United States v. Fox

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 94-6710

LARRY V. FOX,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, Senior District Judge.
(CR-88-245-3)

Argued: January 31, 1996

Decided: June 28, 1996

Before HALL and MURNAGHAN, Circuit Judges, and STAMP,
Chief United States District Judge for the Northern District
of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Murnaghan
wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michelle Jeanette Anderson, Appellate Litigation Clinical
Program, GEORGETOWN UNIVERSITY LAW CENTER, Wash-
ington, D.C., for Appellant. Michael O. Callaghan, Assistant United
States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: Steven H. Goldblatt, Director, Craig W. Canetti, Student
Counsel, Jeffrey J. Lopez, Student Counsel, Appellate Litigation Clin-
ical Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Rebecca A. Betts, United States
Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Larry V. Fox ("Fox") appeals from the district court order denying
his 28 U.S.C. § 2255 motion. Fox sought relief from his sentence
based on an allegation of ineffective assistance of counsel. For the
reasons set forth below, we affirm.

On March 28, 1989, following a jury trial, Fox was found guilty
of four counts relating to the distribution of cocaine. Fox filed a
timely direct appeal. On February 15, 1990, this Court affirmed the
judgment of the district court. United States v. Fox, No. 89-5174 (4th
Cir. Feb. 13, 1990) (unpublished). On June 30, 1992, Fox filed a
motion under 28 U.S.C. § 2255 seeking to vacate his sentence. In his
§ 2255 motion, Fox contends that (1) he received ineffective assis-
tance of counsel at trial because his attorney failed to adequately pre-
pare his defense, inadequately cross-examined government witnesses
and failed to object to the admission of certain"altered" evidence, (2)
at trial, the government engaged in improper prosecutorial bolstering,
and (3) he was not given notice pursuant to 21 U.S.C. § 851(a)(1) of
the government's motion to enhance his sentence under the career
offender portion of the Sentencing Guidelines.

The district court found that Fox's contentions were without merit
and denied the requested relief. On appeal, Fox now contends that (1)
he was denied effective assistance of counsel on direct appeal because
his counsel failed to raise a meritorious claim of improper prosecu-

2
torial bolstering and (2) he was denied effective assistance of counsel
at both trial and upon appeal because his counsel failed to challenge
at either stage of the proceedings the district court's curtailment of
counsel's cross-examination of the government's key witness.

I

At Fox's trial, the government presented the testimony of a paid
informant, Tony Phillips. Phillips testified that, following the instruc-
tions of Huntington Police Officer Donald Black, he had made
arrangements to purchase cocaine from Fox. The purchase was sched-
uled for the night of June 20, 1988. Prior to the purchase, Officer
Black fitted Phillips with a transmitter and provided Phillips with
$650.00 to purchase cocaine. During the transaction, Officer Black
recorded the conversations between Phillips and Fox.

Phillips had arranged to purchase a quarter ounce of cocaine from
Fox. However, when the transaction occurred, Fox was only able to
obtain 3/16ths of an ounce of cocaine. Arrangements were made for
an associate of Fox to deliver the additional 1/16th of an ounce of
cocaine to Phillips at a later time. This transaction occurred approxi-
mately one hour later. Fox was not present at this time.

A second controlled buy occurred on July 15, 1988. At that time,
Phillips had arranged to purchase one ounce of cocaine from Fox.
Again, Phillips was fitted with a transmitter and Officer Black pro-
vided him with money to purchase the cocaine. Again, Fox did not
have the amount of cocaine agreed upon when he met with Phillips.
At that time, Phillips obtained one-half of an ounce of cocaine which
was contained in eight small bags. This transaction was also recorded
and monitored by Officer Black.

At trial, Phillips testified as to the transactions with Fox. Phillips
further admitted to being a drug addict and user at the time the trans-
actions occurred. Phillips also described what physical actions were
occurring at the time of his transactions with Fox while the jury lis-
tened to audiotape recordings of the transactions. On cross-
examination, defense counsel challenged Phillips' credibility by ques-
tioning whether Phillips was affected by his drug use.

3
Officer Black testified at the trial about how the police targets indi-
viduals for investigation and how paid informants are used to pur-
chase cocaine. On cross-examination, defense counsel questioned
Black as to Phillips' reliability and credibility. Officer Black stated
that he believed Phillips could be trusted to follow instructions and
to accurately report about what occurred during a controlled buy. On
re-direct, over objection, Black further testified that he believed Phil-
lips was credible because Phillips had provided information which
had resulted in other individuals being indicted and convicted.

Fox's trial counsel raised three issues on his direct appeal. First,
Fox contended that the trial court erred when it admitted FBI agents
testimony that it was Fox's voice on the audiotape of the controlled
buys. Second, Fox contended that the government failed to establish
the chain of custody of the cocaine which was admitted as an exhibit
at trial. Finally, Fox contended that he was improperly convicted of
multiple crimes arising out of a single drug transaction. This Court
found no merit to any of Fox's claims and his conviction was
affirmed. On June 30, 1992, Fox filed his motion for relief pursuant
to 28 U.S.C. § 2255.

II

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court articulated a two-prong test that a petitioner must satisfy to suc-
cessfully assert an ineffective assistance of counsel claim: a petitioner
must show (1) "that counsel's representation fell below an objective
standard of reasonableness" and (2) "that there is a reasonable proba-
bility that, but for counsel's unprofessional errors, the result of the
proceedings would have been different." Id. at 694. The reviewing
court "must judge the reasonableness of counsel's challenged conduct
on the facts of the particular case, viewed as of the time of counsel's
conduct." Id. at 690. Further, there is"a strong presumption that coun-
sel's conduct falls within the wide range of reasonable professional
assistance . . . ." Id. at 689.

A criminal defendant's right to effective assistance of counsel con-
tinues through a direct appeal. See Evitts v. Lucey, 469 U.S. 387
(1985). As noted Mayo v. Henderson, 13 F.3d 528 (2d Cir. 1994),
ineffective assistance of appellate counsel may be shown if a peti-

4
tioner can "establish . . . that counsel omitted significant and obvious
issues while pursing issues that were clearly and significantly weaker
. . . . Generally, only when ignored issues are clearly stronger than
those presented, will the presumption of effective assistance of coun-
sel be overcome." Id. at 533 (citations omitted). However, a criminal
petitioner has not necessarily received ineffective assistance when his
counsel fails to present every non-frivolous issue on appeal. An attor-
ney may decline to appeal a non-frivolous issue if appealing a weak
issue would have the effect of diluting stronger arguments on appeal.
Jones v. Barnes, 463 U.S. 745, 752 (1983).

As noted above, Fox contends he received ineffective assistance of
appellate counsel because his appellate counsel failed to raise a claim
of prosecutorial bolstering on direct appeal. On April 10, 1990, less
than one month after affirming Fox's conviction on direct appeal, this
Court addressed prosecutorial bolstering in United States v. Taylor,
900 F.2d 779 (4th Cir. 1990). Taylor is especially relevant to this
appeal because it also involved controlled drug purchases made by
Tony Phillips and orchestrated by Officer Black.

During the trial in Taylor, evidence was presented that Phillips,
again acting as a paid informant, arranged to purchase a controlled
substance from Taylor. That transaction was to be recorded through
a transmitter placed on Phillips. While the controlled buy took almost
thirty minutes, the government was only able to produce eight min-
utes of audiotape, most of which was inaudible. In addition to Phil-
lips, Officer Black testified about the controlled buy. Following
Black's cross-examination, Black testified on redirect that Phillips
had given reliable information in other cases which resulted in several
guilty pleas. Additionally, Black testified that Taylor had been tar-
geted as a result of several anonymous complaints. Finally, in closing
argument, the prosecuting attorney emphasized Black's testimony as
to Phillips' reliability.

Citing Fed. R. Evid. 608(b) which states that "[s]pecific instances
of the conduct of a witness, for the purpose of . . . supporting the wit-
ness' credibility . . . may not be proved by extrinsic evidence[,]" this
Court held that the trial court erred by admitting Black's testimony
that Phillips had provided reliable information resulting in other con-
victions and by admitting testimony as to why Taylor was targeted for

5
the investigation. This Court further found that the error was prejudi-
cial in light of the limited probative value of the audiotape of the
transaction. This Court noted that whether the jury found Taylor
guilty or innocent depended almost exclusively on whether it believed
Phillips. As such, bolstering of that witness by Black and by the pros-
ecutor during closing argument had more than a slight effect on the
outcome of the trial.

III

Before addressing Strickland's two-prong test, this Court must first
address whether the prosecution may have improperly bolstered the
testimony of Tony Phillips. As in Taylor, the government bolstered
Phillips' credibility through the testimony of Officer Black who stated
that Phillips' testimony had led to other indictments and convictions.
This Court finds that such testimony may have amounted to improper
bolstering. At Fox's trial, the government elicited testimony from
Officer Black to support the testimony of Phillips. Black's testimony
that Phillips provided information leading to other convictions and
indictments is the type of evidence prohibited by Fed. R. Evid.
608(b).

Having established that the trial court may have erred in admitting
the testimony of Officer Black which bolstered Phillips' testimony,
this Court must now address whether the failure of Fox's counsel to
appeal that issue on the direct appeal amounts to ineffective assistance
of counsel. Generally, failure to anticipate a new rule of law is not
ineffective assistance of counsel. Honeycutt v. Mahoney, 698 F.2d
213, 217 (4th Cir. 1983) (holding that counsel's failure to anticipate
the Supreme Court would find a state law in violation of the Four-
teenth Amendment does not amount to ineffective assistance of coun-
sel). However, this Court finds that this matter cannot be resolved
under Honeycutt as this Court finds that Taylor did not establish new
law for this circuit but rather merely applied Fed. R. Evid. 608(b) to
the facts in that case. As such, this Court cannot say that Fox's coun-
sel acted as a reasonable attorney simply because Taylor had not yet
been decided. This Court must still address Fox's appellate counsel's
actions under the Strickland test.

Initially, this Court notes that Fox's case is distinguishable from
Taylor. First, the manner in which Officer Black's testimony concern-

6
ing the other arrests and indictments was introduced in this case is dif-
ferent than in Taylor. In Taylor, the bolstering testimony was
introduced after the prosecuting attorney questioned Officer Black
about why Taylor had been targeted for investigation. In this action,
the testimony was introduced on redirect and only after Fox's own
attorney questioned Black regarding Phillips' reliability.

This Court believes that based upon the facts of Fox's trial, Fox's
attorney had the option of appealing several issues, including prosecu-
torial bolstering. Although Taylor cannot be seen as creating new law,
it can, in hindsight, be viewed as a suggestion that prosecutorial bol-
stering was a viable issue for appeal for Fox. However, at the time of
Fox's direct appeal, this Court had not decided Taylor. As such, Fox's
counsel could have seen the prosecutorial bolstering argument as a
potentially weak argument in light of the government's likely conten-
tion that it was merely rehabilitating its witness.

Also, as previously stated, failure of appellate counsel to address
all non-frivolous issues which may be raised on appeal does not
amount to ineffective assistance. See Jones, supra. While "the mind
of an appellate judge is habitually receptive to the suggestion that a
lower court committed an error[,] receptiveness declines as the num-
ber of assigned errors increases. Multiplicity hints at lack of confi-
dence in any one . . . ." Id., 463 U.S. at 752 (quoting Jackson
Advocacy Before the Supreme Court, 25 Temple Law Quarterly 115,
119 (1951)). Appellate counsel had several issues to which objection
was raised at trial including the issue of bolstering. As stated in Mayo,
ineffective assistance of appellate counsel may be shown only if the
petitioner establishes that counsel omitted obvious and significant
issues while pursuing clearly weaker issues. However, as Taylor had
not yet been decided, and in light of the factual differences between
Taylor and Fox's trial, a reasonable attorney could determine that the
bolstering issue was not significantly stronger than the issues actually
appealed. Accordingly, although certain factors point toward the con-
clusion that prosecutorial bolstering was a viable issue for appeal, we
cannot conclude that counsel's conduct did not fall within the wide
range of reasonable professional assistance. Thus, Fox has failed to
establish the first prong of the Strickland test.

Second, assuming that Fox could have shown that his counsel's
conduct fell below that of a reasonable attorney, this Court finds that

7
Fox has not shown that but for appellate counsel's errors the result of
the appeal would have resulted in a different outcome. As noted
above, the government's case in this action does not share the same
infirmities raised by the defendant in the Taylor case. Unlike Taylor,
the audiotape of Fox's transaction is complete. As such, the jury did
not need to rely solely on the testimony of Tony Phillips to find Fox
guilty. Further, in this action the government merely presented testi-
mony as to how the police targeted suspects, but did not bolster Phil-
lips' testimony by saying it had specifically targeted Fox. Finally, the
government did not emphasize Officer Blacks testimony about Phil-
lips' reliability in its closing argument. This Court finds that the dis-
similarities between this case and Taylor are sufficient for us to
conclude that even if Fox's counsel had appealed the bolstering issue,
there is no guarantee that this Court would have decided this case the
same as we decided Taylor. As such, Fox has not shown that there is
a reasonable probability that, but for the failure to appeal the bolster-
ing issue, the result of the direct appeal would have been different.
Finally, this Court finds that the district court should be affirmed on
all other issues.

Accordingly, this Court finds that the order of the district court
denying the petition should be and it hereby is

AFFIRMED.

MURNAGHAN, Circuit Judge, dissenting:

Applying the governing test articulated in Strickland v.
Washington, 466 U.S. 668, 694 (1984), I find Fox's counsel ineffec-
tive for failing to present the improper bolstering argument on appeal.
While I agree with the majority's determination that United States v.
Taylor, 900 F.2d 779 (4th Cir. 1990), did not create a new rule of law,
I do not agree that because the opinion was rendered after Fox's direct
appeal, Fox's attorney could reasonably have judged the prosecutorial
bolstering claim weak.

The law underlying Taylor was clearly established before the filing
of Fox's appellate briefs in October and December 1989. On appeal,
therefore, a competent attorney would have challenged the trial
judge's decision to overrule defense objections and admit the bolster-

8
ing testimony unless he had a strategic reason for not doing so. Fur-
thermore, Fox has shown that, in light of United States Supreme
Court and Fourth Circuit precedent, a reasonable attorney would have
recognized the vulnerability of each of the three challenges that were
presented on appeal. Therefore, Fox has sufficiently demonstrated
that "counsel omitted [a] significant and obvious issue[ ] while pursu-
ing issues that were clearly and significantly weaker." Mayo v.
Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 115 S. Ct. 81
(1994).

Moreover, Fox has established with reasonable probability that the
outcome of his appeal would have been different had his attorney pur-
sued the bolstering claim. Strickland, 466 U.S. at 694; Mayo, 13 F.3d
at 534. In asserting that there is "no guarantee" that the challenge
would have been successful on direct appeal, the majority applies an
improper standard. Strickland requires the petitioner to show only
"that there is a reasonable probability that, but for counsels unprofes-
sional errors, the result of the proceedings would have been differ-
ent." 466 U.S. at 694.

As noted in Mayo, "[t]he outcome determination . . . may be made
with the benefit of hindsight." 13 F.3d at 534. Here, hindsight demon-
strates that, in our circuit, such improper bolstering is not harmless.
In Taylor, we ordered a new trial after finding that the prosecution
had improperly used techniques similar to those employed at Fox's
trial in order to bolster the credibility of the same government infor-
mant. 900 F.2d at 783. While there are some differences between the
circumstances in the present matter and in Taylor, those deviations
are not significant enough to compel a different outcome.* In both
cases, Phillips, the confidential informant, was the government's criti-
cal witness. His experience allowed him to offer the only direct evi-
dence of drug dealing by the defendant. While in Fox's case, a police
detective could place Fox at the location of the drug sales and an FBI
_________________________________________________________________
*Prosecutorial misconduct, which includes improper bolstering, is
often viewed as harmless when the judge has given a curative or limiting
instruction and the case is not a close one. See United States v. Kerr, 981
F.2d 1050, 1053-54 (9th Cir. 1992); United States v. Moore, 710 F.2d
157, 160 (4th Cir.), cert. denied, 464 U.S. 862 (1983). Here, neither cir-
cumstance is present.

9
agent could say that the voice on the tape sounded like Fox. Phillips's
testimony was the only first-hand proof of Fox's guilt. Furthermore,
although the prosecution offered audiotapes to corroborate Phillips's
testimony, they would have been close to meaningless without the
informant's accompanying explanation of the transactions.

Therefore, as with Taylor, whether the jury found Fox guilty or
innocent depended chiefly on whether it believed Phillips. The evi-
dence of other indictments and convictions obtained with Phillips's
prior cooperation may indeed have helped establish his credibility in
the minds of the jury. Without such evidence, the jury may well have
discounted Phillips's testimony as the unreliable words of a drug
addict and acquitted Fox. These considerations may bring reasonable
doubt into play. Because the improper evidence may have thus
affected the verdict, counsel had a reasonable likelihood of success on
direct appeal. Mindful that "[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome," Strickland, 466
U.S. at 694, I therefore find a reasonable probability that the outcome
of the direct appeals would have been different if the improper bol-
stering claim had been pursued.

In sum, I find counsel's failure to challenge the prosecutorial bol-
stering both incompetent and prejudicial. Accordingly, I would grant
Fox the relief he seeks. In all other respects, I find the majority's
opinion acceptable and, hence, concur on the remaining issues.

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