UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40608
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD PAUL HASS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:96-CR-50-8)
_________________________________________________________________
November 26, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:1
For this pro se appeal from the denial of 28 U.S.C. § 2255
relief, and under the requisite certificate of appealability
granted by the district court, the principal issues are: whether,
pursuant to United States v. Leach, 918 F.2d 464 (5th Cir. 1990),
cert. denied, 501 U.S. 1207 (1991), reversible error occurred when
the guilty pleas of non-testifying co-conspirators were introduced
at the trial of Richard Paul “Buddy” Hass; and whether,
concomitantly, Hass received ineffective assistance of counsel when
1
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
his trial and appellate counsel failed, respectively, to object and
to contest the introduction of those guilty pleas. AFFIRMED.
I.
Convicted for conspiracy to manufacture and distribute
methamphetamine, Hass was sentenced to 262 months imprisonment and
a ten-year period of supervised release. His conviction and
sentence were affirmed on direct appeal. United States v. Hass,
150 F.3d 443, 451 (5th Cir. 1998), cert. denied, 531 U.S. 812
(2000). The evidence showed that Hass and his brother, Tommie
Hass, “were involved in a large-scale methamphetamine distribution
ring, mainly as suppliers to Terry Anderson”. Id. at 446.
II.
For this denial of § 2255 relief, issues of law are reviewed
de novo; findings of fact, for clear error. E.g., Warren v. Miles,
230 F.3d 688, 691 (5th Cir. 2000). Hass maintains: his court
appointed trial counsel rendered ineffective assistance by failing
to object and request a curative instruction when the Government
referred to the guilty pleas of non-testifying co-conspirators (he
claims the Government did so to show substantive evidence of
guilt); and his substitute, retained appellate counsel rendered
ineffective assistance by failing to raise this issue on direct
appeal. Because both issues concern ineffective assistance of
counsel vel non, we are guided by Strickland v. Washington, 466
U.S. 668 (1984), which requires showing both that counsel’s
performance was deficient; and that such deficient performance
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prejudiced the defense. Id. at 687. Deficient performance is
based on an objective standard of reasonableness, considering all
the circumstances. Id. at 688. Further, there is “a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance”, and judicial review is highly
deferential to counsel’s performance. Id. at 689.
To show prejudice, Hass must show “there is a reasonable
probability that, but for counsel’s errors, the result of the
proceeding would have been different”. Lavernia v. Lynaugh, 845
F.2d 493, 498 (5th Cir. 1988) (citing Strickland, 446 U.S. at 694).
Because Hass contends counsel rendered ineffective assistance
for failing to object to the introduction of non-testifying co-
defendants’ guilty pleas and failing to raise the issue on direct
appeal, the linchpin is whether admission of the guilty pleas
constituted reversible error. Evidence concerning the conviction
of a co-conspirator is not admissible as substantive proof of guilt
of the defendant, but a defense strategy based on a co-
conspirator’s guilt operates as an exception to the rule that
admission of a guilty plea is plain error. See United States v.
Leach, 918 F.2d 464, 467 (5th Cir. 1990). Other factors to
consider when determining reversible error vel non include the
presence of a limiting instruction, a proper evidentiary purpose
for the plea, the improper emphasis on the plea as substantive
evidence, and whether the introduction was invited by defense
counsel. See Leach, 918 F.2d at 467.
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A.
Hass claims ineffective assistance through his trial counsel’s
failing to object to the introduction of the guilty pleas of
several non-testifying co-conspirators. As discussed below, Hass
has not shown a Leach error occurred: he has not shown any
evidence of improper emphasis of the guilty pleas by the
Government; the district court issued limiting instructions; and
Hass and his co-defendant brother employed a defense strategy
utilizing co-conspirators’ guilty pleas.
1.
As stated, the Government did not improperly emphasize co-
conspirators’ guilty pleas. Both hereinafter-described references
were in passing and were in relation to other evidence submitted
for a proper purpose.
Jorge Teakell, who testified as a Government witness and
stated he pleaded guilty to selling methamphetamine, admitted that
his brother, Juan Teakell, entered a guilty plea in the conspiracy
case.2 Jorge Teakell testified: Juan Teakell’s arrest precipitated
2
After Jorge Teakell testified that his brother Juan Teakell,
who did not testify, was involved in the case, the testimony
elicited by the Government was as follows:
Q: Okay. And what happened to him, has –
did he enter a plea?
A: I believe he did.
Q: Okay. So, he entered a plea of guilty to
the conspiracy just like you?
A: Yes.
Q: And he’s over in the Smith County Jail,
4
Jorge Teakell’s involvement in the conspiracy; Jorge Teakell’s
first sale of methamphetamine was to Hass and Terry Anderson; and
Hass paid for the drugs.
The one other instance of Government-elicited testimony of a
guilty plea occurred during the testimony of Calvin Reno, a
Government witness not charged in the case. After testifying that
he purchased drugs from Terry Anderson and her husband, Thomas
Anderson, Reno testified that Terry Anderson identified “Juan” and
“Buddy” as her suppliers. Reno further testified that he witnessed
several drug deals between Terry Anderson and Hass. At the end of
his testimony, the Government asked Reno about an address list and
a list of telephone numbers. Reno identified several individuals
on the mailing list, including Debra Longbine. The Government
asked if Longbine had been a defendant in the case who pleaded
guilty, and Reno responded affirmatively.
Again, our review of the record does not reveal any attempt by
the Government to use these references to the guilty pleas of other
co-conspirators as substantive evidence of Hass’ guilt. See United
States v. Samak, 7 F.3d 1196, 1199 (5th Cir. 1993). Considering
the length of testimony by each witness and their specific
testimony as to Buddy Hass, we cannot say that passing references
to non-testifying co-conspirators’ guilty pleas amounted to
improper emphasis of the pleas by the Government.
also?
A: Yes, he is.
5
If anything, as described below, the record reveals that
references to guilty pleas to discredit witnesses and non-witnesses
were part of a defense strategy by counsel for co-defendant Tommie
Hass, and there is some indication that Hass’ counsel used the same
strategy during closing arguments. While cross-examining a DEA
Agent, Tommie Hass’ counsel asked whether Thomas Anderson, who did
not testify, had entered a plea of guilty in the case. And, while
cross-examining James Howard, an unindicted co-conspirator, Tommie
Hass’ counsel asked about the guilty pleas of Scott and Debra
Longbine and Cheryl Cheek, all of whom did not testify. The
references to guilty pleas were an attempt to discredit these
individuals by showing their unreliability. Further, during
closing arguments, Tommie Hass’ counsel stated the evidence was
probably sufficient “to convict those who [had] entered pleas”,
without distinguishing between those who did, and did not, testify;
and Hass’ and Tommie Hass’ counsel repeatedly emphasized the guilty
pleas of testifying co-conspirators. See Samak, 7 F.3d at 1198-99;
Leach, 918 F.2d at 467-68.
Moreover, the district court issued limiting instructions.
The jurors were instructed not to be “concerned with the guilt of
any other person or persons not on trial as a defendant”; and, with
respect to Hass’ accomplices, the court stated: “The fact that an
accomplice has entered a plea of guilty to the offense charged is
not evidence in and of itself of the guilt of any other person”.
A clear, cautionary instruction to the jury can correct the error
6
of admitting evidence of a co-conspirator’s guilty plea. See
United States v. Magee, 821 F.2d 234, 241 (5th Cir. 1987).
In sum, the jury instructions, the minimal emphasis on the
guilty pleas by the Government, and the defense strategy, certainly
of co-defendant Tommie Hass, lead us to conclude that the admission
of the guilty pleas would not have been reversible error.
2.
Hass has not shown deficient performance by his trial counsel.
Therefore, his ineffective assistance claim concerning his trial
counsel fails. In the alternative, even if a Leach error occurred,
Hass has not shown to any degree of probability that, “but for” his
trial counsel’s performance, the result of the trial would have
been different. See Lavernia, 845 F.2d at 498.
As our Court’s earlier opinion for Hass’ direct appeal makes
clear, there was overwhelming evidence that Hass was guilty of
conspiracy to manufacture and distribute methamphetamine. See
United States v. Hass, 150 F.3d at 445-47. While Hass continues to
maintain he merely associated with many of the testifying
witnesses, the evidence is to the contrary. Given the volume of
testimony in this case, passing references to the guilty pleas of
non-testifying co-conspirators during the first two days of a two-
week trial does not amount to sufficient prejudice to show a
reasonable probability that, had Hass’ counsel objected, the result
would have been different.
7
B.
8
As stated, Hass was represented by court appointed counsel at
trial and was allowed to substitute retained counsel on appeal.
For deficient performance with respect to his appellate counsel,
Haas must show that his due process challenge concerning the
admission of the guilty pleas “would have been sufficiently
meritorious such that [Hass’] counsel should have raised it on
appeal”. United States v. Phillips, 210 F.3d 345, 348 (5th Cir.
2000). For the prejudice prong, Hass must demonstrate plain error
concerning the pleas’ admission. See Samak, 7 F.3d at 1197.
For prejudice, vel non, and given our above discussion of the
jury instructions, the absence of any evidence of improper emphasis
by the Government, and the trial strategy of discrediting witnesses
through the use of their guilty pleas, there was no error, much
less plain error. Therefore, Hass’ appellate counsel did not
render ineffective assistance. See Phillips, 210 F.3d at 348.
Counsel raised numerous issues on direct appeal, see United States
v. Hass, 150 F.3d at 447, 448-49, 451, and his conduct fell within
the “wide range of reasonable professional assistance” discussed in
Strickland. 466 U.S. at 689.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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