UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40608

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD PAUL HASS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (6:96-CR-50-8) _________________________________________________________________ November 26, 2001

Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:1

For this pro se appeal from the denial of

relief, and under the requisite certificate of appealability

granted by the district court, the principal issues are: whether,

pursuant to United States v. Leach,

(5th Cir. 1990),

cert. denied,

(1991), reversible error occurred when

the guilty pleas of non-testifying co-conspirators were introduced

at the trial of Richard Paul “Buddy” Hass; and whether,

concomitantly, Hass received ineffective assistance of counsel when

1 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. his trial and appellate counsel failed, respectively, to object and

to contest the introduction of those guilty pleas. AFFIRMED.

I.

Convicted for conspiracy to manufacture and distribute

methamphetamine, Hass was sentenced to 262 months imprisonment and

a ten-year period of supervised release. His conviction and

sentence were affirmed on direct appeal. United States v. Hass,

(5th Cir. 1998), cert. denied,

(2000). The evidence showed that Hass and his brother, Tommie

Hass, “were involved in a large-scale methamphetamine distribution

ring, mainly as suppliers to Terry Anderson”. Id. at 446.

II.

For this denial of § 2255 relief, issues of law are reviewed

de novo; findings of fact, for clear error. E.g., Warren v. Miles,

(5th Cir. 2000). Hass maintains: his court

appointed trial counsel rendered ineffective assistance by failing

to object and request a curative instruction when the Government

referred to the guilty pleas of non-testifying co-conspirators (he

claims the Government did so to show substantive evidence of

guilt); and his substitute, retained appellate counsel rendered

ineffective assistance by failing to raise this issue on direct

appeal. Because both issues concern ineffective assistance of

counsel vel non, we are guided by Strickland v. Washington,

(1984), which requires showing both that counsel’s

performance was deficient; and that such deficient performance

2 prejudiced the defense.

. Deficient performance is

based on an objective standard of reasonableness, considering all

the circumstances.

. Further, there is “a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance”, and judicial review is highly

deferential to counsel’s performance.

.

To show prejudice, Hass must show “there is a reasonable

probability that, but for counsel’s errors, the result of the

proceeding would have been different”. Lavernia v. Lynaugh,

(5th Cir. 1988) (citing Strickland, 446 U.S. at 694).

Because Hass contends counsel rendered ineffective assistance

for failing to object to the introduction of non-testifying co-

defendants’ guilty pleas and failing to raise the issue on direct

appeal, the linchpin is whether admission of the guilty pleas

constituted reversible error. Evidence concerning the conviction

of a co-conspirator is not admissible as substantive proof of guilt

of the defendant, but a defense strategy based on a co-

conspirator’s guilt operates as an exception to the rule that

admission of a guilty plea is plain error. See United States v.

Leach,

(5th Cir. 1990). Other factors to

consider when determining reversible error vel non include the

presence of a limiting instruction, a proper evidentiary purpose

for the plea, the improper emphasis on the plea as substantive

evidence, and whether the introduction was invited by defense

counsel. See Leach,

.

3 A.

Hass claims ineffective assistance through his trial counsel’s

failing to object to the introduction of the guilty pleas of

several non-testifying co-conspirators. As discussed below, Hass

has not shown a Leach error occurred: he has not shown any

evidence of improper emphasis of the guilty pleas by the

Government; the district court issued limiting instructions; and

Hass and his co-defendant brother employed a defense strategy

utilizing co-conspirators’ guilty pleas.

1.

As stated, the Government did not improperly emphasize co-

conspirators’ guilty pleas. Both hereinafter-described references

were in passing and were in relation to other evidence submitted

for a proper purpose.

Jorge Teakell, who testified as a Government witness and

stated he pleaded guilty to selling methamphetamine, admitted that

his brother, Juan Teakell, entered a guilty plea in the conspiracy

case.2 Jorge Teakell testified: Juan Teakell’s arrest precipitated

2 After Jorge Teakell testified that his brother Juan Teakell, who did not testify, was involved in the case, the testimony elicited by the Government was as follows:

Q: Okay. And what happened to him, has – did he enter a plea?

A: I believe he did.

Q: Okay. So, he entered a plea of guilty to the conspiracy just like you?

A: Yes.

Q: And he’s over in the Smith County Jail,

4 Jorge Teakell’s involvement in the conspiracy; Jorge Teakell’s

first sale of methamphetamine was to Hass and Terry Anderson; and

Hass paid for the drugs.

The one other instance of Government-elicited testimony of a

guilty plea occurred during the testimony of Calvin Reno, a

Government witness not charged in the case. After testifying that

he purchased drugs from Terry Anderson and her husband, Thomas

Anderson, Reno testified that Terry Anderson identified “Juan” and

“Buddy” as her suppliers. Reno further testified that he witnessed

several drug deals between Terry Anderson and Hass. At the end of

his testimony, the Government asked Reno about an address list and

a list of telephone numbers. Reno identified several individuals

on the mailing list, including Debra Longbine. The Government

asked if Longbine had been a defendant in the case who pleaded

guilty, and Reno responded affirmatively.

Again, our review of the record does not reveal any attempt by

the Government to use these references to the guilty pleas of other

co-conspirators as substantive evidence of Hass’ guilt. See United

States v. Samak,

(5th Cir. 1993). Considering

the length of testimony by each witness and their specific

testimony as to Buddy Hass, we cannot say that passing references

to non-testifying co-conspirators’ guilty pleas amounted to

improper emphasis of the pleas by the Government.

also?

A: Yes, he is.

5 If anything, as described below, the record reveals that

references to guilty pleas to discredit witnesses and non-witnesses

were part of a defense strategy by counsel for co-defendant Tommie

Hass, and there is some indication that Hass’ counsel used the same

strategy during closing arguments. While cross-examining a DEA

Agent, Tommie Hass’ counsel asked whether Thomas Anderson, who did

not testify, had entered a plea of guilty in the case. And, while

cross-examining James Howard, an unindicted co-conspirator, Tommie

Hass’ counsel asked about the guilty pleas of Scott and Debra

Longbine and Cheryl Cheek, all of whom did not testify. The

references to guilty pleas were an attempt to discredit these

individuals by showing their unreliability. Further, during

closing arguments, Tommie Hass’ counsel stated the evidence was

probably sufficient “to convict those who [had] entered pleas”,

without distinguishing between those who did, and did not, testify;

and Hass’ and Tommie Hass’ counsel repeatedly emphasized the guilty

pleas of testifying co-conspirators. See Samak,

;

Leach,

.

Moreover, the district court issued limiting instructions.

The jurors were instructed not to be “concerned with the guilt of

any other person or persons not on trial as a defendant”; and, with

respect to Hass’ accomplices, the court stated: “The fact that an

accomplice has entered a plea of guilty to the offense charged is

not evidence in and of itself of the guilt of any other person”.

A clear, cautionary instruction to the jury can correct the error

6 of admitting evidence of a co-conspirator’s guilty plea. See

United States v. Magee,

(5th Cir. 1987).

In sum, the jury instructions, the minimal emphasis on the

guilty pleas by the Government, and the defense strategy, certainly

of co-defendant Tommie Hass, lead us to conclude that the admission

of the guilty pleas would not have been reversible error.

2.

Hass has not shown deficient performance by his trial counsel.

Therefore, his ineffective assistance claim concerning his trial

counsel fails. In the alternative, even if a Leach error occurred,

Hass has not shown to any degree of probability that, “but for” his

trial counsel’s performance, the result of the trial would have

been different. See Lavernia,

.

As our Court’s earlier opinion for Hass’ direct appeal makes

clear, there was overwhelming evidence that Hass was guilty of

conspiracy to manufacture and distribute methamphetamine. See

United States v. Hass,

. While Hass continues to

maintain he merely associated with many of the testifying

witnesses, the evidence is to the contrary. Given the volume of

testimony in this case, passing references to the guilty pleas of

non-testifying co-conspirators during the first two days of a two-

week trial does not amount to sufficient prejudice to show a

reasonable probability that, had Hass’ counsel objected, the result

would have been different.

As stated, Hass was represented by court appointed counsel at

trial and was allowed to substitute retained counsel on appeal.

For deficient performance with respect to his appellate counsel,

Haas must show that his due process challenge concerning the

admission of the guilty pleas “would have been sufficiently

meritorious such that [Hass’] counsel should have raised it on

appeal”. United States v. Phillips,

(5th Cir.

2000). For the prejudice prong, Hass must demonstrate plain error

concerning the pleas’ admission. See Samak,

.

For prejudice, vel non, and given our above discussion of the

jury instructions, the absence of any evidence of improper emphasis

by the Government, and the trial strategy of discrediting witnesses

through the use of their guilty pleas, there was no error, much

less plain error. Therefore, Hass’ appellate counsel did not

render ineffective assistance. See Phillips,

.

Counsel raised numerous issues on direct appeal, see United States

v. Hass,

, and his conduct fell within

the “wide range of reasonable professional assistance” discussed in

Strickland.

.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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