                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-1998

United States v. Kole
Precedential or Non-Precedential:

Docket 96-5457




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Recommended Citation
"United States v. Kole" (1998). 1998 Decisions. Paper 285.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/285


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Filed December 29, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5457

UNITED STATES OF AMERICA

v.

AGNES KOLE, aka Joy, Zaima Soto Muwanga

Agnes Kole,

       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 93-cr-00426-1
(District Judge: Honorable John C. Lifland)

Argued: June 26, 1998

Before: GREENBERG, ALITO and MCKEE, Circuit Judges.

(Filed December 29, 1998)

       Donna R. Newman, Esq. (Argued)
       3163 Kennedy Boulevard
       Jersey City, NJ 07306

       Attorney for Appellant

       George S. Leone, Esq.
       Amanda Haines, Esq. (Argued)
       Office of United States Attorney
       970 Broad Street
       Room 700
       Newark, NJ 07102

       Attorney for Appellee
OPINION OF THE COURT

McKEE, Circuit Judge.

Agnes Kole pled guilty to violating 21 U.S.C. SS 952(a),
960(a)(1), and 963 based upon her involvement in a
conspiracy to import heroin into the United States from
Thailand. Thereafter, the government filed an enhanced
penalty information under 21 U.S.C. S 851(a) in an effort to
enhance Kole's sentence based upon a prior felony drug
conviction in the Philippines. The district court granted the
requested enhancement, and Kole appeals. She claims that
the enhancement was improper because she was denied
effective assistance of counsel in the Philippines, and
because the Philippine legal system does not recognize the
right to a jury trial. For the reasons that follow, we will
affirm.

I. Background

A. The Prior Conviction in the Philippines

On December 8, 1991, Kole, four other females, and a
male named Lazarus Iwuchukwu ("Ike") were arrested in an
apartment in a city in the Philippines. Ike was Kole's fiance.
Kole and Ike lived in the apartment, but all six were
charged with conspiracy to prepare, package and repackage
heroin in violation of Philippine law. Police made the arrest
after a drug courier named Jamie Williams lead them to
Kole's apartment. Williams had been arrested in Manila as
she was boarding a flight bound for Chicago with a false-
bottomed suitcase containing approximately five kilograms
of heroin.

When police and Williams arrived at the condominium
complex where Kole and Ike lived, the owner of the complex
consented to a search and police entered Kole's apartment
along with Williams. Once inside, the police discovered a
blue suitcase containing heroin. Kole and Ike were captured
after they tried to escape by jumping from a second story
terrace. Several women who were present in the apartment

                               2
were also arrested and all were charged with violating
Philippine law.

The defendants, who were represented by the same
attorney, entered pleas of not guilty and proceeded to trial
before a judge in accordance with Philippine law. At that
trial the police testified that the women who were arrested
with Kole were all squatting around a suitcase and filling it
with heroin when police entered. Kole testified in her own
behalf. She stated that she and Ike had been awakened by
a loud noise coming from the living room. According to
Kole, Ike had peered from behind the door of the bedroom
to find out what was going on when he saw a man with a
gun who Ike claimed was trying to kill them. Kole testified
that she and Ike attempted to escape by jumping from the
second-floor terrace, but they were apprehended and placed
under arrest. She insisted that she had never seen Williams
before, and that the suitcase with the heroin had never
been in her possession. The defendants also offered
testimony that police had told them that they had to pay a
bribe of $100,000 or the police would have Williams testify
that the heroin was found in Kole and Ike's apartment.

Despite the defense testimony, Judge Felix of the
Regional Trial Court of the Philippines found both Ike and
Kole guilty as charged though he acquitted everyone else.

B. The Current Conviction, and Sentence

In the instant case, Kole and a coconspirator were
apprehended in New Jersey and charged with attempting to
import heroin. Kole subsequently pled guilty to one count of
conspiring to import 3.5 kilograms of heroin into the United
States in violation of 21 U.S.C. S 942(a). Following the
change of plea proceeding, the government filed an
information under 21 U.S.C. S 851(a) in an effort to
enhance Kole's sentence to a term of imprisonment of at
least 20 years based upon her drug conviction in the
Philippines.

Kole argued that   21 U.S.C. S 851(c)(2) precluded the
court from using   the Philippine conviction to enhance her
sentence because   she had been denied a jury trial in the
Philippines, and   because her defense counsel there labored

                                  3
under a conflict of interest that caused her to be denied
effective assistance of counsel. Since S 851(c)(2) expressly
bars consideration of any prior conviction that "was
obtained in violation of the Constitution of the United
States," Kole asserted that the sentencing court could not
apply the mandatory minimum for repeat felony drug
offenders contained in 21 U.S.C. S 960(b)(1)(A).

The district court held a sentencing hearing, and
scrutinized Judge Felix's opinion. The district court
concluded that both of Kole's assertions were within the
scope of the collateral attack allowed under 21 U.S.C.
S 851(c)(2), but that Kole had not satisfied her burden of
proof as to either claim. Accordingly, the court ruled that
the Philippine conviction was a prior drug felony for
purposes of sentencing, and sentenced Kole to the
mandatory minimum period of incarceration (20 years)
under 21 U.S.C. S 960(b)(1).1 This appeal followed.

We have appellate jurisdiction pursuant to 28 U.S.C.
S 1291. Our standard of review is plenary. See United States
v. Murray, 144 F.3d 270 (3d Cir. 1998) (citing United States
v. Woods, 986 F.2d 669, 673 (3d Cir. 1993).
_________________________________________________________________

1. Although we refer to the mandatory minimum sentence under 21
U.S.C. S 960 as an enhancement, we note that Kole's offense level was
calculated as 37, and she was in criminal history category I. Therefore,
the "normal" sentencing range under the Guidelines would have been
210 to 262 months incarceration even without a mandatory minimum
sentence of 20 years. Ironically, the sentence that Kole actually received
pursuant to the enhancement of 21 U.S.C. S 851 (240 months) was in
the middle of the range that would have governed her sentence without
the prior conviction in the Philippines. However, that does not alter our
analysis of the issues Kole raises in this appeal. Had the district court
not imposed the mandatory minimum the Guidelines would have allowed
for a sentence of 210 months instead of the 240 months she received.
Moreover, the district court could have considered a reduction for
acceptance of responsibility based on Kole's guilty plea.

                               4
II. Discussion

A. The Statutory Framework

21 U.S.C. S 960(b)(1)(A) provides in part:

       If any person commits any of the prohibited acts set
       forth [in S 960] after a prior conviction for a felony drug
       offense has become final, such person shall be
       sentenced to a term of imprisonment of not less than
       20 years and not more than life imprisonment . . . .

This enhancement is, however, subject to the limitations
set forth in 21 U.S.C. S 851(c)(2) which provides:

       A person claiming that a [prior felony drug] conviction
       . . . was obtained in violation of the Constitution of the
       United States shall set forth his claim, and the factual
       basis therefor . . . . The person shall have the burden
       of proof by a preponderance of the evidence on any
       issue of fact raised by the response.

Here, it is not disputed that Kole's conviction in the
Philippines was for a "felony drug offense" as that term is
used in S 960. Nor is it disputed that she was not entitled
to a jury trial under the law of the Philippines, or that her
defense attorney there also represented all of her
codefendants.2 The district court ruled that, although Kole
was not entitled to a jury trial, her Philippine conviction
could still be used to enhance her sentence under S 960
because the conviction was obtained in a manner that was
consistent with notions of fundamental fairness embodied
in the Constitution, and was therefore "not obtained in
violation of the Constitution" as that phrase is used in
S 851. The court also ruled that Kole had not met her
burden of showing that her defense attorney's joint
representation of herself and Ike deprived her of effective
assistance of counsel.
_________________________________________________________________

2. However, Kole limits her claim of an improper conflict to her
attorney's
joint representation of her and Ike.

                               5
B. The District Court's Analysis

In rejecting Kole's claim, the district court relied upon a
series of cases known as the "Insular Cases."3 The district
court also relied in part upon Custis v. United States, 511
U.S. 485 (1994), but the court rejected the government's
argument that Custis limited the scope of attack allowed
under S 851(c)(2). See Dist. Ct. Op. at 5.

In Custis, the defendant was convicted of being a felon in
possession of a firearm in violation of 18 U.S.C. S 922(g)(1).
Prior to trial the government notified him that it would seek
to enhance his sentence under the Armed Career Criminal
Act of 1984, 18 U.S.C. S 924(e) ("ACCA"). That provision

       raises the penalty for possession of a firearm by a felon
       from a maximum of 10 years . . . to a mandatory
       minimum sentence of 15 years and a maximum of life
       in prison . . . if the defendant has three previous
       convictions . . . for a violent felony or serious drug
       offense.

Custis, 511 U.S. at 487 (internal quotation marks omitted).
The defendant had a prior state court conviction for
robbery, and two prior state court convictions for burglary.
However, at his sentencing hearing in federal court, he
challenged the use of two prior state court convictions
arguing that he had been denied his Sixth Amendment
right to effective assistance of counsel in those
prosecutions. He asserted that his attorney in those two
cases had not advised him of a possible defense of
voluntary intoxication, and that he would have gone to trial
rather than plead guilty had he known of that defense. Id.
at 488.

The sentencing judge denied the challenge, and the court
of appeals affirmed. The court of appeals reasoned that
S 924(e) did not expressly provide for collateral attack of the
_________________________________________________________________

3. See Dist. Ct. Op. at 9. The "Insular Cases" refers to a group of cases
that include Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United
States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197 (1903);
Downes v. Bidwell, 182 U.S. 244 (1901). As noted below, these cases are
discussed in Commonwealth of Northern Mariana Islands v. Atalig, 723
F.2d 682-4 (9th Cir. 1984).

                               6
predicate enhancement convictions. The court stated that
considerations of comity and federalism weighed against
such collateral attacks on state convictions in federal
proceedings and that it was impractical to allow the "fact
intensive inquiries" necessary to resolve such a collateral
attack. Id. at 490. The court did, however, recognize "the
right of a defendant who had been completely deprived of
counsel to assert a collateral attack on his prior
convictions." Id. at 489. The Supreme Court affirmed. It
reasoned that Congress did not intend to allow a collateral
attack of the predicate enhancement convictions under
S 924(c) because it had omitted any language allowing a
defendant to do so. The Court viewed that omission in
context with the specific grant of such a right in 21 U.S.C.
S 851(c)(2). The Court stated:

       The language of S 851(c) shows that when Congress
       intended to authorize collateral attacks on prior
       convictions at the time of sentencing, it knew how to
       do so. Congress' omission of similar language in
       S 924(e) indicates that it did not intend to give
       defendants the right to challenge the validity of prior
       convictions under this statute.

511 U.S. at 492. Moreover, the Court reasoned that since
Custis was still in custody on the state charges he was
attacking, he could seek a writ of habeas corpus to review
the prior convictions.

In the district court here, the government asserted that
the scope of the collateral attack authorized inS 851(c) was
limited to the fact of representation, and could not be
stretched to allow an inquiry into the quality of an
attorney's stewardship.4 Since Kole had been represented
_________________________________________________________________

4. In its brief before us, the government assumes arguendo that Kole can
challenge the constitutionality of her Philippine conviction though the
government states "neither the statute's express language -- authorizing
challenges to `a conviction' -- nor its legislative history addresses this
question." Appellee's Br. at 14. However, the text of the statute is so
clear as to leave no room to doubt that a defendant in Kole's
circumstance can collaterally challenge the constitutionality of her
foreign conviction under 21 U.S.C. S 851(c)(2).

                                7
during the prosecution in the Philippines, the prosecution
insisted that her Sixth Amendment challenge was without
merit. The district court rejected that view stating:

       The government does not explain why the boundaries
       drawn around collateral attack in Custis, which relate
       to collateral attack in the absence of statutory
       authorization therefor, should be interpreted by this
       court to be the same boundaries that apply to a
       statutorily authorized collateral attack on an
       extraterritorial conviction. . . . The Court rejects this
       argument

       . . . .

        The government also   argues that only `fundamental'
       rights attach abroad   and that Custis establishes that
       effective assistance   is not among these. The Court will
       not give Custis such   a broad application.

Dist. Ct. Op. at 5. Nevertheless, the district court ruled that
Kole had not met her burden of proof as to her claim of
ineffective assistance of counsel, and rejected her Sixth
Amendment claim. The court also refused to rule that the
absence of a jury trial under the Philippine legal system
constituted a per se bar to using that conviction to enhance
her current sentence. Rather, the court examined the basic
_________________________________________________________________

Judge Alito does not agree that 21 U.S.C. S 851(c)(2) authorizes Kole to
challenge the use of her Philippine conviction under 21 U.S.C.
S 960(b)(1)(A). Judge Alito doubts that a conviction of a foreigner in a
foreign court for conduct on foreign soil obtained without the
participation by American agents can be viewed as having been
"obtained in violation of the Constitution of the United States." 21
U.S.C.
S 851(c)(2). Since Congress provided for foreign convictions to be counted
under 21 U.S.C. S 960(b)(1)(A), see 21 U.S.C. SS 802(44), 960(b), he
thinks that it would have been reasonable for Congress to have
furnished a mechanism for challenging the reliability and fairness of
such convictions, but he finds it difficult to construe the text of 21
U.S.C. S 851(c)(2) as doing so. However, assuming for the sake of
argument that Kole has a statutory or constitutional right to challenge
the use of her Philippine conviction for present purposes, he is convinced
that the right would not exceed the bounds set out in the court's
opinion, and he agrees with the court that the challenge must fail.

                                 8
principles of the Philippine legal system, the circumstances
surrounding her conviction, and Judge Felix's decision, and
concluded that her conviction was obtained in a manner
that was consistent with fundamental fairness, and it
therefore met the test of constitutionality that Congress
intended under 21 U.S.C. S 851(c)(2).

On appeal, Kole argues that the district court's
"limitation of the application of Section 851(c)(2) to foreign
convictions is in direct conflict with the plain meaning of
the statute," Appellant's Br. at 30, and she again argues
that Congress intended to exclude any foreign conviction
that does not "comport with the United States
Constitution." Appellant's Br. at 31. The government
counters by arguing that the district court correctly "found
that the right to trial by jury is not a fundamental right but
is rather a mode of procedure guaranteed . . . in the United
States." Appellee's Br. at 21 (citations and internal
quotation marks omitted).

C. The Insular Cases

Kole's assertion as to her right to a jury trial implicates
a debate that the Supreme Court discussed in Board of
Engineers v. Otero, 426 U.S. 572 (1975). There, the Court
had to determine the constitutionality of a provision of the
law of Puerto Rico that prevented anyone who was not a
United States citizen from obtaining a license as a civil
engineer in Puerto Rico. In the course of striking down the
provision, the Court noted the doctrines of incorporated
and unincorporated territories that emerged from the
holdings in the Insular Cases. Under those holdings, the
Constitution applied "with full force" to"[t]erritories
destined for statehood from the time of acquisition . . . ." Id.
at 601. However, only " `fundamental' constitutional rights
were guaranteed to the inhabitants" of "[t]errirtories not
possessing that anticipation of statehood." Id. Since Puerto
Rico was not acquired with the anticipation that it would
become a state, "the Constitution was held not to extend Ex
Proprio vigore to the inhabitants of Puerto Rico." Id.

Here, we must decide whether the Constitution applies
Ex Proprio vigore to the Philippines. As we note below, that

                               9
question was answered in Dorr v. United States, 195 U.S.
138 (1904). However, a brief discussion of the historical
context in which Dorr was decided, and the background of
the legal protections afforded under Philippine law will
assist our inquiry into whether using Kole's Philippine
conviction to enhance her current sentence is consistent
with Congress' intent in enacting S 851(c)(2).

D. Background of the Legal System
in the Philippines

Effective as of 1899, Spain ceded the Philippines to the
United States under a treaty that gave the Congress of the
United States the authority to determine the "civil rights
and political status" of the people of the Philippines.
Cabebe v. Acheson, 183 F.2d 795, 798 (9th Cir. 1950). "The
Spanish system, in force in the Philippines, gave the right
to the accused to be tried before judges, who acted in effect
as a court of inquiry, and whose judgments were notfinal
until passed in review before [a superior court] with a right
of final review . . . in the supreme court at Madrid." Dorr,
195 U.S. at 145. In 1902, Congress created the Philippine
Commission and authorized it "to exercise the powers of
government" in the Philippines (the "Act of 1902"). Kepner
v. United States, 195 U.S. 100, 116 (1904). That legislation
established certain requirements for any law subsequently
enacted by the Philippine Commission.5 In doing so,
Congress transplanted many of the protections of the Bill of
Rights to the Philippines. For example, one of the
provisions of the Act of 1902 prevented the Philippine
Commission from enacting any law "which shall deprive
any person of life, liberty, or property without due process
of law . . . ." Id. at 117. The Act of 1902 also provided for
certain guarantees including several guarantees for persons
accused of crime. These included a prohibition against
unreasonable searches and seizures, the right to counsel,
the right to testify in one's own behalf, as well as the right
_________________________________________________________________

5. The Independence of the Philippines was later authorized under the
Philippine Independence Act of 1934, 48 Stat. 456 that provided for "the
complete independence of the Philippine Islands" within ten years from
enactment of that legislation.

                               10
to refrain from doing so, and a prohibition against being
"twice put in jeopardy of punishment." Id. at 118.

In Kepner, an attorney in the Philippines was charged
with embezzlement, tried before a judge without a jury, and
acquitted. However, the United States appealed to the
Supreme Court of the Philippines which reversed, found
Kepner guilty, and sentenced him to a term of
imprisonment. Kepner appealed to the United States
Supreme Court arguing that the appeal following his
acquittal subjected him to double jeopardy in violation of
the laws governing the Philippines as well as the United
States Constitution. The government argued that the
prohibition against double jeopardy in the Act of 1902, and
the subsequent limitations that had been imposed by the
Philippine Commission had to be interpreted in context
with the system of law that prevailed before Spain ceded
the islands to the United States. Under that law, no
jeopardy attached in a criminal prosecution "until there
had been a final judgment in the court of last resort." Id. at
121. The lower courts were deemed mere "examining
courts, having preliminary jurisdiction, and the accused
was not finally convicted or acquitted until the case had
been passed upon in the audiencia, or supreme court,
whose judgment was subject to review in the supreme court
at Madrid . . . . The trial was regarded as one continuous
proceeding." Id.

The Court concluded that Congress intended to adopt "a
well-known part of the fundamental law of the United
States, and to give much of the beneficent protection of the
Bill of Rights to the people of the Philippine Islands . . . ."
Id. at 122. The Court noted that the President had
instructed the Philippine Commission to "engraft" "some . .
of the essential principles of American constitutional
jurisprudence . . . upon the law of [the Philippines]." Id. at
122. The President had charged:

       the Commission should bear in mind . . . that there are
       certain great principles of government which have been
       made the basis of our governmental system, which we
       deem essential to the rule of law and the maintenance
       of individual freedom, . . . that there are also certain
       practical rules of government which we have found to

                               11
       be essential to the preservation of these great
       principles of liberty and law, and that these principles
       . . . must be established and maintained in their
       islands for the sake of their liberty and happiness,
       however much they may conflict with the customs of
       laws or procedure with which they may be familiar. .. .
       Upon every . . . branch of the government of the
       Philippines, therefore, must be imposed these
       inviolable rules: That no person shall be deprived of
       life, liberty or property without due process of law. . .

Id. at 123 (internal quotation marks omitted). The Court
then listed certain guarantees that it believed had to be
included in the notion of "due process" regardless of the
customs of the people in the Philippines. These included
the right to speedy and public trial, the right to be informed
of the nature of any accusation, and to confront one's
accusers, and the right to counsel. The Court then held
that the concept of double jeopardy guaranteed in the
Philippines must be interpreted in view of the English
common law and, under that system, jeopardy attached at
the first trial. Thus, the accused could not be retried for the
same offense following acquittal.

The same day that the Court decided Kepner, it decided
Dorr. There, the issue was whether, "in the absence of a
statute expressly conferring the right, trial by jury was a
necessary incident of judicial procedure in the Philippines."
Id. The Court stated the issue as follows:

       Must Congress, in establishing a system for trial of
       crimes and offenses committed in the Philippine
       Islands, carry to their people by proper affirmative
       legislation a system of trial by jury?

Id. at 143. The Court reviewed the history of the Philippines
and noted several features of the Spanish legal system that
governed those islands before they were ceded to the United
States. The Court reasoned that, even though the
Constitution contained no express provision as to the
nature of the rights, if any, that Congress must extend to
territories that the United States seeks to govern under its
treaty power, "there may nevertheless be restrictions of so
fundamental a nature that they cannot be transgressed,

                               12
although not expressed in so many words in the
Constitution." Id. at 147. The Court concluded that there
were such rights, but the right to a jury trial was not
among them.

       If the right to trial by jury were a fundamental right
       which goes wherever the jurisdiction of the United
       States extends, or if Congress, in framing laws for
       outlying territory belonging to the United States, was
       obliged to establish that system by affirmative
       legislation, it would follow that, no matter what the
       needs or capacities of the people, trial by jury, and in
       no other way, must be forthwith established . . .

Id. at 148. The Court held that   the Constitution "does not
require [Congress] to enact for   ceded territory . . . a system
of laws which shall include the   right of trial by jury, and
that the Constitution does not,   without legislation, and of
its own force, carry such right   to territory so situated." Id.
at 149.

We conclude that Congress did not intend a contrary
result when it enacted 21 U.S.C. S 851. Rather, as the
district court concluded, Congress intended only to ensure
fundamental fairness by excluding any conviction that was
obtained in a manner inconsistent with concepts of
fundamental fairness and liberty endemic in the Due
Process Clause of the Fifth Amendment of the United States
Constitution.

As Justice Harlan noted in his dissent in Duncan v.
Louisiana, 391 U.S. 145, 177 (1968), "[t]he Bill of Rights is
evidence, at various points, of the content Americans find
in the term `liberty' and of American standards of
fundamental fairness." Thus, " `Due Process' expresses the
requirement of `fundamental fairness,' " Lassiter v.
Department of Soc. Serv. of Durham County, North Carolina,
452 U.S. 18, 24 (1981) (inquiring into whether the Due
Process Clause required appointed counsel for litigant in
civil litigation). In Lassiter, the Court stated "[a]pplying the
Due Process Clause is therefore an uncertain enterprise
which must discover what `fundamental fairness' consists
of in a particular situation by first considering any relevant
precedents and then by assessing the several interests that
are at stake." Id.

                                  13
In Duncan, the Supreme Court examined the right of a
jury trial under the United States Constitution.

       The question has been asked whether a right is among
       those fundamental principles of liberty and justice
       which lie at the base of all our civil and political
       institutions; whether it is basic in our system of
       jurisprudence; and whether it is a fundamental right,
       essential to a fair trial.

Duncan, 391 U.S. at 148-9 (1968) (internal quotation marks
and citations omitted). The Court held that the right to a
jury trial for one accused of a serious crime is so
fundamental to our system of liberty that it is incorporated
into the Due Process Clause of the Fourteenth Amendment,
and therefore applicable to state prosecutions. In doing so,
the Court briefly commented upon the historical
importance of that right to the "Founding Fathers" and the
pervasive extent to which the right had been incorporated
into the constitutions of the various states. The Court noted
"[e]ven such skeletal history is impressive support for
considering the right to jury trial in criminal cases to be
fundamental to our system of justice, an importance
frequently recognized in the opinions of this Court." Id. at
153. The Court reasoned that the jury trial functioned in
tandem with an independent judiciary to protect against
abuses by the state. The interposition of a jury of lay
persons between the accuser, and the accused checked
abuses of power.

        The guarantees of jury trial in the Federal and State
       Constitutions reflect a profound judgment about the
       way in which law should be enforced and justice
       administered. A right to jury trial is granted to criminal
       defendants in order to prevent oppression by the
       Government. Those who wrote our constitutions knew
       from history and experience that it was necessary to
       protect against unfounded criminal charges brought to
       eliminate enemies and against judges too responsive to
       the voice of higher authority.

Id. at 155-6. Thus, the Court concluded that the concept of
Due Process under the Fourteenth Amendment included
the right to a jury trial for serious crimes.

                               14
Kole's argument is bottomed upon an assumption that
Congress could not have intended to allow a conviction that
was obtained in violation of such a fundamental right to
enhance a subsequent sentence in a court of the United
States. However, this position overlooks the purpose behind
S 960 as well as the fact that jury trials, though
fundamental to the system of justice established under the
United States Constitution, are nevertheless relatively
unique to that system.

       Few would be so narrow or provincial as to maintain
       that a fair and enlightened system of justice would be
       impossible without [trial by jury]. . . The question thus
       is whether given this kind of system a particular
       procedure is fundamental--whether, that is, a
       procedure is necessary to an Anglo-American regime of
       ordered liberty.

Duncan, 391 U.S. at 149, n.14. Although the Court
answered that question in the affirmative as applied to the
American legal system, it left no doubt that other societies
may well be able to fashion a system with no juries that is
fundamentally fair to the accused, thus comporting with
our concept of due process.

E. Kole's Prosecution in the Philippines Was
Consistent With The Concept of Fundamental Fairness
Contained In The Fifth Amendment's
Due Process Clause

In 1994, the Philippine Supreme Court issued an opinion
which summarizes the rights of the accused under the
Philippine legal system. In People of the Philippines v.
Lopez, 1994 Philippine S.Ct. Lexis 5145 (1994), four men
charged with armed robbery and murder were tried before
a judge. During the trial, the prosecution introduced an
eyewitness who identified each of the accused, and
confessions that had been signed by each of them. The four
defendants offered alibi witnesses in their defense, and the
trial court acquitted three of the four. The convicted
defendant appealed. The Philippine Supreme Court reversed
that conviction and ordered that an order of acquittal be
entered in his behalf. The Court's analysis illustrates the

                               15
extent to which a criminal defendant in the Philippines is
afforded protection similar to those afforded under our own
legal system. We refer to it at length as it is of substantial
assistance to our inquiry into whether Kole's conviction in
the Phillipines was consistent with concepts of fundamental
fairness that are implicated by 21 U.S.C. S 851.

The Court in Lopez noted that the trial court had
disregarded the alibi testimony of all four defendants, but
nevertheless properly acquitted three of the four because
they were "merely present." The Court stated:

       from the inception of the crime to its final termination,
       they were merely bystanders and did not participate in
       one way or another in the commission thereof . . . . The
       mere knowledge, acquiescence or approval of the act
       without cooperation or agreement to cooperate is not
       enough to constitute one a party to a conspiracy.

Lopez, 1994 Philippine S. Ct. Lexis at *16. The Court also
examined the signed confessions that the prosecution
introduced and concluded that those confessions should
not have been used against any of the accused as they
appeared to have been coerced, and obtained without
benefit of counsel. The Court rejected the prosecution's
claim that any such infirmity was cured because the
confessions had been witnessed and counter-signed by a
municipal attorney. The Court reasoned:

       From the records, it can be gleaned that when
       accused-appellant Bandula and accused Dionanao
       were investigated . . . they had no counsel present . . .
       And counsel who supposedly assisted both accused
       was . . . the Municipal Attorney of [the village]. On top
       of this, there are telltale signs that violence was used
       against the accused. Certainly, these are blatant
       violations of the Constitution [of the Philippines] which
       mandates in Sec. 12, Art. III, that:

        (1) Any person under investigation . . . shall have the
       right to be informed of his right to remain silent and to
       have competent and independent counsel preferably of
       his own choice. If the person cannot afford the services
       of counsel, he must be provided with one. These rights

                                16
       cannot be waived except in writing and in the presence
       of counsel.

        (2) No torture, force, violence, threat, intimidation or
       any other means which vitiate the free will shall be
       used against him. . . .

        (3) Any confession or admission obtained in violation
       . . . hereof shall be inadmissible in evidence against
       him.

Id. at *19-*20. The Court then elaborated upon the right to
counsel, the right to remain silent, and the duty of
arresting officers under the Philippine Constitution.

       At the time a person is arrested, it shall be the duty of
       the arresting officer to inform him of the reason for the
       arrest and he must be shown the warrant of arrest, if
       any. He shall be informed of his constitutional right to
       remain silent and to counsel, and that any statement
       he might make could be used against him. The person
       arrested shall have the right to communicate with his
       lawyer, relative, or anyone he chooses by the most
       expedient means . . . . It shall be the responsibility of
       the arresting officer to see to it that this is
       accomplished. No custodial investigation shall be
       conducted unless it be in the presence of counsel . . . .
       The right to counsel may be waived but the waiver
       shall not be valid unless made with the assistance of
       counsel . . . .
       [T]he right to counsel attaches upon the start of an
       investigation, . . . . Hence, if there is no counsel at the
       start of the custodial investigation . . . any statement
       elicited from the accused is inadmissible in evidence
       against him. . . .

Id., at *21-2. The Court ruled that the prosecution had not
met its burden of proving that the statements of the
accused were properly obtained and therefore the
statements should not have been admitted into evidence.
The Court rejected the prosecution's argument that the
propriety of the statements was corroborated by the
signature of the village attorney who had apparently been
present when the statements were taken.

                               17
       The Constitution also requires that counsel be
       independent. Obviously he cannot be a special counsel,
       public or private prosecutor, counsel of the police, or a
       municipal attorney whose interest is admittedly
       adverse to the accused. . . . Attorney Zerna assisted
       [the defendants] when they executed their respective
       extrajudicial confessions . . . . As legal officer of the
       municipality, he provides legal assistance and support
       to the mayor . . . . He is no better than a . . .
       prosecutor who cannot represent the accused during
       custodial investigations.

Id. at *24. The Court also noted that the circumstances
under which the statements had been taken suggested that
the statements had been coerced.

       For, why did the investigators not inform the accused
       of their right to remain silent and to have competent
       and independent counsel . . . even before attempting to
       elicit statements that would incriminate them? Why did
       the investigators not advise the accused that if they
       could not afford the services of counsel they could be
       provided with counsel free of charge? . . . How did
       accused Sedigo get his `black eye' . . .? How and why
       did accused-appellant . . . suffer a fractured rib?
       We cannot close our eyes to these unanswered
       questions. This Court is greatly disturbed with the way
       the accused were treated or mistreated. In fine, we
       cannot accept the extrajudicial confessions of the
       accused and use the same against them or any of
       them. Where there is doubt as to their voluntariness,
       the same must be rejected in toto.

Id. at *25. Accordingly, the Court declared that the trial
court improperly used the confessions against the
appellant. The Court then examined the remaining evidence
and concluded that it was not sufficient to convict the
appellant. Even though the prosecution had produced the
testimony of an eyewitness who identified the appellant, the
Philippine Supreme Court ruled that the record did not
establish sufficient opportunity to observe, nor sufficient
indicia of reliability to convict based solely upon that
identification. The Court ruled "the prosecution is left with
nothing but the alleged positive identification of appellant

                               18
. . . by witness Salva. But this by itself does not measure
up to the required standard of moral certainty." Id. at 26.6
The Court ordered that a judgment of acquittal be entered.
In doing so, the court left no doubt about the importance
of fundamental liberty under the Philippine legal system.
The Court stated:

       [I]t is unfortunate that the investigators who are sworn
       to do justice to all appear to have toyed with the
       fundamental rights of the accused. Men in uniform
       who are sworn to do justice to all appear to have toyed
       with the fundamental rights of the accused. Men in
       uniform do not have blanket authority to arrest
       anybody they take fancy on, rough him up and put
       words into his mouth. There is a living Constitution
       which safeguards the rights of an accused, a penal law
       which punishes maltreatment of prisoners and a
       statute which penalizes failure to inform and accord
       the accused his constitutional rights.

Id. at 27-8.

Clearly, the legal system of the Philippines seeks to guard
the individual against official tyranny and protect individual
liberty. Congress could not have intended S 851 to be used
to exclude criminal convictions obtained under such a
system merely because that sovereign provides a method of
protecting fundamental liberties that does not include the
right to trial by jury.

       It would . . . be a form of cultural imperialism for the
       United States to insist that it would not countenance,
       for U.S. purposes, recognition of a foreign criminal
       judgment which came from a legal culture which did
       not employ the jury.

United States v. Moskovits, 784 F. Supp. 193, 196 (E.D. Pa.
1992) (Pollak, J.).
_________________________________________________________________

6. Though the Court spoke of proof to a "moral certainty" it does not
appear that the standard of proof needed to convict an accused in the
Philippines differs from the "reasonable doubt" standard. The Court also
stated "[w]ith the failure of the prosecution to prove the guilt of
accused-
appellant . . . beyond reasonable doubt, acquittal should follow as a
matter of course." Id. at 28 (emphasis added).

                               19
Here, Judge Felix's opinion reflects the judicial
independence and respect for the rights of the accused that
the Philippine Supreme Court speaks of in Lopez. Judge
Felix noted that the police who searched Kole's apartment
did not have a search warrant, but allowed the seized drugs
into evidence because the owner of the condominium
complex gave police written consent to search, and because
police feared that the suspects were about to leave the
jurisdiction. App. at 94. However, even after admitting the
physical evidence, the trial judge was so skeptical of much
of the testimony of the police and their informant, that he
acquitted four of the defendants who were tried with Kole.
App. at 106 ("[t]he act imputed by the prosecution on the
group . . . is very much not in accord with the natural
course of things and human experiences, so that it evokes
serious doubt on the truth of the offense charged.").

However, despite his skepticism the trial judge did accept
some of the prosecution's testimony stating that "[the
informant's] testimony was not completely discredited."
App. at 107. In doing so, he applied the maxim so familiar
to our own system of jurisprudence that a "witness may be
disbelieved in some facts but may be believed in other facts.
. . ." Id. He also noted that the mere presence of some of the
accused did not establish their guilt. App. at 110. However,
he concluded that the government had met its burden of
proof as to the guilt of Kole, and Ike, because they were in
"full control and management" of the room where the
heroin was found, and because he did not accept their
explanation of their flight when the police entered their
apartment. App. at 107, 108.

Judge Felix's opinion reflects the kind of careful,
searching analysis of evidence that one would expect from
a trial judge in the United States. The fact that Kole was
denied a jury trial under the jurisdiction where she
obtained her "prior conviction for a felony drug offense" in
no way undermines her conviction there.

The text of 21 U.S.C. S 960 reflects a congressional intent
to significantly increase sentences for drug offenders with
prior convictions for felony drug offenses. Repeat drug
offenders are clearly more culpable than first time
offenders, and the enhanced sentences required under

                               20
S 960 serve to incapacitate and punish those who have
continued their involvement with drug trafficking despite
prior prosecution. Given Congress' concern, it would not be
logical to limit the enhancement to those persons who had
been convicted of a prior drug felony (or its equivalent) only
in the United States. This is particularly true in view of the
conduct included under S 960. 21 U.S.C. S 960(a)(1) states
"any person who . . . knowingly or intentionally imports or
exports a controlled substance . . . shall be punished as
provided in subsection (b)." (emphasis added). We do not
think that Congress enacted a law that was intended to
reach persons involved in international drug trafficking and
then limited enhanced penalties to those persons who had
previously been convicted in a court in the United States.
That is inconsistent with Congress' attempt to reach those
involved in importing or exporting controlled substances.
Yet, since the United States Constitution does not apply to
any foreign sovereign, that would be the result of adopting
Ms. Kole's argument.

F. Ineffective Assistance of Counsel

Kole also argues that use of the Philippine conviction
violated her Sixth Amendment right to counsel because her
trial attorney labored under an irreconcilable conflict of
interest that prevented him from effectively representing
her. In Strickland v. Washington, 466 U.S. 668, 687 (1984),
the Court established a two-part test for evaluating a claim
of ineffective assistance of counsel and we apply it here.
Under Strickland, a defendant must show that "counsel's
representation fell below an objective standard of
reasonableness." Id. If defendant is able to make that
showing, he or she must then establish that counsel's
dereliction prejudiced the defendant. Where the claim rests
upon an alleged conflict of interest, defendant"must
identify something that counsel chose to do or not do, as to
which he had conflicting duties, and must show that the
course taken was influenced by that conflict." Vance v.
Lehman, 64 F.3d 119, 124 (3d Cir. 1995) (citing Burger v.
Kemp, 483 U.S. 776 (1987); United States v. Gambino, 788
F.2d 938 (3d Cir. 1986). In other words, the defendant
must "show some actual conflict of interest that adversely

                               21
affected his counsel's performance in order to prevail."
United States v. Preston, 910 F.2d 81, 88 (3d Cir. 1998)
(citing Sullivan v. Cuyler, 723 F.2d 1077 (3d Cir. 1983)).

Here, Kole alleges that the joint representation created a
simultaneous duty to represent Ike that prevented her
defense attorney from distinguishing between her
involvement and his. See Appellant's Br. at 26. Her
argument suggests that her attorney could have attempted
to equate Kole's role with that of the codefendants who were
acquitted rather than being lumped with her fiance.
However, "hindsight rationalization alone cannot support a
claim of ineffective assistance of counsel." United States v.
Auerbach, 745 F.2d 1157, 1162 (8th Cir. 1984). In
Auerbach, the court held that joint representation of a
father and son charged with various firearms offenses
resulted in ineffective assistance of counsel. The joint trial
allowed the prosecution to elicit testimony of the son's prior
felony conviction, and "exacerbated a situation in which the
sins of the son were visited on the father." Id. at 1161. The
court concluded that "[t]he record . . . reveal[ed] that
counsel was in the dilemma of either pursuing or
abandoning defenses and tactics that would help one
defendant but hurt the other." Id. The record of Kole's
conviction in the Philippines does not reflect a similar
dilemma. Kole's attorney mounted a vigorous attack on the
credibility of the police, and informant Williams. As noted
above, he was able to raise serious questions as to the
credibility of the prosecutor's witnesses. In fact, the trial
judge did not credit substantial portions of the
prosecution's case.

Moreover, the appendix filed in this court contains a
"Demurrer to Evidence" that defense counselfiled following
trial, and prior to Judge Felix issuing his opinion. See
Appendix 112-135. In that demurrer Kole's attorney argues
that all of the physical evidence must be suppressed based
upon the warrantless search, the lack of credibility of the
prosecution witnesses including the police, the chemist's
expertise and bias, Jacqueline Williams' open case with the
police, and the likelihood of her bias based upon asserted
promises that the case would be dismissed if she
cooperated against Kole. After arguing that the physical

                                22
evidence should be suppressed, and attacking the
remaining evidence, counsel argued:

       There being no independent object evidence for the
       prosecution . . . the prosecution is left with no other
       evidence to prove the guilt of the accused other than
       the incredible, hearsay and inconsistent testimonies
       which are insufficient to sustain a judgment of
       conviction.

App. at 131 (emphasis in original).

There is no irreconcilable tension in defense counsel's
strategy. Indeed, Kole's attorney would have been hard
pressed to draw distinctions between her involvement and
Ike's while arguing that the police and Williams were lying
about finding evidence inside of their apartment. As noted
above, "an actual conflict of interest occurs when counsel
cannot use his best efforts to exonerate one defendant for
fear of implicating the other." United States v. Unger, 665
F.2d 251, 255 (8th Cir. 1981). Kole argues that her
situation is similar to that of the appellant in Unger. See
Appellant's Br. at 27. We disagree. The defense strategy
used by Kole's trial counsel did not prevent him from using
his best efforts to represent Kole for fear of implicating Ike.

Although Kole asserts her Philippine attorney could have
used a different strategy had he not also represented Ike,
she has not met her burden of proving that she was
prejudiced by the joint representation. Moreover, we do not
think that the strategy actually adopted compromised her
defense. Since Kole and Ike occupied the apartment and
had equal access to the suitcase with the heroin, a
coordinated attack on the prosecution's cooperating
witness, and upon the police was strategically sound. This
is not the situation presented in Unger. There, defense
counsel was appointed to jointly represent a husband and
wife accused of kidnaping. They plead guilty, and defense
counsel attempted to represent both at sentencing.
Thereafter, the wife collaterally attacked her sentence under
21 U.S.C. S 2255. The court of appeals ruled that Crystal
Unger had been denied effective assistance of counsel at
her sentencing because her husband had provided a
statement admitting that he was primarily responsible for

                               23
causing the infant's injuries. Obviously, counsel could not
exploit that concession on behalf of Mrs. Unger while also
representing her husband. Ms. Kole's situation is a far cry
from the actual conflict in Unger. It is the particular
circumstances of a joint prosecution of husband and wife,
rather than the fact of the relationship, that creates any
conflict of interest between spouses in a joint prosecution.
Although the circumstances could be such that a conflict of
interest would flow from the relationship of husband and
wife, this is not such a case. Kole has not established such
circumstances existed when she was convicted in the
Philippines. Judge Felix did conclude that Kole and Ike had
joint control over the apartment, and joint access to the
heroin inside of it, but the conflict of interest Kole
complains of is more a creature of hindsight than of record.

G. Due Process Violation

Kole also alleges that Judge Felix's findings of fact, and
credibility determinations somehow denied her due process
of law thus bringing that conviction under the prohibition
of 18 U.S.C. S 851(c)(2). She argues that the record does not
support Judge Felix's conclusion that the blue suitcase
containing the heroin was found in the bedroom she shared
with Ike. She also attacks various findings Judge Felix
made based upon his credibility determinations. See
Appellant's Br. at 39-44.

A sentencing judge denies a defendant the due process of
law when he or she specifically considers "misinformation
of a constitutional magnitude" in fashioning a sentence.
United States v. Spiropoulos, 976 F.2d 155. 163 (3rd Cir.
1992). The trial judge obviously credited enough of the
testimony of Ms. Williams to conclude that the heroin was
found in Kole's apartment. That conclusion is corroborated
by the testimony of the police, and even by Kole's flight
following the police entry into her apartment because the
court rejected Kole's explanation of that flight.7
_________________________________________________________________

7. We note the testimony as to the location of the heroin was such that
Kole's attorney assumed that fact was established if the prosecution
witnesses were believed. He argued that "Sr. Insp. Lazo and Ms. Williams

                               24
       Factual matters considered as a   basis for sentence
       must have some minimal indicium   of reliability beyond
       mere allegation and must either   alone or in the context
       of other available information,   bear some rational
       relationship to the decision to   impose a particular
       sentence.

United States v. Matthews, 773 F.2d 48, 51 (3rd Cir. 1985).
Measured against this standard, Kole's due process
argument fails whether her challenge is based upon
inaccurate information that Judge Felix relied upon, or the
district court's reliance upon the challenged Philippine
conviction.

Kole's due process argument is really little more than a
challenge to Judge Felix's credibility determinations.
Credibility determinations are the unique province of a fact
finder, be it a jury, or a judge sitting without a jury. Where
the record supports a credibility determination, it is not for
an appellate court to set it aside. See Hoots v.
Pennsylvania, 703 F.2d 722 (3d Cir. 1983) (it is the
"responsibility of the appellate court to accept the ultimate
factual determination of the fact finder unless that
determination either is completely devoid of minimum
evidentiary support displaying some hue of credibility or
bears no rational relationship to supportive evidentiary
data."). Judge Felix carefully considered the testimony
before him. Although Kole argues otherwise, it is clear that
her Philippine prosecution comported with the minimum
standards of due process as reflected in the thorough and
incisive opinion of the district court.

III.

For the reasons set forth above, we affirm the district
court's imposition on Kole of an enhanced sentence of
twenty years under 21 U.S.C. S 960(b)(1)(A).
_________________________________________________________________

testified . . . the police . . . went inside the master's bedroom which
was
opened and saw people squatting and transferring heroin . . . which
testimonies are almost identical in the use of words and substance,
thereby introducing suspicion that such testimonies were coached
and/or rehearsed in all material points." App. at 129 (emphasis in
original).

                               25
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               26
