Q. And when you used cocaine, did you use it in both powder form and rock form?
A. No, just powder form.
Q. Okay. You never smoked heroin--cocaine?
Q. When you used heroin, how did you use heroin?
A. In powder form.
Q. Shoot it up or snort it up?
A. Snort it up.
Q. Did you ever use cocaine and heroin mixed together like a speedball?
Q. Did you ever use any other drugs other than cocaine separately, heroin separately, and cocaine and heroin mixture?
Q. Over what period of time did you use these drugs?
A. Off and on since '86.
Q. Would you say at any point in your life you were addicted to any of these drugs?
Q. What effect, if you know, has your drug use had on your memory and ability to recall?
A. I don't know.
Q. Do you remember everything you say from one day to the next?
Q. Do you remember things that you said or did a year ago and more than a year ago.
A. Some things I do, some things I don't.
Q. Some days does your memory fade in and out?
A. I don't know.
Q. Okay. Was your memory like this before you used drugs?
A. I don't know.
Q. You don't remember how your memory was before you used drugs?
A. No, I don't.
Q. Have you used any drugs since June 13, 1991?
Id. at 399-402. After considering this testimony, Judge Lozano implicitly concluded that Claiborne was competent to testify, as Claiborne was called as a witness on April 15, 1992. Furthermore, based on a conversation with his client, on April 16, 1992, Claiborne's attorney requested that the court order a psychiatric examination of Claiborne. Id. at 836-38. Upon consideration of the "tenor and mien" of Claiborne, as well as the substance of the elicited testimony, Judge Lozano denied the request and ordered Claiborne to continue to testify. We defer to Judge Lozano's finding regarding Claiborne's competency.
B. Ineffective Assistance of Counsel
During his first few minutes on the witness stand on April 10, 1992, Claiborne declared that he was testifying under threat. The court immediately recessed the trial until April 13, 1992, giving Claiborne the opportunity to confer with his attorney. His attorney at the time advised him not to testify, presumably to save Claiborne from further perjuring himself. In an effort to establish the nature of these threats, the government served Claiborne's attorney with a subpoena on April 14,1992. Accordingly, the court appointed Claiborne new counsel, who made his first appearance on April 15, 1992. Given the unambiguous terms of the plea agreement, present counsel advised Claiborne to continue to testify at trial. In light of the conflicting advice, Claiborne now posits that his prior counsel rendered ineffective assistance of counsel. We disagree.
As enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant claiming that he was denied his Sixth Amendment right to effective assistance of counsel must demonstrate both "that his trial counsel's performance was constitutionally deficient and that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. Limehouse, 950 F.2d 501, 503 (7th Cir. 1991) (citing Strickland. 466 U.S. at 694, 104 S. Ct. at 2068), cert. denied, 112 S. Ct. 1962, 118 L. Ed. 2d 563 (1992). Assuming that he can "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy,'" Strickland 466 U.S. at 689, 104 S. Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83 (1955)), Claiborne nonetheless has failed to demonstrate a reasonable probability that, but for prior counsel's advice, the result of the proceeding would have been different. Indeed, to the extent that prior counsel's advice may have misled him regarding his obligation to testify, Claiborne received present counsel's admonition to testify prior to being recalled to the stand. Claiborne's claim of ineffective assistance of counsel falls with present counsel's advice, no matter whether it was heeded.
C. The Alleged Threats
Claiborne initially attempted to explain his testimony and conduct at trial as responses to conflicting threats made to him by the government, his co-defendants and the El Rukns. He now admits that the purported threats made by the various government officials are baseless. Claiborne's Answer to the Government's Motion to Revoke Plea Agreement at 7 ("The so called threats by the government appear to be no more than statements of harsh fact: that if he did not testify he was liable to face a life sentence."). Respecting the alleged threats made by the El Rukns and his co-defendants, although we take these allegations (as all allegations of coercion and threat) seriously, we do not believe they excuse Claiborne's false testimony at trial.
Significantly, this court, Judge Lozano and the government responded to the alleged threats with prudence and speed. Claiborne was aware of these threats months prior to trial and, in fact, conveyed them to this court during an in camera proceeding. At that time, Claiborne alleged that his girlfriend, Eula Scott, had been frightened and her house ransacked because of his cooperation with the government. In response, we allowed the government to contact Scott through the Dolton, Illinois police department in order to verify Claiborne's allegation and offer appropriate protection. Subsequently, upon learning that Claiborne may have received threats from various members of the El Rukns, the government offered to move Claiborne, his mother, his sister and anyone else Claiborne believed was at risk of retaliatory violence by the El Rukns. Claiborne refused this offer on behalf of himself and his family. Further, Claiborne refused the government's offer to seal the courtroom during his voir dire examination. Rather than accept the abundant assistance as offered, Claiborne opted to testify untruthfully. There is no question that the consequences of this decision are stern, placing Claiborne in breach of his plea agreement. Nonetheless, in light of the history of the case, it is a decision that cannot be excused by repeated allegations of threat.
D. Substantial Compliance
As a final effort to preserve the plea agreement, Claiborne asserts that he had testified to enough facts at trial to convict his co-defendants. This court, however, need not scrutinize the substance of Claiborne's testimony. Finding his testimony incredible, Judge Lozano was forced to strike Claiborne's testimony in its entirety. That his co-defendants were convicted is of no consequence to Claiborne. Indeed, they were convicted despite his failure to testify, not because of it. When entering into the plea agreement with Claiborne, the government was entitled to expect that Claiborne's cooperation would include truthful testimony against his co-defendants at trial. Given his conduct at trial after answering the question, "Are you testifying pursuant to a plea agreement?," we find that Claiborne has substantially breached the plea agreement.
As Claiborne has substantially breached his obligations under the plea agreement, we declare the agreement null and void and vacate his plea of guilty. His trial on the charges in the indictment is set for January 11, 1993. Because of the interests of justice, time is excluded under the Speedy Trial Act until January 11, 1993.
It is so ordered.
MARVIN E. ASPEN
United States District Judge