PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4117
RICHARD DEON RUSSELL, a/k/a
Richard Deon Thorn,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge. (CR-98-191-A)
Argued: January 24, 2000
Decided: July 19, 2000
Before WIDENER, WILLIAMS, and KING,
Circuit Judges.
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Vacated and remanded by published opinion. Judge King wrote the
majority opinion, in which Judge Widener joined. Judge Williams
wrote an opinion concurring in part and dissenting in part.
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COUNSEL
ARGUED: Joseph John McCarthy, DELANEY, MCCARTHY,
COLTON & BOTZIN, P.C., Alexandria, Virginia, for Appellant.
Lauren Beth Poper, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Suzanne Little, Alexandria, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellees.
_________________________________________________________________
OPINION
KING, Circuit Judge:
Richard Deon Russell appeals his convictions by a jury in the East-
ern District of Virginia for possession of heroin with intent to distrib-
ute, in violation of 21 U.S.C. § 841(a)(1), and for prisoner possession
of heroin, in violation of 18 U.S.C. § 13 (assimilating Va. Code Ann.
§ 53.1-203(5)). Because we conclude that the district court erred in
denying Russell's motion for a new trial, we must vacate his convic-
tions and remand for further proceedings.
I.
On October 10, 1997, Major Kenneth H. Washington of the Lorton
Reformatory ("Lorton") in Fairfax County, Virginia, conducted a rou-
tine security check around the enclosed recreation yard of Dormitory
22. At the rear of the recreation yard, Major Washington noticed a can
atop one of the poles of the yard fence. Upon removing the can, he
observed a string, attached to another can, suspended inside the pole.
After removing the second can, Major Washington discovered a plas-
tic bag containing twenty-four paper packets of heroin and $310 in
cash.
According to Major Washington, thirty-nine inmates resided in
Dormitory 22, and only those thirty-nine had direct access to the rec-
reation yard. Several inmates were actually in the recreation yard
when the contraband was discovered, and Major Washington believed
that one of them had acted suspiciously. He referred that inmate's
name, along with several others, to the Federal Bureau of Investiga-
tion ("FBI") as potential suspects. Appellant Russell was a resident of
Dormitory 22 in October 1997, but he was not present in the recre-
ation yard when the contraband was discovered. He was not initially
identified as a suspect by Major Washington.
2
Following their seizure, the plastic bag, the packets of heroin, and
the cash were examined for fingerprints. John T. Massey, a supervi-
sory fingerprint specialist with the FBI, conducted the fingerprint
examination and analysis. Agent Massey testified that he discovered
ten identifiable latent prints on seven of the twenty-four paper heroin
packets. Massey also found several other fingerprints on the paper
packets, but all the other prints lacked sufficient characteristics to be
identifiable. After running the identifiable prints through an FBI data-
base, Agent Massey concluded that all ten identifiable prints belonged
to appellant Russell.
Russell was charged and tried for possession with intent to distrib-
ute heroin, and for prisoner possession of heroin. The trial was con-
ducted in the district court in Alexandria on September 23, 1998, and
the jury found Russell guilty on both counts. Following the verdict,
Russell timely filed a Rule 33 motion for a new trial, which was
denied. He now appeals his convictions and sentence.
II.
Russell first argues that the evidence at trial was insufficient to
support his convictions. Additionally, Russell asserts that the district
court erroneously denied his motion for a new trial, which was based
on two theories: (1) newly discovered evidence; and (2) ineffective
assistance of counsel.
On the sufficiency challenge, we must conclude that the evidence
linking Russell to the contraband -- although, in prosecutor jargon,
"very thin" -- was sufficient to support Russell's convictions.1 With
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1 In reviewing the sufficiency of the Government's evidence, the jury's
verdict must be sustained "if there is substantial evidence, taking the
view most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). Therefore, our review is limited to deter-
mining whether a rational fact finder could find the essential elements of
the crimes charged beyond a reasonable doubt. See United States v.
Ruhe, 191 F.3d 376, 388 (4th Cir. 1999).
In this regard, although it is possible that Russell's explanation for the
presence of his fingerprints is true, the Government's proof need not
3
respect to Russell's newly discovered evidence claim, the bases for
this aspect of the new trial motion included: (1) his District of Colum-
bia convictions, introduced at trial to impeach his credibility, had
been vacated; and (2) the Government's fingerprint expert had been
previously reprimanded for erroneously identifying fingerprints.
Because neither of these claims warrants relief as newly discovered
evidence within the meaning of Rule 33, we must also reject Russell's
arguments in this regard. See United States v. Bales, 813 F.2d 1289,
1295 (4th Cir. 1987). However, because we conclude that Russell was
not accorded effective assistance of counsel in his trial, the district
court abused its discretion in denying Russell's motion for a new trial.
III.
In order to prove possession with intent to distribute, the Govern-
ment was required to establish the following: (1) possession of heroin
by Russell; (2) knowledge of this possession; and (3) intent to distrib-
ute heroin. United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996)
(en banc). To prove prisoner possession of heroin, the Government
had to show that: (1) Russell was a prisoner who (2) possessed a
chemical compound (heroin) that he did not lawfully receive. 18
U.S.C. § 13 (assimilating Va. Code Ann. § 53.1-203(5)). Because the
heroin was not found in the vicinity of Russell's person, both charges
were premised on the theory of constructive possession. See Burgos,
94 F.3d at 873; McGee v. Commonwealth, 357 S.E.2d 738, 740 (Va.
Ct. App. 1987).
These charges focus almost exclusively on two critical facts: (1)
discovery of ten of Russell's fingerprints on seven of the twenty-four
packets of heroin; and (2) Russell's access to the recreation yard near
Dormitory 22 where the heroin was hidden. Russell testified on his
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affirmatively "rule out every hypothesis except that of guilt." Holland v.
United States, 348 U.S. 121, 139 (1954). As we noted in United States
v. Murphy, 35 F.3d 143 (4th Cir. 1994), it is"[t]he jury, not the review-
ing court, [that] weighs the credibility of the evidence and resolves any
conflicts in the evidence presented, and if the evidence supports differ-
ent, reasonable interpretations, the jury decides which interpretation to
believe." Id. at 148 (internal citations omitted).
4
own behalf at trial, and he did not dispute that his fingerprints were
on the heroin packets confiscated by Major Washington. Instead, Rus-
sell asserted that his fingerprints had been impressed on the paper
packets innocently, before someone else used the paper to package
the heroin.
Russell explained that he often made picture frames and artwork to
trade with other inmates from materials similar to the paper used to
package the heroin. In order to make these frames and artwork, Rus-
sell testified that he would tear "a hundred sheets" of paper into small
squares, and then fold and link the different pieces together to form
a frame. Russell typically made these frames in a room open to other
residents of Dormitory 22. When he finished, he would simply dis-
card the unused pieces of paper in a nearby trash can.
Agent Massey conceded in his testimony that he could not deter-
mine when Russell's fingerprints had been placed on the paper pieces.
Additionally, Massey acknowledged that it was possible that Rus-
sell's fingerprints would have remained on the paper pieces, even if
used by someone else to wrap the heroin after Russell had handled them.2
If the jury had found Russell's explanation plausible and had cred-
ited his testimony, the Government's case would have undoubtedly
failed. However, Russell's credibility was all but destroyed when he
was mistakenly impeached on the basis of three felony convictions --
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2 Massey also indicated, however, that if the paper had been touched
several times by more than one finger, the prints most likely would not
have been identifiable. Massey testified:
When an object is touched by more than one finger, like, in other
words, several times, you have an overlaying of ridges. In other
words, it would be like a double exposure. This would make the
latent print most likely of no value for identification purposes,
because you have too many ridge details over top of each other.
J.A. 91. The Government relies on this testimony to rebut Russell's
explanation for the fingerprint evidence, but Massey's statement also
arguably supports Russell's story. Specifically, the fact that numerous
fingerprints on the twenty-four packets could not be identified is also
supportive of Russell's contention -- and consistent with Massey's testi-
mony -- that someone else handled the paper after Russell.
5
two of which had been vacated before trial.3 After weighing the evi-
dence, including Russell's testimony and his impeachment, the jury
rejected Russell's explanation and convicted him on both counts of
the indictment.
IV.
A.
Pursuant to the foregoing, we must focus on Russell's assertion
that the district court erred in denying his Rule 33 motion for a new
trial based upon the ineffective assistance of his trial counsel. As we
recognized in United States v. Smith, 62 F.3d 641, 650 (4th Cir.
1995), an ineffective assistance claim "may be brought as a motion
for new trial based on `other grounds' under Fed. R. Crim. P. 33."4
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3 The procedural history of the two vacated felony convictions is con-
voluted. For our purposes, it suffices that the District of Columbia Court
of Appeals reversed the convictions in question and remanded the case
to Superior Court. See Russell v. United States , 701 A.2d 1093 (D.C.
1997). On remand, the prosecutor dismissed the charges.
4 Rule 33 provides, in pertinent part:
On a defendant's motion, the court may grant a new trial to that
defendant if the interests of justice so require.
...
A motion for a new trial based on any other grounds may be
made only within 7 days after the verdict or finding of guilty or
within such further time as the court may fix during the 7-day
period.
Fed. R. Crim. P. 33.
Here, the jury reached its verdict on September 23, 1998. On October
1, 1998, Russell filed his pleading alleging ineffective assistance of
counsel. The Government conceded that this filing should be construed
as a motion for a new trial on "other grounds" under Rule 33, and the dis-
trict court treated it as such. Accordingly, Russell's motion asserting
ineffective assistance claim was timely filed (the intermediate Saturday
and Sunday are excluded under Fed. R. Crim. P. 45(a)). On January 29,
1999, the day of sentencing, the district court heard evidence on Rus-
sell's motion for a new trial and denied the same.
6
Although generally not raised in the district court nor preserved for
review on appeal, ineffective assistance claims asserted in motions
under Rule 33 -- and ruled on by the district court -- may be consid-
ered on direct appeal. United States v. Cronic , 466 U.S. 648, 667 n.42
(1984).5 In that regard, we review the district court's denial of Rus-
sell's Rule 33 motion for an abuse of discretion. United States v.
Adam, 70 F.3d 776, 779 (4th Cir. 1995).
B.
Russell's Rule 33 new trial claim, premised on ineffective assis-
tance of counsel, arose in the following manner: Prior to trial, the
Government filed a motion in limine seeking to admit evidence of
three prior felony convictions, for impeachment purposes only, if
Russell testified at trial on his own behalf. The three prior convictions
included: (1) assault with intent to kill while armed, in the District of
Columbia, in 1993; (2) arson, in the District of Columbia, in 1993;
and (3) conspiracy to commit arson, in Maryland, in 1992. In support
of the pre-trial motion, the United States Attorney provided both Rus-
sell's counsel and the trial judge with records supporting and confirm-
ing the validity of these convictions. Russell's counsel did not contest
the validity of the convictions nor did he make any effort to challenge
their admissibility. Twelve days before trial, on September 11, 1998,
the court granted the Government's motion in limine, accepted the
Government's representation on the validity of the convictions, and
authorized their use for impeachment of Russell's credibility as a wit-
ness.6 The district court, however, prohibited the Government from
identifying the specific offenses underlying the three convictions.
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5 A defendant who fails to file a motion for a new trial based on inef-
fective assistance within Rule 33's seven-day time limit may raise an
ineffective assistance claim in the first instance on direct appeal only
where the ineffectiveness "conclusively appears" from the record. Smith,
62 F.3d at 651. Otherwise, ineffective assistance claims should be raised
in the district court in a collateral proceeding under 28 U.S.C. § 2255. Id.
6 Fed. R. Evid. 609(a)(1), provides that, for impeachment purposes:
[E]vidence that an accused has been convicted of such a crime
[a crime punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted] shall
7
It is uncontradicted that Russell informed his counsel on several
occasions prior to trial that his District of Columbia convictions had
been "overturned." J.A. 262. Because Russell possessed no verifica-
tion of this assertion, his trial counsel, rather than independently
investigate the assertions of his client, chose to rely on the representa-
tions of the Government. Additionally, counsel instructed Russell that
he must admit to and acknowledge three felony convictions in his trial
testimony, and Russell followed his counsel's advice. Indeed, Rus-
sell's counsel himself introduced the two tainted convictions during
Russell's direct examination.
Subsequent to trial, Russell's probation officer confirmed through
court records that Russell's District of Columbia felony convictions
-- (1) assault with intent to kill while armed, and (2) arson -- had
been vacated and were invalid at the time of trial.
C.
In order to establish ineffective assistance of his trial counsel, Rus-
sell must satisfy the two-pronged test articulated by the Supreme
Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). First,
Russell must show that counsel's performance was deficient. Second,
Russell must demonstrate that this deficient performance prejudiced
his defense. The first prong of the Strickland test is satisfied if coun-
sel's performance "fell below an objective standard of reasonable-
ness." Id. at 688. If "counsel's errors were so serious as to deprive the
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be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the
accused . . . .
Although the pendency of an appeal does not preclude use of such a con-
viction for impeachment purposes, see Fed. R. Evid. 609(e), it is elemen-
tary that once a conviction has been reversed, it cannot be used to
impeach the accused. See United States v. Empire Packing Co., 174 F.2d
16, 20 (7th Cir. 1949) ("Unless and until the judgment of the trial court
is reversed, the defendant stands convicted and may properly be ques-
tioned regarding said conviction solely for the purpose of testing credi-
bility.") (emphasis added).
8
defendant of a fair trial, a trial whose result is reliable," then the sec-
ond prong is also satisfied. Id. at 687.
1.
An attorney is obligated to provide competent representation to his
client. To satisfy this basic obligation, counsel must exercise the
"legal knowledge, skill, thoroughness and preparation reasonably nec-
essary for the representation." Model Rules of Professional Conduct
Rule 1.1 (1999). Thus, an attorney has a duty to adequately examine
the law and facts relevant to the representation of his client:
"[C]ounsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unneces-
sary." Strickland, 466 U.S. at 691. As the ABA Standards for Crimi-
nal Justice provide:
Defense counsel should conduct a prompt investigation of
the circumstances of the case and explore all avenues lead-
ing to facts relevant to the merits of the case and the penalty
in the event of conviction. The investigation should include
efforts to secure information in the possession of the prose-
cution and law enforcement authorities. . . .
ABA Standards for Criminal Justice, ch. 4, Defense Function 4-4.1
(3d ed. 1993). When representing a criminal client, the obligation to
conduct an adequate investigation will often include verifying the sta-
tus of the client's criminal record, and the failure to do so may sup-
port a finding of ineffective assistance of counsel. See Tolliver v.
United States, 563 F.2d 1117, 1120-21 (4th Cir. 1977) (holding
defense attorneys' apparent unawareness of the potential invalidation
of defendant's prior convictions by a Supreme Court decision, even
after defendant informed counsel of the decision, to constitute ineffec-
tive assistance).
Here, we find that defense counsel's failure to confirm the status
of two of Russell's three prior convictions to be unreasonable. Prior
to trial, Russell informed his lawyer that the District of Columbia con-
victions had been "overturned" and were therefore invalid. And coun-
sel acknowledged that, rather than confirming Russell's assertion
before advising him that he must acknowledge and testify to three
9
prior convictions, counsel simply "relied on the representations of the
government that these convictions were in fact still valid at the time
of trial." J.A. 255. The necessary investigation was minimal: a simple
check of the District of Columbia Superior Court records would have
verified that Russell's convictions had been vacated.
In the context of this case, it was critical for Russell to accurately
portray his criminal record. Given the ease with which such informa-
tion could have been obtained, we are constrained to conclude that his
trial counsel's failure to verify the accuracy of the District of Colum-
bia convictions fell below an objective standard of reasonableness.
2.
Having determined that Russell's counsel breached his obligation
of competent representation, we must also analyze whether Russell
was prejudiced by this breach. To establish prejudice under Strick-
land, Russell must show there is a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome." Strickland, 466 U.S.
at 694. To determine whether counsel's errors likely affected the out-
come of Russell's trial, a careful examination of the evidence pres-
ented against Russell is necessary. And while we cannot disturb the
jury's verdict on sufficiency grounds, the "thin" nature of the Govern-
ment's case against Russell must weigh heavily in our consideration
of the prejudicial impact of his counsel's breach.
a.
Our decisions addressing the sufficiency of fingerprint evidence --
premised primarily on temporal considerations -- illustrate the mar-
ginal nature of the Government's evidence in this case. See United
States v. Corso, 439 F.2d 956, 957 (4th Cir. 1971) (per curiam) (hold-
ing that "[t]he probative value of an accused's fingerprints upon a
readily movable object is highly questionable, unless it can be shown
that such prints could have been impressed only during the commis-
sion of the crime"); United States v. Van Fossen, 460 F.2d 38, 40-41
(4th Cir. 1972) (reiterating the "well established" rule that "[t]o war-
rant conviction the trier of fact must be able to reasonably infer from
10
the circumstances that the fingerprints were impressed at the time the
crime was committed"). We have construed our Corso and Van
Fossen decisions to collectively stand for the proposition that "when
fingerprint evidence is of questionable probative value, it cannot sus-
tain a conviction if it is the only substantive evidence presented."
United States v. Harris, 530 F.2d 576, 579 (4th Cir. 1976) (per
curiam); see also Burgos, 94 F.3d at 874.
Therefore, to convict Russell in accordance with Corso and Van
Fossen, the Government was required to present evidence -- more
than Russell's fingerprints alone -- linking him to the contraband. In
this regard, the Government offered: (1) the testimony of Major
Washington, who indicated that in his twenty-one years of employ-
ment at the Department of Corrections, he had not seen paper artwork
at Lorton made from the kind of paper used to package the heroin in
this case; (2) evidence that only those thirty-nine inmates assigned to
Dormitory 22, including Russell, had access to the recreation yard
where the heroin was discovered; and (3) the fingerprint expert's con-
clusion that if someone handles an object previously touched by
another, the fingerprints of the first person would most likely not be
identifiable. Viewed through the lenient lens of Glasser, supra note
1, this evidence is barely sufficient to carry the Government's burden
of proof as to Russell's guilt. Indeed, despite the introduction of the
non-fingerprint evidence, the Government's identification of Russell
as the culprit continued to rest exclusively on nothing more than the
presence of Russell's fingerprints on the paper packets.
b.
Given the marginal nature of the Government's case, an accurate
presentation of Russell's prior criminal record was critical to his cred-
ibility and to his defense. As the Supreme Court recognized in United
States v. Agurs, 427 U.S. 97, 113 (1976), "[I]f the verdict is already
of questionable validity, additional evidence of relatively minor
importance might be sufficient to create a reasonable doubt." We rec-
ognize that the fate of a criminal defendant often depends on the
jury's credibility determination. Indeed, "[t]he jury's estimate of the
truthfulness and reliability of a given witness may well be determina-
tive of guilt or innocence . . . ." Napue v. Illinois, 360 U.S. 264, 269
(1959).
11
In this case, Russell's defense rose or fell based on the credibility
of a single witness: himself. While Russell's credibility was para-
mount in the jury's deliberations, it was irrevocably undermined by
his improper impeachment with the two vacated convictions. The
inaccurate presentation of Russell's criminal record, particularly
where his credibility as a witness is in issue, cannot be said to be an
insubstantial error. See United States v. Ling , 581 F.2d 1118, 1122
(4th Cir. 1978). And, as we recognized in Foster v. Barbour, 613 F.2d
59 (4th Cir. 1980), where the defendant's veracity was also critical,
the "repeated assertions that [the defendant] had been convicted of
other crimes . . . when those assertions were untrue . . . destroyed the
fairness of [the defendant's] trial and denied him due process of law."
Id. at 60 (emphasis added). Moreover, we find it significant that the
jury necessarily knew that Russell possessed at least one conviction,
in that proof of count two included his being a Lorton inmate at the
time of that offense. It is axiomatic that the use of a single conviction
for impeachment of a prisoner witness is of little evidentiary value.
On the other hand, the use of three convictions for impeachment was
devastating to Russell's credibility.
We also recognize that, as a practical matter, evidence of previous
convictions often has a prejudicial impact beyond its proper purpose
of impeachment. As the Fifth Circuit acknowledged in United States
v. Holloway, 1 F.3d 307, 311 (5th Cir. 1993), admitting evidence of
a defendant's prior conviction carries with it the"inherent danger that
a jury may convict a defendant because he is a `bad person' instead
of because the evidence of the crime with which he is charged proves
him guilty." Similarly, the Court of Appeals for the District of Colum-
bia has noted that admitting a defendant's prior convictions may "di-
vert[ ] the attention of the jury from the question of the defendant's
responsibility for the crime charged to the improper issue of his bad
character." United States v. James, 555 F.2d 992, 1000 (D.C. Cir.
1977) (citation omitted).
In this case, we conclude that there is a reasonable probability that
the jury's attention was diverted from the crimes charged to the issue
of Russell's bad character. During its deliberations, the jury sent two
questions to the court directly related to Russell's credibility as a wit-
ness. First, the jury asked, "How accessible is white paper in the pop-
ulation at Lorton?" J.A. 173. Second, the jury inquired, "Could the
12
defendant have called a witness from Lorton (an inmate or an
employee) to testify on his behalf?" Id. These questions are strikingly
indicative of the jury's concern with the veracity of Russell's explana-
tion for the presence of his fingerprints on the contraband. Indeed,
they suggest that the jury was inquiring whether evidence existed to
corroborate Russell's explanation. Absent such corroborating evi-
dence, the only remaining issue was whether the jury accepted Rus-
sell's testimony. Therefore, Russell's credibility and the jury's belief
-- or disbelief -- in the truthfulness of his explanation determined the
jury's verdict. Unfortunately for Russell, however, his credibility was
all but destroyed by the inaccurate presentation-- by his own counsel
-- of his vacated felony convictions.
c.
But for counsel's failure to verify Russell's District of Columbia
convictions, a reasonable probability exists that the result of Russell's
trial would have been different. Strickland, 466 U.S. at 694. We find
counsel's error to be sufficiently serious as to have deprived Russell
"of a fair trial, a trial whose result is reliable." Id. at 687. Accordingly,
the district court abused its discretion in denying Russell a new trial
based on the ineffective assistance of his counsel.
Under our system of justice, all criminal defendants-- even those
clearly guilty or otherwise reprehensible -- are entitled to a fair trial
and, under the Sixth Amendment, each is entitled to the effective
assistance of counsel. Here, the failure of Russell's counsel to investi-
gate whether the District of Columbia convictions had been vacated
-- and the improper use of these convictions to impeach Russell's
credibility -- convinces us that Russell was denied his Sixth Amend-
ment right to counsel. This failure sufficiently undermines our confi-
dence in the outcome of these proceedings to warrant an award of a
new trial. See Strickland, 466 U.S. at 694. 7
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7 Because we find Russell's counsel ineffective for failing to verify the
District of Columbia convictions, we need not address his other argu-
ment that counsel was also ineffective by failing to call corroborative
witnesses.
13
V.
For the foregoing reasons, Russell's convictions are vacated, and
his case is remanded to the district court for a new trial.
VACATED AND REMANDED
WILLIAMS, Circuit Judge, concurring in part and dissenting in part:
While I agree with the majority that sufficient evidence supports
the jury's verdict and that the district court properly denied Russell's
motion for a new trial based upon newly discovered evidence, I can-
not agree with the majority's conclusion that the district court abused
its discretion in denying Russell's motion for a new trial based upon
ineffective assistance of counsel. Even assuming that his defense
counsel's performance was deficient, Russell was not prejudiced by
the introduction of the two vacated felony convictions. Any danger
that the jury convicted him solely because those convictions
destroyed his credibility and improperly focused its attention on his
"bad character" was significantly diminished by the quality of the evi-
dence against him and the fact that the jury never knew the nature of
the vacated convictions. Most importantly, although two of Russell's
prior felony convictions had been vacated, his Maryland conviction
for conspiracy to commit arson had not, and, therefore, still could
have been used to impeach his credibility. The fact that the jury was
told that Russell had three felony convictions instead of one should
not undermine this Court's confidence in the outcome of the trial.
Because I also believe that Russell was not prejudiced by his coun-
sel's failure to call witnesses who, according to him, would have testi-
fied that he made picture frames out of white paper, I would affirm
the district court's decision not to grant Russell's motion for a new
trial based upon ineffective assistance of counsel.
I.
As the majority correctly states, we review a district court's deci-
sion to deny a motion for new trial based upon ineffective assistance
of counsel for abuse of discretion. See United States v. Adam, 70 F.3d
776, 779 (4th Cir. 1995). In order to succeed on a claim of ineffective
14
assistance of counsel, a defendant must show (1) that his counsel's
actions, in light of all the surrounding circumstances, were profes-
sionally unreasonable, i.e., "outside the wide range of professionally
competent assistance," Strickland v. Washington, 466 U.S. 668, 690
(1984); and that (2) "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different," id. at 694. "A reasonable probability is a proba-
bility sufficient to undermine confidence in the outcome." Id.
A.
The majority holds that the district court abused its discretion in
denying Russell's motion for a new trial because Russell's counsel
rendered ineffective assistance that prejudiced Russell at trial.
According to the majority, Russell was prejudiced because once the
jury heard that Russell had three prior felony convictions, two of
which had been vacated, his credibility was shattered: The jury would
not believe his story that he made picture frames out of the same kind
of white paper used to wrap the heroin and that the paper he discarded
while making the frames was accessible to other inmates. See ante at
12. The majority also states that, because the Government's case
rested solely upon Russell's credibility, there is a reasonable probabil-
ity that the jury convicted him on the ground that he possessed "bad
character." Ante at 12. Thus, the majority concludes that our confi-
dence in the trial's outcome should be undermined. See ante at 13.
Even assuming that the performance of Russell's counsel was defi-
cient, I cannot agree with the majority's conclusion in regard to the
alleged prejudice suffered by Russell. The flaws in its conclusion
begin with the majority's characterization of the evidence in this case.
After holding that the evidence used to convict Russell was sufficient
under Glasser v. United States, 315 U.S. 60 (1942), the majority then
back-pedals as much as it possibly can without disturbing that holding
by characterizing the Government's case against Russell as both
"thin" and "marginal." Ante at 10. To be sure, the evidence against
Russell was circumstantial, but a simple recitation of the evidence
belies the notion that it was either "thin" or"marginal." First, ten of
Russell's fingerprints were found on seven of the heroin packets.
These packets were found in a recreation yard to which only thirty-
nine inmates, including Russell, had access. John T. Massey, a super-
15
visory fingerprint specialist with the FBI, testified at trial that, if
someone had subsequently touched the packets on which Russell's
prints were found, the prints would most likely have been of no value
for identification purposes. By Russell's own admission, he had
access to the kind of white paper that was used to fashion the heroin
packets. Finally, in regard to Russell's claim that he used white paper
to fashion picture frames for fellow prisoners and prison employees,
Major Kenneth Washington testified that, in his twenty-one years of
working in the Department of Corrections, while he had seen picture
frames made of cigarette packages, he had never seen picture frames
made of white paper.
Only by downplaying the evidence against Russell that existed
independently of his credibility can the majority conclude that there
is a reasonable probability that the jury found him guilty solely
because the two vacated convictions destroyed his credibility and
improperly focused the jury's attention on his "bad character." In light
of the evidence -- certainly not insignificant even when viewed out-
side the framework of Glasser -- arrayed against Russell, this conclu-
sion is untenable. Even more damaging to this conclusion is the fact
that, at trial, the district court did not allow the prosecution to state
the nature of Russell's prior felony convictions. The prosecution
could state only the number of the prior felony convictions. Thus,
even though the jury heard that Russell had been convicted of three
felonies, it never learned that the two vacated convictions were for the
offenses of arson and assault with intent to kill. This fact significantly
diminishes both the vacated convictions' impact on Russell's credibil-
ity and the "probability that the jury's attention was diverted from the
crimes charged to the issue of Russell's bad character."* Ante at 12.
_________________________________________________________________
*The majority cites to Foster v. Barbour, 613 F.2d 59 (4th Cir. 1980),
for the proposition that the assertion that a defendant has been convicted
of crimes for which no valid conviction exists destroys the fairness of the
trial. See ante at 12. Unlike in this case, however, the prosecution in Fos-
ter did more than note the number of Foster's prior convictions. In Fos-
ter's trial on the charge of homicide in the course of a robbery of a store,
the prosecution actually described the nature of several convictions on
charges, such as larceny and robbery, that had been dismissed. See Fos-
ter, 613 F.2d at 60. Foster, therefore, is not apposite to this case.
16
Finally, and most importantly, although two of Russell's prior fel-
ony convictions had been vacated, his Maryland conviction for con-
spiracy to commit arson had not. Thus, that conviction was still
admissible under Federal Rule of Evidence 609(a)(1) for the purpose
of impeaching Russell's credibility. The majority dismisses this fact,
stating only that it is "axiomatic" that while one prior felony convic-
tion has little evidentiary value against a prisoner witness such as
Russell, three prior felony convictions are "devastating." Ante at 12.
Assuming that this proposed "axiom," for which the majority cites no
authority, is truly self-evident, I have difficulty seeing how it operates
with any force in a situation where the jury never knew the nature of
Russell's prior felony convictions, even the one that had not been
vacated. The majority points to the questions the jury sent to the dis-
trict court judge as "strikingly indicative of the jury's concern with
the veracity of Russell's explanation for the presence of his finger-
prints on the contraband," ante at 12-13, yet it fails to explain how
this concern (1) would have been lessened had the jury been told,
properly, that Russell had only one prior felony conviction and (2)
demonstrates that the jury's attention was focused on the issue of
Russell's "bad character." Indeed, I believe that the most logical infer-
ence to be drawn from the jury's questions is that its focus was on the
evidence presented linking Russell to the heroin packets, not that its
"attention was diverted . . . to the issue of Russell's bad character."
Ante at 12. Thus, I conclude that Russell has failed to meet his burden
of showing that his counsel's failure to investigate the validity of the
vacated convictions should undermine our confidence in the outcome
of the trial.
B.
Because I conclude that Russell was not prejudiced by his coun-
sel's failure to discover that two of his prior felony convictions had
been vacated, I would address his argument that he is entitled to a
new trial because his counsel was ineffective for failing to call wit-
nesses to corroborate his explanation for the presence of his finger-
prints on the heroin packets -- that the packets were fashioned by
other inmates from paper he discarded while making picture frames.
Even if counsel's performance was deficient in this regard, Russell
cannot demonstrate prejudice. Russell, at the hearing in which the dis-
trict court considered his motion for a new trial, stated that the wit-
17
nesses he wished to call would testify that he made picture frames.
Significantly, however, none of these witnesses could have offered
corroborating testimony challenging Massey's statement that Rus-
sell's fingerprints on seven of the packets would most likely have
been obliterated had someone touched the packets after he did. Thus,
even if Russell really did fashion frames out of white paper, a jury
could still reasonably believe that he also used white paper to fashion
the heroin packets. I, therefore, conclude that Russell has failed to
meet his burden of showing that his counsel's failure to call corrobo-
rating witnesses should undermine our confidence in the outcome of
the trial.
II.
For the foregoing reasons, I respectfully dissent from the majority's
holding that the district court abused its discretion in denying Rus-
sell's motion for new trial based upon ineffective assistance of coun-
sel.
18