to sell a gallon of PCP to the undercover agents in the parking lot of a Safeway grocery store. The meeting was prearranged through a telephone call between Mr. Harris and the informant. When Mr. Harris was late, the DEA agents paged him. Mr. Harris then indicated that he would contact his "boy," who would pick him up, and the two of them would be there in 20 minutes. (R. at 59, 253-54.) Approximately 20-25 minutes later, Defendant and Harris arrived in a blue Toyota driven by the Defendant and parked two or three parking spaces away from the DEA agents' car. Mr. Harris approached the agents, got inside their car and asked whether they had the money. Defendant then moved the Toyota behind the DEA agents' van. Mr. Harris signaled the Defendant to return to the parking spot parallel to the van, which the Defendant did. Mr. Harris opened the passenger door, leaned inside and retrieved a white plastic bag containing a large jug with yellow liquid in it. After bringing the jug to the DEA agents, Mr. Harris was arrested. Defendant attempted to drive away but his escape was blocked. Defendant jumped from the Toyota and began to run but was apprehended by the DEA agents. Defendant had $ 3,900 and a pager on his person at the time of his arrest.
A detective then transported the Defendant to the DEA office. During the drive, the Defendant indicated that he had knowledge of other individuals involved with PCP, where he had seen large quantities of PCP, and where he had obtained the PCP involved in his arrest.
I. THE COURT SHALL DENY THE DEFENDANT'S MOTION BECAUSE THE REPRESENTATION OF THE DEFENDANT BY COUNSEL WAS NEITHER DEFICIENT NOR PREJUDICIAL IN EACH OF THE FOUR INSTANCES CITED BY THE DEFENDANT.
A convicted Defendant's claim of ineffective assistance of trial counsel has two components, both of which must be satisfied for the Defendant to prevail. First, the representation of the Defendant must have been deficient to the extent that the attorney's errors were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984), reh'g denied, 467 U.S. 1267 (1984); United States v. Lam Kwong-Wah, 288 U.S. App. D.C. 54, 924 F.2d 298, 308 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 287 (1992); United States v. Potson, 284 U.S. App. D.C. 125, 902 F.2d 90, 98 (D.C. Cir. 1990). In analyzing this first component, the court is to examine the particular circumstances of the case to determine the reasonableness of the Defendant's representation. Strickland, 466 U.S. at 688, 690. However, with respect to this component, there is a "strong presumption" that counsel's conduct was reasonable and that the challenged action was a sound trial strategy. Strickland, 466 U.S. at 688, 690; Nix v. Whiteside, 475 U.S. 157, 165 (1986).
The second component that the Defendant must show is that the alleged deficiency of counsel prejudiced the Defendant. Strickland, 466 U.S. at 668, 687 (1984); United States v. Lam Kwong-Wah, 288 U.S. App. D.C. 54, 924 F.2d 298, 308 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 287 (1992); United States v. Potson, 284 U.S. App. D.C. 125, 902 F.2d 90, 98 (D.C. Cir. 1990). In this case, the Court finds that based upon a review of the papers, the applicable law, and oral argument, the representation of the Defendant by Counsel was neither deficient nor prejudicial. Therefore, the Defendant's Motion to vacate his sentence and order for a new trial shall be denied.
A. The Court Finds That Trial Counsel Made A Sound Decision Not To Object To Evidence Concerning The December 7 Transaction.
Defendant first claims that his Counsel erred in failing to object to the introduction of evidence concerning the December 7, 1990 drug sale in which Jeffrey Harris, alone, sold PCP to DEA agents. However, Counsel was not deficient in failing to object to this evidence.
Counsel's strategy was to convince the Jury that the Defendant was not involved in any subsequent drug sales because Mr. Harris operated independently of the Defendant. Defense Counsel actually relied on the December 7 transaction to illustrate his point. As stated by trial Counsel:
I made a strategic decision to highlight the activities of Jeffrey Harris including the December 7, 1990 transaction in order to show that Harris acted alone without the cooperation of defendant and did not need defendant in order to engage in the transactions which formed the basis of the government's case.
(Aff. of Idus J. Daniel, P 3 (1994)). In fact, in his argument at trial, Defense Counsel stated, with respect to the December 7 transaction, that Jeffrey Harris transferred the drugs without hesitation and without stating that he had to check with the Defendant first. See (R. at 21.) Consequently, trial Counsel attempted to use the December 7 sale to show that Harris operated independently of the Defendant. Since trial Counsel's strategy was to rely on the December 7 sale to show that Mr. Harris acted alone without the Defendant's help, Counsel was not deficient in failing to object to the evidence of the December 7, 1990 transaction.
B. The Court Finds That The Defendant Was Not Prejudiced By Counsel's Failure To Object To The Introduction Of The Statements Made by Jeffrey Harris.
Defendant's second contention is that Counsel was deficient in failing to object to the Government's introduction of statements made by Jeffrey Harris under the co-conspirator exception to the rule against hearsay. In this instance, Counsel, again, was not deficient.
Under the co-conspirator exception to the hearsay rule, statements made by a co-conspirator are admissible. See Fed. R. Evid. 801. During the trial of the case, this Court specifically found the existence of a conspiracy, which subsequently allowed the statements made by Jeffrey Harris to be admitted. The Court stated:
Of course, there's been evidence that would support a conspiracy charge. There can't be any question about that in this case. . . . He's saying as a matter of the Rules of evidence, that since there is no conspiracy charge, I must . . . make a finding to allow this other evidence in, which I apparently did not do, to make this evidence properly admissible. The court so finds.