that Aquino had followed his dog into the
backyard and saw some metal on the ground. Fearing that the dog would
roll on it and injure himself, Aquino picked it up and discovered that it
was a firearm. Later, when Smith visited Aquino in jail, Aquino told him
a different story. Then, he advised that he was a heroin addict, that he
was given the gun by a person selling drugs from 88 Radio Street so that
he could "guard" the premises. When the police appeared on the scene,
Aquino went into the backyard and disposed of the gun on the ledge. About
a week later when Smith returned to the jail, Aquino told Smith that his
earlier statement that he had received the gun from a drug dealer was
false and that he was just "testing" Smith.
Smith testified that another, fourth version was presented to him by
Aquino shortly before trial. Aquino's version had changed again. Now the
story focused on the dog feces event as Aquino later described it for the
jury. Smith testified that Aquino was adamant on testifying and insisted
that he take the stand and relate this version to the jury.
Smith made a conscious decision to follow a defense strategy of
presenting a "fleeting possession" defense, that is, that Aquino touched
the gun but did not have the requisite custody and control over it to
constitute knowing possession. Smith discussed this strategy with William
Clauss, the Federal Public Defender, as well as another attorney in the
office, Marianne Mariano, who tried the case to the jury with Smith.
Clauss, who had been with the Federal Public Defender's Office since 1992
and was Chief Defender since 1996, testified that he did discuss trial
strategy with Smith and that the strategy seemed to be a reasonable one.
Smith recalled discussing fingerprint evidence in general but it was
not his intent to defend the case based on the fingerprint evidence since
his client never denied touching the weapon. Clauss testified that
although he had consulted experts in his own cases concerning
fingerprints, it was usually done in cases where the client advised that
he could not have touched the disputed item. Clauss testified that in his
experience defense counsel need not retain an expert just because the
prosecutor had one. Cross-examination may be sufficient depending on the
nature of the defense. Finally, Clauss concluded that if the client
admitted touching the gun, it would be less likely that Clauss would call
a fingerprint expert.
Smith was questioned by Aquino's present attorney as to why he did not
prepare and present an alternative defense that Aquino had not touched the
gun and that the prints found there were not his. Smith testified that in
his view such a strategy was ill-advised and that juries tended to
discredit such a tactic. He testified that he had been a criminal defense
lawyer for over sixteen years both in the local Monroe County Public
Defender's Office as well as in the Federal Public Defender's Office, and
that he had tried approximately one hundred cases ranging from the most
serious, murder, to less serious offenses. He testified that he had never
presented an alternative defense theory in his years of practice.
The testimony of Aquino's former lawyers, Smith, Mariano and Clauss,
stands uncontradicted. Aquino did not testify at the hearing on the
motion and he called no other witnesses. His attorneys' version of the
events stands unrebutted. Furthermore, as has been noted by the
Government, there was no evidence offered in the nature of expert
testimony that the strategy adopted by Smith, in light of the evidence
presented, was anything other than reasonable. Both Smith and Clauss
that, in their view, the strategy adopted was reasonable in
light of the facts presented by the client and in light of the
Government's version of events. Furthermore, there is no proof now that
the fingerprints found on the weapon were not in fact Aquino's. In this
motion, Aquino makes no claim that had Smith retained an expert, that
expert would have concluded that the prints found on the firearm were not
Aquino's present claims of ineffective assistance appear to be nothing
more than second-guessing after the jury returned its guilty verdict.
Obviously, just because the verdict was not to Aquino's liking, is not a
basis for concluding that counsel's assistance was ineffective.
Aquino's present claim of dissatisfaction with Smith is a far cry from
his statements about Smith on the eve of trial. Aquino had raised some
concerns about trial strategy and the Court discussed these issues with
Aquino and his attorney a few days before jury selection. Aquino was
concerned that some of the officers had improperly taken money from some
of the occupants of 88 Radio Street on the night in question, and he
wanted counsel to cross-examine them about the matter. Aquino expressed a
desire to pursue this at trial, but his lawyer thought that such a tack
might lead the jury to conclude that 88 Radio Street was a "drug house."
(Tr., p. 7-9).*fn2 Both Smith and the Court pointed out to Aquino that
Smith had labored to keep the drug activity of others out of the trial so
that Aquino was not prejudiced by that association. (Tr., p. 9). It was
certainly a matter of sound trial strategy and, in fact, there was
virtually no reference to drug activity in the testimony presented to the
Eventually, Aquino seemed satisfied that the allegations against the
officers could be pursued elsewhere and he withdrew his request that
Smith be relieved as counsel for not pursing the matter. (Tr. p. 16-17).
It is clear from the Court's discussion with Aquino that although he
was concerned about Smith's strategy concerning impeaching the officers,
he was fully satisfied with Smith in all other respects. Twice during
this discussion Aquino sang Smith's praises. After the Court advised
Aquino that Smith and lawyers from the Federal Public Defender had
appeared before the Court many times and that they were highly qualified
(Tr., p. 4), Aquino replied as follows:
The Defendant: Your Honor, let's see how I am going to
do this, first of all, I'm very happy with Mr. Smith's
representation. I agree with you one hundred percent.
I couldn't ask for a better lawyer. (Tr. p. 5).
Later, Aquino reiterated his confidence in Smith.
The Defendant: Your Honor, again, I couldn't ask
for a better attorney than Mr. Smith. He's
— I'm happy in all aspects, . . . (Tr., p.
In the several versions presented by Aquino to his attorney during
trial preparation, all included the fact that Aquino admitted handling
the firearm. The thrust of the defense was to explain Aquino's handling
in such a way as to negate the requirements necessary for willful and
The jury obviously chose to disbelieve Aquino's tale as to how he came
upon the firearm. I found his story not only unconvincing but also false
and perjurious. Based on that finding at sentencing, I granted a
two-point enhancement for obstruction of justice. I found "by a clear and
convincing evidence that Aquino did perjure himself, did provide false
testimony certainly on a material matter with the willful intent to
provide that false testimony. I find that it was not a result of any
confusion, mistake or faulty memory." (TS., 7-8).*fn3
Based on my view of the evidence and my observations of Aquino at
trial, I determine that the version of events as recounted by Aquino was
"fanciful" and "manufactured" in an attempt to explain the fingerprints
on the firearm. (TS., p. 8).
In sum, Aquino has not overcome the strong presumption that counsel
provided adequate assistance and that the now-challenged actions
constituted sound trial strategy. I do not find that Smith's performance
was deficient, and I find that his trial performance was within an
objective standard of reasonableness and that it met prevailing
This is especially so concerning the fingerprint issues raised here.
Virtually from the day of his arrest, Aquino acknowledged to his several
lawyers that he had touched the firearm. Smith's efforts, in light of the
evidence presented and Aquino's desire to testify in order to explain
that "touching" was reasonable.
I find that none of the matters set forth by Aquino in his submission
after the hearing, whether considered separately or together, warrants
the relief requested. I come to the same conclusion with reference the
items set forth in Aquino's first filing (Dkt. #55).
Aquino has failed to establish that counsel's performance was deficient
and has also failed to demonstrate how he was prejudiced. To obtain
relief, a defendant must demonstrate that the result of the trial would
have been different but for counsel's alleged errors. I have considered
all of the trial evidence, including Aquino's own testimony, and I am not
convinced that Aquino has established prejudice.
Defendant's motion for a new trial based on ineffective assistance of
counsel (Dkt. #55) is denied.
Resentencing is scheduled for March 12, 2002 at 2:00 p.m. Any
objections to the presentence report or any other submissions relating to
sentencing must be filed by March 6, 2002.
IT IS SO ORDERED.