) conducting

damaging cross-examination; (8) failing to

challenge

statements about

credibility

of

object

to

outstanding

ineffective and

call witnesses to

government

witnesses;

(9)

failing to present a witness (Davis's mother)

to explain the

presence

to

of the

pistol;

and

(10)

failing

request

limiting instruction regarding Davis's prior convictions.

____________________

historical
enough."

fact

but

of

deciding how

United States v. Raineri, 42


_____________
_______

much

competence

is

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

Strickland's impact on our standard of review).


__________

of

Here, given the


Davis,

we

counsel's

focus

on

strength of

whether the

performance

were

the evidence

alleged

prejudicial.

against

deficiencies
Our

review

in
is

extensive, but we are not obliged to decide which standard of


review

obtains, because

the result

is

the same

under any

standard.

-99

C. Analysis
____________

We

have

carefully

reviewed

all

of the

alleged

deficiencies

evidence

"prejudice

in

counsel's

presented

prong"

at

is

performance,

trial.

the

as

well

Although

basis

for

our

as

the

Strickland's
__________

decision,

some

comments on counsel's performance are in order.

Trial counsel's performance could

been

better; in

particular,

telling the jury that his

lengthy criminal record.

counsel's

apparent

the

convicted

There was,

felon.

upon

from

seemingly

part of a strategy

his arrest,

however, some method in

That

the police had framed

search and

have refrained

client was a heroin dealer with

madness.

statement was concededly

jury that

he could

undoubtedly have

to convince the

Davis, both at

because

Counsel also argued

prejudicial

the time of

he was

known

and attempted to show

through cross-examination that Davis had too

much experience

with

the

criminal

justice

statements that the police

got

72 bags").

prosecutor's

was

also

Trial

system

to

make

the

damaging

claimed he made (e.g., "You


____

counsel's statement that

only

this was "a

dream case" and therefore "too good to be true"

part

of the

same

strategy.

convince

the jury that the

evidence

found in the apartment

further support

for

the

police had lied

claim

Counsel tried

and planted the

and on Davis's

that his

to

client

person.

had

As

been

framed, counsel pointed to the fact that no fingerprints were

-1010

found

on the

apartment.

heroin-related items

While

counsel's

approach

unsuccessful, we are hard pressed

trial strategy in light

allegedly seized

ultimately

at the

proved

to think of an alternative

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.

overwhelming that,

as to

The evidence against Davis was so

nine of

the

ten alleged

errors,

there is no reasonable

acquitted

Davis even

performance.

suppression

search,

We also

without counsel's

The remaining error,

of the

cannot be

evidence.

possibility that the jury

evidence

dismissed

Thus, we will

examine

allegedly deficient

the failure to

resulting

on the

from the

basis of

discuss that claim

whether a

would have

move for

apartment

overwhelming

in some depth.

constitutionally adequate

trial

lawyer could have convinced the jury that the police lied and

fabricated evidence.

there is no need

he utterly

Strickland.
__________

all the other

asserted errors,

to treat them individually

evidence of Davis's

that

As to

guilt (if believed) to be

fails

to satisfy

the

-- we find

the

so compelling

prejudice prong

of

See 466 U.S. at 696 ("[A] verdict or conclusion


___

only

weakly supported by the

been

affected by

record is more

errors than

support."); see also


___ ____

one with

likely to have

overwhelming record

United States v. Jackson, 918 F.2d 236,


_____________
_______

-1111

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

deficiencies, he

non-prejudicial

points to

concedes that

if one

plethora of

asserted

trial counsel's errors

accepts

the testimony

of the

were

four

police officers about the seizures of heroin and a gun at the

apartment,

and the

Boiled down

heroin

on Davis's

to its essence,

person upon

Davis's appeal is

his claim of extensive police perjury,

arrest.

founded upon

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 reject,

of a

We first analyze,

Davis's police perjury arguments

potential Fourth

search.

no

and evidence fabrication.

We then

reasonable

in the context

Amendment challenge to

the apartment

use that analysis to conclude that there is

probability that,

purported errors by

in

the

counsel, a jury would

absence of

these

have accepted the

perjury arguments and acquitted Davis.

1. Suppressing the Search Evidence


___________________________________

Davis

apartment

argues

was invalid

that

the

warrant

to

because Detective Lussier

-1212

search

the

lied about

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,

affidavit

Davis

contained

asserts

logical

that

Lussier's

inconsistency

warrant

concerning

Davis's physical description that suggests fabrication.

The

affidavit

pounds,

stated that

when in

Davis was

fact

affidavit

also stated

the buy,

"provided me

he was

5'8" tall and

5'11"

and 170

that the informant,

with a physical

weighed 145

pounds.

after completing

description matching
________

____________________

5.

The affidavit stated:


Within the last few days I contacted
a

confidential

this informant

and reliable
has in the

successful
narcotics

narcotics

informant,

past provided

me with information that has

resulted in

arrest [sic],

seizures.

I spoke

and

with this

informant who agreed to make a controlled


purchase

from

Village.

I drove

area

the

of

him/her for any


After

finding

informant

with

apartment F-8

in Wiggins

the informant into the

apartment

and

searched

contraband or

currency.

none
US

provided

currency

The

and

the
sent

him/her to the apartment.

I then watched

as

the informant

knocked and

went into

the

apartment.

After about

minutes
door and

the

informant

exited the

walked directly to

to

10
same

my vehicle.

Once inside the informant handed me a sum


of

heroin, stating

"Joe."

that

The informant

it

came

from

then provided me a

physical description matching Joe Davis .


. . .

-1313

Joe Davis"

(emphasis added).

Davis's argument

is somewhat

subtle:

if

dealt with

there had

really been

Davis, the buyer would

a controlled

buyer who

have accurately described

Davis, and that accurate description would not have "matched"

Joe

Davis in

Lussier's mind,

because Lussier

about Davis's actual height and weight.

that Lussier

was mistaken

Thus, Davis contends

fabricated both the confidential

informant and

the controlled buy.

Davis

also

police perjury.

that occurred

address them

conduct

of

affidavit.

makes

Although

several other

these arguments relate

after Lussier filed the

here because

the

police

After Davis

arguments

to events

warrant affidavit, we

Davis argues that

corroborates

about

the

the subsequent

falsity

of

the

was arrested, the arresting officers

seized the

packets of heroin,

dollars.

About sixty-six

Davis's

possession

apparently not

items.

dollars,

the

dollars if

heroin and

three hundred

however,

initial

was left

found the other

that the officers would have

they had

another

in

wad of

asserts, the arresting officers

fact searched

cash.

in

post-arrest search,

discovered when the officers

Davis argues

sixty-six

found

after

the pager, and

found the

Davis and

Therefore,

Davis

lied about finding heroin on

Davis, and they fabricated the physical evidence presented at

trial.

-1414

Davis also contends that

said

the police lied when they

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

bank

belonged to

bedroom.

None of

Davis accuses

the mother

and was

kept in

her upstairs

those three testified at trial.

the police

of stealing

the

Finally,

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

and that

"that his

Fourth Amendment claim

there is a reasonable probability

would have

been different

Kimmelman v. Morrison, 477


_________
________

for the sake

different

if

excluded, and

of argument

the evidence

absent the

is meritorious

that the verdict

excludable evidence."

U.S. 365, 375 (1985).

that the verdict

resulting

from

We assume

would have

the search

been

was

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

Under

suppress the evidence obtained

Franks v.
______

defendant

may

Delaware,
________

overcome

438 U.S.

the

-1515

in the search.

154, 155-56

presumption

of

(1978), a

validity

surrounding

obtain

affidavits

an evidentiary

preliminary

that

support

hearing, if

showing that

he "makes

a substantial

knowingly

and

disregard for the truth, was

false statement

cause."

Here,

is

necessary to

of course,

conducted at Davis's

the finding

the

statement is Detective Lussier's assertion

buy was

and

by the affiant in the warrant affidavit, and if the

allegedly

probable

warrants

false statement

intentionally, or with reckless

included

search

allegedly

of

false

that a controlled

apartment, which was

the only

basis for probable cause in the affidavit.

We

perjury

by

preliminary

hold,

Lussier

however,

do

not

showing" required

that

Davis's

amount

for

to

allegations

the

a Franks
______

of

"substantial

hearing.

The

Supreme Court explained in Franks that:


______

To

mandate

an evidentiary

challenger's
conclusory
than

attack

be

must

to cross-examine.

allegations

falsehood

be more

than

and must be supported by more

a desire

must

hearing, the

or

of

of reckless

the truth, and

There

deliberate
disregard for

those allegations must be

accompanied by an

offer of proof.

They

should point out specifically the portion


of the warrant
to

be

affidavit that is claimed

false;

and

they

should

accompanied by a statement
reasons.

Affidavits

otherwise

witnesses should be
absence

of supporting
or

reliable

sworn

of

or

statements
furnished, or

satisfactorily

Allegations

be

of
their

explained.

negligence

or

innocent

mistake are insufficient.

Id.
___

at 154.

affidavit

Davis's showing

is based

on

(1) the

of

falsity in

lack

of detail

the

Lussier

about

the

-1616

circumstances

of

the

controlled

buy,

(2)

the

Lussier's account of Davis's "approximate" height

coupled with the

"matching"

statement that the controlled

description, and

subsequentpolice conduct.

(3)

the

error

in

and weight

buyer gave a

assertedly

dishonest

As we explain, this is not enough.

While further detail about the controlled buy might

have

of

been desirable, the lack

the

buy

probative of

or

the quantity

falsity.

The

identity confidential

is a

lack of those details.

See
___

1005,

1008 (1st

testimony

that

specification of

was

is

not necessarily

the buyer's

more likely explanation

for the

United States v. Carty, 993 F.2d


_____________
_____

(district court

"customary

the dates

protect the identity

involved

concern for keeping

Cir. 1993)

it

of specificity about the date

to

of controlled

of informants").

credited trial

avoid

precise

buys in

order to

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").

detail does not amount to

We conclude that the

lack of

a "substantial showing" of falsity

in the affidavit.

-1717

As to Lussier's misstatement of

weight, Davis does

to

the warrant

not allege that those data

to

search the

describe with particularity

argument, again,

Davis's height and

apartment,

the place to
_____

is that the discrepancy

were material

which need

only

be searched.

The

shows that Lussier

lied about the controlled buy, without which there would have

been no probable cause.

too

thin

Lussier's

reed to

affidavit

This ingenious argument, however, is

support

did

not

claim

state

of police

in

what

perjury.

regard

the

informant's description "matched" Davis (height? weight? age?

race?

facial

clothing?

other

characteristics?

distinguishing

hair

marks

style?

or

mannerisms?

features?).

Moreover,

the

"approximately

pounds).

affidavit

5'8"

only

145" (in

stated

fact

he

that

Davis

was 5'11"

and

was

170

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

approximation,

And

there may

to the extent

likely

negligent

fabrication.

have been

there was a

or

description "matched" that

no discrepancy

discrepancy, it

innocent mistake

The inference

as

at all.

was just as

that Davis asks us to

perjurious

draw from

this alleged discrepancy, that no controlled buy occurred, is

too strained and too speculative.

-1818

Davis's other allegations of

(i.e., the

person after

and the

make

sixty-six

police untruthfulness

dollars inexplicably

arrest, the

location of the

money missing from Davis's mother's

a substantial showing, either.

left on

Davis's

"Coca-Cola" bank,

bedroom) do not

It is not reasonable to

infer, from the fact that sixty-six dollars was left on Davis

after his arrest,

The

that the police

planted heroin on

Davis.

failure of the police to find the sixty-six dollars more

likely resulted

from inadvertency than from

falsely convict Davis.

niece,

and neighbor

bank and the

Lussier

And the

about the

a conspiracy to

testimony of Davis's mother,

location of

missing money does little

the "Coca-Cola"

to substantiate that

lied about the controlled buy, even if we ignore our

concerns about the potential bias of those affiants.

We do not blindly

officers,

but Davis's

assume the credibility of police

assertions

do not

persuade us

that

competent trial counsel could have made a substantial showing

that

the warrant

perjurious

affidavit

police conspiracy.

was

falsified

Absent

that

as

part

of

showing, Davis

would

not

have

received

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

showing.

information

needed to

See United States v. Higgins, 995


___ ______________
_______

Cir. 1993).
the

lack the

In such

accuracy of

cases, where the

the affidavit

but has

"substantial

preliminary showing"

court

conduct

may

officer-affiant, and,

an

in
__

if necessary,

-1919

a Franks
______

F.2d 1, 3

(1st

defendant challenges
failed to

required

camera
______

make

make the

by Franks,
______

interview

the

of

the

of the informant.

See
___

successfully

surmounted

the

next

hurdle,

convincing

the

district court to suppress the evidence because of a perjured

affidavit.

Thus, we

probability

that

conclude that

the

search

there is

evidence

no reasonable

could

have

been

suppressed, and no prejudice suffered by Davis.

2. Convincing the Jury of Police Perjury


_________________________________________

Davis's trial

jury that the police

jury

evidently

counsel did attempt to

convince the

were lying about the evidence,

was not

persuaded.

Trial counsel

but the

cross-

examined Lussier about the controlled buy and the discrepancy

in

the description

cross-examined

in Davis's

the

height

arresting

dollars left on Davis's

and weight;

officer about

the

he also

sixty-six

person after his arrest.

He argued

____________________

United States v.
______________

Southard, 700
________

F.2d 1,

cert. denied, 464


_____ ______

U.S. 823 (1983).

10-11 (1st

A district

Cir.),

court is not

required to do so, however; the decision whether an in camera


__ ______
proceeding

is

needed

credibility

rests entirely

to

test
with

the

officer-affiant's

the district

court.

See
___

United States v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990).
______________
_______
We review a
for an in
__

district court's denial of a defendant's request


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

counsel should have requested an in camera hearing,


__ ______
such

a proceeding would have

led to the

trial

nor that

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

apartment without heroin and


enough for probable

that

informant

arise

when

went

came out with heroin.

cause to search the

the officer's own perception.


concerns

the

Thus,
probable

into

the

That is

apartment, based on

many of the credibility


cause

is

based

on

information provided by a confidential source are not present


in this case.

-2020

to the jury that

these facts indicated that the

police were

lying, and that the drugs were planted on Davis.7

that

trial

counsel did

mother, sister,

money

evidence

do not,

against

of

by

testimony by

We are very

the searching

course, directly

Davis, but

impugned the credibility of

case.

present

or neighbor about the Coca-Cola

allegedly stolen

allegations

not

if

It is true

believed

Davis's

bank or the

officers.

These

attack the

major

they could

have

the officers involved in Davis's

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.

say

we

that

see

extensive evidence

no

reasonable

against Davis,

Suffice it to

probability,

that the jury

given

the

would have

acquitted Davis if trial counsel had presented the additional

evidence

of alleged

police

arguments more artfully,

errors that Davis

voluminous and

perjury, had

made the

perjury

and had not made the other supposed

points to.

The evidence

compelling, while

the

was simply

argued inferences

too

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
theme

on him."

of the defense closing argument

fabrication of
the jury.

evidence --

However,

the overall

-- police perjury and

was nonetheless made

obvious to

-2121

For the foregoing

of the

alleged errors

Davis, given

reasons, we conclude that

by counsel resulted

in prejudice

the overwhelming record evidence

The decision of the district court is affirmed.


affirmed
________

none

to

of his guilt.

-2222

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