USCA1 Opinion

April 7, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2087
CHARLES D. LEMA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________

ERRATA SHEET
The opinion
follows:

of this

Court issued March

Page 9, line 11 of text, should

598 . . .

read:

3, 1993,

is amended

DiSalvo, 726 F. Supp. 5

_______

March 3, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 92-2087
CHARLES D. LEMA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Hector M. Laffitte,* U.S. District Judge]
___________________

____________________
Before
Torruella and Cyr, Circuit Judges,
______________
and Bownes, Senior Circuit Judge.
____________________

____________________

Christopher W. Dilworth for appellant.

_______________________
F. Mark Terison, Assistant United States Attorney, with w
________________
Richard S. Cohen, United States Attorney, was on brief for appellee
________________

____________________

____________________
*Of the District of Puerto Rico, sitting by designation.

March 3, 1993
____________________

CYR, Circuit Judge.

CYR, Circuit Judge.
______________

Charles Donald Lema,

convicted of

vari

drug charges, appeals the dismissal of his petition for postconvict

relief

under 28 U.S.C.

ineffective, his

2255.

trial was

Lema asserts that

his attorney

tainted by prosecutorial

misconduct,

his sentencing proceeding was infected by factual error.

We affirm

I
I
BACKGROUND
BACKGROUND
__________
In

1989,

indicted

following a

federal

undercover

operation,

Lema

on two counts of conspiring with Raymond Souza to distrib

cocaine to

Alex Hood, a DEA

informant, and on two

aiding and abetting Souza's cocaine distributions.

related counts

The first brace

counts charged that on December 15, 1988, Lema aided and abetted So

in the sale of one kilogram of cocaine to Hood [the "December trans

tion"].
Lema,

The second brace of counts charged that on

Souza, and

kilograms of
Bansmer, as

a third

man, Alberto

cocaine to Hood
part of

and another

a ten-kilogram

[the

"January transaction"].

Souza

took the most active

January 25, 19

Monsalve-Zapata, sold
undercover agent,

transaction negotiated by

The government
role in arranging

does not

th

Mich

So

dispute t

and consummating th

transactions; however, it suggests that Lema's culpability was reas

ably inferable from his presence, with Souza, throughout both trans

tions,

and from certain telltale

undercover officers,

statements made in

indicating Lema's

the presence

knowing participation in

distribution scheme.2
Lema pleaded not guilty
charged

his

Esquire.

to all charges.

court-appointed

Lema

met

with

counsel

and

Pomeroy several

expressed his desire to testify

at trial.3

Prior to trial, he d
retained
times,

David
and

Pomer

emphatica

In furtherance of

Lem

stated desire to testify, Pomeroy filed a motion in limine to precl

cross-examination about

Lema's prior

criminal conviction for

state transportation of

stolen property.

The motion

int

was denied

August 7, 1991.
Trial began the
though Lema

next day.

may have been at

At

trial, the defense contended

the scene of the

drug transactions,

neither actively participated in, nor was he aware of, Souza's coca
dealings

on those occasions.

The government's case was based larg

on the testimony of Hood and Bansmer, who testified to Lema's prese

at the

scene of the drug

was that it would have been

exchanges.

The purport

of their testim

virtually impossible for Lema not to h

known that Souza was conducting drug

transactions on those occasio

At the close of the government's case, Lema conferred with Pomeroy

____________________

2For a fuller description of Lema's involvement in these transactio

and his subsequent trial, see United States v. Lema, 909 F.2d 561 (
_____________
____
Cir. 1990).

3Lema also recommended that Pomeroy call three witnesses to corro

rate his story: Souza, Ann Marie Burke, and Patricia Lyons.
infra at pp. 12-17.
_____
3

again expressed his desire

advised Lema

to testify.

the sympathy

conviction, would l

of the jury, and therefore would be unwise.

ensued,

witnessed

Pomeroy

then recalled one

December

voice on tape.
At closing

by

courtroom

observers; Lema

witness, a DEA agent

drug transaction

in li

Lema's testimony would exp

cross-examination concerning his prior

record the

less emphatica

that the government's case was weak and that

of the denial of the motion in limine

him to

Pomeroy no

but failed

did

An argum
not

testi

who had attempted

to capture

Lem

The defense rested.

argument, the prosecutor

little during the course of

acknowledged that Lema

the two drug transactions, but

urged

jury

to infer Lema's knowledge

intent to participate in
that

and remained silent

the f

during both trans

Lema was convicted on all counts.

Thereafter, Lema, acting pro se, moved

___ __
Pomeroy of ineffective assistance.
drew,

dealings, and Lem

the drug distribution scheme, from

Lema had been present

tions.

of Souza's drug

and successor counsel was

tencing.

for a new trial,

accus

At Lema's request, Pomeroy

appointed to represent

wi

Lema at s

The district court dismissed Lema's motion for new trial

untimely.

The

court sentenced

Lema to

135 months

affirmed Lema's conviction on direct appeal.

Undaunted,

Lema moved

under 28 U.S.C.

2255.

for

vacation

in prison.

See note 1 supra.

___
_____

of sentence

and new

The district court summarily denied

tr

four

Lema's habeas claims but reserved judgment on the fifth, which alle
that

Pomeroy prevented

him from

testifying.

After

an evidenti

hearing,

magistrate-judge recommended

assistance claim.

The

denial

district court thereupon

2255 petition in its entirety.

of the

ineffect

denied the

sect

II
II
DISCUSSION
DISCUSSION
__________
This appeal has two
counsel,

parts:

asserting ineffective

supplemental pro se brief,

___ __
and sentencing error.
A.
A.

formal appeal, filed by

assistance

by trial

appell

counsel; and

raising claims of prosecutorial miscond

We address each in turn.

Ineffective Assistance of Counsel.

Ineffective Assistance of Counsel.
_________________________________
The Sixth

Amendment guarantees criminal

effective assistance of
668, 687 (1984).
dant a

counsel.

performance standard is that

or a

302, 309-10 (1st Cir.

does not guarantee a def

successful defense; rather,

United States v. Natanel, 938 F

_____________
_______

1991) (citation omitted), cert. denied,

_____ ______

112

A petitioner bears a very heavy burden on an ineff

tive assistance claim.

lenged] conduct

Washington, 466 U
__________

of reasonably effective assistance un

the circumstances then obtaining."

Ct. 986 (1992).

Strickland v.
__________

But "[t]he Constitution

letter-perfect defense

defendants the right

The

habeas court must

from counsel's perspective at

"evaluate the

[ch

the time," Strickla

________

466 U.S. at 689, considering "the totality of the circumstances bef

it," Perron v.
______

Perrin, 742 F.2d 669, 673 (1st

______

Cir. 1984), and mak

"every effort . . . to eliminate the distorting effects of hindsigh

5

Strickland, 466
__________

U.S. at 689.

It "must indulge a

strong presumpt

that counsel's conduct falls within a wide range of reasonable prof

sional assistance; that
tion that, under

is, the defendant must

the circumstances, the

considered sound trial strategy.'"

the

court must not only

deficient, but that it

in the

fairness of the result.

challenged action 'might

Id. (citation omitted).

___

find that defense

see id. at 693-94,

___ ___

Lockhart
________

Moreov

counsel's performance

was so prejudicial as to

outcome of the trial,

overcome the presu

undermine confide

and the fundamen

v. Fretwell, 61 U.S.L.W. 4155 (J

________

25, 1993).
The

burden

assistance by

is

on

the

petitioner

a preponderance of the

to

demonstrate

evidence.

See Myatt
___ _____

States, 875 F.2d 8, 11 (1st Cir. 1989); United States

______
_____________
F.2d 952, 954 (1st Cir.), cert. denied,
_____ ______

ineffect

v. Uni
___

v. DiCarlo,
_______

439 U.S. 834 (1978).

Wher

petition

"(1) is

inadequate on

its face,

or (2)

although facia

adequate, is conclusively refuted as to the alleged facts by the fi

and records of the
is appropriate.

case," DiCarlo, 575 F.2d at 954, summary dismis

_______
_______ ______

Moreover, "even a section 2255 petition predicated

specific assertions of fact

dismissed

allegedly supported in the record

summarily by the district court," Barrett v. United Stat

_______
___________

965 F.2d 1184, 1186 (1st Cir. 1992), provided "the

. . . 'test'
and

may

district court

the . . . allegations by assuming arguendo

________

their tru

then assessing their sufficiency in light of the relevant cons

tutional standards and the record."

Id., quoting Moran v.

___
_____

Hogan,
_____

F.2d

1220, 1222 (1st Cir. 1974); see

___

F.2d 75, 77 (1st Cir. 1984).

1
1

also United States v. Butt,

____ _____________
____

The Alleged Prevention of Lema's Testimony.

The Alleged Prevention of Lema's Testimony.
__________________________________________
Pomeroy

prevailed

in

the

advisable for Lema to testify.

in effect prevented Lema from
_________
assistance of counsel,

argument over

whether

it

would

Lema now claims that Pomeroy's adv

testifying, and amounted to ineffect

see United States v. Teague,

___ ______________
______

953 F.2d

15

1532, 1534 (11th Cir.) (en banc), cert. denied, 113 S. Ct. 127 (199
_____ ______
The government

responds that Lema knowingly

and voluntarily accep

Pomeroy's advice, and must, in effect, live with the consequences.

a.The Right to Testify.
a.The Right to Testify.
____________________
We

assume, without

testify in one's
waived
ness

deciding, that

the constitutional

defense is "fundamental," and,

right

as such, may not

by counsel on the defendant's behalf, regardless of the sou

of any strategic or tactical considerations.4

It is unnecess

____________________

4The right to testify in one's defense has been recognized as "fun

mental" by the Supreme Court in dictum on several occasions. See R
___ _
v. Arkansas, 483 U.S. 44, 53 n.10 (1987) ("[o]n numerous occasions
________
Court has proceeded on the premise that the right to testify on on
own behalf in defense to a criminal charge is a fundamental consti
tional right"); id. at 52 (finding right "[e]ven more fundamental t
___
personal defense than the right of self-representation"); see a
___ _
Jones v. Barnes, 463 U.S. 745, 751 (1983) ("the accused has
_____
______
ultimate authority to make certain fundamental decisions regarding
case, as to whether to plead guilty, waive a jury, testify in his
her own behalf, or take an appeal"); Wainwright v. Sykes, 433 U.S.
__________
_____
93 n.1 (1977) (Burger, C.J., concurring) ("[o]nly such basic decisi

as whether to plead guilty, waive a jury, or testify in one's

behalf are ultimately for the accused to make"); cf. Nix v. Whitesi
___ ___
_______
7

to address the

underlying issue, as we conclude that

of counsel, knowingly and

Lema, on adv

voluntarily, if reluctantly, refrained f

testifying in his own defense.

Unaccompanied

by coercion,

legal advice

concerning exercise

the right to testify infringes no right, see Teague, 953 F.2d at 15

___ ______
35; Rogers-Bey, 896 F.2d
__________
sel's ethical

at 283, but simply discharges

responsibility

to

the accused.

See
___

defense co
ABA

Standa

Relating to the Administration of Criminal Justice, Compilation p.

(1974) ("the decisions which are to
consultation with counsel
own

behalf.").

and overt

including:

(1)

right to

are . . . (iii) whether

The difficult

counseling

be made by the accused after f

line courts must

coercion is

guided by

whether the defendant

to testify in

draw between earn

several consideratio

knew about his

constitutio

testify, and if not, whether he was informed by counsel,

____________________

475 U.S. 157, 164 (1986) ("[a]lthough this Court has never explici
held that a criminal defendant has a due process right to testify
his own behalf . . . the right has long been assumed"). Virtually
circuits which have considered the issue since 1987 have reached
same conclusion.
See, e.g., Teague, 953 F.2d at 1531-32; Uni
___
____ ______
___
States v. McMeans, 927 F.2d 162 (4th Cir. 1991); Rogers-Bey v. La
______
_______
__________
__
896 F.2d 279 (7th Cir. 1990), cert. denied, 111 S. Ct. 93 (199
_____ ______
United States v. Martinez, 883 F.2d 750, 754 (9th Cir. 1989); vaca
_____________
________
____
on other grounds, 928 F.2d 1470 (9th Cir. 1991); United States
__ _____ _______
______________
Bernloehr, 833 F.2d 749 (8th Cir. 1987); United States v. Curtis,
_________
_____________
______
F.2d 1070, 1076 (7th Cir. 1984), cert. denied, 475 U.S. 1064 (198
_____ ______
United States v. Bifield, 702 F.2d 342 (2d Cir.), cert. denied,
_____________
_______
_____ ______
U.S. 931 (1983); see generally Marjorie Rifkin, The Criminal Def
___ _________
_________________
dant's Right to Testify:
The Right to Be Seen but not Heard,
__________________________________________________________________
Colum. Human Rts. L. Rev. 253 (1989). Although this court has ne
formally considered the issue, Judge Reinhardt, sitting by desig
tion, described the testimonial right as "fundamental" in a concurr
opinion in United States v. Nivica, 887 F.2d 1110, 1128 (1st C
______________
______
1989), cert. denied, 494 U.S. 1005 (1990).
_____ ______
8

Teague, 953 F.2d at 1533 ("defense counsel bears the primary respon

______
bility for

advising the defendant of

testify");

see also
___ ____

waiver of his
tional

Bernloehr,
_________

833 F.2d

at

right to testify,

like his

waiver of other

rights, must

competence and

be

made voluntarily

deprivation

of

consequences

defendan

consti

knowingly"); (2)

tactical advice, i.
__

of the right

Poe, 352 F.2d 639, 640-41 (D.C.

___
fair trial

or not

defendant with sufficient information

a "meaningful" voluntary waiver

United States v.
_____________

751 ("the

and

soundness of defense counsel's

whether counsel presents the

permit

his right to testify

where

of taking the stand);

Supp. 596, 598 (E.D. Pa. 1989)

counsel

to testify,

Cir. 1965) (find

misinformed defendant

United States v.
_____________

DiSalvo, 726
_______

(holding that defendant had not wai

testimonial right where counsel failed to ensure defendant's knowle

of

his right to testify, or otherwise to provide relevant informat

that

would enable a meaningful decision); and (3) any intimidation

threatened retaliation by counsel relating to the defendant's testi

nial decision.
(11th

e.g., Nichols
____ _______

v. Butler,
______

953 F.2d 1550,

Cir. 1992) (finding coercion where counsel, in effort to coe

defendant to
trial).

See,
___

waive testimonial

With these

right, threatened to

considerations in mind, we inquire

roy's vigorous expression of views

into waiving the right to testify.
b
b
The Evidence of Coercion.

withdraw dur

whether Po

during their argument coerced L

The Evidence of Coercion.

________________________

The
initial

district

court

concluded

resistance, knowingly

that

Lema,

and voluntarily

notwithstanding s
acceded

to Pomero

advice and waived his right to testify, consistent with the articul
ed

trial

strategy.

attempted

to coerce

overborne

Lema's will.

"clear error."

See
___

The court
Lema's
We

found no

evidence that

testimonial decision,
review these district

nor

Pomeroy
that he

court findings

Ouimette v. Moran, 942 F.2d 1, 5

________
_____

(1st Cir. 19

(clear error review of "mixed questions" in habeas corpus context).

At the

evidentiary

hearing, Lema

conceded

that

he had

arg

vigorously, but that he ultimately "agreed" with Pomeroy that it wo

be unwise to testify:
Q
But . . . you agreed with Pomeroy not to testify.

A
Yes, I agreed after

Q
And you

on his advice.
:

agreed after

weighing these

facts that

I've just

over with you, facts that Pomeroy could deliver a dynamite cl

ing argument, right?
. . . . And that played and weighed
your decision not to testify?
A
Yes, that played a role in it, yes.

Q
:
And another thing that played a role was that Pomeroy was
experienced criminal lawyer who knew what he was doing, right?
A: Yes.
We

think

Lema's admitted

agreement

reluctant, provided sufficient support

that Lema was not "coerced."

with

Pomeroy's advice,

alb

for the district court find

Other evidence corroborates the distr

10

court finding.
Pomeroy
fy,"

For example, in

an August 16,

1989 letter to

recalls, among other things, that Lema "elected not to tes

_______

after considering the effect

of the district

court's denial

the motion in limine.

More generally, Lema was neither

the

system nor

American justice

testify in his own defense.

Lema at first
with

Le

insisted on

Pomeroy, fairly may

unaware

that he

a newcomer

had the

right

Indeed, the apparent vehemence with wh

testifying, as evidenced
have reflected Lema's

by his

argum

clear awareness t

the ultimate decision was his to make.

The district court supporta

found that Lema was not coerced into waiving the right to testify.5
2.The Failure to Call Proposed Defense Witnesses.
2.The Failure to Call Proposed Defense Witnesses.
______________________________________________
Lema asserts,
claim, that
tial

as a second

basis for the "ineffective assistan

Pomeroy neither interviewed, nor

defense witnesses proposed by

presented, three pot

Lema, thereby depriving

"viable defense," see United States v. Porter, 924 F.2d

___ _____________
______

him o

395, 397 (

____________________

5As the factual underpinnings for Lema's ineffective assistance cl

are inadequate, we need not consider whether denial of a defendan
right to testify is ever subject to "harmless-error" analys
Compare, e.g., Ortega v. O'Leary, 843 F.2d 258, 262 (7th Cir.), ce
_______ ____ ______
_______
__
denied, 488 U.S. 841 (1988) (applying harmless-error analysis
______
denial of defendant's right to testify); with, e.g., Martinez v. Yl
____ ____ ________
__
951 F.2d 1153, 1157 (9th Cir. 1991) ("[a]s a general matter, it
only the most extraordinary of trials in which a denial of the def
dant's right to testify can be said to be harmless beyond a reasona
doubt"); United States v. Butts, 630 F. Supp. 1145, 1148 (D. Me. 19
_____________
_____
("a defendant's right to testify in a criminal proceeding against
[is] so basic to a fair trial that its infraction can never be trea
as a harmless error"); Wright v. Estelle, 572 F.2d 1071, 1084 (
______
_______
Cir.) (Godbold, J., dissenting) (rejecting harmless-error analysis
context of testimonial right), cert. denied, 439 U.S. 1004 (1978).
_____ ______
11

Cir. 1991).6

Lema argues

evidence tending
he agreed to
in the

that these witnesses

to show that he was

provi

unaware of Souza's purpose w

drive north with Souza on the

monitored drug

could have

transactions.

The

two trips that culmina

district court

summar

dismissed the claim, apparently on the ground that Lema's section 2

motion failed conclusively to "overcome the presumption that . . .
challenged

action

'might

be

Strickland, 466 U.S. at 689.

__________
The

decision

whether to

always strategic, requiring a

the

considered

sound

trial

strategy

We agree.
call

particular

witness is

balancing of the benefits and

alm

risks

anticipated testimony.

The witness may not testify as anticip

ed, see Porter, 924 F.2d at

___ ______

397, or the witness's demeanor or char

ter
of

may impress the jury unfavorably and taint the jury's percepti
the accused;

jurors

to draw

or

the testimony,

inferences

United States v. Tajeddini,

______________
_________
call as

a witness a person

though

unfavorable to
945 F.2d 458,

sympathetic, may
the

accused, see,
___

466 (1st Cir.

other than Parvin to

pro

e.
__

1991) (

testify to Parvi

____________________

6The government argues that Lema's petition was conclusory in t

regard, i.e., that it failed to name the three putative witness
____
See United States v. Michaud, 925 F.2d 37, 39 (1st Cir. 1991)
___ ______________
_______

motion for post-judgment relief, "'conclusory allegations unsuppor

by specifics are insufficient to require a court to grant an evid
tiary hearing'") (quoting Hopkinson v. Shillinger, 866 F.2d 1185, 1
_________
__________
(10th Cir. 1989)). We do not agree. Lema's affidavit, attached
and referenced in the section 2255 motion, made clear the identit
___ __________ __
of the witnesses and the nature of their anticipated testimony. Gi
Lema's pro se status, the reference by attachment, though perh
___ __
technically deficient, was sufficient to alert the court and
government to the specific basis of Lema's claim.
Cf. Haines
___ ______
Kerner, 404 U.S. 519, 520-21 (1972) (holding pro se complaints
______
___ __
less stringent standards than pleadings drafted by lawyers").
12

health

might emphasize

testimony would have

S. Ct. 3009 (1992).

Parvin's

absence and

been adverse to petitioner"), cert.

_____

boat" may warrant a

presentation
Johnson
_______

denied,
______

trial, the risk of "ro

decision by trial counsel

of further defense

v. Lockhart, 921
________

government

Parvi

Where the prosecution's case is less than comp

ling, as Pomeroy represented to Lema during

ing the

suggest that

to forego

testimony, even favorable testimo

F.2d 796, 800

(8th Cir.

1990) ("since

has the burden of proving guilt beyond a reasonable dou

it may not be necessary for

the defense to introduce evidence to m

the

constitutional requirement

Natanel,
_______

of

effective

representation");

938 F.2d at 310 ("additional arguments could only impair

client's seemingly secure position . . . .

there is much to be said for such maxims

In litigation, as in li

as 'if it ain't broke, do

fix it,' and 'quit when you're ahead'").

There

is

little

reason

to believe

that

Pomeroy's

failure

present the three witnesses proposed by Lema was anything other tha
tactical decision.
largely

on

The government's

the testimony

of two

case was relatively weak,

witnesses,

one a

ba

paid informa

Reasonably competent trial counsel might well have determined that

best

prospect

witnesses,

for acquittal

rather than

appear to legitimate
the

defense not

lay

in

presenting

discrediting the

additional testimony

the government's case

previously suggested

governmen

which co

or raise questions

by the

ab

government's eviden

Furthermore, the availability of the putative testimony was problem

13

ic at best.7

Finally, Pomeroy was

well aware of the risks in call

Souza,

even assuming

mentioned to Pomeroy

he

was available

that, just prior to

to

testify:

starting out with

the January drug transaction, Lema had said to Souza "I

be involved."

Lema

hims

Souza

don't want

Had Souza testified to this admission, it clearly wo

have invited the reasonable inference that Lema knew in advance of

illegal purpose of the January transaction.8

____________________

7Lema presented no affidavit from Souza, and no credible eviden

that Souza's testimony would have been available.
At the time
Lema's trial, Souza was awaiting sentencing; he therefore retaine
valid Fifth Amendment right against self-incrimination. United Sta
__________
v. Lugg, 892 F.2d 101, 102-03 (D.C. Cir. 1989); cf. United States
____
___ _____________
Zirpolo, 704 F.2d 23, 26 (1st Cir.) (co-defendant retained Fi
_______
Amendment right where prosecutor had agreed to recommend dismiss
but charges had not yet been formally dismissed), cert. denied,
_____ ______
U.S. 822 (1983).
Given the pendency of sentencing proceedings,
will not assume that Souza would have waived his Fifth Amendm
privilege, particularly in support of Lema's version of the events
which would have exposed Souza as the only culpable participant
the person who had recruited an unsuspecting Lema.
Cf. Brien
___ _____
United States, 695 F.2d 10, 16 (1st Cir. 1982) ("given the fact t
_____________
[the codefendant] was then awaiting his own trial, it is hig
doubtful that he would have agreed to testify in any event").

8Another proposed witness, Burke, supposedly was willing to test

that Souza had told her that Lema did not know about the drug dea
and had gone along only "for the ride."
It is highly doubtful t
Burke's hearsay testimony would have been admissible for any purpo
see Fed. R. Evid. 801, absent the testimony of Souza, whose "ava
___
ability" was entirely conjectural. See supra note 6.
___ _____
The testimony of the third individual, Lyons, was tenuous
collateral, and would not have absolved Lema.
Lema contends t
Lyons would have testified that she declined an invitation to accom
ny Souza to Maine just before the January transaction. We are una
to discern any relevance in this testimony.
However, if it w

admissible, and the jury were to infer that Lyons had refused beca
she knew in advance of Souza's illegal purpose, the testimony mi
have tended to undercut Lema's claim of ignorance as well.
14

Lema argues

that these strategic

considerations are entitled

little or no deference, since Pomeroy not only neglected to call th

witnesses but

failed to investigate
___________

Barrett, 965 F.2d

_______

at 1193

their potential testimony.

(citing Strickland,
__________

466 U.S.

at 690)

"'strategic choices made after thorough investigation of law and fa

_____ ________ _____________

relevant to plausible options are virtually unchallengeable'") (emp

sis added);

McCoy
_____

v. Newsome,
_______

"[f]ailure

to

investigate

defense is

an indication

953 F.2d

evidence

1252, 1263

that would

be

of ineffective assistance"),

(11th Cir.)
helpful

to

cert. deni
_____ ____

112 S. Ct. 2283 (1992).

The decision to
to present their

interview potential witnesses, like the

_________

testimony, must

be evaluated in

light of

decis

whate

trial strategy reasonably competent counsel devised in the context

the particular case.

See Wilkins v. Iowa, 957 F.2d 537, 540 (8th C

___ _______
____

1992) ("[a] less than exhaustive investigation is adequate for cons

tutional purposes . . . if reasonable professional judgments justif

limiting
limited
have

its scope").

In

benefits discussed

been

conducting

readily

apparent

an interview

Pomeroy's failure

view of

the obvious

above

tactical

benefits and risks

to experienced

or further

to interview the

trial

investigation

risks

which wo

counsel
we

think t

three proposed witnesses

amount to ineffective assistance in the constitutional sense.

sel

need not chase

informed

wild factual geese

professional

judgment, that
________

when it appears,
a

defense

with

did

"Co

in light

is implausible

insubstantial as a matter of law, or, as here, as a matter of fact

15

of the realities of proof, procedure, and trial tactics," Cepulonis

_________
Ponte, 699 F.2d 573, 575 (1st Cir. 1983) (emphasis added).
_____

16

3
3
The Tape Recordings.
The Tape Recordings.
___________________
The extent
was a major

of Lema's participation in

issue at trial.

the actual drug

exchan

A government agent (Bansmer)

testif

that Lema said nothing during the second (January) drug exchange:
Hood, the informant, testified

that Lema said to Souza, "let's do

deal

implying knowledge

and get

Souza's

going," perhaps

trip.

government's
Lema's

asserts that Pomeroy

tape recordings of the

voice)

Pomeroy did

Lema now

to impeach

of the

purpose

should have

used

incident (which did

Hood's testimony.

Indeed,

not pick

Lema charg

not even attempt to obtain the tapes to learn what was

them.
The district court found that Pomeroy's cross-examination of
showed that Pomeroy was aware
the

decision not to play

of the contents of the tapes,

the tapes at

trial was a

and t

matter of "tr

strategy":
The record reveals that Lema's defense counsel engaged in
extensive cross-examination about the existence of tapes of
the . . . transactions and attempted to establish "that there
were no recordings that backed up the testimony of the government's witnesses." Lema, 909 F.2d at 567. Additionally,
____
it can be reasonably inferred from the form of the questioning that Lema's attorney had informed himself of the contents
of those tapes and decided not to use them at trial since
they were neither exculpatory nor clear. Id. Such tactical
___
decisions are "deemed to be effective assistance."

Opinion at 4 (citing United States

_____________
Cir. 1991)).

v. Tabares, 951 F.2d 405, 409 (

_______

The factual finding that Pomeroy had access to the ta

17

was not clearly

erroneous, and

our own reading

of Pomeroy's

cro

examination of Hood accords with the district court's understanding

While these trial tactics may appear
hindsight,

especially

convictions, the
trial
sional

in

the

grim reflection

reviewing court

strategy was not within

dubious to the petitioner

must be

of

the

persuaded that

interven

the fai

the "wide range

of reasonable prof

assistance" contemplated by Strickland.

__________

We are not persua

that the failure to introduce the tapes was beyond Strickland's pal
__________
4.Other Claims.
4.Other Claims.
____________
The two remaining
brief

claims emphasized in Lema's supplemental pro

___

are without merit.

First, Lema alleges

that the prosecuto

closing

argument included an

testify.

Although

Lema states

California, 380 U.S. 609,

__________
dant's

failure

convinces

us

to

on Lema's

a cognizable claim

claim

violates Fifth
is

Amendment),

unsubstantiated.

prosecutor's comments were

failure

under Griffin
_______

614 (1965) (prosecutor's comment

testify

that the

reveals that the

indirect comment

The

on def
our

rev

transcr

not addressed to

Lem

____________________

9Lema asserts that Pomeroy was "surprised" at trial when Hood (

government's first witness) stated that he had worn a recording dev
during the January transaction. Fairly read, however, we believe
transcript is ambiguous:
it appears that Pomeroy either misund
stood, or failed to recall, Hood's earlier testimony that he had
worn a recorder during a different meeting with Souza.
Moreov
_________
documentary evidence confirms that Pomeroy had access to the ta
prior to trial.
Pomeroy wrote to the prosecutor on March 8, 19
expressing his understanding that "you will have copies of the .
audio recordings for our review sometime next week," and, when L
received Pomeroy's files in fall 1989, the files contained a part
transcript of the tapes.
18

silence

at trial,
__ _____

complicity,

but

merely pointed

out,

as evidence

of

Lem

that Lema was present and remained silent while both d

transactions were carried

out by Souza.

sible and potentially probative.

Such evidence is both adm

See United States v. Ortiz, 966 F

___ _____________
_____

707, 714 (1st Cir. 1992) (defendant's silent presence at drug trans
tion "patently implied
indicated

participation" where surrounding circumstan

knowledge thereof).

The cases Lema cites, United States

_____________

Cox, 752 F.2d 741, 745 (1st Cir. 1985), and United States v. Skandi
___
_____________
______
758

F.2d 43, 45-46 (1st Cir. 1985), are readily distinguishable; b

found prosecutorial misconduct where the Government

consider

how

a defendant

impermissible
setting.10
_______

reference
As

Lema's

"explained"
_________
to

the

certain

asked the jury

evidence, a

defendant's silence

claim misapprehends

in
__

the
___

the prosecutor's

clea

tr
__

sta

ment, we reject it.

Lema's

final claim is

the sentencing

that the

attorney who

represented him

hearing rendered ineffective assistance

by failing

object to the district court's finding that the conspiracy to distr

ute involved eleven kilograms of cocaine.
kilograms of cocaine

changed hands

Lema

while he was

argues that only f

present; the

ot

____________________

10United States v. Buege, 578 F.2d 187 (7th Cir.), cert. denied,
______________
_____
_____ ______
U.S. 871 (1978), is also distinguishable: there the prosecutor,
closing argument, repeatedly used the term "uncontradicted testimon
to refer to testimony which only the defendant was in a position
contradict.
The court found that the prosecutor's references w
"manifestly intended" to call attention to the defendant's failure
testify. Id. at 188. In Lema's case, by contrast, the prosecuto
___
reference to Lema's silence plainly called attention to the def
dant's silence at the scene of the crime.

__ ___ _____ __ ___ _____

19

seven kilograms were part of a deal negotiated by Souza outside Lem

__ _____
presence, and,

in any event, only four

ever accounted for by the police.

The claim is baseless.

The evidence adduced at trial and

fact that Lema was with
would have
were

chargeable

with

all
___

So

distributi

Bello-Per
_________

v. Moreno, 947 F
______

It is immaterial that the police recovered o

combed Lema's

pro se
___ __

error; none merit discussion.

Affirmed.
Affirmed.

Lema and

See United States v.

___ _____________

a portion of the cocaine Souza agreed to deliver.

We have

cocaine exchan

intended

673 (1st Cir. 1992); United States

_____________

7, 9 (1st Cir. 1991).

including

reasonable inference that

negotiated by either conspirator.

977 F.2d 664,

at sentencing

Souza at the scene of both

supported a

coconspirators,

of these seven kilograms w

filings for

Id.
___
other assignments

________

20