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September 30, 1987

The United States of America, Plaintiff,
Harry H. Jessup, Defendant

The opinion of the court was delivered by: SIMMONS

Before this Court is a motion to vacate, set aside and/or correct defendant's sentence. On September 17, 1986, defendant was convicted by a jury, of one count of violating 18 U.S.C.A. § 1202(a)(1), which reads as follows:

"Any person who --
(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $ 10,000 or imprisoned for not more than two years or both".

 On October 14, 1986, defendant was sentenced to two years imprisonment. Defendant claims that he was denied effective assistance of counsel in three particulars:

1. Trial counsel failed to file a pre-trial motion to suppress the firearms seized in the above proceeding which were a necessary element of the charge against him and which were taken without probable cause and without the parameters of the warrant of seizure issued. A decision upon the forfeiture of April 3, 1986, is still undecided at Criminal No. 85-156 - United States of America v. Ernest G. Rockwell.
2. Defendant against his wishes and better judgment took the stand in his own defense, at the insistence of his trial counsel, thus permitting the Government on rebuttal to call the witness, Ernest G. Rockwell, who was the only witness who placed your Movant in contact with the alleged firearms the Government sought to prove he possessed.
3. Defendant requested that his counsel subpoena as a witness one of the employees of the company who sold and installed a water slide in Movant's premises, but said counsel refused to do so.

 Defendant's claim is governed by the U.S. Supreme Court holding in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The Court therein stated:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

 The Strickland Court also expressed the view that:

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Id. at 697.

 In regard to the showing of prejudice, defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694

 For the reasons which will be hereinafter set forth in this Opinion, defendant has not met this burden of proving that his counsel's assistance was so defective as to require the granting of a new trial.

 First defendant contends that his counsel was ineffective because he failed to file a pre-trial motion requesting this Court to suppress the firearm evidence, (several guns), which was seized by the Deputy United States Marshal from certain real property described and referred to in an Order of this Court dated April 3, 1986. (See a copy of said Court Order of April 3, 1986, attached to this Opinion as Exhibit "A" for convenience reference.)

 Pursuant to the test set forth in the Strickland case, cited supra, the defendant must demonstrate in this proceeding a reasonable probability that the outcome of his prior criminal trial would have been different if a suppression hearing had been held prior to said criminal trial.

 Because this Court is convinced that the said aforementioned questioned evidence in question, (the firearms) would not have been suppressed by this Court under the undisputed factual circumstances of this case, even if a suppression motion as to said evidence had been in fact filed by defendant's counsel and addressed by this Court, defendant's first contention must fail. It is the opinion of this Court that defendant's counsel's failure to file said suppression motion had no bearing whatsoever on the outcome of this case.

 A recitation of some history in regard to this matter is in order at this time and this Court will make reference to certain undisputed relevant facts of record in the case of the United States of America v. Ernest G. Rockwell filed at Criminal No. 85-156 in this Western District of Pennsylvania.

 On July 17, 1985, at Criminal No. 85-156, Ernest G. Rockwell in Count One, was indicted in this United States District Court for the Western District of Pennsylvania for engaging in a continuing criminal enterprise in which said defendant Rockwell obtained profits and property which are subject to forfeiture to the United States of America. Specifically the indictment alleged that some of the property that was subject to forfeiture to the United States of America consisted of all of Rockwell's "rights, interest or investment in a recreational area known as Indian Lake Park."

 On October 3, and October 9, 1985, Rockwell was called to testify in this Court in two criminal cases, involving United States of America v. Hilmer Sandini, et al (criminal nos. 85-150 and 85-175), and Rockwell testified under oath that he in effect was guilty of engaging in a continuing criminal enterprise of dealing in the sale and distribution of illegal narcotics as he was so charged in the indictment filed at Criminal No. 85-156, and further Rockwell admitted to investing $ 357,000.00, that ...

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