
USCA1 Opinion

	




        September 30, 1992      [NOT FOR PUBLICATION]                                 ____________________        No. 92-1048                                   MICHAEL A. LAU,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________            Michael A. Lau on brief pro se.            ______________            Daniel  F. Lopez  Romo, United  States  Attorney, and  Antonio  R.            ______________________                                 ___________        Bazan, Assistant United States Attorney, on brief for appellee.        _____                                 ____________________                                 ____________________                 Per  Curiam.   Petitioner Michael  Lau appeals  from the                 ___________            denial  of  his  motion under  28  U.S.C.     2255 for  post-            conviction  relief.   He alleges  that his  attorney rendered            ineffective  assistance  by  arguing  a  motion  to  suppress            evidence  in a  deficient manner,  and thereafter  failing to            raise the  issue  on  appeal.   We  disagree,  and  therefore            affirm.                 One  portion of  the  suppression motion  at issue  here            challenged  the   legality   of  a   warrantless  search   of            petitioner's apartment in the Netherlands Antilles, a  search            conducted by Dutch authorities  with the participation of DEA            agents.   The  general  rule is  that  searches conducted  by            foreign officials are not subject to the Fourth Amendment and            the exclusionary  rule.  See,  e.g., United States  v. Janis,                                     ___   ____  _____________     _____            428  U.S.  433,  456  n.31  (1976).    There  are  two  well-            established exceptions to this rule: (1) where the conduct of            foreign police shocks the  judicial conscience; and (2) where            American officers participated in  the foreign search, or the            foreign  officers   acted  as   agents  for  their   American            counterparts, thereby  rendering the search a  joint venture.            See, e.g., United States  v. Mitro, 880 F.2d 1480,  1482 (1st            ___  ____  _____________     _____            Cir. 1989); United  States v.  Hensel, 699 F.2d  18, 25  (1st                        ______________     ______            Cir.), cert. denied, 461 U.S.  958 (1983).  Petitioner claims                   ____________            that his counsel  failed to  recognize, and to  argue to  the                                         -2-            court,  that the  latter  exception governed  the search  and            seizure here.                   Having  reviewed the  record in  some detail,  we cannot            agree that counsel's performance in prosecuting the motion to            suppress   fell    below    an   "objective    standard    of            reasonableness."  Strickland v. Washington, 466 U.S. 668, 688                              __________    __________            (1984).  We find  no support for the suggestion  that counsel            was  unaware of  the "joint  venture" exception.   Petitioner            makes much of the  fact that counsel acknowledged not  having            read  Stonehill  v. United  States,  405 F.2d  738  (9th Cir.                  _________     ______________            1968),  cert. denied, 395 U.S. 960 (1969), one of the central                    ____________            cases addressing  this issue.   Yet this proves  little; that            opinion, issued fifteen years earlier by another Circuit, was            only one of various decisions on the subject.  (And, we might            note,  the court  there  upheld the  denial of  a suppression            motion.)  More  to the point,  most of counsel's  questioning            focused on this very issue--i.e., the extent to which the DEA            agents  participated in  the search  and in the  selection of            items  to  be seized.   And  in  his argument  to  the court,            counsel  made specific  reference  to  the Dutch  authorities            having  conducted the  search "at  the direction,  or at  the            request,  or at the insistence of the DEA or Customs agents,"            and to their having  acted as "agents" for the  United States            government.   As  we  read it,  counsel was  thereby directly            invoking the "joint venture" exception.                                         -3-                 To be sure,  counsel might have  pressed the issue  with            greater   vigor.    Yet  to  the  extent  oral  argument  was            truncated,  that  largely  occurred  at  the  behest  of  the            district court, which manifested  both a familiarity with the            governing legal principles and a  readiness to make a ruling.            There can be  little doubt  that the court  was cognizant  of            counsel's position on the matter.  Under these circumstances,            where the pertinent factual and legal issues both received an            adequate airing, it cannot be said that counsel's performance            rendered  the   hearing  something  less   than  a  "reliable            adversarial testing process."  Strickland, 466 U.S. at 688.                                           __________                 Nor  do  we think  that  counsel  acted unreasonably  in            declining  to raise the Fourth Amendment issue on appeal.  As            evidenced  by  this court's  opinion  in  the direct  appeal,            United States v.  Lau, 828  F.2d 871 (1st  Cir. 1987),  cert.            _____________     ___                                   _____            denied,  486  U.S. 1005  (1988),  counsel  had  a  number  of            ______            potentially  viable issues  to  raise.   Petitioner has  done            little to overcome the "strong presumption" that the decision            to abandon the Fourth Amendment claim in favor of these other            issues  was "sound  [appellate] strategy."   Strickland,  466                                                         __________            U.S.  at 689.  Indeed, given the other evidence of guilt, see                                                                      ___            Lau,  828  F.2d at  872-73,  counsel  justifiably might  have            ___            determined that  prevailing  on the  Fourth  Amendment  issue            would  have  simply  yielded  a finding  of  harmless  error.            Moreover,   counsel  might  well  have  regarded  the  Fourth                                         -4-            Amendment claim as of dubious merit.  We need  not decide the            ultimate viability of that claim in order to so conclude.  It            suffices to  note, contrary to  petitioner's suggestion, that            the  issue  is of  less  than compelling  merit.   Petitioner            points  to few  cases actually  applying the  "joint venture"            exception to  searches on  foreign lands; instead,  he mostly            distinguishes cases  finding it inapplicable.   The doctrinal            foundations in this area continue to evolve.  See, e.g., 1 W.                                                          ___  ____            LaFave, Search and Seizure    1.8(g), at 216-19 (1987).   And                    __________________            the  district court  here,  of course,  ultimately found  the            claim meritless.  To be sure, the Fourth Amendment issue here            might well  have  been  a  good one.    But  "a  good  Fourth            Amendment claim alone will not earn a prisoner federal habeas            relief.   Only those habeas  petitioners who can  prove under            Strickland that  they  have  been  denied a  fair  trial  [or            __________            appeal] by the  gross incompetence of their attorneys will be            granted  the writ ...."  Kimmelman v. Morrison, 477 U.S. 365,                                     _________    ________            382 (1986).  We  find no gross incompetence, either  at trial            or on appeal, on the part of petitioner's counsel.                 Affirmed.                     _________                                         -5-
