UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 99-20483
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JANADRICK KEMONT DRONES,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
July 25, 2000
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Appellee Janadrick Kemont Drones was convicted of (1) conspiracy to possess crack cocaine
with intent to distribute and (2) aiding and abetting possession of crack cocaine. Drones petitioned
for federal habeas co rpus relief claiming, inter alia, ineffective assistance of counsel. After
conducting an evidentiary hearing, the district court granted habeas relief, holding that Drones’s trial
counsel was ineffective in failing to investigate and present voice identification evidence. The district
court then vacated Drones’s convictions and ordered a new trial. The United States of America (the
“government”) now appeals the district court’s ruling, arguing that Drones received effective
assistance of counsel. For the reason set forth below, we reverse the judgment of the district court.
I
A
On April 25, 1995, Sergeant Gregory Haire of the Texas Depart ment of Public Safety
(“DPS”) met with two confidential informants (“CIs”) about arranging a purchase of crack cocaine.
Pursuant to Haire’s request, the CIs contacted two individuals whom they had identified as possible
drug dealers. When one of the individuals returned the call, DPS recorded the telephone conversation
as well as a second call from the same individual made later the same day. During the course of these
conversations, the CIs planned to meet the caller at a Burger King restaurant to complete the drug
transaction.
Later that afternoon, Haire and the CIs went to the parking lot of the Burger King where they
saw a parked Ford Mustang. When the CIs approached the vehicle, the occupants of the
car—Vernon and Arnold Freddie (the “Freddies”) and Drones—let them into the car and began to
weigh the drugs. When Haire signaled for arrest, nearby officers surrounded the car and arrested the
Freddies as well as Drones, who was by then standing outside of the car. Drones and the Freddies
were charged with (1) conspiring to possess cocaine base with intent to distribute, (2) aiding and
abetting in the possession of cocaine base with intent to distribute, and (3) aiding and abetting in the
use and carrying of a firearm in relation to a drug trafficking offense.
Drones was tried with Vernon Freddie.1 Before the case was submitted to the jury, the trial
1
Arnold Freddie pled guilty to all three counts. Vernon Freddie pled guilty to the
conspiracy and aiding and abetting charges and therefore was only tried for the firearm charge.
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court granted Drones’s motion for judgment of acquittal on the firearm count but denied Drones’s
motion with respect to the other two counts. At trial, Haire testified that Drones was sitting in the
driver’s seat during part of the drug transaction. At the time of the arrest, Haire stated, Drones was
standing outside of the car and “made a motion as if to attempt to run” when approached by the
police. When the police searched the vehicle, they found packages of cocaine in the front passenger
compartment.
While Haire was on the witness stand, the government tapes were played for the jury, and
Haire testified that he recognized Drones’s voice as the “unknown” speaker on the tapes. On cross-
examination of Haire, Drones’s court-appointed counsel, Christopher Goldsmith, emphasized the
sloppy nature of the police investigation and the fact that, despite the high reliability of voice
identification evidence, the government had put forth no expert testimony identifying Drones’s voice
as the unknown voice on the tapes. Goldsmith presented no expert voice identification evidence of
his own.2
Goldsmith called several witnesses to testify in Drones’s defense. First, the Freddies both
testified that Drones did not participate in the drug transaction. Arnold Freddie further testified that
he was involved in the taped phone conversations, and that he did not recognize Drones’s voice on
the government tapes. He stated that the first time he met Drones was in the Burger King parking
lot.
Next, Krisna Brown-Drones (“Krisna”), Drones’s then-fiancee, testified that she was with
Drones on the day of the arrest. More specifically, she testified that she and Drones were at her
2
The government presented two additional trial witnesses: (1) a chemist who testified
that the substance found at the scene was crack cocaine; and (2) an ATF agent who testified that the
gun found in the car was operational.
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sister’s apartment, which did not have a phone, between noon and 4:30. At approximately 4:30,
Krisna testified, Drones left the apartment to get something to eat.
The jury convicted Drones of both drug charges. Shortly thereafter, the trial court
reconsidered and granted Drones’s motion for judgment of acquittal on the conspiracy and aiding and
abetting claims. In reversing its prior ruling, the court found that (1) Drones’s voice was probably
not on the tape, and (2) the government had presented insufficient evidence to convict Drones. The
government appealed, and we reversed and remanded with instructions to the district court to
reinstate the jury verdict. On remand, the district court reinstated the verdict and sentenced Drones
to 210 months imprisonment. We affirmed the conviction and sentence.
B
Drones filed a timely motion to vacate, set aside, or correct hi s sentence pursuant to 28
U.S.C. § 2255 claiming, inter alia, that he was denied effective assistance of counsel. Specifically,
Drones contended that Goldsmith had rendered ineffective assistance by failing to investigate and
present expert and layperson voice identification testimony that his voice was not on the government
tapes. The district court conducted an evidentiary hearing on the issue of “whether counsel’s failure
to investigate exculpatory evidence regarding Drones’s identity rendered his performance
constitutionally deficient.”
Drones, represented by newly appointed counsel, presented four witnesses at the evidentiary
hearing. First, Steve Cain, a forensic scientist and voice identification expert, testified about the
procedures used in voice analysis and his own analysis of the government tapes.3 Cain testified that,
3
Cain’s qualifications are extensive. At the time of trial, he was the president of
Applied Forensic Technologies International. Prior to that, Cain spent twenty-two years working for
various governmental agencies as a forensic specialist. Cain has been certified in voice identification
-4-
after comparing the unknown voice on the government tapes with a voice exemplar obtained from
Drones, he reached a finding of “probable elimination,” meaning that at least 80% of the comparable
words in the samples were dissimilar aurally and spectrographically.4
While Cain testified that there were published recommended procedures for conducting voice
identification examinations, he also acknowledged several weaknesses in spectrographic analysis.
Specifically, he testified that there was no set of objective criteria against which to check the accuracy
of a particular expert’s analysis and that voice identification analysis was largely subjective in that the
examiner ultimately decides whether two spectrographs match one another.
Krisna testified that she was familiar with Drones’s voice and therefore able to distinguish it
from other voices. She further testified that Goldsmith never asked her to listen to the audiotapes
prior to the trial. After listening to the government tapes at the evidentiary hearing, she testified that
Drones’s voice was not on the government tapes.
Next, Lieutenant Colonel Dave Johnson, Drones’s grandfather, testified that he was also
familiar with Drones’s voice, and that Goldsmith had never asked him to listen to the government
tapes. After listening to the tapes at the hearing, he stated that he did not recognize Drones’s voice
on the tapes. Johnson further testified that while he had suffered some hearing loss, that loss did not
and/or tape analysis by the Treasury Department, the International Association for Identification, and
the American College of Forensic Examiners.
4
Voice identification analysis consists of both “critical listening,” which essentially
requires an expert to carefully listen to the qualities of two voices, and spectrographic analysis. In
the latter phase, a computer-based instrument compares the frequencies and amplitudes of a voice
on a questioned recording with those of a known sample. Both Cain and the government’s expert,
Bruce Koenig, testified that there were seven possible results of a voice identification analysis:
identification, probable identification, possible identification, inconclusive, possible elimination,
probable elimination, and elimination.
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prevent him from recognizing Drones’s voice.
Goldsmith also testified at the evidentiary hearing. He stated that he considered the tape to
be a “critical” piece of evidence at the trial because, without the identification of Drones’s voice, the
government would have had a “much more difficult time” proving that Drones was part of a
conspiracy. He also stated that “several week or months” before trial, Drones told him that it was
not his voice on the tape. While Goldsmith listened to the tape several times, he was unable to
determine whether or not Drones’s voice was on the tapes. Most importantly for the purposes of this
appeal, Goldsmith testified that he made a “strategic decision” to base Drones’s defense upon sloppy
police work, the alibi testimony of Brown, and the Freddies’ testimony, rather than upon expert voice
identification testimony that Drones’s voice was not on the government tapes. Because of this
decision, Goldsmith testified, he never sought out expert or layperson evaluations of the tapes.
Finally, the government presented the expert testimony of Bruce Koenig, a private consultant
and former Federal Bureau of Investigation employee.5 Koenig testified that very little research has
been done in the area of “courtroom application of spectrographic voice ident ification,” largely
because since the 1970’s, many researchers have felt that spectrographic comparison could not
produce reliable results. He stated that “almost nobody” in the relevant scientific community uses
spectrographic voice identification because there is no theoretical basis for the proposition that an
individual’s voice is truly unique and identifiable. Nonetheless, Koenig, like Cain, found a “probable
elimination” as to one of the government tapes. With respect to the other tape, Koenig used only
“critical listening” and concluded that Drones’s voice was dissimilar to the voice on the government
5
Koenig’s credentials are also exemplary. At the time of trial, he was a private
consultant involved in audio and video analysis. Prior to entering private practice, Koenig was
employed as a supervisory special agent in the FBI where he also conducted audio and visual analysis.
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tapes.
After making extensive findings of fact and law, the district court held that Drones was denied
effective assistance of counsel due to Goldsmith’s failure to investigate the identity of the voice on
the government tapes, and it granted habeas relief. More specifically, the district court found that
counsel did not make a “reasonable and informed choice to forego investigation of the tape after
listening to the tape on his own” and that “by choosing not to investigate or present such evidence,
Goldsmith denied the jury the opportunity to hear this potentially exculpatory evidence on [the issue
of voice identification].” The government filed this timely appeal in which it contends that (1)
defense counsel’s decision not to investigate the identity of the voice on the tape was a reasonable
strategic legal decision, and (2) even if counsel’s performance was deficient, that deficiency did not
prejudice Drones’s defense. We review a district court’s finding of fact on requests for habeas relief
for clear error and its rulings on issues of law de novo. See Fairman v. Anderson, 188 F.3d 635, 640
(5th Cir. 1999). Determinations regarding the effectiveness of counsel are mixed questions of law
and fact which we review de novo. See Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir. 1997).
II
We review ineffective assistance claims under the familiar two-prong analysis set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, a
petitioner must demonstrate that his attorney’s performance was deficient. See Strickland, 466 U.S.
at 688, 104 S. Ct. 2052. In order to be deficient, counsel’s performance must be “outside the wide
range of professionally competent assistance.” Id. at 690, 104 S. Ct. 2052. If he succeeds in
satisfying the first hurdle, then a petitioner must also demonstrate that the deficient performance
prejudiced the defense such that “there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S. Ct.
2052; see also Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994).
A
Our review of counsel’s performance is “highly deferential,” and we “indulge a strong
presumption that counsel’s performance falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. 2052. Recognizing that in “failure to
investigate” cases the temptation to rely on hindsight is strong, the Supreme Court stated that
“strategic choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Id. at 690, 104 S. Ct. 2052. However, “strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Id. at 690-91, 104 S. Ct. 2052. Strickland does not require us to defer to decisions
that are uninformed by an adequate investigation into the controlling facts and law. See Moore v.
Johnson, 194 F.3d 586, 615 (5th Cir. 1999).
There is little doubt that Goldsmith failed to make any, let alone a reasonable, investigation
into the identity of the unknown voice on the government tapes. Goldsmith himself testified at the
evidentiary hearing that he never even investigated the availability of expert voice identification
analysis of the tapes. He further testified that he chose not to play the tapes for either Drones or
members of his family. Both Krisna and Johnson testified that while Goldsmith conferred with them
before t rial, he never asked them to review the tapes. Accordingly, the question here is whether
Goldsmith’s decision to limit his investigation so as to develop neither expert nor layperson
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identification testimony was reasonable under the circumstances. See Strickland, 466 U.S. at 691,
104 S. Ct. 2052; id. at 699, 104 S. Ct. 2052 (stating that when assessing counsel’s conduct, we must
“reconstruct the circumstances of counsel’s challenged conduct and [evaluate] the conduct from
counsel’s perspective at the time”).
As an initial matter, we note the significance of the government tapes to the prosecution’s
case. Drones was charged with both aiding and abetting possession of crack cocaine and conspiracy
to possess crack with an intent to distribute. Probative to both claims were the taped conversations
in which the CIs planned to meet an unknown caller to complete a drug transaction. The government
presented only one witness—Officer Haire—to testify that he recognized Drones’s voice on the
government tapes. See Fed. R. Evid. 901(b)(5) (pro viding that “identification of a voice . . . by
opinion based upon hearing the voice at any time under circumstances connecting it with the alleged
speaker” satisfies Rule 901’s authentication/identification requirement). At the evidentiary hearing,
Goldsmith conceded that the tapes were “crucial” to the government’s case and that without them,
the government would have had a “much more difficult time” proving that Drones was part of a
conspiracy. Thus, going into trial, Goldsmith knew that the government had a key piece of direct
evidence linking Drones to a conspiracy, and he knew that his client had to challenge the validity of
that piece of evidence. The district court held that, under these circumstances, Goldsmith should have
pursued both expert and layperson identification testimony in an effort to determine whether the voice
on the tape was in fact Drones’s vo ice, and that his failure to do so constituted constitutionally
deficient conduct.
We turn first to counsel’s decision not to investigate cert ain layperson identification
testimony. Goldsmith testified that his decision not to play the tape for Johnson was based on his
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concerns that Johnson’s testimony (1) would have been impeachable due to his familial relationship
with Drones and (2) could have opened the door to questi oning about Drones’s prior narcotics
convictions. Goldsmith chose not to play the tapes for Krisna because he believed that her testimony
would have been cumulative given her alibi testimony. We find that these concerns were valid and
his decisions were part of a plausible trial strategy. Goldsmith was correct that, if Johnson testified,
he could have opened the door to questions about Drones’s prior drug convictions. Counsel’s
decision not to pursue evidence that could be “double-edged in nature [was] objectively reasonable
and therefore does not amount to deficient performance.” Lamb v. Johnson, 179 F. 3d 352, 358 (5th
Cir. 1999) (quoting Rector v. Johnson, 126 F. 3d 551, 564 (5th Cir. 1997)); Kitchens v. Johnson, 190
F.3d 698, 702-03 (5th Cir. 1997) (finding that counsel’s decision not to investigate mitigating
evidence of child abuse, alcoholism, and mental illness was sound trial strategy). Similarly, Goldsmith
determined that Krisna’s identification testimony would not have been of additional help to Drones’s
defense given that she had already provided alibi testimony that, if believed, would have made it
impossible for Drones to have made the recorded phone calls. This determination was not
unreasonable under the circumstances. Since Goldsmith would not have presented either Krisna or
Johnson’s testimony at trial, his decision not to investigate the substance of that potential testimony
was reasonable.
We find Goldsmith’s failure to investigate the availability of expert spectrographic analysis
of the tapes more troubling. Having ruled out two possible sources of identification testimony in
Krisna and Johnson, Goldsmith was still faced with a significant piece of damaging evidence at trial.
Under these circumstances, Goldsmith’s decision simply to abandon any investigation of the tapes
might not seem reasonable. This is not, however, a case in which counsel simply fails to articulate
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a justification for his limited investigation. Here, our analysis is complicated by the fact that
Goldsmith testified that he chose not to investigate spectrographic analysis for strategic reasons.
Specifically, Goldsmith testified that, at the start of the case, he made the “strategic decision” to
“attack the government’s case” rather than to “assume the burden of proof . . . and try to disprove
that it was Mr. Drones’s voice on the tape.” Go ldsmith further testified that his choice of trial
strategy was influenced by the controversial nature of expert voice analysis. On appeal, the
government argues, inter alia, that Goldsmith’s decision not to pursue spectrographic analysis was
objectively reasonable given the questionable reliability of expert voice identification evidence.
We note as a preliminary matter that Goldsmith’s testimony raises serious doubts as to
whether he actually knew enough about the relevant law to have made a reasoned legal decision based
upon it. See Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992) (finding deficient performance where
“counsel’s decision had not been made after a thorough investigation of the law; [counsel] was
unaware of the law”). Specifically, Goldsmith testified that that his decision was based in part on
his belief that “at the time [of trial], the admissibility of this type of evidence was controversial based
on the Fifth Circuit law that was in place at the time.” Our review of this circuit’s case law indicates
that we have never before addressed the admissibility of spectrographic evidence.
The government takes Goldsmith’s argument a step further and argues that, “regardless of
whether Goldsmith acted for the reasons he said he acted,” he was reasonable in failing to investigate
expert voice identification testimony because the reliability of such evidence was questionable at the
time of trial. We recognize that counsel is not required to pursue a line of defense that he knows will
be fruitless. Cf. Nealy v. Cabana, 764 F.2d at 1178 (finding deficient performance where counsel
“did not testify that such efforts would have been fruitless . . . [but] simply failed to make the effort
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to investigate”). Here, however, there is virtually no indication in the record that Goldsmith ever did
enough research into expert voice analysis to make a determination regarding the merits of a defense
based on expert testimony. Rather, Goldsmith testified that he decided at the start of the case that
he would not investigate any means by which he could affirmatively disprove that Drones’s voice was
on the tapes. He then relies on this “strategic” decision to justify his failure to conduct even a
preliminary investigation into the availability of expert witnesses in the Texas area.6
Nonetheless, despite our reservations as to whether Goldsmith actually knew enough about
the law surrounding the admissibility of spectrographic evidence to have made a reasoned legal
decision based upon it, see Loyd, 977 F.2d at 158 (finding deficient performance where “counsel’s
decision had not been made after a thorough investigation of the law; [counsel] was unaware of the
law”), we find that Goldsmith’s failure to investigate can be constitutionally deficient only if it
resulted in the exclusion of competent evidence.7 Given the current state of the law regarding the
admissibility of expert voice identification testimony and the expert testimony presented at the
6
For example, Goldsmith testified that he did not make a motion for appointment of
funds for an expert voice identification analysis because his “decision on the trial strategy made that
motion unnecessary.” He also testified that, to his knowledge, there was no local expert witness but
that he “made the strategic choice before needing to attempt to locate an expert.”
7
While none of our previous cases explicitly hold that a failure to investigate can be
deficient only if such failure leads to the exclusion of admissible evidence, the underlying assumption
in our prior cases is that an investigation would have resulted in, at the very least, admissible
evidence. See, e.g., Moore v. Johnson, 194 F.3d 604, finding failure to investigate defendant’s
background and the facts underlying an “accidental shooting” theory was professionally
unreasonable); Bryant, 28 F.3d at 1418 (holding co unsel’s failure to investigate alibi witness and
eyewitnesses to the crime amounted to constitutionally deficient performance); Loyd, 977 F.2d at
157-59 (holding failure to obtain psychological analysis of defendant to present during sentencing
phase of trial was not reasonable). In contrast, we are unable to locate any federal case in which a
court held that an attorney rendered a constitutionally deficient performance due to his failure to
investigate evidence that he would not have been able to present at trial.
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evidentiary hearing, we cannot say that counsel’s choice of strategy was unreasonable and therefore
deficient.
At the time of Drones’s trial, four of our sister circuits had upheld the admissibility of
spectrographic evidence, see United States v. Smith, 869 F.2d 348, 351 (7th Cir. 1989) (“Under the
Frye test, several other circuits have held expert testimony concerning spectrographic voice
identification admissible. . . . We join these circuits today, and hold that expert testimony concerning
spectrographic voice analysis is admissible in cases where the proponent of this testimony has
established a proper foundation.”); United States v. Williams, 583 F. 2d 1194, 1201 (2d Cir. 1978)
(finding spectrographic analysis admissible under a modified version of the Frye test of admissibility);
United States v. Baller, 519 F.2d 463, 465-67 (4th Cir. 1975) (same); United States v. Franks, 511
F.2d 25, 32-34 (6th Cir. 1975) (same), and one appellate court had refused to admit expert voice
identification testimony, see United States v. Addison, 498 F.2d 741, 745 (D.C. Cir. 1975); see
generally United States v. McDaniel, 538 F.2d 408, 413 (D.C. Cir. 1976) (finding that court was
bound by prior ruling that voice identification evidence was inadmissible but noting trend towards
admissibility of “voiceprints”). However, all of these cases were decided before Daubert v. Merrell
Dow Pharmaceuticals, in which the Supreme Court set out the applicable standard for determining
the admissibility of scientific evidence. See Daubert, 509 U.S. 579,589-90, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993) (holding that Federal Rule of Evidence 702 superceded the “Frye standard” of
admissibility of scientific evidence and that under Rule 702, the district court had to determine that
proffered expert testimony was both reliable and relevant); id. at 593-94, 113 S. Ct. 2786 (setting out
five non-exclusive factors to assist the district court in determining the reliability of proffered
scientific evidence). No federal case decided post- Daubert has considered the admissibility of expert
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voice identification testimony.8
In addition to the fact that the state of the law concerning expert voice identification was
ambiguous, the expert testimony presented at the evidentiary hearing demonstrates that
spectrographic analysis is—and was at the time of Drones’s trial—of questionable scientific validity.
Most notably, at the hearing, Koenig testified that there is no proven theoretical basis for the basic
underlying premise that one person’s voice is truly unique and therefore identifiable. He further
stated that this has resulted in a precipitous drop in the number of expert practitioners over the past
few decades, from fifty to sixty practitioners in the 1970’s to roughly a dozen experts at the time of
Drones’s trial. While Cain testified that expert voice identification testimony has been used
extensively in state and federal courts over the past thirty years, he also testified that he did not know
if spectrographic evidence was widely accepted by the relevant scientific community. He also
acknowledged that numerous factors—including a defendant’s ability to disguise his own
voice—could affect the reliability of expert analysis.
Thus, even assuming that expert voice identification would have met the Daubert standard,
at trial, expert testimony that voice analysis would have indicated a “probable exclusion” of Drones
as the unidentified voice on the tape would have almost certainly have been accompanied by, at the
very least, a rigorous cross-examination of Drones’s expert. Most likely, the government would have
also presented Koenig’s testimony that spectrographic analysis was, at best, a dwindling science.
Beyond this, any expert testimony that Goldsmith could have presented would have been further
impeached by the substantial circumstantial evidence of Drones’s participation in the drug conspiracy.
8
We note that the one state court to address the admissibility of spectrographic
evidence post-Daubert determined that spectrographic analysis was admissible. See State v. Coon,
974 P.2d 386 (Alaska 1999).
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In sum, given the uncertainty of the current state of the law regarding the reliability and
admissibility of expert voice identification evidence, and the vulnerability of such expert testimony
at trial, we simply cannot say that Goldsmith’s choice of strategy— and specifically his decision to
attack the government’s case rather than to rely on expert voice identification testimony—was
unreasonable.9 Accordingly, his representation of Drones was not constitutionally deficient.
B
Additionally, Drones cannot prevail under Strickland because he is unable to prove that he
was prejudiced by his counsel’s actions. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In order
to satisfy the prejudice prong of Strickland, Drones must show “more than the mere possibility of a
different outcome.” Ransom, 126 F.3d at 723. Rather, a petitioner must present “evidence of
sufficient quality and force to raise a reasonable probability that,” had it been presented to the jury,
the outcome would have been different. Id.; see also Strickland, 466 U.S. at 694, 104 S. Ct. 2052
(holding that in order to show prejudice, defendant must demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different”). We find that, under the facts of this case, the district court erred in concluding that
Drones met this substantial burden. More precisely, we find that given the existence of other
circumstantial evidence against Drones, Drones cannot demonstrate that Goldsmith’s failure to
investigate and present expert voice identification testimony prejudiced his defense.10
9
We do not reach the question of whether expert voice identification testimony is
admissible under Daubert.
10
Because we find that Goldsmith’s failure to investigate layperson testimony from
Krisna and Johnson was reasonable, the government correctly isolates the issue here as whether
Goldsmith’s failure to investigate voice identification testimony was prejudicial to Drones’s defense.
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While the government tapes were clearly important to proving the overall conspiracy, this is
not a case where a determination of guilt rested entirely on this evidence. To the contrary, here, even
assuming Drones’s voice was not on the tape, there was additional significant circumstantial evidence
in the record to support the jury’s convictions.
In order to prove a drug conspiracy, the government must present evidence of (1) an
agreement between two or more persons to violate narcotics laws, (2) a defendant’s knowledge of
the agreement, and (3) a defendant’s voluntary participation in that agreement. See United States v.
Chavez, 119 F.3d 342, 347 (5th Cir. 1997). The agreement that forms the basis of a conspiracy
charge can be implicit, and a jury may infer its existence from circumstantial evidence. See United
States v. Thomas, 12 F.3d 1350 (5th Cir. 1994); see also Chavez, 119 F.3d at 347 (“A defendant’s
presence and association with other members of the conspiracy, when supported by other evidence,
may be used to support a finding of conspiracy.”); United States v. Gallo, 927 F.2d 815, 820 (5th Cir.
1991) (“The Government is not required to prove the existence of the conspiracy and the agreement
between the co-conspirators and the defendant by direct evidence, but may present circumstantial
evidence, such as the co-conspirator’s concerted act ions, from which the jury can infer that a
conspiracy existed.”). The essential elements of an aiding and abetting claim are (1) association with
a criminal drug venture, (2) participation in the venture, and (3) action by the defendant that, in some
way, tries to make the venture succeed. See Chavez, 119 F.3d at 347. Typically, the evidence that
supports a conspiracy conviction supports an aiding and abetting conviction. See id. at 347.
Here, Officer Haire testified that he observed Drones sitting in the driver’s seat of the
Mustang during the drug transaction. While Drones was in the car, the Freddies weighed eighteen
pieces of crack cocaine. Haire further testified that at some point during the transaction, Drones
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stepped out of the Mustang and stood beside the car, and that when the officers approached the
vehicle, Drones attempted to flee the parking lot. When the officers searched the vehicle, they found
packages of crack in the front passenger compartment of the vehicle. Viewed as a whole, this
evidence of concerted action and flight is strong support for the jury verdict. Cf. Gallo, 927 F.2d at
820 (“The existence of the agreement, the defendant’s participation in the conspiracy may be inferred
from the ‘development and collocation of circumstances.’”); United States v. Thorn, 917 F.2d 170,
173 (5th Cir. 1989) (“If Thorn understood the unlawful nature of the activity and knowingly or
intentionally joined it on at least one occasion, that was sufficient to convict him of conspiracy, even
though he played only a minor role in the scheme.”). The same evidence could also establish
Drones’s association with a criminal narcotics venture and his participation in it. See United States
v. Gallo, 927 F.2d 815, 822 (5th Cir. 1991) (“The same evidence that establishes [a defendant’s]
knowing and voluntary participation in the conspiracy also establishes his association with the
criminal venture and participation in it.”). Specifically, the fact that eighteen pieces of crack cocaine
were weighed while Drones sat in the driver’s seat of the car is strong circumstantial evidence of his
association with and participation in the sale of that crack.
The fact that—even if Goldsmith had conducted a thorough investigation—at trial, the jury
would have been presented with considerable circumstantial evidence of Drones’s guilt leads us to
conclude that Drones was not prejudiced by counsel’s deficient conduct.
III
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND
with instructions to deny habeas relief.
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