
USCA1 Opinion

	




        September 16, 1996      [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1602                                    UNITED STATES,                                      Appellee,                                          v.                          JOSEPH DAVIS, A/K/A JOSEPH MILLS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                             and Torres,* District Judge.                                          ______________                                 ____________________            David L. Martin on brief for appellant.            _______________            Sheldon Whitehouse, United  States Attorney,  Margaret E.  Curran,            __________________        Assistant United  States Attorney,  and Gerard B.  Sullivan, Assistant                                                ___________________        United States Attorney, on brief for appellee.                                 ____________________                                  September 13, 1996                                 ____________________        ____________________        *Of the District of Rhode Island, sitting by designation.                      STAHL, Circuit Judge.   A jury convicted  appellant                      STAHL, Circuit Judge.                                _____________            Joseph Davis  of  heroin trafficking  and firearms  offenses.            Davis appeals the district court's denial of his motion for a            new  trial, which  was  based  on  his claim  of  ineffective            assistance of counsel at trial.  Because we conclude that any            deficiencies  in  counsel's  performance did  not  result  in            prejudice to Davis, we affirm.                                          I.                                          I.                                          __                                  Factual Background                                  Factual Background                                  __________________                      In early  January 1994, Detective  David Lussier, a            Providence,  Rhode  Island,  police  officer  specializing in            narcotic cases,  began investigating suspected  heroin dealer            Joseph  Davis,  a/k/a Joe  Mills  ("Davis").   The  suspected            trafficking  was being  conducted  out of  an apartment  that            Davis shared  with his mother  and niece.   Detective Lussier            conducted sporadic surveillance of the apartment, stopping by            at various times  of the  day and  night for  five to  thirty            minutes.    He frequently  observed  a  black BMW  automobile            parked in front  of the apartment,  and on several  occasions            saw Davis park the BMW  and thereafter use his keys to  enter            the apartment.                      To  confirm  his   suspicions,  Detective   Lussier            successfully orchestrated  a  controlled buy  of heroin  from            Davis at  the  apartment.    Lussier searched  the  buyer,  a            confidential informant, before  he entered the  apartment and                                         -2-                                          2            then  watched  him  enter,   exit,  and  return  directly  to            Lussier's  car.   The informant  then  delivered a  packet of            heroin to Lussier, stating that it came from "Joe."                        Relying on the controlled buy to establish probable            cause,  Lussier   obtained  a   warrant  to  search   Davis's            apartment.   On January  24, 1994, several  Providence police            officers executed  the search  warrant at  Davis s apartment.            The police knocked on  the door, and Davis s niece,  the only            one home at that time, admitted the officers.                      The apartment had two stories and  a basement.  The            bedrooms on the upper  level were used by Davis's  mother and            niece.  The basement was  divided into a laundry/storage area            and  a third bedroom, apparently  used by Davis.   The police            found  numerous drug-related  items in  the basement  bedroom            area, including seventy-seven packets of heroin, twenty-three            bags  of marijuana, a coffee  grinder used to  mill heroin, a            respiratory dust mask,1 a stamp commonly used  to mark heroin            packets, and thousands of empty glassine packets.  The police            also  seized from the bedroom area $10,563 in cash ($3,663 in            a bank shaped like a  large Coca-Cola bottle and $6,900 in  a            "Snickers"  box), two  gold  chains (also  in the  "Snickers"            box),  and a  loaded .38  caliber revolver  in a  box on  the            second shelf of an  entertainment center.  A number  of found                                            ____________________            1.  One of the officers  who searched the apartment testified            at trial that these masks are used by persons who process and            package heroin in order to avoid inhalation of heroin dust.                                         -3-                                          3            items  established  that  the  basement bedroom  was  Davis's            (letters, a  birthday card,  a photograph album,  a bill  for            pager  service, etc.).   Detective  Lussier called  the pager            number  listed on the bill  several times after  the raid and            before Davis s  arrest.   Each time,  Lussier, who  had known            Davis for four or five years, recognized the  voice returning            the  page as that of  Davis.  Moreover,  the caller confirmed            for  Lussier  that he  was Joe  Mills,  another name  used by            Davis.   The police seized the BMW and found Davis's driver's            license inside, which bore the address of the apartment.                      Providence police officers arrested Davis  on March            4, 1994, about  six weeks  after the search.   The  arresting            officers seized from Davis forty-two packets of heroin marked            with  the brand  name "Snake"  from the  front pocket  of the            sweatshirt Davis was wearing.   They also seized a  pager and            $300  in cash.    At  the  police  station,  Davis  gave  the            apartment  as  his  residence  address.    Detective  Lussier            subsequently  interviewed Davis  and told  him that  they had            seized heroin from  the apartment.   Davis responded (to  the            effect that) "You only got 72 bags."  Lussier also told Davis            they seized marijuana.  Again, Davis responded, "You only got            about 20 bags."   Finally,  Lussier told Davis  that the  gun            made the problem more serious.  Davis rejoined, "The revolver            wasn't  hidden.   It was  only a  .38, just  for protection."            Detective  Lussier had  not told  Davis the  quantity  of the                                         -4-                                          4            drugs  seized  or the  caliber of  the  gun prior  to Davis s            admissions.   The  arresting officer  also turned  the seized            pager over to  Detective Lussier.  Lussier  dialed the number            he had previously  used to page  Davis and keyed in  a three-            digit code.  The code appeared on the pager s display.                      It is also undisputed (based on trial stipulations)            that:  (1)  Davis had  been convicted  of  a felony  prior to            January  24,  1994,  (2)  the  R.G.  Industries  .38  caliber            revolver had traveled in and affected interstate commerce and            it had been test-fired and worked, and (3) the packets seized            from  the apartment, the  residue on the  coffee grinder, and            the packets seized from Davis s person all contained heroin.                                         II.                                         II.                                         ___                                Procedural Background                                Procedural Background                                _____________________                      On  March 17,  1994, a  federal grand  jury charged            Joseph Davis  with two  counts of  possession with intent  to            distribute heroin in violation  of 21 U.S.C.   841(a) (Counts            One and  Four), one  count of possession  of a  firearm by  a            convicted  felon in  violation of  18 U.S.C.    922(g) (Count            Two),  and one  count  of  using  a  firearm  during  a  drug            trafficking crime  in violation of 18  U.S.C.   924(c) (Count            Three).2   On August 2, 1994,  after a two-day jury  trial at                                            ____________________            2.  Count   Three  was  eventually   dismissed,  and  Davis's            ultimate sentence adjusted accordingly, in light of Bailey v.                                                                ______            United States, 116 S. Ct. 501 (1995) (clarifying  the meaning            _____________            of "use" of a firearm during drug trafficking under 18 U.S.C.              924(c)).                                         -5-                                          5            which  Davis presented  no witnesses  or evidence,  Davis was            convicted on all four counts.                      On August 11, 1994, Davis filed a pro se motion for                                                        ______            a  new  trial,  alleging  that he  had  received  ineffective            assistance of counsel.  The district court denied the motion.            Davis subsequently discharged his retained trial counsel, and            new  counsel was appointed by the court.  Davis s new counsel            moved for reconsideration of  the denial of the motion  for a            new trial.  The district court agreed to reconsider and heard            arguments on the merits  of the ineffective assistance claim.            The  district   court  found   both   that  trial   counsel's            performance  was  adequate and  that,  even  if it  had  been            deficient, Davis suffered no prejudice.                                         III.                                         III.                                         ____                                      Discussion                                      Discussion                                      __________                      Davis  appeals the district  court's denial  of his            motion for a new trial, arguing that  he received ineffective            assistance of  counsel at trial.3   Typically, the  courts of            appeal hear  claims of  ineffective assistance on  collateral            review,  because such claims usually are not presented to and            decided by  the district  court prior  to the  direct appeal.            See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993),            ___ _____________    ____                                            ____________________            3.  Davis also appeals certain  aspects of his sentence under            the United  States Sentencing  Guidelines, but our  review of            the  record  reveals  that  the  asserted  errors  have  been            corrected by the district  judge.  Thus, we need  not address            them here.                                         -6-                                          6            cert. denied, 114 S. Ct. 1839 (1994).  In  this case, though,            _____ ______            Davis  had  new  counsel   appointed  after  trial,  and  the            ineffective assistance  claim was  briefed and argued  to the            district  court,  which   determined  that  trial   counsel's            performance   was   neither   deficient    nor   prejudicial.            Accordingly, "the  record is sufficiently developed  to allow            reasoned consideration of the claim."  Id.                                                     ___            A.  Governing Principles               ________________________                      To establish  a  Sixth Amendment  violation of  the            right to  effective assistance  of counsel, a  defendant must            show:  (1) that counsel's performance fell below an objective            standard of  reasonableness; and (2) that prejudice resulted.            Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Scarpa            __________    __________                               ______            v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994), cert. denied, 115 S.               ______                                _____ ______            Ct. 940 (1995).  Among the basic duties of an attorney is "to            bring to bear  such skill  and knowledge as  will render  the            trial a  reliable adversarial testing  process."  Strickland,                                                              __________            466 U.S. at 688.                      In   evaluating   an  attorney's   performance,  we            "indulge a  strong presumption  that counsel's  conduct falls            within the wide range  of reasonable professional assistance;            that is,  the defendant  must overcome the  presumption that,            under the  circumstances,  the challenged  action  `might  be            considered  sound  trial strategy.'"    Id.  at 689  (quoting                                                    ___            Michel v. Louisiana, 350 U.S. 91,  101 (1955)).  We must make            ______    _________                                         -7-                                          7            "every  effort . . .  to eliminate the  distorting effects of            hindsight"  and to evaluate counsel's conduct from his or her            perspective under  the circumstances as they  existed at that            time.    Id.   "The  proper measure  of  attorney performance                     ___            remains simply reasonableness  under prevailing  professional            norms."  Id. at 688.                     ___                      A  defendant  establishes prejudice  from counsel's            substandard performance if he  or she can show that,  but for            counsel's errors,  "there is a  reasonable probability .  . .            that the result of the proceeding  would have been different.            A reasonable  probability  is  a  probability  sufficient  to            undermine confidence in the outcome."  Id. at 694.  We do not                                                   ___            focus  solely  on  the  outcome; however,  we  also  consider            "whether  the  result  of the  proceeding  was  fundamentally            unfair or  unreliable."    Scarpa,  38 F.3d  at  16  (quoting                                       ______            Lockhart  v. Fretwell, 506 U.S. 364, 369 (1993)).  "In making            ________     ________            this  determination, a court . . . must consider the totality            of the evidence before  the judge or jury."   Strickland, 466                                                          __________            U.S.  at 695.4  We  need not decide  if counsel's performance                                            ____________________            4.  There is  some  uncertainty surrounding  the standard  of            appellate  review.    Strickland  instructs  that  "both  the                                  __________            performance and  prejudice components of  the ineffectiveness            inquiry are mixed questions  of law and fact," 466  U.S. 668,            698 (1984), and, accordingly, this court has stated that  "we            review  these issues  de novo,"  Matthews v. Rakiey,  54 F.3d                                  __ ____    ________    ______            908, 916 (1st Cir. 1995).  Five months earlier, however, this            court  explained  that  before  Strickland,  "we  reviewed  a                                            __________            district  judge's determination  as  to  competence only  for            clear error," but "[s]ince Strickland, the standard of review                                       __________            may be  more rigorous  where the  issue is  not  a matter  of                                         -8-                                          8            was deficient if  it is apparent  that no prejudice  resulted            from the alleged errors.  Id. at 697.                                      ___            B.  Trial Counsel's Alleged Deficiencies            ________________________________________                      Davis  propounds ten specific deficiencies in trial            counsel's performance:   (1)  failing to discuss  with Davis,            before trial, the evidence  and important tactical decisions;            (2)  failing to challenge the  legality of the  search of the            apartment;  (3) failing to  seek dismissal of  the jury panel            based  on  allegedly  prejudicial statements  by  prospective            jurors  during  jury  selection;  (4)  making  an  incoherent            opening  statement; (5)  making prejudicial  statements about            the   defendant  at   trial;   (6)  failing   to  object   to            inadmissible,   prejudicial   testimony   about   outstanding            warrants for  prior charges;  (7) conducting  ineffective and            damaging cross-examination; (8) failing to  call witnesses to            challenge   the  credibility  of  government  witnesses;  (9)            failing to present a witness (Davis's mother)  to explain the            presence  of the  pistol;  and  (10)  failing  to  request  a            limiting instruction regarding Davis's prior convictions.                                            ____________________            historical  fact  but  of  deciding how  much  competence  is            enough."  United States v. Raineri, 42  F.3d 36, 43 (1st Cir.                      _____________    _______            1994); cf. United States v. McGill, 11 F.3d 223, 226 n.2 (1st                   ___ _____________    ______            Cir.   1993)   (comparing   alternative  interpretations   of            Strickland's impact on our standard of review).            __________                      Here, given the  strength of  the evidence  against            Davis,  we  focus  on  whether the  alleged  deficiencies  in            counsel's  performance  were  prejudicial.    Our  review  is            extensive, but we are not obliged to decide which standard of            review  obtains, because  the result  is  the same  under any            standard.                                         -9-                                          9            C.  Analysis            ____________                      We  have  carefully  reviewed  all  of the  alleged            deficiencies  in  counsel's  performance,  as  well  as   the            evidence   presented   at  trial.      Although  Strickland's                                                             __________            "prejudice  prong"  is  the  basis  for  our  decision,  some            comments on counsel's performance are in order.                        Trial counsel's performance could  undoubtedly have            been  better; in  particular,  he could  have refrained  from            telling the jury that his  client was a heroin dealer with  a            lengthy criminal record.  There was,  however, some method in            counsel's  apparent  madness.    That  seemingly  prejudicial            statement was concededly  part of a strategy  to convince the            jury that  the police had framed  Davis, both at  the time of            the  search and  upon  his arrest,  because  he was  a  known            convicted  felon.  Counsel also argued  and attempted to show            through cross-examination that Davis had too  much experience            with  the  criminal  justice  system  to  make  the  damaging            statements that the police  claimed he made (e.g., "You  only                                                         ____            got  72 bags").  Trial  counsel's statement that  this was "a            prosecutor's  dream case" and therefore "too good to be true"            was  also  part  of the  same  strategy.    Counsel tried  to            convince  the jury that the  police had lied  and planted the            evidence  found in the apartment  and on Davis's  person.  As            further support  for  the  claim  that his  client  had  been            framed, counsel pointed to the fact that no fingerprints were                                         -10-                                          10            found  on the  heroin-related items  allegedly seized  at the            apartment.    While  counsel's  approach   ultimately  proved            unsuccessful, we are hard pressed  to think of an alternative            trial strategy in light  of the overwhelming evidence against            Davis.                      Even assuming, however, that  counsel's performance            was constitutionally deficient, we ultimately find that there            was no prejudice to Davis.  The evidence against Davis was so            overwhelming that,  as to  nine of  the  ten alleged  errors,            there is no reasonable  possibility that the jury  would have            acquitted  Davis even  without counsel's  allegedly deficient            performance.   The remaining error,  the failure to  move for            suppression  of the  evidence  resulting  from the  apartment            search,  cannot be  dismissed  on the  basis of  overwhelming            evidence.   Thus, we will  discuss that claim  in some depth.            We also  examine  whether a  constitutionally adequate  trial            lawyer could have convinced the jury that the police lied and            fabricated evidence.   As to  all the other  asserted errors,            there is no need  to treat them individually  -- we find  the            evidence of Davis's  guilt (if believed) to be  so compelling            that  he utterly  fails  to satisfy  the  prejudice prong  of            Strickland.   See 466 U.S. at 696 ("[A] verdict or conclusion            __________    ___            only  weakly supported by the  record is more  likely to have            been  affected by  errors than  one with  overwhelming record            support."); see also  United States v. Jackson, 918 F.2d 236,                        ___ ____  _____________    _______                                         -11-                                          11            243 (1st  Cir. 1990)  (holding that overwhelming  evidence of            defendant's guilt  negated  any reasonable  probability  that            error by counsel affected outcome of trial).                      Although Davis  points to  a  plethora of  asserted            deficiencies, he  concedes that  trial counsel's errors  were            non-prejudicial  if one  accepts  the testimony  of the  four            police officers about the seizures of heroin and a gun at the            apartment,  and the  heroin  on Davis's  person upon  arrest.            Boiled down  to its essence,  Davis's appeal is  founded upon            his claim of extensive police perjury,  and an assertion that            competent counsel could have either (1) suppressed the search            evidence because of that perjury or (2) obtained a verdict of            acquittal  by convincing  the jury that  the police  lied and            fabricated essential evidence.                      Thus,  our task  is  to assess  Davis's showing  of            police perjury  and evidence fabrication.   We first analyze,            and reject,  Davis's police perjury arguments  in the context            of a  potential Fourth  Amendment challenge to  the apartment            search.  We then  use that analysis to conclude that there is            no  reasonable  probability that,  in  the  absence of  these            purported errors by  counsel, a jury would  have accepted the            perjury arguments and acquitted Davis.                      1.  Suppressing the Search Evidence                      ___________________________________                      Davis  argues  that  the  warrant  to  search   the            apartment  was invalid  because Detective Lussier  lied about                                         -12-                                          12            conducting the controlled buy.  First,  Davis points out that            Lussier's warrant affidavit contained little detail about the            controlled buy or the informant; in particular, the affidavit            did not provide the date of the controlled buy or  the amount            of heroin or currency involved.5                      Second,  Davis  asserts   that  Lussier's   warrant            affidavit  contained  a   logical  inconsistency   concerning            Davis's physical description that suggests fabrication.   The            affidavit  stated that  Davis was  5'8" tall and  weighed 145            pounds,  when in  fact  he was  5'11"  and 170  pounds.   The            affidavit  also stated  that the informant,  after completing            the buy,  "provided me  with a physical  description matching                                                                 ________                                            ____________________            5.  The affidavit stated:                           Within the last few days I contacted                      a  confidential  and reliable  informant,                      this informant  has in the  past provided                      me with information that has  resulted in                      successful  narcotics  arrest [sic],  and                      narcotics  seizures.   I spoke  with this                      informant who agreed to make a controlled                      purchase  from  apartment F-8  in Wiggins                      Village.  I drove  the informant into the                      area  of  the   apartment  and   searched                      him/her for any  contraband or  currency.                      After   finding   none  I   provided  the                      informant  with  US  currency   and  sent                      him/her to the apartment.  I then watched                      as  the informant  knocked and  went into                      the  apartment.    After about  5  to  10                      minutes  the  informant  exited the  same                      door and  walked directly to  my vehicle.                      Once inside the informant handed me a sum                      of  heroin, stating  that  it  came  from                      "Joe."  The informant  then provided me a                      physical description matching Joe Davis .                      . . .                                         -13-                                          13            Joe Davis"  (emphasis added).   Davis's argument  is somewhat            subtle:   if  there had  really been  a controlled  buyer who            dealt with  Davis, the buyer would  have accurately described            Davis, and that accurate description would not have "matched"            Joe  Davis in  Lussier's mind,  because Lussier  was mistaken            about Davis's actual height and weight.  Thus, Davis contends            that Lussier  fabricated both the confidential  informant and            the controlled buy.                      Davis  also  makes  several other  arguments  about            police perjury.   Although  these arguments relate  to events            that occurred  after Lussier filed the  warrant affidavit, we            address them  here because  Davis argues that  the subsequent            conduct  of  the  police  corroborates  the  falsity  of  the            affidavit.  After Davis  was arrested, the arresting officers            seized the  packets of heroin,  the pager, and  three hundred            dollars.    About sixty-six  dollars,  however,  was left  in            Davis's  possession  after  the  initial  post-arrest search,            apparently not  discovered when the officers  found the other            items.  Davis argues  that the officers would have  found the            sixty-six  dollars if  they had  in  fact searched  Davis and            found  heroin and  another  wad of  cash.   Therefore,  Davis            asserts, the arresting officers  lied about finding heroin on            Davis, and they fabricated the physical evidence presented at            trial.                                         -14-                                          14                      Davis also contends that  the police lied when they            said  that the "Coca-Cola" bank was found in Davis's basement            bedroom, providing as support for that contention  affidavits            from Davis's mother, sister, and a neighbor stating that  the            bank  belonged to  the mother  and was  kept in  her upstairs            bedroom.  None of  those three testified at trial.   Finally,            Davis accuses  the police  of stealing  nearly $500 from  his            mother's bedroom,  based on  his mother's affidavit  that the            money was missing after the search.                      When an ineffective assistance claim is grounded on            a failure to litigate a Fourth Amendment claim, the defendant            must prove  "that his  Fourth Amendment claim  is meritorious            and that  there is a reasonable probability  that the verdict            would have  been different  absent the  excludable evidence."            Kimmelman v. Morrison, 477  U.S. 365, 375 (1985).   We assume            _________    ________            for the sake  of argument  that the verdict  would have  been            different  if  the evidence  resulting  from  the search  was            excluded, and  we focus on whether an effective counsel could            have successfully  suppressed the evidence resulting from the            apartment search on Fourth Amendment grounds.                      Davis argues that, had his counsel requested it, he            would  have been entitled to a Franks hearing, the first step                                           ______            in seeking to  suppress the evidence obtained  in the search.            Under  Franks v.  Delaware,  438 U.S.  154, 155-56  (1978), a                   ______     ________            defendant   may  overcome   the   presumption   of   validity                                         -15-                                          15            surrounding  affidavits  that  support  search  warrants  and            obtain  an evidentiary  hearing, if  he "makes  a substantial            preliminary  showing that  a  false statement  knowingly  and            intentionally, or with reckless  disregard for the truth, was            included  by the affiant in the warrant affidavit, and if the            allegedly  false statement  is  necessary to  the finding  of            probable  cause."    Here,  of course,  the  allegedly  false            statement is Detective Lussier's assertion  that a controlled            buy was  conducted at Davis's  apartment, which was  the only            basis for probable cause in the affidavit.                        We  hold,  however,  that  Davis's  allegations  of            perjury  by  Lussier  do   not  amount  to  the  "substantial            preliminary  showing" required  for  a Franks  hearing.   The                                                   ______            Supreme Court explained in Franks that:                                       ______                      To  mandate  an evidentiary  hearing, the                      challenger's  attack  must  be more  than                      conclusory  and must be supported by more                      than  a desire  to cross-examine.   There                      must   be   allegations   of   deliberate                      falsehood  or  of reckless  disregard for                      the truth, and  those allegations must be                      accompanied by an  offer of proof.   They                      should point out specifically the portion                      of the warrant  affidavit that is claimed                      to  be   false;   and  they   should   be                      accompanied by a statement  of supporting                      reasons.      Affidavits   or  sworn   or                      otherwise    reliable    statements    of                      witnesses should be  furnished, or  their                      absence     satisfactorily     explained.                      Allegations  of  negligence  or  innocent                      mistake are insufficient.            Id.  at 154.    Davis's showing  of  falsity in  the  Lussier            ___            affidavit  is based  on  (1) the  lack  of detail  about  the                                         -16-                                          16            circumstances  of  the  controlled  buy,  (2)  the  error  in            Lussier's account of Davis's "approximate" height  and weight            coupled with the  statement that the controlled  buyer gave a            "matching"  description, and  (3)  the  assertedly  dishonest            subsequentpolice conduct.  As we explain, this is not enough.                      While further detail about the controlled buy might            have  been desirable, the lack  of specificity about the date            of  the  buy  or  the quantity  involved  is  not necessarily            probative of  falsity.  The  concern for keeping  the buyer's            identity confidential  is a  more likely explanation  for the            lack of those details.  See  United States v. Carty, 993 F.2d                                    ___  _____________    _____            1005,  1008 (1st  Cir. 1993)  (district court  credited trial            testimony   that  it   was   "customary   to  avoid   precise            specification of  the dates  of controlled  buys in  order to            protect the identity  of informants").   Moreover,  Lussier's            affidavit did describe the means by which he "controlled" the            buy (i.e., a prior search  of the confidential informant  and            personal observation of him before entering and after exiting            Davis's apartment).  See  United States v. Rodgers,  732 F.2d                                 ___  _____________    _______            625,  630-31 (8th Cir. 1984) (description of means of control            "tended to substantiate the fact that [defendant] was selling            cocaine from his residence").   We conclude that the  lack of            detail does not amount to  a "substantial showing" of falsity            in the affidavit.                                         -17-                                          17                      As to Lussier's misstatement of  Davis's height and            weight, Davis does  not allege that those data  were material            to  the warrant  to  search the  apartment,  which need  only            describe with particularity  the place to  be searched.   The                                             _____            argument, again,  is that the discrepancy  shows that Lussier            lied about the controlled buy, without which there would have            been no probable cause.  This ingenious argument, however, is            too  thin  a  reed to  support  a  claim  of police  perjury.            Lussier's  affidavit  did  not   state  in  what  regard  the            informant's description "matched" Davis (height? weight? age?            race?   facial   characteristics?  hair   style?  mannerisms?            clothing?   other   distinguishing   marks   or   features?).            Moreover,   the  affidavit   only  stated   that  Davis   was            "approximately  5'8"  145" (in  fact  he  was 5'11"  and  170            pounds).   The "matching" by the informant may have also been            merely an approximation.  Hence, because Lussier gave only an            "approximate" description, and because we do not know in what            sense or  how closely the buyer's  description "matched" that            approximation,  there may  have been  no discrepancy  at all.            And  to the extent  there was a  discrepancy, it  was just as            likely  a  negligent  or  innocent mistake  as  a  perjurious            fabrication.  The inference  that Davis asks us to  draw from            this alleged discrepancy, that no controlled buy occurred, is            too strained and too speculative.                                         -18-                                          18                      Davis's other allegations of  police untruthfulness            (i.e., the  sixty-six  dollars inexplicably  left on  Davis's            person after  arrest, the  location of the  "Coca-Cola" bank,            and the  money missing from Davis's mother's  bedroom) do not            make  a substantial showing, either.  It is not reasonable to            infer, from the fact that sixty-six dollars was left on Davis            after his arrest,  that the police  planted heroin on  Davis.            The  failure of the police to find the sixty-six dollars more            likely resulted  from inadvertency than from  a conspiracy to            falsely convict Davis.  And the  testimony of Davis's mother,            niece,  and neighbor  about the  location of  the "Coca-Cola"            bank and the  missing money does little  to substantiate that            Lussier  lied about the controlled buy, even if we ignore our            concerns about the potential bias of those affiants.                      We do not blindly  assume the credibility of police            officers,  but Davis's  assertions  do not  persuade us  that            competent trial counsel could have made a substantial showing            that  the warrant  affidavit  was  falsified  as  part  of  a            perjurious  police conspiracy.   Absent  that  showing, Davis            would  not  have  received   a  Franks  hearing,6  let  alone                                            ______                                            ____________________            6.  We recognize  that when an affidavit  relies primarily on            information provided by a confidential informant, a defendant            will  often  lack the  information  needed to  make  a Franks                                                                   ______            showing.  See United  States v. Higgins, 995  F.2d 1, 3  (1st                      ___ ______________    _______            Cir. 1993).   In such  cases, where the  defendant challenges            the  accuracy of  the affidavit  but has  failed to  make the            "substantial  preliminary showing"  required  by Franks,  the                                                             ______            court   may   conduct  an   in   camera   interview  of   the                                        __   ______            officer-affiant, and,  if necessary,  of the informant.   See                                                                      ___                                         -19-                                          19            successfully  surmounted  the  next  hurdle,  convincing  the            district court to suppress the evidence because of a perjured            affidavit.   Thus, we  conclude that  there is  no reasonable            probability  that  the   search  evidence  could   have  been            suppressed, and no prejudice suffered by Davis.                      2.  Convincing the Jury of Police Perjury                      _________________________________________                      Davis's trial  counsel did attempt to  convince the            jury that the police  were lying about the evidence,  but the            jury  evidently  was not  persuaded.    Trial counsel  cross-            examined Lussier about the controlled buy and the discrepancy            in  the description  in Davis's  height  and weight;  he also            cross-examined  the  arresting  officer about  the  sixty-six            dollars left on Davis's  person after his arrest.   He argued                                            ____________________            United  States v.  Southard, 700  F.2d 1,  10-11 (1st  Cir.),            ______________     ________            cert. denied, 464  U.S. 823 (1983).  A district  court is not            _____ ______            required to do so, however; the decision whether an in camera                                                                __ ______            proceeding   is   needed   to   test   the  officer-affiant's            credibility  rests entirely  with  the district  court.   See                                                                      ___            United  States v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990).            ______________    _______            We review a  district court's denial of a defendant's request            for an in  camera proceeding  for abuse of  discretion.   See                   __  ______                                         ___            United  States v. Valerio, 48 F.3d 58, 62-63 (1st Cir. 1995);            ______________    _______            Higgins, 995 F.2d at 3.            _______                      Moreover,  Davis  has  argued  neither  that  trial            counsel should have requested an in camera hearing,  nor that                                             __ ______            such  a proceeding would have  led to the  suppression of the            search evidence.   And,  although a  "confidential informant"            was used to conduct the controlled buy, there was no reliance            on any information provided by the informant; rather, Lussier                   ___________            personally  observed  that   the  informant  went   into  the            apartment without heroin and  came out with heroin.   That is            enough for probable  cause to search the  apartment, based on            the officer's own perception.  Thus,  many of the credibility            concerns  that   arise  when  probable  cause   is  based  on            information provided by a confidential source are not present            in this case.                                         -20-                                          20            to the jury that  these facts indicated that the  police were            lying, and that the drugs were planted on Davis.7  It is true            that  trial  counsel did  not  present  testimony by  Davis's            mother, sister,  or neighbor about the Coca-Cola  bank or the            money  allegedly stolen  by  the searching  officers.   These            allegations  do not,  of  course, directly  attack the  major            evidence  against  Davis, but  if  believed  they could  have            impugned the credibility of  the officers involved in Davis's            case.  We are very  doubtful, though, that a jury would  have            been persuaded by the testimony of Davis's mother, sister, or            neighbor,  for the reasons alluded to earlier.  Suffice it to            say  that  we  see   no  reasonable  probability,  given  the            extensive evidence  against Davis,  that the jury  would have            acquitted Davis if trial counsel had presented the additional            evidence  of alleged  police  perjury, had  made the  perjury            arguments more artfully,  and had not made the other supposed            errors that Davis  points to.   The evidence  was simply  too            voluminous and  compelling, while  the  argued inferences  of            police perjury were too speculative and tenuous.                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                                            ____________________            7.  The trial court sustained the government's objection when            Davis's counsel, in closing argument, stated "I don't know if            they enjoyed planting drugs  on him."   However,  the overall            theme  of the defense closing argument  -- police perjury and            fabrication of  evidence --  was nonetheless made  obvious to            the jury.                                         -21-                                          21                       For the foregoing  reasons, we conclude that  none            of the  alleged errors  by counsel resulted  in prejudice  to            Davis, given  the overwhelming record evidence  of his guilt.            The decision of the district court is affirmed.                                                  affirmed                                                  ________                                         -22-                                          22
