234 F.3d 42 (D.C. Cir. 2000), 99-3063, United States v. Weaver

Docket Nº:99-3063
Citation:234 F.3d 42
Party Name:United States of America, Appellee v. Winston Delano Weaver, Appellant
Case Date:December 15, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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234 F.3d 42 (D.C. Cir. 2000)

United States of America, Appellee


Winston Delano Weaver, Appellant

No. 99-3063

United States Court of Appeals, District of Columbia Circuit

December 15, 2000

Argued October 24, 2000

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Appeal from the United States District Court for the District of Columbia (No. 92cr00038-01)

Ed Wilhite, appointed by the court, argued the cause and filed the brief for appellant.

Ryan H. Rainey, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys. Mary-Patrice Brown, Assistant U.S. Attorney, entered an appearance.

Before: Edwards, Chief Judge, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge:

Winston Delano Weaver appeals the denial of his motion under 28 U.S.C. § 2255 to vacate his conviction because of ineffective assistance of counsel in failing to obtain information about the three suicide attempts of a government witness.1 He contends that the district court erred in denying his motion without an evidentiary hearing to determine the significance of the attempts and why they had not been ascertained or disclosed prior to trial. Assuming that trial counsel's performance was deficient, we hold that, given the relative unimportance of the witness to Weaver's conviction, the degree to which the witness was impeached, and the strength of the government's other evidence, Weaver has failed to show the requisite prejudice. Accordingly, we affirm.

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The government introduced evidence at Weaver's trial to show that on four separate occasions he supplied quantities of cocaine to an undercover officer of the Metropolitan Police Department. That evidence showed that Weaver supplied the drugs in response to arrangements made by Antonio "Hub" Johnson, who was a government informant working with Officer Dale Sutherland.

The first sale occurred on November 14, 1991. Sutherland had told Johnson to contact Weaver. Johnson did so and informed Weaver that Sutherland wanted to buy three ounces of powder cocaine for $3000. That evening, the three men met. While Sutherland waited in his truck, Johnson accompanied Weaver into a restaurant (near the intersection of 18th Street and Columbia Road, N.W.) where Weaver retrieved a bag containing powder cocaine. Weaver and Johnson returned to Sutherland's truck, Johnson showed the cocaine to Sutherland, and the three men then left the area. The second sale occurred on November 21, 1991. Johnson again asked Weaver to sell Sutherland powder cocaine, this time four-and-a-half ounces for $3500. The three men met that afternoon (at the corner of Benning Road and H and Florida Streets, N.E.) and Johnson accompanied Weaver to a pay phone nearby, where Weaver telephoned the cocaine supplier. The supplier stated that he would be ready to make the exchange in an hour, so the three men reconvened then at the corner of 18th Street and Columbia Road, N.W., where the first exchange had taken place. Weaver retrieved the drugs from the same place as he had before and gave the drugs to Johnson, who delivered them to Sutherland. Weaver and Sutherland agreed to continue to do business together. The third sale occurred on December 18, 1991, when Weaver retrieved, again from the same area, two ounces of powder cocaine for Johnson to deliver to Sutherland for $2200.

Weaver was arrested on December 30, 1991 in connection with a planned fourth undercover sale, which was to take place in a shopping center parking lot. On this date, Sutherland negotiated with Weaver, again through Johnson, for the purchase of eighteen ounces of powder cocaine; the telephonic negotiations were recorded.2 A video camera recorded parts of the transaction, and several undercover police officers were positioned in the parking lot for the surveillance operation.

Before going to the shopping center, Johnson drove Weaver to a parking lot (near 46th Street and Fletcher Johnson High School in Southeast) where Weaver saw his supplier, Gregory Barnes, in a car with George Denny. Weaver left Johnson's car and spoke to Barnes. At the same time, Denny got out of Barnes' car and into the back seat of Johnson's car. Johnson then drove Weaver and Denny to the Fairfax Village parking lot, with Barnes following in his car. On the way, Denny showed Johnson some of the cocaine. After the men arrived in the shopping center parking lot, Sutherland and Weaver argued about whether Sutherland would pay first or Weaver would produce

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the drugs first. As soon as Sutherland agreed to produce the money before receiving the drugs, he opened the hatch of his jeep to get the money, and the arrest teams, by prearranged signal, moved in to make the arrests. When Weaver appeared to be getting away, Sutherland revealed that he was a police officer and placed Weaver under arrest.

Weaver and Barnes were indicted on four counts in connection with the events of December 30, 1991.3 At their consolidated trial, the government called Johnson, Sutherland, and Denny, among others, as witnesses to testify against Weaver and Barnes. As relevant to this appeal, Denny testified that he sold drugs for Barnes, and that on December 30th, he gave Weaver drugs that Barnes, not Johnson, supplied him. Weaver testified in his own defense, claiming that although he had used cocaine for at least twenty years, he had never before sold it, and...

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