U.S. v. Dimatteo, 81-6001

• Decision Date: 06 May 1985
• Docket Number: No. 81-6001,81-6001
• Citation: 759 F.2d 831
• Parties: 17 Fed. R. Evid. Serv. 1445 UNITED STATES of America, Plaintiff-Appellee, v. Richard DIMATTEO, Morris Kessler, James Suggs, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 831

759 F.2d 831

17 Fed. R. Evid. Serv. 1445

UNITED STATES of America, Plaintiff-Appellee, v. Richard DIMATTEO, Morris Kessler, James Suggs, Defendants-Appellants.

No. 81-6001.

United States Court of Appeals Eleventh Circuit.

May 6, 1985.

Jay Gregory Horlick, Brooklyn, N.Y., for Kessler.

James R. Suggs, pro se.

Thomas M. Sherouse, Miami, Fla., for Dimatteo.

Atlee W. Wampler, III, U.S. Atty., Miami, Fla., Sara B. Criscitelli, Appellate Sect., Crim. Div., Dept. of Justice, Washington, D.C., for the U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, ANDERSON, Circuit Judge, and GOLDBERG ^*, Senior Circuit Judge.

ON REMAND FROM THE UNITED STATES SUPREME COURT

PER CURIAM:

We approach this case anew in light of the Supreme Court's recent holding in Luce v. United States, --- U.S. ----, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In Luce, the trial court had ruled on a defendant's in limine motion under Fed.R.Evid. 609(a)(1) ¹ that the prosecution would be allowed to introduce evidence of the defendant's prior conviction for purposes of impeachment if the defendant later testified. The defendant accordingly declined to take the stand. Acting on the defendant's petition for certiorari, the Court held that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify," id. --- U.S. at ----, 105 S.Ct. at 464, and that the court of appeals was therefore not entitled to review the district court's preliminary ruling. We must decide whether the rationale underlying Luce 's requirement with regard to Rule 609(a)(1) covers similar appeals from in limine rulings under Rule 608(b). ²

We first resolved this case at 716 F.2d 1361 (11th Cir.1983). As reference to our previous report of the facts reveals, id. at 1363-64, the defendants decided not to present a witness ostensibly because of the trial court's in limine ruling that the prosecution would be allowed to attack the credibility of that witness by introducing extrinsic evidence. We now hold under Luce that a defendant's decision not to present a witness whose credibility would have formed the basis of an evidentiary objection under Rule 608(b) forecloses our ability to review the claim that the district court might have erroneously allowed extrinsic evidence to impeach that witness in violation of Rule 608(b).

Since we previously reversed appellants' convictions based on the perceived evidentiary error below, we did not consider appellant Suggs's claim of ineffective assistance of counsel. See 716 F.2d at 1369 n. 3. The Supreme Court recently articulated the two-pronged test to be applied in evaluating a claim of ineffective assistance. Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show both that his attorney failed to render "reasonably effective assistance," id. --- U.S. at ----, 104 S.Ct. at 2064, and that counsel's errors unduly prejudiced the proceeding, id. --- U.S. at ----, 104 S.Ct. at 2068. See Smith v. Wainwright, 741 F.2d 1248, 1254 (11th Cir.1984). Absent a narrow class of exceptions not applicable here, see United States v. Cronic, --- U.S. ----, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Chadwick v. Green, 740 F.2d 897 (11th Cir.1984), the defendant bears the burden of showing both his attorney's inadequate representation and the resulting prejudice. Failure on either score will defeat an ineffectiveness claim, and we need not judge the adequacy of counsel's performance if we find that the alleged errors would nevertheless not amount to sufficient prejudice. Washington, --- U.S. at ----, 104 S.Ct. at 2069-70.

The essence of Suggs's ineffectiveness claim ³ is that his court-appointed counsel failed to present a witness who would have testified that Suggs was ignorant of the purpose behind a particular airport rendezvous. The meeting was purportedly arranged to enable appellants and others to survey the adequacy of a secluded landing strip for unloading illegally imported marijuana. Suggs contends that his attorney failed even to ascertain what this witness would have testified, that the witness was available in court to testify, and that the testimony would have exculpated Suggs of any wrongdoing at the landing strip.

The propriety of defense counsel's conduct aside, ⁴ we do not see that the witness' testimony would have had an impact on Suggs's misfortunes at trial. "The defendant must show 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." Id. --- U.S. at ----, 104 S.Ct. at 2068. Viewing the "totality of the evidence," id. --- U.S. at ----, 104 S.Ct. at 2069, we see only that the additional testimony would have been cumulative of other...