                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2003

USA v. Strube
Precedential or Non-Precedential: Non-Precedential

Docket 01-3526




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Recommended Citation
"USA v. Strube" (2003). 2003 Decisions. Paper 524.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/524


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                                           NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                    ___________

                    No. 01-3526
                    ___________

         UNITED STATES OF AMERICA




                          v.

          WILLIAM MICHAEL STRUBE,

                                     Appellant

                    ___________

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
                  (No. 97 Cr. 108-2)
   District Judge: The Honorable Sylvia H. Rambo

                    ___________

  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                  March 6, 2003

Before: ROTH, BARRY and FUENTES, Circuit Judges

           (Opinion Filed: May 30, 2003)

                    ___________
                               ________________________

                                OPINION OF THE COURT
                               ________________________

FUENTES, Circuit Judge.

       The matter before the Court is an appeal of the District Court’s denial of a motion

to vacate sentence pursuant to 28 U.S.C. § 2255. After a trial by jury, the appellant,

William M ichael Strube (“Strube”) was convicted of three counts of conspiring to

distribute approximately 486 kilograms of cocaine, possession with intent to deliver

approximately 150 kilograms, and conspiracy to commit money laundering. The District

Court sentenced Strube to 30 years of imprisonment, to be followed by 5 years of

supervised release.

       At his trial, the crux of Strube’s defense was that a co-conspirator, Richard Lyman

Pitt (“Pitt”), had represented to him that Pitt had the express authorization of the United

States Customs Service to undertake a reverse sting operation on the Cali Cartel in

Colombia. Pitt was a documented confidential informant for the Custom s Service. In

connection with that purported operation, Pitt enlisted Strube as ship captain to transport

large quantities of cocaine. The Government, however, introduced evidence that

defendants also transported large quantities of cocaine from Los Angeles to New York,

without any approval from Government agents.

       Based on these facts, Strube’s attorney, in consultation with Pitt’s attorney and

Strube himself, decided to pursue the defenses of “apparent public authority” and mistake

                                              2
of fact. In essence, Strube attempted to argue that he reasonably believed “that his action

was condoned by the [Governmental] agency which he believed had authorized him to

engage in the criminal conduct.” United States v. Pitt, 193 F.3d 751, 756 (3d Cir. 1999).

In addition, Strube contended that his beliefs about the official authorization of his

conduct, even if mistaken, negated his intent to violate the drug trafficking laws.

       After the close of evidence, the District Court refused to charge the jury on the

requested instruction relating to apparent public authority, although a proper charge was

given as to the mistake of fact defense. The Court found that the record failed to

demonstrate any evidence that the Government officials with whom Pitt was in

communication actually had the authority to approve of the defendants’ participation in

the charged conduct. After he was found guilty on the three counts noted above, Strube

appealed the verdict to this Court. Thus, in Strube’s direct appeal, we previously

affirmed the judgment of the District Court, holding that the defense of public authority

only applies “to those situations where the government agent in fact had the authority to

empower the defendant to perform the acts in question.” Pitt, 193 F.3d at 758.

       In his § 2255 motion, Strube contended that he was afforded ineffective assistance

of counsel based on his attorney’s misguided reliance on the defense of apparent public

authority. In addition, Strube argued that he was prejudiced because his attorney’s choice

to argue apparent public authority precluded him from pursuing other allegedly

meritorious defenses, such as entrapment by estoppel and outrageous conduct by the


                                              3
government. We agree with the District Court’s decision to deny Strube’s motion.

       The record reflects that Strube’s attorney advised him of available defenses,

discussed them with Pitt’s attorneys, researched the various defenses, consulted Strube

about the different strategies, and ultimately decided to pursue the apparent public

authority defense, which involves undeniably complex analyses of fact and law. In other

words, counsel made a reasoned, strategic decision which cannot be construed as so

deficient that it undermined the proper functioning of the adversary process. See

Strickland v. Washington, 466 U.S. 668, 686 (1984). Furthermore, Strube cannot

establish prejudice when this Court has already determined that his alternate defenses--

entrapment by estoppel and outrageous conduct by the Government--would not have been

available to him. See Pitt, 193 F.3d at 758-62.

       For the reasons set forth above, we will affirm the judgment of the District Court.




                                             4
_________________________

TO THE CLERK OF COURT:

Kindly file the foregoing opinion.




                                         By the Court,




                                         /s/Julio M. Fuentes

                                         Circuit Judge




                                     5
