UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Criminal Action No. 99-389-02 (RWR) ) HOMES VALENCIA-RIOS, ) ) Defendant. ) ___________________________)

MEMORANDUM OPINION AND ORDER

The court of appeals remanded this case in part for an

evidentiary hearing regarding defendant Homes Valencia-Rios’

claim that his trial counsel, Elita Amato, had provided

ineffective assistance of counsel by committing numerous errors

that allegedly prejudiced the outcome of his case. At the

evidentiary hearing, the defendant failed to carry his burden of

demonstrating that he received ineffective assistance of counsel

at trial. This memorandum opinion sets forth findings of fact

and conclusions of law explaining this conclusion.

FACTUAL BACKGROUND

A more detailed history of the facts of this case can be

found in United States v. Mejia,

(D.C. Cir. 2006).

“From June through November 1998, Costa Rican law enforcement

officers conducted an investigation of a drug trafficking

organization in Costa Rica, . . . involv[ing] multiple wiretaps,

which captured Colombian nationals [Rafael] Mejia and [Valencia- -2-

]Rios discussing large drug transactions with other members of

their drug trafficking organization.”

. Using

information from the wiretaps, Costa Rican authorities

intercepted three shipments of drugs in October 1998: 200

kilograms of cocaine from a truck at the border of Nicaragua and

Costa Rica; 130 kilograms of cocaine from a truck at the border

of Nicaragua and Honduras; and 25 kilograms of cocaine from a

truck in Costa Rica.

. Then, “[o]n November 30, 1999,

a federal grand jury in the District of Columbia named Mejia and

Rios in a one-count indictment that charged them with conspiring

to distribute five or more kilograms of cocaine with knowledge

and intent that such cocaine would be unlawfully imported into

the United States, in violation of

(a),

960(a)(3), 960(b)(1)(B)(ii), and 963.”

The conspiracy was

alleged to have existed from June 1998 until at least November

1998 and spanned throughout Colombia, Panama, Costa Rica,

Guatemala, and Nicaragua.1

Mejia and Valencia-Rios were arrested by Panamanian

authorities and transferred to the custody of United States Drug

Enforcement Agency (“DEA”) agents Michael Chavarria and Joseph

Evans in Panama City. En route to the United States, the DEA

1 Before trial, the grand jury issued a superseding indictment that enlarged the time period of the alleged conspiracy as beginning no later than November 1995 and continuing until February 2000, but was otherwise identical to the original indictment.

. -3-

agents advised Valencia-Rios of the charge against him and

informed him of his Miranda rights. In Fort Lauderdale,

Valencia-Rios “waived his rights and signed a written statement

inculpating himself in drug trafficking in Central America.”

Valencia-Rios “admitted to participating with . . . co-

conspirators in smuggling more than 100 kilograms of cocaine from

Panama into Costa Rica during 1998[.]”

. Trial

counsel filed a pretrial motion to suppress Valencia-Rios’

written statement, arguing that the statement was made

involuntarily and obtained in violation of the defendant’s Fourth

and Fifth Amendment rights. After an evidentiary hearing during

which Amato cross-examined Chavarria about the environment in

which Valencia-Rios made his statement, Valencia-Rios’ motion to

suppress his written statement was denied.

Mejia and Valencia-Rios were tried together. The government

presented the following evidence against Valencia-Rios. Nine

tapes of telephone calls between Valencia-Rios and other members

of the conspiracy were introduced into evidence.2

.

Witness Juan Delgado, an inmate who met Valencia-Rios during his

pretrial incarceration, identified Valencia-Rios’ voice on seven

tapes. Inspector Sigifredo Sanchez, who led the Costa Rican

investigation, and Chavarria identified Valencia-Rios’ voice on

2 The jury viewed transcripts translating the Spanish heard on the tapes into English. -4-

eight tapes. Sanchez testified “as an expert in deciphering the

coded language used by drug trafficking organizations, and he

testified about the meaning of numerous conversations[,]”

including Valencia-Rios’ conversations.

DEA Agent Michael

Garland testified “as an expert on drug trafficking organizations

in Central and South America,” and “testified that the principal

market for drugs produced in Central and South America is the

United States.”

(internal quotation marks omitted).

“Chavarria and Evans testified regarding [Valencia-Rios’] post-

arrest statements[,]” including Valencia-Rios’ admission that he

participated with co-conspirators to smuggle cocaine from Panama

into Costa Rica.

The government also introduced into

evidence Valencia-Rios’ written statement obtained while he was

in custody in Fort Lauderdale. During cross-examination, Amato

elicited from Chavarria that Valencia-Rios wrote his statement in

a small, windowless room in the Fort Lauderdale airport after

being in custody for more than ten hours and before he was given

an opportunity to call his wife. (See Trial Tr. vol. X-B, 10-

71:25 to 10-74:6, Oct. 29, 2001.) Valencia-Rios did not testify

at trial and was found guilty by a jury of the charged offense.

See Mejia,

. Post-trial proceedings ensued and

sentencing was postponed.

Approximately one year after his conviction, but before

sentencing, Valencia-Rios moved for a new trial, alleging that -5-

his trial counsel had provided ineffective assistance in the

preparation and presentation of his trial defense. He alleged

that his trial counsel failed to: (1) inform Valencia-Rios about

investigative efforts undertaken in Panama and follow his

instructions as to which witnesses should be investigated; (2)

timely provide to Valencia-Rios a copy of his alleged confession;

(3) produce a defense version of transcripts of the taped

telephone calls that the government used at trial; (4) obtain and

present a handwriting expert to analyze the handwriting in

Valencia-Rios’ written statement; (5) obtain and present expert

testimony on voice identification to challenge the government’s

evidence identifying Valencia-Rios on the taped phone

conversations; (6) introduce into evidence in support of the

defendant’s motion to suppress his confession a diagram produced

by the defendant purporting to be of the room where the

government obtained his written statement; (7) obtain a copy of

Valencia-Rios’ Panamanian arrest order and arrest declaration to

challenge his arrest and transfer to the United States;

(8) obtain the testimony of potential exculpatory witnesses Jose

Antonio Ortega, Clemencia Otalvaro Morales, and Johnny Webb; and

(9) present as evidence co-defendant Mejia’s failure to identify

Valencia-Rios’ photograph. Valencia-Rios’ motion was denied as

untimely under Federal Rule of Criminal Procedure 33. He was

sentenced to 324 months in prison. Valencia-Rios appealed his -6-

conviction and renewed the same ineffective assistance of counsel

claim on appeal.

The court of appeals affirmed Valencia-Rios’ conviction for

conspiring to unlawfully import more than 5 kilograms of cocaine

into the United States, but remanded the case for “further

proceedings to consider the merits of [Valencia-Rios’]

ineffective assistance of counsel claim.”

. On

remand, Valencia-Rios renewed the same nine allegations of

ineffective assistance he raised in his untimely motion for a new

trial. A hearing was held on the defendant’s ineffective

assistance claim at which the defendant and trial counsel Amato

testified. At the hearing and in his proposed findings of fact

and conclusions of law, Valencia-Rios raised a tenth reason why

he received ineffective assistance, alleging that trial counsel

failed to fully brief him on plea offers from the government.3

3 Valencia-Rios did not identify as an issue before the evidentiary hearing trial counsel’s alleged failure to fully brief him on plea offers. Thus, after the government objected at the hearing to questioning regarding this issue, defense counsel was cautioned that he had “leeway to explore the general communications” between Valencia-Rios and his trial counsel, but “failure to talk about the plea agreement [was] not an issue raised.” (Hr’g Tr. 68:4-7, Oct. 20, 2008.) After the evidentiary hearing, the parties were ordered to brief whether Valencia-Rios’ claim that trial counsel failed to fully brief him on plea offers had been waived and, if this claim was not waived, to estimate the duration of any supplemental hearing to be held on this issue. Valencia-Rios, through counsel, responded that he was not requesting a supplemental hearing and, with the consent of the government, requested consideration of this issue based on the record developed at the evidentiary hearing. This tenth claim, then, will be addressed. -7-

LEGAL BACKGROUND

“To prove constitutionally defective representation, the

defendant must show (1) ‘that counsel’s performance was

deficient,’ and (2) ‘that the deficient performance prejudiced

the defense.’” United States v. Cassell,

(D.C. Cir. 2008) (quoting Strickland v. Washington,

(1984)); see Knowles v. Mirzayance,

(2009) (“[A] defendant must show both deficient performance and

prejudice in order to prove that he has received ineffective

assistance of counsel[.]”). To prove deficient performance, the

defendant must show “‘that counsel’s representation fell below an

objective standard of reasonableness . . . under prevailing

professional norms.’” Knowles,

(quoting

Strickland,

); United States v. Gwyn,

(D.C. Cir. 2007) (same). “Judicial scrutiny of

counsel’s performance must be highly deferential,” and “[a] fair

assessment of attorney performance requires that every effort be

made to eliminate distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.”

Strickland,

. Therefore, “‘a court must indulge a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.’” Knowles,

(quoting Strickland,

); see United -8-

States v. Askew,

(D.C. Cir. 1996).

“‘[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually

unchallengeable.’” Knowles,

(quoting

Strickland,

). The burden is on the defendant to

prove his attorney’s conduct was “unreasonable under prevailing

professional norms and that the challenged action was not sound

strategy.” Kimmelman v. Morrison,

(1986).

The prejudice prong “requires the defendant to demonstrate

that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Cassell,

(quoting United

States v. Eli,

(D.C. Cir. 2004)) (internal

quotations omitted); see Knowles,

. “When a

defendant challenges a conviction, the question is whether there

is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.”

Strickland,

. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome,”

and a defendant “need not show that counsel’s deficient conduct

more likely than not altered the outcome in the case.”

. The court “must consider the totality of the evidence

before the . . . jury.”

. -9-

During the course of representation, counsel owes to her

client several duties, and a substantial breach of any of the

duties owed amounts to deficient performance. See United States

v. DeCoster,

(D.C. Cir. 1973). Counsel’s

obligations include a duty to (1) confer with the client without

delay to ascertain potential defenses; (2) promptly advise the

client of his rights and to take all actions necessary to

preserve them; and (3) conduct “appropriate investigations, both

factual and legal, to determine what matters of defense can be

developed.”

In Kimmelman, the Supreme Court elaborated on

the duty to investigate, stating that “‘[c]ounsel has a duty to

make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.’”

(quoting Strickland,

). “[A] particular

decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure

of deference to counsel’s judgments.”

Where there is a failure to investigate a witness or other

evidence that may violate the deficient performance prong, the

defendant must still show how counsel’s failure to investigate

prejudiced the outcome of his case before a court can conclude

counsel’s performance resulted in ineffective assistance of

counsel. United States v. Debango,

(D.C. Cir. -10-

1986). Thus, for a claim based on counsel’s failure to

investigate to succeed, a defendant must make

“a comprehensive showing as to what the investigation would have produced. The focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result.” . . . Courts should insist that the defendant show to the extent possible precisely what information would have been discovered through further investigation.

Askew,

(quoting Sullivan v. Fairman,

(7th Cir. 1987)); see Gwyn,

(“[A]

defendant may not merely allege that counsel failed to undertake

an investigation.”). For example, in United States v. Moore,

(D.C. Cir. 1997), the defendant argued that his counsel

was ineffective because counsel failed to subpoena witnesses who

allegedly would have established the defendant’s innocence.

. In rejecting his claim, the court noted that the alleged

testimony of witnesses not subpoenaed “was tangential at best”

and the evidence supporting the defendant’s guilt was so strong

as to render any error by defense counsel harmless.”

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. FAILURE TO TRAVEL TO PANAMA AND FAILURE TO INVESTIGATE WITNESSES

Valencia-Rios claims that Amato failed to travel to Panama

and failed to follow his instructions on how to investigate his

case, including to interview key witnesses Jose Antonio Ortega, -11-

the defendant’s wife Clemencia Otalvaro Morales, Johnny Webb,

Mariana Ciceron Rivas, and a person identified only as Tomas.4

A. Findings of fact

The defendant testified that he instructed his counsel to

travel to Panama to find potential witnesses Ortega, Rivas,

Morales, and Tomas as possible witnesses located in Panama.

(Hr’g Tr. 124:13-15, Oct. 20, 2008.) He said that Ortega would

have testified about meeting the defendant in Panama and about

the defendant’s “activities and the nature of his businesses.”

(Id. at 125:3-5.) He viewed Rivas as important because Rivas

“had known [the defendant] for six or seven years,” and had

knowledge of the defendant’s business in the “free trading zone

in Cologne between Panama and Colombia.” (Id. at 125:11-16.)

The defendant testified that trial counsel told him she was going

to go to Panama, and that trial counsel never explained why she

decided not to call Ortega, Rivas, or Tomas as witnesses. (Id.

at 127:9-12.)

The defendant also testified that he instructed trial

counsel to investigate using Johnny Webb, who had been the

defendant’s cellmate while incarcerated in D.C. Jail, as a

defense witness. (Id. at 152:10-14.) The defendant testified

that he provided trial counsel with a letter from Webb that said

4 The defendant’s challenge to trial counsel’s failure to interview Rivas and Tomas was not explicitly raised in his motion, and is arguably waived. -12-

Webb rejected inquiries from the government seeking his

cooperation and that Webb wanted to be of assistance. (Id. at

130:4-131:10.) The defendant complained that trial counsel did

not investigate Webb and did not inform him why she decided not

to pursue Webb. (See id. at 131:1-4.)

There is no dispute that trial counsel did not travel to

Panama. Trial counsel testified that she discussed with the

defendant “a trip to Costa Rica and . . . the possibility of a

trip to Panama” for his case. (Id. at 22:1-3.) Trial counsel

did travel to Costa Rica with Heather Shaner, counsel for co-

defendant Mejia. Trial counsel recalled that the defendant

provided her with the name of a potential witness located in

Panama, whose identity she could not affirmatively recall, but

whom she spoke with by telephone when she was in Costa Rica.

(Id. at 23:4-18.) She further testified that while in Costa

Rica, she decided not to go to Panama, and that she informed the

defendant of her decision. (Id. at 22:8-15.)

With respect to investigating potential witnesses, trial

counsel did not provide any testimony suggesting she attempted to

find out any additional information about Rivas and Tomas beyond

what Valencia-Rios told her. She did interview a potential

witness, Johnny Morales-Cooper, in a Costa Rican prison. With

respect to Webb, trial counsel conceded that she did not

investigate Webb beyond “finding out that [he] was locked up and -13-

who was representing him[.]” (Id. at 120:24-25.) For the

defendant’s wife Morales, however, trial counsel testified that

she had several conversations with Morales when she was in the

District of Columbia. (Id. at 24:16-25.)

In addition, trial counsel testified that she made the

strategic decision not to call witnesses who knew the defendant

well enough to identify the defendant’s voice because the

government on cross-examination could have “destroyed him” by

having these witnesses listen to the incriminating tape

recordings and corroborate that it was the defendant speaking.

(Id. at 53:23-54:14; 78:10-13.) She testified that she concluded

that potential witnesses Webb, Rivas, Tomas, and Morales-Cooper

should not have been called because they could all identify the

defendant’s voice. (Id. at 52:20-53:1; 54:15-17.) Trial counsel

stated that she also concluded that Morales-Cooper would not have

been a helpful witness because Morales-Cooper admitted that the

defendant’s tape recorded conversations were about drugs. (Id.

at 52:19-53:7.) Moreover, as for Webb, trial counsel testified

that she didn’t believe Webb could have provided exculpatory

testimony for the defendant because he had not known the

defendant during the time of the charged conspiracy. (Id. at

77:11-17.) As for Morales, trial counsel stated that she decided

not to call Morales as a witness not only because she could

identify the defendant’s voice, but also because the defendant -14-

told her he did not want Morales involved and because Morales

knew of the defendant’s drug trafficking activity. (Id. at

52:20-53:10.)

The court finds that the defendant has established that

trial counsel decided not to travel to Panama after he instructed

his counsel to go there. Taking the testimony in the light most

favorable to Valencia-Rios, at best, Amato’s failure to travel to

Panama resulted in missed opportunities to speak with potential

witnesses Ortega, Webb, Rivas, and Tomas. In addition, trial

counsel did not investigate Webb. Nonetheless, the court finds

credible trial counsel’s testimony that she adopted a strategy

not to call witnesses at trial who would be able to identify the

defendant’s voice and finds that trial counsel’s decisions about

whether to investigate certain witnesses stemmed from this

strategic decision. Because she concluded from what the

defendant said that all of the Panamanian witnesses could have

identified the defendant’s voice, they would not have been called

as trial witnesses. With respect to Morales, the court credits

trial counsel’s testimony that she had several conversations with

the defendant’s wife about the possibility of her testifying

while Morales was in the District of Columbia and finds credible

trial counsel’s proffered reasons for deciding not to call

Morales at trial. -15-

B. Conclusions of law

Here, important evidence against the defendant included

incriminating tape recorded narcotics-related phone conversations

purporting to bear the defendant’s voice. Using defense

witnesses who on truthful cross-examination would have been able

to identify the defendant’s voice would have undermined the

defense attack on the reliability of the government’s witnesses’

voice identifications. Trial counsel’s decision not to pursue

such witnesses was a reasonable strategic decision that was

within the range of competent professional assistance. Moreover,

because trial counsel’s decisions not to pursue investigations of

Ortega, Rivas, Tomas, or Webb were consistent with the reasonable

strategy not to call witnesses at trial who could identify the

defendant’s voice, these decisions were also reasonable in the

circumstances. The defendant has not carried his burden to show

that trial counsel’s failure to travel to Panama or to

investigate witnesses Webb, Ortega, Rivas, or Tomas amounted to

deficient performance under the circumstances of his case.

Further, the defendant has neither shown with the level of

precision required what the proffered testimony of any of the

proposed witnesses would be, nor shown that it likely would have

had an impact upon the outcome of his case given the totality of

the evidence against him. The defendant has not shown that

Ortega, Rivas, and Tomas had anything more than some general -16-

knowledge about some business activity by the defendant. The

defendant did not demonstrate that general testimony about some

business activity by the defendant could have successfully

rebutted the government’s incriminating evidence that he

participated in a cocaine-smuggling conspiracy. Similarly, the

defendant’s cellmate, Webb, did not meet the defendant until

after the defendant had been arrested. There is no showing that

Webb had any first-hand knowledge of the defendant’s activities

during the period of the charged conspiracy. Thus, the defendant

has not carried his burden to demonstrate how trial counsel’s

failure to travel to Panama or to interview these witnesses

prejudiced his case.

With respect to the defendant’s wife Morales, the defendant

has not shown that trial counsel’s performance was deficient.

Trial counsel investigated the potential utility of Morales

testifying during trial counsel’s meetings with Morales in the

District of Columbia. In addition, because Morales could

identify the defendant’s voice and knew of his drug trafficking

activities, trial counsel’s decision not to call Morales as a

witness was an objectively reasonable decision. Further, because

Morales’ truthful testimony likely would have weighed against the

defendant, the defendant has not shown that there was any

prejudice resulting from trial counsel’s decision not to call

Morales as a witness. Accordingly, the defendant has not shown -17-

trial counsel’s decisions regarding Morales to be either

deficient or prejudicial.

II. DEFENDANT’S WRITTEN CONFESSION

The defendant contends that he received ineffective

assistance because trial counsel failed to give him and review

with him a copy of the confession the government said he wrote.

A. Findings of fact

Trial counsel testified that she recalled showing the

statement to the defendant while he was in the D.C. Jail,

although she could not remember on what precise date, during one

of their first meetings before the hearing on the motion she

filed to suppress the statement. (Hr’g Tr. at 30:11-24.) She

recalled going through the statement “line by line” with the

defendant. (Id. at 38:14-15.) She further testified that she

would not have given him a copy to keep with him at the jail

because it was her policy not to leave copies of documents with

her clients in custody where other cellmates could gain access to

them and then later testify on behalf of the government against

her clients. (Id. at 31:21-32:8.) Trial counsel also testified

that the defendant was present for the hearing on the motion to

suppress at which the statement was introduced into evidence.

(Id. at 29:4-31:16; 80:4-19.)

The defendant testified that he remembered seeing the

statement in court, but he was never given a copy to keep and did -18-

not remember being able to review the statement until after

trial. (Id. at 142: 10-17; 144:6-10.) The defendant also

testified that if he had been given a copy of his statement to

keep in his cell at the jail, he would have “stipulated on how

[the] proceeding [in which he wrote his statement] took place,

the promises that the DEA agents made to [him] in order for [him]

to receive a benefit” for “cooperat[ing] with the investigation

of [his] case.” (Id. at 145:15-19.) He did admit writing the

statement. (Id. at 144:4-5.)

It is undisputed that trial counsel did not provide the

defendant with a copy of his statement for the defendant to keep

in his possession. Although the defendant testified that he did

not remember seeing the confession until after trial, given how

early trial counsel received a copy of the confession and how

important it was to the case, the court finds trial counsel’s

recollection that she reviewed the defendant’s written statement

with the defendant at one of their early meetings probable and

credible. The court finds that the defendant had an opportunity

to view the statement at the pretrial hearing on the defendant’s

motion to suppress the statement and at trial. The statement was

introduced into evidence on both occasions. Although it is

unclear exactly what action the defendant means he would have

taken when he says he would have “stipulated” had he been given a

copy of the statement, the court does not credit the implication -19-

that some materially more beneficial course of action would have

been followed. The defendant was well aware of the existence of

the statement and its contents, as he expressly admitted writing

it, and was present at the pretrial hearing and the trial when

the government introduced the statement into evidence against

him. The defendant offered no persuasive reason to support the

notion that his having a copy to keep would have made any

difference, or that not having a copy prejudiced him.

B. Conclusions of law

The defendant has failed to show any deficient performance

or prejudice with respect to trial counsel’s consultation

regarding his written confession. It is of no moment that trial

counsel did not give him a copy of the alleged confession to keep

with him at the jail because trial counsel’s practice of not

leaving copies of confessions with incarcerated clients was a

sound and sensible policy. Even if trial counsel had not

provided the defendant with sufficient access to his statement,

the defendant has not carried his burden to show any prejudice

resulting from trial counsel’s failure to give him a copy of the

statement to keep in his possession. Because the defendant does

not dispute that he was the author of the statement or that trial

counsel cross-examined Chavarria to try to show that the

statement was obtained in coercive circumstances, the defendant

has not shown that trial counsel should have defended against the -20-

government’s use of the written statement any differently than

she did.

III. DEFENSE VERSION OF TAPE RECORDING TRANSCRIPTS

The defendant alleges that trial counsel failed to prepare

for use at trial a defense version of the transcripts of the tape

recorded phone conversations, and that failure was deficient

performance that prejudiced his case.

A. Findings of fact

Trial counsel testified to a number of steps she took to

assure defense input in the transcripts used at trial. She

personally reviewed the English-version transcripts of the tape-

recorded phone calls. She employed a translator, Martha

Goldstein, to listen to all of the tape recordings and review the

government’s version of the transcripts for errors in

ascertaining what Spanish word was said and errors in translating

the Spanish to English. (Hr’g Tr. 39:9-41:19.) She presented

the government with proposed changes to the transcripts prepared

by the government and the government accepted the proposed

changes without objection. (Id. at 90:2-19.) The defendant

provided no evidence to dispute that his counsel had defense

versions of transcript portions prepared and that the government

incorporated all of defense counsel’s proposed changes into the

version of the transcripts used at trial. The court finds that

trial counsel’s recollection was credible, that there was a -21-

defense version of transcript portions prepared, and that they

were fully incorporated into the transcripts employed by the

government at trial.

B. Conclusions of law

Because trial counsel did produce defense versions of the

phone call transcripts that were employed at trial, the defendant

has adduced no facts in support of this claim. Accordingly, the

defendant has not carried his burden to show any malfeasance or

error by trial counsel with respect to the transcripts of the

recorded phone conversations displayed at trial.

IV. EXPERT TESTIMONY ON HANDWRITING AND VOICE IDENTIFICATION

The defendant contends he received ineffective assistance of

counsel because trial counsel did not present at trial expert

testimony comparing the defendant’s handwriting to the

handwriting in the statement the government said he wrote in Fort

Lauderdale, or expert testimony on voice identification to

discredit the government’s witnesses who identified the

defendant’s voice on the tape recorded phone conversations.

A. Findings of fact

The defendant admits that he wrote the written statement in

Fort Lauderdale that was introduced by the government against

him. (Hr’g Tr. at 144:4-5.) Trial counsel testified that in

light of the defendant’s admitted authorship, she determined a

handwriting expert would not have been helpful to the defense. -22-

(See id. at 78:24-79:19.) Trial counsel further testified that

since she could not dispute that the defendant penned the

statement, her trial strategy was to argue that the content of

the statement was dictated by the DEA agents. (Id. at 39:6-8.)

Trial counsel further testified that she retained Dr. Offshe, a

purported expert in false confessions, to assess whether

Dr. Offshe could testify on whether the defendant’s statement was

written voluntarily. (Id. at 35:8-36:16, 79:11-18.) However,

Dr. Offshe concluded he would not be a helpful witness because he

believed the defendant’s written statements were true. (Id.)

Accordingly, trial counsel determined that Dr. Offshe’s testimony

would not have aided the defense. The defendant did not rebut

trial counsel’s testimony regarding her consultation with

Dr. Offshe.

With respect to trial counsel’s alleged failure to present

voice identification testimony, trial counsel testified that she

listened to all the tape recordings of phone conversations along

with both the defendant and Morales-Cooper. Both said that it

was the defendant’s voice on most of the tapes, except for one or

two. (Id. at 84:13-85:2.) Given Valencia-Rios’ own confirmation

that it was his voice on the bulk of the tape recordings, there

would have been little point in retaining a voice identification

expert whose accurate opinion could only have incriminated the

defendant. -23-

Nevertheless, trial counsel still explored the possibility

of using voice identification expert JoAnne Payne as a defense

witness. Ordinarily, Payne records voice samples in person and

by phone to use for comparisons to questioned recordings. Trial

counsel considered instead having Payne not record samples, but

rather listen to only one of the calls that was not the

defendant’s voice and one of the calls that was the defendant’s

voice. In an effort to create reasonable doubt about the

government witnesses’ identifications, she would have Payne

testify that the voices on the calls were different. However,

trial counsel ultimately concluded that any voice identification

expert used in this manner likely “would have been destroyed on

cross-examination” because the government could elicit that the

expert broke from her usual analytical protocol, and that trial

counsel gave her only limited information to use in forming her

expert opinion. (Id. at 43:8-44:20.) Instead, trial counsel

decided to attack on cross-examination the government’s witnesses

who identified the defendant’s voice on the recordings by showing

how little they knew the defendant and how little time that they

actually spent meeting with him. (See id. at 45:14-18.) The

defendant provided no evidence at the hearing to rebut that it

was his voice on most of the tapes or that a voice identification

analysis would not have produced an opinion favorable to the

defense. -24-

B. Conclusions of law

The defendant has not carried his burden of showing either

deficient performance or prejudice with respect to trial

counsel’s decisions concerning the use of expert testimony on

handwriting and voice identification. Given that the defendant

never denied writing the statement introduced against him or

being the speaker on the bulk of the recordings, trial counsel’s

decision not to seek experts to analyze the statement and tapes

was entirely reasonable under the circumstances and was not

deficient performance. Trial counsel did explore using a voice

identification expert and made a tactical decision not to call a

voice identification expert witness after determining that

traditional voice identification analysis would not result in

favorable testimony and that any favorable expert voice

identification testimony procured through nontraditional methods

would likely be undermined by cross-examination.

Further, the defendant’s claims that trial counsel was

ineffective because she failed to secure certain experts fails

because the defendant has provided no evidence suggesting there

was a handwriting or voice identification expert available who

would have provided testimony favorable to him. See United

States v. Smith,

,

, at *2 (D.C. Cir.

1996) (unpublished Table opinion) (finding that the appellant’s

ineffective assistance claim on the basis that counsel had not -25-

retained a drug expert could not succeed because there was “no

evidence to suggest that another chemist would have found

something other than [the] cocaine base” the defendant was

charged with distributing). Accordingly, the defendant has not

carried his burden of showing trial counsel’s decisions regarding

handwriting and voice identification experts were deficient or

prejudicial in any way.

V. DEFENDANT’S DIAGRAM

The defendant alleges that he received ineffective

assistance of counsel because trial counsel did not introduce

into evidence in support of the defendant’s motion to suppress

his written statement a diagram the defendant drew of the room in

which his written statement was obtained.

A. Findings of fact

The defendant provided trial counsel with a drawing that he

made to illustrate the confined space in the Fort Lauderdale room

in which he wrote the statement used against him by the

government. The defendant’s diagram was a drawing on a plain

piece of paper purporting to show a person kneeling in front of a

table, holding a pen and writing on something, with two other

individuals in the background. The drawing was not drawn to any

scale and trial counsel did not find it of significant help.

(Hr’g Tr. at 92:14-17, 105:22-107:2.) Trial counsel said that

the defendant was not going to testify, and she concluded that it -26-

would have been difficult to introduce the diagram into evidence

without putting the defendant on the stand to authenticate the

drawing since the agents could not be relied upon to say the

diagram was a fair and accurate depiction. (Id. at 37:4-38:3.)

Accordingly, she made the tactical decision not to use the

diagram at the motions hearing or at trial and instead, to

question Chavarria about the coercive conditions in the small

room when the defendant wrote his statement. (See Hr’g Tr. at

38:4-7; 106:23-107:2.)

The available portion of the motions hearing transcript

reveals that the circumstances under which Valencia-Rios made his

written statement were explored during Chavarria’s testimony.

Chavarria testified during direct examination that upon arrival

in Fort Lauderdale, he took Valencia-Rios to a private room in

the airport where Valencia-Rios made his statement in the

presence of Chavarria and Sanchez. During cross-examination,

trial counsel drew out additional facts about the circumstances

under which Valencia-Rios made his statement, including that

Valencia-Rios was separated from his co-defendant when he was

taken to the room in which he wrote his statement, the size and

temperature of the room, and that the room lacked windows.

Authenticating the diagram reliably likely would have

required the defendant to testify, and the risk of subjecting the

defendant to cross-examination by the government at the motions -27-

hearing or at trial outweighed any potential benefit that the

diagram would provide. Further, the defendant has not shown that

the diagram on its face best conveyed an image of a cramped,

coercive environment. Accordingly, cross-examination of

Chavarria about the allegedly cramped, coercive environment in

which the defendant wrote his statement made the same point the

defendant sought to make with his diagram and was likely a better

litigation strategy to choose over displaying the defendant’s

diagram. To the extent that the diagram could have been used

during cross-examination of Chavarria, given the facts drawn out

by both parties during Chavarria’s testimony regarding the

environment in which Valencia-Rios wrote his statement, Valencia-

Rios has not demonstrated that use of the diagram would have

revealed additional material facts about his environment that

would have altered the ruling on his suppression motion.

B. Conclusions of law

The defendant has shown neither deficient performance nor

prejudice regarding trial counsel’s decision not to use at his

suppression hearing his diagram of the room where he wrote his

statement. The choice of how to present evidence falls within

the realm of litigation strategy that is generally protected from

challenge. See Kimmelman,

. In light of the

great risk posed by having the defendant testify to authenticate

his diagram and the minimal value of the diagram in communicating -28-

the coercive conditions of the room, trial counsel’s decision not

to introduce his diagram and instead to reveal the conditions

under which he wrote his statement through cross-examination of

Chavarria was a sound, well-reasoned decision within the range of

competent assistance. Similarly, because the conditions of the

room were actually revealed through cross-examination of

Chavarria, the diagram would not have had an impact upon the

outcome of the defendant’s motion. Accordingly, the defendant

has not shown trial counsel’s decisions regarding his diagram to

be deficient performance or prejudicial to his case.

VI. PANAMANIAN ARREST DOCUMENTS

The defendant alleges that trial counsel provided

ineffective assistance because she did not adequately investigate

and challenge the defendant’s arrest in Panama.

A. Findings of fact

The defendant testified that investigation of his arrest in

Panama was important to him and that he asked trial counsel to

bring him documents and evidence relating to his arrest. (Hr’g

Tr. 150:9-151:10.) Trial counsel testified that she had her

paralegal contact a lawyer in Panama, Carlos Herrera Moran, who

was working for the defendant’s wife, for assistance in obtaining

information relating to the defendant’s arrest. (Id. at 14:10-

21:20.) Trial counsel also recalled making some phone calls to

Panama, but did not specifically recall the dates of the phone -29-

calls or to whom she spoke. (Id.) She further testified that

she wrote letters to the Colombian consulate asking them to

investigate the defendant’s Panamanian arrest. (Id. at 16:16-

21:20.) Trial counsel also recalled conducting research into

case law regarding the impact of a foreign arrest on a

defendant’s rights once he is taken into custody by the United

States and concluded that the law was not in the defendant’s

favor. (Id. at 26:15-27:9.) The defendant does not dispute

trial counsel’s recollection of the efforts she did undertake to

investigate his arrest and the court credits trial counsel’s

testimony. (Id. at 150:17-151:14.)

The defendant has provided no evidence as to the relevance

of his Panamanian arrest.

B. Conclusions of law

Because the defendant has not provided any evidence as to

the relevance of his Panamanian arrest, the defendant has not

carried his burden to demonstrate that trial counsel’s

investigation decisions regarding his arrest prejudiced his case

in any way. Of note, on appeal, the defendant argued “that the

district court lacked jurisdiction over [his] case because DEA

agents took [him] into custody in Panama and transferred [him] to

the United States without following the formal requirements of

the extradition treaty between the two countries.” Mejia,

. The court of appeals rejected this argument, -30-

upholding the application of the rule from Ker v. Illinois,

(1886). See

. Under the rule in Ker,

the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a “forcible abduction” . . . . [D]ue process of law is satisfied when one present in court is convicted of crime after . . . a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.

United States v. Alvarez-Machain,

(1992)

(quoting Frisbie v. Collins,

(1952) (citation

and footnote omitted)). The court of appeals held that, under

Alvarez-Machain, a court first asks whether the abduction of a

defendant violates the extradition treaty between the United

States and the country in which the defendant was abducted.

Mejia,

(citing Alvarez-Machain,

).

If the abduction does not violate the extradition treaty -- for

example, because abduction at issue is outside the scope of the

treaty -- then the rule in Ker applies, and a court has

jurisdiction over a defendant procured from the foreign country.

The court of appeals then upheld the finding that the

defendant’s arrest was outside the scope of the treaty between

the United States and Panama and that the trial court had

jurisdiction under the rule in Ker. Id. at 443. Accordingly, to

the extent that the defendant is alleging that trial counsel’s

investigation of the Panamanian arrest affected disproving the -31-

court’s jurisdiction over his case, such an argument is

foreclosed as a matter of law by the court of appeals’ decision.

Because the defendant has not advanced any alternative theories

for the relevance of evidence relating to his Panamanian arrest

that could have been obtained but was not, the defendant has not

carried his burden to show prejudice stemming from trial

counsel’s investigation of his Panamanian arrest.

VII. MEJIA’S FAILURE TO IDENTIFY THE DEFENDANT’S PHOTOGRAPH

The defendant contends that trial counsel provided him

ineffective assistance because she did not pursue and present

evidence that Mejia failed to identify the defendant’s

photograph.

A. Findings of fact

The defendant provided no evidence to support his claim that

Mejia could not identify the defendant’s photograph. Trial

counsel testified that she could not recall Mejia’s alleged

nonidentification and the defendant did not testify on his own

behalf as to this issue. (See Hr’g Tr. 58:19-24.) Further,

trial counsel testified that she felt the government’s evidence

at trial did not suggest that Valencia-Rios and Mejia did know

each other. (See id. at 109:7-9.)

B. Conclusions of law

Because the defendant failed to provide any evidence in

support of this claim, he has failed to carry his burden of -32-

showing either deficient performance or prejudice with respect to

the trial counsel’s decisions regarding Mejia’s alleged

nonidentification of Valencia-Rios’ photograph. Further, given

that neither the government nor Mejia disputed Valencia-Rios’

contention that he did not know Mejia, the introduction at trial

of evidence about Mejia’s nonidentification, if it existed, would

not likely have made any difference in the outcome of the

defendant’s case. Accordingly, the defendant has not carried his

burden of proving that he received ineffective assistance of

counsel with respect to Mejia’s nonidentification of the

defendant.

VIII. BRIEFING ON PLEA OFFERS

Valencia-Rios contends trial counsel provided him

ineffective assistance because she did not fully brief him on

potential plea offers.

A. Findings of fact

Trial counsel testified that she recalled several plea

offers by the government before and during Valencia-Rios’ trial,

including oral offers and at least one written offer, seeking to

have Valencia-Rios plead guilty and cooperate with the

government. (Id. at 60:25-61:16.) Trial counsel recalled that

she received at least one letter from the government, dated

August 7, 2001, containing a plea offer. She testified that she

had the letter translated into Spanish for Valencia-Rios. (Id. -33-

at 62:2-10.) Although she could not recall the specific date on

which she discussed this letter with the defendant or the

specific details of the conversation, trial counsel recalled that

she did discuss the plea offer in the August 7, 2001 letter with

the defendant and obtained his signature on the translated

letter, reflecting that he had read the letter but was not

interested in pleading guilty. (Id. at 61:4-8; 68:8-16.)

Valencia-Rios testified that the only discussion he had with

counsel regarding potential plea offers occurred in connection

with the government’s August 7, 2001 letter. (Id. at 133:6-8.)

He further testified that he signed the letter and said he would

not accept responsibility because trial counsel did not present a

scenario under the Sentencing Guidelines that “could have been

favorable for [him] had [he] accepted the guilty plea.” (Id. at

133:14-18; see 148:3-7.) The defendant did not testify or

present any other evidence demonstrating that there was any plea

offer from the government that he would have accepted had he

received different advice from his counsel.

Both witnesses appear to agree that trial counsel did

discuss the August 7, 2001 letter with the defendant. To the

extent that trial counsel and Valencia-Rios’ recollections of

whether there were additional discussions regarding plea offers

differ, for the reasons explained below, it is unnecessary to

determine whose recollection is more accurate. -34-

B. Conclusions of law

The defendant has not shown any prejudice stemming from

trial counsel’s allegedly deficient efforts to brief him on plea

offers. As for the government’s August 7, 2001 plea offer,

Valencia-Rios’ testimony revealed that he was informed of the

terms of the offer and that he decided not to accept the offer

because he was not satisfied with the offer’s terms. Neither his

testimony nor trial counsel’s testimony suggested that Valencia-

Rios’ understanding of that offer was incorrect or insufficient.

To the extent there may have been any other plea offers,

Valencia-Rios presented no evidence demonstrating that there was

a plea offer that he would have accepted had it been adequately

explained to him by trial counsel. Nor does Valencia-Rios allege

any alternative theory as to how trial counsel’s alleged failure

to fully brief him on plea offers would have altered the outcome

of his case. Having failed to show that there was a plea offer

that Valencia-Rios would have accepted from the government or to

allege any alternative theory explaining how counsel’s allegedly

deficient consultation regarding plea offers could have

prejudiced his case, Valencia-Rios has not established that trial

counsel’s efforts to inform him of plea offers, even if deficient

in some manner, were prejudicial to his case. Thus, the

defendant has not proven that he received ineffective assistance -35-

of counsel with respect to trial counsel’s efforts to brief him

on plea offers.

CONCLUSION AND ORDER

In light of the findings of fact and conclusions of law

above, the defendant has not shown that he received ineffective

assistance of counsel at trial. With this Memorandum Opinion,

both of the two directives on remand from the court of appeals

now have been fulfilled. See Mejia,

. Thus, it

is hereby

ORDERED that the Clerk transmit a copy of this Memorandum

Opinion to the Clerk of the Court of Appeals.

SIGNED this 5th day of August, 2009.

/s/ RICHARD W. ROBERTS United States District Judge