2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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D ock e t N o . 11-2467

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w . v i l l a no v a . e du/thir dc ir c uit_2012/982NO T PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________ No. 11

- 2467

_

________ UNITED STATES OF AMERICA

v. FAITH BROOKS, Appellant

________ On Appeal from the United States Distric t Court for the Middle District of Pennsylvania (D.C. No. 4

- 08

- cr - 00455

- 001 ) District Judge: Honorable William W. Caldwell

_______ Submitted Under Third Circuit LAR 34.1(a) April 23, 2012 Before: SLOVITER, ROTH , Circuit Judges and POLLAK, * District Jud ge (Filed : May 1 7 , 2012 )

______ OPINION

______

* Hon. Louis H. Pollak, United States District Court for the Eastern District of Pennsylvania, sitting by designation. Judge Pollak participated in the decision of this case, but died prior to the entry of the opinion on the docket

.2 SLOVITER, Circuit Judge

. Appellant Faith Brooks (“Ms. Brooks”) appeals her sentence of a total of 240 months imprisonment for production of child pornography (Count One), and 120 months imprisonment for p ossession of child pornography (Count Two), to be served concurrently. As the basis for her appeal , Ms. Brooks asserts that her trial counsel was ineffective.
I. On January 6, 2008, Childline, a child abuse reporting service, received an anonymous call advi sing that the caller had viewed on a webcam a nine year old girl exposing herself and masturbating with a sex toy. Childline immediately contacted Lycoming County Children & Youth Services (“CYS”) who sent Lisa Cox, accompanied by two police officers, to the home of the person whom the caller had identified as Faith Brooks. The caller was later identified by the investigators as Michael C rider of Arlington, Virginia who was subpoenaed to appear as a witness for the p rosecution at trial. Crider previously had a n internet relationship with Ms. Brooks on a “sex ch at and fantasy line.” Present in th e household were Ms. Brooks, her nine year ol d adopted daughter (“M”), and nineteen year old Chelsea Stabley , a cousin of Ms. Brook s , who also lived in the home. T he caseworker interviewed both M and Ms. Brooks individually

. At a follow

- up interview with M conducted by Rhonda McDonald, a CYS worker,
M stated that her mother had her pose in various sexual positions for photos on the3 webcam and that her mother had taught her how to use certain sex toys which were in Ms. Brooks’ closet

. M drew pictures of t he sex toys for the caseworker

. As a result , M

wa s removed from Ms. Brooks’ home.
T he Pennsylvania State Police began a criminal in vestigation and obtained a search warrant for Ms. Brooks’ home . Although Ms. Brooks originally denied M’s
statements , she later changed her story after reading the search warrant and admitted giving some explanations to the child but denied any demonstrations or taking any pictures of M. Recovered by the troopers in the search were: two computer towers, one from Ms. Brooks’ bedroom and one from the common area in the residence; a black bag filled wit h various sex toys found in Ms. Brooks’ closet; and thre e pairs of thongs found
in M’s bedroom. Trooper Thomas Trus al completed a forensic examination of the comput er from Ms. Brooks’ bedroom which revealed multiple nude and semi

- nude images of M and a video clip depicting similar material

. At trial, M testified that Ms. Brooks took th e photographs of her and had her pose in the various ways captured in the photographs and the video clip. Following Ms. Brooks ’ arrest and her initia l appearance , the CJA Panel appointed Jason Poplanski (“Poplanski”) as her counsel. T he Court initially d enied Ms. Brooks’ Motion for the Appointment of New Co unsel but thereafter gra nted her second motion and Poplanski ’s motion seeking to withdraw as counsel. T he Court then dischar ged Poplanski and appointed Stephen C. Smith in his place.4 The Jury Trial be gan on January 25 , 2010. The prosecution gave i ts opening
statement , called several witnesses , and rested at the end of the first day of trial. Defense counsel Smith cross

- exam ined Michael Crider, Lisa Cox, M, Rhonda McDonald, Trooper Akers, and Trooper Trus al. On t he following day, Smith gave a short opening statement
in which he said that Ms. Brooks had been a Lycoming County foster parent from 1997 until 2003 and had 78 p lacements involving 54 children. Ms. Brooks ultimately decided
not to testify an d Smith delivered a closing statement

. Additionally, Ms. Brooks informed the District Court that she was satisfied with the representation provided by trial defense counsel.
T he Jury returned a verdict of guilty on both counts. Judge Caldwell sentenced Ms. Brooks to 240 months imprisonment for production of child pornography (Count One), and 120 months imprisonment for possession of child pornography (Count Two), to be served concurrently. On appeal , Ms. Brooks seeks reversal and a new trial claiming
i neffective assistance of counsel

. Alternatively, she asks that we remand the case for a hearing on the effectiveness of counsel.
II. 1 To establish ineffective assistance of counsel, a defendant must show that: 1) counsel’s performance was deficient, and 2 ) the deficient performance prejudiced the defense. Strickland v . Washington , 466 U.S. 668, 690

- 92 (1984). Ordinarily, a claim of

1 This c ourt has jurisdiction pursuant 28 U.S.C. § 1291, as well as, 18 U.S.C . § 3742(a).5 ineffective assistance of counsel is brought as a collateral proceeding under 28 U.S.C. § 2255, and not on direct appeal, s e e Massaro v. United States , 538 U.S. 500 , 504

- 06 (2003), except where trial counsel’s ineffectiveness is so apparent from the record that such a determination may be made by an appellate court. See United States v. Headley , 923 F.2d 1079, 1083 (3d Cir. 19 91) (ruling that where the record is sufficient to allow determination of ineffective assistance of counsel, defendant may attack the efficacy of counsel on direct appeal).
In Massaro , the Supreme Court explained that “ w hen an ineffective assistance clai m is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.” 538 U.S. at 504

- 05 . The ap pellate court may have no way of knowing whether a seemingly unnatural or misguided action by counsel was based on a sound strategic motive or was taken because the counsel’s alternatives were worse. Id

. In addition, w ithout further factual development, an appellate court may not be able to ascertain whether the alleged error was prejudicial. Id

. Based on the aforementioned reasons, the district court is the forum best suited to develop the facts necessary to determine the adequacy of representation dur ing trial. See United States v. Griffin , 699 F.2d 1102, 1109 (11th Cir. 1983)

. Ms. Brooks argues that defense counsel Smith’s performance was clearly deficient because he failed to call any of the pot ential witnesses he identified during jury selection, gave merely a 277 word opening statement, a 141 word “defense” which simply gave a6 short history of Ms. Brooks ’ record as a foster parent, and a closing statement of 894 words. However, this Court has repeatedly expressed its “strong preference” for revie wing allegations of ineffective assistance of counsel in collateral proceedings under 28 U.S.C. § 2255. United States v. Sandini , 888 F.2d 300, 312 (3d Cir. 1989); s ee also United States v. Thorton , 327 F.3d 268 , 272 (3d Cir. 2003) (denying defendant's cl aim of ineffective assistance of counsel without prej udice to his right to raise the claim i n a collateral attack brought pursuant to 28 U.S.C. § 2255). Furthermore, the evidence on record in this case is not enough t o allow for an exception to the genera l rule, as expressed in Massaro , supra . Effectiveness of counsel may not be judged by the number of words counsel used. Ms. Brooks ignores the f act that defense counsel Smith cross

examined 6 of the 7 witnesses brought by the prosecution and that he had extensive advisory discussions with her in regard to her right to remain silent.
III. Accordingly, we will affirm the order of the District Court without prejudice to Ms. Brooks ’ right to pursue her claim of ineffective assistance of counsel in a collater al proceeding pursuant to 28 U.S.C. § 2255.