PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-6641
CARLTON N. LUCK, a/k/a C-4,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(3:04-cr-00047-nkm-mfu-6; 3:08-cv-80065-nkm-mfu)
Argued: May 11, 2010
Decided: July 2, 2010
Before GREGORY and SHEDD, Circuit Judges, and
Arthur L. ALARCÓN, Senior Circuit Judge of the United
States Court of Appeals for the Ninth Circuit,
sitting by designation.
Reversed, vacated, and remanded by published opinion. Judge
Gregory wrote the majority opinion, in which Senior Judge
Alarcón joined. Judge Shedd wrote a dissenting opinion.
COUNSEL
ARGUED: Gregory Mokodean, UNIVERSITY OF VIR-
GINIA SCHOOL OF LAW, Appellate Litigation Clinic,
2 UNITED STATES v. LUCK
Charlottesville, Virginia, for Appellant. Anthony Paul Giorno,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee. ON BRIEF: Neal L. Walters, UNI-
VERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Lit-
igation Clinic, Charlottesville, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, Roanoke, Vir-
ginia, Ronald M. Huber, Assistant United States Attorney,
Barbara Colberg, Third-Year Law Student, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
OPINION
GREGORY, Circuit Judge:
Carlton Luck ("Luck") appeals the district court’s partial
denial of his motion to set aside his conviction under 28
U.S.C. § 2255. Luck argues that his conviction for conspiracy
to distribute and possess with intent to distribute fifty grams
or more of cocaine base should be reversed because his trial
counsel was ineffective for failing to request an informant
instruction, declining to call impeachment witnesses, putting
Luck’s prior incarceration before the jury, and not sharing
Jencks material turned over by the government with Luck. We
find that trial counsel was ineffective in failing to request an
informant instruction and vacate Luck’s conviction and sen-
tence.1
I.
In 2005, Luck was indicted for conspiracy to distribute and
to possess with intent to distribute fifty grams or more of
cocaine base (Count One); using, brandishing, or carrying a
1
Because we conclude that Luck’s conviction should be vacated as to
the issue of an informant instruction, we do not address the questions of
the impeachment witnesses, prior incarceration, and Jencks material.
UNITED STATES v. LUCK 3
firearm during and in relation to a drug trafficking crime
(Count Two); and distribution of cocaine base (Counts Three
and Four). On March 21, 2005, he proceeded to trial on all
charges before a jury.
At trial, the government presented evidence from three
main witnesses: the police officer investigating the case and
two paid informants.2 Atrina Johnson ("Johnson") and Jesse
Thompkins ("Thompkins") were the government’s main wit-
nesses. Both were informants paid for providing information
to the police. Johnson approached the police on her own ini-
tiative to provide information about Luck because she wanted
to reduce her exposure for a robbery charge she was facing.
Thompkins also came forward without prompting by the
police. He provided information on Luck to benefit Johnson,
who was the mother of his child, and to earn money for him-
self.
Johnson testified that she met Luck through Thompkins,
who was regularly purchasing cocaine base from Luck. John-
son also knew Luck because she regularly stored drugs in her
attic for another man known as JaB. She testified that when
JaB was arrested, Luck came to her house and retrieved the
drugs JaB stored there. Thereafter, while facing a state rob-
bery conviction, Johnson asked the police if she could work
as an informant in return for a favorable report to her sentenc-
ing judge. Johnson then conducted two controlled buys for the
police. On March 18, 2004, she called Luck on his mobile and
asked him to sell her cocaine base. She then went to Luck’s
house and bought cocaine base from his brother. Johnson tes-
tified that she again called Luck on March 24, 2004, and
arranged to buy cocaine base, then went to his house and pur-
chased it from him. Charlottesville Police Detective Brian
O’Donnell ("O’Donnell") wired Johnson with video and
2
The government also presented testimony from a neighbor of Luck’s.
As his testimony went to the firearm count, which is not before this court,
it is not recounted here.
4 UNITED STATES v. LUCK
audio recording equipment for the buys, but the image and
sound quality were so poor that essentially nothing was
recorded. O’Donnell was not present at the buys, so he had no
direct knowledge of the dealings. Additionally, while he pat-
ted Johnson down before the buys, he did not search any of
her inner garments for narcotics.
Thompkins also testified as to his knowledge of Luck’s
drug dealing. Thompkins frequently interacted with Luck,
buying cocaine base from Luck for personal use two to three
times a day for a year. He also testified that he saw Luck sell
drugs to other people. Additionally, Thompkins once sold
Luck a pit bull, for which Luck paid $100 in cash and $100
in cocaine base.
On April 29, 2004, a warrant was executed on Luck’s
house. The search recovered scales and baggies commonly
used to package narcotics; however, no drugs were recovered.
The police also seized Luck’s mobile phone, which was the
number Johnson had called to set up the buys, and a phone
bill for the mobile phone showing that Luck was the account
holder.
After the government presented its case in chief, Luck cal-
led several family witnesses in rebuttal. Both his mother and
his aunt testified that he came to Charlottesville after a period
of incarceration to turn his life around and that they had no
knowledge of his involvement with drugs. Luck’s uncle, who
lived with Luck, testified that he never saw him involved in
any drug transaction.
After deliberating a short while, the jury returned a guilty
verdict on all counts, and Luck was subsequently sentenced
to 444 months imprisonment. Luck’s direct appeal was denied
by this Court. United States v. Luck, No. 05-4801, 200 Fed.
App’x 263 (4th Cir. Sept. 22, 2006). On June 23, 2008, Luck
filed a pro se motion to set aside his sentence under 18 U.S.C.
§ 2255 alleging that both his trial and appellate counsel pro-
UNITED STATES v. LUCK 5
vided ineffective assistance. In particular, Luck argued that
trial counsel was ineffective for not requesting an informant
instruction, not calling impeachment witnesses, inadequately
preparing his mother and aunt to testify, not preventing the
admission of two photographs, and failing to give him access
to discovery materials. He also argued that appellate counsel
was ineffective by failing to argue that Luck’s indictment was
constructively amended by the trial judge’s instructions.
The district court granted Luck’s motion with respect to the
issue of constructive amendment and ineffective assistance by
appellate counsel. Therefore, the court reversed Luck’s con-
victions on Counts Two, Three and Four. The district court
however denied Luck’s motion as to the rest of his claims and
affirmed his conviction on Count One. Luck timely appealed.3
II.
In an appeal of the denial of a motion under § 2255, this
Court reviews the district court’s decisions of law de novo.
United States v. Poindexter, 492 F.3d 263, 267 (4th Cir.
2007). The question of whether trial counsel provided ineffec-
tive assistance is a mixed question of fact and law which this
Court reviews de novo. Smith v. Moore, 137 F.3d 808, 817
(4th Cir. 1998).
III.
The issue before this Court on appeal is whether Luck’s
trial counsel provided ineffective assistance on a number of
grounds. We address only his first argument: whether trial
counsel was unconstitutionally deficient for failing to request
3
Luck was resentenced to 288-months imprisonment on August 11,
2009. His appeal of that sentence is currently pending before this court in
case 09-4744, and this Court denied his motion to consolidate with the
current case. As today we vacate his conviction, his pending case is now
moot and review will be denied.
6 UNITED STATES v. LUCK
an informant instruction. We find that counsel was ineffective
and vacate Luck’s conviction and sentence as to Count One
of the indictment.
A.
Questions of ineffective assistance of counsel are governed
by the Supreme Court’s decision in Strickland v. Washington,
466 U.S. 668 (1984). There, the court detailed the two-prong
approach courts must use when deciding ineffective assis-
tance questions. The defendant bears the burden of proof as
to both prongs of the standard. First, the defendant must show
that counsel’s representation "fell below an objective standard
of reasonableness" as measured by "prevailing professional
norms." Id. at 688. Courts should be deferential in this
inquiry, and have "a strong presumption that counsel’s con-
duct falls within the wide range of reasonable professional
assistance." Id. at 689. The defendant must therefore over-
come the presumption that the representation "might be con-
sidered sound trial strategy." Id. (citation and internal
quotation marks omitted).
Second, the defendant must demonstrate that counsel’s
inadequate performance prejudiced him. Id. at 687. Thus, the
defendant must show "a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different." Id. at 694. A reasonable probabil-
ity, in turn, is defined as "a probability sufficient to under-
mine confidence in the outcome." Id. In cases where a
conviction has been the result of a trial, the defendant must
demonstrate that but for counsel’s errors, there is a reasonable
probability that he would not have been convicted.
B.
Luck argues that his trial counsel was ineffective because
he failed to request an "informant instruction" consisting of
the following:
UNITED STATES v. LUCK 7
The testimony of an informer who provides evidence
against a defendant for pay, or for immunity from
punishment, or for personal advantage or vindica-
tion, must be examined and weighed by the jury with
greater care than the testimony of an ordinary wit-
ness. The jury must determine whether the inform-
er’s testimony has been affected by interest or by
prejudice against a defendant.
United States v. Brooks, 928 F.2d 1403, 1409 (4th Cir. 1991)
(quoting Devitt & Blackmar, Jury Practice and Instructions
§ 17.02 (3d ed. 1977)). He argues that this Court should fol-
low several circuits in holding that this instruction is always
mandatory, or at the least, that in this case counsel was inef-
fective for failing to request the instruction.
In Brooks, this Court faced the issue of when an informant
instruction is required, but did not answer that question one
way or the other because we found that the witnesses were not
"informers" within the meaning contained in the Devitt and
Blackmar treatise. 928 F.2d at 1409. Since then, the issue has
not again been raised before this Court, though we have
approved of the district court giving such an instruction in
several published cases. See, e.g., United States v. Sullivan,
455 F.3d 248, 258-59 (4th Cir. 2006) (stating that the jury was
properly given an informant instruction when requested by
counsel); United States v. Levenite, 277 F.3d 454, 463 (4th
Cir. 2002) (same); United States v. Anty, 203 F.3d 305, 310
(4th Cir. 2000) (same). The only discussion of the issue
occurred in an unpublished case prior to Brooks. There, Judge
Sprouse in dissent argued that because there was little corrob-
orating evidence for informant’s testimony on the charge, the
court should have given an informant instruction. United
States v. Worthington, 911 F.2d 726, at *5 (4th Cir. 1990)
(table) (Sprouse, J., dissenting). Therefore, whether an infor-
mant instruction is required or advisable in a case involving
paid informants is an open question in this Circuit.
8 UNITED STATES v. LUCK
Among the other circuits that have considered this ques-
tion, there is a consensus that an informant instruction is nec-
essary when the informant’s testimony is uncorroborated by
other evidence. See United States v. Bosch, 914 F.2d 1239,
1247 (9th Cir. 1990); United States v. Hill, 627 F.2d 1052,
1054-55 (10th Cir. 1980); United States v. Garcia, 528 F.2d
580, 587-88 (5th Cir. 1976); United States v. Griffin, 382 F.2d
823, 828 (6th Cir. 1967). These courts have explained that an
informant instruction is necessary because a general witness
credibility instruction is not sufficiently cautionary for infor-
mants because of special concerns about the incentive that
they have to fabricate information for their own benefit. See
United States v. Williams, 59 F.3d 1180, 1183-84 (11th Cir.
1995) (stating that sole function of an informant instruction is
to make jury aware that an informant’s testimony is to be
viewed with caution); Garcia, 528 F.2d at 588 ("When the
case is close and the witness particularly unreliable . . . this
Court has declared that the failure to give a cautionary
instruction amounts to plain error."); see also On Lee v.
United States, 343 U.S. 747, 757-58 (1952) ("The use of
informers, accessories, accomplices, false friends, or any of
the other betrayals which are ‘dirty business’ may raise seri-
ous questions of credibility. To the extent that they do, a
defendant is entitled to broad latitude to probe credibility by
cross-examination and to have the issues submitted to the jury
with careful instructions."). In other words, the jury needs to
be instructed to scrutinize informant testimony more carefully
than other witnesses, even biased witnesses, because of the
potential for perjury born out of self-interest. See Alexandra
Natapoff, Snitching 77 (2009) ("[W]hen defendants do go to
trial, numerous exonerations reveal just how often juries
believe lying criminal informants, even when juries know that
the informant is being compensated and has the incentive to
lie. A report by the Center on Wrongful Convictions at North-
western School of Law describes fifty-one wrongful capital
convictions, each one involving perjured informant testimony
accepted by jurors as true.").
UNITED STATES v. LUCK 9
C.
While the case law regarding paid informants generally is
persuasive, we need not decide the question of whether and
when an informant instruction is required, however, because
on these facts it is clear that Luck’s counsel erred in failing
to request an informant instruction. This case presents the
classic case of a professional informant paid for his services,
which in turn makes it the obvious case for an informant instruc-
tion.4 See, e.g., Garcia, 528 F.2d at 588 (remarking, in an
analogous case where the government’s main witness was a
professional, paid witness, that there was "more than the usual
need for a cautionary instruction"). Both Johnson and Thomp-
kins presented themselves to police, without any prompting,
as sources of evidence for hire. They sought out the police
and offered to gather evidence and testify in return for certain
benefits: time off of Johnson’s robbery sentence and financial
compensation.
Further, there was little corroborating evidence beyond the
informants’ testimony. There was literally no corroborating
evidence for Thompkins’ claims that he was buying cocaine
base from Luck several times a day for a year. Additionally,
while Johnson was equipped with recording equipment for her
buys, the quality of the recordings was so poor that they were
not even used at trial. Detective O’Donnell somewhat corrob-
orated her testimony by observing that she came back from
the buys with cocaine base, but he also admitted that he did
not conduct a thorough search before Johnson interacted with
Luck. Therefore a reasonable lawyer would have been con-
cerned that the uncorroborated testimony of paid informants
could have been "manufactured . . . out of whole cloth" for
the benefit of the informant alone. Griffin, 382 F.2d at 829
(internal quotation marks omitted).
4
Furthermore, as discussed in Part III.D below, if requested, the trial
judge should have given the informant instruction in this case, thus render-
ing Luck’s counsel’s failure to request the instruction even more deficient.
10 UNITED STATES v. LUCK
From the facts above, a reasonable attorney would have
requested an informant instruction. If there was ever a time to
ask to have the jury instructed that paid informants raise spe-
cial issues about credibility, this was the case. See Robert S.
Hunter, Fed. Trial Handbook: Criminal § 75.22 (2009)
("While the testimony of an informer is competent evidence,
it should be accompanied by instructions designed to call the
attention of the jury to the character of the informer, leaving
to the jury the question of the value and credibility of his testi-
mony."). Furthermore, there is no indication that failing to
request the instruction had any root in trial strategy. Luck’s
counsel cross-examined both Thompkins and Johnson about
the consideration they received from the government for their
investigation and testimony. In general, Luck’s counsel’s
defense strategy seems to be focused on discrediting the gov-
ernment’s witnesses, rather than offering his own explanation
of the events. Thus, were we to hold that failing to complete
the strategy and request an informant instruction was a tacti-
cal decision by counsel, we would "conjure up [a] tactical
decision[ ] an attorney could have made, but plainly did not."
Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir. 1992).
Therefore, Luck has established that his attorney’s conduct
met the performance prong of Strickland.
D.
Having determined that Luck has established the perfor-
mance prong, we now consider whether he has shown preju-
dice. Our inquiry regarding the prejudice prong is twofold: (1)
whether the instruction, if requested, should have been given;
and (2) if the instruction had been given, was there a reason-
able probability that the outcome of the proceedings would
have been different. As to the first issue, if requested, the trial
court should have given the informant instruction. There is no
debate that in a case like this where the government produces
very little evidence beyond the uncorroborated testimony of
paid informants, an informant instruction should have been
given. See Sullivan, 455 F.3d at 258-59 (noting, in a case
UNITED STATES v. LUCK 11
which involved testimony by a co-defendant, that the district
court properly warned the jury to especially consider the cred-
ibility of testimony by a biased witness); Garcia, 528 F.2d at
588 ("When the case is close and the witness particularly
unreliable . . . this Court has declared that the failure to give
a cautionary instruction amounts to plain error.").
The second issue then concerns whether giving the infor-
mant instruction could have reasonably changed the probabil-
ity of the outcome of the trial when the district court gave a
general credibility instruction. In this case, the district court
gave the jury general instructions regarding witness credibil-
ity including:
You are the sole judges of credibility or believability
of each witness and the weight to be given the wit-
ness’s testimony. In weighing the testimony of a wit-
ness, you should consider his relationship to the
government or to the defendant; his or her interest,
if any, in the outcome of the case . . . .
Therefore, whatever punishment . . . another defen-
dant may or may not have — there’s no other defen-
dant in here. We’re talking about any other
conspirator in this case — may or may not have
received in the past or any punishment that he or she
may or may not receive in the future should not enter
into your deliberations unless you feel the witness is
somehow motivated to make the statements they did
on the stand in an effort to help them.
Of course, this does not prevent you from consider-
ing the motivation or credibility of a particular wit-
ness who may have chosen to testify in hopes of
receiving a lighter or reduced sentence. However,
while you should carefully consider the motivation
and credibility of each witness, the specific punish-
12 UNITED STATES v. LUCK
ment he or she may or may not receive is a matter
strictly for the court.
J.A. 457, 459.5 It is true that the district court’s general
instructions on witness credibility contained all of the ele-
ments of the informant instruction. However, the informant
instruction is sui generis; it alerts jurors to the potentially
unique problems that inhere where an individual is paid to
inculpate a defendant. Cf. Anty, 203 F.3d at 310 (citing
Edward H. Devitt et al., Federal Jury Practice and Instruc-
tions § 15.02 (4th ed. 1992)) (discussing the creation of the
special credibility instruction as one of the reasons why paid
informant testimony may be considered). By summarizing the
tools that the jury must use to evaluate credibility and apply-
ing it specifically to the case of the informant, the instruction
more effectively cautions the jurors to think closely about the
testimony. See Natapoff at 198 ("Jury instructions are a clas-
sic and crucial vehicle for shaping verdicts. Because jurors are
the ultimate fact finders in criminal trials, charged with the
task of evaluating witness credibility and figuring out what
"really" happened, their evaluation of the informant testimony
is central to the criminal process."). Indeed, we have, in sev-
eral cases, approvingly noted that the jury was given an infor-
mant instruction as one of the reasons why there was no
prejudice to the defendant when the witnesses against him
were paid informants. See, e.g., Levenite, 277 F.3d at 463
(acknowledging the dangers of working with a paid witness
but stating that because, among other things, the informant
instruction was given "the necessary safeguards were fully
employed"). Our case law also suggests that corroboration is
an important factor as to the reliability and trustworthiness of
paid informant testimony. Id. at 462.
Therefore, our precedent counsels that had the informant
instruction been given, there is a reasonable probability that
the outcome of the proceeding would have been different. The
5
"J.A. __" refers to the joint appendix filed by the parties upon appeal.
UNITED STATES v. LUCK 13
government’s case was built entirely on a foundation of paid
informant testimony. There was minimal physical evidence.
No government agent had ever observed Luck engaged in
drug activity. Merely giving general instructions as to witness
credibility is not sufficient to give confidence that the out-
come was not tainted by prejudice. In this case in particular,
there was a significant incentive for the government’s two
main witnesses to give testimony for their own benefit, both
in terms of financial compensation and a reduction in sen-
tence. Therefore, Luck’s trial counsel was ineffective when he
failed to request an informant instruction when it would have
been reversible error for the court to refuse to give it if
requested, and that ineffectiveness prejudiced the outcome of
Luck’s trial because the jury was not cautioned to consider the
special problems of credibility posed by the government’s
paid informants.
IV.
Because we find that Luck’s counsel was unconstitutionally
defective in a way that prejudiced Luck, we reverse the deci-
sion of the district court and grant his Section 2255 motion.
We therefore vacate his conviction and sentence on Count
One.
REVERSED, VACATED, AND REMANDED
SHEDD, Circuit Judge, dissenting:
Because I believe the district court properly held that Luck
did not meet Strickland’s second requirement of prejudice
regarding his claim of ineffective assistance of counsel for
failure to request a paid informant instruction, I would affirm.
Accordingly, I dissent from the majority’s opinion.
In examining the prejudice prong, the district court found
that
14 UNITED STATES v. LUCK
Luck fails to establish that a reasonable probability
exists that the outcome of the case would have been
different if the Court had given the special instruc-
tion. . . . Defense counsel cross-examined Johnson
and Thompkins about their possible biases after they
testified on direct examination about the benefits the
government would grant them for their assistance.
Counsel also cross-examined police investigator
O’Donnell about the awards Johnson and Thompkins
received for testifying after O’Donnell thoroughly
described during direct examination the various ben-
efits informants can receive. Counsel also addressed
the prosecution witnesses’ motivations during his
closing argument. Furthermore, the court instructed
the jury on witness credibility in general. . . . After
reviewing the record, Luck fails to state a plausible
claim . . . that there is a reasonable probability that
any additional jury instruction would have led the
jury to acquit Luck.
J.A. 560-61 (internal citations omitted).
Assuming Luck’s trial counsel’s performance was defi-
cient, I do not believe Luck has carried his burden to prove
that he was prejudiced by trial counsel’s failure to request a
paid informant instruction. The jury was aware of possible
biases by Johnson and Thompkins against Luck. In addition
to cross-examining both of these informant-witnesses, Luck’s
attorney also cross-examined the investigating detective as to
their interests in testifying against Luck. Finally, Luck’s attor-
ney addressed these witnesses’ motivations when making his
closing argument.
In short, the jury was made aware on several occasions that
two of the prosecution’s witnesses were receiving either
financial consideration or a reduced punishment in exchange
for testifying against Luck. Yet, the jury nevertheless con-
victed Luck. Given these facts, I do not believe that Luck has
UNITED STATES v. LUCK 15
shown "a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 694
(1984). Accordingly, I dissent from the majority’s view and
would affirm the decision of the district court.