Rehearing and Rehearing In Banc Denied July 12, 1991.
HARLINGTON WOOD, Jr., Circuit Judge.
After a one-day bench trial, Segun Ashimi was found guilty of two counts of possession with intent to distribute a controlled substance. See 21 U.S.C. § 841(a)(1). On direct appeal he challenges only one aspect of his conviction — the pretrial performance of his trial counsel. We cannot conclude on this record, however, that Ashimi was deprived of his sixth amendment right to effective legal assistance. We therefore affirm.
Ashimi was charged in a two-count indictment filed on September 14, 1989.
During the next six days, the record indicates that Ashimi's counsel did not initiate any formal discovery as to the government's case. It does not disclose (with the exception of an incident that we will reach momentarily) the extent, if any, of informal discovery that may have been sought from the United States Attorney's office. Nor does the record indicate the extent, if any, of attempts to procure information from
September 25 arrived and the one-day trial proved true to expectations. The government presented three witnesses. The first, Officer Holliday, testified that on April 13, 1989, he travelled to a Dominick's parking lot for the purpose of effectuating an undercover narcotics purchase. He was accompanied by a confidential informant, identified only as "Tucson," who had prearranged a meeting with a third man. When this third man (who Holliday identified as Ashimi) arrived in a red Toyota Celica convertible with a black top, the informant introduced the man as Ashimi and then walked away. Holliday got into Ashimi's car and exchanged $3300 for a clear plastic bag containing a brown rocky substance. After an exchange of telephone pager numbers, Holliday got out of the car and Ashimi departed. Holliday and the informant then parted company after speaking momentarily.
Officer Holliday also testified that he contacted Ashimi on May 3, 1989, and discussed the possibility of a second narcotics purchase. Another meeting, this time not involving Tucson, was arranged at the Dominick's parking lot on March 4, 1989, and Ashimi again arrived in a red Toyota Celica convertible with a black top. Holliday got into Ashimi's car and exchanged $3800 for a clear plastic bag containing a brown lumpy powdery substance. Both this substance and the substance purchased on April 13 ultimately tested positive for heroin.
After several unsuccessful calls to Ashimi's pager, Holliday was able to schedule a third meeting at the Dominick's parking lot for August 18, 1989. Ashimi had initially protested, explaining that he was no longer in the business of selling heroin, but later agreed to try to locate another individual to procure the heroin. Ashimi arrived at the scheduled time, once again in a red Toyota Celica convertible with a black top, but was unaccompanied. Holliday gave a prearranged signal and Ashimi was arrested.
When Seiden cross-examined Holliday, he brought out the fact that Tucson was compensated for his services. On recross the following colloquy occurred:
The government's second witness, Officer Montgomery, testified that he was assigned to set up surveillance at the Dominick's parking lot on both April 13, 1989, and May 4, 1989. He corroborated Holliday's testimony to the extent his vantage point allowed and also identified Ashimi as the driver of the Toyota.
The government's third witness, Special Agent Mark Hunter, testified as to events on August 18. He stated that an inventory search of Ashimi's Toyota produced a container disguised as a car battery. He also testified as to a subsequent search of Ashimi's apartment, which revealed $3900, a false beer can with a hollow interior, and a Nigerian passport. Neither the search of Ashimi's person, nor the search of the Toyota, nor the search of the apartment produced additional quantities of controlled substances.
The defense called only two witnesses. The first, Agent Hunter, testified that the passport found in Ashimi's apartment contained the defendant's photo but was in the name of Olsegun Bolaji Lasisi. Ashimi also testified in his own behalf.
Ashimi, a Nigerian citizen, recounted the story of a prior drug arrest in the United
By using the passport, Ashimi obtained visas by which to visit the United States, including a "multiple visa"
Ashimi's testimony about the passport indicates that the document was stamped "Admitted" next to the date March 13, 1989. Ashimi also testified that the document was stamped on April 4, 1989, and that this stamp indicated his arrival in Nigeria. Ashimi then pointed out that the document was stamped "Admitted" next to the date August 12, 1989, and testified that this stamp indicated his subsequent return to the United States. After the passport was admitted into evidence, further references on the record indicate that the passport also contained stamps revealing that the holder left Nigeria in August 1987, September 1987, and November 1988 but did not contain corresponding indications of entry.
Ashimi explained his presence at Dominick's on August 18 by reference to his relationship with Tucson, who he had first met in 1985. Ashimi testified that Tucson borrowed a sum of money in March 1989
During closing arguments, Ashimi's counsel once again raised the matter of Tucson:
The court thereafter determined that the passport stamps could be explained away, that the government's evidence was credible, and that Ashimi's testimony was not credible. It found Ashimi guilty on both counts.
After trial, Ashimi's counsel filed an initial post-trial motion on October 5, 1989, and on October 23 filed a "Supplement and Appendex [sic] to Post Trial Motion" containing documents offered to support the proposition that Ashimi was not in the country during the time in question. These documents included: (1) an airline ticket issued on April 11, 1989, in the name of Segun Ashimi for travel within Nigeria on Nigeria Airways; (2) a bill to Ashimi for lodging for April 11-17, 1989, from the Hamdale Hotel Kadema; (3) a contract entered into by Ashimi in Nigeria on May 10, 1989; and (4) a receipt, dated May 19, 1989, for rent received from Ashimi for housing in Nigeria during the period from May through August 1989 (the parties refer to these as the "Nigerian documents"). The district court rejected this evidence because the motion offered no explanation for failing to produce the documents at trial and because the documents did not contradict the testimony of the government's witnesses.
Ashimi initially attempts to remove his appeal from the standard effective assistance analysis by arguing that "[t]he impermissible pitting of [his] concurrent sixth amendment rights to a speedy trial and effective assistance of counsel resulted in a tainted trial." Ashimi's arraignment, we are told, presented a "Hobson's choice." If Ashimi took advantage of his right to a "speedy" trial (which he defines as the ability to waive 18 U.S.C. § 3161(c)(2) and proceed to trial in less than thirty days), then his counsel would be unable to conduct adequate pretrial investigation. The extra time required for adequate investigation, on the other hand, could come only at the expense of Ashimi's right to a "speedy" trial and his continued detention during that extended period.
Thus, Ashimi maintains that he could not have both effective assistance and a "speedy" trial. One right would have to be foregone in order to achieve the other; here, effective assistance was sacrificed for the sake of a "speedy" trial. This choice, he now
Even if we accept as true Ashimi's claim that he actually waived the thirty-day requirement of section 3161(c)(2),
We are also unable to accept Ashimi's assumption that the right to a speedy trial and the right to effective assistance are mutually exclusive. We do not deny that adequate pretrial investigation takes some time and thereby raises the possibility that the trial date might be delayed. This delay, however, merely results in a trial that is less speedy. It does not preclude the possibility that the trial can satisfy the sixth amendment (which, after all, guarantees only a speedy trial, not the speedier or the speediest trial). Accordingly, we analyze Ashimi's claims under the now-familiar test laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
No one disputes the proposition that adequate pretrial investigation is essential to the proper representation of a criminal defendant. The challenge, of course, is to determine how much investigation is adequate. And that determination, like so many other decisions that an attorney must make, is a matter of professional judgment. United States v. Berkowitz, 927 F.2d 1376, 1382 (7th Cir.1991).
In applying Strickland, therefore, we must resist a natural temptation to become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir.1990). It is not our task to "call the plays" as we think they should have been called. Id. On the contrary, we must seek to "evaluate the conduct from counsel's perspective at the time," Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, and "must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. That presumption may be overcome, but only by a showing that: (1) the performance of Ashimi's trial counsel fell below an objective standard of reasonableness; and (2) this performance prejudiced Ashimi's defense. See United States v. Muehlbauer, 892 F.2d 664, 668 (7th Cir.1990); see also Strickland, 466 U.S. at 690, 694, 104 S.Ct. at 2066, 2068.
To complicate matters, Ashimi makes his claim on direct appeal and, therefore, without benefit of a hearing on this issue. At the very least, then, he faces even more of an uphill fight. As a court of appeals does not hear evidence, our only source of information is the trial record. "[E]very indulgence will be given to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, flawed only in hindsight." United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir.1991); see also Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
Ashimi nevertheless urges a resolution of his claim,
We disagree. To begin, Ashimi's characterization of pretrial investigation is, at best, overly pessimistic. Granted, no formal discovery motions appear in the record, and the assistant United States attorney stated, without contradiction, that Ashimi's trial counsel had never asked for either Tucson's identity or his whereabouts. That is all, however, that the record discloses with respect to pretrial discovery. The record does not speak to the extent, if any, of informal discovery that Seiden may have sought from the United States Attorney's office,
But even if true, assertions of inadequate investigation cannot satisfy the Strickland test unless we can also conclude that the defendant was prejudiced. In order to make that determination, however, we must know what the attorney would have discovered after "adequate" investigation.
As to the Nigerian documents, we cannot say that Ashimi has established prejudice — i.e., that "there is a reasonable probability that, but for counsel's ... [failure to produce the documents at trial], the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Even if we take these documents at face value (as opposed to the seemingly more appropriate category of hearsay with no visible indicia of reliability) and assume that they would have been available for trial (although there is no evidence in the record to that effect),
All that remains is Seiden's failure to ask the government about Tucson. Had Tucson been identified and called as a witness, Ashimi argues only that the testimony would have provided corroboration for and "fleshed out" the story about the loan.
In light of the manner in which Ashimi's argument is presented, the suggested pretrial
Under whatever framework, however, evidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit.
This inability derives from our failure to understand how the touted testimony could have affected the outcome of Ashimi's trial. Tucson's corroboration of the jewelry story might have lent some credence to Ashimi's explanation of how he came to be at the Dominick's parking lot on August 18, but in that sense it is merely cumulative, Weaver, 882 F.2d at 1139, and, in any event, leaves unshaken the foundation of the government's case — the face-to-face narcotics transactions on April 13 and May 4.
With his client detained pending trial, Ashimi's counsel pushed for quick resolution and relied heavily on the dates stamped in the Nigerian passport. In hindsight, that reliance may have been misplaced — the district court explained away the passport stamps and Ashimi was convicted. We cannot conclude, however, that this reliance made counsel's assistance ineffective, especially in light of Ashimi's inability on this record to demonstrate any prejudice from that reliance. Had Ashimi's counsel tried this case to the court the way Ashimi now says it should have been done,
In addition, section 3161(c)(2) by its terms requires the defendant, not the defendant's attorney, to execute the waiver and also requires that the consent must be in writing, neither of which appears to have occurred here. The parties have not raised these issues, however, and we find it unnecessary to address them at this time.
It is certainly important, although not conclusive, that the judge making this observation also served as the finder of fact in Ashimi's trial.