After two conspirators pleaded guilty, a jury convicted Armando Rodela-Aguilar (Rodela), Joel Castro-Gaxiola (Castro), and Reyes Martinez-Ruiz (Martinez) of conspiring to distribute, and aiding/abetting possession with intent to distribute, methamphetamine. We affirmed, rejecting claims of insufficient evidence.
United States v. Castro-Gaxiola,
I. The Trial
In mid-February 2005, a reliable confidential informant told Kansas City police that Arturo Navarrete-Silva (Navarrete) took the informant and her boyfriend to the basement of a residence on Fremont street, removed a “bazooka case” from under a bed, and showed them three pounds of methamphetamine inside. Police obtained a warrant to search the Fremont residence. In late February, Castro, Martinez, and Castro’s girlfriend, Angela Fennel, left San Diego for Kansas City in a car bearing a temporary Missouri license tag that had been mailed to Castro in an Express Mail envelope. The mailing label identified Rodela as the sender and listed his prior Kansas City residence as the return address.
In the early evening of March 1, the informant called police from the Fremont residence to report that she heard men talking in Spanish in the basement and then Navarrete delivered a half pound of methamphetamine to her boyfriend. Police immediately established surveillance and alerted a tactical team to execute the warrant. Navarrete, Castro, Martinez, and Navarrete’s brother left in two vehicles and were arrested. Police seized a cell phone from Navarrete that listed Rodela’s e-mail address as the provider’s contact.
As police approached the Fremont residence to execute the warrant, Rodela parked in the driveway, went to the front door with a key, and was arrested before
Fennel and Navarrete pleaded guilty. At trial, Fennel testified for the government that she saw Martinez cutting or packaging a large quantity of methamphetamine before packing the car in San Diego for their trip to Kansas City. The trio arrived at the Fremont residence at about 2:00 a.m. on March 1. Rodela answered the door and let them in but did not take part in the subsequent conversation between Navarrete, Castro, and Martinez. Fennel and Castro went to a motel a short time later. Fennel stayed in the motel when Castro left the next morning.
The government’s remaining witnesses were law enforcement officers who conducted the investigation, surveillance, arrests, questioning, and searches, and Postal Inspector Richard Britain. Britain explained how the Postal Service tracking system for Express Mail packages enabled him to find the mailing label that was filled out at a Kansas City post office showing Rodela as the sender, a return address, and Castro as the addressee. The delivery copy of the label showed that Castro signed for the package in San Diego. The three defendants presented no evidence. The jury found them guilty of all charges.
II. The § 2255 Hearing
After we affirmed his conviction, Rodela filed a pro se motion for relief under 28 U.S.C. § 2255 alleging ineffective assistance of counsel. As clarified in a later pro se pleading, Rodela claimed that trial counsel Lisa Nouri failed to prepare a proper defense because she did not contact co-defendant Navarrete (who pleaded guilty one week before trial but did not testify) and Rodela’s employers, who would have testified that Rodela was at work the afternoon of March 1 and thus could not have participated in unloading the methamphetamine to the basement bedroom and then distributing one-half pound as reported by the informant. Rodela accompanied this pleading with an affidavit purportedly signed by Navarrete (now in prison) describing the conspiracy offense in great detail, declaring that he would have testified that Rodela was unaware of these activities and “is totally innocent of the charges,” and stating that he wrote Rode-la’s name on the Express Mail label without Rodela’s knowledge. Based on this additional evidence, Rodela concluded:
If counsel had spoken with [employer] Peter Medina and realized the only remaining shred of evidence remaining [was the Express Mail] tag itself, a simple handwriting analysis would have negated its value.
Rodela further argued that counsel was ineffective at sentencing in not urging a minor role reduction. The district court appointed counsel and ordered a hearing to consider three issues: failure to investigate and call Navarrete; failure to investigate and call Medina; and failure to urge a minor role adjustment at sentencing.
I was concerned if those people came in, that they would be cross-examined about the fact that [Rodela was] an illegal alien, he was getting paid cash under the table, one of his tips included a rolled up dollar bill with cocaine in it [and] their establishments are known businesses where Mexican drug dealers negotiate and do deals.... I just decided it was probably best not to have those two owners come in and open that whole can of worms to cross-examination.
Ms. Nouri further testified that she contacted Navarrete’s attorney twice about whether Navarrete would testify favorably to Rodela. Both times, the attorney said that, if called, Navarrete would invoke his Fifth Amendment right not to testify. In the second conversation, at the time Navarrete pleaded guilty, counsel added that, if Navarrete testified, it would not help Rodela. Ms. Nouri testified that she “reviewed all of the discovery” in Rodela’s case but never had the Express Mail label examined by a handwriting or fingerprint expert. She explained that she did not urge a minor role adjustment at sentencing because it would have been inconsistent with Rodela’s denial of participation in the conspiracy.
The hearing then took a dramatic turn when Navarrete, subpoenaed to testify, refused to answer all questions, including whether he had signed the affidavit filed by Rodela. After a recess during which Navarrete conferred with his trial counsel, Navarrete invoked his Fifth Amendment privilege. After declining to compel him to answer, the court accepted the affidavit into the hearing record but later ruled it “has no evidentiary value.” Rodela then testified that he was innocent, that he told Ms. Nouri he wanted his employers and Navarrete to testify at trial, and that he was at work the afternoon of March 1. He was not questioned about the Express Mail label. The hearing concluded with testimony by Navarrete’s trial counsel, called as a government witness. He testified that, when Ms. Nouri inquired whether Navarrete would testify at Rodela’s trial, he told her he would advise Navarrete to “take the Fifth” if called to testify.
III. The District Court’s Ruling
Properly applying the standards of
Strickland v. Washington,
The first reason was an issue noted in Rodela’s pleading but not noted in the court’s order granting an evidentiary hear
After reviewing Rodela’s handwriting on the Miranda waiver form and the pleadings he has signed in this action, the Court finds that the handwriting on the mailing label does not match Rodela’s, but rather, matches Navarrete’s. Even without expert testimony, a comparison could have been made by the jury, see Fed.R.Evid. 901(b)(3), and the jury would probably have drawn the same conclusion as the Court if Rodela’s attorney had presented the handwriting of Rodela and Navarrete for comparison to the label.
Second, the court concluded that Ms. Nouri was ineffective for failing to call employer Medina as a witness. “While the Court agrees that Rodela could have been a member of the conspiracy even if he was not present while some conspiratorial activities were taking place, the Court concludes that Mr. Medina’s testimony, combined with the jury’s likely conclusion that Rodela was not the person that mailed the temporary car tag to California, would have changed the jury’s verdict to not guilty.” The court rejected the claim that Ms. Nouri’s performance was deficient for failing to interview Navarrete and subpoena him for trial, nor could prejudice be shown because Navarrete refused to testify at the § 2255 hearing.
Third, the court concluded, in a ruling the government does not challenge on appeal, that Ms. Nouri’s failure to pursue a minor role reduction at sentencing fell “outside the wide range of competent assistance,” because Rodela’s conduct, unlike the other conspirators, “did not include transporting, handling, and distributing the drugs.” The court explained that, if urged, it would have applied a three-level reduction and likely sentenced Rodela to the bottom of the revised advisory range “and certainly to less than the 151 months Rodela received.”
IV. Discussion
On appeal, the government argues the district court erred in concluding that attorney Nouri’s performance was deficient in handling the Express Mail label issue and in failing to call employer Medina as a defense witness, and that Rodela failed to show
Strickland
prejudice with regard to either issue. We review ineffective-assistance issues
de novo
and the district court’s findings of predicate facts for clear error.
See United States v. White,
A. The Express Mail Label Issue. At trial, Postal Inspector Britain testified on direct examination that the Express Mail label “is usually but not always prepared by the subject who is mailing it.” Ms. Nouri followed up during cross exam:
Q: Now, you said that the section that described the person sending the mail may or may not be the actual person, in fact?
A: That’s correct.
Q: There’s no identification required for that?
A: That’s correct.
Q: So I could walk into the post office right now, fill out an Express Mail thing from Rich Britain to anybody in California and use a local address here and that would get sent?
A: That’s correct.
During her cross-examination of Detective Brian Wilson, Ms. Nouri highlighted Rode-la’s handwriting to the jury, clarifying that, on a Miranda waiver form, Rodela’s signature was in the middle of the page whereas the listing of his name on the top of the form was “not his handwriting.” Then, during closing argument, Ms. Nouri sought to minimize the significance of the mailing label:
Anybody can go in and put anybody’s name on [the mailing label]. I could take any one of your names ... go on a break to the downtown post office [and] mail something to Timbuktu with your name as sender. That doesn’t make it so.... There is a Miranda Waiver that Mr. Rodela signed.... And you can see how he does a lot of those capital letters. Especially he likes that capital A on the end. He likes the capital N and R____ The postal receipt didn’t [prove] Mr. Rodela was the sender.
The district court concluded that Ms. Nouri’s performance was deficient “in failing to analyze the handwriting on the mailing label.” As the above-quoted passages make clear, Ms. Nouri clearly did “analyze the handwriting” by comparing the label to Rodela’s signature and arguing to the jury the two did not match. Of course, an additional way to analyze handwriting is to consult a handwriting expert. But the court did not base its deficient performance conclusion on that, nor would § 2255 relief be warranted on that basis. A claim of ineffective assistance based on the failure to consult and call an expert requires “evidence of what a scientific expert would have stated” at trial in order to establish
Strickland
prejudice.
Day v. Quarterman,
The district court based its conclusion of deficient performance and
Strickland
prejudice on its finding that the Express Mail label was in Navarrete’s handwriting, not Rodela’s, and that Ms. Nouri should have put a sample of Navarrete’s handwriting in the record and urged the jury to make the same finding.
1
This is a plausible tactic Rodela’s defense counsel might have pursued, but on this record it is too speculative to warrant § 2255 relief. On the issue of deficient performance, Ms. Nouri was not asked at the hearing many questions crucial to establish that her conduct fell
—Did Rodela tell her he did not fill out the label and Express Mail the temporary vehicle tag to Castro? If not, did she have any other reason to suspect he had not done so?
—Did she have any basis to suspect Navarrete instead completed the label?
—The Order and Opinion stated that the district court compared the mailing label with Navarrete’s signature on his plea agreement, a document not in the record on appeal. Did she compare the signature on Navarrete’s plea agreement with the label? Did she check whether there were other documents in the discovery record containing Navarrete’s signature? If so, did she find, as the court did, that all Navarrete signatures clearly matched the label?
—If Navarrete’s plea agreement was the only sample available, would getting his signature admitted into evidence with this document have compromised her defense strategy, or triggered objections by defense counsel for Castro or Martinez?
—And most important of all, why did she not pursue this tactic?
Regarding the last question, it is not difficult to posit why Ms. Nouri might reasonably decide not to urge the jury to find that Navarrete filled out the mailing label, using Rodela’s name and a return address where they had lived a few months earlier. The government’s case hinged on linking Rodela to Navarrete, the primary conspirator in Kansas City. The evidence linking Rodela to Navarrete’s conspiracy was: (i) they lived together; (ii) the mailing label; (iii) methamphetamine and digital scales were found in Rodela’s basement bedroom, consistent with the informant’s description of two visits to the Fremont residence; (iv) Navarrete was arrested with Rodela’s cell phone, and recent calls on that phone were linked to apparent drug transactions recorded in a notebook seized from Navarrete; and (v) Rodela was with Navarrete when they were arrested on March 8 after the informant told police Navarrete was about to leave Kansas City. Defending this case, a competent attorney could reasonably conclude that persuading the jury Navarrete mailed the temporary tag to Castro using Rodela’s name and a prior common address would play into the government’s attempt to link her client to Navarrete.
Compare Sanders v. Trickey,
We also conclude that Rodela failed to prove
Strickland
prejudice on this issue. Without question, the prosecutor stressed the mailing label in closing argument. But if the trial record had included evidence strongly suggesting that Navarrete filled out the label, would the government’s case against Rodela have been significantly weaker? The label still would provide another, albeit different link between Navarrete and Rodela. And the other evidence linking the two remained- — the drugs and scales in Rodela’s bedroom, his cell phone in Navarrete’s possession containing evidence of calls to drug customers, and Rodela apparently helping Navarrete flee a week after their March 1 arrest when Rodela, if in fact innocent, should have been doing everything possible to distance himself from Navarrete.
Strickland
prejudice is a rigorous standard. On this bar
B. Failure to Call Medina. The district court further concluded that Ms. Nouri was ineffective in failing to call employer Medina as a defense witness because his testimony “would have further removed [Rodela] from the conspiracy, particularly after the link between Rodela and the temporary tag was properly attacked.” Though the district court properly considered the combined prejudicial impact of the two issues, we disagree with its conclusion that Rodela established deficient performance by Ms. Nouri in not calling Medina.
Strickland
teaches that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”
In this case, Ms. Nouri testified that she employed precisely this sort of cost-benefit analysis. She concluded that the potential benefits of calling Medina were slight because a government witness established that Rodela worked as a musician, the government did not contend that Rodela was at the Fremont residence when significant drug activity occurred the afternoon of March 1, and proving his absence at that time would not establish that he was not a conspirator. On the other hand, Ms. Nouri saw significant risk that calling the restaurant owners would open up issues of frequent drug dealing at their restaurants, including Rodela receiving cocaine rolled up in dollar bills as tips.
The trial record establishes that these were not imaginary concerns. During the government’s case-in-chief, the prosecutor elicited testimony that Rodela was a musician who played at a particular Mexican restaurant and asked the witness to describe his investigative activity in or near that restaurant. When defense counsel objected, the prosecutor stated in a sidebar conference he had evidence that would create a “perception that you could not frequent that location and not know that narcotics were being sold.” The trial court sustained the objection, but the risk of opening up that line of inquiry of course remained. The prosecutor later presented testimony by another officer that Rodela had a dollar bill folded around a small amount of cocaine in his pocket when arrested with Navarrete on March 8. Defense counsel succeeded in limiting that to Rule 404(b) evidence, but again it was a subject to avoid potentially opening up through defense witnesses.
Whether as a matter of hindsight we agree with attorney Nouri’s cost-benefit analysis of whether to call employer Medina is not the test in applying the deferential presumption mandated by
Strickland. See, e.g. Wing v. Sargent,
Notes
. We agree with the district court that the jury could have compared the handwriting on the Express Mail label with examples of Rode-la's and Navarrete's handwriting without the assistance of a handwriting expert witness.
See United States v. Tarricone,