two witnesses who would testify to this effect. According to Robles, trial counsel did not contact these witnesses. Trial counsel, on the other hand, testified that the defendant never mentioned that he could not drive a car (11/20/92 Tr. at 21) or that he was on his way to a faith healer (Id. at 16). In addition, trial counsel testified that Robles was unable to provide him with any witnesses who could have bolstered his claim that he was just a bystander. (Id. at 10-11).
Regarding Robles claim that he does not drive, "trial counsel cannot be ineffective for failing to raise claims as to which his client has neglected to supply the essential underlying facts when those facts are within the client's possession; clairvoyance is not required of effective trial counsel." Dooley v. Petsock, 816 F.2d 885, 890-91 (3d Cir.), cert. denied, 484 U.S. 863, 108 S. Ct. 182, 98 L. Ed. 2d 135 (1987).
Similarly, regarding the alleged witnesses, inasmuch as Robles failed to provide his trial counsel with the names, addresses and telephone number of these people, counsel's failure to interview, subpoena or call them as witnesses does not give rise to ineffective assistance of counsel. United States v. King, 936 F.2d 477, 480 (10th Cir.), cert. denied, U.S. , 112 S. Ct. 647, 116 L. Ed. 2d 664 (1991). Significantly, Robles did not produce these people at the evidentiary hearing, nor did he provide addresses or telephone numbers. Accordingly, we were unable to assess the proposed testimony firsthand, under cross-examination, in order to evaluate its veracity and potential impact on the outcome of the trial. See United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987). Furthermore, the missing testimony does not undermine our confidence in the guilty verdict in light of the overwhelming evidence. Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991). Accordingly, we hold that Robles failed to carry his burden under either prong of Strickland.
We reach the same result with respect to counsel's alleged failure to call character witnesses. According to trial counsel, the defendant provided him only with the name and telephone number of Lizette Ramos, his daughter-in-law. Counsel contacted her, found out that she knew the defendant for only three months and made a reasonable, strategic decision not to call her as a character witness.
Nonetheless, counsel asked her to be present at trial. Despite this request, neither Ms. Ramos nor any of the defendants friends or family showed up. We find that counsel's decision not to call the defendant's daughter-in-law does not constitute ineffective assistance of counsel. Robles also claims that trial counsel failed to call his son as a character witness. Once again, however, trial counsel testified that the defendant did not provide him with his name, address or telephone number.
Finally, Robles claims that trial counsel did not allow him to examine the title to the car which he was driving or, investigate the information contained in the title. Not surprisingly, conflicting testimony was elicited at the evidentiary hearing; trial counsel testifying that he did not recall Robles asking to see the title and that he would have shown the defendant the title if he had asked (11/20/92 Tr. at 14-15), and Robles testifying with his trademark response that he asked to see it but trial counsel told him it "was not necessary." (Id. at 71). We need not resolve this conflict. To begin with, ownership of the car was at best collateral and at worst irrelevant. In addition, counsel effectively used the title to gain acquittal of the defendant on Count Three of the indictment. Furthermore, when the allegation of ineffectiveness of counsel centers on a supposed failure to investigate, the focus of our inquiry is on what information would have been obtained from such an investigation and whether such investigation, if admissible, would have produced a different result. DeRobertis, 811 F.2d at 1016. Robles has failed to present any evidence whatsoever of what such an investigation would have revealed. Accordingly, defendant Robles has failed to carry his burden under Strickland.
B. Croussett's Claims
Defendant Croussett likewise claims that he was denied effective assistance of counsel because his trial counsel: (1) failed to file a motion for disclosure of the confidential informant;
(2) advised him not to testify and did not call him as a witness; and (3) failed to call character witnesses on his behalf.
As with defendant Robles' claim, we believe that trial counsel's strategic and tactical decision not to call the defendant as a witness was sound and reasonable. Apparently, Croussett proposed to testify that he is a good family man, he did not know defendant Robles, he is not involved in drugs, and went to Burger King to eat and was mysteriously arrested. (11/20/92 Tr. at 50). Trial counsel was rightly concerned with the credibility of this testimony in light of the corroborated testimony of the detectives. (Id. at 37, 57). Trial counsel was also properly concerned with the Government's cross-examination of the defendant considering his illegal immigrant status. (Id.). Accordingly, we believe counsel's advice not to testify was a reasonable strategic decision and that counsel's performance did not fall below the standards of the profession. We also note Croussett's failure to take the stand at the evidentiary hearing. Without the specifics of his testimony and without the benefit of observing his demeanor and veracity, it is virtually impossible to determine what prejudice, if any, the defendant suffered as a result of his attorney's strategic decision not to call him as a witness.
Accordingly, we find that defendant has also failed to establish that there is a reasonable probability that, absent the alleged error, the outcome at trial would be different.
In support of his claim that trial counsel failed to call character witnesses on his behalf, Croussett attaches eleven letters from potential character witnesses. At the evidentiary hearing, however, trial counsel testified that the defendant did not provide him with the names of any character witnesses (11/20/92 Tr. at 34), but instead instructed him to contact one Maria Duran for character witnesses. (Id. at 43-44). Trial counsel spoke to Ms. Duran on several occasions (Id. at 32), but she failed to provide any information. (Id. at 35). In addition, trial counsel asked Ms. Duran to appear at trial on behalf of the defendant, but she did not show up. (Id. at 33, 4/21/92 Tr. at 192). Trial counsel unsuccessfully attempted to contact her following the first day of trial through her beeper number. (Id. at 35). We find trial counsel's efforts, pursuant to the defendant's instruction, to obtain information and testimony from an uncooperative witness fall well within the range of professional judgment. In addition, the letters submitted on Croussett's behalf do not create a reasonable probability that the verdict in this case would have been different.
Defendant Croussett also claims, without support, that trial counsel failed to properly advise him of the severity of the punishment for the charged offenses and the possibility of a plea. The uncontroverted testimony of trial counsel establishes that he did in fact discuss a plea with Croussett (11/20/92 Tr. at 60) and the ten year mandatory minimum sentence. (Id. at 60-61). Accordingly, these claims are without merit.
At the evidentiary hearing Croussett's new counsel also pointed to several instances in which she asserts trial counsel's performance was objectively unreasonable. For example, new counsel asserts that trial counsel never met with Croussett in private, did not spend sufficient time with him and, as a result, did not investigate and pursue an entrapment defense.
In Strickland, the Supreme Court recognized that:
counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
Id. at 690-91, 104 S. Ct. at 2066; see also Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 2587, 91 L. Ed. 2d 305 (1986).
The Court further observed that defense counsel may properly rely on information supplied by the defendant in determining the nature and scope of the needed pretrial investigation. Id. As the Court said in Strickland :
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.
As stated above, a valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) a lack of predisposition on the part of the defendant to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 886-87, 99 L. Ed. 2d 54 (1988); United States v. Wright, 921 F.2d 42, 44 (3d Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2803, 115 L. Ed. 2d 976 (1991); United States v. Fedroff, 874 F.2d 178, 181 (3d Cir. 1989). The defendant has the burden of producing evidence of both inducement and lack of predisposition to commit the crime. Wright, 921 F.2d at 44. "After the defendant has made this showing, . . . the government then has the burden of proving beyond a reasonable doubt that it did not entrap the defendant." Id.
Generally, the entrapment defense centers on the evidence adduced to meet the burden on the non-predisposition prong. Id. at 45. "'The entrapment defense theorizes that an individual not otherwise predisposed to criminal conduct was corrupted by some inducement on the part of the law enforcement officer. Thus, the focus is on the intent or predisposition of the defendant to commit the crime.'" Id. (quoting, United States v. Berkery, 889 F.2d 1281, 1283 (3d Cir. 1989)).
At the evidentiary hearing, trial counsel testified that the defendant continually maintained his innocence and claimed that he was not involved. (11/20/92 Tr. at 30-31, 60). The defendant presented no facts to trial counsel showing that an entrapment defense existed. Essentially, a defense of entrapment contemplates that the defendant was involved in the alleged criminal activity. Where the defendant denies all involvement, it would be unreasonable for trial counsel to proceed with a claim of entrapment.
In addition, Croussett did not testify at the evidentiary hearing and produced no evidence whatsoever of Government inducement or his lack of predisposition. Furthermore, an entrapment defense, even if asserted at trial, would likely have been unsuccessful in light of the overwhelming evidence of the defendants' willingness to commit this crime. Therefore, because Croussett failed to present evidence of inducement and lack of predisposition, and because it is improbable that an entrapment defense would have succeeded, Croussett suffered no prejudice as a result of trial counsel's failure to raise this defense. United States v. Sanchez, 984 F.2d 769 (7th Cir. 1993). Accordingly, defendant Croussett fails to carry his burden under either prong of Strickland.
6. Motion for Severance
At the evidentiary hearing, Robles, for the first time, alleged that the court should have severed the trials of the two defendants on the grounds that Robles should have been entitled to call Croussett on his behalf. (11/20/92 Tr. at 94). A defendant who fails to move for a separate trial has no cause to complain because of a joint trial absent a showing that he suffered actual prejudice as a result of the joint trial. United States v. Washington, 550 F.2d 320, 328 (5th Cir.), cert. denied, 434 U.S. 841, 98 S. Ct. 138, 54 L. Ed. 2d 105 (1977). Prejudice is defined as "some appreciable chance that defendants would not have been convicted had the separate trial they wanted been granted." United States v. Bostic, 713 F.2d 401, 403 (8th Cir. 1983). Robles has not satisfied his burden. Robles and Croussett were properly joined since both were involved in Counts One and Two of the indictment. See Fed. R. Crim. P. 8(b). Moreover, absent a showing that Croussett is willing to testify on his behalf, Robles cannot show prejudice.
In the present case, the court held a hearing to give each defendant a full opportunity to present evidence in support of his claim. Having carefully reviewed the records of the case, we conclude, for the foregoing reasons, that the defendants are not entitled to disclosure of the confidential informant and are not entitled to a new trial.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 814 F. Supp. 1233.
An appropriate order follows.
AND NOW, this 22nd day of February, 1993, upon consideration of defendant Robles' Motion for a New Trial filed on October 21, 1992 and the Government's Response thereto filed on November 9, 1992; defendant Croussett's Motions for a New Trial filed on September 16, 1992 and on November 18, 1992 and the Government's Response thereto filed on November 18, 1992; and defendant Croussett's Motion for Disclosure of Confidential Informant filed on November 23, 1992 and the Government's Response thereto filed on November 20, 1992, the record and the applicable law, it is hereby ORDERED that the defendants' motions are hereby DENIED. Sentencing is set for Friday, March 5, 1993 at 9:30 a.m. for defendant Robles and at 10:00 a.m. for defendant Croussett, at the United States District Court for the Eastern District of Pennsylvania, Holmes Building, Fourth Floor, Second & Ferry Streets, Easton, Pennsylvania.
BY THE COURT,
Franklin S. Van Antwerpen, J.