*

Judge Luttig was a member of the original panel but did not

participate in this decision. This opinion is filed by a quorum of

the panel pursuant to 28 U.S.C. § 46(d).

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-6648

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 versus

THERESA MARIE SQUILLACOTE, a/k/a Anne, a/k/a

Resi, a/k/a Lisa Martin, a/k/a Margrit, a/k/a

Margret, a/k/a Margit, a/k/a Mary Teresa

Miller, a/k/a The Swan, a/k/a Margaret, a/k/a

Schwan, a/k/a Tina,

 Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Claude M. Hilton, District

Judge. (CR-98-61; CA-02-537)

Submitted: August 26, 2005 Decided: June 2, 2006

Before LUTTIG,* MOTZ, and TRAXLER, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.
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Ty Cheung Gee, HADDON, MORGAN & FOREMAN, PC, Denver, Colorado, for

Appellant. Ronald Leonard Walutes, Jr., OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Theresa Marie Squillacote appeals from the district

court’s denial of her 28 U.S.C. § 2255 (2000) motion. She was

convicted after a jury trial of conspiracy to transmit information

relating to the national defense, attempted transmission of

national defense information, obtaining national defense

information, and making false statements. We previously granted a

certificate of appealability on Squillacote’s claims that (1) the

district court erred by failing to hold an evidentiary hearing on

Squillacote’s claim that she was denied her right to testify and

(2) purported new evidence was sufficient to warrant a new trial.

After further briefing by the parties, we vacate and remand with

regard to the former claim and affirm the relevant portion of the

district court’s order on the latter claim.

First, Squillacote alleged that her attorneys prevented

her from exercising her right to testify. Under Strickland v.

Washington, 466 U.S. 668, 694 (1984), in order to prove ineffective

assistance of counsel on this claim, Squillacote must show both

that her attorneys violated her right to testify and that her

testimony had a “reasonable probability” of changing the outcome of

her trial. The Government concedes that the question of whether

Squillacote’s right to testify was violated cannot be resolved

without a hearing. However, the Government asserts that

Squillacote’s testimony would not have affected her trial.
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After a thorough review of the record, we conclude that

Squillacote has made a sufficient showing of potential prejudice to

necessitate a hearing on both prongs of Strickland. See Gray v.

Spillman, 925 F.2d 90, 95 (4th Cir. 1991) (holding that summary

judgment may not be granted when there is opposing sworn testimony,

even when one side’s story is “hard to believe”). Squillacote’s

proposed testimony tells a story that, if believed, provides an

explanation for the suspicious circumstances that caused the jury

to convict her of conspiracy. In addition, should the jury believe

her explanation of her earlier actions, it may also believe that

she was not predisposed to espionage prior to the FBI’s sting

operation, thus strengthening her entrapment defense. Thus, while

expressing no opinion on the merits of Squillacote’s ineffective

assistance claim or the believability of her proposed testimony, we

vacate the portion of the district court’s order dismissing her

claim that her attorneys violated her right to testify and remand

for a hearing.

Second, Squillacote claims that she has newly discovered

evidence proving her innocence. The new evidence is an affidavit

from a German co-conspirator who refused to testify at trial but

has since changed his mind. The Government attached to its

informal brief copies of an out-of-court declaration by this

witness and transcripts of two interrogations, all of which were

admitted at trial. These documents provide the same innocent
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explanation for Squillacote’s actions as the newly-discovered

evidence. Squillacote does not dispute the characterization of the

evidence admitted at trial, nor does she attempt to distinguish the

evidence admitted from the proposed evidence.

Because it is undisputed that the substance of the

witness’s declaration was presented to the jury, we find that

Squillacote cannot show that the new evidence would have resulted

in her acquittal. While a live witness would obviously be more

effective than a dry transcript, we cannot conclude that it would

have altered the jury’s verdict, especially in light of the absence

of any argument by Squillacote on this point. See 4th Cir. R.

34(b) (stating that claims not raised in informal brief are

waived).

Based on the foregoing, we affirm the district court’s

denial of Squillacote’s claim of newly discovered evidence, vacate

the district court’s denial of Squillacote’s claim that she was

denied her right to testify, and remand for a hearing. We grant

Noell Peter Tin’s motion to withdraw and deny his motion to be

appointed CJA counsel as moot. We deny Squillacote’s motion for

oral argument, because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART