U.S. v. Booker, s. 91-3650

• Decision Date: 08 December 1992
• Docket Number: Nos. 91-3650,91-3660,s. 91-3650
• Citation: 981 F.2d 289
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin BOOKER and James Blake, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 289

981 F.2d 289

UNITED STATES of America, Plaintiff-Appellee, v. Calvin BOOKER and James Blake, Defendants-Appellants.

Nos. 91-3650, 91-3660.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 14, 1992.

Decided Dec. 8, 1992.

Larry Wszalek, (argued), Office of the U.S. Atty., Madison, WI, for plaintiff-appellee.

Robert E. Fisher (argued), Chicago, IL, for defendant-appellant Calvin Booker.

Shelia M. Hanely, Carl P. Clavelli, E. Steven Yonover, Chicago, IL, for defendant-appellant James Blake.

Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

To reach the allegations of ineffective assistance of counsel raised by the defendants, it is necessary to set forth the following facts. On the morning of May 20, 1991, a Wisconsin State Patrolman clocked a speeding maroon Cadillac at 80 miles per hour. Initially, Trooper Richard Blood observed only one occupant in the vehicle, a male driver. However, while Blood was signaling the vehicle to stop, a male passenger appeared and continually looked back at Trooper Blood. Made uneasy by the passenger's stares, Trooper Blood called in the stop to dispatch and asked for a license plate check on the vehicle.

The Cadillac pulled over to the side of the road and stopped, and the driver immediately stepped out of the vehicle. The officer directed the driver to return to his car and pull over farther onto the shoulder. The driver complied but again got out of the car and was instructed to return to his vehicle. Trooper Blood then approached the car, informed the driver of his speed violation, and requested a driver's license. The driver produced an Illinois license identifying him as Calvin Booker. The officer next asked for the vehicle's registration. Defendant Booker immediately indicated that he was merely the driver and that the passenger was responsible for the vehicle. However, the passenger answered that he did not have a registration for the car, which he had borrowed from his aunt. Further, the passenger was unable to produce personal identification. Trooper Blood questioned the men about their travel plans. Defendant Booker related that they were returning to Chicago after attending a funeral in Minnesota for one of the passenger's relatives.

In response to his radio call, Trooper Blood was advised that Mr. Booker's license was valid and that he had a criminal history involving a weapons charge. The license plate check revealed that the Cadillac belonged to Margaret Richardson, a Chicago resident. Upon learning this information, the officer called for a back-up unit to assist him. He returned to the Cadillac and asked defendant Booker to step out of the car and speak with him. Mr. Booker told Trooper Blood that he had agreed to drive the passenger to Minneapolis for a funeral since the passenger did not have a driver's license. Mr. Booker claimed to have known the passenger for four or five years, but only knew him by his street name of "Red." Mr. Booker was not sure whether they had stayed with Red's friends or relatives while in Minneapolis.

During this discussion, Trooper Wagner arrived and took Mr. Booker back to his squad car while Blood went to talk with "Red." Initially, the passenger identified himself as James Richardson, stated that he had borrowed the car from his aunt to go to a friend's funeral, and that he and Mr. Booker had stayed with friends in Minneapolis. ¹ During the conversation, Trooper Blood noticed that the car keys were attached to a ring with a white cardboard tag and were without a personalized key chain. Concerned by the passenger's inability to show any identification connecting him with the car, Trooper Blood asked the passenger if he would mind if Blood searched the vehicle. Defendant Blake answered "No, not at all. We're not that kind of people." Defendant Blake then offered to open the trunk and did so by opening the glove compartment and pushing the release button.

Defendant Blake got out of the car and stood behind it while Trooper Blood searched first the trunk and then the passenger side of the car's interior. As Blood moved from the right to the left side of the vehicle, defendant Blake called to him and cautioned him to be careful of the car's hood which was broken and might fall on his head. While investigating the driver's side of the car, Trooper Blood inspected the sunroof compartment and discovered a Taurus nine millimeter semi-automatic handgun, a Smith & Wesson nine millimeter semi-automatic handgun, and approximately an ounce of cocaine. Both guns were loaded with hollow point bullets, had their safeties off and were in positions easily reached by the car's passengers.

Following the discovery of the weapons and cocaine, both defendants were arrested and immediately searched. The search of defendant Booker revealed $703 in currency, and a search of defendant Blake revealed $6,270--$5,500 of it in his shoe. Detective Hefty, a Sauk County Sheriff's detective, arrived at the site to collect the evidence and interview the defendants. During his interview, Mr. Booker told Detective Hefty that the two men had stayed in a fancy hotel in Minneapolis. Eventually, both defendants were transferred to the Rock County Jail where they remained until their trial.

Prior to trial, the defendants unsuccessfully sought to exclude the evidence seized during the search of the Cadillac. Counsel ² for each defendant challenged the reasonableness of the detention following the stop, the voluntariness of the consent for the search and the scope of the search. The magistrate judge found that the evidence was admissible because it was the result of a constitutionally proper consent search. The district judge adopted the magistrate's findings.

At trial, the government's theory of the case was essentially that the defendants were regular drug dealers who were completing a drug run from Minneapolis when they were stopped by Trooper Blood. The government supported its theory with the testimony and physical evidence discussed below.

Mr. Booker and Mr. Blake countered that they were unaware that the car contained drugs and guns. Defendants supported their claim by pointing to the following facts: the car was not theirs, there were no fingerprints on the guns or cocaine baggie, they had been cooperative and consented to the search, and the large amounts of cash they had were gambling proceeds.

Following a two-day jury trial, both defendants were convicted of possession of cocaine with intent to distribute pursuant to 21 U.S.C. § 841(a)(1) and possession of a firearm in relation to a drug trafficking offense pursuant to 18 U.S.C. § 924(c)(1). ³ The district court denied both defendants' motions for new trials and this timely appeal followed.

On appeal, each defendant argues that he was denied effective assistance of counsel which prejudiced the results of his trial. Each defendant claims that his counsel's failure to question a witness' identification of Mr. Blake constituted ineffective assistance of counsel. Defendant Booker also objects to his counsel's overall performance, citing many specific failings.

Ineffective assistance of counsel claims are best brought before the district court through a motion for a new trial, FED.R.CRIM.P. 33, or via collateral relief under 28 U.S.C. § 2255. United States v. Reiswitz, 941 F.2d 488, 495 (7th Cir.1991), cert. denied, Fox v. United States, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992). However, we have granted review on direct appeal if the record is sufficiently developed with regard to the issue. United States v. Williams, 934 F.2d 847, 851 (7th Cir.1991); United States v. Asubonteng, 895 F.2d 424, 428 (7th Cir.), cert. denied, Rivers v. United States, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990). Because the record in this case is sufficiently developed, we turn our attention to the defendants' ineffective assistance of counsel claims.

To prevail on his ineffective assistance of counsel claim, each defendant must meet the two-pronged test identified in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must prove that his counsel's performance was below an objective standard of reasonableness. Id. at 690, 104 S.Ct. at 2066. In particular, "the defendant must identify the specific acts or omissions of counsel that formed the basis for his claim of ineffective assistance." United States v. Moya-Gomez, 860 F.2d 706, 763-64 (7th Cir.1988), cert. denied, Estevez v. United States, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989). Second, the defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Defendants' counsel are presumed effective. United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir.1990). Accordingly, defendants have a heavy burden to prove that their respective counsel were ineffective and their defenses were actually prejudiced. Id. As the examination of each of the defendants' complaints demonstrates, the defendants are unable to bear their burden.

I.

Both defendants strenuously argue that their attorneys provided ineffective assistance by failing to challenge Amy Jackson's identification of Mr. Blake. Ms. Jackson, an Embassy Suites Hotel clerk, testified that she checked in a "Mike Tate" on the weekend of May 18, 1991, and that he had paid cash for his room. Ms. Jackson identified defendant Blake as Mike Tate, but did not identify Mr. Booker. Ms. Jackson further testified that she had "probably" seen defendant Blake again in the hotel a few weeks later, noting that the sightings were "relatively close together." The record clearly demonstrates that Ms. Jackson could not have seen Mr. Blake a few weeks later because he...