United States v. Horne

LatimeR, Judge

(dissenting) :

I dissent.

This is simply a case of this Court, without the benefit of personal contact with the characters in the courtroom drama, substituting its judgment of trial tactics for those of defense counsel. To do that is to grant the accused a trial on the merits at this level, which relief is not in accord with recognized appellate practice and which, in the end, will result in giving to every accused the privilege of opening a Pandora’s box of accusations against his counsel. In the case at bar, a cursory reading of the entire file fairly establishes that the accused had his day in court with unsuccessful results and that on appeal his only hope is to challenge the judgment of his defense counsel. I am not disposed to encourage that strategy.

The issue is presented to us by post-trial affidavits and counteraffidavits, but the crux of accused’s contention is that he was denied due process of law because his defense counsel failed to raise an issue of illegal entrapment. It may well be that if through negligence, gross indifference to the rights of the accused or dereliction of duty on the part of this defense counsel, the trial was nothing but a hollow gesture, the accused should be afforded relief by us, but no such situation is presented by this record. Defense counsel had some choice in his method of defense and he did not misrepresent his client merely because he neither won a victory nor selected what later may appear to have been a better choice. In that connection it must be remembered that he had a dual responsibility. He must avoid assisting the Government in proving guilt and he must not produce evidence which would increase the punishment if a conviction were returned. And being faced with the testimony of the witnesses who had given pretrial statements, including a confession by the accused, he had good reasons for adopting the tactics he employed.

It is an easy task to second guess a lawyer who loses, but some consideration must be given by appellate courts to the probability that he is in possession of information which never appears in the record. Furthermore, he must assess the credibility of the witnesses, including his client, and the record is usually stone cold on their trustworthiness. While obviously I do not purport to know all the facts in possession of defense counsel, I do find in the file some available evidence to support his method of defense. First, in order for the accused to make use of the defense of entrapment, he had to get into the record some evidence to support his claim. I find very little of a credible variety. Second, he must admit possession of the contraband. That admission alone might have sealed his doom. Third, he had to meet the proof that prior to the instant offense he was suspected of committing crimes involving habit-forming drugs. That would be most difficult in view of the fact that he had executed a pretrial statement in which he admitted prior use and possession of narcotics. Fourth, he had admitted his complicity in the present offense and he was faced with denying his own statement. Fifth, his pretrial statement disclosed that the pusher knew and would deal only with him. If he was an innocent victim of entrapment, he had to neutralize the inference arising from his easy access to the source of supply. Sixth, he was confronted with the necessity of rejecting his own statement that he retained for his own purposes five of the marijuana cigarettes purchased.

I have mentioned the foregoing evi-dentiary items only for the purpose of showing that establishing illegal entrapment was a difficult task. Counsel was not representing an innocent accused who was ensnared into committing a crime by the machinations of Government agents. His client was *607quite familial' with the trade and knew the ways and means of making clandestine purchases. True, the agents made his path easier but when the record as augmented by accused’s pretrial statement is considered, he was just awaiting a chance to meet up with “Shakey,” the peddler from whom he had purchased other marijuana cigarettes when the informers consulted with him. Merely easing the way for one intent on sinning does not amount to illegal entrapment and that is about all we have here. I, therefore, question the assertion that by concluding not to develop the issue defense counsel violated his duty and rendered the trial a farce and mockery of justice. Particularly is that true when, as here, counsel had five years of his client’s life depending on his choice and much unfavorable evidence would reach the court if he chose that line of defense.

Going one step further and assuming arguendo that an issue of entrapment might have been raised, failure to adopt that course does not of itself justify the charge of inadequate or ineffective representation. We have criticized defense counsel for lack of attention to the sentencing facet of a trial, and this counsel had a duty not to raise questionable defenses which might tend to increase the punishment. In his affidavit, he avers that a defense of entrapment would have been frivolous, and he was seeking to minimize the punishment by keeping damaging evidence which was in accused’s pretrial statement from the court. He succeeded in doing the latter, and so now he finds himself in the uncomfortable position of being subject to censure for improper representation. There are just too- many imponderables which may have influenced his decision for me to join in the condemnation. But, in addition, defense lawyers are fallible, and an accused is not guaranteed a trial free from mistakes. At best, the law only guarantees him the considered judgment of a qualified lawyer, and in this instance he was furnished with all the law requires.

I would affirm the decision of the board of review.