United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2006 Decided March 30, 2007
No. 02-3104
UNITED STATES OF AMERICA,
APPELLEE
v.
BENJAMIN GWYN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00073-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Suzanne C. Nyland, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese, III, Thomas J. Tourish, Jr., James Sweeney, and
Sarah T. Chasson, Assistant U.S. Attorneys.
Before: SENTELLE and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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TATEL, Circuit Judge: Arguing that his trial lawyer
provided constitutionally ineffective assistance, appellant
appealed his conviction for illegal firearm possession by a
convicted felon. After we remanded the record, the district court
determined that although counsel’s performance was “less than
stellar,” it was not constitutionally deficient. Here, appellant
challenges that conclusion, asserting that trial counsel failed to
(1) make the best available argument at the suppression hearing,
(2) argue that the police planted the firearm or that the gun
introduced at trial was not the gun allegedly seized from him,
and (3) conduct a reasonable investigation. He also argues that
counsel presented a legally untenable defense. Because we
agree with the district court that trial counsel’s performance was
not constitutionally ineffective, we affirm the conviction.
I.
Metropolitan Police Department (MPD) Officers Timothy
Lewis and Leslie Parsons, Jr., observing an inoperable headlight
on appellant Benjamin Gwyn’s vehicle, stopped the car early in
the morning of February 4, 2001. Officer Lewis approached the
car and motioned Gwyn to lower his window. Gwyn instead
opened the door, explaining that the window was broken. Lewis
asked for Gwyn’s driver’s license and, as Gwyn produced it,
noticed he appeared nervous, his hands “constantly reaching up
towards the steering wheel.” Tr. of Nov. 5, 2001 Hr’g at 17.
Officer Lewis asked Gwyn to step out of the car and observed
that Gwyn was tall, well over six feet. The officer also saw a
black leather jacket and black scarf in the vehicle and
remembered that at evening roll call, a detective had instructed
the officers to be on the lookout for an armed robber over six
feet tall with a black leather jacket and a ski mask or black scarf.
Suspicious, Lewis patted Gwyn down, feeling what he thought
was a firearm in his pants pocket. Asked by Lewis what was in
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the pocket, Gwyn said it was a pistol he had taken from his
aunt’s home. The officers then placed Gwyn under arrest.
At Gwyn’s detention hearing, Officer Parsons testified that
the gun they recovered was a “Grendell [sic] P-10, 38 caliber.”
Tr. of Feb. 16, 2001 Hr’g at 8. Parsons also testified that when
MPD firearms specialists tested the gun, they found that it “did
not fire, due to a light strike of the hammer,” meaning, Parsons
explained, that the gun’s firing mechanism was unable to cause
the necessary “chemical reaction to make the projectile go from
the round.” Id.
Because Gwyn had been convicted of a crime punishable by
more than a year’s imprisonment, a grand jury indicted him on
a single count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). In particular, the indictment
alleged that Gwyn had possessed a “Grendel .380 caliber semi-
automatic pistol”—not a 38 caliber.
Gwyn was initially represented by a federal defender who
moved to suppress the gun on the grounds that the search
violated the Fourth Amendment. Alleging that the police had
failed to Mirandize Gwyn, the defender also asked the court to
suppress the statements he made to the officers. At the hearing,
however, Gwyn was represented by new counsel—the subject
of these proceedings. The new lawyer argued that the officers
had no legitimate reason to order Gwyn from his vehicle or to
frisk him. But believing that Gwyn had not been in custody
when he spoke to the officers, counsel abandoned the Miranda
argument made by the federal defender. Tr. of Nov. 5, 2001
Hr’g at 59 (“I have conceded and will continue to concede that
he was at that moment in time not in custody.”). After prodding
from the court, however, counsel recanted his concession and
sought suppression of Gwyn’s statement that he had taken the
gun from his aunt’s home. Although the district court rejected
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Gwyn’s Fourth Amendment argument, it accepted the Miranda
point and suppressed Gwyn’s second statement.
After the suppression hearing but before trial, bad feelings
between Gwyn and his lawyer bubbled to the surface. Gwyn
asked the court to appoint new counsel, asserting that his lawyer
had failed to investigate the case. In particular, concerned that
the officers were biased against him, Gwyn cited the lawyer’s
failure to investigate whether the police officers had done a
background check on him weeks before the arrest. In response,
the lawyer offered his view that “prior involvement between Mr.
Gwyn and officers . . . is not relevant to the factual issues of this
case.” Tr. of Nov. 5, 2001 Hr’g at 72. Concluding that the
lawyer had acted reasonably, the district court declined to
appoint new counsel.
At trial, Officer Lewis testified that the weapon seized from
Gwyn was a Grendel .380 semi-automatic and identified the
firearm in the courtroom as Gwyn’s. Officer Parsons testified,
as he had at the suppression hearing, that the gun was inoperable
“due to a light strike of the hammer.” Nov. 6, 2001 Trial Tr. at
174. Defense counsel never asked Parsons about the
discrepancy between his statement at the detention hearing that
the gun was a “38” caliber and Lewis’s trial testimony,
corroborated by the police reports, that it was in fact a “.380”
caliber. The government called a Bureau of Alcohol, Tobacco
and Firearms special agent, who testified that despite its
inoperability, the weapon qualified as a “firearm” as defined in
the United States Code, a legal conclusion to which trial counsel
objected. The special agent also testified that the gun bore a
serial number, as well as the scratched-in initials of an arresting
officer (Parsons) and a firearms specialist.
After the government rested, defense counsel again
informed the court that he and Gwyn disagreed about how to
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proceed, this time over whether to recall the MPD officers to
inquire further into the circumstances of the initial stop. Gwyn
offered a lengthy and difficult-to-follow theory of how, given
the layout of the streets in the area, the officers must have lied
about the stop. The court rejected Gwyn’s complaints,
explaining that strategic decisions such as whether to call a
witness belong to the attorney. Counsel moved for a judgment
of acquittal, though he made no significant argument for it. He
put on no evidence and, following a perfunctory closing
argument in which he urged acquittal on grounds that the gun
was inoperable, the jury convicted Gwyn.
Gwyn then filed several pro se motions alleging, among
other things, that trial counsel had provided constitutionally
ineffective assistance. Subsequently withdrawing these motions,
Gwyn presented his ineffective assistance argument to this
court. Pursuant to this circuit’s practice, see United States v.
Fennell, 53 F.3d 1296, 1304 (D.C. Cir. 1995) (“When an
appellant has not raised a claim of ineffective assistance of
counsel before the district court, . . . our general practice is to
remand the claim for an evidentiary hearing.”), we remanded the
record to the district court to consider the ineffective assistance
issue in the first instance. United States v. Gwyn, No. 02-3104,
2004 WL 885274 (D.C. Cir. April 26, 2004).
On remand, the district court conducted an evidentiary
hearing, taking testimony from both Gwyn and trial counsel.
Once again represented by a federal defender, Gwyn testified
that, prior to trial, he not only informed trial counsel that he had
no gun when he was arrested, but also asked his lawyer to
investigate whether the police planted the weapon. He further
testified that the gun introduced into evidence was not the gun
allegedly taken from him at the scene, citing the fact that the gun
presented at trial bore a serial number while the one allegedly
seized did not. Relying on his notes, trial counsel testified that
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he was unaware of Gwyn’s claim that he possessed no weapon
at the time of his arrest or of Gwyn’s belief that the police had
planted the gun. Trial counsel also testified—inaccurately—that
he had raised the serial number discrepancy at trial. Following
this testimony, the federal defender argued that trial counsel
should have stressed inconsistencies between Gwyn’s
appearance and the police reports’ descriptions of the robbery
suspects. The federal defender also argued that trial counsel had
presented a legally untenable defense.
The district court declined to credit Gwyn’s testimony,
accepting instead trial counsel’s version of his discussions with
his client. The court gave three reasons for its credibility
determination: Gwyn’s self-interest in the issue, the lack of any
hint in Gwyn’s copious notes to his lawyer that the police had
planted the gun, and the court’s own recollection that none of
Gwyn’s complaints about counsel related to a “plant” theory.
The court also noted that Gwyn had raised several other alleged
lapses in trial counsel’s performance and ruled that none could
have affected the outcome. Gwyn appeals.
II.
Ineffective assistance of counsel claims are governed by the
familiar test set forth in Strickland v. Washington, 466 U.S. 668
(1984). As we have restated the Strickland test, to succeed, a
defendant “must prove (1) [his attorney] made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment, and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” United
States v. Moore, 394 F.3d 925, 931 (D.C. Cir. 2005) (internal
quotation marks omitted). The Strickland test’s first element
requires a defendant to “show that counsel’s performance was
deficient, falling below an objective standard of reasonableness
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defined by prevailing professional norms.” United States v.
Askew, 88 F.3d 1065, 1070 (D.C. Cir. 1996) (internal quotation
marks omitted). As to the second element, “a reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Moore, 394 F.3d at 931 (internal quotation
marks omitted).
Although other circuits review ineffectiveness of counsel
rulings de novo, as we explained in United States v. Toms, 396
F.3d 427 (D.C. Cir. 2005), this circuit has yet to decide between
de novo and abuse of discretion review. In Toms, we declined
to fix the standard in part because it was “unnecessary for us to
do so,” given that the defendant’s challenge “fail[ed] even under
the more searching de novo standard.” Id. at 433; see also
Askew, 88 F.3d at 1071. So too here. Because Gwyn’s
ineffective assistance claim fails regardless of the standard of
review, we again leave the unsettled question for another day.
We review the district court’s factual conclusions only for clear
error. Askew, 88 F.3d at 1070.
Gwyn first argues that counsel performed ineffectively
because he failed to challenge the frisk that led Officer Lewis to
find the gun. Lewis testified that at roll call, he heard a
detective describe an armed robbery suspect as a “black male
over six foot [sic] tall with a black leather jacket and either a ski
mask or a black scarf over his face.” Tr. of Nov. 5, 2001 Hr’g
at 15. Yet police reports provided to counsel, though describing
the robbers as black males, said they were 6’, 5’8”, and 5’10”,
and made no mention of a leather jacket. Because “there was no
match except in terms of Gwyn’s race and gender and, perhaps,
his possession of a black knit scarf,” Gwyn argues, there was
“no reasonable suspicion to believe that Gwyn might be one of
the armed-and-dangerous robbers that the police were looking
for.” Appellant’s Br. 28. The government responds that
because the officers relied on the description provided by the
8
detective, not the police reports, “appellant cannot show that
[counsel] was deficient in not cross-examining Lewis about the
reports or that he suffered any prejudice for want of such cross-
examination.” Appellee’s Br. 30.
The government’s argument is persuasive. Because no
record evidence indicates that the arresting officers ever saw the
police reports, cross-examination of the officers based on those
reports would have been useless as impeachment and highly
unlikely to bear on the district court’s suppression decision.
Moreover, the officers, relying on the detective’s description,
had reasonable suspicion to frisk Gwyn. While a diligent
defense attorney might nonetheless have pointed out the
discrepancy between the police reports and the detective’s
description, Gwyn has given us no basis for believing that trial
counsel’s performance “[fell] below an objective standard of
reasonableness defined by prevailing professional norms.”
Askew, 88 F.3d at 1070.
Gwyn next argues that trial counsel omitted two meritorious
arguments relating to the gun itself: “[t]hat a gun was planted on
Mr. Gwyn, and that the gun produced at trial was not the gun the
officers alleged they took from Gwyn.” Appellant’s Br. 28-29.
The first argument is a non-starter. As noted above, the district
court, after hearing testimony from both Gwyn and trial counsel,
concluded that Gwyn never informed the lawyer of this theory
either before or during trial. Gwyn offers us no reason to
believe that this finding was erroneous, much less clearly so.
Gwyn’s “different gun” theory—that the gun presented to
the jury was not the gun allegedly seized from him—fares no
better. Seeing “significant and glaring inconsistencies between
the first descriptions of the gun and the gun produced at trial,”
Appellant’s Br. 29, Gwyn argues that had trial counsel brought
these inconsistencies to the jury’s attention, “there is a
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reasonable probability that [the jury] would have had a
reasonable doubt about whether Mr. Gwyn truly had a gun that
night and whether the gun produced in court was the same gun
they claimed to have seized from Mr. Gwyn.” Appellant’s Br.
31. In support of this claim, Gwyn cites two inconsistencies,
neither exploited by his counsel. First, Officer Parsons testified
at the suppression hearing that the gun was a “38” caliber, yet
police reports and other testimony indicated it was a “.380”
caliber. Second, initial police reports recorded no serial number
on the gun, yet later reports did. Because, as we explain below,
Gwyn suffered no prejudice from trial counsel’s failure to
exploit these inconsistencies, we need not decide whether
counsel’s performance in this respect was objectively
unreasonable. See Strickland, 466 U.S. at 697 (“[A] court need
not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.”).
As to the first point, Gwyn has introduced no evidence
demonstrating any difference between a “38” caliber gun and
a “.380” caliber gun, and we doubt that one exists. There is thus
no “reasonable probability” that, had trial counsel pointed out
the discrepancy between the two descriptions, “the result of the
proceeding would have been different.” Moore, 394 F.3d at
931.
The serial number discrepancy requires a little more
discussion. As Gwyn correctly points out, initial police
documents recorded no serial number on the gun recovered at
the scene. The Crime Scene Search Unit report noted that the
weapon had “no visible serial #.” The MPD’s “Incident-Based
Event Report” stated affirmatively that “[t]here was no serial
number on the weapon,” and the MPD property record failed to
note a serial number, even though the form had a place for one.
Yet a document prepared by the MPD Firearms Identification
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Section describing the weapon as inoperable noted the gun bore
serial number 16690.
Confronted with this evidence, the district court concluded
that “the fact that there is a lack of a serial number in the
paperwork at one time, that appears another time, [is an]
inconsistenc[y] in the context of this kind of case that I don’t
believe would have made any difference at all.” Tr. of June 9,
2005 Hr’g at 98. We agree, but for a slightly different reason.
Because the gun was admitted into evidence, we examined it
ourselves and observed that the serial number is not only tiny,
but well hidden at the bottom of a narrow, relatively deep slot
near the top of the frame. Given this, we think it unsurprising
that the line officers who prepared the first reports failed to
notice the serial number, while a specialist at the firearms lab,
apparently knowing where to look, discovered the number and
recorded it in his report. Beyond pointing to the paperwork
discrepancy, moreover, Gwyn identifies no evidence suggesting
the gun introduced at trial was not the gun taken from him at the
scene. We thus see no “reasonable probability” of a different
outcome had trial counsel brought the inconsistent paperwork to
the jury’s attention. Moore, 394 F.3d at 931.
Next, Gwyn argues that trial counsel presented a “legally
untenable” argument to the jury. Specifically, in his closing
argument, counsel claimed that because the gun allegedly taken
from Gwyn proved to be inoperable, the weapon was not a
“firearm” for purposes of the felon-in-possession statute. Gwyn
now argues that inoperability has no bearing on whether an item
is a “firearm” within the meaning of the relevant statute, which
defines the term as “(A) any weapon (including a starter gun)
which will or is designed to or may readily be converted to expel
a projectile by the action of an explosive; [or] (B) the frame or
receiver of any such weapon . . . .” 18 U.S.C. § 921(a)(3).
According to Gwyn, the gun introduced into evidence
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“obviously met that definition since it was designed to expel a
projectile and was, at the very least, a ‘frame’ of a gun.”
Appellant’s Br. 30. Gwyn cites an Eighth Circuit case holding
that “[s]ection 921(a)(3) does not require a firearm to be
operable,” United States v. York, 830 F.2d 885, 891 (8th Cir.
1987), pointing out that this circuit has cited the Eighth Circuit’s
interpretation approvingly, see United States v. Burke, 888 F.2d
862, 869 (D.C. Cir. 1989). Unsurprisingly, the government
neither contests Gwyn’s interpretation of the statute nor argues
that trial counsel’s defense was consequently untenable. We too
agree that 18 U.S.C. § 921(a)(3) includes “inoperable weapons”
within the definition of “firearm.”
Counsel’s flawed legal argument could constitute grounds
for ineffective assistance only if it prejudiced Gwyn. Moore,
394 F.3d at 931. Given the overwhelming evidence against
Gwyn, we perceive no probability—much less a “reasonable
probability”—that “the result of the proceeding would have been
different” if trial counsel had omitted the inoperability defense.
Id.
Finally, Gwyn contends that “[c]ounsel’s lapses started in
the very beginning when he failed to conduct any investigation
at all.” Appellant’s Br. 26. In this circuit, however, a defendant
may not merely allege that counsel failed to undertake an
investigation, but must “show to the extent possible precisely
what information would have been discovered through further
investigation.” Askew, 88 F.3d at 1073. Because Gwyn has
failed to identify any evidence or theory of defense helpful to his
cause (again, aside from the gun-related theories we have
rejected), he has failed to meet this burden.
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III.
In addition to his ineffective assistance of counsel
argument, Gwyn, citing United States v. Booker, 543 U.S. 220
(2005), argues that the district court erred by treating the
Sentencing Guidelines as mandatory. He seeks remand of the
record pursuant to United States v. Coles, 403 F.3d 764 (D.C.
Cir. 2005), “so that [the district court] may determine whether
it would have imposed a different sentence materially more
favorable to the defendant had it been fully aware of the post-
Booker sentencing regime.” Id. at 770. The government
concedes that a Coles remand is appropriate.
Accordingly, we affirm Gwyn’s conviction and remand the
record to the district court pursuant to Coles.
So ordered.