Professional Documents
Culture Documents
No. 95-1602
UNITED STATES,
Appellee,
v.
Defendant, Appellant.
____________________
____________________
Before
____________________
States Attorney,
States Attorney,
Margaret E.
Curr
____________________
A jury convicted
appellant
Joseph Davis
of
heroin trafficking
and firearms
offenses.
new
trial, which
was
based
on
deficiencies
in
counsel's
his claim
of
ineffective
performance did
not
result
in
I.
I.
__
Factual Background
Factual Background
__________________
In early
Providence,
Rhode
narcotic cases,
Joseph
Davis,
Island,
police
David Lussier, a
officer
a/k/a Joe
Mills
("Davis").
specializing in
heroin dealer
The
suspected
trafficking
was being
Davis shared
conducted
out of
an apartment
and niece.
that
Detective Lussier
at various times
minutes.
of the
day and
He frequently
parked in front
observed
of the apartment,
night for
five to
black BMW
and on several
thirty
automobile
occasions
enter
the apartment.
To
confirm
his
successfully orchestrated
Davis at
the
apartment.
suspicions,
Detective
controlled buy
Lussier searched
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
cause,
Lussier
apartment.
obtained
On January
warrant
to
search
Davis's
Providence police
officers executed
the search
warrant at
Davis s apartment.
the only
niece.
and
found
a basement.
The
mother and
numerous drug-related
used by Davis.
items in
The police
the basement
bedroom
bags
of marijuana, a coffee
grinder used to
mill heroin, a
to mark heroin
also
The police
"Snickers"
box),
and a
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.
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.
Each time,
page as that of
for
Lussier
Davis.
that he
Davis.
was Joe
Mills,
for
the pager
Lussier, who
Moreover,
Davis's
a bill
Lussier called
the
was
a photograph album,
before Davis s
basement bedroom
had known
voice returning
another name
used by
4, 1994, about
six weeks
The
on March
arresting
with
the brand
name "Snake"
from the
$300
in cash.
apartment
At
as
subsequently
his
the
police
residence
station,
address.
interviewed Davis
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
wasn't
Davis
of the
front pocket
that the
gun
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
a three-
that:
(1)
January
Davis had
24,
1994,
been convicted
(2)
the
R.G.
of
a felony
Industries
.38
prior to
caliber
it had been test-fired and worked, and (3) the packets seized
from
residue on the
II.
II.
___
Procedural Background
Procedural Background
_____________________
On
Joseph Davis
March 17,
1994, a
with two
counts of
One and
Four), one
federal grand
jury charged
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
trial at
____________________
2.
Count
Three
was
eventually
dismissed,
and
Davis's
the meaning
-55
which
Davis presented
no witnesses
or evidence,
Davis was
new
trial,
alleging
assistance of counsel.
that he
had
received
ineffective
new
new trial.
for a
The
district
performance
court
was
found
both
adequate and
that
that,
trial
even
if it
counsel's
had
been
III.
III.
____
Discussion
Discussion
__________
Davis
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
decided by
the district
court prior
to the
direct appeal.
See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993),
___ _____________
____
____________________
3.
the United
the
record
States Sentencing
reveals
that
the
judge.
asserted
review of
errors
Thus, we need
have
been
not address
them here.
-66
Davis
had
new
counsel
appointed
In
after
trial,
and
the
ineffective assistance
district
court,
performance
was
Accordingly, "the
claim was
which
determined
neither
that
deficient
trial
nor
counsel's
prejudicial.
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
standard of
bring to bear
trial a
such skill
and knowledge as
will render
process."
the
Strickland,
__________
In
"indulge a
evaluating
strong presumption
that is,
under the
considered
an
performance,
that counsel's
we
conduct falls
the defendant
circumstances,
sound
attorney's
the challenged
trial strategy.'"
-77
Id.
___
presumption that,
action
`might
at 689
101 (1955)).
be
(quoting
We must make
"every
effort . . .
hindsight"
Id.
___
"The
proper measure
norms."
distorting effects of
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,
"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
16
(quoting
"In making
U.S.
proceeding
Scarpa,
______
sufficient
Id. at 694.
___
outcome; however,
of the
. .
focus
but for
reasonable probability .
A reasonable
from counsel's
at 695.4
We
Strickland, 466
__________
if counsel's performance
____________________
4.
There is
appellate
some
uncertainty surrounding
review.
performance and
Strickland
__________
instructs
prejudice components of
the standard
that
"both
these issues
de novo,"
__ ____
explained
district
that
the
the ineffectiveness
U.S. 668,
of
Matthews v. Rakiey,
________
______
"we
54 F.3d
before
judge's determination
Strickland,
__________
as
to
"we
reviewed
competence only
a
for
more rigorous
where the
-88
issue is
not
a matter
of
was deficient if
it is apparent
that no prejudice
resulted
Id. at 697.
___
Davis
counsel's performance:
(1)
(2)
failing to discuss
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
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
challenge
statements about
credibility
of
object
to
outstanding
ineffective and
call witnesses to
government
witnesses;
(9)
to explain the
presence
to
of the
pistol;
and
(10)
failing
request
____________________
historical
enough."
fact
but
of
deciding how
much
competence
is
1994); cf. United States v. McGill, 11 F.3d 223, 226 n.2 (1st
___ _____________
______
Cir.
1993)
(comparing
alternative
interpretations
of
we
counsel's
focus
on
strength of
whether the
performance
were
the evidence
alleged
prejudicial.
against
deficiencies
Our
review
in
is
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
been
better; in
particular,
counsel's
apparent
the
convicted
There was,
felon.
upon
from
seemingly
part of a strategy
his arrest,
That
search and
have refrained
madness.
jury that
he could
undoubtedly have
to convince the
Davis, both at
because
prejudicial
the time of
he was
known
much experience
with
the
criminal
justice
got
72 bags").
prosecutor's
was
also
Trial
system
to
make
the
damaging
only
part
of the
same
strategy.
convince
evidence
further support
for
the
claim
Counsel tried
and on Davis's
that his
to
client
person.
had
As
been
-1010
found
on the
apartment.
heroin-related items
While
counsel's
approach
allegedly seized
ultimately
at the
proved
to think of an alternative
Davis.
counsel's performance
overwhelming that,
as to
nine of
the
ten alleged
errors,
there is no reasonable
acquitted
Davis even
performance.
suppression
search,
We also
without counsel's
of the
cannot be
evidence.
evidence
dismissed
Thus, we will
examine
allegedly deficient
the failure to
resulting
on the
from the
basis of
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.
__________
asserted errors,
evidence of Davis's
that
As to
fails
to satisfy
the
-- we find
the
so compelling
prejudice prong
of
only
been
affected by
record is more
errors than
one with
likely to have
overwhelming record
-1111
243 (1st
Cir. 1990)
evidence of
defendant's guilt
negated
any reasonable
probability
that
Although Davis
deficiencies, he
non-prejudicial
points to
concedes that
if one
plethora of
asserted
accepts
the testimony
of the
were
four
apartment,
and the
Boiled down
heroin
on Davis's
to its essence,
person upon
Davis's appeal is
arrest.
founded upon
acquittal
by convincing
the police
lied and
Thus,
our task
is
to assess
Davis's showing
of
police perjury
and reject,
of a
We first analyze,
potential Fourth
search.
no
We then
reasonable
in the context
Amendment challenge to
the apartment
probability that,
purported errors by
in
the
absence of
these
Davis
apartment
argues
was invalid
that
the
warrant
to
-1212
search
the
lied about
First,
the amount
Second,
affidavit
Davis
contained
asserts
logical
that
Lussier's
inconsistency
warrant
concerning
The
affidavit
pounds,
stated that
when in
Davis was
fact
affidavit
also stated
the buy,
"provided me
he was
5'11"
and 170
with a physical
weighed 145
pounds.
after completing
description matching
________
____________________
5.
confidential
this informant
and reliable
has in the
successful
narcotics
narcotics
informant,
past provided
resulted in
arrest [sic],
seizures.
I spoke
and
with this
from
Village.
I drove
area
the
of
finding
informant
with
apartment F-8
in Wiggins
apartment
and
searched
contraband or
currency.
none
US
provided
currency
The
and
the
sent
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.
heroin, stating
"Joe."
that
The informant
it
came
from
then provided me a
-1313
Joe Davis"
(emphasis added).
Davis's argument
is somewhat
subtle:
if
dealt with
there had
really been
a controlled
buyer who
Joe
Davis in
Lussier's mind,
because Lussier
that Lussier
was mistaken
informant and
Davis
also
police perjury.
that occurred
address them
conduct
of
affidavit.
makes
Although
several other
here because
the
police
After Davis
arguments
to events
warrant affidavit, we
corroborates
about
the
the subsequent
falsity
of
the
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
they had
another
in
wad of
fact searched
cash.
in
post-arrest search,
Davis argues
sixty-six
found
after
found the
Davis and
Therefore,
Davis
trial.
-1414
said
affidavits
bank
belonged to
bedroom.
None of
Davis accuses
the mother
and was
kept in
her upstairs
the police
of stealing
the
Finally,
his
mother's bedroom,
based on
that the
must prove
and that
"that his
would have
been different
different
if
excluded, and
of argument
the evidence
absent the
is meritorious
excludable evidence."
resulting
from
We assume
would have
the search
been
was
have successfully
would
in seeking to
Under
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
false statement
cause."
Here,
is
necessary to
of course,
conducted at Davis's
the finding
the
buy was
and
allegedly
probable
warrants
false statement
included
search
allegedly
of
false
that a controlled
the only
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
To
mandate
an evidentiary
challenger's
conclusory
than
attack
be
must
to cross-examine.
allegations
falsehood
be more
than
a desire
must
hearing, the
or
of
of reckless
There
deliberate
disregard for
accompanied by an
offer of proof.
They
be
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
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
"matching"
description, and
subsequentpolice conduct.
(3)
the
error
in
and weight
buyer gave a
assertedly
dishonest
have
of
the
buy
probative of
or
the quantity
falsity.
The
identity confidential
is a
See
___
1005,
1008 (1st
testimony
that
specification of
was
is
not necessarily
the buyer's
for the
(district court
"customary
the dates
involved
Cir. 1993)
it
to
of controlled
of informants").
credited trial
avoid
precise
buys in
order to
Moreover,
Lussier's
and
Davis's apartment).
See
___
732 F.2d
625,
lack of
in the affidavit.
-1717
As to Lussier's misstatement of
to
the warrant
to
search the
argument, again,
apartment,
the place to
_____
were material
which need
only
be searched.
The
lied about the controlled buy, without which there would have
too
thin
Lussier's
reed to
affidavit
support
did
not
claim
state
of police
in
what
perjury.
regard
the
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
merely an approximation.
sense or
approximation,
And
there may
to the extent
likely
negligent
fabrication.
have been
there was a
or
no discrepancy
discrepancy, it
innocent mistake
The inference
as
at all.
was just as
perjurious
draw from
-1818
(i.e., the
person after
and the
make
sixty-six
police untruthfulness
dollars inexplicably
arrest, the
location of the
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
The
planted heroin on
Davis.
likely resulted
niece,
and neighbor
Lussier
And the
about the
a conspiracy to
location of
the "Coca-Cola"
to substantiate that
We do not blindly
officers,
but Davis's
assertions
do not
persuade us
that
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
relies primarily on
often
showing.
information
needed to
Cir. 1993).
the
lack the
In such
accuracy of
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
affidavit.
Thus, we
probability
that
conclude that
the
search
there is
evidence
no reasonable
could
have
been
Davis's trial
jury
evidently
convince the
was not
persuaded.
Trial counsel
but the
cross-
in
the description
cross-examined
in Davis's
the
height
arresting
and weight;
officer about
the
he also
sixty-six
He argued
____________________
United States v.
______________
Southard, 700
________
F.2d 1,
10-11 (1st
A district
Cir.),
court is not
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
__
for abuse of
discretion.
See
___
Davis
has
argued
neither
that
led to the
trial
nor that
suppression of the
search evidence.
And,
although a
"confidential informant"
observed
that
that
informant
arise
when
went
the
Thus,
probable
into
the
That is
apartment, based on
is
based
on
-2020
police were
that
trial
counsel did
mother, sister,
money
evidence
do not,
against
of
by
testimony by
We are very
the searching
course, directly
Davis, but
case.
present
allegedly stolen
allegations
not
if
It is true
believed
Davis's
bank or the
officers.
These
attack the
major
they could
have
have
neighbor,
say
we
that
see
extensive evidence
no
reasonable
against Davis,
Suffice it to
probability,
given
the
would have
evidence
of alleged
police
voluminous and
perjury, had
made the
perjury
points to.
The evidence
compelling, while
the
was simply
argued inferences
too
of
IV.
IV.
___
Conclusion
Conclusion
__________
____________________
7.
on him."
fabrication of
the jury.
evidence --
However,
the overall
obvious to
-2121
of the
alleged errors
Davis, given
by counsel resulted
in prejudice
none
to
of his guilt.
-2222