United States v. Davis

September 16, 1996 [Not for Publication]
[Not for Publication]

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1602

UNITED STATES,

Appellee,

v.

JOSEPH DAVIS, A/K/A JOSEPH MILLS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Selya and Stahl, Circuit Judges,

and Torres,* District Judge.

David L. Martin on brief for appellant.

Sheldon Whitehouse, United States Attorney, Margaret E. Curran,

Assistant United States Attorney, and Gerard B. Sullivan, Assistant

United States Attorney, on brief for appellee.

September 13, 1996

*Of the District of Rhode Island, sitting by designation.

STAHL, Circuit Judge. A jury convicted appellant
STAHL, Circuit Judge.

Joseph Davis of heroin trafficking and firearms offenses.

Davis appeals the district court's denial of his motion for a

new trial, which was based on his claim of ineffective

assistance of counsel at trial. Because we conclude that any

deficiencies in counsel's performance did not result in

prejudice to Davis, we affirm.

I.
I.

Factual Background
Factual Background

In early January 1994, Detective David Lussier, a

Providence, Rhode Island, police officer specializing in

narcotic cases, began investigating suspected heroin dealer

Joseph Davis, a/k/a Joe Mills ("Davis"). The suspected

trafficking was being conducted out of an apartment that

Davis shared with his mother and niece. Detective Lussier

conducted sporadic surveillance of the apartment, stopping by

at various times of the day and night for five to thirty

minutes. He frequently observed a black BMW automobile

parked in front of the apartment, and on several occasions

saw Davis park the BMW and thereafter use his keys to enter

the apartment.

To confirm his suspicions, Detective Lussier

successfully orchestrated a controlled buy of heroin from

Davis at the apartment. Lussier searched the buyer, a

confidential informant, before he entered the apartment and

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then watched him enter, exit, and return directly to

Lussier's car. The informant then delivered a packet of

heroin to Lussier, stating that it came from "Joe."

Relying on the controlled buy to establish probable

cause, Lussier obtained a warrant to search Davis's

apartment. On January 24, 1994, several Providence police

officers executed the search warrant at Davis s apartment.

The police knocked on the door, and Davis s niece, the only

one home at that time, admitted the officers.

The apartment had two stories and a basement. The

bedrooms on the upper level were used by Davis's mother and

niece. The basement was divided into a laundry/storage area

and a third bedroom, apparently used by Davis. The police

found numerous drug-related items in the basement bedroom

area, including seventy-seven packets of heroin, twenty-three

bags of marijuana, a coffee grinder used to mill heroin, a

respiratory dust mask,1 a stamp commonly used to mark heroin

packets, and thousands of empty glassine packets. The police

also seized from the bedroom area $10,563 in cash ($3,663 in

a bank shaped like a large Coca-Cola bottle and $6,900 in a

"Snickers" box), two gold chains (also in the "Snickers"

box), and a loaded .38 caliber revolver in a box on the

second shelf of an entertainment center. A number of found

1. One of the officers who searched the apartment testified
at trial that these masks are used by persons who process and
package heroin in order to avoid inhalation of heroin dust.

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items established that the basement bedroom was Davis's

(letters, a birthday card, a photograph album, a bill for

pager service, etc.). Detective Lussier called the pager

number listed on the bill several times after the raid and

before Davis s arrest. Each time, Lussier, who had known

Davis for four or five years, recognized the voice returning

the page as that of Davis. Moreover, the caller confirmed

for Lussier that he was Joe Mills, another name used by

Davis. The police seized the BMW and found Davis's driver's

license inside, which bore the address of the apartment.

Providence police officers arrested Davis on March

4, 1994, about six weeks after the search. The arresting

officers seized from Davis forty-two packets of heroin marked

with the brand name "Snake" from the front pocket of the

sweatshirt Davis was wearing. They also seized a pager and

$300 in cash. At the police station, Davis gave the

apartment as his residence address. Detective Lussier

subsequently interviewed Davis and told him that they had

seized heroin from the apartment. Davis responded (to the

effect that) "You only got 72 bags." Lussier also told Davis

they seized marijuana. Again, Davis responded, "You only got

about 20 bags." Finally, Lussier told Davis that the gun

made the problem more serious. Davis rejoined, "The revolver

wasn't hidden. It was only a .38, just for protection."

Detective Lussier had not told Davis the quantity of the

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drugs seized or the caliber of the gun prior to Davis s

admissions. The arresting officer also turned the seized

pager over to Detective Lussier. Lussier dialed the number

he had previously used to page Davis and keyed in a three-

digit code. The code appeared on the pager s display.

It is also undisputed (based on trial stipulations)

that: (1) Davis had been convicted of a felony prior to

January 24, 1994, (2) the R.G. Industries .38 caliber

revolver had traveled in and affected interstate commerce and

it had been test-fired and worked, and (3) the packets seized

from the apartment, the residue on the coffee grinder, and

the packets seized from Davis s person all contained heroin.

II.
II.

Procedural Background
Procedural Background

On March 17, 1994, a federal grand jury charged

Joseph Davis with two counts of possession with intent to

distribute heroin in violation of 21 U.S.C. 841(a) (Counts

One and Four), one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. 922(g) (Count

Two), and one count of using a firearm during a drug

trafficking crime in violation of 18 U.S.C. 924(c) (Count

Three).2 On August 2, 1994, after a two-day jury trial at

2. Count Three was eventually dismissed, and Davis's
ultimate sentence adjusted accordingly, in light of Bailey v.

United States, 116 S. Ct. 501 (1995) (clarifying the meaning

of "use" of a firearm during drug trafficking under 18 U.S.C.
924(c)).

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which Davis presented no witnesses or evidence, Davis was

convicted on all four counts.

On August 11, 1994, Davis filed a pro se motion for

a new trial, alleging that he had received ineffective

assistance of counsel. The district court denied the motion.

Davis subsequently discharged his retained trial counsel, and

new counsel was appointed by the court. Davis s new counsel

moved for reconsideration of the denial of the motion for a

new trial. The district court agreed to reconsider and heard

arguments on the merits of the ineffective assistance claim.

The district court found both that trial counsel's

performance was adequate and that, even if it had been

deficient, Davis suffered no prejudice.

III.
III.

Discussion
Discussion

Davis appeals the district court's denial of his

motion for a new trial, arguing that he received ineffective

assistance of counsel at trial.3 Typically, the courts of

appeal hear claims of ineffective assistance on collateral

review, because such claims usually are not presented to and

decided by the district court prior to the direct appeal.

See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993),

3. Davis also appeals certain aspects of his sentence under
the United States Sentencing Guidelines, but our review of
the record reveals that the asserted errors have been
corrected by the district judge. Thus, we need not address
them here.

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cert. denied, 114 S. Ct. 1839 (1994). In this case, though,

Davis had new counsel appointed after trial, and the

ineffective assistance claim was briefed and argued to the

district court, which determined that trial counsel's

performance was neither deficient nor prejudicial.

Accordingly, "the record is sufficiently developed to allow

reasoned consideration of the claim." Id.

A. Governing Principles

To establish a Sixth Amendment violation of the

right to effective assistance of counsel, a defendant must

show: (1) that counsel's performance fell below an objective

standard of reasonableness; and (2) that prejudice resulted.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Scarpa

v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994), cert. denied, 115 S.

Ct. 940 (1995). Among the basic duties of an attorney is "to

bring to bear such skill and knowledge as will render the

trial a reliable adversarial testing process." Strickland,

466 U.S. at 688.

In evaluating an attorney's performance, we

"indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action `might be

considered sound trial strategy.'" Id. at 689 (quoting

Michel v. Louisiana, 350 U.S. 91, 101 (1955)). We must make

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"every effort . . . to eliminate the distorting effects of

hindsight" and to evaluate counsel's conduct from his or her

perspective under the circumstances as they existed at that

time. Id. "The proper measure of attorney performance

remains simply reasonableness under prevailing professional

norms." Id. at 688.

A defendant establishes prejudice from counsel's

substandard performance if he or she can show that, but for

counsel's errors, "there is a reasonable probability . . .

that the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome." Id. at 694. We do not

focus solely on the outcome; however, we also consider

"whether the result of the proceeding was fundamentally

unfair or unreliable." Scarpa, 38 F.3d at 16 (quoting

Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). "In making

this determination, a court . . . must consider the totality

of the evidence before the judge or jury." Strickland, 466

U.S. at 695.4 We need not decide if counsel's performance

4. There is some uncertainty surrounding the standard of
appellate review. Strickland instructs that "both the

performance and prejudice components of the ineffectiveness
inquiry are mixed questions of law and fact," 466 U.S. 668,
698 (1984), and, accordingly, this court has stated that "we
review these issues de novo," Matthews v. Rakiey, 54 F.3d

908, 916 (1st Cir. 1995). Five months earlier, however, this
court explained that before Strickland, "we reviewed a

district judge's determination as to competence only for
clear error," but "[s]ince Strickland, the standard of review

may be more rigorous where the issue is not a matter of

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was deficient if it is apparent that no prejudice resulted

from the alleged errors. Id. at 697.

B. Trial Counsel's Alleged Deficiencies

Davis propounds ten specific deficiencies in trial

counsel's performance: (1) failing to discuss with Davis,

before trial, the evidence and important tactical decisions;

(2) failing to challenge the legality of the search of the

apartment; (3) failing to seek dismissal of the jury panel

based on allegedly prejudicial statements by prospective

jurors during jury selection; (4) making an incoherent

opening statement; (5) making prejudicial statements about

the defendant at trial; (6) failing to object to

inadmissible, prejudicial testimony about outstanding

warrants for prior charges; (7) conducting ineffective and

damaging cross-examination; (8) failing to call witnesses to

challenge the credibility of government witnesses; (9)

failing to present a witness (Davis's mother) to explain the

presence of the pistol; and (10) failing to request a

limiting instruction regarding Davis's prior convictions.

historical fact but of deciding how much competence is
enough." United States v. Raineri, 42 F.3d 36, 43 (1st Cir.

1994); cf. United States v. McGill, 11 F.3d 223, 226 n.2 (1st

Cir. 1993) (comparing alternative interpretations of
Strickland's impact on our standard of review).

Here, given the strength of the evidence against
Davis, we focus on whether the alleged deficiencies in
counsel's performance were prejudicial. Our review is
extensive, but we are not obliged to decide which standard of
review obtains, because the result is the same under any
standard.

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C. Analysis

We have carefully reviewed all of the alleged

deficiencies in counsel's performance, as well as the

evidence presented at trial. Although Strickland's

"prejudice prong" is the basis for our decision, some

comments on counsel's performance are in order.

Trial counsel's performance could undoubtedly have

been better; in particular, he could have refrained from

telling the jury that his client was a heroin dealer with a

lengthy criminal record. There was, however, some method in

counsel's apparent madness. That seemingly prejudicial

statement was concededly part of a strategy to convince the

jury that the police had framed Davis, both at the time of

the search and upon his arrest, because he was a known

convicted felon. Counsel also argued and attempted to show

through cross-examination that Davis had too much experience

with the criminal justice system to make the damaging

statements that the police claimed he made (e.g., "You only

got 72 bags"). Trial counsel's statement that this was "a

prosecutor's dream case" and therefore "too good to be true"

was also part of the same strategy. Counsel tried to

convince the jury that the police had lied and planted the

evidence found in the apartment and on Davis's person. As

further support for the claim that his client had been

framed, counsel pointed to the fact that no fingerprints were

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found on the heroin-related items allegedly seized at the

apartment. While counsel's approach ultimately proved

unsuccessful, we are hard pressed to think of an alternative

trial strategy in light of the overwhelming evidence against

Davis.

Even assuming, however, that counsel's performance

was constitutionally deficient, we ultimately find that there

was no prejudice to Davis. The evidence against Davis was so

overwhelming that, as to nine of the ten alleged errors,

there is no reasonable possibility that the jury would have

acquitted Davis even without counsel's allegedly deficient

performance. The remaining error, the failure to move for

suppression of the evidence resulting from the apartment

search, cannot be dismissed on the basis of overwhelming

evidence. Thus, we will discuss that claim in some depth.

We also examine whether a constitutionally adequate trial

lawyer could have convinced the jury that the police lied and

fabricated evidence. As to all the other asserted errors,

there is no need to treat them individually -- we find the

evidence of Davis's guilt (if believed) to be so compelling

that he utterly fails to satisfy the prejudice prong of

Strickland. See 466 U.S. at 696 ("[A] verdict or conclusion

only weakly supported by the record is more likely to have

been affected by errors than one with overwhelming record

support."); see also United States v. Jackson, 918 F.2d 236,

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243 (1st Cir. 1990) (holding that overwhelming evidence of

defendant's guilt negated any reasonable probability that

error by counsel affected outcome of trial).

Although Davis points to a plethora of asserted

deficiencies, he concedes that trial counsel's errors were

non-prejudicial if one accepts the testimony of the four

police officers about the seizures of heroin and a gun at the

apartment, and the heroin on Davis's person upon arrest.

Boiled down to its essence, Davis's appeal is founded upon

his claim of extensive police perjury, and an assertion that

competent counsel could have either (1) suppressed the search

evidence because of that perjury or (2) obtained a verdict of

acquittal by convincing the jury that the police lied and

fabricated essential evidence.

Thus, our task is to assess Davis's showing of

police perjury and evidence fabrication. We first analyze,

and reject, Davis's police perjury arguments in the context

of a potential Fourth Amendment challenge to the apartment

search. We then use that analysis to conclude that there is

no reasonable probability that, in the absence of these

purported errors by counsel, a jury would have accepted the

perjury arguments and acquitted Davis.

1. Suppressing the Search Evidence

Davis argues that the warrant to search the

apartment was invalid because Detective Lussier lied about

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conducting the controlled buy. First, Davis points out that

Lussier's warrant affidavit contained little detail about the

controlled buy or the informant; in particular, the affidavit

did not provide the date of the controlled buy or the amount

of heroin or currency involved.5

Second, Davis asserts that Lussier's warrant

affidavit contained a logical inconsistency concerning

Davis's physical description that suggests fabrication. The

affidavit stated that Davis was 5'8" tall and weighed 145

pounds, when in fact he was 5'11" and 170 pounds. The

affidavit also stated that the informant, after completing

the buy, "provided me with a physical description matching

5. The affidavit stated:
Within the last few days I contacted
a confidential and reliable informant,
this informant has in the past provided
me with information that has resulted in
successful narcotics arrest [sic], and
narcotics seizures. I spoke with this
informant who agreed to make a controlled
purchase from apartment F-8 in Wiggins
Village. I drove the informant into the
area of the apartment and searched
him/her for any contraband or currency.
After finding none I provided the
informant with US currency and sent
him/her to the apartment. I then watched
as the informant knocked and went into
the apartment. After about 5 to 10
minutes the informant exited the same
door and walked directly to my vehicle.
Once inside the informant handed me a sum
of heroin, stating that it came from
"Joe." The informant then provided me a
physical description matching Joe Davis .
. . .

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Joe Davis" (emphasis added). Davis's argument is somewhat

subtle: if there had really been a controlled buyer who

dealt with Davis, the buyer would have accurately described

Davis, and that accurate description would not have "matched"

Joe Davis in Lussier's mind, because Lussier was mistaken

about Davis's actual height and weight. Thus, Davis contends

that Lussier fabricated both the confidential informant and

the controlled buy.

Davis also makes several other arguments about

police perjury. Although these arguments relate to events

that occurred after Lussier filed the warrant affidavit, we

address them here because Davis argues that the subsequent

conduct of the police corroborates the falsity of the

affidavit. After Davis was arrested, the arresting officers

seized the packets of heroin, the pager, and three hundred

dollars. About sixty-six dollars, however, was left in

Davis's possession after the initial post-arrest search,

apparently not discovered when the officers found the other

items. Davis argues that the officers would have found the

sixty-six dollars if they had in fact searched Davis and

found heroin and another wad of cash. Therefore, Davis

asserts, the arresting officers lied about finding heroin on

Davis, and they fabricated the physical evidence presented at

trial.

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Davis also contends that the police lied when they

said that the "Coca-Cola" bank was found in Davis's basement

bedroom, providing as support for that contention affidavits

from Davis's mother, sister, and a neighbor stating that the

bank belonged to the mother and was kept in her upstairs

bedroom. None of those three testified at trial. Finally,

Davis accuses the police of stealing nearly $500 from his

mother's bedroom, based on his mother's affidavit that the

money was missing after the search.

When an ineffective assistance claim is grounded on

a failure to litigate a Fourth Amendment claim, the defendant

must prove "that his Fourth Amendment claim is meritorious

and that there is a reasonable probability that the verdict

would have been different absent the excludable evidence."

Kimmelman v. Morrison, 477 U.S. 365, 375 (1985). We assume

for the sake of argument that the verdict would have been

different if the evidence resulting from the search was

excluded, and we focus on whether an effective counsel could

have successfully suppressed the evidence resulting from the

apartment search on Fourth Amendment grounds.

Davis argues that, had his counsel requested it, he

would have been entitled to a Franks hearing, the first step

in seeking to suppress the evidence obtained in the search.

Under Franks v. Delaware, 438 U.S. 154, 155-56 (1978), a

defendant may overcome the presumption of validity

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surrounding affidavits that support search warrants and

obtain an evidentiary hearing, if he "makes a substantial

preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and if the

allegedly false statement is necessary to the finding of

probable cause." Here, of course, the allegedly false

statement is Detective Lussier's assertion that a controlled

buy was conducted at Davis's apartment, which was the only

basis for probable cause in the affidavit.

We hold, however, that Davis's allegations of

perjury by Lussier do not amount to the "substantial

preliminary showing" required for a Franks hearing. The

Supreme Court explained in Franks that:

To mandate an evidentiary hearing, the
challenger's attack must be more than
conclusory and must be supported by more
than a desire to cross-examine. There
must be allegations of deliberate
falsehood or of reckless disregard for
the truth, and those allegations must be
accompanied by an offer of proof. They
should point out specifically the portion
of the warrant affidavit that is claimed
to be false; and they should be
accompanied by a statement of supporting
reasons. Affidavits or sworn or
otherwise reliable statements of
witnesses should be furnished, or their
absence satisfactorily explained.
Allegations of negligence or innocent
mistake are insufficient.

Id. at 154. Davis's showing of falsity in the Lussier

affidavit is based on (1) the lack of detail about the

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circumstances of the controlled buy, (2) the error in

Lussier's account of Davis's "approximate" height and weight

coupled with the statement that the controlled buyer gave a

"matching" description, and (3) the assertedly dishonest

subsequentpolice conduct. As we explain, this is not enough.

While further detail about the controlled buy might

have been desirable, the lack of specificity about the date

of the buy or the quantity involved is not necessarily

probative of falsity. The concern for keeping the buyer's

identity confidential is a more likely explanation for the

lack of those details. See United States v. Carty, 993 F.2d

1005, 1008 (1st Cir. 1993) (district court credited trial

testimony that it was "customary to avoid precise

specification of the dates of controlled buys in order to

protect the identity of informants"). Moreover, Lussier's

affidavit did describe the means by which he "controlled" the

buy (i.e., a prior search of the confidential informant and

personal observation of him before entering and after exiting

Davis's apartment). See United States v. Rodgers, 732 F.2d

625, 630-31 (8th Cir. 1984) (description of means of control

"tended to substantiate the fact that [defendant] was selling

cocaine from his residence"). We conclude that the lack of

detail does not amount to a "substantial showing" of falsity

in the affidavit.

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As to Lussier's misstatement of Davis's height and

weight, Davis does not allege that those data were material

to the warrant to search the apartment, which need only

describe with particularity the place to be searched. The

argument, again, is that the discrepancy shows that Lussier

lied about the controlled buy, without which there would have

been no probable cause. This ingenious argument, however, is

too thin a reed to support a claim of police perjury.

Lussier's affidavit did not state in what regard the

informant's description "matched" Davis (height? weight? age?

race? facial characteristics? hair style? mannerisms?

clothing? other distinguishing marks or features?).

Moreover, the affidavit only stated that Davis was

"approximately 5'8" 145" (in fact he was 5'11" and 170

pounds). The "matching" by the informant may have also been

merely an approximation. Hence, because Lussier gave only an

"approximate" description, and because we do not know in what

sense or how closely the buyer's description "matched" that

approximation, there may have been no discrepancy at all.

And to the extent there was a discrepancy, it was just as

likely a negligent or innocent mistake as a perjurious

fabrication. The inference that Davis asks us to draw from

this alleged discrepancy, that no controlled buy occurred, is

too strained and too speculative.

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Davis's other allegations of police untruthfulness

(i.e., the sixty-six dollars inexplicably left on Davis's

person after arrest, the location of the "Coca-Cola" bank,

and the money missing from Davis's mother's bedroom) do not

make a substantial showing, either. It is not reasonable to

infer, from the fact that sixty-six dollars was left on Davis

after his arrest, that the police planted heroin on Davis.

The failure of the police to find the sixty-six dollars more

likely resulted from inadvertency than from a conspiracy to

falsely convict Davis. And the testimony of Davis's mother,

niece, and neighbor about the location of the "Coca-Cola"

bank and the missing money does little to substantiate that

Lussier lied about the controlled buy, even if we ignore our

concerns about the potential bias of those affiants.

We do not blindly assume the credibility of police

officers, but Davis's assertions do not persuade us that

competent trial counsel could have made a substantial showing

that the warrant affidavit was falsified as part of a

perjurious police conspiracy. Absent that showing, Davis

would not have received a Franks hearing,6 let alone

6. We recognize that when an affidavit relies primarily on
information provided by a confidential informant, a defendant
will often lack the information needed to make a Franks

showing. See United States v. Higgins, 995 F.2d 1, 3 (1st

Cir. 1993). In such cases, where the defendant challenges
the accuracy of the affidavit but has failed to make the
"substantial preliminary showing" required by Franks, the

court may conduct an in camera interview of the

officer-affiant, and, if necessary, of the informant. See

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successfully surmounted the next hurdle, convincing the

district court to suppress the evidence because of a perjured

affidavit. Thus, we conclude that there is no reasonable

probability that the search evidence could have been

suppressed, and no prejudice suffered by Davis.

2. Convincing the Jury of Police Perjury

Davis's trial counsel did attempt to convince the

jury that the police were lying about the evidence, but the

jury evidently was not persuaded. Trial counsel cross-

examined Lussier about the controlled buy and the discrepancy

in the description in Davis's height and weight; he also

cross-examined the arresting officer about the sixty-six

dollars left on Davis's person after his arrest. He argued

United States v. Southard, 700 F.2d 1, 10-11 (1st Cir.),

cert. denied, 464 U.S. 823 (1983). A district court is not

required to do so, however; the decision whether an in camera

proceeding is needed to test the officer-affiant's
credibility rests entirely with the district court. See

United States v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990).

We review a district court's denial of a defendant's request
for an in camera proceeding for abuse of discretion. See

United States v. Valerio, 48 F.3d 58, 62-63 (1st Cir. 1995);

Higgins, 995 F.2d at 3.

Moreover, Davis has argued neither that trial
counsel should have requested an in camera hearing, nor that

such a proceeding would have led to the suppression of the
search evidence. And, although a "confidential informant"
was used to conduct the controlled buy, there was no reliance
on any information provided by the informant; rather, Lussier

personally observed that the informant went into the
apartment without heroin and came out with heroin. That is
enough for probable cause to search the apartment, based on
the officer's own perception. Thus, many of the credibility
concerns that arise when probable cause is based on
information provided by a confidential source are not present
in this case.

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to the jury that these facts indicated that the police were

lying, and that the drugs were planted on Davis.7 It is true

that trial counsel did not present testimony by Davis's

mother, sister, or neighbor about the Coca-Cola bank or the

money allegedly stolen by the searching officers. These

allegations do not, of course, directly attack the major

evidence against Davis, but if believed they could have

impugned the credibility of the officers involved in Davis's

case. We are very doubtful, though, that a jury would have

been persuaded by the testimony of Davis's mother, sister, or

neighbor, for the reasons alluded to earlier. Suffice it to

say that we see no reasonable probability, given the

extensive evidence against Davis, that the jury would have

acquitted Davis if trial counsel had presented the additional

evidence of alleged police perjury, had made the perjury

arguments more artfully, and had not made the other supposed

errors that Davis points to. The evidence was simply too

voluminous and compelling, while the argued inferences of

police perjury were too speculative and tenuous.

IV.
IV.

Conclusion
Conclusion

7. The trial court sustained the government's objection when
Davis's counsel, in closing argument, stated "I don't know if
they enjoyed planting drugs on him." However, the overall
theme of the defense closing argument -- police perjury and
fabrication of evidence -- was nonetheless made obvious to
the jury.

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For the foregoing reasons, we conclude that none

of the alleged errors by counsel resulted in prejudice to

Davis, given the overwhelming record evidence of his guilt.

The decision of the district court is affirmed.
affirmed

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