a "strong presumption" that the conduct falls "within the wide range of reasonable professional assistance." Id. at 689. Strategic decisions "made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690-91. However, strategic choices after incomplete investigation are only reasonable to the extent reasonable professional judgment supports the limits on the investigation. Id.
To determine whether counsel's actions prejudiced the defense, the inquiry is whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. at 694.
B. The Errors Alleged by the Defendant Do Not Constitute Ineffective Assistance of Counsel
The defendant bases his ineffective assistance claim on his trial counsel's failure to object at trial regarding the issues raised on appeal; that is, the failure to object to the dual use of Officer Grubbs as a fact and opinion witness and failure to raise the question of whether the juvenile's taped statements fell within the conspiracy exception to the hearsay rule. Neither of these alleged errors rises to the level of ineffective assistance.
1) The Juvenile Co-Conspirator's Statements Were Admissible; Therefore the Failure to Object on the Ground that the Statements Did Not Further a Conspiracy Was Neither Unreasonable Nor Prejudicial
Under Fed. R. Evid. 801(d)(2)(E), a statement made by an alleged co-conspirator are admissible against a defendant if there is evidence that a conspiracy existed, the declarant and the defendant were members of the conspiracy, and the statements were made during the course and in furtherance of the conspiracy. United States v. Gantt, 617 F.2d 831, 844 (D.C. Cir. 1980); United States v. Perholtz, 842 F.2d 343, 356 (D.C. Cir.), cert. denied, 488 U.S. 821, 102 L. Ed. 2d 42 , 109 S. Ct. 65 (1988). The defendant does not dispute that a conspiracy existed and that the declarant and defendant were members thereof. Rather, he contends that the statements were not admissible because they were not made in furtherance of the conspiracy. Therefore, defendant alleges, trial counsel's performance was inadequate because he failed to object to the admission of the tapes on that basis.
Defendant contends that the taped conversations of March 14 and 15, 1988 did not further the conspiracy because the essential terms of the transaction had been established during the March 11, 1988 meeting, and the transaction could have gone forward on that date but for organizational problems which caused Officer Benefiel to delay it. Def. Mot. at 10-11. Therefore, defendant argues, the telephone conversations after March 11, 1988 could not have furthered the conspiracy. The defendant contends that instead the conversations represent "mere narratives of past events" which are not admissible, and that trial counsel should have so argued. See United States v. Haldeman, 559 F.2d 31, 110 (D.C. Cir. 1976), cert. denied, 97 S. Ct. 2641 (1977).
The Court is not persuaded by these arguments, and finds that the conversations between Chase and Benefiel which were recorded on the tapes furthered the conspiracy. According to the Indictment, the conspiracy at issue here was to distribute PCP and to possess cocaine with the intent to distribute it. In interpreting Fed. R. Evid. 801(d)(2)(E), the Court of Appeals has found that a conspiracy continues until the objective of the conspiracy is fully achieved. See Perholtz, 842 F.2d at 357. The exchange of PCP and cocaine discussed on March 11, 1988 was not achieved on March 11, 1988, because Officer Benefiel could not secure the drugs necessary for the transaction without DEA approval. Tr. 10. Therefore, the objective of the conspiracy, the exchange of the PCP and cocaine, had not been achieved when the telephone conversations were taped. Neither had a final date been agreed upon. Moreover, the telephone conversations furthered the conspiracy by arranging a "test" transaction to test whether the defendant intended, in good faith, to complete the larger transaction that was the subject of the conspiracy. Tr. 26-27, 33; Tr. of March 14, 1988 Telephone Call No. 1 at 2-3. Arrangement of this smaller transaction therefore helped to assure the completion of the larger transaction. See United States v. James. 510 F.2d 546, 549-50 (5th Cir.), cert. denied, 423 U.S. 855 (1975) (statements made to supposed co-conspirator allaying suspicions of other conspirator were admissible because they furthered the completion of the conspiracy); cf. United States v. Troop, 890 F.2d 1393, 1404 (7th Cir. 1989) (co-conspirator's expression of concern that participant was a law enforcement officer admissible because avoiding police detection furthers conspiracy). Moreover, the possible future date of the larger transaction was discussed during the taped conversations, thereby facilitating its eventual occurrence. Tr. of March 14, 1988 Telephone Call No. 1 at 4. For all of these reasons, the statements were admissible under Fed. R. Evid. 801(d)(2)(E).
Even if, arguendo, trial counsel should have raised the issue of whether the taped statements were made in furtherance of the conspiracy by stating an objection, this omission was not prejudicial. If trial counsel had raised a timely objection on that basis, the Court would have overruled it for the reasons previously stated.
2) Counsel's Failure to Raise Non-Controlling Precedent Regarding the Dual Testimony of a Witness Regarding Facts and Testimony Was Neither Unreasonable Nor Prejudicial
In Beach v. United States, 466 A.2d 862, 865 (D.C. 1983), the District of Columbia Court of Appeals found that it was error for a detective to testify both as a fact witness and as an opinion witness. Defendant contends that, based on this persuasive authority, trial counsel's failure to object to Officer Grubbs' dual testimony constituted ineffective assistance. The Court is not convinced that this omission was unreasonable. While ignorance of controlling law has been held to constitute ineffective assistance, see, e.g., United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990); there is no controlling law in this circuit for the proposition that a witness may not testify both as to facts and opinions. While the District of Columbia Court of Appeals has expressed disfavor with the practice, the Second Circuit has explicitly allowed it. See, e.g., United States v. Young, 745 F.2d 733, 760 (2nd Cir. 1984), cert. denied, 470 U.S. 1084 (1985) (government may elicit opinion testimony from law enforcement officers who also testified as to facts). Given the split in authority, this Court cannot say that trial counsel's performance was defective for failing to raise the issue.
Even if trial counsel should have been aware of the D.C. Court of Appeals' holding in Beach and objected on that basis, his failure to do so was not prejudicial to the defendant's case. This Court would not have been inclined to sustain such an objection under the facts of this case. This Court was very careful to assure that safeguards were in place to prevent the jury from giving Agent Grubbs' testimony undue deference. The Court made sure that no one referred to Agent Grubbs as an "expert". This Court believes that using the term "expert" may encourage a jury to give the witness' testimony more weight than it is fairly entitled to receive. Although Rules 702 and 703 of the Federal Rules of Evidence do not preclude the use of the term "expert", the rules make clear that the purpose of the testimony is to allow a witness with specialized knowledge to state an opinion. The Court believes that referring to the witness as an "opinion witness" explains the purpose of the testimony to the jury in a manner more consonant with the interests of justice as prescribed in Fed. R. Crim. P. 2, and accordingly the Court referred to Agent Grubbs simply as an "opinion witness".
Moreover, before Agent Grubbs rendered his opinions, the Court gave the jury the limiting instruction, supra, p. 5, as to how it should consider the testimony of opinion witnesses. Tr. 71. This instruction was repeated in the final jury instructions. In light of the limiting instruction and careful avoidance of the term "expert" designed to dispel any possible prejudice Officer Grubbs' testimony might have engendered, this Court would have permitted the testimony. These procedural safeguards would have distinguished the case, at least in part, from Beach, and the Court therefore would have been inclined to follow the Second Circuit's approach and allow the testimony.
Finally, the Court notes that ineffective assistance claims are to be evaluated under the totality of the circumstances. Strickland v. Washington, 466 U.S. at 689. The defendant contends that the fact that the jury failed to reach a decision on the second count of the indictment suggests that but for trial counsel's alleged errors, there might have been a similar outcome with regard to the first count of the indictment. The Court does not believe that the reality of the trial supports this view. The performance of defendant's trial counsel in this case, overall, was excellent. This Court remembers trial counsel's performance vividly, despite the passage of time, because it was outstanding. This defendant had a fair trial and enjoyed the benefit of adversarial testing. See Strickland at 687, 696. The Court believes that but for trial counsel's outstanding performance, the defendant would likely have been convicted on both counts rather than only on one count. Under these circumstances, the defendant's claim of ineffective assistance of counsel must fail. Taken as a whole, defense counsel's performance at trial was well within the bounds of competent representation. Even if trial counsel had made the objections that the defendant now, in hindsight, insists were essential, there is no reasonable probability that the results would have been any different.
Accordingly, for all of the reasons previously stated, this Court shall deny the defendant's Motion to Vacate Sentence and for a New Trial, and dismiss this case. The court shall issue an appropriate Order in accordance with this Memorandum Opinion on this date.
July 6, 1992
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
ORDER - July 7, 1992, Filed
In accordance with the Court's Memorandum Opinion, filed on this date, and for the reasons stated therein, it is, by the Court, this 6 day of July 1992,
ORDERED that the defendant's Motion to Vacate Sentence and for New Trial shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of this Court.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
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