                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                 FILED
                                                      U.S. COURT OF APPEALS
                             No. 09-15655               ELEVENTH CIRCUIT
                                                         SEPTEMBER 3, 2010
                         Non-Argument Calendar
                                                             JOHN LEY
                       ________________________
                                                              CLERK

                   D. C. Docket Nos. 09-14067-CV-DLG,
                            04-14033-CR-DLG

JAMES LEE SILLS,



                                                        Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

                       ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                           (September 3, 2010)

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      James Sills, a federal prisoner, filed a pro se motion under 28 U.S.C. § 2255

to overturn his criminal convictions on the theory that he had received ineffective

assistance of counsel. In support of his motion, Sills noted that his trial attorney

had failed to preserve two objections to a wiretap warrant and that his appellate

counsel had failed to argue that the use of several intercepted conversations as

evidence violated his constitutional right to confront witnesses. The district court

denied the § 2255 motion on the ground that the attorneys’ alleged errors had

caused Sills no prejudice, and we agree.

                                           I

      Sills was indicted on federal drug and firearms charges after a state

investigation produced evidence that he had been involved in a conspiracy to

distribute cocaine. Before trial, Sills’s attorney, along with counsel for his

codefendants, moved to suppress a bevy of wiretap evidence on the ground that

the State’s application for the wiretap had been deficient. Specifically, the

defendants argued that the State had based its warrant application on stale

information and had failed to explain why a wiretap, in light of other possible

investigative techniques, was necessary. After a magistrate judge recommended

denying the motion to suppress, some of the other defendants objected before the




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district judge—who then denied the motion—but Sills’s attorney failed to preserve

the issues for appeal.

      At trial, when the Government tried to introduce several recordings of

intercepted conversations involving Sills, his attorney objected on the ground that

admitting them into evidence would deny Sills his constitutional right to confront

the alleged co-conspirator heard on the tapes. The court overruled the objection,

and the jury found Sills guilty. On direct appeal, Sills’s appellate counsel did not

present the confrontation question to this court, and we affirmed his conviction.

United States v. Dennard, 258 Fed. Appx. 299 (11th Cir. 2007).

      Sills filed a motion to set aside his sentence under 28 U.S.C. § 2255 on the

ground that the assistance he had received from his former attorneys was

constitutionally deficient. The district court adopted a magistrate judge’s

recommendation to deny the motion on the ground that any unprofessional errors

of counsel had not prejudiced Sills’s case. The district court issued a certificate of

appealability, see Fed. R. App. P. 22(b)(1), and Sills, now pro se, appeals.

                                          II

      The Constitution guarantees the accused in any criminal prosecution “the

right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend

VI. “It has long been recognized that the right to counsel is the right to the

                                          3
effective assistance of counsel,” McMann v. Richardson, 397 U.S. 759, 771

(1970), and the requirements for effective trial assistance apply equally to a

defendant’s attorney on direct appeal, Johnson v. Alabama, 256 F.3d 1156, 1187

(11th Cir. 2001). To prevail on a claim of ineffective assistance at either stage, the

defendant must show that his attorney’s performance “fell below reasonable

professional standards” and that he suffered prejudice as a result. Id. We review

ineffective-assistance claims de novo. Gomez-Diaz v. United States, 433 F.3d 788,

790 (11th Cir. 2005).

      A. Trial Counsel’s Performance

      By denying Sills the opportunity for further review of the suppression

issues, see Fed. R. Crim. P. 59(b)(2), his attorney’s failure to object to the

magistrate judge’s recommendation on the motion to suppress arguably fell short

of reasonable professional standards. But “[e]ven if a defendant shows that

particular errors of counsel were unreasonable,” he must still “show that they

actually had an adverse effect on the defense.” Strickland v. Washington, 466 U.S.

668, 693 (1984). “The defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. In other words, if the arguments forsaken by

Sills’s attorney have no merit, there can be no prejudice.

                                           4
      By failing to object to the magistrate’s recommendation, defense counsel

denied Sills the opportunity to raise two arguments before the district court and,

later, on appeal. First, Sills could have argued that the wiretap application was

defective because it was based on stale information. See United States v. Bervaldi,

226 F.3d 1256, 1264–65 (11th Cir. 2000). But there is no reasonable probability

that the preservation of that argument would have led to a different result. For one

thing, the district court denied the motion to suppress over the objections of Sills’s

codefendants, who did raise the staleness argument. More important is that we

rejected the same argument in an appeal from one of the co-defendants’

convictions and concluded that “the district court properly denied the motion to

suppress.” Dennard, 258 Fed. Appx. at 302. Sills can therefore demonstrate no

prejudice, and his ineffective-assistance claim concerning this argument fails.

      The second argument that Sills’s attorney failed to preserve concerns the

necessity of the wiretap. “Each application for an order authorizing or approving

the interception of a wire, oral, or electronic communication” must include “a full

and complete statement as to whether or not other investigative procedures have

been tried and failed or why they reasonably appear to be unlikely to succeed if

tried or to be too dangerous.” 18 U.S.C. § 2518(1). Sills argues that the State’s




                                          5
warrant application ran afoul of this requirement by failing to explain why a

wiretap was necessary.

      The underlying argument is that the State did not try hard enough to

investigate the suspected drug conspiracy through more conventional means. We

considered a similar argument in United States v. Suarez:

      The affidavit in support of a search warrant “must simply explain the
      retroactive or prospective failure of several investigative techniques
      that reasonably suggest themselves.” United States v. Van Horn, 789
      F.2d 1492, 1496 (11th Cir. 1986). However, a comprehensive
      exhaustion of all possible investigative techniques is not necessary
      before applying for a wiretap. United States v. Alonso, 740 F.2d 862,
      868 (11th Cir. 1984). The statute was not intended “to foreclose
      electronic surveillance until every other imaginable method of
      investigation has been unsuccessfully attempted, but simply to inform
      the issuing judge of the difficulties involved in the use of
      conventional techniques.” Id.

601 F.3d 1202, 1214 (11th Cir. 2010).

      Despite Sills’s contention that the State’s warrant application reflected

“impatience” rather than an honest attempt to explain the necessity of a wiretap,

the application’s supporting affidavits summarized a wide range of investigative

techniques that the State had either attempted or considered. The affidavits

revealed, for instance, that the State’s confidential informants had no information

on the conspiracy’s inner workings and that the drug organization comprised a

close-knit group of individuals unlikely to trust undercover agents. The State also

                                         6
explained its concern that search warrants and grand jury subpoenas would

frustrate its goals by alerting the conspirators to the criminal investigation. Given

these facts, we agree with the district court that the State’s application adequately

“‘inform[ed] the issuing judge of the difficulties involved in the use of

conventional techniques.’” Suarez, 601 F.3d at 1214 (quoting Alonso, 740 F.2d at

868). The alleged errors of Sills’s trial counsel caused him no prejudice.

      B. Appellate Counsel’s Performance

      Sills also argues that his appellate counsel should have raised the argument

that admitting the intercepted telephone conversations as evidence violated his

rights under the Sixth Amendment’s Confrontation Clause. See U.S. Const.

amend. VI (“[T]he accused shall enjoy the right . . . to be confronted with the

witnesses against him . . . .”). Sills contends that the district court erred by

rejecting his Confrontation Clause argument at trial and that his attorney’s failure

to raise that argument on direct appeal caused him prejudice.

      The question here is whether the statements contained in the intercepted

conversations were “testimonial” in nature. See Davis v. Washington, 547 U.S.

813, 821 (2006) (“Only statements of this sort cause the declarant to be a ‘witness’

within the meaning of the Confrontation Clause.”). The Supreme Court has not

precisely defined the term “testimonial,” but in our circuit this much is clear:

                                           7
statements made in furtherance of a criminal conspiracy are not testimonial.

United States v. Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006); see also Giles

v. California, 128 S. Ct. 2678, 2691 n.6 (2008) (plurality opinion) (“[A]n

incriminating statement in furtherance of the conspiracy would probably never

be[] testimonial.”). Nor are statements made by acquaintances during a private

conversation. United States v. US Infrastructure, Inc., 576 F.3d 1195, 1209 (11th

Cir. 2009) (citing United States v. Brown, 441 F.3d 1330, 1360 (11th Cir. 2006)).

      In light of this court’s binding precedent, Sills’s appellate counsel would not

have been able to convince us that the admission of the recordings violated his

rights under the Confrontation Clause. As a result, Sills cannot show that the

failure to raise that argument caused him any prejudice, and his claim for

ineffective assistance of appellate counsel fails.

                                          III

      Because there is no reasonable probability that Sills would not have been

convicted but for the alleged errors of his attorneys, the district court properly

denied his motion under 28 U.S.C. § 2255. The district court’s judgment is

      AFFIRMED.




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