The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Tony Silva pled guilty to conspiring to smuggle wildlife and filing a
false tax return, and was sentenced to a term of imprisonment of 82
months. Mr. Silva now moves for habeas corpus pursuant to
28 U.S.C. § 2255. For the following reasons, Mr. Silva's petition for
habeas corpus is denied.
Tony Silva is internationally recognized as an expert on rare birds. In
1996, Mr. Silva pled guilty to a conspiracy involving smuggling birds in
violation of various wildlife laws, and to filing a false tax return.
According to the facts admitted in the plea agreement, between 1986 and
1991 Mr. Silva conspired with Gila Daoud (his mother) and several other
co-conspirators to smuggle protected birds into the United States. Many
of the smuggled birds were obtained illegally in South America by a
co-conspirator and sold to another co-conspirator, who would mingle the
birds with legally obtained birds and ship them to the United States. At
a quarantine station, Mr. Silva and a co-conspirator would remove the
illegally obtained birds while the United States Department of
Agriculture employee was distracted. Subsequently Mr. Silva would sell
the illegally obtained birds.
In the plea agreement Mr. Silva also admitted that between 1986 and
1988, he used other exporters in South America to smuggle various birds
into the United States. In 1989, Mr. Silva purchased numerous Hyacinth
Macaws that a co-conspirator captured in the wild, and he provided the
funds for the macaws to be brought to Mexico. Mr. Silva moved to the
Canary Islands to serve as curator at a private bird sanctuary in 1989,
but until 1991 he continued his efforts to import into the United States
the macaws being held in Mexico. Mr. Silva further admitted, for the
purposes of relevant conduct for sentencing, selling various birds between
1989 and 1991. The government and Mr. Silva agreed to disagree on the
application of the sentencing guidelines.
A sentencing hearing was held, and after three days of testimony from
co-conspirators and a government informant, James Mackman, Mr. Silva
moved to withdraw his guilty plea. Mr. Silva argued that when he moved to
the Canary Islands in 1989 his participation in the conspiracy ceased.
According to Mr. Silva, he only pretended to continue to participate so
that his birds would not be abandoned. Mr. Silva's motion to withdraw his
guilty plea was denied, and the denial was upheld by the Seventh Circuit
on appeal. United States v. Silva, 122 F.3d 412 (7th Cir. 1997).
Ultimately Mr. Silva was sentenced to 82 months in prison. Mr. Silva now
moves for habeas corpus review pursuant to 28 U.S.C. § 2255 on two
grounds, ineffective assistance of counsel and the government's failure
to disclose exculpatory material.
Ineffective Assistance of Counsel
To prevail on his ineffective assistance of counsel claim. Mr. Silva
establish both "that counsel's representation fell below an objective
standard of reasonableness" and that "but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). To prove the second prong, prejudice, with respect to
his guilty plea, Mr. Silva must demonstrate "that there is a reasonable
probability that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." Hill v. Lockhart,
474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
Mr. Silva was represented by David Schippers throughout his plea
negotiations, sentencing, and direct appeal. The grounds alleged by Mr.
Silva for his ineffective assistance of counsel claim can be divided into
seven categories: 1) Mr. Schippers incorrectly advised Mr. Silva about
the statute of limitations; 2) Mr. Schippers failed to move for a bill of
particulars on the conspiracy count; 3) Mr. Schippers worked under a
conflict of interest; 4) Mr. Schippers coerced Mr. Silva into pleading
guilty; 5) Mr. Schippers forced Mr. Silva to meet with government agents
and to appear before the grand jury; 6) Mr. Schippers failed to
investigate the case properly; and 7) Mr. Schippers failed to develop a
theory of defense.
A. Statute of Limitations
According to Mr. Silva, Mr. Schippers incorrectly advised him that the
statute of limitations on the conspiracy claim went back 10 years rather
than 5 years. Mr. Silva argues that, if he had known the statute of
limitations only went back 5 years, he would not have pled guilty to the
conspiracy count. Pursuant to 18 U.S.C. § 3282, an indictment must be
returned within five years of the commission of the offense. Count one of
the indictment, to which Mr. Silva pled guilty, charges Mr. Silva with a
conspiracy against the United States under 18 U.S.C. § 371.
"Conviction requires proof `that the conspiracy still subsisted within
the [five] years prior to the return of the indictment, and that at least
one overt act in furtherance of the conspiratorial agreement was
performed within that period.'" United States v. Nowak, 448 F.2d 134, 139
(7th Cir. 1971) (quoting Grunewald v. United States, 353 U.S. 391, 396,
77 S.Ct. 963, 1 L.Ed.2d 931 (1957)).
The crucial question is "the scope of the conspiratorial agreement, for
it is that which determines both the duration of the conspiracy, and
whether the act relied on as an overt act may properly be regarded as in
furtherance of the conspiracy." Grunewald, 353 U.S. at 397, 77 S.Ct.
963. Count one of the indictment charges that the conspiracy began on or
about July 1985 and continued through January 1992. The indictment
containing count one was returned in December 1994. of the 50 overt acts
charged, 25 occurred within five years of December 1994, from April 1990
until January 1992. In an affidavit Mr. Schippers states that he was
aware of the five-year statute of limitations in conspiracy cases, and
that he explained to Mr. Silva that if the government established an
overt act within that period, the government could go back to the
beginning of the conspiracy and introduce evidence relating to events
that may have occurred ten or more years earlier. (Schippers Aff. at
¶ 16). If Mr. Schippers told Mr. Silva that the government "can go
back 10 years," as Mr. Silva alleges, Mr. Silva cannot establish
prejudice, because in the context of this case the government could have
gone back 10 years (or more) at trial. One-half of the overt acts charged
by the government occurred within five years of the return of the