APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-00110)
Before Adams, Garth and Van Dusen, Circuit Judges.
Fletcher Williams appeals his conviction for violations of 21 U.S.C. § 841(a) (1) (distribution of heroin) and 21 U.S.C. § 843(b) (misuse of communication facilities in distribution of heroin). The sole ground for reversal urged on appeal is ineffective assistance of counsel. In a prior proceeding we remanded the case to the district court for an evidentiary hearing on this issue. United States v. Williams, 588 F.2d 825 (1978) (mem.). Having reviewed the record of that hearing and the district court's opinion, which held that Williams had exemplary trial representation rather than inadequate counseling, we too are satisfied that Williams was not denied effective assistance of counsel and that thus his sixth amendment right to counsel was not violated. We accordingly affirm Williams' convictions.
The controversy in this case centers around two affidavits. The two key witnesses against Williams were Pearl and Barron Kelly Brooks (Kelly), husband and wife, who testified to narcotics transactions between Williams and themselves. Some months prior to trial, Williams came into possession of signed affidavits of Pearl and Kelly Brooks in which they denied that there ever were any such transactions.*fn1 Williams gave one or both of these affidavits to his counsel and demanded that they be used to impeach the credibility of Pearl and Kelly Brooks should they testify at trial against Williams.
Defense counsel, however, did not use the affidavits to impeach the Brookses. He stated that he had been informed by the Government that it was prepared to prove that the affidavits had been executed under duress, including threats of harm to the Brookses' children. See Trial Transcript, Feb. 27, 1979, at 34-35. Such evidence, he believed, would seriously harm Williams both with respect to the jury's determination of guilt or innocence, and in regard to sentencing. See id. at 35. Moreover, he reasoned, the only way to try to rebut the Government's claim that the affidavits were coerced would have been to have Williams testify, thus opening Williams to damaging cross-examination on all aspects of the case, including tape-recorded conversations between Williams and Pearl Brooks. See id. at 37; app. to dissenting op. infra (typescript of conversation). Defense counsel therefore determined not to introduce the affidavits, and Williams was ultimately convicted by the jury of four out of the five counts charged. He was sentenced to two concurrent sentences of eight and fifteen years, to be followed by three years special parole.
The testimony of Pearl and Kelly Brooks was central to the Government's case, and it is not seriously contended that Williams could have been convicted without it. Thus, if indeed Williams was denied effective assistance of counsel by virtue of the failure of counsel to use the affidavits to discredit the Brookses, we could not characterize that action as harmless error.
In this Circuit, the standard for effective assistance of counsel is "the exercise of the customary skill and knowledge which normally prevails at the time and place." Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970). We are therefore confronted with the question whether defense counsel's decision not to use the affidavits and the reasons leading to that decision fell within the range of behavior properly to be expected of defense counsel.
Following our remand for an evidentiary hearing, the district court heard testimony of Williams and his various counsel in its consideration of the merits of Williams' claim:
Trial counsel testified at the evidentiary hearing that he did not use the affidavits because, inter alia, the prosecuting Assistant United States Attorney had advised him that the government was prepared to prove that the affidavits were executed under duress, possibly including threats of harm to the children of Pearl and Kelly Brooks. Not only would testimony that the affidavits had been obtained through threat of bodily harm be severely detrimental to prospects of acquittal but could, also in counsel's opinion, adversely affect sentencing considerations should conviction follow. Bearing in mind the foregoing pitfalls, trial counsel decided during the trial that use of the contradictory affidavits would not be in the best interest of his client, notwithstanding their obvious contribution to the ongoing battle of credibility.*fn1a
Williams insists, however, that while trial counsel may have chosen the proper strategy had the affidavits in fact been obtained under duress, no effort was made to independently determine whether they might have been made voluntarily. To the contrary, trial counsel indicated that he relied on several factors before concluding the statements were probably given under duress. According to his testimony, trial counsel relied upon the government's representation, photographic evidence, surveillance by Allegheny County Police Officers and Drug Enforcement Agents, and tape recordings for his opinion that the affidavits did not have the ring of truth.*fn2 Trial counsel diligently analyzed a multiple of factors before reaching a judgment.
In any event, the actual voluntariness of the affidavits was not of critical importance. Trial counsel again testified that as long as he was convinced that Pearl and Kelly Brooks would testify that threats were made, it would have been difficult, if not impossible, to rebut such testimony except by tendering Williams as a witness subject to potentially fatal cross examination.*fn3 Carefully weighing these considerations, utilization of the affidavits, even if voluntarily given, would have been fraught with danger once Pearl and Kelly Brooks testified they were obtained under duress.*fn4
Even a cursory review of either the trial transcript or the hearing testimony reveals that trial counsel far surpasses customary skill and knowledge. At trial he aggressively and intelligently represented Williams. His reasons for failing to use the affidavits at trial indicate a thoughtful and well-considered decision. That Williams was convicted in spite of exemplary trial representation is testimony to his actual guilt of the crimes charged. Trial counsel in the case sub judice exercised exceptional skill and knowledge far above that which normally prevails. Accordingly, Williams was not denied effective assistance of counsel as required by the Sixth Amendment when trial counsel chose not to use the affidavits of Pearl and Kelly Brooks.
United States v. Williams, Crim. No. 77-110, Slip op. at 3-5 (W.D.Pa. Aug. 15, 1979). After consideration of the record, it is clear that the district court's findings are not clearly erroneous.
Williams has argued that he was denied effective assistance of counsel because his attorney relied on the Government's representation that it could prove duress, without fully investigating or preparing the case himself. See Gaines v. Hopper, 575 F.2d 1147 (5th Cir. 1978) (per curiam). In Gaines, defense counsel failed even to consider as plausible the defendant's version of the facts and limited his investigation to discussions with the prosecutor and police officers. Defense counsel had a total lack of knowledge of the defendant's position. In the present case, while defense counsel failed to interview the Brookses and never ascertained the nature of the Government's proof of duress, he was nevertheless fully aware of Williams' position and had before him all of Williams' evidence, the two affidavits. He could reasonably have concluded from the tenor of the affidavits and from the other overwhelming corroborating proof of the crimes that the affidavits were false and must have been the product of coercion, despite some evidence of their voluntariness, such as the fact that the Brookses had sought out Williams to give him the affidavits, Trial Transcript, Feb. 27, 1979, at 100.
However, as the trial court recognized, more important than whether the affidavits were in fact coerced is counsel's evaluation of the potentially devastating effect of their introduction. There would at least have been a question as to the voluntariness of the affidavits, and counsel determined that shifting the focus of the trial to this issue would have harmed Williams more than using the affidavits to discredit the Brookses would have helped him. Of particular significance is counsel's response at the evidentiary hearing to one question:
Q. (Williams' attorney on appeal). Okay. I only have one final question. If you had attempted an independent investigation and you would have been satisfied at least at the time when the affidavits were made that they were made voluntarily, and subsequent to that the Brookses might have changed their mind and might even have been coerced to testify, would you at that point have used them on behalf of Mr. Williams?
A. (Williams' trial counsel). No. Because as long as I was convinced that the Brookses would so testify that there were threats, it would be up to the jury to decide whether threats had been made or had not been made. But it would have certainly opened the door to a whole set of circumstances that in my opinion could do no good for Fletcher Williams and might have put him in a worse position on the downside after conviction than he faces today. So I wouldn't have used it once the Brookses, as Mr. Panneton advised me, would have indicated that the statements were given under duress.
The fact that the notary who took the statement would have indicated that they seemed calm and relaxed would not have prevented the Brookses from doing as Mr. Panneton (Assistant U.S. Attorney) indicated would be the likely result of the rebuttal testimony. And I would not have been in a position unless I submitted Fletcher Williams as a witness to the trial jury and to Mr. Panneton on cross examination on the whole of the case to rebut the open season that the Brookses would have had on Williams with respect to threats. So I chose not to use the statements and wouldn't have used the statements.
Id. at 51-52. We cannot say that this was an unreasonable decision, much less an error in advocacy of sufficient magnitude to depart from the Moore standard.*fn2a
Williams' reliance on United States v. Dingle, 546 F.2d 1378 (10th Cir. 1976), is misplaced. Dingle stated in dictum that "(it) is error not to call a witness when that witness would present the only defense available," id. at 1385 (citation omitted) (emphasis in original). The present case is distinguishable for two reasons. First, the affidavits do not present a defense but merely could have affected positively or negatively Williams' contention that the Brookses were not telling the truth. Second, another defense was available and was asserted: the defense that Pearl Brooks had not been sufficiently searched to make sure she was not carrying the narcotics into Williams' apartment before meeting him, so as to frame him. See Trial Transcript, Feb. 27, 1979, at 32-33, 49 (discussion at evidentiary hearing of defense strategy); Trial Transcript, Dec. 1-6, 1977, at 60-61, 69-70, 118-123, 127, 137-38, 275-76, 286-87, 296-98, 303, 306, 309, 321-22 (questioning of witnesses with regard to searches conducted).
Buttressing the trial court's conclusion that Williams was not denied effective assistance of counsel is the plain fact that Williams himself never attempted to have the affidavits introduced and did not object until his appeal to counsel's failure to utilize or introduce them. A fair reading of the record reveals that Williams was apprised in advance of trial of counsel's skepticism and reluctance to use the affidavits. Counsel testified:
Q. When you had this conversation with Mr. Panneton did you come back and discuss this with Mr. Williams?
Q. Did you tell him that the government was going to introduce threats?
Q. Was there anybody else present when this conversation took place?
A. I think I told him that in the bathroom at the Hilton Hotel. Because I wanted him to feel free without anyone being present to tell me whether threats were used or not.
A. He told me no threats were used and he wanted me to use the statement.
Q. This discussion that you had in the bathroom with Mr. Williams, did you ever indicate or you gave him back the affidavit at that point, didn't you?
A. I gave him back what, sir?
A. Exhibit A (Kelly Brooks' affidavit). I don't recall seeing Exhibit B (affidavit of Pearl and Kelly Brooks).
Trial Transcript, Feb. 27, 1979, at 45, 47. Counsel testified as well:
Q. Did you ever discuss with Mr. Williams these threats?
Q. Did he still say that he wanted to use these affidavits?
A. He denied at all times any threats and said that he wanted the statements used.
Id. at 39 (emphasis supplied). Williams thus knew that his counsel would not seek to impeach the Brookses with the affidavits once they did testify for the Government, despite Williams' testimony that he was never definitively told before trial that the affidavits would not be used, see id. at 6, 13.
This record also supports the conclusion that Williams was not surprised by counsel's actions in not employing the affidavits. Williams had already discharged a number of attorneys when he first consulted with this trial counsel.*fn3a When Williams explained his version of the case at his initial consultation with this counsel, he was told in unequivocal terms "that a judge would bury (him)" if the affidavits were used. See id. at 5. Despite this, Williams still retained this counsel to represent him at trial*fn4a and never attempted to discharge him. Moreover, at the conclusion of the trial, Williams kissed his attorney on the cheek and told him he had done a wonderful job. Id. at 44. Finally, Williams never indicated to the trial judge, either during or after trial, that he himself wanted the affidavits used or introduced. See id. at 8-9, 13. Of even greater significance, the record reveals that at no time after Williams' counsel had rested Williams' defense, did Williams question his forbearance in using the affidavits.
It is thus clearly apparent that Williams ultimately concurred in his counsel's tactical decision not to use the affidavits to impeach the Brookses. Hence, there is no merit to Williams' intimation on appeal that he was deprived of effective assistance of counsel because he was never explicitly told that the affidavits would not be introduced.*fn5
Our examination of this record satisfies us that Williams was not denied effective assistance of counsel. We will therefore affirm the judgment of sentence imposed on Williams on January 11, 1978.
ADAMS, Circuit judge, dissenting.
Along with the question of the effectiveness of trial counsel's assistance, this case also poses an important as well as a novel question regarding the respective authority of a defendant and his counsel in a criminal matter. Specifically, the novel issue is whether counsel overstepped the bounds of his proper role as the defendant's representative by ignoring his client's wishes with respect to what is conceded to have been the most important decision in the case regarding defense strategy, and instead proceeded as he, the attorney, believed appropriate. The record demonstrates that Fletcher Williams persistently requested his counsel to use affidavits to impeach the credibility of two prosecution witnesses, that counsel continuously put off telling Williams definitively whether he would introduce the affidavits, and that counsel ultimately misled Williams in this regard. In my view, such conduct denied Williams his Sixth Amendment right to exercise final authority over the central decision of defense strategy. At the very least, the attorney's failure to advise Williams that he definitely would not use the affidavits denied Williams the right to be represented by counsel of his choice namely, one who would comply with Williams' wishes with respect to the affidavits. Moreover, I would hold that Williams was denied effective assistance of counsel by the attorney's failure to investigate the circumstances underlying the prosecution witnesses' testimony. For these reasons, I would reverse Williams' conviction and remand for a new trial.
At Williams' trial for distribution of heroin and for misuse of communication facilities in distributing heroin,*fn1 Pearl and Barron Kelly Brooks, wife and husband, testified for the prosecution that they had purchased heroin from Williams. It is conceded that their testimony was the critical element of the prosecution's case.*fn2 Several months prior to trial, Williams obtained two affidavits signed by the Brookses in which they denied purchasing any heroin from Williams. The Brookses also swore that they executed the affidavits freely and without threats or harassment from Williams.*fn3 Williams gave these affidavits to his attorney and requested on a number of occasions that they be used in cross-examining the Brookses. Each time, counsel expressed his reluctance to employ the affidavits, but avoided giving Williams a definitive answer. The attorney ultimately chose not to introduce the affidavits at trial, however, because he believed that the prosecution's response would diminish the trial judge's assessment of Williams and thereby adversely affect the judge's sentencing decision. It is this conduct that, I believe, usurped Williams' Sixth Amendment right to exercise final judgment over the central strategic decision of his defense policy.
The record clearly indicates that Williams requested several times that the affidavits be used in his defense. Williams first showed his counsel the affidavits in December 1977. At the evidentiary hearing on this issue, Williams was asked whether he indicated to his counsel precisely how he wanted the affidavits to be used:
WILLIAMS: Yes, I had a specific defense in mind, and I presented them to him and told him I wanted him to use them in my defense to exonerate me.
QUESTION: What did he say?
WILLIAMS: He told me that a judge would bury me for something like this. . . .
QUESTION: Did Mr. Goldberg at that time indicate he would not use these affidavits?
Just before trial, Williams again told his attorney to use the affidavits:
QUESTION: At that point in time did you indicate to Mr. Goldberg your desire to use these affidavits?
WILLIAMS: I did all the way through the trial.
QUESTION: And prior to the start of the trial did Mr. Goldberg definitively tell you he would ...