informant and petitioner. Petitioner asserts that he asked Mr.
Wilhite to have these tapes examined by an expert to determine
whether they had been altered. See Aff. In Support of § 2255
Motion at ¶ 5. He asserts that Mr. Wilhite himself stated that
he felt one of the tapes had been altered. See Tr. for Oct.
18, 1995, at 107-112. Yet because counsel did not move the court
to have an expert test the tapes, allegedly he did not act with
customary skill and knowledge.
The Court disagrees and finds that Mr. Wilhite was not
ineffective in not moving the court for an expert examination.
The transcript for October 18, 1995, shows an extensive dialogue
between counsel for petitioner, counsel for a co-defendant, and
the Government regarding Mr. Wilhite's allegation that a portion
of the tape had been excised. See id. However, the Government
explained at length that the tape had not been tampered with,
but that part of the transmission had been disrupted because
someone had stepped on and off the transmitter, and that another
transmission (the "Nagra") indicated that the transmitter was
being stepped on and off because petitioner was becoming
jittery. See id. ("had we listened to the rest of Mr.
Wilhite's tape, one would have heard the step on, step off, step
on, step off. . . ."). Given this credible explanation for the
interruption in the tape, the Court saw nothing then (the Court
noted that "there's no basis for saying it was excised," Tr. for
Oct. 18, 1995, at 109) nor anything now that would indicate that
Mr. Wilhite was deficient in not moving for an expert
examination of the tape. Again, the Court finds petitioner's
allegation of ineffective assistance meritless.
2. Motion for new counsel
Petitioner alleges that the Court did not conduct an adequate
and fair hearing on petitioner's motion for appointment of
specific new counsel during his second trial, causing him to
proceed with incompetent counsel. It is clear, however, that the
Court considered petitioner's request with abundant care. The
Court set forth its reasons in an Order dated September 26,
1995, explaining that "defendant currently is represented by
experienced, competent appointed counsel," that neither
defendant nor counsel indicated that present counsel could not
continue to provide highly effective representation, that the
requested new counsel was not on the list of attorneys approved
by the Court for appointment under the Criminal Justice Act, and
that defendant's request was received just eleven days prior to
the beginning of a three-week, complex trial. The Court allowed
discussion of petitioner's request in open court on September
28, 1995, hearing the positions of petitioner, his counsel,
codefendants' counsel, and the Government (who objected to the
eleventh-hour request). Petitioner's claim is meritless.
3. Government's use of Detective Brown
In July 1999, it came to light that Detective Brown had
falsely exaggerated his educational credentials in cases in
which he testified, and in February 2000, he pled guilty to such
perjury. See Bill Miller, "D.C. Police Expert Admits Perjury,"
Washington Post, Feb. 11, 2000, at B3. Petitioner alleges that
Detective Brown's testimony was "extraordinarily material" in
his case, and that the use of his falsified testimony so
distorted the adversarial process as to render the trial
fundamentally unfair. While there may be cases in which
Detective Brown's false testimony could warrant some corrective
action, the Court cannot find that the jury in this case would
have reached a different conclusion even if Detective Brown had
not falsely testified to his academic and professional
accreditation. First, Detective Brown was an expert, not a fact,
witness, and petitioner does not point to how Detective Brown's
testimony was "extraordinarily material." Second, the strong
direct evidence that defendant committed the charged offenses
was sufficient readily
to convince not just one, but two successive juries of
defendant's guilt. Furthermore, the fact that Detective Brown
falsified his credentials does not detract from the knowledge of
how drug dealers operate that he gained during his extensive law
enforcement and street experience. See also United States v.
Williams, 77 F. Supp.2d 109, 113-14 (D.C. 1999).
Based on the foregoing, the Court finds that petitioner's §
2255 motion is meritless. Accordingly, it hereby is
ORDERED, that petitioner's § 2255 motion is denied.