UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6648
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THERESA MARIE SQUILLACOTE, a/k/a Anne, a/k/a
Resi, a/k/a Lisa Martin, a/k/a Margrit, a/k/a
Margret, a/k/a Margit, a/k/a Mary Teresa
Miller, a/k/a The Swan, a/k/a Margaret, a/k/a
Schwan, a/k/a Tina,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CR-98-61; CA-02-537)
Submitted: August 26, 2005 Decided: June 2, 2006
Before LUTTIG,* MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
*
Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
Ty Cheung Gee, HADDON, MORGAN & FOREMAN, PC, Denver, Colorado, for
Appellant. Ronald Leonard Walutes, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
Theresa Marie Squillacote appeals from the district
court’s denial of her 28 U.S.C. § 2255 (2000) motion. She was
convicted after a jury trial of conspiracy to transmit information
relating to the national defense, attempted transmission of
national defense information, obtaining national defense
information, and making false statements. We previously granted a
certificate of appealability on Squillacote’s claims that (1) the
district court erred by failing to hold an evidentiary hearing on
Squillacote’s claim that she was denied her right to testify and
(2) purported new evidence was sufficient to warrant a new trial.
After further briefing by the parties, we vacate and remand with
regard to the former claim and affirm the relevant portion of the
district court’s order on the latter claim.
First, Squillacote alleged that her attorneys prevented
her from exercising her right to testify. Under Strickland v.
Washington, 466 U.S. 668, 694 (1984), in order to prove ineffective
assistance of counsel on this claim, Squillacote must show both
that her attorneys violated her right to testify and that her
testimony had a “reasonable probability” of changing the outcome of
her trial. The Government concedes that the question of whether
Squillacote’s right to testify was violated cannot be resolved
without a hearing. However, the Government asserts that
Squillacote’s testimony would not have affected her trial.
- 3 -
After a thorough review of the record, we conclude that
Squillacote has made a sufficient showing of potential prejudice to
necessitate a hearing on both prongs of Strickland. See Gray v.
Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (holding that summary
judgment may not be granted when there is opposing sworn testimony,
even when one side’s story is “hard to believe”). Squillacote’s
proposed testimony tells a story that, if believed, provides an
explanation for the suspicious circumstances that caused the jury
to convict her of conspiracy. In addition, should the jury believe
her explanation of her earlier actions, it may also believe that
she was not predisposed to espionage prior to the FBI’s sting
operation, thus strengthening her entrapment defense. Thus, while
expressing no opinion on the merits of Squillacote’s ineffective
assistance claim or the believability of her proposed testimony, we
vacate the portion of the district court’s order dismissing her
claim that her attorneys violated her right to testify and remand
for a hearing.
Second, Squillacote claims that she has newly discovered
evidence proving her innocence. The new evidence is an affidavit
from a German co-conspirator who refused to testify at trial but
has since changed his mind. The Government attached to its
informal brief copies of an out-of-court declaration by this
witness and transcripts of two interrogations, all of which were
admitted at trial. These documents provide the same innocent
- 4 -
explanation for Squillacote’s actions as the newly-discovered
evidence. Squillacote does not dispute the characterization of the
evidence admitted at trial, nor does she attempt to distinguish the
evidence admitted from the proposed evidence.
Because it is undisputed that the substance of the
witness’s declaration was presented to the jury, we find that
Squillacote cannot show that the new evidence would have resulted
in her acquittal. While a live witness would obviously be more
effective than a dry transcript, we cannot conclude that it would
have altered the jury’s verdict, especially in light of the absence
of any argument by Squillacote on this point. See 4th Cir. R.
34(b) (stating that claims not raised in informal brief are
waived).
Based on the foregoing, we affirm the district court’s
denial of Squillacote’s claim of newly discovered evidence, vacate
the district court’s denial of Squillacote’s claim that she was
denied her right to testify, and remand for a hearing. We grant
Noell Peter Tin’s motion to withdraw and deny his motion to be
appointed CJA counsel as moot. We deny Squillacote’s motion for
oral argument, because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
- 5 -