The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
The court of appeals remanded this case in part for an evidentiary hearing regarding defendant Homes Valencia-Rios' claim that his trial counsel, Elita Amato, had provided ineffective assistance of counsel by committing numerous errors that allegedly prejudiced the outcome of his case. At the evidentiary hearing, the defendant failed to carry his burden of demonstrating that he received ineffective assistance of counsel at trial. This memorandum opinion sets forth findings of fact and conclusions of law explaining this conclusion.
A more detailed history of the facts of this case can be found in United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006). "From June through November 1998, Costa Rican law enforcement officers conducted an investigation of a drug trafficking organization in Costa Rica,... involv[ing] multiple wiretaps, which captured Colombian nationals [Rafael] Mejia and [Valencia-]Rios discussing large drug transactions with other members of their drug trafficking organization." Id. at 438. Using information from the wiretaps, Costa Rican authorities intercepted three shipments of drugs in October 1998: 200 kilograms of cocaine from a truck at the border of Nicaragua and Costa Rica; 130 kilograms of cocaine from a truck at the border of Nicaragua and Honduras; and 25 kilograms of cocaine from a truck in Costa Rica. Id. at 439. Then, "[o]n November 30, 1999, a federal grand jury in the District of Columbia named Mejia and Rios in a one-count indictment that charged them with conspiring to distribute five or more kilograms of cocaine with knowledge and intent that such cocaine would be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 959(a), 960(a)(3), 960(b)(1)(B)(ii), and 963." Id. The conspiracy was alleged to have existed from June 1998 until at least November 1998 and spanned throughout Colombia, Panama, Costa Rica, Guatemala, and Nicaragua.*fn1 Id.
Mejia and Valencia-Rios were arrested by Panamanian authorities and transferred to the custody of United States Drug Enforcement Agency ("DEA") agents Michael Chavarria and Joseph Evans in Panama City. En route to the United States, the DEA agents advised Valencia-Rios of the charge against him and informed him of his Miranda rights. In Fort Lauderdale, Valencia-Rios "waived his rights and signed a written statement inculpating himself in drug trafficking in Central America." Id. Valencia-Rios "admitted to participating with... co-conspirators in smuggling more than 100 kilograms of cocaine from Panama into Costa Rica during 1998[.]" Id. at 441. Trial counsel filed a pretrial motion to suppress Valencia-Rios' written statement, arguing that the statement was made involuntarily and obtained in violation of the defendant's Fourth and Fifth Amendment rights. After an evidentiary hearing during which Amato cross-examined Chavarria about the environment in which Valencia-Rios made his statement, Valencia-Rios' motion to suppress his written statement was denied.
Mejia and Valencia-Rios were tried together. The government presented the following evidence against Valencia-Rios. Nine tapes of telephone calls between Valencia-Rios and other members of the conspiracy were introduced into evidence.*fn2 Id. at 440. Witness Juan Delgado, an inmate who met Valencia-Rios during his pretrial incarceration, identified Valencia-Rios' voice on seven tapes. Inspector Sigifredo Sanchez, who led the Costa Rican investigation, and Chavarria identified Valencia-Rios' voice on eight tapes. Sanchez testified "as an expert in deciphering the coded language used by drug trafficking organizations, and he testified about the meaning of numerous conversations[,]" including Valencia-Rios' conversations. Id. DEA Agent Michael Garland testified "as an expert on drug trafficking organizations in Central and South America," and "testified that the principal market for drugs produced in Central and South America is the United States." Id. at 441 (internal quotation marks omitted). "Chavarria and Evans testified regarding [Valencia-Rios'] post-arrest statements[,]" including Valencia-Rios' admission that he participated with co-conspirators to smuggle cocaine from Panama into Costa Rica. Id. The government also introduced into evidence Valencia-Rios' written statement obtained while he was in custody in Fort Lauderdale. During cross-examination, Amato elicited from Chavarria that Valencia-Rios wrote his statement in a small, windowless room in the Fort Lauderdale airport after being in custody for more than ten hours and before he was given an opportunity to call his wife. (See Trial Tr. vol. X-B, 10-71:25 to 10-74:6, Oct. 29, 2001.) Valencia-Rios did not testify at trial and was found guilty by a jury of the charged offense. See Mejia, 448 F.3d at 441. Post-trial proceedings ensued and sentencing was postponed.
Approximately one year after his conviction, but before sentencing, Valencia-Rios moved for a new trial, alleging that his trial counsel had provided ineffective assistance in the preparation and presentation of his trial defense. He alleged that his trial counsel failed to: (1) inform Valencia-Rios about investigative efforts undertaken in Panama and follow his instructions as to which witnesses should be investigated; (2) timely provide to Valencia-Rios a copy of his alleged confession; (3) produce a defense version of transcripts of the taped telephone calls that the government used at trial; (4) obtain and present a handwriting expert to analyze the handwriting in Valencia-Rios' written statement; (5) obtain and present expert testimony on voice identification to challenge the government's evidence identifying Valencia-Rios on the taped phone conversations; (6) introduce into evidence in support of the defendant's motion to suppress his confession a diagram produced by the defendant purporting to be of the room where the government obtained his written statement; (7) obtain a copy of Valencia-Rios' Panamanian arrest order and arrest declaration to challenge his arrest and transfer to the United States; (8) obtain the testimony of potential exculpatory witnesses Jose Antonio Ortega, Clemencia Otalvaro Morales, and Johnny Webb; and (9) present as evidence co-defendant Mejia's failure to identify Valencia-Rios' photograph. Valencia-Rios' motion was denied as untimely under Federal Rule of Criminal Procedure 33. He was sentenced to 324 months in prison. Valencia-Rios appealed his conviction and renewed the same ineffective assistance of counsel claim on appeal.
The court of appeals affirmed Valencia-Rios' conviction for conspiring to unlawfully import more than 5 kilograms of cocaine into the United States, but remanded the case for "further proceedings to consider the merits of [Valencia-Rios'] ineffective assistance of counsel claim." Id. at 459. On remand, Valencia-Rios renewed the same nine allegations of ineffective assistance he raised in his untimely motion for a new trial. A hearing was held on the defendant's ineffective assistance claim at which the defendant and trial counsel Amato testified. At the hearing and in his proposed findings of fact and conclusions of law, Valencia-Rios raised a tenth reason why he received ineffective assistance, alleging that trial counsel failed to fully brief him on plea offers from the government.*fn3
"To prove constitutionally defective representation, the defendant must show (1) 'that counsel's performance was deficient,' and (2) 'that the deficient performance prejudiced the defense.'" United States v. Cassell, 530 F.3d 1009, 1011 (D.C. Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)); see Knowles v. Mirzayance, 129 S.Ct. 1411, 1419 (2009) ("[A] defendant must show both deficient performance and prejudice in order to prove that he has received ineffective assistance of counsel[.]"). To prove deficient performance, the defendant must show "'that counsel's representation fell below an objective standard of reasonableness... under prevailing professional norms.'" Knowles, 129 S.Ct. at 1420 (quoting Strickland, 466 U.S. at 687-88); United States v. Gwyn, 481 F.3d 849, 853 (D.C. Cir. 2007) (same). "Judicial scrutiny of counsel's performance must be highly deferential," and "[a] fair assessment of attorney performance requires that every effort be made to eliminate distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Therefore, "'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Knowles, 129 S.Ct. at 1420 (quoting Strickland, 466 U.S. at 689); see United States v. Askew, 88 F.3d 1065, 1070 (D.C. Cir. 1996). "'[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.'" Knowles, 129 S.Ct. at 1420 (quoting Strickland, 466 U.S. at 690). The burden is on the defendant to prove his attorney's conduct was "unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).
The prejudice prong "requires the defendant to demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cassell, 530 F.3d at 1011 (quoting United States v. Eli, 379 F.3d 1016, 1019 (D.C. Cir. 2004)) (internal quotations omitted); see Knowles, 129 S.Ct. at 1422. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695. "A reasonable probability is a probability sufficient to undermine confidence in the outcome," and a defendant "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693-94. The court "must consider the totality of the evidence before the... jury." Id. at 695.
During the course of representation, counsel owes to her client several duties, and a substantial breach of any of the duties owed amounts to deficient performance. See United States v. DeCoster, 487 F.2d 1197, 1203-04 (D.C. Cir. 1973). Counsel's obligations include a duty to (1) confer with the client without delay to ascertain potential defenses; (2) promptly advise the client of his rights and to take all actions necessary to preserve them; and (3) conduct "appropriate investigations, both factual and legal, to determine what matters of defense can be developed." Id. In Kimmelman, the Supreme Court elaborated on the duty to investigate, stating that "'[c]counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" 477 U.S. at 384 (quoting Strickland, 466 U.S. at 691). "[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.
Where there is a failure to investigate a witness or other evidence that may violate the deficient performance prong, the defendant must still show how counsel's failure to investigate prejudiced the outcome of his case before a court can conclude counsel's performance resulted in ineffective assistance of counsel. United States v. Debango, 780 F.2d 81, 85 (D.C. Cir. 1986). Thus, for a claim based on counsel's failure to investigate to succeed, a defendant must make "a comprehensive showing as to what the investigation would have produced. The focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result."... Courts should insist that the defendant show to the extent possible precisely what information would have been discovered through further investigation.
Askew, 88 F.3d at 1073 (quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987)); see Gwyn, 481 F.3d at 855 ("[A] defendant may not merely allege that counsel failed to undertake an investigation."). For example, in United States v. Moore, 104 F.3d 377 (D.C. Cir. 1997), the defendant argued that his counsel was ineffective because counsel failed to subpoena witnesses who allegedly would have established the defendant's innocence. Id. at 391. In rejecting his claim, the court noted that the alleged testimony of witnesses not subpoenaed "was tangential at best" and the evidence supporting the defendant's guilt was so strong as to render any error by defense counsel harmless." Id.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. FAILURE TO TRAVEL TO PANAMA AND FAILURE TO INVESTIGATE WITNESSES
Valencia-Rios claims that Amato failed to travel to Panama and failed to follow his instructions on how to investigate his case, including to interview key witnesses Jose Antonio Ortega, the defendant's wife Clemencia Otalvaro Morales, Johnny Webb, Mariana Ciceron Rivas, and a person identified only as Tomas.*fn4
The defendant testified that he instructed his counsel to travel to Panama to find potential witnesses Ortega, Rivas, Morales, and Tomas as possible witnesses located in Panama. (Hr'g Tr. 124:13-15, Oct. 20, 2008.) He said that Ortega would have testified about meeting the defendant in Panama and about the defendant's "activities and the nature of his businesses." (Id. at 125:3-5.) He viewed Rivas as important because Rivas "had known [the defendant] for six or seven years," and had knowledge of the defendant's business in the "free trading zone in Cologne between Panama and Colombia." (Id. at 125:11-16.) The defendant testified that trial counsel told him she was going to go to Panama, and that trial counsel never explained why she decided not to call Ortega, Rivas, or Tomas as witnesses. (Id. at 127:9-12.)
The defendant also testified that he instructed trial counsel to investigate using Johnny Webb, who had been the defendant's cellmate while incarcerated in D.C. Jail, as a defense witness. (Id. at 152:10-14.) The defendant testified that he provided trial counsel with a letter from Webb that said Webb rejected inquiries from the government seeking his cooperation and that Webb wanted to be of assistance. (Id. at 130:4-131:10.) The defendant complained that trial counsel did not investigate Webb and did not inform him why she decided not to pursue Webb. (See id. at 131:1-4.)
There is no dispute that trial counsel did not travel to Panama. Trial counsel testified that she discussed with the defendant "a trip to Costa Rica and... the possibility of a trip to Panama" for his case. (Id. at 22:1-3.) Trial counsel did travel to Costa Rica with Heather Shaner, counsel for co-defendant Mejia. Trial counsel recalled that the defendant provided her with the name of a potential witness located in Panama, whose identity she could not affirmatively recall, but whom she spoke with by telephone when she was in Costa Rica. (Id. at 23:4-18.) She further testified that while in Costa Rica, she decided not to go to Panama, and that she informed the defendant of her decision. (Id. at 22:8-15.)
With respect to investigating potential witnesses, trial counsel did not provide any testimony suggesting she attempted to find out any additional information about Rivas and Tomas beyond what Valencia-Rios told her. She did interview a potential witness, Johnny Morales-Cooper, in a Costa Rican prison. With respect to Webb, trial counsel conceded that she did not investigate Webb beyond "finding out that [he] was locked up and who was representing him[.]" (Id. at 120:24-25.) For the defendant's wife Morales, however, trial counsel testified that she had several conversations with Morales when she was in the District of Columbia. (Id. at 24:16-25.)
In addition, trial counsel testified that she made the strategic decision not to call witnesses who knew the defendant well enough to identify the defendant's voice because the government on cross-examination could have "destroyed him" by having these witnesses listen to the incriminating tape recordings and corroborate that it was the defendant speaking. (Id. at 53:23-54:14; 78:10-13.) She testified that she concluded that potential witnesses Webb, Rivas, Tomas, and Morales-Cooper should not have been called because they could all identify the defendant's voice. (Id. at 52:20-53:1; 54:15-17.) Trial counsel stated that she also concluded that Morales-Cooper would not have been a helpful witness because Morales-Cooper admitted that the defendant's tape recorded conversations were about drugs. (Id. at 52:19-53:7.) Moreover, as for Webb, trial counsel testified that she didn't believe Webb could have provided exculpatory testimony for the defendant because he had not known the defendant during the time of the charged conspiracy. (Id. at 77:11-17.) As for Morales, trial counsel stated that she decided not to call Morales as a witness not only because she could identify the defendant's voice, but also because the defendant told her he did not want Morales involved and because Morales knew of the defendant's drug trafficking activity. (Id. at 52:20-53:10.)
The court finds that the defendant has established that trial counsel decided not to travel to Panama after he instructed his counsel to go there. Taking the testimony in the light most favorable to Valencia-Rios, at best, Amato's failure to travel to Panama resulted in missed opportunities to speak with potential witnesses Ortega, Webb, Rivas, and Tomas. In addition, trial counsel did not investigate Webb. Nonetheless, the court finds credible trial counsel's testimony that she adopted a strategy not to call witnesses at trial who would be able to identify the defendant's voice and finds that trial counsel's decisions about whether to investigate certain witnesses stemmed from this strategic decision. Because she concluded from what the defendant said that all of the Panamanian witnesses could have identified the defendant's voice, they would not have been called as trial witnesses. With respect to Morales, the court credits trial counsel's testimony ...