NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 08-2601 & 08-3715
_____________
UNITED STATES OF AMERICA
v.
TIMOTHY NGUYEN,
a/k/a THAI,
Appellant
_______________
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(Criminal No. 05-00529-01)
District Judge: Honorable Paul S. Diamond
Submitted Under Third Circuit LAR 34.1(a)
January 15, 2010
Before: AMBRO, CHAGARES, and STAPLETON, Circuit Judges.
(Filed : May 12, 2010)
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OPINION OF THE COURT
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CHAGARES, Circuit Judge.
Timothy Nguyen appeals from an Order of the District Court denying his pro se
petition for the appointment of new counsel and from a final judgment of sentence. For
the reasons set forth below, we will dismiss his interlocutory appeal and affirm the
judgment of the District Court.
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the essential facts.
Proceeding upon information provided by a cooperating witness, agents of the
Drug Enforcement Administration investigated Nguyen for distributing substantial
quantities of illegal drugs. The agents recorded three separate phone calls between the
cooperating witness and Nguyen, in which the witness arranged to purchase drugs from
Nguyen. Based upon this evidence, Nguyen was apprehended by the agents for
distributing a large quantity of illegal drugs on August 15, 2005. On September 14, 2005
Nguyen was indicted by a federal grand jury on two counts of possessing with intent to
distribute methamphetamine and aiding and abetting in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2.
Nguyen hired and fired two attorneys before retaining Edward J. Crisonino to
represent him in January 2006. Crisonino represented Nguyen in a number of pretrial
matters as well as a criminal jury trial, which was held on April 10 and 11, 2006. At the
conclusion of the trial, the jury found Nguyen guilty on both counts of the indictment.
After the verdict was returned, Nguyen wrote a pro se letter to the District Court
alleging that Crisonino had provided him with ineffective assistance of counsel, and
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moved for the appointment of new counsel. The District Court held a hearing at which it
allowed Crisonino to withdraw as Nguyen’s attorney, and since Nguyen was then
indigent, provided Nguyen with a court-appointed attorney, Robert O’Shea.
O’Shea served as Nguyen’s counsel on a number of post-trial matters. O’Shea
filed for, and received, a continuance of Nguyen’s sentencing. O’Shea also moved for a
new trial on multiple grounds on September 19, 2007. The District Court held a hearing
on this motion, but ultimately denied Nguyen’s motion for a new trial on April 9, 2008.
O’Shea also represented Nguyen in his legal challenge to the information charging that he
had sustained a prior felony conviction. The District Court also rejected this challenge.
After this, Nguyen began filing pro se motions with the District Court, including a pro se
motion for the appointment of new counsel on May 15, 2008. The District Court denied
Nguyen’s motion for appointment of new counsel, and Nguyen filed an interlocutory
appeal from this Order.1
On August 21, 2008, the District Court sentenced Nguyen to 240 months of
imprisonment, followed by 10 years of supervised release. Despite having previously
claimed his indigence, Nguyen retained another private attorney, Brian J. McMonagle,
who filed a Rule 35 motion to vacate the District Court’s sentence. This motion was
denied by the District Court on August 29. On September 8, Nguyen filed a separate
1
This appeal was docketed as case number 08-2601.
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notice of appeal from the judgment of sentence.2
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction over final judgments pursuant to 28 U.S.C. § 1291. However, this Court
lacks jurisdiction to consider interlocutory appeals such as Nguyen’s first appeal, which
was filed before he was sentenced by the District Court. See United States v. Wecht, 537
F.3d 222, 244 n. 41 (3d Cir. 2008). Accordingly, we will dismiss case number 08-2601.
We have jurisdiction over his second appeal, which was properly filed after the District
Court imposed a judgment of sentence.
This Court generally reviews a district court’s denial of a motion for a new trial for
abuse of discretion, but if the denial is based upon an interpretation of legal principles, we
exercise a plenary standard of review over such an interpretation. Hook v. Ernst &
Young, 28 F.3d 366, 370 (3d Cir. 1994). Any factual findings made by the district court
at such a hearing are reviewed under a clear error standard.
III.
Nguyen contends that his trial counsel was ineffective, and that he is thus entitled
to a new trial.
While we generally do not consider claims of ineffective assistance of counsel on
2
This second appeal was docketed as case number 08-3715. Nguyen’s two
appeals have been consolidated.
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direct appeal, United States v. McLaughlin, 386 F.3d 547, 555 (3d Cir. 2004), Nguyen’s
claim presents a rare exception. The District Court held a post-trial hearing in which
Nguyen was represented by separate counsel. At this hearing, both Nguyen and Crisonino
gave testimony about the quality of Crisonino’s representation of Nguyen, and the District
Court found Crisonino’s testimony credible. There is a well-developed record, both
parties have thoroughly briefed the issue on appeal, and the Government does not argue
that we should not entertain Nguyen’s ineffective assistance of counsel claim on direct
appeal. See United States v. Theodoropolous, 866 F.2d 587, 598 (3d Cir. 1989) (“Unless
the record sufficiently establishes a basis for our review, the proper avenue for pursuing
such [ineffective assistance of counsel] claims is through a collateral proceeding in which
the factual basis for the claim may be developed.”) (emphasis added). We therefore turn
to the merits of Nguyen’s claim.
The test for whether or not counsel can be found to be ineffective was established
by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).3 In that case,
the Supreme Court held that in order to be successful on such a claim, a criminal
defendant must show that (1) counsel’s representation was objectively deficient; and (2)
3
Nguyen argues that the appropriate test which should be applied is not Strickland,
but United States v. Cronic, 466 U.S. 648 (1984). Cronic, however, is reserved for the
extremely rare cases where trial counsel either refuses or is unable to put forth any
defense at all, and the defendant is thus deprived of adequate adversarial representation.
Such was not the case here, where Nguyen was represented by counsel at all in-court
proceedings, his counsel corresponded with him in preparation for trial, and his counsel
presented his case before a jury at trial.
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that this deficient representation prejudiced the defense. Id. at 687. In evaluating a claim
of objectively deficient performance, we must apply “a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689. To
find that the representation prejudiced the defendant, the Court must determine that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. The party claiming ineffective
assistance bears the burden of proof, and must satisfy both Strickland prongs to obtain
relief.
Nguyen claims his counsel was ineffective for three reasons: (1) counsel did not
visit him often enough before trial to prepare adequately his defense; (2) counsel failed to
investigate or challenge the translated transcripts of phone conversations introduced by
the Government at trial; (3) counsel failed to obtain independent testing of the seized
drugs; and (4) counsel failed to object to leading questions and hearsay. We find
Nguyen’s arguments without merit, and will affirm the District Court’s denial of his
motion for a new trial.
Nguyen claims that his trial counsel was ineffective because he only visited
Nguyen in person five times prior to trial.4 While this Court is certainly not aware of any
constitutionally required minimum number of face-to-face visits a counsel must arrange
4
The record shows that counsel also corresponded with Nguyen by phone and mail
during this time period.
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in order to provide effective representation, Nguyen’s claim fails because he has provided
no credible theory or evidence as to how more consultations with his attorney would have
led to a different outcome. Since Nguyen bears the burden of showing how his counsel’s
allegedly minimal consultations prejudiced him, and he has plainly failed to do so, we
must reject this claim.
Nguyen next claims that counsel was ineffective for failing to object to translated
phone transcripts introduced at trial. A crucial part of the Government’s case against
Nguyen was transcripts of three telephone calls between Nguyen and a cooperating
informant which took place on the night of the arrest . These conversations were in
Vietnamese, so the Government had them translated into English. The transcripts were
provided to counsel months before trial, and counsel reviewed the transcripts with
Nguyen. The District Court found credible counsel’s testimony at the hearing, that after
reviewing the transcripts, Nguyen had no objection to any of the three phone call
transcripts. Between this meeting and trial, there were slight alterations made to the
transcripts, none of which concerned the substance of the discussions. During the trial,
when the Government sought to introduce the transcripts, Nguyen informed his counsel
that he had not spoken in the phone call captured in the first transcript.
This contradicted both Nguyen’s previous statements and a stipulation made by
defense counsel six days earlier. Defense counsel, who had prepared a trial strategy
based upon Nguyen’s previous acknowledgment that he was a speaker in all three
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recorded conversations, had to alter his strategy in the middle of trial. We agree with the
District Court’s holding that not only was counsel’s performance not objectively
deficient, but Nguyen also failed to show prejudice, as the Government had other methods
available to authenticate the disputed recording, as well as the remaining two recordings
where Nguyen discussed selling the cooperative informant illegal drugs.5
Nguyen’s contention that counsel should have requested a continuation when the
revised transcripts were provided also fails. The revisions to the transcripts only
concerned minor corrections and details, and did not concern the substance of the
conversation. Nguyen has failed to show that getting a continuance would have
benefitted him in any way, and has thus failed to show how he was prejudiced by
5
Nguyen insists that his counsel expressly acknowledged to the District Court that
“before trial [he] didn’t understand [his client’s] defense.” He argues that this was a
confession of inadequate representation. We agree with the District Court that this
argument reflects a misunderstanding of counsel’s testimony. As the Court explained:
The import of Mr. Crisonino’s testimony was: 1) that until the middle of
trial, he understood – based on what Defendant told him – that Defendant
was a speaker in all three recorded conversations; and 2) that Mr. Crisonino
planned the defense accordingly. Because of Defendant’s belated, mid-trial
denial that he was a speaker during the first conversation, Mr. Crisonino
was compelled to change the defense accordingly. Thus, Mr. Crisonino
testified that because Defendant changed his version of events after the trial
began, Mr. Crisonino’s understanding of the defense before trial did not
turn out to be correct. In context, it is thus clear that Mr. Crisonino’s “lack
of understanding” had nothing to do with his competence or preparation,
but, rather, was entirely the result of the abrupt change in Defendant’s
version of events.
Dist. Ct. Op. at 6-7 (emphasis in original).
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counsel’s failure to request a continuance.
Nguyen’s next claim is that his trial counsel erred by failing to obtain an
independent analysis of the drug evidence itself. The drugs seized by the Government
upon making the arrest were presented, along with test results, at trial. While Nguyen is
correct that his counsel could have had independent testing performed on the evidence,
there is no authority to support Nguyen’s assertion that counsel was required to do this to
provide him with effective representation. This is particularly true given that Nguyen’s
defense theory was not otherwise focused on whether or not the evidence was actually
illegal narcotics. He has also failed to show prejudice, given that there were test results
produced at trial which showed that the evidence seized was, in fact, a quantity of illegal
narcotics.
Nguyen’s final claim is that his trial counsel erred by failing to object at numerous
points in the Government’s case, specifically to the use of leading questions and the
introduction of hearsay evidence. Nguyen is unable, however, to pinpoint any exact
evidence which could have been excluded had his counsel objected that substantially
prejudiced him. Whether or not to object to leading questions is a matter of trial strategy,
and it is common practice for trial attorneys to not object to leading questions if they feel
it is not helpful to do so. As the District Court pointed out, most of Nguyen’s proposed
hearsay objections would have been rejected anyway, since they were not, in fact,
hearsay. The use and timing of objections at trial is a quintessential matter of strategy and
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discretion on the part of the trial attorney, and will very seldom constitute objectively
deficient representation. This is especially true in the present case, where Nguyen has
failed to identify how his counsel’s failure to object prejudiced him.
Nguyen claims that his counsel provided him with ineffective assistance, and he
gives several grounds for this claim. However, Nguyen has failed to show on any of
these claims that his counsel was either objectively deficient or that he suffered prejudice
because his counsel’s performance. He has therefore failed to meet the requirements for
an ineffective assistance of counsel claim under Strickland v. Washington. We reject his
claim, and hold that the District Court did not abuse its discretion in denying Nguyen’s
motion for a new trial.
IV.
For these reasons, we will dismiss case number 08-2601 and will affirm the
judgment of the District Court in case number 08-3715.
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