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Title United States v. Toms

Argued November 15, 2004 Decided February 1, 2005

Subject Crime

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2004 Decided February 1, 2005

No. 02-3082

UNITED STATES OF AMERICA,

APPELLEE

RONALD JAMES TOMS, A/K/A BLOCK,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 93cr00367-01)

Elaine J. Mittleman argued the cause for appellant. On the

briefs were Pleasant S. Brodnax, III and Mary E. Davis.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Kenneth L.

Wainstein, U.S. Attorney, and John R. Fisher and Thomas J.

Tourish, Jr., Assistant U.S. Attorneys. Roy W. McLeese, III,

Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and TATEL and ROBERTS,

Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBERTS.

ROBERTS, Circuit Judge: Appellant Ronald Toms appeals

the district court's denial of his motion under 28 U.S.C. § 2255

to vacate convictions for several drug and firearms offenses. He

argues that the deficient performance of his trial attorney

deprived him of his constitutional right to effective assistance of

counsel. We conclude that the district court did not err in

denying Toms's motion or in refusing to conduct an evidentiary

hearing, and affirm.

In November 1993, a grand jury returned a superseding

indictment against Toms and two co-defendants, Jimmy Thomas

and Keith Bradley. The first count of the indictment charged all

three men with conspiracy to distribute and to possess with

intent to distribute 50 grams or more of cocaine base from 1987

to October 1993. 21 U.S.C. § 846. Three counts charged Toms

and Bradley with offenses stemming from the circumstances of

their September 10, 1993 arrests: possession of 50 grams or

more of cocaine base with intent to distribute, 21 U.S.C.

§§ 841(a)(1) & (b)(1)(A)(iii); using or carrying a firearm during

and in relation to a drug trafficking crime, 18 U.S.C. § 924(c);

and carrying a pistol without a license, D.C. CODE ANN.

§§ 22-3204(a) & 105 (1981). Toms and Thomas were also

charged with distributing cocaine base on two separate occasions

in July and September 1993. Thomas and Bradley each pled

guilty. Toms chose to proceed to trial.

At trial, the government presented evidence showing that

from 1987 to 1993, Toms supplied crack cocaine to Thomas,

Bradley, and ten to fifteen other street-level dealers in Washing-

ton, D.C. Thomas testified that he had received drugs from

Toms "hundreds" of times, Trial Tr. 1/13/95 at 124, and saw

Toms supplying other dealers on many occasions. This account

was corroborated by the testimony of two other prosecution

witnesses who at one time or another sold drugs in the same

vicinity as Toms. Testimony from several law enforcement

agents also indicated that, on four occasions between 1987 and

1992, Toms had been stopped in cars in which drugs, guns, or

large amounts of cash were found.

The government also offered evidence regarding Toms's

arrest. In September 1993, law enforcement officers had Toms

and Bradley under surveillance. On September 10, the officers

were following a vehicle Toms was driving with Bradley as a

passenger. When Toms began speeding and weaving in and out

of traffic, the officers pulled the vehicle over. After removing

Toms and Bradley, the officers noticed a loaded nine-millimeter

handgun on Bradley's seat. Searches at the scene revealed

$2,000 in cash on Toms and another $8,000 stuffed in an air vent

of the vehicle. The vehicle was impounded and searched more

thoroughly. A drug-sniffing dog found a plastic bag containing

67.8 grams of cocaine base under the back seat. Evidence

indicated that the vehicle belonged to Toms.

Faced with a strong case against his client, Toms's attorney

pursued several lines of defense. First, he sought to cast doubt

on Thomas's testimony. He noted that Thomas was cooperating

with the government and had made inconsistent statements in an

earlier affidavit. Two defense witnesses also stated that Thomas

had told them he was supplied with drugs by a source in Detroit.

Second, the defense called Bradley, who testified that the drugs

and gun found in the vehicle belonged to him and that Toms was

unaware of them. Finally, Toms himself took the stand, in part

to explain that the large sum of cash recovered at the time of his

arrest was intended for the production of a compact disc for a

recording company he owned.

A jury convicted Toms on the conspiracy charge, the charge

of possession with intent to distribute, and the two firearms

charges. He was acquitted of the two counts of cocaine distribu-

tion. The court sentenced Toms to concurrent life sentences for

the drug counts, followed by a consecutive five-year sentence on

the federal weapons charge. He also received a one-year

sentence on the second weapons charge, concurrent with the

other sentences. We affirmed the conviction and sentence on

appeal. United States v. Toms, 136 F.3d 176 (D.C. Cir. 1998).

Toms subsequently filed a motion under 28 U.S.C. § 2255

asking the district court to vacate his convictions. He claimed

that his attorney had committed a host of errors at trial, depriving

him of his right to effective assistance of counsel. Toms pressed

two principal arguments: first, that his attorney elicited damag-

ing testimony about the criminal activities of Toms's family and

friends; and second, that due to inadequate preparation, counsel

was forced to stipulate to damaging evidence and failed to

subpoena two defense witnesses whose testimony might have

been helpful.1 In addition to the claim of ineffective assistance,

Toms argued that the jury had been contaminated when it was

shown an exhibit that had not been admitted into evidence. In

a supplemental motion, Toms restyled this claim as a charge that

the prosecution had failed to disclose the exhibit as required by

Brady v. Maryland, 373 U.S. 83 (1966).2

The district court found no merit to Toms's ineffective

assistance claim and rejected his request for an evidentiary

hearing. The same judge who had presided over Toms's trial

found that counsel was prepared and that his decisions to elicit

1 In addition to the contentions discussed in the text, Toms argued

that counsel did not adequately cross-examine Thomas because of a

potential conflict of interest, did not object to the prosecution's cross-

examination of Bradley, neglected to build a record for appeal, and

failed to call a third witness who would have testified that Toms was

traveling to a recording studio at the time of his arrest. He renews

these claims on appeal.

2 Toms also raised other claims not considered here because they

were rejected by the district court and not renewed on appeal.

certain testimony about Toms's associates and not to subpoena

the witnesses were part of a trial strategy, falling within the

"wide range of reasonable professional assistance." Mem. Op.

at 7. Furthermore, the court found that any errors by counsel

were not prejudicial, given "the government's overwhelming

evidence" against Toms. Id. at 14. The court also rejected

Toms's Brady claim, on the ground that there was no reasonable

probability that the result in the case would have been different

had the exhibit been disclosed. Id. at 11.

On appeal, Toms renews his ineffective assistance and

Brady claims and challenges the district court's refusal to hold

a hearing on his section 2255 motion.

II.

It is well-established that the Sixth Amendment right to

counsel comprehends "the right to effective assistance of

counsel," Strickland v. Washington, 466 U.S. 668, 686 (1984),

and that Sixth Amendment claims may be raised in section 2255

proceedings, Kimmelman v. Morrison, 477 U.S. 365 (1986). A

claim of ineffective assistance of counsel requires two showings:

(1) that counsel's performance was deficient and (2) that "but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland, 466 U.S. at 687, 694.

Our evaluation of counsel's performance is "highly deferential,"

and we must "indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance." Id. at 689.

The standard under which we review a district court's

dismissal of a section 2255 petition alleging ineffective assis-

tance is unsettled. Whether counsel's performance was deficient

and whether any errors were prejudicial are mixed questions of

law and fact, id. at 698; United States v. Weaver, 234 F.3d 42, 46

(D.C. Cir. 2000); United States v. Askew, 88 F.3d 1065, 1070

(D.C. Cir. 1996), but, as we pointed out in Askew, that does not

define the proper standard of appellate review. See 88 F.3d at

107071. Determinations of mixed questions are sometimes

reviewed de novo, see, e.g., Ornelas v. United States, 517 U.S.

690, 69599 (1996) (reasonable suspicion and probable cause),

and sometimes only for abuse of discretion, see, e.g., Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 40105 (1990) (rulings

under Federal Rule of Civil Procedure 11); Pierce v. Under-

wood, 487 U.S. 552, 55763 (1988) (whether legal positions are

"substantially justified" under Equal Access to Justice Act).

While other circuits have concluded that de novo review of

district court rulings on ineffective assistance of counsel claims

is appropriate, see, e.g., Cooper v. United States, 378 F.3d 638,

640 (7th Cir. 2004); Pham v. United States, 317 F.3d 178, 182

(2d Cir. 2003), we have thus far expressly declined to fix the

appropriate standard, not having been confronted with a case in

which the standard made a difference. See, e.g., Weaver, 234

F.3d at 46.

We persist in our agnosticism on the appropriate standard of

review in this case. The parties have not joined issue on the

question, and we are reluctant to decide such an important

question in the absence of briefing and argument on it. It is

unnecessary for us to do so, because we find that Toms's claim

fails even under the more searching de novo standard.

A. Toms first argues that his attorney's lack of preparation

caused him to enter into stipulations harmful to the defense. In

particular, Toms objects to three stipulations: first, that cocaine

residue was found on the floor and seat of the vehicle Toms was

driving the day of his arrest and on the two rolls of cash recov-

ered from the vehicle and Toms; second, that Toms may have

attempted to alter his normal handwriting in a sample he

provided to the FBI; and third, that Bradley, a key defense

witness, was convicted for attempted drug possession in 1987,

when in fact the conviction had been expunged.

Mindful that we are to "indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance," Strickland, 466 U.S. at 689, we do not

think that counsel's decisions with respect to the first two

stipulations were unreasonable. See United States v. Gaskin,

364 F.3d 438, 468 (2d Cir. 2004) ("counsel's decision to

stipulate to certain evidence, like his decisions to offer or object

to evidence, involves a strategic choice, which is `virtually

unchallengeable' if made after thorough investigation") (quoting

Strickland, 466 U.S. at 690). FBI agents were prepared to testify

concerning the substance of the first two stipulations; Toms does

little to explain what his counsel might have done had those

witnesses been forced to do so. At most, he suggests that

counsel could have cross-examined the agents about the amount

of cocaine residue found in the vehicle or about the general

prevalence of cocaine residue on paper currency. Whether these

lines of questioning would have yielded any gains for Toms or

only highlighted damning evidence is a matter of speculation and

precisely the sort of post hoc judgment that Strickland admon-

ishes us to avoid.

Toms nevertheless contends that the drug residue stipulation

was especially egregious in that it was the "only link between

appellant and the drugs seized" from the car. Appellant's Br. at

11. Whether or not this assertion is true, the argument assumes

too rosy a picture of what would have transpired without the

stipulation. Counsel did not face a choice between stipulating

and having no evidence presented at all, but between stipulating

and having live testimony about the cocaine residue presented by

an FBI agent. While cross-examination may have helped Toms,

he may have benefitted still more from the stipulation, see

United States v. Crowder, 141 F.3d 1202, 1207 (D.C. Cir. 1998)

(en banc) ("Even when coupled with a jury instruction that the

fact stipulated must be considered proven, a stipulation cannot

give the Government everything the evidence could show"

(internal quotation marks omitted)), and we cannot say that

counsel's decision was unreasonable. See United States v.

Geraldo, 271 F.3d 1112, 1116 (D.C. Cir. 2001) ("The defendant

bears the burden of proving that his lawyer made errors `so

serious that counsel was not functioning as the "counsel"

guaranteed by the Sixth Amendment' and that counsel's

deficient performance was prejudicial." (quoting Strickland, 466

U.S. at 687)).

The stipulation to Bradley's expunged conviction presents

a closer question. The government does not argue that counsel

acted reasonably in stipulating to a conviction that did not exist;

the erroneous stipulation could easily have been avoided with

careful investigation. The government does argue, however, and

we agree, that no prejudice can be shown. On the stand, Bradley

denied ever having been convicted of a crime as an adult before

entering his guilty plea. The government then impeached him on

cross-examination with multiple prior convictions, including the

expunged 1987 conviction. In fact, Bradley had three other

convictions -- two for cocaine possession and one for a weap-

ons charge -- to which Toms's counsel appropriately stipulated.

It is doubtful that the inclusion of one additional expunged

conviction caused even incremental harm to Bradley's credibil-

ity, and entirely farfetched that the outcome of Toms's trial

would have been different without the stipulation. What is

more, Bradley was called to the stand in part to testify that he,

not Toms, possessed the drugs and gun found in the vehicle

when he and Toms were arrested. Another prior conviction for

attempted drug possession seems just as likely to make Bradley's

testimony to that effect more, not less, credible.

Toms next argues that, due to inadequate preparation, his

trial counsel failed to secure the presence of several witnesses

whose testimony would have helped his defense. Two witnesses

who were expected to testify about the activities of Toms's

recording company were never subpoenaed and failed to appear

at trial. According to Toms, one of the witnesses would have

stated that he sold more than $10,000 worth of tapes to Toms,

and such testimony could have explained what Toms intended

to do with the cash found on him at the time of his arrest (buy

more tapes).

The district court rejected Toms's claims, finding that

counsel's decision not to subpoena the additional witnesses was

strategic and, in any case, did not prejudice the defense. Without

addressing the question of deficient performance, the testimony

of these witnesses would not have altered the outcome of

Toms's trial. The existence of Toms's recording company was

not in dispute; the prosecution readily acknowledged as much in

closing argument. Indeed, the government even elicited testi-

mony from an FBI agent about documents showing that Toms's

company had purchased $4,000 in audiotapes. The testimony of

the two witnesses would therefore have only offered unnecessary

evidence on an issue no longer in doubt. See United States v.

Mitchell, 216 F.3d 1126, 1131 n.2 (D.C. Cir. 2000) (no prejudice

where witness's testimony would have been cumulative). More

important, as their testimony would not have shown that Toms's

company produced any income, it would have done nothing to

illuminate the issue of where Toms got the cash in the first place.

See United States v. Moore, 104 F.3d 377, 391 (D.C. Cir. 1997)

(no ineffectiveness in failing to subpoena a witness whose

testimony was "tangential at best").

Toms argues in a similar vein that trial counsel was ineffec-

tive in not calling a witness named Walter Cloud, who appar-

ently would have testified that he was expecting Toms at a

recording studio the day he was arrested. According to Toms,

Cloud was promised in the defense's opening statement, and,

when he failed to appear, the jury likely concluded that Toms's

story about the recording studio was unsupported. This claim is

without merit. First, it is not at all clear that counsel promised

to call Cloud. In his opening statement counsel said, "Toms was

late for a video session -- he had video session scheduled; we'll

call witnesses on that." Trial Tr. 1/11/95 at 58. And, in fact,

two defense witnesses -- Toms and Bradley -- did testify on

this point. There is no reason counsel should be thought to have

performed deficiently simply because he did not call a third. See

United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) ("The

decision whether to call any witnesses on behalf of the defen-

dant, and if so which witnesses to call, is a tactical decision of

the sort engaged in by defense attorneys in almost every trial."

(internal quotation marks omitted)). Moreover, Cloud's

testimony would hardly have altered the outcome of the trial.

Like that of the unsubpoenaed witnesses, his testimony would

have only confirmed what the government was willing to

acknowledge -- that Toms owned a recording company -- and

done nothing to explain the source of Toms's money.3

Toms further argues that his attorney was ineffective in

failing to challenge the government's suggestion, in its cross-

examination of Bradley, that Toms had purchased Bradley's

cooperation by paying for his attorney. The record, however,

reveals that the government had a good faith basis for this line

of questioning. Thomas had already testified that Toms offered

$10,000 in exchange for Thomas's cooperation, and the govern-

3 Toms also argues that counsel failed to deliver on an opening-

statement promise to show that Toms's fingerprints had not been

found on "any gun, no ammunition, no drugs, period, period, back to

1987." Trial Tr. 1/11/95 at 55. Counsel unsuccessfully tried to get

the prosecution to stipulate to this, but no prejudice can be shown: the

prosecution's fingerprint specialist testified that Toms's fingerprints

were not found on the gun or on the bag containing the drugs, and

there was no other testimony linking Toms's prints to any gun,

ammunition, or drugs. Indeed, Toms's counsel highlighted the

absence of fingerprint evidence in closing. See Trial Tr. 1/24/95 at

78.

ment had in its possession -- and later played for the jury -- a

taped phone call in which Bradley was heard telling his girl-

friend to get money from Toms's mother. Together, this was

enough to support the government's questioning of Bradley. See

United States v. Sampol, 636 F.2d 621, 658 (D.C. Cir. 1980)

("the questioner must be in possession of some facts which

support a genuine belief that the witness committed the offense

or the degrading act to which the questioning relates" (internal

quotation marks omitted)). There was therefore nothing

unreasonable about counsel's decision not to object.

Nor could counsel have successfully argued, as Toms

contends, that the government constructively amended the

indictment -- which charged a conspiracy to distribute cocaine

or cocaine base -- by introducing evidence of marijuana and

PCP possession. To support a claim of constructive amendment,

he would have needed to show that "the evidence presented at

trial and the instructions given to the jury so modify the ele-

ments of the offense charged that the defendant may have been

convicted on a ground not alleged by the grand jury's indict-

ment." United States v. Sayan, 968 F.2d 55, 5960 (D.C. Cir.

1992) (internal quotation marks omitted) (alteration in original).

Toms's claim is plausible only because the district court

instructed the jury as to the first element of the conspiracy count

that, to support a guilty verdict, it had to find an agreement "to

distribute or possess with intent to distribute a controlled

substance." Trial Tr. 1/24/95 at 118. The court's instruction as

to the second element, however, made clear that the jury had to

find that Toms "knowingly and willfully participated in the

conspiracy" with an intent to distribute "cocaine or cocaine

base." Id. at 119.

" I t is not our task to review only isolated parts of the

charge." United States v. Perholtz, 836 F.2d 554, 559 (D.C. Cir.

1988); see also Cupp v. Naughten, 414 U.S. 141, 14647 (1973)

("a single instruction to a jury may not be judged in artificial

isolation, but must be viewed in the context of the overall

charge"). The instructions, read as a whole, required the jury to

find that Toms was engaged in a conspiracy to distribute cocaine

or cocaine base, as alleged in the indictment. A constructive

amendment claim could not have succeeded, and counsel's

decision not to advance such a claim was therefore not unreason-

able.

Toms's remaining ineffective assistance arguments are

equally unavailing. He argues that counsel inexplicably elicited

damaging testimony about Bradley from a government witness

and portrayed Toms's relatives as involved in drug trafficking.

Although this may not have been an ideal line of defense,

Toms's counsel faced a considerable challenge in explaining

away the suspicious circumstances of his client's life: the

expensive cars he drove, the money spent on tapes and videos,

and the multiple occasions -- particularly the last -- in which he

was found in cars with drugs, firearms, or large amounts of cash.

We conclude that these decisions of Toms's counsel were

tactical, forced on him by the strong case against Toms, and that,

in any event, they did not result in any prejudice.

Nor do we find any merit to the contention that counsel's

cross-examination of Thomas was impeded by a conflict of

interest. Thomas had once sought to hire Toms's attorney but,

according to Thomas's testimony, "couldn't afford it." Trial Tr.

1/13/95 at 115. Toms was made aware of the meeting before

trial and agreed to go forward. This, by itself, did not give rise

to the kind of actual conflict of interest required by our cases --

namely, one that constrains an attorney "to make a choice

advancing his own interests to the detriment of his client's

interest." United States v. Bruce, 89 F.3d 886, 893 (D.C. Cir.

1996) (internal quotation marks omitted). The prosecutor

elicited the testimony from Thomas to help rebut Toms's effort

to portray Thomas as "a big-time drug dealer, with lots of

money." Trial Tr. 1/13/95 at 114. Toms's counsel explained in

a pretrial status conference that he did not remember anything

from the meeting, so there is no reason to think that he was in a

position to rebut Thomas's testimony. Toms points to no basis

for challenging Thomas's assertion that he could not afford a

lawyer, so he has not carried his burden of showing that the

alleged conflict "had some negative effect upon his defense."

United States v. Gantt, 140 F.3d 249, 254 (D.C. Cir. 1998)

(internal quotation marks omitted).

B. We can also easily dispose of Toms's claim that the

government failed to disclose material exculpatory evidence as

required by Brady. The evidence at issue is a government

photograph of the backseat of Toms's vehicle after the impound-

ment and subsequent search. In his initial section 2255 motion,

Toms argued that the exhibit was taken into the jury room

despite not being admitted into evidence, thus contaminating the

jury. He subsequently argued, in a supplemental motion, that the

same exhibit contained exculpatory information which the

government should have disclosed to the defense. It is this latter

argument that Toms renews on appeal. We review such Brady

claims de novo. In re Sealed Case (Brady Obligations), 185

F.3d 887, 892 (D.C. Cir. 1999).

We do not know with certainty whether or not, as Toms

claims, the photograph depicts the bag of drugs sitting on the

backseat because the government can no longer find the exhibit.

The government contends that, in any case, the photograph could

not have shown the drugs in their original location because no

photographs were taken until after a drug-sniffing dog had

discovered the drugs and they had been moved. Even assuming

the photograph shows the drugs as they were originally posi-

tioned, however, Toms cannot demonstrate " `a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.' "

United States v. Bowie, 198 F.3d 905, 908 (D.C. Cir. 1999)

(quoting Kyles v. Whitley, 514 U.S. 419, 43334 (1995)). There

is little reason to believe that the drugs would have been any less

connected with Toms in the jury's mind if the bag were shown

to have been on top of the backseat instead of under it. The

government's case certainly did not hinge on the issue. Indeed,

one government witness even stated on cross-examination that

it would have been easier for the passenger (Bradley) than the

driver (Toms) to have placed the drugs under the backseat. Trial

Tr. 1/17/95 at 71. There is simply not a "reasonable probability"

that, had the exhibit been disclosed, it would have altered the

outcome of Toms's trial.

C. Finally, we reject Toms's claim that the district court

was required to hold a hearing before ruling on his section 2255

motion. When the judge deciding the section 2255 motion also

presided at petitioner's trial, the court's decision not to hold a

hearing is "generally respected as a sound exercise of discre-

tion." United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir.

1996); see also Sayan, 968 F.2d at 66. Here, Toms does not

point to any information outside the record that would have

substantially assisted the district court in its disposition and thus

perhaps necessitated a hearing. We therefore see no reason to

depart from our usual practice in this case.

* * *

Toms's attorney had the difficult task of rebutting the

prosecution's strong case against his client--in particular, the

stubborn fact that the car Toms was driving at the time of his

arrest, shown to belong to him, contained a nine-millimeter

pistol, thousands of dollars in cash, and 67.8 grams of cocaine

base. To that end, counsel sought to undermine the govern-

ment's witnesses and dissociate his client from the physical

evidence. While Toms may now find much to criticize in those

efforts, his contentions, taken singly or together, do not amount

to a viable claim of ineffective assistance of counsel.

Affirmed.

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