                                  _____________

                                  No. 95-1989EM
                                  _____________


John Alvin Payne,                      *
                                       *
            Appellant,                 *
                                       *        On Appeal from the United
     v.                                *        States District Court
                                       *        for the Eastern District
                                       *        of Missouri.
United States of America,              *
                                       *
            Appellee.                  *

                                   ___________

                    Submitted:     January 9, 1996

                         Filed:    March 4, 1996
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES,*
      District Judge.
                               ___________

RICHARD S. ARNOLD, Chief Judge.


     John   Alvin   Payne   was   convicted      under   the   Continuing   Criminal
Enterprise statute ("CCE"), 21 U.S.C. § 848, and is serving a 50-year
sentence with no chance of parole for his managerial role in an interstate
cocaine-distribution conspiracy.     He was also convicted and sentenced for
several other related drug crimes.1        He


     *The Hon. John Bailey Jones, United States District Judge for
the District of South Dakota, sitting by designation.
     1
      Mr. Payne was also convicted and sentenced for one count of
conspiracy to distribute and possess with intent to distribute
cocaine (20 years), 21 U.S.C. § 841(a)(1); four counts of
distribution of cocaine (15 years for each count), 21 U.S.C.
§ 841(a)(1); and three counts of structuring financial transactions
to evade income reporting requirements (five years for each count),
31 U.S.C. § 5324(a)(3).     He was acquitted on money-laundering
filed a motion for postconviction relief under 28 U.S.C. § 2255, claiming
that his trial lawyer was unconstitutionally ineffective.             The District
        2
Court           rejected all but one of Mr. Payne's ineffective-assistance claims
without an evidentiary hearing and, after a hearing, concluded that Mr.
Payne's lawyer had adequately informed him of his right to testify.3           Mr.
Payne now appeals, and we affirm.


                                            I.


        Mr. Payne and his brother owned a hotel in Los Angeles.         This hotel
was the headquarters for a sophisticated drug operation managed by Mr.
Payne.4          This is how the operation worked:   First, couriers would move Mr.
Payne's cocaine from Los Angeles to St. Louis.            There, Clara Davis would
take the cocaine from the couriers and disperse it to local distributors.
She also collected Mr. Payne's cut of the proceeds from the distributors
and sent this money back to Los Angeles.


        After several years' investigation the government applied for




charges. 18 § U.S.C. §§ 371, 1956(a)(1)(A) & (a)(2). All of these
sentences were concurrent with each other and with the sentence on
the CCE charge.
            2
      The Hon. Stephen N. Limbaugh, United States District Judge
for the Eastern District of Missouri; the Hon. Lawrence O. Davis,
United States Magistrate Judge.
        3
      The District Court agreed with Mr. Payne that his conviction
and sentence for conspiracy to distribute and possess with the
intent to distribute cocaine, 21 U.S.C. § 846, violated the Double
Jeopardy Clause because that offense was included in the CCE
charge, 21 U.S.C. § 848. The District Court, accordingly, vacated
the § 846 conviction. This issue is not before us.
        4
      See United States v. Macklin, 902 F.2d 1320 (8th Cir. 1990)
(affirming Mr. Payne's conviction and describing the enterprise),
cert. denied, 498 U.S. 1031 (1991).

                                            -2-
permission to wiretap Ms. Davis's and Lee Autry Wright's (one of the St.
Louis distributors) telephones.         After a few months' surveillance, Ms.
Davis and Terrell Williams (one of the couriers), were arrested in St.
Louis as Mr. Williams was making a delivery.             Ms. Davis went into the
federal witness-protection program and was the government's chief witness
at trial.     She testified about the drug enterprise itself and, most
importantly, interpreted and explained the over one hundred brief, often
cryptic, taped telephone conversations which were the centerpiece of the
government's case.


     At trial, Mr. Payne's defense was that he was innocent of all charges
and that Ms. Davis was an untrustworthy "snitch" who was setting him up and
who actually was the "mastermind" of the enterprise.         Mr. Payne's lawyer,
David Chesnoff, tried to convince the jury of this theory by vigorously
cross-examining Ms. Davis.     He also argued, in his closing statement, that
the government did not present evidence that Mr. Payne knew about his co-
defendants and their drug-dealing, let alone that he conspired with or
supervised them.        Mr. Payne did not testify; in fact, Mr. Chesnoff
presented    no   evidence   or     testimony.    This   "snitch    strategy"    was
unsuccessful.        We affirmed Mr. Payne's convictions on direct appeal.
Macklin, 902 F.2d at 1331.


     Mr.    Payne now believes he would have been better served by a
different trial strategy.     In his § 2255 motion, Mr. Payne argued that he
received ineffective assistance of counsel because Mr. Chesnoff failed to
(1) advise him of his right to testify; (2) present evidence that Mr. Payne
was not the organizer, supervisor, or manager of the drug enterprise; (3)
request    several    CCE-related    jury   instructions;   (4)    investigate   the
government's wiretap application and interview potential witnesses whose
testimony supposedly could have undercut the application; (5) argue that
there were several distinct conspiracies rather than one complex operation;
(6) object to the government's alleged proof of several




                                         -3-
conspiracies; and (7) conduct an independent investigation or discuss the
merits of Mr. Payne's case with him before trial.          The District Court
rejected all these claims, except the first, without a hearing.          After a
March 1995 evidentiary hearing, the District Court denied the first claim
as well.5


                                     II.


       The adversary system is, in many ways, a gamble which presumes able
and zealous lawyers for each side.        Our Constitution hedges this gamble
through the Sixth Amendment right to counsel, which "assures the fairness,
and thus the legitimacy, of our adversary process."      Kimmelman v. Morrison,
477 U.S. 365, 374 (1986).     Therefore, counsel must be "ready and able to
submit the prosecution's case to the `crucible of meaningful adversarial
testing,' [or] there can be no guarantee that the adversarial system will
function properly to produce just and reliable results."      Driscoll v. Delo,
71 F.3d 701, 706 (8th Cir. 1995) (citations omitted).


       The well-established framework for analyzing ineffective-assistance
claims reflects the Sixth Amendment's focus on assuring the "fairness" and
"legitimacy of our adversary system."       See Strickland v. Washington, 466
U.S.   668   (1984).   The   Strickland    standard,   "although   by   no   means
insurmountable, is highly demanding."        Kimmelman, 477 U.S. at 382.        To
prove ineffective assistance, a petitioner must prove both incompetence and
prejudice; he must "establish that counsel's performance fell below
professional standards and that ineffective performance prejudiced his
defense."    Thompson v. United States, 61 F.3d 586, 587 (8th Cir. 1995).
His lawyer's unreasonable performance must




       5
     The District Court added, "[q]uite frankly, it appears to me
that this motion is one of the most flagrant abuses of the use of
judicial resources that I have seen in some time."

                                     -4-
"undermine[] our confidence in the outcome of the proceeding."    Ibid.   We
presume attorneys provide effective assistance, and will not second-guess
strategic decisions or exploit the benefits of hindsight.     Ibid.


                                     A.


     First, Mr. Payne claims Mr. Chesnoff failed to discuss in appropriate
detail the strategic implications of Mr. Payne's choice not to testify
about his role in the conspiracy.   The District Court rejected this claim
after an evidentiary hearing.   In Mr. Payne's view, the government failed
to prove that he managed, organized, or supervised five or more people as
part of a continuing criminal enterprise.    See 21 U.S.C. § 848(c)(2)(A).
Instead, he argues, the evidence showed only that he "fronted" (sold on
credit) drugs to several unconnected people.6    And, Mr. Payne insisted at
oral argument, even if he did supervise or manage others as part of a drug
enterprise, he supervised only four others, not five.7


     Mr. Payne insists that, had he been informed about the CCE statute's
"managerial" element and advised that "fronting" drugs is not enough to
prove this element, he would have testified at trial.    He claims he would
have described his role in the conspiracy, thereby corroborating the
information on the tapes.   This, he thinks, would have made his testimony
believable.   He would have admitted his involvement in drug trafficking and
acknowledged supervising four - but not five - other persons.             He
recognizes, of




     6
      "Fronting" drugs, by itself, does not amount to organizing,
managing, or controlling under the CCE statute. United States v.
Jones, 801 F.2d 304, 308 (8th Cir. 1986).
         7
        At oral argument, Mr. Payne conceded that he may have
supervised Terrell Williams, Donna Marks (a second courier), Ms.
Davis, and his brother, Thomas Payne, who occasionally collected
Mr. Payne's money from Ms. Davis.

                                    -5-
course, that his testimony would have guaranteed conviction and long prison
terms for most of the crimes charged.            But, he asserts, by testifying, he
would have convinced the jury to acquit him on the CCE charge, which
carries the most severe penalty (50 years without parole).


     We agree with the District Court that this claim fails because Mr.
Payne has not shown deficient performance and prejudice.          Mr. Chesnoff told
Mr. Payne that he had the right to testify - indeed, Mr. Payne admits he
already knew this.     In fact, Mr. Payne testified on his own behalf in a
1977 criminal trial.       Mr. Payne also admitted at the evidentiary hearing
that he knew the CCE statute requires the government to prove he managed
or supervised five people.          Still, he never asked to testify.        Instead,
after discussing the importance of keeping the jury from hearing the very
damaging tapes again, Mr. Payne and Mr. Chesnoff agreed to "try to win the
whole ball of wax" by painting Ms. Davis as a "snitch."           We agree with the
District   Court   that,    given    the   alternatives,   this   strategy   was   not
                                      8
unconstitutionally unreasonable.           See Strickland v. Washington, 466 U.S.
at 690 (reasonable strategic decisions are "virtually unchallengeable").


     Not only was Mr. Chesnoff's performance reasonable, it did not
prejudice Mr. Payne.   We do not believe that if Mr. Chesnoff had discussed
the managerial element in more detail, or told Mr. Payne that "fronting"
does not satisfy that element, Mr. Payne would have admitted elaborate
drug-dealing at trial, hoping the jury would believe a confessed drug-
dealer's claim that he supervised four - but not five - others in his
operation.   This claim, to put it




     8
      The Court concluded the hearing by observing:

     It is my opinion that the trial strategy that was utilized in
     this case, . . . was probably one of the few strategies that
     had much chance of success on the merits, . . .         I am
     convinced that whatever happened in this matter, there was no
     ineffective assistance of counsel.

                                           -6-
mildly, strains credulity.    And even if Mr. Payne had testified, we do not
believe there is any reasonable chance that the jury would have acquitted
him on the CCE charge.9      We do not doubt that, looking back on it, Mr.
Payne thinks he should have adopted a different strategy.      But we suspect
that if Mr. Chesnoff had advised Mr. Payne to testify, admit drug-dealing,
and hope for a CCE acquittal, Mr. Payne would still be arguing ineffective
assistance of counsel.      See, e.g., Nazarenus v. United States, 69 F.3d
1391, 1397 (8th Cir. 1995) (petitioner claimed his lawyer was ineffective
for advising him to testify, thereby exposing him to damaging cross-
examination); Krimmel v. Hopkins, 44 F.3d 704, 710 (8th Cir.), cert.
denied, 116 S. Ct. 578 (1995).         Mr. Payne has not "undermined our
confidence in the outcome of the proceeding," Thompson, 61 F.3d at 587, and
so this ineffective-assistance claim fails.


                                      B.


     The District Court denied Mr. Payne's other ineffective-assistance
claims without a hearing.    We review the District Court's decision to deny
a hearing for abuse of discretion, and we review de novo the Court's
rejection of the claims themselves.        Ruiz v. Norris, 71 F.3d 1404, 1406
(8th Cir. 1995).     In § 2255 cases, the petitioner is entitled to an
evidentiary hearing "when the facts alleged, if true, would entitle him to
relief."   Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986).    However,
a "claim may be dismissed without an evidentiary hearing if the claim is
inadequate on its face . . .."    Shaw v. United States, 24 F.3d 1040, 1043
(8th Cir. 1994).


     Because Mr. Chesnoff's decision to argue Mr. Payne's innocence




     9
     We note that this Court already rejected, without discussion,
Mr. Payne's sufficiency-of-the-evidence challenge to his CCE
conviction. Macklin, 902 F.2d at 1331.

                                     -7-
and to portray Ms. Davis as an untrustworthy snitch was reasonable, and Mr.
Payne has not undermined our confidence in the verdict, it follows, we
think, that the District Court did not abuse its discretion by denying most
of Mr. Payne's claims without an evidentiary hearing.                For example, Mr.
Payne claims that Mr. Chesnoff was ineffective for "failing to present a
defense to the managerial element of the [CCE] charge."                       Again, we
                                             10
disagree; this choice was reasonable.              Similarly, it was reasonable not
to argue that the evidence showed several distinct conspiracies rather than
one complex operation; such an argument would have undercut Mr. Payne's
"snitch" defense.    We are also unpersuaded by Mr. Payne's claims relating
to jury instructions he thinks Mr. Chesnoff should have requested.                    The
District    Court   did   instruct   the    jury    on   the   meaning   of   the   terms
"organizer," "manager," and "supervisor," and it was reasonable for Mr.
Chesnoff not to request different instructions.           Such a request would have
made no difference; it certainly would not have helped Mr. Payne's "snitch"
defense.    Finally, it was reasonable not to request a unanimity instruction
regarding the five persons allegedly under Mr. Payne's supervision or
management.    Mr. Payne has not alleged any possibility of jury confusion
which might have required such an instruction, see United States v. Hiland,
909 F.2d 1114, 1139 (8th Cir. 1990), and, once more, such an instruction
might have been thought inconsistent with Mr. Payne's defense.                  After a
thorough de novo review, we think these claims are all inadequate on their
face, and we agree with the District Court that no evidentiary hearing was
required.


                                           C.


     We think Mr. Payne's remaining claim requires a brief discussion.
Mr. Payne filed a motion before trial to suppress the




      10
       We note that, in his closing statement, Mr. Chesnoff did
suggest that the government had not proved supervision or
management.

                                           -8-
taped        phone conversations.             He requested a hearing under Franks v.
Delaware, 438 U.S. 154 (1978), claiming that the affidavit supporting the
government's wiretap application contained fabricated statements.                               In
support,           Mr.     Payne     submitted     six     affidavits    attacking    particular
allegations in the government's affidavit.11                        The Magistrate Judge, after
noting that the government's 43-page affidavit refers to 10 confidential
sources,       concluded           that   "even    without    the    statements   challenged    by
defendant Payne, it would appear overwhelmingly that there would still
remain more than adequate probable cause for the ordering of electronic
surveillance by the District Court."                         The District Court adopted the
Magistrate Judge's recommendation, and denied Mr. Payne's motion to
suppress.


        Mr. Payne now claims Mr. Chesnoff was ineffective because he never
interviewed witnesses whose names and possible testimony Mr. Payne supplied
and   whose affidavits could have undermined the government's wiretap
application.              More generally, he asserts that Mr. Chesnoff failed to
investigate the facts underlying the government's application for the
wiretap.           Instead, Mr. Payne had to obtain the affidavits himself.                    Mr.
Payne contends that had Mr. Chesnoff provided effective assistance, the
motion        to    suppress        would   have    been     supported    by   more   and   better
                   12
affidavits,              which would have refuted facts in the government's wiretap
application,




        11
      Mr. Payne submitted affidavits from Lee Autry Wright, Louzar
Burnes, Dedrick Battle, Joann Spencer, and Loretta Herd. All these
people, alleged in the government's affidavit to be involved in
drug-dealing with Mr. Payne, denied involvement in drug-dealing.
Mr. Payne also included Vernon Whitlock's affidavit, in which he
denied, contrary to the government's affidavit, making any
statements against Mr. Payne.
        12
      Mr. Payne claims that had Mr. Chesnoff conducted a reasonable
investigation, he would have obtained additional affidavits from
Larry Nick, Isaac Allmon, Jr., and Randall Stuntzen, swearing that
"no law enforcement officer had ever questioned any of them
concerning John Payne, and that they had no business relationship
with John Payne."

                                                    -9-
earned him a Franks hearing, and resulted in the suppression of the key
evidence against him.


     There are few per se or "bright-line" rules here; ineffective-
assistance cases "turn on their individual facts."    Sanders v. Trickey, 875
F.2d 205, 209 (8th Cir.), cert. denied, 493 U.S. 898 (1989).      Even if Mr.
Chesnoff unreasonably refused to interview witnesses, Mr. Payne still must
show a reasonable probability that, but for his lawyer's alleged poor
performance, the District Court would have held a Franks hearing and
suppressed the tapes.   See United States v. Owens, 882 F.2d 1493, 1497-1500
(10th Cir. 1989) (holding that because defendant's Franks claim would have
failed, his ineffective-assistance claim also fails).      No Franks hearing
is required when a court concludes, after disregarding the contested
statements, that there is still sufficient material in the affidavit to
support a finding of probable cause.       See United States v. Ozar, 50 F.3d
1440, 1443-46 (8th Cir.), cert. denied, 116 S. Ct. 193 (1995).       We have
reviewed the government's affidavit and are convinced the Magistrate Judge
correctly found that, even if Mr. Chesnoff had done everything Mr. Payne
thinks he should have done, there easily remains more than adequate
probable cause for the ordering of electronic surveillance.    Therefore, Mr.
Chesnoff's alleged failure to interview or at least investigate the
witnesses does not amount to ineffective assistance of counsel.13


                                    III.


     We think Mr. Chesnoff's strategy and performance were, for the most
part, reasonable and, in any event, our confidence in the verdict is not
shaken by Mr. Payne's claims.    The District Court's judgment is




       13
        Mr. Payne also       claims Mr. Chesnoff was ineffective for
failing to conduct an       independent investigation or discuss the
merits of Mr. Payne's       case with him before trial.     Given our
discussion in Part II.A     and II.C, we reject this claim as well.

                                    -10-
Affirmed.


A true copy.


     Attest:


            CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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