United States v. Manon

United States Court of Appeals
For the First Circuit

No. 08-1826

UNITED STATES,

Appellee,

v.

DARIO MANON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, U.S. District Judge]

Before

Boudin, Stahl and Lipez, Circuit Judges.

Sven D. Wiberg, with whom Wiberg Law Office, PLLC was on
brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Michael J. Gunnison, Acting United States Attorney, and Aixa
Maldonado-Quiñones, Assistant United States Attorney, were on
brief, for appellee.

June 23, 2010
 LIPEZ, Circuit Judge. Appellant Dario Manon challenges

his conviction on three drug distribution charges based on

ineffective assistance of counsel. He argues, inter alia, that his

trial attorney failed to (1) call important witnesses on his

behalf, (2) timely arrange for a non-suggestive identification

procedure, and (3) object to the admission of prejudicial hearsay

evidence. Although we ordinarily do not consider ineffective

assistance claims on direct appeal, Manon's claim is fully

developed because the district court held a post-trial evidentiary

hearing to explore his allegations. The court rejected the claim

after hearing testimony from Manon and his attorney, finding

neither constitutionally deficient performance by counsel nor

prejudice to Manon. See Strickland v. Washington, 466 U.S. 668,

687 (1984). We affirm the district court's judgment denying Manon

a new trial.

I.

A. Trial Overview

Manon was charged in a three-count indictment with

distributing heroin and cocaine to an undercover police officer in

three hand-to-hand transactions that took place in Manchester, New

Hampshire, in June and July 2005. The officer, Detective Shawn

McCabe, was one of three witnesses presented by the government at

trial. The other two were Eddy Roa Medina, Manon's supplier, and

Glenn Walichiewicz, a heroin addict who bought drugs from Manon,

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sold drugs to McCabe, and made the connection between Manon and

McCabe. All three men identified Manon in court as the individual

who sold the drugs to McCabe.

Manon's attorney called no witnesses on his client's

behalf, attempting instead to muster a defense of mistaken identity

through cross-examination of the government's witnesses. Counsel

sought to show that McCabe could not have obtained the drugs from

Manon because the detective's description of the seller with whom

he dealt omitted distinctive features of Manon's appearance,

including a facial scar and a scar running the length of his right

arm. Counsel also attempted to undermine Medina's and

Walichiewicz's identifications by highlighting their motivation to

exchange testimony favorable to the government for sentencing

benefits.

To provide the necessary background for an evaluation of

appellant's claim of ineffective assistance of counsel, we briefly

recount the facts surrounding the three charged transactions as the

jury could have found them and describe Manon's complaints about

counsel's performance at trial.

B. The Three Undercover Sales

1. The First Transaction

On June 20, 2005, McCabe made arrangements to purchase

heroin from Walichiewicz, who had obtained the drug from Manon.

When the men met for the exchange, Walichiewicz had a smaller

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amount than McCabe wanted. Walichiewicz gave the officer Manon's

cellular telephone number, 603-264-0390, so that McCabe could make

direct contact with Manon. The next day, June 21, McCabe called

that phone number and spoke to a male with a Spanish accent who

identified himself as "Dario." McCabe told Dario that he was

looking for about ten grams of heroin, and Dario told him he could

take care of him. They arranged to meet at about 5 p.m. at the

intersection of Granite and Barr Streets. At trial, McCabe

described the Hispanic male who met him there – and who identified

himself as Dario – as 5'5" to 5'6" tall, weighing approximately 115

pounds, with droopy earlobes and distinct lines around his nose and

down his cheeks. About ten minutes later, Medina drove up in a

brown Honda and told McCabe the "stuff" was coming from

Massachusetts. The men waited for some time before McCabe left

after asking Dario to call him when the heroin arrived.

The sale eventually took place on June 23. McCabe

received two voicemail messages that day from Dario stating that he

had what the detective was looking for. The calls originated from

phone number 603-264-0390. Dario subsequently reached McCabe and

asked him to come to his home. The officer went to the area of

Granite and Barr at about 11 p.m., called Dario and then saw him

exit from 485 Granite Street. Dario got into McCabe's vehicle,

where he gave the officer a cylinder of heroin for which McCabe

paid $900 in cash.

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 2. The Second Transaction

On June 28, 2005, Walichiewicz called McCabe from the

same cellular phone number from which McCabe had received the

voicemail messages from Dario. McCabe then spoke with Dario and

was told an ounce of crack cocaine would cost $800. Dario

transferred the phone to another Spanish-speaking male who

identified himself as Dario's cousin, "Eddy." Eddy – i.e., Medina

– confirmed the cocaine price. Shortly before 5 p.m., Dario called

McCabe, again from the same telephone number, and told the

detective that Eddy was on his way to Dario's house with the crack

cocaine. When McCabe arrived at the Granite and Barr intersection

a few minutes later, he called Dario, who again exited from 485

Granite Street and got into McCabe's vehicle. Medina arrived soon

thereafter, and he and Dario went into 485 Granite Street for a few

minutes. When the men emerged from the house, Dario returned to

McCabe's car and, after a drive around the block, he gave the

detective a plastic baggie containing crack cocaine. McCabe gave

him $900 for the drugs.

3. The Third Transaction

On July 13, 2005, McCabe called Dario, again using the

phone number originally given him by Walichiewicz, and asked the

price for two ounces of crack cocaine. Dario told him $1,700, and

he later called the officer back to tell him he could pick up the

drugs at his house. A short time later, at about 6:15 p.m., Medina

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called McCabe asking him to hurry. When McCabe arrived at the

intersection of Granite and Barr, Dario and Medina were already

standing outside. Dario got into the car with McCabe and, after

they drove around for a bit, Dario gave the officer a plastic bag

of crack cocaine in exchange for $1,700 in cash.

C. The Complaints about Counsel's Performance

Attorney Paul Garrity was appointed to represent Manon

shortly after Manon was indicted in September 2005 on three charges

of heroin and cocaine distribution. During the pretrial period,

Manon repeatedly requested new counsel, accusing Garrity of a

variety of shortcomings. The court held a hearing on May 30, 2006,

but concluded that new counsel was not warranted. Seven months

later, Garrity filed a motion to withdraw, referencing a letter

from Manon asking him to do so. The court denied the motion after

another hearing on January 5, 2007, but appointed Manon's eventual

appellate counsel, Sven Wiberg, to provide additional

representation and advice to Manon. Wiberg withdrew before the

trial, and Garrity represented Manon at the jury trial on March 6

and 7, 2007.

Following the jury's verdict against him, Manon submitted

three motions for a new trial. In the first, filed pro se on March

21, he generally criticized Garrity's performance and said that he

had been "misrepresented with lies that I never asked . . . my

counsel Paul Garrity to say." When Garrity again moved to withdraw

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as counsel, the court allowed the motion and Wiberg was appointed

to take over. The second motion for new trial, also filed pro se,

challenged the admission of certain photographs at trial and stated

that Manon regretted not testifying. The court denied the motion

and warned Manon that further motions should be presented to his

new attorney before they were filed with the court. In the third

motion, filed by Wiberg on Manon's behalf on December 12, 2007,

Manon claimed that Garrity had provided ineffective assistance by,

inter alia, discouraging him from testifying, failing to call other

witnesses that Manon had requested, and inadequately objecting to

hearsay evidence.1 On December 21, while that motion was pending,

the district court sentenced Manon to 180 months' imprisonment on

each of the three counts of conviction, to be served concurrently,

and three years of supervised release.

At the sentencing hearing, the court directed Manon to

file a document specifying the instances of ineffective assistance

by Garrity in support of his latest motion for new trial. On

December 31, 2007, Manon submitted a document titled

"Specifications for Defendant's Motion to Vacate Convictions" that

contained a list of fourteen items, including Garrity's failure to

1
The government responded to this motion, as it had to the
prior one, by arguing that it was untimely under Fed. R. Crim. P.
33(b)(2). The district court agreed that the motion appeared to be
too late, but nonetheless chose to deny it on the merits. The
parties have not argued about timeliness on appeal, and we
therefore do not consider that issue.

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(1) call certain allegedly exculpatory witnesses or present any

defense, (2) arrange before trial for non-suggestive identification

procedures at the trial, (3) probe the destruction of potentially

exculpatory evidence, and (4) object to prejudicial hearsay

evidence. The document also adopted the specific claims made in

his previous filing.

On June 25, 2008, the district court held an evidentiary

hearing on Manon's ineffective assistance claim. Garrity and Manon

were the two witnesses. The court considered the four complaints

listed above, as well as his earlier contention – described by the

court as the "most significant potential argument" – that Manon had

been denied the opportunity to testify. The court found no

mistakes by counsel but also concluded that, even if counsel did

err, no prejudice occurred in light of the substantial evidence of

appellant's guilt and the nature of the asserted deficiencies. The

court thus denied Manon's new trial motion.

On appeal, Manon no longer presses the right-to-testify

or destruction-of-evidence claims, and we therefore do not address

them. We consider the other three alleged failings of counsel

explicitly considered by the court: (1) the failure to mount a

defense case and call potential exculpatory witnesses, (2) the

failure to timely arrange for an appropriate identification

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procedure at trial, and (3) the failure to object to hearsay

evidence.2

II.

A. The Ineffective Assistance Standard

To prevail on a claim of ineffective assistance of

counsel, a defendant must show not only that "counsel made errors

so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment," but also that the

deficient performance prejudiced the defense and deprived the

defendant of a fair trial. Strickland, 466 U.S. at 687; see also

Abrante v. St. Amand, 595 F.3d 11, 19 (1st Cir. 2010). To satisfy

the deficient-performance prong, the defendant "must identify the

acts or omissions of counsel that are alleged not to have been the

result of reasonable professional judgment," and the court then

determines whether, in the particular context, the identified

2
Manon argues for the first time on appeal that Garrity
should have called an expert to testify about eyewitness
identifications, including cross-racial issues. That belated claim
is waived, and we do not consider it. United States v. Carl, 593
F.3d 115, 124 (1st Cir. 2010). Manon did raise his ethnic
background in the December 2007 document specifying the grounds for
his motion to vacate his convictions, however, complaining that
Garrity "presented no special voir dire regarding Mr. Manon's
ethnic background and/or the jurors' attitudes toward Hispanics."
Wiberg also questioned Garrity on that topic at the evidentiary
hearing. Garrity explained that, based on his successful
experience with other Hispanic clients charged with drug offenses,
he did not consider Manon's ethnicity relevant. Manon does not
discuss voir dire on appeal.

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conduct or inaction was "outside the wide range of professionally

competent assistance." Strickland, 466 U.S. at 690.

The prejudice factor requires the defendant to "show that

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

unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694. "A reasonable

probability is one 'sufficient to undermine confidence in the

outcome.'" González-Soberal v. United States, 244 F.3d 273, 278

(1st Cir. 2001) (quoting Strickland, 466 U.S. at 694). In making

the prejudice assessment, "we focus on the '"fundamental fairness

of the proceeding."'" Dugas v. Coplan, 506 F.3d 1, 9 (1st Cir.

2007) (quoting González-Soberal, 244 F.3d at 278 (quoting

Strickland, 466 U.S. at 696)).

Where the district court held an evidentiary hearing on

an ineffective assistance of counsel claim, we review its factual

conclusions for clear error and its legal conclusions de novo.

Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 2010) (per

curiam); Dugas, 506 F.3d at 7-8. "[B]oth the performance and

prejudice components of the ineffectiveness inquiry are mixed

questions of fact and law," Strickland, 466 U.S. at 698, and the

standard of review applied to such questions "'depends, in the last

analysis, on the extent to which a particular question is fact-

dominated or law-dominated,'" Dugas, 506 F.3d at 8. In this

instance, we view the claims as primarily fact-based, and the

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district court's conclusions are thus subject to clear error

review. See Dugas, 506 F.3d at 8.3 We would reach the same

outcome, however, using a de novo standard.

B. The Cronic Exception

Manon argues that this is an unusual ineffective

assistance case because his difficulties with trial counsel

surfaced early, and both he and Garrity sought to terminate their

relationship before the trial. Manon claims his concerns were

validated when Garrity ignored his wishes about how to proceed at

trial and, among other problems, mishandled the misidentification

defense. He suggests that the circumstances here would fit within

the narrow category of ineffective assistance cases where prejudice

is presumed because "counsel entirely fail[ed] to subject the

prosecution's case to meaningful adversarial testing." United

States v. Cronic, 466 U.S. 648, 659 (1984); see also Theodore, 468

F.3d at 56. He also argues that actual prejudice was in any event

demonstrated.

To qualify for the Cronic exception, "'the circumstances

leading to counsel's ineffectiveness [must be] so egregious that

the defendant was in effect denied any meaningful assistance at

all.'" Theodore, 468 F.3d at 56 (quoting United States v. Griffin,

3
One exception is the question whether a presumed prejudice
standard applies in the circumstances of this case. See infra
Section B. That mixed question is subject to de novo review.
United States v. Theodore, 468 F.3d 52, 56 (1st Cir. 2006)

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324 F.3d 330, 364 (5th Cir. 2003)) (alteration in original). As we

noted in Theodore, courts have found that standard satisfied where

counsel fell asleep during the presentation of evidence against the

defendant, where counsel was silent throughout the trial, and

"where counsel adopted and acted upon a belief that his client

should be convicted." Id. (citing cases). The circumstances here

are a far cry from such scenarios.

The defense theory as developed at trial was that Medina

and Walichiewicz knew Manon and were accusing him out of self-

interest, and that McCabe was mistaken in concluding that the drug

seller, who identified himself as "Dario," was Dario Manon.

Although Garrity did not put on witnesses of his own, he vigorously

cross-examined each of the government's witnesses.

As the government correctly emphasizes, Garrity posed

numerous questions to McCabe that were designed to show the

inadequacy of the officer's investigation and to cast doubt on the

reliability of his identification of Manon. The officer

acknowledged, for example, that he took no fingerprints or DNA

samples from the undercover vehicle where all three of the drug

transfers occurred or from the plastic baggies containing the

drugs; he had no recordings of the undercover buys or the telephone

conversations leading up to them; he did not save two messages left

by the seller in his cellular phone voicemail; and he had not

included any description of the seller in his incident reports on

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the sales other than that the individual was an Hispanic male.

McCabe acknowledged in response to Garrity's questions that he had

not noticed a scar on the seller's face during any of the

transactions. After Garrity directed Manon to approach the witness

stand, McCabe admitted that Manon's facial scar was visible.

Garrity also probed Medina's and Walichiewicz's

motivations for testifying, emphasizing that Medina had written a

letter to the government explicitly offering to testify against

Manon in exchange for a motion under Federal Rule of Criminal

Procedure 35(b)4 and similarly eliciting Walichiewicz's concession

that he could obtain early release from prison only if the

government filed such a motion on his behalf. He also questioned

Walichiewicz about his drug and alcohol abuse and mental illnesses,

drawing the admission that he was continuously injecting himself

with a mixture of cocaine and heroin during the relevant time

period. Garrity also presented an opening statement and closing

argument emphasizing the theme that "they have the wrong guy."

In sum, this is simply not a case in which defense

counsel's performance was "tantamount to non-representation"

entitling Manon to "Cronic's presumed prejudice standard."

Theodore, 468 F.3d at 57. Rather, as we shall explain, we agree

4
Under Federal Rule of Criminal Procedure 35(b)(1), a court
may reduce a defendant's sentence if the government files a motion
within one year after sentencing stating that the defendant had
"provided substantial assistance in investigating or prosecuting
another person."

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with the district court that most of counsel's conduct was well

within professional norms and that any flaws had no effect on the

outcome. The Constitution requires no more. See Scarpa v. Dubois,

38 F.3d 1, 8 (1st Cir. 1994) ("[T]he Constitution pledges to an

accused an effective defense, not necessarily a perfect defense or

a successful defense.").

C. The Failure to Mount a Defense Case

Manon complains that Garrity failed to investigate and

call witnesses who could have testified favorably in his defense.

The attorney had designated two potential witnesses in advance of

trial: Manon's wife, Alicia López, and his girlfriend's son, Tito

Geraldy-Santiago ("Geraldy"). Manon's girlfriend, Sara Martinez,

was neither on the list nor interviewed by Garrity, although she

and her children lived with Manon during the relevant time period.

Manon complains that Garrity was unaware of, or confused about,

which woman was living with him. He points out that it made no

sense for López to be a witness because she lived out of state and

could provide no helpful testimony about events transpiring at

Manon's home during the summer of 2005. He argues that, by

contrast, Martinez and Geraldy could have testified about "the lack

of drug distribution activity in their home" and provided other

testimony rebutting the accusations made by the cooperating

witnesses. At the evidentiary hearing, Manon testified that

Martinez was in the courtroom on the second day of the trial, along

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with López and Geraldy, but that Garrity told him it was

unnecessary to call any witnesses because the case was won without

their testimony.

Although Garrity was confused at the evidentiary hearing

about the two women – and, indeed, did not seem to be aware of

Martinez – that confusion appears to be attributable to the limited

information Manon had provided to Garrity about his personal life.

Garrity testified that Manon had directed him to speak with López,

not Martinez, and that his notes did not reflect any reference to

Martinez. The possibility that Garrity did not know about Martinez

because Manon had not told him about her is reinforced by Manon's

post-trial filings. In his third motion for new trial, filed with

Wiberg's assistance, Manon specifically raised the failure to call

the two listed witnesses, López and Geraldy, but made no reference

to Martinez.5 In his later-filed Specifications, Manon again did

not mention Martinez and referred only to Garrity's failure to

5
The motion states, in part:

Mr. Manon insists that he expected that his counsel would
call witnesses at trial, but that Mr. Garrity failed to
do so, without his informed consent or permission. Mr.
Manon further submits that those witnesses, including,
but not limited to the individuals identified on the
witness list submitted by his trial counsel (namely,
Alicia Lopez and Tito Geraldy-Santiago), could have and
would have provided exculpatory testimony on his behalf.

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present testimony by either Manon or "one of the listed defense

witnesses."6

Garrity explained that he originally had considered

calling witnesses who knew Manon well to reinforce the mistaken

identity defense by highlighting that his distinctive features

would be difficult to miss. Ultimately, however, Garrity concluded

that it was inadvisable to put witnesses who lived with Manon on

the stand because he "didn't want to confirm . . . through a

defense witness that in fact this individual, Dario Manon, lived at

485 Granite Street because that would, in my mind, link . . . the

guy that the agent said was the seller, Dario, and my client Dario

Manon."

Garrity also had other reasons for concern about what

Martinez and Geraldy would say. Although Manon told Garrity that

the boy would confirm that Manon had refused to sell drugs to an

undercover agent who came to their home, Garrity testified that his

6
Wiberg stated at the evidentiary hearing that the pleadings
referred to López, rather than Martinez, because López was the
listed witness who was available at the trial for testimony. As
noted above, however, Manon testified that Martinez also was
present at the second day of trial.
Manon did mention Martinez in a handwritten letter to the
district court filed on December 19, 2006. In the letter, he
complained that "I don't know what is happening in this case" and
asked that Garrity be replaced with Wiberg, explaining "I don't
like that man at all what he is doing in this case." The reference
to Martinez did not relate to the trial, however, but was contained
in his account of an incident in which he claimed the police
stopped and searched her car for drugs when she was driving with
her son's girlfriend.

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investigator's interview with Geraldy was "totally inconsistent"

with Manon's account of what happened. Garrity also testified that

Manon had changed his story multiple times during their pre-trial

conversations, and at one point had acknowledged involvement in the

charged transactions.7

The district court concluded that Garrity made reasonable

efforts to identify potential witnesses whose testimony would be

favorable to Manon and that his decisions not to call the witnesses

available to him were "defensible as tactical decisions." In our

view, that assessment would be correct even if Manon had, as he

claimed, told Garrity about Martinez and asked the attorney to call

her and Geraldy as witnesses.8 The investigator's report showed

that Geraldy would not have provided the favorable testimony that

Manon said he could give, and there is no basis for thinking that

Martinez would have been a better witness. Wiberg was unable to

contact Martinez before the evidentiary hearing and thus could not

make a proffer of her likely testimony. Given what he knew,

7
Garrity testified that, initially, Manon admitted selling
the drugs but "couldn't understand that being a conduit could make
him as culpable as someone who owned the drugs." Over time, he
challenged the drug amounts, telling Garrity that he knew they were
less than the government reported because he was involved in the
dealing. Later, he told Garrity that he had not sold drugs and, in
fact, had directed his son (presumably referring to Geraldy) to
send the agent away when he came by their home looking to buy some.
8
The district court had little regard for the truthfulness of
Manon's testimony at the evidentiary hearing, stating that it had
"no doubt that he provided . . . knowingly false statements about
the material matters that he testified about."

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Garrity could reasonably conclude that the risk of putting Martinez

and Geraldy on the stand would outweigh any possible benefit from

their testimony. We therefore agree with the district court that

Garrity's failure to call them as witnesses was not a lapse of

professional judgment. See Phoenix v. Matesanz, 233 F.3d 77, 81-83

(1st Cir. 2000) (noting that defense counsel's decision whether to

call a particular witness is almost always strategic and observing

that "'strategic choices . . . are virtually unchallengeable'"

(quoting Strickland, 466 U.S. at 690) (emphasis omitted)).

Although we need not reach the prejudice prong of the

Strickland test on this claim, much the same reasoning leads to the

conclusion that Manon cannot show a probability that, but for

counsel's chosen strategy, "the result of the proceeding would have

been different." Strickland, 466 U.S. at 694. Indeed, it is more

likely that testimony from Martinez and Geraldy would have harmed,

rather than helped, Manon's defense.

D. Failure to Arrange in Advance for a Non-suggestive
Identification Procedure

After McCabe had testified, but before the government

called Walichiewicz and Medina to the witness stand, Garrity asked

the district court to adopt measures to prevent the two remaining

witnesses from seeing Manon at the defense table as they testified.

The court rejected the request, stating that it should have been

made earlier and that Garrity's primary suggestion that a screen be

placed in front of Manon while the two men testified was

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impractical and pointless.9 At the evidentiary hearing, Wiberg

argued that Manon could have been seated in the gallery of the

courtroom with other individuals to see if McCabe could pick him

out of the crowd.

Manon contends that Garrity acted unreasonably in making

the last-minute request for a non-suggestive identification

procedure for Medina and Walichiewicz and, more importantly, in

failing to make such a request at the proper time with respect to

McCabe – whose supposed misidentification of Manon as the drug

seller was a critical component of the defense theory. McCabe

testified that he had seen Manon for a total of about 45 minutes to

an hour in the course of the three sales at issue in this case.

Manon points to the officer's failure to notice his "obvious scars"

and asserts that McCabe's identification of him also was

challengeable based on "cross-racial identification problems." He

insists that the missed opportunity to put McCabe on the spot

rendered the misidentification theory "wasted, null and void."

9
Non-suggestive procedures are meant, inter alia, to
eliminate the risk that an eyewitness to a crime will describe the
defendant's physical appearance or identify the defendant as the
person who committed the crime based on factors other than the
witness's knowledge – for example, because the witness sees the
defendant at the defense table. Among other reasons for denying
Garrity's request for a screen, the district court noted that
Walichiewicz had seen Manon in the cellblock where both of them had
been held that morning and, as Garrity acknowledged, Medina
apparently had had an extended association with Manon. The court
in effect concluded that, given the two witnesses' prior
familiarity with Manon, his location at the defense table was not
impermissibly suggestive.

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 The district court, however, observed that it would have

been "extraordinarily risky" in an identification case to use such

a procedure with a trained police officer who, according to his

testimony, had seen the defendant in daylight on multiple

occasions. If he "gets it right," the court asked, "what does that

do to the credibility of the officer's testimony?" The court thus

concluded that counsel's failure to take such a risk did not amount

to deficient performance: "I don't think that kind of tactical

judgment is one that can support an ineffective assistance claim."10

We agree. A confident identification by McCabe would

have been fatal to the defense theory, erasing any doubts about

whether the officer had correctly identified the defendant as the

"Dario" from whom he had bought drugs. The circumstances strongly

indicate that, in fact, the officer would have picked Manon from a

line-up or other non-suggestive setting. The drug deals

themselves, of course, are significant evidence of McCabe's

familiarity with Dario-the-seller, involving multiple face-to-face

encounters between the two men during daylight hours. In addition,

Manon had told Garrity that McCabe had been at his home, both

casually for a beer and in an attempt to buy drugs. McCabe

identified Manon in photographs two days after the last of the

10
Although Garrity undoubtedly made a tactical misjudgment in
seeking a non-suggestive identification procedure for Medina and
Walichiewicz, that request played no role in the case.

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three charged transactions,11 and the detective also was at the

scene when Manon was arrested after exiting 485 Granite Street.

Indeed, Garrity acknowledged at the evidentiary hearing that, based

on what Manon had told him, he had no reason to believe that any of

the three witnesses would be unable to identify his client.

McCabe's failure to specifically refer to Manon's scars in

describing him at trial does not diminish the force of this

evidence, particularly where McCabe testified to other distinct

facial features.

We thus discern no error in the district court's

determination that Garrity acted within professional norms in not

exposing McCabe to a non-suggestive identification procedure.

Again, while we need not explicitly address the question of

prejudice, our determination on the performance prong effectively

disposes of Strickland's prejudice prong as well. As we have

described, had counsel performed with respect to this issue as

Manon claims he should have, the guilty verdict would have been

even more likely.

E. Admission of Hearsay Evidence

1. Medina's Letter to the Prosecutor

11
McCabe testified that the photos displayed the physical
characteristics he associated with the person from whom he bought
the drugs: "[t]he distinct marks running from his nose along his
cheek line," droopy earlobes and brown eyes.

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 Medina testified at trial that he offered to cooperate

with law enforcement after Garrity sent him a letter asking if he

would be willing to discuss "the acts alleged against Mr. Manon."12

Instead of responding to Garrity, Medina wrote to the prosecutor

proposing a quid pro quo: "If the Government[] provides me with a

Lawyer, and negotiate[s] a Rule 35b[] with me I will testify

against Dario Manon."13 Medina's letter also admitted

responsibility for drug trafficking:

I plead guilty to my charges, and I even plead
guilty to conduct that was accountable to
Dario Manon. I know the Government case was
strong against us.

Both letters were introduced at trial, with Garrity's assent.

In his post-trial motions and at the evidentiary hearing,

Manon argued that Garrity should have objected to the introduction

of Medina's letter on hearsay grounds. Garrity, however, testified

that he had made the tactical decision not to object to the

letter's admission because it was useful to impeach Medina by

showing his motivation to assist the government. Indeed, Medina

acknowledged during cross-examination that he knew Garrity had

12
The letter asked if Medina would be willing to speak with
Garrity or his investigator and explained that he was making the
request because he had seen reports "indicat[ing] that you may have
been present or have some knowledge of the acts alleged against Mr.
Manon."
13
The government did go forward with a Rule 35(b) motion
recommending a reduced sentence for Medina. See United States v.
Roa-Medina, No. 08-2490, 2010 WL 2181556, at *1 (1st Cir. June 2,
2010).

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nothing to offer in exchange for his testimony, but that the

government could ask the court to consider a reduced sentence under

Rule 35.

Wiberg argued at the hearing that evidence of the

proposed deal could have been obtained through testimony, or by

means of an excerpt from the letter, and that introduction of the

full letter – with the references to Medina's and Manon's guilt –

was "[h]orribly prejudicial." The district court, however,

observed that the letter was "an extraordinarily valuable piece of

evidence Mr. Garrity exploited," that it needed to be presented in

its entirety, and that the reference it contained to Manon's

involvement in drug dealing was cumulative of Medina's testimony.

The court said it viewed Garrity's decision to acquiesce in the

admission of the letter as an astute tactical choice, not a ground

for an ineffective assistance claim.

We have nothing to add to the district court's evaluation

of this claim, which correctly applied the first prong of the

Strickland analysis "with deference to counsel's professional

judgment," United States v. Downs-Moses, 329 F.3d 253, 265 (1st

Cir. 2003).

2. Walichiewicz's Testimony

The district court spent considerable time at the

evidentiary hearing probing Manon's complaint that Garrity

committed prejudicial error by failing to object on hearsay grounds

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to testimony by Walichiewicz explaining how he met Manon. The

testimony was as follows:

AUSA: How many opportunities did you have to
see this Dario Manon back in June 2005?
Walichiewicz: About five times.
AUSA: Where is it that you saw him?
Walichiewicz: On the west side of Manchester,
I believe Barr Street and
Granite.
AUSA: And how is it that you saw him at that
address?
Walichiewicz: I was brought there by a person that
was a drug addict like myself. I was a
heroin addict.
AUSA: What was that person's name?
Walichiewicz: George Kish.
AUSA: Why did Mr. Kish bring you to Granite
and Barr?
Walichiewicz: He said there was a guy there
that had drugs and that he
offered to do – in exchange for
us to do some plumbing and
install a bathroom for him, that
he'd give us drugs.

Walichiewicz testified that Manon was the person for whom the work

was to be done, and he identified Manon in court. Although

Walichiewicz testified that he and Kish subsequently did the work

for Manon, at an apartment at Granite and Barr, he did not say

whether they received the promised drugs.

Wiberg argued at the evidentiary hearing that Garrity

should have anticipated that the prosecutor's question about why

Kish brought Walichiewicz to Granite and Barr might lead to

problematic hearsay, and he thus should have objected to both the

question and the resulting testimony. Wiberg also argued that

Garrity should have objected to the testimony based on Rule of

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Evidence 404(b), which bars admission of evidence of prior crimes

or other acts to prove character. See Fed. R. Evid. 404(b).

The prosecutor explained that the testimony about the

origin of the relationship between Walichiewicz and Manon was

designed to reinforce the inference that Manon was the "Dario" with

whom McCabe arranged drug deals at the cell phone number he got

from Walichiewicz. The prosecutor said he had not expected

Walichiewicz to bring up the offer of drugs in exchange for

plumbing work; Garrity, too, indicated that he was surprised by

Walichiewicz's response. Garrity did not recall his thought

process once he heard Walichiewicz's testimony, but assumed that he

did not object at that point because Walichiewicz had not named

Manon and he did not want to draw attention to the testimony. On

cross-examination by Wiberg, however, Garrity acknowledged that

Walichiewicz did identify Manon as the individual requesting the

work. Garrity surmised that, at trial, he originally viewed the

questioning as "somewhat innocuous in that it wasn't specific to

Mr. Manon, but then I have three people who are coming in to court

saying he's the guy, so that the statement with Mr. Kish, I think,

went by in the wash, and I don't believe the government ever

referred to it."

The district court minimized the objectionable aspects of

the evidence, noting that it arguably was appropriate background

evidence rather than inadmissible hearsay. The court also

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concluded that "there's a good argument" that the evidence was

admissible under Rule 404(b) on the issue of identity,14 that it

would survive scrutiny under Federal Rule of Evidence 403 because

its probative value was greater than its prejudicial effect and,

hence, that there was no error in Garrity's failure to object to

Kish's testimony. Moreover, the court viewed any such error as

harmless "[i]n the face of the overwhelming evidence of the

defendant's guilt."

Like the district court, we see no need to definitively

resolve whether Garrity's failure to object to Walichiewicz's

testimony satisfies the Strickland requirement of deficient

performance because Manon cannot make the requisite showing of

prejudice. See, e.g., Sleeper v. Spencer, 510 F.3d 32, 39 (1st

Cir. 2007) ("[A] reviewing court need not address both requirements

if the evidence as to either is lacking."). Even without

Walichiewicz's testimony about Kish's statements linking Manon to

drugs and to a residence in the area of Granite and Barr Streets,

the jury was confronted with substantial evidence of Manon's guilt.

Walichiewicz, Medina and McCabe all identified him in court as the

individual who sold drugs to McCabe. Medina testified that Manon

introduced him to McCabe and that he saw Manon give drugs to

14
Although Rule 404(b) bars admission of evidence of other
crimes or acts to prove "the character of a person in order to show
action in conformity therewith," it allows such evidence to prove,
inter alia, identity. Fed. R. Evid. 404(b).

-26-
McCabe. The cell phone number that McCabe used to arrange the

sales was linked to Manon through Walichiewicz, and the repeated

use of that number was evidence of Manon's involvement in each

transaction. The seller identified himself as "Dario," and Manon

was arrested in the area where the sales occurred after exiting the

same building from which McCabe had seen the seller emerging.

Although Manon claims that Garrity's conduct denied him

the opportunity to present evidence that would have undermined the

credibility of the witnesses – by means of Martinez's and Geraldy's

testimony and a non-suggestive identification procedure – the jury

was well aware of the cooperators' self-interest and also knew that

McCabe had no physical evidence proving that Manon was "Dario." On

this record, we cannot conclude that there is a reasonable

probability that exclusion of Walichiewicz's challenged testimony

would have altered the outcome of the trial.15

15
Appellant's reliance on Crawford v. Washington, 541 U.S. 36
(2004), in support of his hearsay claim is misplaced. In Crawford,
the Supreme Court held that the Confrontation Clause bars admission
of testimonial hearsay in a criminal case unless the declarant is
unavailable and the defendant had a prior opportunity for cross-
examination. United States v. Cruz-Diaz, 550 F.3d 169, 176 (1st
Cir. 2008). Kish's statement is plainly not testimonial. See,
e.g., United States v. Earle, 488 F.3d 537, 543 (1st Cir. 2007)
(describing categories of testimonial statements); United States v.
Malpica-García, 489 F.3d 393, 397 (1st Cir. 2007) (same). The
Crawford argument is similarly inapplicable to the admission of
Medina's letter, even were it to be considered testimonial. See,
e.g., United States v. Cabrera-Rivera, 583 F.3d 26, 33 (1st Cir.
2009) (stating that testimonial out-of-court statements may be
admitted where the declarant testifies at trial).

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 For the foregoing reasons, we affirm the district court's

judgment denying Manon a new trial.

So ordered.

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