LUIS ANTONIO MEJIA, PETITIONER V. UNITED STATES OF AMERICA No. 90-6356 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-5a) is unreported, but the judgment is noted at 912 F.2d 470 (Table). JURISDICTION The judgment of the court of appeals was entered on August 27, 1990. The petition for a writ of certiorari was filed on Monday, November 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's trial counsel was ineffective. STATEMENT Following a jury trial in the United States District Court for the District of Alaska, petitioner was convicted of conspiracy to distribute cocaine, in violation of 21 U.S.C. 846, and aiding and abetting cocaine distribution, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. The district court sentenced him to a term of 70 months' imprisonment, to be followed by four years of supervised release. The court of appeals affirmed. Pet. App. 1a-5a. 1. From June 1988 to February 1989, law enforcement officers in Anchorage, Alaska, investigated the drug trafficking activities of Branly Cabral-Gomez and Rafael Castillo. In June and July 1988, Cabral and Castillo responded to a confidential informant's telephone calls to a paging number and arranged cocaine transactions with an undercover agent. In December 1988, petitioner, who shared an apartment with Cabral, returned calls to the telephone paging number. Petitioner told an undercover agent that he was in charge of the operation when Cabral was not around. Petitioner also discussed the purchase of a quarter pound of cocaine with the agent. Pet. App. 2a; Gov't C.A. Br. 2. On February 15, 1989, Cabral arranged a cocaine sale to Thomas Crader, a government informant. Petitioner and a third man remained in a truck outside Crader's residence while Cabral delivered the cocaine. The next day, petitioner returned to the residence and accepted $12,000 as a partial payment for the cocaine. The transaction was videotaped. Pet. App. 2a; Gov't C.A. Br. 2. 2.a. In his opening statement (Pet. App. 49b-56b), petitioner's counsel introduced himself as follows (id. at 49b): My name is Glen Harper, I am a local attorney who has been appointed by the Court to represent an indigent Defendant. That person is Luis Anthonio (sic) Mejia, and I will refer to him as Tony. I'm happy to announce that this appointment will help me with my indigent problem. Counsel proceeded to characterize petitioner's role in the events of the case: Essentially, the unique thing about this case is that Tony's got very minimal participation. The Government is using some fairly large kingpin drug dealers to try to arrest somebody who had such minimum participation that it's going to amaze you, especially if they -- their informants actually take the stand. Id. at 51b. Counsel urged the jury not to find petitioner guilty by association. Id. at 51b-52b. According to counsel, petitioner "picked up a payment one day," but the money "was not counted out" and was described only as "12 something or other." Pet. App. 52b. Counsel commented that petitioner acted "like (he was) in control a lot," and projected "false confidence." Id. at 53b. Counsel discussed a February 10, 1989, telephone conversation between petitioner and an informant in which the informant said a man named "Carlos" owed Cabral $40,000. Id. at 54b. According to counsel (id. at 54b-55b), when petitioner learned that the debt was drug-related he said, "I'm not answering this phone any more." Counsel asserted (id. at 55b) that his client realizes what's going on, and he wants out of this thing, but within that next several days, the Government sets a trap to get Tony over there, and basically, it amounts to Tom Crader, the informant, calling and persuading Tony to come to his house and pick up some money. And essentially, Tony ends up going over and picking up the money. And because this informant used -- pretended like he was Tony's friend, it was someone that Tony respected and actually feared, and the person deceived Tony, he came over and he picks up the 12,000 bucks, that's what -- and it's not even told it's 12,000 bucks, just told it's 12 something. That's what he is linked to the conspiracy. Counsel contended (ibid.) that petitioner's sole link to the conspiracy was picking up the money. Counsel said that "if you look at the situation from Tony's eyes, not through hindsight, you would find that he was persuaded, the evidence will show that. He had a lot of reluctance, but was overcome." Id. at 55b-56b. Defense counsel concluded his statement by again asserting that petitioner's involvement in the case was "minimal." Id. at 56b. b. Petitioner's counsel began his closing argument (Pet. App. 130c-157c) by stating that "previously, I had mentioned to you that I was retained by the Government. I want to correct that. I was retained by this Court to represent Tony Mejia, because he's an indigent." Id. at 130c. Counsel then reviewed the testimony of a psychologist who testified for the defense that petitioner had poor judgment, was immature, and had an over-inflated view of himself. Id. at 133c. Counsel contrasted petitioner with Royal Trent, a government informant who engaged in numerous large-scale cocaine transactions over a period of years. Id. at 133c-136c. Petitioner's counsel conceded (Pet. App. 138c) that petitioner had said on one occasion that he was "in control" of the drug operation when Cabral was not around, but argued that in fact petitioner was not in control and "doesn't know what's going on." Ibid. Counsel also disputed the value of testimony that petitioner said on another occasion that he had to count a large amount of money in his apartment. Id. at 138c-140c. He argued (id. at 140c) that petitioner was "merely present" with the money, just as he was merely present when Cabral dropped off the cocaine at Crader's house on February 15. Counsel then addressed (Pet. App. 141c) the "cornerstone of the prosecution's case," the "$12,000 video" showing petitioner accepting payment for cocaine. Counsel asserted that "if (petitioner) doesn't know what's going on here, and if I could convince you of that, you'd have to believe that the rest of this stuff isn't that important." Ibid. Describing the video as a "police trap" and a "prosecution production" with a "power of suggestion" that is "very tremendous" (id. at 141c-142c), counsel pointed to several features of the transaction that were consistent with petitioner's lack of a guilty mind: his failure to count the money (id. at 145c); his failure to protest when Crader understated by $20,000 the amount he owed to Cabral (ibid.); his willingness to initial the bag containing the money (id. at 146c); Crader's failure to comment on the cocaine he had received the day before (ibid.); and petitioner's failure to discuss cocaine in any way (id. at 147c). On the basis of these facts, petitioner's counsel argued (id. at 148c-151c) that his client lacked the guilty mind required to support a conviction for aiding and abetting. Petitioner's counsel also argued (id. at 151c-153c) that the evidence showed no connection between Castillo and petitioner, and that consequently the government had not proved beyond a reasonable doubt that petitioner had joined any conspiracy. Because petitioner's codefendant Cabral had taken the stand, petitioner's counsel chose to address petitioner's failure to testify. Id. at 154c-155c. He reminded the jurors that petitioner had a constitutional right not to take the stand, and that during voir dire the jurors had said they would not be prejudiced against petitioner if he did not testify. Id. at 155c. He told the jury that petitioner had decided not to take the stand on the advice of counsel. Ibid. Counsel then said (ibid.): Now, I would ask you to honor that commitment because he has a right not to get on the stand. The reason I advised (petitioner) not to is because the Government just has not proved guilt beyond a reasonable doubt. What does this Sixth Amendment mean, and where does it come from? Well, there was a man living about 200 years ago, just about that time, I think, that summed it up about as well as anybody ever did, and he said, "It's better to be fat (sic) and thought a fool, than to open your mouth and remove all doubt." Now, if Ben was here today, he would look right at (petitioner) when he said that. (Petitioner's) not on trial here for being a fool, and it's not an issue in the case, and it's the most important decision a lawyer and a client ever make in a criminal situation, very important. And I would ask you to honor your commitment to not hold that, the fact that (petitioner) did not testify here, against him. Petitioner's counsel closed his argument by urging the jury to acquit petitioner because his failure to discuss cocaine when he picked up the $12,000 showed his ignorance that he was involved in a drug transaction. Id. at 156c-157c. 3. The court of appeals affirmed. Pet. App. 1a-5a. The court noted that claims of ineffective assistance of counsel normally should be resolved in habeas corpus proceedings, but nevertheless considered petitioner's claim because of the clarity of the trial record. Id. at 4a. The court of appeals, relying on Strickland v. Washington, 466 U.S. 668, 687 (1984), rejected petitioner's ineffective assistance claim. The court observed (id. at 4a-5a) that "(w)hile counsel's opening and closing arguments and decision to use an expert (psychologist) may not seem perfect in retrospect, (petitioner is) only entitled to reasonably effective -- not perfect -- counsel." Its review of the record, the court said, "satisfies us that (petitioner) did receive the representation to which he was entitled." /1/ Pet. App. 5a. ARGUMENT Petitioner contends (Pet. 6-34) that he received ineffective assistance of counsel because his trial counsel's opening and closing statements amounted to a vicarious admission that petitioner was guilty. Although petitioner asserts (Pet. 34) that this is an important question of first impression, the court of appeals merely applied the principles of Strickland v. Washington, supra, to the particular facts of this case. The lower court's conclusion that petitioner received constitutionally adequate representation is correct and warrants no further review. To prevail on his ineffective assistance claim, petitioner must show that his trial counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 688, 694. In deciding ineffective assistance questions, the Court recognized that defense counsel must have "wide latitude * * * in making tactical decisions" (id. at 689), that "(j)udicial scrutiny of counsel's performance must be highly deferential" (ibid.), and that courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance(,) * * * (and) that, under the circumstances, the challenged action 'might be considered sound trial strategy,'" ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Petitioner's trial counsel was faced with a strong government case against his client, including audiotapes of conversations and an incriminating videotape of petitioner accepting a $12,000 payment for cocaine. The government's evidence showed that petitioner had discussed the purchase of a quarter pound of cocaine with an undercover FBI agent, had accompanied Cabral on a cocaine delivery, and had described himself as in charge of Cabral's drug trafficking operation when Cabral was absent. In the face of this damaging evidence, petitioner's trial counsel reasonably decided not to argue that his client had no involvement in the events underlying the indictment. Instead, counsel's defense strategy was to seek to undermine the government's case by portraying petitioner as a reluctant participant who played only a minimal role, and who knew so little that he lacked the criminal intent necessary to support a conviction. Although this strategy was unsuccessful, it fell within the range of reasonable professional assistance. See generally Shraiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984) (informed strategic decisions, "even if erroneous in retrospect, do not constitute ineffective assistance of counsel"); see also Krist v. Foltz, 804 F.2d 944, 948 (6th Cir. 1986); Cuevas v. Henderson, 801 F.2d 586, 590 (2d Cir. 1986), cert. denied, 480 U.S. 908 (1987). Petitioner contends that his trial counsel raised and then failed to pursue an entrapment defense. Pet. 7-13. Petitioner also contends that his counsel admitted petitioner's guilt. Id. at 13-18, 24-25. Neither contention stands up to scrutiny. Petitioner's counsel, anticipating the government's introduction of the videotape, sought to minimize its impact by arguing that the government had set a "trap" for petitioner, that the informant Crader "deceived" petitioner into coming to his house and picking up money, and that petitioner had been "persuaded" and "overcome." See Pet. App. 55b-56b. Counsel did not say that his client had been "entrapped" as a matter of law, nor did he tell the jury that he would present an entrapment defense. Similarly, petitioner's counsel did not admit that his client was guilty as charged. On the contrary, counsel argued (id. at 145c-147c) that petitioner never showed an awareness that he was accepting payment for drugs, and thus lacked the guilty mind necessary to support a conviction. /2/ Contrary to petitioner's claim (Pet. 18-21), his trial counsel did not implicitly admit petitioner's guilt by referring to his failure to testify. Defense counsel's comments (Pet. App. 154c-155c) were intended to counteract any adverse inference that the jury might have drawn from the fact that petitioner's codefendant took the stand while petitioner did not. Counsel's comments included an express statement that the government had not proved petitioner's guilt beyond a reasonable doubt. Id. at 155c. Petitioner specifically objects (Pet. 19) to his counsel's suggestion that petitioner is a fool. Although this suggestion was not flattering to petitioner, it was consistent with defense counsel's strategy of portraying petitioner as a person who suffered from inflated notions of his own knowledge, competence, and control, but was not a drug trafficker. /3/ Petitioner's contention (Pet. 21-24) that his counsel improperly emphasized his status as court-appointed counsel also is without merit. Trial counsel's initial reference to petitioner's indigence (Pet. App. 49b) was made in the context of counsel's reference to his own purported indigency. Although counsel's attempt at humor may have been lame, the Sixth Amendment does not bar attorneys from using humor in an effort to win sympathy for a defense lawyer and, by extension, for the defendant. Nor was counsel's second reference to petitioner's indigency (id. at 130c) improper. Counsel sought to contrast petitioner's modest circumstances with the "flashy lifestyle(s)" of the "fairly large kingpin drug dealers" whom the government used as informants (see, e.g., id. at 51b-52b, 133c-137c). Reference to petitioner's indigency reinforced that contrast. /4/ Petitioner's ultimate contention (Pet. 32-34), that his trial counsel's performance was prejudicially deficient, is without merit. In Strickland v. Washington, 466 U.S. at 687, this Court held that a finding of such a deficiency "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Here, there is no indication that the trial did not produce a reliable result. Trial counsel's performance fell within the "wide range of professionally competent assistance." Id. at 690. And even if it had not, the quantity and quality of the evidence against petitioner -- including the audiotapes and the videotape of the $12,000 payment -- ensure that the jury's verdict is reliable. Id. at 687. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney FEBRUARY 1991 /1/ The court of appeals also rejected petitioner's contentions that the evidence was insufficient to support the convictions, and that there was a fatal variance between the indictment and the government's proof at trial. Pet. App. 3a-4a. Petitioner does not pursue these arguments in this Court. /2/ Because petitioner's counsel did not tell the jury that he would present an entrapment defense, and did not concede that petitioner was guilty as charged, petitioner is incorrect to rely on cases in which defense counsel promised in the opening statement to present exculpatory evidence and then failed to do so, e.g., Harris v. Reed, 894 F.2d 871, 879 (7th Cir. 1990); Anderson v. Butler, 858 F.2d 16, 19 (1st Cir. 1988), or conceded the defendant's guilt, e.g., Wiley v. Sowders, 647 F.2d 642, 649-650 (6th Cir.), cert. denied, 454 U.S. 1091 (1981). See also Messer v. Kemp, 760 F.2d 1080, 1090 n.6 (11th Cir. 1985), cert. denied, 474 U.S. 1088 (1986) (only complete concession of guilt constitutes ineffective assistance); Francis v. Spraggins, 720 F.2d 1190, 1194 (11th Cir. 1983), cert. denied, 470 U.S. 1059 (1985) (same). Other cases cited by petitioner plainly are inapposite. See, e.g., Lyons v. McCotter, 770 F.2d 529, 534 (5th Cir. 1985) (counsel failed to object to prejudicial and inadmissible evidence), cert. denied, 474 U.S. 1073 (1986); Young v. Zant, 677 F.2d 792, 799 (11th Cir. 1982) (counsel failed to adopt obvious defenses or request pertinent jury instructions). /3/ Petitioner's reliance on Carter v. Kentucky, 450 U.S. 288, 305 (1981), is unwarranted. There the Court held that "a state trial judge has the constitutional obligation, upon proper request (for a prophylactic instruction), to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify." Here, defense counsel's own comments were to that effect. Similarly, in United States v. Harbin, 601 F.2d 773, 777 (5th Cir.), cert. denied, 444 U.S. 954 (1979), a prosecutor's comment on a defendant's failure to testify was cured by a prophylactic instruction. /4/ Contrary to petitioner's contention (Pet. 22-23), Goodwin v. Balkcom, 684 F.2d 794, 805-806 (11th Cir. 1982), cert. denied, 460 U.S. 1098 (1983), does not support his position. Although the court in Goodwin found counsel's reference to his court-appointed status objectionable as a manifestation of his general attitude towards his client, the case turned on counsel's failure to conduct a thorough pretrial investigation and to challenge the composition of the grand jury. See 684 F.2d at 820. In addition, petitioner misreads Thompson v. Wainwright, 787 F.2d 1447, 1454-1456 (11th Cir. 1986), cert. denied, 481 U.S. 1042 (1987). There the court observed that counsel's references to his court-appointed status in closing argument were not grounds for reversal of a conviction because the references were part of counsel's effort to win sympathy for his client and counsel did not disassociate himself from the client.