*2 KING, Circuit Judges.
Vаcated and remanded by published opinion. Judge KING majority wrote the opinion, which Judge WIDENER joined. Judge WILLIAMS wrote an opinion concurring in part dissenting in part. initially He was not iden- was discovered.
OPINION by Major Washington. a suspect tified as KING, Judge: Circuit seizure, the Following plastic bag, their con- appeals his Deon Russell Richard heroin, and the cash were in the Eastern District victions T. fingerprints. John Mas- examined of heroin Virginia possession *3 supervisory fingerprint specialist sey, a distribute, of 21 in violation to intent FBI, the fingerprint with the conducted 841(a)(1), prisoner pos- § and U.S.C. analysis. Agent Massey and examination heroin, 18 in violation of U.S.C. session that he discovered ten identifiable testified § Ann. 53.1- (assimilating § Va.Code 13 twenty-four of the prints latent on seven 203(5)). that the dis- conclude Because we Massey also found paper packets. heroin mo- denying trict court erred paper other on the several trial, vacate his we must tion for new prints all the other lacked packets, but pro- further and remand for to identifiable. sufficient characteristics ceedings. prints running the identifiable After database, Massey FBI through Agent an I. prints that all ten identifiable concluded 10, 1997, Major H. Kenneth On October belonged appellant to Russell. Reformatory Lorton Washington of the tried for charged pos- Russell was and n (“Lorton”) County, Virginia, in Fairfax heroin, intent to distributе session with check around security routine conducted a The prisoner possession and for heroin. yard Dormitory recreation the enclosed court in was conducted the district yard, At the rear of the recreation 23,1998, September and the Alexandria on atop a can one Major Washington noticed guilty Russell on both counts. found yard Upon fence. poles of the of the verdict, timely filed Following the Russell can, string, he observed removing trial, for a which a Rule 33 motion new can, suspended inside to another attached now his convictions appeals He denied. can, removing the second pole. After and sentence. plastic bag Washington discovered Major II. twenty-four paper packets containing ' in cash.
heroin and $310
at
argues that the evidence
first
Russell
support
to
trial was insufficient
thirty-
Major Washington,
According to
Russell asserts
Additionally,
tions.
22,
Dormitory
and
inmates resided
nine
erroneously denied his
the district court
access to
thirty-nine had direct
only those
trial,
was based
for a new
which
motion
inmates were
Several
yard.
recreation
(1)
evi-
newly discovered
theories:
two
when the
yard
actually in the recreation
(2)
dence;
ineffective assistance
discovered,
Major
contraband
counsel.
one of them
Washington believed
in-
He referred that
suspiciоusly.
acted
challenge,
sufficiency
we
On
others,
name, along
several
linking
mate’s
the evidence
must conclude
Investigation
although,
Bureau of
the Federal
contraband —
(“FBI”)
suspects. Appellant
“very thin” —was suffi
jargon,
potential
prosecutor
Dormitory 22 in
Russell’s convictions.1
support
resident of
cient
was a
newly discovered
respect
present
not
With
but he was
October
aspect of
claim,
for this
the bases
the contraband
yard when
the recreation
Therefore,
limited to
(1942).
our review
sufficiency
reviewing
of the Govern
1. In
fact finder
a rational
evidence,
determining whether
must be
jury’s
verdict
ment's
evidence,
of the crimes
elements
the еssential
could find
there is substantial
"if
sustained
doubt. See
beyond
charged
a reasonable
Govern
favorable to the
taking the view most
Ruhe,
States,
191 F.3d
ment,
v. United
support
it.” Glasser
Cir.1999).
86 L.Ed.
U.S.
(1)
the new trial motion included:
his Dis-
These charges focus
exclusively
almost
trict of Columbia
introduced at
on two
(1)
critical facts:
discovery
of ten
credibility,
trial to
impeach
had been Russell’s fingerprints on
of the
seven
vacated; and
finger-
Government’s
twenty-four packets
heroin;
print expert
repri-
had been previously
Russell’s access to
yard
the recreation
erroneously
manded for
identifying finger-
near Dormitory 22 where the heroin was
prints. Because neither of these сlaims hidden. Russelltestified on his own behalf
warrants
newly
relief as
discovered evi-
and he did
dispute
that his
dence
within the
of Rule
meaning
fingerprints were on
the heroin
reject
must also
arguments
in confiscated by Major Washington.
In-
regard.
Bales,
See United States v.
stead, Russell asserted
finger-
that his
(4th Cir.1987).
How- prints had been impressed
ever, because we conclude that Russell was packets innocently, before
*4
else
someone
not accorded effective assistance of counsel
paper
used the
to package the heroin.
trial,
in his
the district court abused its
Russell explained that he often made
in denying
discretion
Russell’s motion for a
picture frames and artwork
trade with
new trial.
other inmates frommaterials
similar
paper used to package the
In
heroin.
III.
order to
these
artwork,
make
frames and
prove
In order to
possession with
testified that he
“a
would tear
distribute,
intent to
the Government was
hundred sheets” of paper into small
required
(1)
to establish
following:
the
squares, and then fold and link the differ-
possession
Russell; (2)
of
by
heroin
knowl
ent pieces together to form
Rus-
a frame.
edge
(3)
of
possession;
and
intent to
typically
sell
made these
in a room
frames
distribute heroin.
States v. Bur
open to other residents of
Dormitory
gos,
849,
(4th Cir.1996) (en
94 F.3d
873
finished,
When he
he would
discard
simply
banc).
prove
To
prisoner рossession of
the
pieces
unused
paper
nearby
of
in a
heroin, the Government had to show that:
trash can.
prisoner
Russell was a
pos
who
Agent Massey
testimony
concededin
(heroin)
sessed
compound
chemical
that
that he could not
he did
determinewhen Russell’s
lawfully
receive. 18 U.S.C.
fingerprints
§
placed
been
paper
13
had
the
(assimilating
§
on
Va.Code Ann.
53.1-
203(5)).
pieces. Additionally, Massey
Because the
acknowl-
heroin was not found
edged
the vicinity of
it
person,
possible
Russell’s
was
both
Russell’s
charges
premised
were
fingerprints
on the theory would have
on
remained
the
possession.
constructive
Burgos,
paper pieces,
Seе
94
if
by
even used
someone else
873;
F.3d
Commonwealth,
McGee v.
wrap
the heroin after Russell had han-
317,
Va.App.
(1987).
738,
357 S.E.2d
dled them.2
regard, although
In this
possible
indicated,
is
however,
it
Massey
also
that if the
explanation
Russell’s
presence
by
the
been touched several
times
true,
finger,
prints
more than one
proof
most
Government’s
would not
testified:
Massey
have been
affirmatively
need not
identifiable.
every hypoth-
“rule out
except
guilt.’’
esis
that of
Holland v. United
States,
object
When an
is touched by more than
348 U.S.
like,
words,
finger,
one
in other
(1954).
several
L.Ed. 150
As we noted in United
times, you
overlaying ridges.
have an
(4th Cir.1994),
Murphy,
States v.
IV.
sel,
following manner: Prior
arose
filed a motion in
A.
the Government
of three
seeking to admit evidence
limine
foregoing, we
Pursuant
impeаchment
assertion
focus on Russell’s
must
testified at trial
only, if Russell
purposes
his Rule 83
denying
court erred
district
prior convic
The three
on his own behalf.
upon the
a new
based
motion for
*5
(1)
to
with intent
assault
tions included:
trial counsel.
assistance of
ineffective
armed,
the District of Colum
kill
while
States
in recognized
weAs
1993;
arson,
of
in the District
bia, in
(4th Cir.1995), an
Smith,
641, 650
F.3d
Columbia,
1993;
to
conspiracy
and
“may be
claim
assistance
ineffective
arson,
in 1992.
Maryland,
commit
on
new trial based
a motion for
brought as
motion, the United
pre-trial
support of
33.”4
under Fed.R.Crim.P.
grounds’
‘other
Attorney
both Russell’s
provided
in the dis
not raised
Although generally
with records
judge
the trial
and
counsel
review on
preserved
сourt nor
trict
validity of
confirming the
and
supporting
claims assert-
assistance
ineffective
appeal,
Spe-
Fed.R.Crim.P. 33.
stray.
supports
arguably
also
Here,
Sep-
verdict on
jury reached its
cifically,
that numerous
the fact
1, 1998,
23,
On October
1998.
packets could not be
tember
twenty-four
on
alleging
pleading
ineffective
supportive
Russell’s con-
Russell filed
is also
identified
The Government
Massey’s testi-
counsel.
assistance of
consistent
tention —and
filing
be con-
should
mony
else handled
someone
conceded
—that
trial on "oth-
for a new
Russell.
as a motion
after
strued
33, and the district
grounds”
Rule
under
er
history
the two vacated
procedural
3. The
Accordingly, Rus-
it
such.
court treated
For our
is
convoluted.
asserting
ineffective
motion
sell's
of Co-
the District
purposes, it suffices that
(the intermediate
timely filed
claim
Appeals reversed the
Court
lumbia
Sunday are excluded under
Saturday and
the case
question and
remanded
tions
45(a)).
January
On
Fed.R.Crim.P.
States,
v. United
See
Superior Court.
Russell
sentencing,
the district court
day
remand,
(D.C.1997).
On
while arson—had been va- Defense counsel should conduct a cated and were invalid at the time of trial.
prompt investigation of the circum- C. stances of the explore case and all ave- nues leading to facts relevant order establish ineffective assis- counsel, merits of the case and the penalty tance of Russell must satisfy the event of two-pronged by investigation test articulated conviction. The Supreme Court Strickland v. Wash- should include efforts to secure informa- 609(a)(1), that, provides 6. Fed.R.Evid. peachment 609(e), purposes, for im- see Fed.R.Evid. peachment purposes: elementary it is а once conviction has reversed, [E]vidence that an accused has been con- impeach been it cannot be used to victed punishable of such a crime crime [a Empire accused. See United by imprisonment death or in excess of one Co., (7th Cir.1949) Packing 174 F.2d year under the law under which the witness judgment and until the the trial O'Unless was convicted] shall be admitted if the reversed, court is the defendant stands convict- probative court determines that the value of may properly questioned ed and regarding admitting outweighs preju- this evidence its solely purpose said conviction of test- dicial effect to the accused.... ing added). credibility.”) (еmphasis Although pendency appeal of an does not preclude use of such a conviction for im- by prejudiced whether Russell prosecution of the possession tion authorities.... under prejudice breach. To establish law enforcement Strickland, must show there is Russell Justice, ch. Criminal Standards for ABA that, ed.1993). (3d probability but coun “reasonable 4-4.1 Function Defense client, errors, the result of unprofessional sel’s a criminal representing When adequate investi an different. proceeding to conduct would have been obligation sta verifying the will often include gation probability is a probability A reasonable record, and the criminal client’s tus of the confidence to undermine sufficient finding may support to do so failure 694, 104 Strickland, outcome.” counsel. Tol See ineffective whether coun To determine S.Ct. 2052. States, 563 F.2d v. United liver the outcome of affected sel’s errors Cir.1977) (4th at (holding defense 1120-21 trial, a careful examination po of the apparent unawareness torneys’ is nec against Russell presented prior of defendant’s invalidation tential disturb And while we cannot essary. decision, Supreme Court convictions sufficiency grounds, jury’s verdict informed counsel after defendant even case “thin” nature of the Government’s decision, assis ineffective to constitute weigh heavily must our against tance). prejudicial impact of of the consideration coun Here, find that defense breach. his counsel’s of two of confirm the status failure to sel’s un to be prior three a. in Prior reasonable. the District of Co lawyer that
formed his addressing the suffi Our decisions “overturned” had been lumbia premised ciency fingerprint evidence— And counsel invalid. therefore and were temporal considerations —il primarily on confirming that, than rather acknowledged nature of the Gov marginal lustrate him advising before assertion Unit this case. See ernment’s evidence testify to acknowledge and he must Corso, 956, 957 ed States simply “re three curiam) Cir.1971) (holding that “[t]he (per govern representations lied finger of an accused’s value probative in fact were these convictions ment that object readily movable upon a prints of trial.” J.A. valid at the time still shown it can be questionable, unless highly minimal: necessary investigation was The *7 have been im prints could such of the District Columbia simple check of of only during the commission pressed veri would have Superior Court records Fossen, crime”); Van 460 States v. United convictions had been that Russell’s fied Cir.1972) (4th 38, (reiterating F.2d 40-41 vacated. war “[t]o established” rule the “well case, it critical In the this was context of fact must of be the trier rant conviction accurately his crimi- portray Russell to the circum reasonably infer from able to which the ease with record. Given nal im fingerprints were stances obtained, could have been information such was commit at the time the crime pressed his to conclude that are constrained ted”). our Corso and have construed We accuracy verify the failure to trial counsel’s collectively stand decisions Van Fossen fell District of Columbia of fingerprint that “when proposition of objective standard an below reasonable- value, probative questionable is of evidence ness. it is if a conviction it cannot sustain presented.” only substantive Harris, 576, 530 F.2d 579 States United coun- that Russell’s Having determinеd Cir.1976) curiam); (4th Bur see also (per competent obligation of breached his sel at 874. analyze gos, 94 F.3d also must representation, we Therefore, case, convict In accor- this Russell’s defense rose or Fossen, and Van dance Corso credibility fell based on the of a single present was required Government evi- witness: himself. While Russell’s credibil- than fingerprints dence—more ity paramount in the jury’s delibera- him linking to the contraband. tions, irrevocably by it was undermined his alone— (1) regard, the Government offered: improper impeachment with the two vacat- testimony Major Washington, of who presenta- ed convictions. The inaccurate twenty-one yeаrs indicated that of record, particu- tion of Russell’s criminal employment Department at the of Correc- larly credibility where as a witness is in tions, he had not seen paper artwork at issue, cannot be said to an insubstantial Lorton made from the kind of used error. See v. Ling, United States 581 F.2d case; package the heroin in this (4th Cir.1978). And, as we only thirty-nine evidence that those in- Barbour, recognized in Foster v. 613 F.2d assigned Dormitory mates including (4th Cir.1980), where the defendant’s Russell, yard had access to the recreation critical, veracity “repeated was also discovered; where the heroin was assertions that [the defendant] had been fingerprint expert’s that if conclusion convicted of other crimes ... when those object someone handles an previously destroyed assertions were untrue ... another, touched the fingerprints of the fairness of trial and [the defendant’s] de- person first would most not be iden- process him due nied of law.” Id. at 60 tifiable. through Viewed the lenient lens added). Moreover, (emphasis we find it Glasser, supra note this evidence is significant jury necessarily that the knew barely carry sufficient to the Government’s possessed least one as proof guilt. burden to Russell’s In- tion, proof in that count two included his deed, despite the introduction of the non- being a Lorton inmate at the time of that evidence, fingеrprint the Government’s offense. It is axiomatic that the use aof culprit of Russell as the con- identification single for impeachment conviction of a exclusively tinued to rest on nothing more prisoner evidentiary witness is of little val- presence than the hand, ue. the other On the use of three packets. on the paper impeachment convictions for was devastat- ing credibility. to Russell’s
b.
that,
recognize
We also
a practical
marginal
Given the
nature of the Gov-
matter,
previous
evidence of
case,
ernment’s
an
presentation
accurate
prejudicial
often has a
impact beyond its
prior
of Russell’s
criminal rеcord
criti-
proper purpose
impeachment.
As the
cal to
and to his defense.
Fifth
acknowledged
Circuit
Supreme
As the
recognized
Court
in Unit-
Holloway,
States v.
Agurs,
ed
Cir.1993), admitting evidence
defen-
(1976),
S.Ct.
are explana- veracity of Russell’s with the cern reasons, foregoing Russell’s con- For his presence of tion for the vacated, case is re- are and his victions Indeed, they suggest the contraband. for a to the district court new manded evidence inquiring whether jury was trial. explana- Russell’s corroborate existed to AND REMANDED VACATED evidence, corroborating Absent such tion. issue was only remaining whether WILLIAMS, concurring Judge, Circuit testimony. There- jury accepted dissenting part: part jury’s fore, credibility and majority agree I with the While the truthfulness belief—or disbelief—in jury’s supports ver- sufficient jury’s ver- determined explanation properly the district court dict Russell, however, Unfortunately for dict. a new Russell’s motion for trial denied destroyed by the all credibility was but evidence, I upon newly discovered based own coun- presentation inaccurate — majority’s conclu- with the agree cannot felony convictions. his vacated sel—of dis- court abused its that the district sion c. motion denying cretion upon ineffective assistance trial new based verify Rus- failure But for counsel’s that his de- assuming Even of counsel. convictions, a District of Columbia sell’s deficient, performance fense counsel’s exists that the re- probability reasonable by the intro- prejudiced Russell wаs have been Russell’s trial would sult of Strickland, vacated two at 104 duction different. jury danger that the convicted Any find counsel’s error to be 2052. We tions.
S.Ct.
de-
deprived
sufficiently
solely
as to
him
those
serious
have
because
fair
a trial
result
fo-
improperly
“of a
whose
stroyed his
Id. is reliable.”
character”
attention on his “bad
cused its
its
abused
Accordingly, the district court
quality
by the
significantly diminished
denying
new
discretion
fact
him and the
against
of the evidence
assistance of his
on the ineffective
based
nature of
never knew the
that the
counsel.
al-
importantly,
Most
vacated convictions.
felony convic-
though two of Russell’s
justice, all criminal
system
our
Under
*9
vacаted, Maryland con-
his
had
clearly
or
tions
been
guilty
those
defendants —even
by
was also ineffective
argument
that
ineffec-
Because we find Russell’s counsel
witnesses.
failing
verify
failing
of Colum-
corroborative
the District
to call
tive for
his other
we need not address
bia
per
wrap
arson had
used to
the heroin and that the
conspiracy
viction
commit
not,
therefore,
and,
have been
paper
making
still could
he
while
discarded
credibility. The fact
impeach
used to
frames was accessible to other inmates.
jury
that
was told that Russell had
majority
See ante at 623. The
also states
felony convictions instead of one
that,
three
the Government’s case rest-
because
confi-
should not undermine this Court’s
solely upon
credibility,
ed
Russell’s
there
of the trial. Because
dence
outcome
a
probability
jury
reasonable
that the
I
was not preju-
also believe that Russell
ground
pos-
convicted him on the
that he
by
wit-
diced
his counsel’s failure to call
character.” Ante at
sessed “bad
who,
him,
according
nesses
would have Thus,
majority
concludes that
con-
our
picture
that he made
out
testified
frames
fidence in the trial’s
outcome should
paper,
of white
I would affirm the district
ante at 623.
undermined. See
grant
mo-
court’s decision not
assuming
performance
Even
that the
upon
tion for a nеw trial based
ineffective
deficient, I
Russell’s counsel was
cannot
of counsel.
agree
majority’s
with the
in re-
conclusion
gard
alleged prejudice
by
to the
suffered
I.
in
begin
Russell. The flaws
its conclusion
states,
majority correctly
As the
we re-
majority’s
with the
characterization of the
deny
view district court’s decision to
holding
evidence in this case. After
upon
for new trial
motion
based
ineffective
the evidence used to convict
assistance of counsel
abuse of discre-
States,
sufficient under
Glasser United
Adam,
tion. See United States v.
315 U.S.
62 S.Ct.
ture frames. regard, deficient in this
mance was Russell, at prejudice. demonstrate
cannot the district court hearing which motion for a new stat-
considered his he wished to call
ed that the witnesses testify picture that he made frames. however, wit-
Significantly, none of these corroborating
nesses could have offered Massey’s
testimony challenging statement
that Russell’s on seven of the most have been obli-
packets would
terated someone touched the Thus, if really
after he did. even Russell paper, of white
did fashion frames out reasonably believe that he could still heroin
also used white to fashion the I, therefore, conclude that Rus-
packets.
sell has failed to meet burden of show-
ing that his counsel’s failure to call corrob- our
orating witnesses should undermine of the trial.
confidence the outcome
II. reasons, I foregoing respectfully
For the majority’s holding
dissent from the
the district court abused its discretion
denying Russell’s motion for new trial upon
based ineffective assistance of coun-
sel. America,
UNITED STATES of
Plaintiff-Appellee, Joseph SOUTHER,
Robert
Defendant-Appellant.
No. 99-4582. Appeals, Court of
Fourth Circuit.
Argued: June July
Decided: