object. This court, however, expressed its concern about the relevance of such evidence, Tr. Nov. 28, 1989, p. 22.
Later, this court held that evidence on the issue of the arrest would not be admissible, Id. at 45-64, and instructed the parties to collaborate on an instruction notifying the jury that it should not consider the government's opening statement, including its comments about the arrest, as evidence.
Id. Nonetheless, the government did cross examine Mr. Kladouris about his arrest, with no objection from Mr. Kladouris' trial counsel. Tr. Nov. 29, 1989, pp. 167-172.
This court holds, however, that the disputed testimony could legitimately have gone to the question of defendant's intent. While the inadmissible statements made during the government's opening were prejudicial to Mr. Kladouris, and were not remedied by a timely limiting instruction, this court finds that they were not sufficiently prejudicial, by themselves, to rise (or descend) to the level sanctioned by Strickland.
This court is similarly unable to find constitutional prejudice in the government's references, throughout the transcript, to Mr. Kladouris' employment of persons who had not been legally admitted to this country. Those references could have gone, if indirectly, to the question of intent. If Mr. Kladouris knew he was employing people who were not authorized to be in this country, then the jury could find that it was more likely that he knew the people chasing them through the restaurant that day were Immigration officers. Thus, should the jury follow that inferential chain, Mr. Kladouris' proffer of the justification defense would not have saved him.
Although this court finds that trial counsel's failure to object to these references demonstrated a woeful lack of skill, and resulted in prejudice to Mr. Kladouris, it cannot find that they were prejudicial enough, by themselves, to meet the Strickland standard.
C. Amendment of the Information
The government amended the information charging Mr. Kladouris sometime after this court refused to accept Mr. Kladouris' plea, but before the trial began. When this court expressed its surprise at the amendment, Tr. Nov. 29, 1989, pp. 45-50, the government's attorney informed the court that:
I had limited the factual basis of the plea to the terms of the agreement which [trial counsel] and I had worked out.