The opinion of the court was delivered by: David G. Larimer, Chief Judge
Defendant, Thomas Aquino ("Aquino"), was convicted after a jury trial
for possession of a firearm by a convicted felon and possession of
ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
and 924(a)(2), and for possession of a stolen firearm, in violation of
§ 922(g) and 924(a)(2). On appeal to the United States Court of
Appeals for the Second Circuit, the conviction for possession of
ammunition was vacated and dismissed and the matter was remanded for
resentencing. The Second Circuit also remanded for this Court to consider
the ineffective assistance of counsel claims raised by Aquino in his
On remand, the Court relieved former counsel, Robert G. Smith, Esq.
("Smith"), Assistant Federal Public Defender, and appointed new counsel,
Lawrence J. Kasperek, Esq. Defendant then moved for a new trial on the
grounds of ineffective assistance of counsel (Dkt. #55). The Government
responded to the motion and the Court heard oral argument. The Court also
conducted an evidentiary hearing on the motion on November 5, 2001. At
that hearing, Aquino's former lawyer, Smith, testified as did two other
lawyers from the Federal Public Defender's Office who worked with Smith
on the case, in addition to an investigator and paralegal from that
office. Aquino did not testify at the hearing.
Aquino moves for a new trial on the grounds that his trial counsel was
ineffective. In the original moving papers (Dkt. #55), several errors of
counsel were alleged. In a filing subsequent to the evidentiary hearing,
though, defendant's present focus is much narrower. It appears that
Aquino's principal challenge is that his trial counsel failed to contact
an independent fingerprint expert prior to trial and did little to
challenge the Government's expert's testimony that Aquino's fingerprints
were found on the firearm in question.
Generally, defense counsel is "strongly presumed to have rendered
adequate assistance. . ." Id. at 690. To succeed on such a claim, then,
the defendant must "overcome the presumption that, under the
circumstances, the challenged action `might be considered sound trial
strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
If defense counsel's performance is found to have been defective,
relief may only be granted where it is shown that the defense was
actually prejudiced by counsel's errors. Strickland, 466 U.S. at 692.
Prejudice is established upon a showing that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694. The court
determines the presence or absence of prejudice by considering the
totality of the trial evidence. Id. at 695.
At trial, the principal issue was whether Aquino knowingly possessed
the firearm. The firearm was not found on Aquino's person by the police
when they arrived at 88 Radio Street that winter evening, January 6,
1999. The police found the firearm on the window ledge of a detached
garage at the premises. When the police first arrived at the scene,
Aquino was outside the premises in the driveway. (T. p. 175).*fn1
Several officers went into the residence to talk to the occupants and
Aquino remained outside. When that happened, Officer Ignacio Torres
observed Aquino walk down the driveway into the backyard with his dog.
Aquino was out of sight for about a minute. (T., p. 212-213). Officer
David Anne also observed Aquino walk to the rear of the building and
disappear from view. (T., p. 314-315). Anne testified that a few minutes
later he went into the backyard area and observed human and dog
footprints leading across the backyard to the rear of the garage. (T.,
p. 320-324). With a flashlight, he followed the footprints across the yard
and they led directly to the window ledge where he found the firearm.
(T., 325). Anne testified that the path of footprints then returned back
toward the driveway in the front of the house. (T., p. 324).
Once the gun was recovered, Aquino was arrested. He provided no
explanation concerning the gun but became belligerent and threatened to
sue the officers for false arrest. (T., p. 183).
The Government called a fingerprint expert, Rochester Police Officer
Thomas W. Walton who testified that he had been making fingerprint
comparisons for over sixteen years. He explained that this work involved
tens-of-thousands of comparisons (T., p. 271), and he explained the
process of fingerprint analysis. In summary, he testified that Aquino's
were found on the firearm that was found on the ledge.
There was other circumstantial evidence connecting Aquino to the
firearm. The owner of the firearm testified at trial that the weapon had
been stolen, together with several other items, from his home in
Batavia, New York in a burglary. He noticed the several missing items and
promptly reported the burglary to the police on December 17, 1998. (T.,
p. 282-283). The owner also testified that Aquino and his parents lived
next door to him for about twenty years. (T., p. 287). When the police
officers first confronted Aquino a few weeks later, on January 6, at
Radio Street, Aquino told them that he was from Batavia. (T., p. 178),
and when he testified at trial, he admitted that his permanent residence
was in Batavia (T., p. 375).
Aquino himself testified at trial and admitted touching the firearm.
The story he told at trial was that during the officers' visit to 88
Radio Street, he had followed his young dog into the backyard and he
observed the dog approach an item which he believed to be dog feces.
Aquino claimed that he ran up to push the dog away and discovered, to his
surprise, that the item was a firearm. He picked it up and placed it on
the window ledge and left the area. (T., p. 367-368). He returned to the
front of the house but did not tell the officers about finding the
firearm. (T., p. 369, 380).
The defense theory was that this momentary touching of the firearm by
Aquino was not knowing possession. The defense requested and received
from the Court an instruction concerning "fleeting" possession. The jury
was instructed that if it accepted Aquino's testimony that he merely
picked up the firearm under the circumstances as he described it, that
would not constitute knowing possession. (T., p. 458-59). That strategy,
that is, that Aquino's touching was momentary and constituted nothing
more than fleeting possession was pursued by the defense throughout the
trial. In fact, in his opening statement, defense counsel did not dispute
the fact that Aquino's prints were found on the firearm because that fact
was not inconsistent with the defense theory of the case.
Even without the benefit of the evidence gleaned from the hearing on
this motion relating to ineffective assistance of counsel, I believed at
trial, and I believe now, that the strategy employed by the defense, in
light of the defendant's testimony, was certainly reasonable and fell
well within the objective standards of reasonableness as required by
Strickland. After considering the evidence adduced at the ...