U.S. v. Limehouse

• Decision Date: 09 January 1992
• Docket Number: No. 90-2967,90-2967
• Parties: 34 Fed. R. Evid. Serv. 782 UNITED STATES of America, Plaintiff-Appellee, v. Sabrina LIMEHOUSE, also known as Sabrina White, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 501

950 F.2d 501

34 Fed. R. Evid. Serv. 782

UNITED STATES of America, Plaintiff-Appellee, v. Sabrina LIMEHOUSE, also known as Sabrina White, Defendant-Appellant.

No. 90-2967.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 20, 1991.

Decided Dec. 11, 1991.

Rehearing and Rehearing En Banc Denied Jan. 9, 1992.

Charles Guadagnino (argued), Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Catherine M. Canright (argued), Foley, Pollack & Canright, Milwaukee, Wis., for defendant-appellant.

Before WOOD, Jr., CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Sabrina Limehouse was convicted on two counts of knowingly and willfully conspiring and attempting to possess cocaine with intent to distribute. She appeals her conviction on the grounds that she received ineffective assistance of counsel in violation of her rights under the Sixth Amendment, and that the evidence was insufficient to support her conviction. We affirm.

I

On May 2, 1989, a Federal Express employee inspected the contents of a box that had become partially opened during the shipping process and discovered a powdery white substance that she suspected to be cocaine. The box had been shipped via Federal Express from Mel Johnson of 2445 South Barrington, Los Angeles to Sabrina White of 5674 North 65th Street, Milwaukee. Federal Express immediately alerted the DEA to its discovery of the suspicious white substance. Later that afternoon, after determining that the substance was in fact cocaine, DEA Agent Richard Andrews went to 5674 North 65th Street, the residence of defendant Sabrina Limehouse, with a substitute package similar in appearance to the intercepted box. Disguised in a Federal Express uniform, Agent Andrews arrived in a van bearing the Federal Express logo and attempted to deliver the package. But the defendant rejected the package, declaring that her name was Sabrina Limehouse and not Sabrina White. The next day, Agent Andrews again obtained a Federal Express uniform and van and attempted to deliver the package once more. This time, Sabrina Limehouse signed for the package under the name Sabrina White. Moments later, DEA agents identified themselves and entered her residence. They discovered approximately 350 small manila envelopes suitable for packaging cocaine as well as telephone toll records indicating a substantial number of telephone calls to or from various telephone numbers in the Los Angeles area.

Limehouse was charged with two counts of knowingly and willfully conspiring and attempting to possess cocaine with intent to distribute. A jury found her guilty of both counts and the district court sentenced her to thirty-six months in prison followed by a three-year term of supervised release. On appeal, Limehouse challenges her conviction on two grounds. First, she maintains that her trial attorney possessed a hearing impairment that rendered his assistance ineffective in violation of her Sixth Amendment right to counsel. Second, she contends that the evidence is insufficient to support her convictions for conspiring and attempting to possess cocaine with intent to distribute.

II

Limehouse raises the claim of ineffective assistance of counsel for the first time in this appeal. This court has observed that "ineffective assistance of counsel claims are best dealt with at the district court level, either through a motion for a new trial, ... or through the collateral relief available under 28 U.S.C. § 2255." United States v. Reiswitz, 941 F.2d 488, 495 (7th Cir.1991). The district court, unlike the appellate court, has had the opportunity to observe counsel's performance firsthand. Further, only the district court can receive evidence relating to the ineffectiveness claim. Thus, this court ordinarily will not consider the merits of such a claim when it is raised for the first time on appeal. United States v. Ray, 828 F.2d 399 (7th Cir.1987), cert. denied, 485 U.S. 964, 108 S.Ct. 1233, 99 L.Ed.2d 432 (1988); United States v. Fisher, 772 F.2d 371, 373 (7th Cir.1985) (collecting cases).

We may, however, attempt to resolve an ineffective assistance claim even without benefit of the district court's views "if the issue is sufficiently clear-cut." Johnson v. United States, 805 F.2d 1284, 1290 (7th Cir.1986). We think that is the case here. "There is a strong presumption that counsel rendered reasonably effective assistance." Reiswitz, 941 F.2d at 495 (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)). To overcome that presumption, Limehouse must show both that her trial counsel's performance was constitutionally deficient and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Limehouse fails to carry this burden.

Limehouse contends that her attorney, as a result of his hearing impairment, permitted the admission of damaging and prejudicial hearsay during the testimony of DEA Agent Andrews. Andrews testified that on his second visit to the Limehouse residence a man later identified as Melvin Williams told him that "Sabrina White" was present at the residence and that he would go get her. Contrary to the defendant's assertion, this statement does not constitute hearsay because it was not offered for the truth of the matter asserted ¹--that a person named Sabrina White was present at the Limehouse residence--but rather to show that Sabrina Limehouse had posed as Sabrina White to receive drugs. Further, Limehouse cannot show that the admission of Agent Andrews' testimony was prejudicial to her defense, as required by Strickland, because the government adduced significant additional evidence that she had posed as Sabrina White to receive drugs. ²

Limehouse also claims that her attorney's hearing problem caused him to conduct lengthy cross-examinations that were essentially repetitious of the government's case. We need not determine whether counsel's conduct of these cross-examinations was "outside the range of professionally competent assistance," Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, however, because Limehouse has failed to explain how they prejudiced her defense. As we have often stated, "conclusory allegations do not satisfy Strickland 's prejudice component." United States v. Asubonteng, 895 F.2d 424, 429 (7th Cir.1990) (citing cases).

Finally, Limehouse raises two ineffective assistance claims not predicated on her attorney's hearing problem. First, she complains that her attorney's failure to object to the verdict form, which listed her as Sabrina Williams F/K/A Sabrina Limehouse A/K/A Sabrina White, constitutes ineffective assistance because the form virtually conceded the "critical issue" in the case--whether Sabrina Limehouse and Sabrina White were the same person. However, there was no impropriety in the court's use of that caption on the verdict form, since it merely reflected the evidence that Limehouse had represented herself to be Sabrina White. Thus, the attorney's failure to object to the form did not constitute ineffective assistance.

Second, Limehouse asserts that her attorney, by initiating questioning about the presence of marijuana in her residence, introduced prejudicial evidence that should have been excluded under Fed.R.Evid. 404(b). As the government points out, the attorney's decision to raise this issue was a tactical one, designed to advance the defense strategy that Limehouse had nothing to hide from the agents who searched her residence. Trial tactics are not subject to question by a reviewing court in deciding an ineffective assistance claim. United States v. Dyer, 784 F.2d 812, 817 (7th...