Appeal from the District Court of the Virgin Islands, Division of St. Thomas and St. John, Crim. No. 77-00169 [§ 2255]
Appellant Carmelo Ramos-Lopez appeals from the order of the district court denying his motion under 28 U.S.C. § 2255 (1982) challenging the legality of this conviction in 1979 on two counts of distributing heroin. See 21 U.S.C. § 841(a) (1982).*fn1 Appellant asserted in his motion that he was denied effective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982).
In this appeal, appellant argues that the district court erred by failing to hold an evidentiary hearing on each of the three points raised by appellant's motions. Our standard of review is whether the district court abused its discretion. Government of the Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir. 1984).
First, appellant contends that his attorney failed to object to crucial evidence that the government introduced in rebuttal.
The government's case in chief against appellant was based on the testimony of a paid informant who, on two occasions, under the supervision of federal narcotics agents purchased heroin from appellant. One of the agents, under cross-examination during the government's case, stated that prior to the first drug sale the body search of the informant included feeling "around his belt, in different areas, under armpits; a regular search." The informer was also searched before the second sale.
Appellant testified in his own defense that he had not sold heroin to the informant but rather that on each occasion the informant had come to his house, asked to use a syringe, pulled heroin from a zippered compartment in his own belt, wrapped the remaining heroin in aluminum foil, and then put the package in his pocket. The government, in rebuttal, recalled as a witness the narcotics agent handling the case. The agent testified that on the date of the first sale the informant was not wearing a belt and that on the second date the informant was wearing a plain leather belt.
Appellant in his motion asserts that, despite a sequestration order, the narcotics agent was in the courtroom during appellant's testimony and yet appellant's counsel failed to object to the agent's testifying in rebuttal. Appellant asserts that this testimony was crucial to his conviction because it bolstered the credibility of the informant and destroyed his own because it negated his version with respect to the belts the informer was wearing. The district court accepted for decision purposes the claim that the agent was in the court room during appellant's testimony. It ruled, however, that on the basis of the entire record it could ascertain no harm stemming from counsel's failure to object to the rebuttal testimony.
Appellant's argument reduces itself to the contention that the agent was able to tailor his rebuttal testimony on the basis of having heard the testimony of the appellant.
We note at the outset that appellant does not attack the government's case in chief which clearly established that the informer was searched on both occasions. The appellant only challenges as being prejudicial the agent's testimony in rebuttal that one one of the occasions the informant was not wearing a belt and on the other occasion was wearing a plain leather belt. But this evidence came after the government's "pat-down" evidence in its case in chief. Thus, the issue of possession of drugs by the informer was substantially in issue at the close of appellant's case and thus before the rebuttal testimony was presented. To the extent the agent refined his testimony on rebuttal, although somewhat prejudicial, he did not unduly distort the fundamental credibility issue.
Our scrutiny of counsel's performance is highly deferential. Strickland v. Washington, 466 U.S. 668, 689 (1984). It is strongly presumed that counsel's conduct constituted effective assistance. Id. Furthermore, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Given the standard of review of counsel's performance imposed by Strickland, the discretion vested in the trial court as to the admissibility of evidence even following a violation of a sequestration order, see Pickel v. United States, 746 F.2d 176, 182 (3d Cir. 1984), and our review of the entire record, we conclude that the failure of appellant's counsel to object to the admissibility of the agent's testimony on rebuttal, to seek judicial comment to the jury on the matter, or to have pointed this out himself was not so egregious that the result would have been different but for the errors. Thus, the failure of the district court to hold an evidentiary hearing on this record did not constitute an abuse of discretion.
Second, appellant alleges that on the day of his trial his counsel informed him that two people who were listed as witnesses for appellant were no longer in the Virgin Islands and that it would therefore be of no use to subpoena them. Appellant claims that these two potential witnesses were in the Virgin Islands throughout the relevant period. His attorney's failure to call these witnesses, appellant claims, deprived him of competent legal representation. The district court dismissed this contention, noting that appellant offered no proof of the testimony these ...