U.S. v. Williams

• Decision Date: 23 June 1980
• Docket Number: No. 79-2237,79-2237
• Citation: 631 F.2d 198
• Parties: UNITED STATES of America, Appellee, v. Fletcher WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 198

631 F.2d 198

UNITED STATES of America, Appellee, v. Fletcher WILLIAMS, Appellant.

No. 79-2237.

United States Court of Appeals Third Circuit.

Argued Feb. 12, 1980.

Decided June 23, 1980.

Sandra D. Jordan (argued), Asst. U. S. Atty., Robert J. Cindrich, U. S. Atty., Frederick W. Thieman, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Paul R. Gettlemen (argued), Zelienople, Pa., for appellant.

Before ADAMS, GARTH and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Fletcher Williams appeals his conviction for violations of 21 U.S.C. § 841(a) (1) (distribution of heroin) and 21 U.S.C. § 843(b) (misuse of communication facilities in distribution of heroin). The sole ground for reversal urged on appeal is ineffective assistance of counsel. In a prior proceeding we remanded the case to the district court for an evidentiary hearing on this issue. United States v. Williams, 588 F.2d 825 (1978) (mem.). Having reviewed the record of that hearing and the district court's opinion, which held that Williams had exemplary trial representation rather than inadequate counseling, we too are satisfied that Williams was not denied effective assistance of counsel and that thus his sixth amendment right to counsel was not violated. We accordingly affirm Williams' convictions.

I.

The controversy in this case centers around two affidavits. The two key witnesses against Williams were Pearl and Barron Kelly Brooks (Kelly), husband and wife, who testified to narcotics transactions between Williams and themselves. Some months prior to trial, Williams came into possession of signed affidavits of Pearl and Kelly Brooks in which they denied that there ever were any such transactions. ¹ Williams gave one or both of these affidavits to his counsel and demanded that they be used to impeach the credibility of Pearl and Kelly Brooks should they testify at trial against Williams.

Defense counsel, however, did not use the affidavits to impeach the Brookses. He stated that he had been informed by the Government that it was prepared to prove that the affidavits had been executed under duress, including threats of harm to the Brookses' children. See Trial Transcript, Feb. 27, 1979, at 34-35. Such evidence, he believed, would seriously harm Williams both with respect to the jury's determination of guilt or innocence, and in regard to sentencing. See id. at 35. Moreover, he reasoned, the only way to try to rebut the Government's claim that the affidavits were coerced would have been to have Williams testify, thus opening Williams to damaging cross-examination on all aspects of the case, including tape-recorded conversations between Williams and Pearl Brooks. See id. at 37; app. to dissenting op. infra (typescript of conversation). Defense counsel therefore determined not to introduce the affidavits, and Williams was ultimately convicted by the jury of four out of the five counts charged. He was sentenced to two concurrent sentences of eight and fifteen years, to be followed by three years special parole.

II.

The testimony of Pearl and Kelly Brooks was central to the Government's case, and it is not seriously contended that Williams could have been convicted without it. Thus, if indeed Williams was denied effective assistance of counsel by virtue of the failure of counsel to use the affidavits to discredit the Brookses, we could not characterize that action as harmless error.

In this Circuit, the standard for effective assistance of counsel is "the exercise of the customary skill and knowledge which normally prevails at the time and place." Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970). We are therefore confronted with the question whether defense counsel's decision not to use the affidavits and the reasons leading to that decision fell within the range of behavior properly to be expected of defense counsel.

Following our remand for an evidentiary hearing, the district court heard testimony of Williams and his various counsel in its consideration of the merits of Williams' claim:

Trial counsel testified at the evidentiary hearing that he did not use the affidavits because, inter alia, the prosecuting Assistant United States Attorney had advised him that the government was prepared to prove that the affidavits were executed under duress, possibly including threats of harm to the children of Pearl and Kelly Brooks. Not only would testimony that the affidavits had been obtained through threat of bodily harm be severely detrimental to prospects of acquittal but could, also in counsel's opinion, adversely affect sentencing considerations should conviction follow. Bearing in mind the foregoing pitfalls, trial counsel decided during the trial that use of the contradictory affidavits would not be in the best interest of his client, notwithstanding their obvious contribution to the ongoing battle of credibility. 1

Williams insists, however, that while trial counsel may have chosen the proper strategy had the affidavits in fact been obtained under duress, no effort was made to independently determine whether they might have been made voluntarily. To the contrary, trial counsel indicated that he relied on several factors before concluding the statements were probably given under duress. According to his testimony, trial counsel relied upon the government's representation, photographic evidence, surveillance by Allegheny County Police Officers and Drug Enforcement Agents, and tape recordings for his opinion that the affidavits did not have the ring of truth. 2 Trial counsel diligently analyzed a multiple of factors before reaching a judgment.

In any event, the actual voluntariness of the affidavits was not of critical importance. Trial counsel again testified that as long as he was convinced that Pearl and Kelly Brooks would testify that threats were made, it would have been difficult, if not impossible, to rebut such testimony except by tendering Williams as a witness subject to potentially fatal cross examination. 3 Carefully weighing these considerations, utilization of the affidavits, even if voluntarily given, would have been fraught with danger once Pearl and Kelly Brooks testified they were obtained under duress. 4

Even a cursory review of either the trial transcript or the hearing testimony reveals that trial counsel far surpasses customary skill and knowledge. At trial he aggressively and intelligently represented Williams. His reasons for failing to use the affidavits at trial indicate a thoughtful and well-considered decision. That Williams was convicted in spite of exemplary trial representation is testimony to his actual guilt of the crimes charged. Trial counsel in the case sub judice exercised exceptional skill and knowledge far above that which normally prevails. Accordingly, Williams was not denied effective assistance of counsel as required by the Sixth Amendment when trial counsel chose not to use the affidavits of Pearl and Kelly Brooks.

United States v. Williams, Crim. No. 77-110, Slip op. at 3-5 (W.D.Pa. Aug. 15, 1979). After consideration of the record, it is clear that the district court's findings are not clearly erroneous.

III.

Williams has argued that he was denied effective assistance of counsel because his attorney relied on the Government's representation that it could prove duress, without fully investigating or preparing the case himself. See Gaines v. Hopper, 575 F.2d 1147 (5th Cir. 1978) (per curiam). In Gaines, defense counsel failed even to consider as plausible the defendant's version of the facts and limited his investigation to discussions with the prosecutor and police officers. Defense counsel had a total lack of knowledge of the defendant's position. In the present case, while defense counsel failed to interview the Brookses and never ascertained the nature of the Government's proof of duress, he was nevertheless fully aware of Williams' position and had before him all of Williams' evidence, the two affidavits. He could reasonably have concluded from the tenor of the affidavits and from the other overwhelming corroborating proof of the crimes that the affidavits were false and must have been the product of coercion, despite some evidence of their voluntariness, such as the fact that the Brookses had sought out Williams to give him the affidavits, Trial Transcript, Feb. 27, 1979, at 100.

However, as the trial court recognized, more important than whether the affidavits were in fact coerced is counsel's evaluation of the potentially devastating effect of their introduction. There would at least have been a question as to the voluntariness of the affidavits, and counsel determined that shifting the focus of the trial to this issue would have harmed Williams more than using the affidavits to discredit the Brookses would have helped him. Of particular significance is counsel's response at the evidentiary hearing to one question:

Q. (Williams' attorney on appeal). Okay. I only have one final question. If you had attempted an independent investigation and you would have been satisfied at least at the time when the affidavits were made that they were made voluntarily, and subsequent to that the Brookses might have changed their mind and might even have been coerced to testify, would you at that point have used them on behalf of Mr. Williams?

A. (Williams' trial counsel). No. Because as long as I was convinced that the Brookses would so testify that there were threats, it would be up to the jury to decide whether threats had been made or had not been made. But it would have certainly opened the door to a whole set of circumstances that in my opinion could do no good for Fletcher Williams and might have put him in a worse position on the downside after conviction than he faces today. So I wouldn't have used it once the Brookses, as Mr. Panneton advised me, would have indicated that the statements were given under duress.

The fact that the notary who took the...