USCA1 Opinion
September 30, 1992 [NOT FOR PUBLICATION]
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No. 92-1048
MICHAEL A. LAU,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Michael A. Lau on brief pro se.
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Daniel F. Lopez Romo, United States Attorney, and Antonio R.
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Bazan, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Petitioner Michael Lau appeals from the
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denial of his motion under 28 U.S.C. 2255 for post-
conviction relief. He alleges that his attorney rendered
ineffective assistance by arguing a motion to suppress
evidence in a deficient manner, and thereafter failing to
raise the issue on appeal. We disagree, and therefore
affirm.
One portion of the suppression motion at issue here
challenged the legality of a warrantless search of
petitioner's apartment in the Netherlands Antilles, a search
conducted by Dutch authorities with the participation of DEA
agents. The general rule is that searches conducted by
foreign officials are not subject to the Fourth Amendment and
the exclusionary rule. See, e.g., United States v. Janis,
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428 U.S. 433, 456 n.31 (1976). There are two well-
established exceptions to this rule: (1) where the conduct of
foreign police shocks the judicial conscience; and (2) where
American officers participated in the foreign search, or the
foreign officers acted as agents for their American
counterparts, thereby rendering the search a joint venture.
See, e.g., United States v. Mitro, 880 F.2d 1480, 1482 (1st
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Cir. 1989); United States v. Hensel, 699 F.2d 18, 25 (1st
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Cir.), cert. denied, 461 U.S. 958 (1983). Petitioner claims
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that his counsel failed to recognize, and to argue to the
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court, that the latter exception governed the search and
seizure here.
Having reviewed the record in some detail, we cannot
agree that counsel's performance in prosecuting the motion to
suppress fell below an "objective standard of
reasonableness." Strickland v. Washington, 466 U.S. 668, 688
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(1984). We find no support for the suggestion that counsel
was unaware of the "joint venture" exception. Petitioner
makes much of the fact that counsel acknowledged not having
read Stonehill v. United States, 405 F.2d 738 (9th Cir.
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1968), cert. denied, 395 U.S. 960 (1969), one of the central
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cases addressing this issue. Yet this proves little; that
opinion, issued fifteen years earlier by another Circuit, was
only one of various decisions on the subject. (And, we might
note, the court there upheld the denial of a suppression
motion.) More to the point, most of counsel's questioning
focused on this very issue--i.e., the extent to which the DEA
agents participated in the search and in the selection of
items to be seized. And in his argument to the court,
counsel made specific reference to the Dutch authorities
having conducted the search "at the direction, or at the
request, or at the insistence of the DEA or Customs agents,"
and to their having acted as "agents" for the United States
government. As we read it, counsel was thereby directly
invoking the "joint venture" exception.
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To be sure, counsel might have pressed the issue with
greater vigor. Yet to the extent oral argument was
truncated, that largely occurred at the behest of the
district court, which manifested both a familiarity with the
governing legal principles and a readiness to make a ruling.
There can be little doubt that the court was cognizant of
counsel's position on the matter. Under these circumstances,
where the pertinent factual and legal issues both received an
adequate airing, it cannot be said that counsel's performance
rendered the hearing something less than a "reliable
adversarial testing process." Strickland, 466 U.S. at 688.
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Nor do we think that counsel acted unreasonably in
declining to raise the Fourth Amendment issue on appeal. As
evidenced by this court's opinion in the direct appeal,
United States v. Lau, 828 F.2d 871 (1st Cir. 1987), cert.
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denied, 486 U.S. 1005 (1988), counsel had a number of
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potentially viable issues to raise. Petitioner has done
little to overcome the "strong presumption" that the decision
to abandon the Fourth Amendment claim in favor of these other
issues was "sound [appellate] strategy." Strickland, 466
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U.S. at 689. Indeed, given the other evidence of guilt, see
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Lau, 828 F.2d at 872-73, counsel justifiably might have
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determined that prevailing on the Fourth Amendment issue
would have simply yielded a finding of harmless error.
Moreover, counsel might well have regarded the Fourth
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Amendment claim as of dubious merit. We need not decide the
ultimate viability of that claim in order to so conclude. It
suffices to note, contrary to petitioner's suggestion, that
the issue is of less than compelling merit. Petitioner
points to few cases actually applying the "joint venture"
exception to searches on foreign lands; instead, he mostly
distinguishes cases finding it inapplicable. The doctrinal
foundations in this area continue to evolve. See, e.g., 1 W.
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LaFave, Search and Seizure 1.8(g), at 216-19 (1987). And
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the district court here, of course, ultimately found the
claim meritless. To be sure, the Fourth Amendment issue here
might well have been a good one. But "a good Fourth
Amendment claim alone will not earn a prisoner federal habeas
relief. Only those habeas petitioners who can prove under
Strickland that they have been denied a fair trial [or
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appeal] by the gross incompetence of their attorneys will be
granted the writ ...." Kimmelman v. Morrison, 477 U.S. 365,
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382 (1986). We find no gross incompetence, either at trial
or on appeal, on the part of petitioner's counsel.
Affirmed.
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