Payne v. U.S.

• Decision Date: 22 May 1996
• Docket Number: No. 95-1989EM,95-1989EM
• Citation: 78 F.3d 343
• Parties: John Alvin PAYNE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 343

78 F.3d 343

John Alvin PAYNE, Appellant, v. UNITED STATES of America, Appellee.

No. 95-1989EM.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 9, 1996.

Decided March 4, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied May 22, 1996.

On Appeal from the United States District Court for the Eastern District of Missouri; Stephen Limbaugh, Judge.

Thomas R. Schlesinger, St. Louis, Missouri, argued, for appellant.

Patricia A. McGarry, Assistant Attorney General, argued (Elizabeth Mayer, Legal Intern., on brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES, ^* District Judge.

RICHARD S. ARNOLD, Chief Judge.

John Alvin Payne was convicted under the Continuing Criminal Enterprise statute ("CCE"), 21 U.S.C. § 848, and is serving a 50-year sentence with no chance of parole for his managerial role in an interstate cocaine-distribution conspiracy. He was also convicted and sentenced for several other related drug crimes. ¹ He filed a motion for postconviction relief under 28 U.S.C. § 2255, claiming that his trial lawyer was unconstitutionally ineffective. The District Court ² rejected all but one of Mr. Payne's ineffective-assistance claims without an evidentiary hearing and, after a hearing, concluded that Mr. Payne's lawyer had adequately informed him of his right to testify. ³ Mr. Payne now appeals, and we affirm.

I.

Mr. Payne and his brother owned a hotel in Los Angeles. This hotel was the headquarters for a sophisticated drug operation managed by Mr. Payne. ⁴ This is how the operation worked: First, couriers would move Mr. Payne's cocaine from Los Angeles to St. Louis. There, Clara Davis would take the cocaine from the couriers and disperse it to local distributors. She also collected Mr. Payne's cut of the proceeds from the distributors and sent this money back to Los Angeles.

After several years' investigation the government applied for permission to wiretap Ms. Davis's and Lee Autry Wright's (one of the St. Louis distributors) telephones. After a few months' surveillance, Ms. Davis and Terrell Williams (one of the couriers), were arrested in St. Louis as Mr. Williams was making a delivery. Ms. Davis went into the federal witness-protection program and was the government's chief witness at trial. She testified about the drug enterprise itself and, most importantly, interpreted and explained the over one hundred brief, often cryptic, taped telephone conversations which were the centerpiece of the government's case.

At trial, Mr. Payne's defense was that he was innocent of all charges and that Ms. Davis was an untrustworthy "snitch" who was setting him up and who actually was the "mastermind" of the enterprise. Mr. Payne's lawyer, David Chesnoff, tried to convince the jury of this theory by vigorously cross-examining Ms. Davis. He also argued, in his closing statement, that the government did not present evidence that Mr. Payne knew about his co-defendants and their drug-dealing, let alone that he conspired with or supervised them. Mr. Payne did not testify; in fact, Mr. Chesnoff presented no evidence or testimony. This "snitch strategy" was unsuccessful. We affirmed Mr. Payne's convictions on direct appeal. Macklin, 902 F.2d at 1331.

Mr. Payne now believes he would have been better served by a different trial strategy. In his § 2255 motion, Mr. Payne argued that he received ineffective assistance of counsel because Mr. Chesnoff failed to (1) advise him of his right to testify; (2) present evidence that Mr. Payne was not the organizer, supervisor, or manager of the drug enterprise; (3) request several CCE-related jury instructions; (4) investigate the government's wiretap application and interview potential witnesses whose testimony supposedly could have undercut the application; (5) argue that there were several distinct conspiracies rather than one complex operation; (6) object to the government's alleged proof of several conspiracies; and (7) conduct an independent investigation or discuss the merits of Mr. Payne's case with him before trial. The District Court rejected all these claims, except the first, without a hearing. After a March 1995 evidentiary hearing, the District Court denied the first claim as well. ⁵

II.

The adversary system is, in many ways, a gamble which presumes able and zealous lawyers for each side. Our Constitution hedges this gamble through the Sixth Amendment right to counsel, which "assures the fairness, and thus the legitimacy, of our adversary process." Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986). Therefore, counsel must be "ready and able to submit the prosecution's case to the 'crucible of meaningful adversarial testing,' [or] there can be no guarantee that the adversarial system will function properly to produce just and reliable results." Driscoll v. Delo, 71 F.3d 701, 706 (8th Cir.1995) (citations omitted).

The well-established framework for analyzing ineffective-assistance claims reflects the Sixth Amendment's focus on assuring the "fairness" and "legitimacy of our adversary system." See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard, "although by no means insurmountable, is highly demanding." Kimmelman, 477 U.S. at 382, 106 S.Ct. at 2586. To prove ineffective assistance, a petitioner must prove both incompetence and prejudice; he must "establish that counsel's performance fell below professional standards and that ineffective performance prejudiced his defense." Thompson v. United States, 61 F.3d 586, 587 (8th Cir.1995). His lawyer's unreasonable performance must "undermine[ ] our confidence in the outcome of the proceeding." Ibid. We presume attorneys provide effective assistance, and will not second-guess strategic decisions or exploit the benefits of hindsight. Ibid.

A.

First, Mr. Payne claims Mr. Chesnoff failed to discuss in appropriate detail the strategic implications of Mr. Payne's choice not to testify about his role in the conspiracy. The District Court rejected this claim after an evidentiary hearing. In Mr. Payne's view, the government failed to prove that he managed, organized, or supervised five or more people as part of a continuing criminal enterprise. See 21 U.S.C. § 848(c)(2)(A). Instead, he argues, the evidence showed only that he "fronted" (sold on credit) drugs to several unconnected people. ⁶ And, Mr. Payne insisted at oral argument, even if he did supervise or manage others as part of a drug enterprise, he supervised only four others, not five. ⁷

Mr. Payne insists that, had he been informed about the CCE statute's "managerial" element and advised that "fronting" drugs is not enough to prove this element, he would have testified at trial. He claims he would have described his role in the conspiracy, thereby corroborating the information on the tapes. This, he thinks, would have made his testimony believable. He would have admitted his involvement in drug trafficking and acknowledged supervising four--but not five--other persons. He recognizes, of course, that his testimony would have guaranteed conviction and long prison terms for most of the crimes charged. But, he asserts, by testifying, he would have convinced the jury to acquit him on the CCE charge, which carries the most severe penalty (50 years without parole).

We agree with the District Court that this claim fails because Mr. Payne has not shown deficient performance and prejudice. Mr. Chesnoff told Mr. Payne that he had the right to testify--indeed, Mr. Payne admits he already knew this. In fact, Mr. Payne testified on his own behalf in a 1977 criminal trial. Mr. Payne also admitted at the evidentiary hearing that he knew the CCE statute requires the government to prove he managed or supervised five people. Still, he never asked to testify. Instead, after discussing the importance of keeping the jury from hearing the very damaging tapes again, Mr. Payne and Mr. Chesnoff agreed to "try to win the whole ball of wax" by painting Ms. Davis as a "snitch." We agree with the District Court that, given the alternatives, this strategy was not unconstitutionally unreasonable. ⁸ See Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2065-66. (reasonable strategic decisions are "virtually unchallengeable").

Not only was Mr. Chesnoff's performance reasonable, it did not prejudice Mr. Payne. We do not believe that if Mr. Chesnoff had discussed the managerial element in more detail, or told Mr. Payne that "fronting" does not satisfy that element, Mr. Payne would have admitted elaborate drug-dealing at trial, hoping the jury would believe a confessed drug-dealer's claim that he supervised four--but not five--others in his operation. This claim, to put it mildly, strains credulity. And even if Mr. Payne had testified, we do not believe there is any reasonable chance that the jury would have acquitted him on the CCE charge. ⁹ We do not doubt that, looking back on it, Mr. Payne thinks he should have adopted a different strategy. But we suspect that if Mr. Chesnoff had advised Mr. Payne to testify, admit drug-dealing, and hope for a CCE acquittal, Mr. Payne would still be arguing ineffective assistance of counsel. See, e.g., Nazarenus v. United States, 69 F.3d 1391, 1397 (8th Cir.1995) (petitioner claimed his lawyer was ineffective for advising him to testify, thereby exposing him to damaging cross-examination); Krimmel v. Hopkins, 44 F.3d 704, 710 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 578, 133 L.Ed.2d 501 (1995). Mr. Payne has not "undermined our confidence in the outcome of the proceeding," Thompson, 61 F.3d at 587, and so this ineffective-assistance claim fails.

B.

The District Court denied Mr. Payne's other ineffective-assistance claims without a hearing. We review the District Court's decision to deny a hearing for abuse of discretion, and we review de novo the Court's rejection of the claims...