  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

                              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

                              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.
                                     

    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                                                               .

    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.
                          

    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                                                               .
    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.
                                                    

    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                                                               .

    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.
                  

    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.
            

                                  20
