
USCA1 Opinion

	




          April 7, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 92-2087                                   CHARLES D. LEMA,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                                     ERRATA SHEET            The opinion  of this  Court issued March  3, 1993,  is amended  as        follows:            Page 9, line 11 of text, should  read:  DiSalvo, 726 F. Supp. 596,                                                    _______        598 . . .         March 3, 1993       UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2087                                   CHARLES D. LEMA,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                   [Hon. Hector M. Laffitte,* U.S. District Judge]                                              ___________________                                 ____________________                                        Before                          Torruella and Cyr, Circuit Judges,                                             ______________                          and Bownes, Senior Circuit Judge.                                      ____________________                                                                            ____________________            Christopher W. Dilworth for appellant.            _______________________            F.  Mark Terison,  Assistant  United States  Attorney,  with  whom            ________________        Richard S. Cohen, United States Attorney, was on brief for appellee.        ________________                                 ____________________                                    ____________________        *Of the District of Puerto Rico, sitting by designation.                                    March 3, 1993                                 ____________________            CYR, Circuit  Judge.   Charles Donald Lema,  convicted of  various            CYR, Circuit  Judge.                 ______________        drug charges, appeals the dismissal of his petition for postconviction        relief  under 28 U.S.C.    2255.   Lema asserts that  his attorney was        ineffective, his  trial was  tainted by prosecutorial  misconduct, and        his sentencing proceeding was infected by factual error.  We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________            In  1989,  following a  federal  undercover  operation,  Lema  was        indicted  on two counts of conspiring with Raymond Souza to distribute        cocaine to  Alex Hood, a DEA  informant, and on two  related counts of        aiding and abetting Souza's cocaine distributions.  The first brace of        counts charged that on December 15, 1988, Lema aided and abetted Souza        in the sale of one kilogram of cocaine to Hood [the "December transac-        tion"].  The second brace of counts charged that on  January 25, 1989,        Lema,  Souza, and  a third  man, Alberto  Monsalve-Zapata, sold  three        kilograms of  cocaine to Hood  and another  undercover agent,  Michael        Bansmer, as  part of  a ten-kilogram  transaction negotiated by  Souza        [the  "January transaction"].   The government  does not  dispute that        Souza  took the most active  role in arranging  and consummating these        transactions; however, it suggests that Lema's culpability was reason-        ably inferable from his presence, with Souza, throughout both transac-        tions,  and from certain telltale  statements made in  the presence of        undercover officers,  indicating Lema's  knowing participation in  the        distribution scheme.2            Lema pleaded not guilty  to all charges.   Prior to trial, he dis-        charged  his  court-appointed  counsel  and  retained  David  Pomeroy,        Esquire.   Lema  met  with  Pomeroy several  times,  and  emphatically        expressed his desire to testify  at trial.3  In furtherance of  Lema's        stated desire to testify, Pomeroy filed a motion in limine to preclude        cross-examination about  Lema's prior  criminal conviction for  inter-        state transportation of  stolen property.   The motion  was denied  on        August 7, 1991.            Trial began the  next day.  At  trial, the defense contended  that        though Lema  may have been at  the scene of the  drug transactions, he        neither actively participated in, nor was he aware of, Souza's cocaine        dealings  on those occasions.  The government's case was based largely        on the testimony of Hood and Bansmer, who testified to Lema's presence        at the  scene of the drug  exchanges.  The purport  of their testimony        was that it would have been  virtually impossible for Lema not to have        known that Souza was conducting drug  transactions on those occasions.        At the close of the government's case, Lema conferred with Pomeroy and                                    ____________________        2For a fuller description of Lema's involvement in these transactions,        and his subsequent trial, see United States v. Lema, 909 F.2d 561 (1st                                      _____________    ____        Cir. 1990).        3Lema  also recommended that Pomeroy call  three witnesses to corrobo-        rate his  story:  Souza,  Ann Marie  Burke, and Patricia  Lyons.   See                                                                           ___        infra at pp. 12-17.         _____                                          3        again expressed his desire  to testify.  Pomeroy no  less emphatically        advised Lema  that the government's case was weak and that    in light        of the denial of the motion in limine    Lema's testimony would expose        him to  cross-examination concerning his prior  conviction, would lose        the sympathy  of the jury, and therefore would be unwise.  An argument        ensued,  witnessed  by  courtroom  observers; Lema  did  not  testify.        Pomeroy  then recalled one  witness, a DEA agent  who had attempted to        record the  December  drug transaction  but failed  to capture  Lema's        voice on tape.  The defense rested.            At closing  argument, the prosecutor  acknowledged that Lema  said        little during the course of  the two drug transactions, but  urged the        jury  to infer Lema's knowledge  of Souza's drug  dealings, and Lema's        intent to participate in  the drug distribution scheme, from  the fact        that  Lema had been present  and remained silent  during both transac-        tions.  Lema was convicted on all counts.            Thereafter, Lema, acting pro se, moved  for a new trial,  accusing                                     ___ __        Pomeroy of ineffective assistance.   At Lema's request, Pomeroy  with-        drew,  and successor counsel was  appointed to represent  Lema at sen-        tencing.   The district court dismissed Lema's motion for new trial as        untimely.   The  court sentenced  Lema to  135 months  in prison.   We        affirmed Lema's conviction on direct appeal.  See note 1 supra.                                                      ___        _____            Undaunted,  Lema moved  for  vacation  of sentence  and new  trial        under 28 U.S.C.   2255.   The district court summarily denied  four of        Lema's habeas claims but reserved judgment on the fifth, which alleged        that  Pomeroy prevented  him from  testifying.   After  an evidentiary                                          4        hearing,  a  magistrate-judge recommended  denial  of the  ineffective        assistance claim.   The  district court thereupon  denied the  section        2255 petition in its entirety.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________            This appeal has two  parts:  a  formal appeal, filed by  appellate        counsel,  asserting ineffective  assistance  by trial  counsel; and  a        supplemental pro se brief,  raising claims of prosecutorial misconduct                     ___ __        and sentencing error.  We address each in turn.        A.  Ineffective Assistance of Counsel.        A.  Ineffective Assistance of Counsel.            _________________________________            The Sixth  Amendment guarantees criminal  defendants the right  to        effective assistance of  counsel.  Strickland v.  Washington, 466 U.S.                                           __________     __________        668, 687 (1984).  But "[t]he Constitution  does not guarantee a defen-        dant a  letter-perfect defense  or a  successful defense; rather,  the        performance standard is that  of reasonably effective assistance under        the circumstances then obtaining."  United States v. Natanel, 938 F.2d                                            _____________    _______        302, 309-10 (1st Cir.  1991) (citation omitted), cert. denied,  112 S.                                                         _____ ______        Ct. 986 (1992).  A petitioner bears a very heavy burden on an ineffec-        tive assistance claim.   The  habeas court must  "evaluate the  [chal-        lenged] conduct  from counsel's perspective at  the time," Strickland,                                                                   __________        466 U.S. at 689, considering "the totality of the circumstances before        it," Perron v.  Perrin, 742 F.2d 669, 673 (1st  Cir. 1984), and making             ______     ______        "every effort . . . to eliminate the distorting effects of hindsight,"                                          5        Strickland, 466  U.S. at 689.   It "must indulge a  strong presumption        __________        that counsel's conduct falls within a wide range of reasonable profes-        sional assistance; that  is, the defendant must  overcome the presump-        tion that, under  the circumstances, the  challenged action 'might  be        considered sound trial strategy.'"  Id. (citation omitted).  Moreover,                                            ___        the  court must not only  find that defense  counsel's performance was        deficient, but that it  was so prejudicial as to  undermine confidence        in the  outcome of the trial,  see id. at 693-94,  and the fundamental                                       ___ ___        fairness of the result.  Lockhart  v. Fretwell, 61 U.S.L.W. 4155 (Jan.                                 ________     ________        25, 1993).            The  burden  is  on  the  petitioner  to  demonstrate  ineffective        assistance by  a preponderance of the  evidence.  See Myatt  v. United                                                          ___ _____     ______        States, 875 F.2d 8, 11 (1st Cir. 1989); United States  v. DiCarlo, 575        ______                                  _____________     _______        F.2d 952, 954 (1st Cir.), cert. denied,  439 U.S. 834 (1978).  Where a                                  _____ ______        petition  "(1) is  inadequate on  its face,  or (2)  although facially        adequate, is conclusively refuted as to the alleged facts by the files        and records of the  case," DiCarlo, 575 F.2d at 954, summary dismissal                                   _______                   _______ _________        is appropriate.  Moreover, "even a section 2255 petition predicated on        specific assertions of fact  allegedly supported in the record  may be        dismissed  summarily by the district court," Barrett v. United States,                                                     _______    _____________        965 F.2d 1184, 1186 (1st Cir. 1992), provided "the  district court can        . . . 'test'  the . . . allegations by assuming arguendo  their truth,                                                        ________        and  then assessing their sufficiency in light of the relevant consti-        tutional standards and the record."  Id., quoting Moran v.  Hogan, 494                                             ___          _____     _____                                          6        F.2d  1220, 1222 (1st Cir. 1974); see  also United States v. Butt, 731                                          ___  ____ _____________    ____        F.2d 75, 77 (1st Cir. 1984).            1                                                               .            1                                                               .            The Alleged Prevention of Lema's Testimony.            The Alleged Prevention of Lema's Testimony.            __________________________________________            Pomeroy  prevailed  in  the  argument over  whether  it  would  be        advisable for Lema to testify.   Lema now claims that Pomeroy's advice        in effect prevented Lema from  testifying, and amounted to ineffective                  _________        assistance of counsel,  see United  States v. Teague,  953 F.2d  1525,                                ___ ______________    ______        1532, 1534 (11th Cir.) (en banc), cert. denied, 113 S. Ct. 127 (1992).                                          _____ ______        The government  responds that Lema knowingly  and voluntarily accepted        Pomeroy's advice, and must, in effect, live with the consequences.            a.The Right to Testify.            a.The Right to Testify.              ____________________            We  assume, without  deciding, that  the constitutional  right  to        testify in one's  defense is "fundamental," and,  as such, may not  be        waived  by counsel on the defendant's behalf, regardless of the sound-        ness  of any strategic or tactical considerations.4  It is unnecessary                                    ____________________        4The right to testify in one's defense has been recognized  as "funda-        mental" by the Supreme Court in dictum on several occasions.  See Rock                                                                      ___ ____        v. Arkansas, 483 U.S. 44, 53 n.10 (1987) ("[o]n numerous occasions the           ________        Court has  proceeded on the premise that the right to testify on one's        own behalf in defense to a criminal  charge is a fundamental constitu-        tional right"); id. at 52 (finding right "[e]ven more fundamental to a                        ___        personal  defense than  the right  of self-representation");  see also                                                                      ___ ____        Jones v.  Barnes, 463  U.S.  745, 751  (1983)  ("the accused  has  the        _____     ______        ultimate authority to make certain fundamental decisions regarding the        case, as  to whether to plead guilty, waive  a jury, testify in his or        her own behalf, or take an appeal"); Wainwright v. Sykes, 433 U.S. 72,                                             __________    _____        93 n.1 (1977) (Burger, C.J., concurring) ("[o]nly such basic decisions        as whether  to plead guilty,  waive a  jury, or testify  in one's  own        behalf are ultimately for the accused to make"); cf. Nix v. Whiteside,                                                         ___ ___    _________                                          7        to address the  underlying issue, as we conclude that  Lema, on advice        of counsel, knowingly and  voluntarily, if reluctantly, refrained from        testifying in his own defense.            Unaccompanied  by coercion,  legal advice  concerning exercise  of        the right to testify infringes no right, see Teague, 953 F.2d at 1534-                                                 ___ ______        35; Rogers-Bey, 896 F.2d  at 283, but simply discharges  defense coun-            __________        sel's ethical  responsibility  to  the accused.    See  ABA  Standards                                                           ___        Relating to the Administration of Criminal Justice, Compilation p. 127        (1974) ("the decisions which are to  be made by the accused after full        consultation with counsel  are . . . (iii) whether  to testify in  his        own  behalf.").  The difficult  line courts must  draw between earnest        counseling  and overt  coercion is  guided by  several considerations,        including:  (1)  whether the defendant  knew about his  constitutional        right to  testify, and if not, whether he was informed by counsel, see                                                                           ___                                    ____________________        475  U.S. 157, 164 (1986) ("[a]lthough this Court has never explicitly        held that a  criminal defendant has a due process  right to testify in        his own behalf . . . the right has long been assumed").  Virtually all        circuits which have considered  the issue since 1987 have  reached the        same  conclusion.   See,  e.g., Teague,  953  F.2d at  1531-32; United                            ___   ____  ______                          ______        States v.  McMeans, 927 F.2d 162 (4th  Cir. 1991); Rogers-Bey v. Lane,        ______     _______                                 __________    ____        896  F.2d 279  (7th Cir. 1990),  cert. denied,  111 S.  Ct. 93 (1990);                                         _____ ______        United States v.  Martinez, 883 F.2d 750, 754 (9th Cir. 1989); vacated        _____________     ________                                     _______        on other  grounds, 928  F.2d 1470  (9th Cir.  1991); United  States v.        __ _____  _______                                    ______________        Bernloehr, 833 F.2d 749 (8th Cir. 1987);  United States v. Curtis, 742        _________                                 _____________    ______        F.2d  1070, 1076 (7th Cir. 1984),  cert. denied, 475 U.S. 1064 (1986);                                           _____ ______        United States v. Bifield,  702 F.2d 342  (2d Cir.), cert. denied,  461        _____________    _______                            _____ ______        U.S. 931 (1983);  see generally Marjorie  Rifkin, The Criminal  Defen-                          ___ _________                   ____________________        dant's  Right to  Testify:   The Right to  Be Seen  but not  Heard, 21        __________________________________________________________________        Colum. Human Rts. L. Rev.  253 (1989).  Although this court  has never        formally considered  the issue,  Judge Reinhardt, sitting  by designa-        tion, described the testimonial right as "fundamental" in a concurring        opinion  in United  States v.  Nivica, 887 F.2d  1110, 1128  (1st Cir.                    ______________     ______        1989), cert. denied, 494 U.S. 1005 (1990).               _____ ______                                          8        Teague, 953 F.2d at 1533 ("defense counsel bears the primary responsi-        ______        bility for  advising the defendant of  his right to testify  or not to        testify");  see also  Bernloehr,  833 F.2d  at  751 ("the  defendant's                    ___ ____  _________        waiver of his  right to testify,  like his  waiver of other  constitu-        tional  rights, must  be  made voluntarily  and  knowingly"); (2)  the        competence and  soundness of defense counsel's  tactical advice, i.e.,                                                                         ____        whether counsel presents the  defendant with sufficient information to        permit  a "meaningful" voluntary waiver  of the right  to testify, see                                                                           ___        United States v.  Poe, 352 F.2d 639, 640-41 (D.C.  Cir. 1965) (finding        _____________     ___        deprivation  of  fair trial  where  counsel  misinformed defendant  of        consequences  of taking the stand);  United States v.  DiSalvo, 726 F.                                             _____________     _______        Supp. 596, 598 (E.D. Pa. 1989)  (holding that defendant had not waived        testimonial right where counsel failed to ensure defendant's knowledge        of  his right to testify, or otherwise to provide relevant information        that  would enable a meaningful decision); and (3) any intimidation or        threatened retaliation by counsel relating to the defendant's testimo-        nial decision.   See,  e.g., Nichols  v. Butler,  953 F.2d 1550,  1553                         ___   ____  _______     ______        (11th  Cir. 1992) (finding coercion where counsel, in effort to coerce        defendant to  waive testimonial  right, threatened to  withdraw during        trial).  With these  considerations in mind, we inquire  whether Pome-        roy's vigorous expression of views  during their argument coerced Lema        into waiving the right to testify.            b                                                               .            b                                                               .            The Evidence of Coercion.            The Evidence of Coercion.            ________________________                                          9            The  district  court  concluded  that  Lema,  notwithstanding some        initial  resistance, knowingly  and voluntarily  acceded  to Pomeroy's        advice and waived his right to testify, consistent with the articulat-        ed  trial  strategy.   The court  found no  evidence that  Pomeroy had        attempted  to coerce  Lema's  testimonial decision,  nor  that he  had        overborne  Lema's will.  We  review these district  court findings for        "clear error."  See  Ouimette v. Moran, 942 F.2d 1, 5  (1st Cir. 1991)                        ___  ________    _____        (clear error review of "mixed questions" in habeas corpus context).            At the  evidentiary  hearing, Lema  conceded  that  he had  argued        vigorously, but that he ultimately "agreed" with Pomeroy that it would        be unwise to testify:            Q                                                           :            But . . . you agreed with Pomeroy not to testify.            A                                                           :            Yes, I agreed after    on his advice.            Q                                                           :            And you  agreed after  weighing these  facts that  I've just  gone            over with you, facts that Pomeroy  could deliver a dynamite  clos-            ing argument,  right?   . . .  .  And  that played and  weighed in            your decision not to testify?            A                                                           :            Yes, that played a role in it, yes.            Q                                                           :            And  another thing  that played  a role  was that  Pomeroy was  an            experienced criminal lawyer who knew what he was doing, right?            A: Yes.        We  think  Lema's admitted  agreement  with  Pomeroy's advice,  albeit        reluctant, provided sufficient support  for the district court finding        that Lema was not "coerced."  Other evidence corroborates the district                                          10        court finding.   For example, in  an August 16,  1989 letter to  Lema,        Pomeroy  recalls, among other things, that Lema "elected not to testi-                                                         _______        fy,"  after considering the effect  of the district  court's denial of        the motion in limine.  More generally, Lema was neither  a newcomer to        the  American justice  system nor  unaware  that he  had the  right to        testify in his own defense.  Indeed, the apparent vehemence with which        Lema at first  insisted on  testifying, as evidenced  by his  argument        with  Pomeroy, fairly may  have reflected Lema's  clear awareness that        the ultimate decision was his to make.  The district court supportably        found that Lema was not coerced into waiving the right to testify.5            2.The Failure to Call Proposed Defense Witnesses.            2.The Failure to Call Proposed Defense Witnesses.              ______________________________________________            Lema asserts,  as a second  basis for the "ineffective assistance"        claim, that  Pomeroy neither interviewed, nor  presented, three poten-        tial  defense witnesses proposed by  Lema, thereby depriving  him of a        "viable defense," see United States v. Porter, 924 F.2d  395, 397 (1st                          ___ _____________    ______                                    ____________________        5As the factual underpinnings  for Lema's ineffective assistance claim        are inadequate, we need  not consider whether denial of  a defendant's        right  to  testify  is  ever  subject  to  "harmless-error"  analysis.        Compare, e.g., Ortega  v. O'Leary, 843 F.2d 258, 262 (7th Cir.), cert.        _______  ____  ______     _______                                _____        denied,  488  U.S. 841  (1988)  (applying  harmless-error analysis  to        ______        denial of defendant's right to testify); with, e.g., Martinez v. Ylst,                                                 ____  ____  ________    ____        951 F.2d  1153, 1157 (9th  Cir. 1991) ("[a]s  a general matter,  it is        only the  most extraordinary of trials in which a denial of the defen-        dant's right to testify can be said to be harmless beyond a reasonable        doubt"); United States v. Butts, 630 F. Supp. 1145, 1148 (D. Me. 1986)                 _____________    _____        ("a  defendant's right to testify in a criminal proceeding against him        [is] so basic to a fair trial that its infraction can never be treated        as a harmless  error"); Wright v.  Estelle, 572 F.2d  1071, 1084  (5th                                ______     _______        Cir.) (Godbold, J., dissenting) (rejecting harmless-error analysis  in        context of testimonial right), cert. denied, 439 U.S. 1004 (1978).                                         _____ ______                                          11        Cir. 1991).6   Lema argues  that these witnesses  could have  provided        evidence tending  to show that he was  unaware of Souza's purpose when        he agreed to  drive north with Souza on the  two trips that culminated        in the  monitored drug  transactions.   The  district court  summarily        dismissed the claim, apparently on the ground that Lema's section 2255        motion failed conclusively to "overcome the presumption that . . . the        challenged  action  'might  be  considered  sound  trial   strategy.'"        Strickland, 466 U.S. at 689.  We agree.        __________            The  decision  whether to  call  a  particular  witness is  almost        always strategic, requiring a  balancing of the benefits and  risks of        the  anticipated testimony.  The witness may not testify as anticipat-        ed, see Porter, 924 F.2d at  397, or the witness's demeanor or charac-            ___ ______        ter  may impress the jury unfavorably and taint the jury's perceptions        of  the accused;  or  the testimony,  though  sympathetic, may  prompt        jurors  to draw  inferences  unfavorable to  the  accused, see,  e.g.,                                                                   ___   ____        United  States v. Tajeddini,  945 F.2d 458,  466 (1st Cir.  1991) ("to        ______________    _________        call as  a witness a person  other than Parvin to  testify to Parvin's                                    ____________________        6The government  argues that  Lema's petition  was conclusory  in this        regard, i.e., that  it failed  to name the  three putative  witnesses.                ____        See United  States v.  Michaud, 925  F.2d 37, 39  (1st Cir.  1991) (on        ___ ______________     _______        motion for post-judgment relief, "'conclusory  allegations unsupported        by specifics are insufficient  to require a court to grant  an eviden-        tiary hearing'") (quoting Hopkinson v. Shillinger, 866 F.2d 1185, 1210                                  _________    __________        (10th Cir.  1989)).  We do  not agree.  Lema's  affidavit, attached to        and referenced in the  section 2255 motion, made clear  the identities        ___ __________ __        of the witnesses and the nature of their anticipated testimony.  Given        Lema's  pro se  status, the  reference by  attachment, though  perhaps                ___ __        technically  deficient,  was sufficient  to  alert the  court  and the        government to  the specific  basis  of Lema's  claim.   Cf. Haines  v.                                                                ___ ______        Kerner, 404 U.S.  519, 520-21  (1972) (holding pro  se complaints  "to        ______                                         ___  __        less stringent standards than pleadings drafted by lawyers").                                          12        health  might emphasize  Parvin's  absence and  suggest that  Parvin's        testimony would have  been adverse to petitioner"), cert.  denied, 112                                                            _____  ______        S. Ct. 3009 (1992).  Where the prosecution's case is less than compel-        ling, as Pomeroy represented to Lema during  trial, the risk of "rock-        ing the  boat" may warrant a  decision by trial counsel  to forego the        presentation  of further defense  testimony, even favorable testimony.        Johnson  v. Lockhart, 921  F.2d 796, 800  (8th Cir.  1990) ("since the        _______     ________        government  has the burden of proving guilt beyond a reasonable doubt,        it may not be necessary for  the defense to introduce evidence to meet        the  constitutional requirement  of  effective  representation");  cf.                                                                           ___        Natanel,  938 F.2d at 310 ("additional arguments could only impair [a]        _______        client's seemingly secure position . . . .  In litigation, as in life,        there is much to be said for such maxims  as 'if it ain't broke, don't        fix it,' and 'quit when you're ahead'").            There  is  little  reason  to believe  that  Pomeroy's  failure to        present the three witnesses proposed by Lema was anything other than a        tactical decision.  The government's  case was relatively weak,  based        largely  on  the testimony  of two  witnesses,  one a  paid informant.        Reasonably competent trial counsel might well have determined that the        best  prospect  for acquittal  lay  in  discrediting the  government's        witnesses,  rather than  presenting  additional testimony  which could        appear to legitimate  the government's case  or raise questions  about        the  defense not  previously suggested  by the  government's evidence.        Furthermore, the availability of the putative testimony was problemat-                                          13        ic at best.7  Finally, Pomeroy was  well aware of the risks in calling        Souza,  even assuming  he  was available  to  testify:   Lema  himself        mentioned to Pomeroy  that, just prior to  starting out with  Souza on        the January drug transaction, Lema had said to Souza "I  don't want to        be involved."  Had Souza testified to this admission, it clearly would        have invited the reasonable inference that Lema knew in advance of the        illegal purpose of the January transaction.8                                    ____________________        7Lema presented no  affidavit from  Souza, and  no credible  evidence,        that Souza's  testimony would  have been available.   At  the time  of        Lema's trial, Souza  was awaiting sentencing; he therefore  retained a        valid Fifth Amendment right against self-incrimination.  United States                                                                 _____________        v. Lugg, 892  F.2d 101, 102-03 (D.C. Cir. 1989);  cf. United States v.           ____                                           ___ _____________        Zirpolo, 704  F.2d  23, 26  (1st  Cir.) (co-defendant  retained  Fifth        _______        Amendment right  where prosecutor  had agreed to  recommend dismissal,        but  charges had not yet  been formally dismissed),  cert. denied, 464                                                             _____ ______        U.S. 822 (1983).   Given  the pendency of  sentencing proceedings,  we        will  not  assume that  Souza would  have  waived his  Fifth Amendment        privilege,  particularly in support of Lema's version of the events           which  would have exposed Souza  as the only  culpable participant and        the  person who  had recruited  an  unsuspecting Lema.   Cf.  Brien v.                                                                 ___  _____        United States, 695  F.2d 10, 16 (1st Cir. 1982)  ("given the fact that        _____________        [the  codefendant] was  then  awaiting his  own  trial, it  is  highly        doubtful that he would have agreed to testify in any event").        8Another proposed  witness, Burke,  supposedly was willing  to testify        that  Souza had told her that Lema  did not know about the drug deals,        and had gone along only  "for the ride."   It is highly doubtful  that        Burke's  hearsay testimony would have been admissible for any purpose,        see Fed. R.  Evid. 801, absent the  testimony of Souza, whose  "avail-        ___        ability" was entirely conjectural.  See supra note 6.                                             ___ _____            The testimony  of  the third  individual, Lyons,  was tenuous  and        collateral,  and would  not have  absolved Lema.   Lema  contends that        Lyons would have testified that she declined an invitation to accompa-        ny Souza  to Maine just before the January transaction.  We are unable        to discern  any  relevance in  this testimony.   However,  if it  were        admissible, and the jury were to infer that Lyons had  refused because        she  knew in advance of  Souza's illegal purpose,  the testimony might        have tended to undercut Lema's claim of ignorance as well.                                          14            Lema argues  that these strategic  considerations are entitled  to        little or no deference, since Pomeroy not only neglected to call these        witnesses but  failed to investigate  their potential testimony.   See                                 ___________                               ___        Barrett, 965 F.2d  at 1193  (citing Strickland,  466 U.S.  at 690)  (-        _______                             __________        "'strategic choices made after thorough investigation of law and facts                                 _____ ________ _____________        relevant to plausible options are virtually unchallengeable'") (empha-        sis added);  McCoy  v. Newsome,  953 F.2d  1252, 1263  (11th Cir.)  (-                     _____     _______        "[f]ailure  to  investigate  evidence  that would  be  helpful  to the        defense is  an indication  of ineffective assistance"),  cert. denied,                                                                 _____ ______        112 S. Ct. 2283 (1992).            The decision to  interview potential witnesses, like the  decision                             _________        to present their  testimony, must  be evaluated in  light of  whatever        trial strategy reasonably competent counsel devised in the context  of        the particular case.  See Wilkins v. Iowa, 957 F.2d 537, 540 (8th Cir.                              ___ _______    ____        1992) ("[a] less than exhaustive investigation is adequate for consti-        tutional purposes . . . if reasonable professional judgments justified        limiting  its scope").   In  view of  the obvious  tactical  risks and        limited  benefits discussed  above     benefits and risks  which would        have  been  readily  apparent  to experienced  trial  counsel  without        conducting  an interview  or further  investigation     we  think that        Pomeroy's failure  to interview the  three proposed witnesses  did not        amount to ineffective assistance in the constitutional sense.   "Coun-        sel  need not chase  wild factual geese  when it appears,  in light of        informed  professional  judgment, that  a  defense  is implausible  or                                ________        insubstantial as a matter of law, or, as here, as a matter of fact and                                          15        of the realities of proof, procedure, and trial tactics," Cepulonis v.                                                                  _________        Ponte, 699 F.2d 573, 575 (1st Cir. 1983) (emphasis added).        _____                                          16            3                                                               .            3                                                               .            The Tape Recordings.            The Tape Recordings.            ___________________            The extent  of Lema's participation in  the actual drug  exchanges        was a major  issue at trial.   A government agent (Bansmer)  testified        that Lema said nothing during the second (January) drug exchange:  but        Hood, the informant, testified  that Lema said to Souza, "let's do the        deal  and get  going," perhaps  implying knowledge  of the  purpose of        Souza's  trip.   Lema now  asserts that Pomeroy  should have  used the        government's  tape recordings of the  incident (which did  not pick up        Lema's  voice)  to impeach  Hood's testimony.   Indeed,  Lema charges,        Pomeroy did  not even attempt to obtain the tapes to learn what was on        them.            The district court found that Pomeroy's cross-examination of  Hood        showed that Pomeroy was aware  of the contents of the tapes,  and that        the  decision not to play  the tapes at  trial was a  matter of "trial        strategy":            The  record reveals  that Lema's  defense counsel  engaged in            extensive cross-examination  about the existence  of tapes of            the . . . transactions and attempted to establish "that there            were no recordings that  backed up the testimony of  the gov-            ernment's witnesses."  Lema, 909 F.2d  at 567.  Additionally,                                   ____            it  can be reasonably inferred from the form of the question-            ing that Lema's attorney had informed himself of the contents            of those tapes  and decided not  to use  them at trial  since            they  were neither exculpatory nor clear.  Id.  Such tactical                                                       ___            decisions are "deemed to be effective assistance."        Opinion at 4 (citing United States  v. Tabares, 951 F.2d 405, 409 (1st                             _____________     _______        Cir. 1991)).  The factual finding that Pomeroy had access to the tapes                                          17        was not clearly  erroneous, and  our own reading  of Pomeroy's  cross-        examination of Hood accords with the district court's understanding.9            While these trial tactics may appear  dubious to the petitioner in        hindsight,  especially  in  the  grim reflection  of  the  intervening        convictions, the  reviewing court  must be  persuaded that  the failed        trial  strategy was not within  the "wide range  of reasonable profes-        sional  assistance" contemplated by Strickland.   We are not persuaded                                            __________        that the failure to introduce the tapes was beyond Strickland's pale.                                                           __________            4.Other Claims.            4.Other Claims.              ____________            The two remaining  claims emphasized in Lema's supplemental pro se                                                                        ___ __        brief  are without merit.   First, Lema alleges  that the prosecutor's        closing  argument included an  indirect comment  on Lema's  failure to        testify.  Although  Lema states  a cognizable claim  under Griffin  v.                                                                   _______        California, 380 U.S. 609,  614 (1965) (prosecutor's comment  on defen-        __________        dant's  failure  to  testify  violates Fifth  Amendment),  our  review        convinces  us  that the  claim  is  unsubstantiated.   The  transcript        reveals that the  prosecutor's comments were  not addressed to  Lema's                                    ____________________        9Lema asserts that  Pomeroy was  "surprised" at trial  when Hood  (the        government's first witness) stated that he had worn a recording device        during  the January transaction.  Fairly read, however, we believe the        transcript is  ambiguous:   it appears  that Pomeroy  either misunder-        stood, or failed  to recall, Hood's earlier testimony  that he had not        worn  a recorder  during a  different meeting  with Souza.   Moreover,                                    _________        documentary  evidence confirms  that Pomeroy  had access to  the tapes        prior  to trial.   Pomeroy wrote to  the prosecutor on  March 8, 1989,        expressing  his understanding that "you will have  copies of the . . .        audio  recordings for our review  sometime next week,"  and, when Lema        received Pomeroy's files in  fall 1989, the files contained  a partial        transcript of the tapes.                                          18        silence  at trial,  but  merely pointed  out,  as evidence  of  Lema's                 __ _____        complicity,  that Lema was present and remained silent while both drug        transactions were carried  out by Souza.  Such evidence is both admis-        sible and potentially probative.  See United States v. Ortiz, 966 F.2d                                          ___ _____________    _____        707, 714 (1st Cir. 1992) (defendant's silent presence at drug transac-        tion "patently implied  participation" where surrounding circumstances        indicated  knowledge thereof).  The cases Lema cites, United States v.                                                              _____________        Cox, 752 F.2d 741, 745 (1st Cir. 1985), and United States v. Skandier,        ___                                         _____________    ________        758  F.2d 43, 45-46 (1st Cir. 1985), are readily distinguishable; both        found prosecutorial misconduct where the Government  asked the jury to        consider  how  a defendant  "explained"  certain  evidence, a  clearly                                     _________        impermissible  reference  to  the  defendant's silence  in  the  trial                                                                __  ___  _____        setting.10   As  Lema's  claim misapprehends  the prosecutor's  state-        _______        ment, we reject it.            Lema's  final claim is  that the  attorney who  represented him at        the sentencing  hearing rendered ineffective assistance  by failing to        object to the district court's finding that the conspiracy to distrib-        ute involved eleven kilograms of cocaine.  Lema  argues that only four        kilograms of cocaine  changed hands  while he was  present; the  other                                    ____________________        10United  States v. Buege, 578 F.2d  187 (7th Cir.), cert. denied, 439          ______________    _____                            _____ ______        U.S.  871 (1978), is also  distinguishable:  there  the prosecutor, at        closing argument, repeatedly used the term "uncontradicted testimony,"        to refer  to testimony which only  the defendant was in  a position to        contradict.   The court  found that  the prosecutor's  references were        "manifestly intended" to call attention to  the defendant's failure to        testify.  Id.  at 188.  In Lema's case,  by contrast, the prosecutor's                  ___        reference to  Lema's silence  plainly called attention  to the  defen-        dant's silence at the scene of the crime.                       __ ___ _____ __ ___ _____                                          19        seven kilograms were part of a deal negotiated by Souza outside Lema's                                                       __ _____        presence, and,  in any event, only four  of these seven kilograms were        ever accounted for by the police.  The claim is baseless.            The evidence adduced at trial and  at sentencing    including  the        fact that Lema was with  Souza at the scene of both  cocaine exchanges           would have  supported a  reasonable inference that  Lema and  Souza        were   coconspirators,  chargeable  with  all  intended  distributions                                                  ___        negotiated by either conspirator.   See United States v.  Bello-Perez,                                            ___ _____________     ___________        977 F.2d 664,  673 (1st Cir. 1992); United States  v. Moreno, 947 F.2d                                            _____________     ______        7, 9 (1st Cir. 1991).  It is immaterial that the police recovered only        a portion of the cocaine Souza agreed to deliver.  Id.                                                           ___            We have  combed Lema's  pro se  filings for  other assignments  of                                    ___ __        error; none merit discussion.            Affirmed.            Affirmed.            ________                                          20
