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


1-30-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-1743




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                                                                             NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT


                                            No. 02-1743


                                 UNITED STATES OF AMERICA

                                                  v.

                                       THOMAS SCHAKE,
                                              Appellant


                            Appeal from the United States District Court
                                for the Middle District of Pennsylvania
                                 (D.C. Criminal No. 92-cr-00168-1)
                        District Court Judge: Honorable Thomas I. Vanaskie


                         Submitted Pursuant to Third Circuit LAR 34.1(a)
                                       on January 28, 2003
                        Before: SLOVITER and RENDELL, Circuit Judges,
                                 and DEBEVOISE, District Judge*

                                      (Filed January 29, 2003 )


                                    OPINION OF THE COURT


       Thomas Schake appeals the order of the District Court for the Middle District of

Pennsylvania denying his motion for post-conviction relief under 28 U.S.C. § 2255




*The Honorable Dickinson R. Debevoise, Senior Judge, United States District Court for
the District of New Jersey, sitting by designation.
(1996). Because we agree with the District Court that Schake has not substantiated his
charge of ineffectiveness of counsel, we will affirm.

                                               I. Background

        In 1993, Schake was convicted of three counts of conspiring to distribute and

possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 2, 841, and 846.1

Schake was convicted on the strength of his signed confession, obtained after he was fully

advised of his rights, the testimony of a confidential informant, Agnes Alonso, who had

purchased cocaine from Schake on numerous occasions, composite tapes made from a

body recorder worn by Alonso during the drug sales, the testimony of two other law

enforcement agents, and Schake’s own testimony, during which he made a number of false

and misleading statements, contradicted his own testimony at an earlier suppression

hearing, and conceded that he had in fact sold cocaine to Alonso.

        Schake filed motions for a new trial, which were denied. After sentencing, he

appealed to this Court, arguing that the District Court had erroneously excluded evidence

relevant to his entrapment defense, failed to recognize its authority to downward depart at

sentencing, and, in a pro se brief, claiming judicial misconduct. We affirmed in a non-

precedential opinion. United States v. Schake, 70 F.3d 1258 (3d Cir. 1995). Schake then

filed a motion under section 2255, asserting a multitude of claims. The District Court

granted Schake a hearing on the ineffective assistance of counsel claims and a claim of

excessive fines, and rejected the other claims as lacking arguable merit. After the


        1
        Schake’s property was also subjected to criminal forfeiture, pursuant to 28 U.S.C. §
853 (1993).

                                                        2
evidentiary hearing, the District Court denied Schake’s remaining claims and granted a

certificate of appealability with respect to both. Schake appeals the District Court’s order

denying his claims of ineffective assistance.2

        The District Court had jurisdiction under 28 U.S.C. § 2255 (2002), and we exercise

jurisdiction pursuant to 28 U.S.C. §§ 2253(a) and 2255 (2002). Because claims of

ineffective assistance of counsel present mixed questions of law and fact, our review is

plenary. United States v. Kauffman, 109 F.3d 186, 187 (3d Cir. 1997).

                                                 II. Discussion

        We agree with the District Court that Schake has failed to show how his trial

counsel’s arguably deficient performance “prejudiced his trial to the extent that it

undermined confidence in the trial’s outcome.” Duncan v. Morton, 256 F.3d 189, 200 (3d

Cir.), cert. denied, 112 S. Ct. 269 (2001). Because we write only for the parties, and the

District Court’s opinion is well-reasoned and exhaustive, we will restrict our discussion to

the pertinent points.

        To prove ineffectiveness of counsel, Schake must show that his counsel “made

errors so serious that [he] was not functioning as the ‘counsel’ guaranteed by the Sixth

Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Schake identifies four

errors that he believes entitle him to relief: 1) counsel’s advice that he needed to admit to


        2
          Schake’s counsel has filed opening and reply briefs; Schake himself has moved to
proceed on appeal pro se and to file a supplemental brief and appendix. Since filing his
briefs, Schake’s counsel has moved to withdraw. We are granting these motions by
separate orders.

                                                       3
one of the elements of the offenses charged in order to obtain a jury instruction on

entrapment; 2) counsel’s lack of diligence in reviewing the composite tapes of the drug

transactions; 3) counsel’s failure to object to the prosecutor’s “bolstering” of the

confidential informant through testimony that she had aided in securing the conviction of a

co-conspirator; and 4) counsel’s failure to call an exculpatory defense witness.

        The District Court found that Schake’s counsel was deficient in regard to his advice

concerning the entrapment defense and his diligence in reviewing the tapes. Specifically,

the Court found that counsel’s failure to insure that he had copies of all of the original

tapes and his ignorance of the holding in Mathews v. United States, 485 U.S. 58 (1988),

that a defendant need not admit to any element of the crime in order to secure a jury

instruction on entrapment, fell below an objective standard of reasonableness. The Court

noted that Schake’s decision to testify and to attempt to establish entrapment was a

reasonable strategic move, but that counsel’s advice that Schake needed to concede an

element of the offense when he testified was objectively unreasonable.

        However, having found a deficient performance, the Court went on to find that

Schake had suffered no prejudice. Regarding the entrapment advice, the Court found that

although Schake’s concession of guilt subjected him to impeachment because it was

contrary to his denial of guilt at an earlier suppression hearing, Schake was already subject

to impeachment regarding his denial of guilt, because that denial was contrary to his written

confession and the information revealed on the audiotapes. Further, Schake’s credibility

was undermined by his assertion that he had had a sexual relationship with Alonso, which

                                                      4
claim was soundly rebutted by the prosecution. Finally, although not necessary, Schake’s

concession made his entrapment defense more plausible than it would have otherwise

seemed. Regarding the audiotapes, the Court found that there was no exculpatory material

on the missed tapes, and that counsel had fought hard to have the tapes excluded, and

presented evidence to correct the government’s transcripts and to have the tapes interpreted

in a favorable manner. Additionally, Schake himself had been given the opportunity to offer

his own explanation of the events and interpretation of the tapes. The Court therefore

found no prejudice.

        Regarding the “bolstering” and the failure to call an exculpatory witness, the District

Court found that counsel’s performance was reasonable and reflected trial strategy. The

Court found that counsel’s failure to object to a single, brief question by the prosecutor

regarding Alonso’s role in the conviction of a co-conspirator was reasonable in light of

counsel’s fear that an objection would highlight the matter for the jury. The Court also

found that counsel’s failure to call that co-conspirator as a witness was also reasonable, as

the co-conspirator was being prosecuted on drug charges at the time of Schake’s trial and

counsel feared he would be a reluctant witness. Furthermore, the supposedly exculpatory

testimony consisted of nothing more than the co-conspirator’s statement that Schake had

no involvement in one of the transactions, a statement that was contradicted by the tapes,

Alonso’s testimony, and Schake’s confession. Finally, Schake was allowed to testify that

the co-conspirator had told Schake that he was solely responsible for the drug transaction

in question.

                                                     5
        Because we agree with the District Court that Schake has failed to show prejudice

from his counsel’s performance, we find it unnecessary to determine whether counsel’s

actions fell below an objective standard of reasonableness. Given the overwhelming

evidence of Schake’s guilt, as shown by Schake’s confession, Alonso’s testimony, the

tapes, and Schake’s own testimony, we cannot say that absent counsel’s mistakes, the

outcome of the trial would have been different. We will therefore affirm the District

Court’s order denying relief.

________________________




TO THE CLERK OF COURT:

        Please file the foregoing opinion.




                                                 /s/ Marjorie O. Rendell
                                                 Circuit Judge


Dated:January 29, 2003
