UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 99-20483

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JANADRICK KEMONT DRONES,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

July 25, 2000

Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Appellee Janadrick Kemont Drones was convicted of (1) conspiracy to possess crack cocaine

with intent to distribute and (2) aiding and abetting possession of crack cocaine. Drones petitioned

for federal habe as co rpus relief claiming, i nter alia, ineffective assistance of counsel. After

conducting an evidentiary hearing, the district court granted habeas relief, holding that Drones’s trial

counsel was ineffective in failing to investigate and present voice identification evidence. The district

court then vacated Drones’s convictions and ordered a new trial. The United States of America (the1 Arno ld Freddie pled guilty to all three counts. Vernon Freddie pled guilty to the

conspiracy and aiding and abetting charges and therefore was only tried for the firearm charge.

-2- “go vernment”) now appeals the district court’s ruling, arguing that Drones received effect ive

assistance of counsel. For the reason set forth below, we reverse the judgment of the district court.

I

A

On April 25, 1995, Sergeant Gregory Haire of the Texa s Depart ment of Public Safety

(“DPS”) met with two confidential informants (“CIs”) about arranging a purchase of crack cocaine.

Pursuant to Haire’s request, the CIs contacted two individuals whom they had identified as possible

drug dealers. When one of the individuals returned the call, DPS recorded the telephone conversation

as well as a second call from the same individual made later the same day. During the course of these

conversations, the CIs planned to meet the caller at a Burger King restaurant to complete the drug

transaction.

Later that afternoon, Haire and the CIs went to the parking lot of the Burger King where they

saw a parked Ford Musta ng. When the CIs approached the vehicle, the occupants of the

car—Vernon and Arnold Freddie (the “Freddies”) and Drones—let them into the car and began to

weigh the drugs. When Haire signaled for arrest, nearby officers surrounded the car and arrested the

Freddies as well as Drones, who was by then standing outside of the car. Drones and the Freddies

were charged with (1) conspiring to possess cocaine base with intent to distribute, ( 2) aiding and

abetting in the possession of cocaine base with intent to distribute, and (3) aiding and abetting in the

use and carrying of a firearm in relation to a drug trafficking offense.

Drones was tried with Vernon Freddie. 1 Before the case was submitted to the jury, the trial2 The government presented two additional trial witnesses: (1) a chemist who testified

that the substance found at the scene was crack cocaine; and (2) an ATF agent who testified that the

gun found in the car was operational.

-3- court granted Drones’s motion for judgment of acquittal on the firearm count but denied Drones’s

motion with respect to the other two counts. At trial, Haire testified that Drones was sitting in the

driver’s seat during part of the drug transaction. At the time of the arrest, Haire stated, Drones was

standing outside of the car and “made a motion as if to attem pt to run” when approached by the

police. When the police searched the vehicle, they found packages of cocaine in the front passenger

compartment.

While Haire was on the witness stand, the government tapes were played for the jury, and

Haire testified that he recognized Drones’s voice as the “unknown” speaker on the tapes. On crossexaminatio n o f Haire, Drones’s court-appointed counsel, Christopher Goldsmith, emphasized the

sloppy nature of the police investigation a nd t he fact that, despite the high reliability of voice

identification evidence, the government had put forth no expert testimony ident ifying Drones’s voice

as the unknown voice on the tapes. Goldsmith presented no expert voice identification evidence of

his own. 2

Goldsmith called several witnesses to testify in Drones’s defense . First, the Freddi es both

testified that Drones did not participate in the drug transaction. Arnold Freddie further testified that

he was involved in the taped phone conversations, and that he did not recognize Drones’s voice on

the government tapes. He stated that the first time he met Drones was in the Burger King parking

lot.

Next, Krisna Brown-Drones (“Krisna”), Drones’s then-fiancee, testified that she was with

Drones on the day of the arrest. More specifically, she t estified that she and Drones were at her3 Cain’s qualifications are extensive. At the time of trial, he was the president of

Applied Forensic Technologies International. Prior to that, Cain spent twenty-two years working for

various governmental agencies as a forensic specialist. Cain has been certified in voice identification

-4- sister’s apartment, which did not have a phone, between noon and 4:30. At approximat ely 4:30,

Krisna testified, Drones left the apartment to get something to eat.

The jury convicted Drones of both drug char ges. Shortly thereafter, the trial court

reconsidered and granted Drones’s motion for judgment of acquittal on the conspiracy and aiding and

abetting claims. In reversing its prior ruling, the court found that (1) Drones’s voice was probably

not on the tape, and (2) the government had presented insufficient evidence to convict Drones. The

government appealed, and we reversed and remanded with instructions to the di stri ct court to

reinstate the jury verdict. On remand, the district court reinstated the verdict and sentenced Drones

to 210 months imprisonment. We affirmed the conviction and sentence.

B

Drones filed a t imely motion to vacate, set asi de, or correct hi s sentence pursuant to 28

U.S.C. § 2255 claiming, inter alia , that he was denied effective assistance of counsel. Specifically,

Drones contended that Goldsmith had rendered ineffective assistance by failing to investigate and

present expert and layperson voice identification testimony that his voice was not on the government

tapes. The district court conducted an evidentiary hearing on the issue of “whether counsel’s failure

to investigate exculpatory evidence regarding Drones’s identity rendered his performance

constitutionally deficient.”

Drones, represented by newly appointed counsel, presented four witnesses at the evidentiary

hearing. First, St eve Cain, a forensic scientist and voice identification expert, testified about the

procedures used in voice analysis and his own analysis of the government tapes. 3 Cain testified that,and/or tape analysis by the Treasury Department, the International Association for Identification, and

the American College of Forensic Examiners.

4 Voice identification analysis consists of both “critical listening,” whic h essentially

requires an expert to carefully listen to the qualities of two voices, and spectrographic analysis. In

the latter phase, a computer-based instrument compares the frequencies and amplitudes of a voice

on a questioned recording with those of a known sample. Both Cain and the government’s expert,

Bruce Koenig, testified t hat there were seven possible results of a voice identification analysis:

identification, probable identification, possible identification, inconclusive, possible e limination,

probable elimination, and elimination.

-5- after comparing the unknown voice on the government tapes with a voice exemplar obtained from

Drones, he reached a finding of “probable elimination,” meaning that at least 80% of the comparable

words in the samples were dissimilar aurally and spectrographically. 4

While Cain testified that there were published recommended procedures for conducting voice

identification examinations, he also acknowledged several weakn esses in spectrographic analysis.

Specifically, he testified that there was no set of objective criteria against which to check the accuracy

of a particular expert’s analysis and that voice identification analysis was largely subjective in that the

examiner ultimately decides whether two spectrographs match one another.

Krisna testified that she was familiar with Drones’s voice and therefore able to distinguish it

from other voices. She further testified that Goldsmith never asked her to listen to the audiotapes

prior to the trial. After listening to the government tapes at the evidentiary hearing, she testified that

Drones’s voice was not on the government tapes.

Next, Lieutenant Colonel Dave Johnson, Drones’s grandfather, t est ified that he was also

familiar with Drones’s voice, and that Goldsmith had never asked him t o listen to the government

tapes. After listening to the tapes at the hearing, he stated that he did not recognize Drones’s voice

on the tapes. Johnson further testified that while he had suffered some hearing loss, that loss did not5 Koenig’s credentials are also exemplary. At the time of trial, he was a private

consultant involved in audio and video analysis. Prior to entering private practice, Koenig was

employed as a supervisory special agent in the FBI where he also conducted audio and visual analysis.

-6- prevent him from recognizing Drones’s voice.

Goldsmith also testified at the evidentiary hearing. He stated that he considered the tape to

be a “critical” piece of evidence at the trial because, without the identification of Drones’s voice, the

government would have had a “much mo re difficult time” proving that Drones was part of a

conspiracy. He also stated that “several week or months” before trial, Drones told him that it was

not his voice on the tape. While Goldsmith listened to the tape several times, he was unable to

determine whether or not Drones’s voice was on the tapes. Most importantly for the purposes of this

appeal, Goldsmith testified that he made a “strategic decision” to base Drones’s defense upon sloppy

police work, the alibi testimony of Brown, and the Freddies’ testimony, rather than upon expert voice

identification te st imo ny that Drones’s voice was not on the government tapes. Because of this

decision, Goldsmith testified, he never sought out expert or layperson evaluations of the tapes.

Finally, the government presented the expert testimony of Bruce Koenig, a private consultant

and former Federal Bureau of Investigation employee. 5 Koenig testified that very little research has

been done in the area of “courtroom application of spectrographic voi ce ident ification,” largely

because since the 1970’s, many researchers have felt that spectrogr aphic comparison could not

produce reliable results. He stated that “almost nobody” in the relevant scientific community uses

spectrogra p hic voice identification because there is no theoretical basis for the proposition that an

individual’s voice is truly unique and identifiable. Nonetheless, Koenig, like Cain, found a “probable

elimination” as to one of the government tapes. With respect to the other tape, Koenig used only

“critical listening” and concluded that Drones’s voice was dissimilar to the voice on the government-7-

tapes.

After making extensive findings of fact and law, the district court held that Drones was denied

effective assistance of counsel due to Goldsmith’s failure to investigate the identity of the voice on

the government tapes, and it granted habeas relief. More specifically, the district court found that

counsel did not make a “reasonable and informed choice to foreg o investigati on of the tape after

list ening to the tape on his own” and that “by choosing not to investigate or present such evidence,

Goldsmith denied the jury the opportuni ty to hear this potentially exculpatory evidence on [the issue

of vo ice identification].” The government filed this timely appeal in which it contends that (1)

defense counsel’s decision not to investigate the identity of the voice on the tape was a reasonable

strategic legal decision, and (2) even if counsel’s performance was deficient, that deficiency did not

prejudice Drones’s defense. We review a district court’s finding of fact on requests for habeas relief

for clear error and its rulings on issues of law de novo

. S ee Fairman v. Anderson

, 188 F.3d 635, 640

(5th Cir. 1999). Determinations regarding the effectiveness of counsel are mixed questions of law

and fact which we review de novo

. See Ransom v. Johnson , 126 F.3d 716, 721 (5th Cir. 1997).

II

We review ineffective assistance claims under the familiar two-prong analysis set forth i n

Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, a

petitioner must demonstrate that his attorney’s performance was deficient. S ee Strickland

, 466 U.S.

at 688, 104 S. Ct. 2052. In order to be deficient, counsel’s performance must be “outside the wide

range of professionally competent assis tance.” I d. at 690, 104 S. Ct. 2052. If he succeeds in

sat isfying the first hurdle, then a p et it io ner must also demonstrate that the deficient performance

prejudiced the defense such tha t “t here is a reasonable probability that, but for counsel’s-8-

unprofessional errors, the result of the proceeding would have been different.” I d. at 694, 104 S. Ct.

2052; see also Bryant v. Scott , 28 F.3d 1411 (5th Cir. 1994).

A

Our review of counsel’s performance is “highly deferential,” and w e “indulge a strong

pre sumption that counsel’s performance falls within the wide range of reasonable professional

assistance.” S trickland

, 466 U.S. at 689 , 104 S. Ct. 2052. Recognizing that in “failure to

investigate” cases the te mpt at ion t o rely on hindsight is strong, the Supreme Court stated that

“strategic choices made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable.” I d. at 690, 104 S. Ct. 2052. However, “strategic choices made after less

t han complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words, counsel has a duty to make

reasonable investigations or to make a reason able decision that makes particular investigations

unnecessary.” Id. at 690-91, 104 S. Ct. 2052. Strickland does not require us to defer to decisions

that are uninformed by an adequate investigation into the controlling facts and law. S ee Moore v.

Johnson , 194 F.3d 586, 615 (5th Cir. 1999).

There is little doubt that Goldsmith failed to make any, let alone a reasonable, investigation

into the identity of the unknown voice on the government tapes. Goldsmith himself testified at the

evidentiary hearing that he never even investigated the availabilit y of expert vo ice identification

analysis of the tapes. He further testified that he chose not to play the tapes for either Drones or

members of his family. Both Krisna and Johnson testified that while Goldsmith conferred with them

befo re t rial, he never asked them to review the tapes. Accordingly, the question here is whether

Goldsmith’s decision to limit his investigation so as to develop neither expert nor lay person-9-

identification testimony was reasonable under the circumstances. See Strickland , 466 U.S. at 691,

104 S. Ct. 2052; id. at 699, 104 S. Ct. 2052 (stating that when assessing counsel’s conduct, we must

“reconstruct the circumstances of counsel’s challenged conduct and [evaluate] the conduct from

counsel’s perspective at the time”).

As an init ial matter, we no t e t he significance of the government tapes to the prosecution’s

case. Drones was charged with both aiding and abetting possession of crack cocaine and conspiracy

to possess crack with an intent to distribute. Probative to both claims were the taped conversations

in which the CIs planned to meet an unknown caller to complete a drug transaction. The government

presented only one witness— Officer Haire—to testify that he recognized Drones’s voice on the

government tapes. S ee Fed. R. Evid. 901(b) (5) (pro viding that “identification of a voice . . . by

opinion based upon hearing the voice at any time under circumstances connecting it with the alleged

speaker” satisfies Rule 901’s authentication/identification requirement). At the evidentiary hearing,

Goldsmith conceded that the tapes were “crucial” to the government’s case and that without them,

the government would have had a “much more difficult time” provin g that Drones was part of a

conspiracy. Thus, going into trial, Goldsmith knew that the government had a key piece of direct

evidence linking Drones to a conspiracy, and he knew that his client had to challenge the validity of

that piece of evidence. The district court held that, under these circumstances, Goldsmith should have

pursued both expert and layperson identification testimony in an effort to determine whether the voice

on the tape was in fact Dro nes’s vo ice, and that his failure to do so constituted constitutionally

deficient conduct.

We turn first to counsel’s decision not to invest igat e cert ain layperson identification

testimony. Goldsmith testified that his decision not to play the tape for Johnson was b a sed on his-10-

concerns that Johnson’s testimony (1) would have been impeachable due to his familial relationship

with Drones and (2) could hav e opened the door to questi oni ng about Drones’s pri

or narcoti cs

convictions. Goldsmith chose not to play the tapes for Krisna because he believed that her testimony

would have been cumulative given her alibi testimony. We find that these concerns were valid and

his decisions were part of a plausible trial strategy. Goldsmith was correct that, if Johnson testified,

he could have opened the door to question s abo ut Drones’s prior drug convictions. Counsel’s

decision not to pursue evidence that could be “double-edged in nature [was] objectively reasonable

and therefore does not amount to deficient performance.” L amb v. Johnson

, 179 F. 3d 352, 358 (5th

Cir. 1999) (quoting Rector v. Johnson

, 126 F. 3d 551, 564 (5th Cir. 1997)); Kitchens v. Johnson

, 190

F.3d 698, 702-03 (5th Cir. 1997) (finding that counsel’s decision not to investigate mitigating

evidence of child abuse, alcoholism, and mental illness was sound trial strategy ). Similarly, Goldsmith

determined that Krisna’s identification testimony would not have been of additional help to Drones’s

defense given that she had already provided alibi testimony that, if believed, would have made it

impossible for Drones to have made the recorded phone calls. This det ermination was not

unreasonable under the circumstances. Since Goldsmith would not have presented either Krisna or

Johnson’s testimony at trial, his decision not to investigate the substance of that potential testimony

was reasonable.

We find Goldsmith’s failure to investigate the availabilit y of expert spectrographic analysis

of the tapes more troubling . Having ruled out two possible sources of identification testimony in

Krisna and Johnson, Goldsmith was still faced with a significant piece of damaging evidence at trial.

Under these circumstances, Goldsmith’s decision simply to abandon any investigation of the tapes

might not seem reasonable. This is not, however, a case in which counsel simply fails to articulate-11-

a justification for his limit ed investigation. Here, our analysis is complicated by the fact that

Goldsmith testified that he chose not to investigate spectrographic anal ysis fo r strategic reasons.

Specifically, Goldsmith testified that, at the start of the case, he made t he “strategic decision” to

“attack the government’s case” rather than to “assume the burden of proof

. . . and try to disprove

that it was Mr. Drones’s voice on the tap e.” Go ldsmit h further testified that his choice of trial

strategy was influenced by t he co nt ro versial nature of expert voice analysis. On appeal, the

government argues, inter alia

, that Goldsmith’s decision not to pursue spectrographic analysis was

objectively reasonable given the questionable reliability of expert voice identification evidence.

We note as a preliminary matter that Goldsm it h’s t estimony raises serious doubts as to

whether he actually knew enough about the relevant law to have made a reasoned legal decision based

upo n it. See Loyd v. Whitley , 977 F.2d 149 (5th Cir. 1992) (finding deficient performance where

“counsel’s decision had not been made after a thorough investigat io n of the law; [counsel] was

unaware of the law”). Specifically, Goldsmith testified that that his decision was based in part on

his belief that “at the time [of trial], the admissibility of this type of evidence was controversial based

on the Fifth Circuit law that was in place at the time.” Our review of this circuit’s case law indicates

that we have never before addressed the admissibility of spectrographic evidence.

The government takes Goldsmith’s argument a step further and argues that, “regardless of

whether Goldsmith acted for the reasons he said he acted,” he was reasonable in failing to investigate

expert voice identification testimony because the reliabilit y of such evidence was questionable at the

time of trial. We recognize that counsel is not required to pursue a line of defense that he knows will

be fruitless. C

f

. Nealy v. Cabana , 764 F.2d at 1178 (finding deficient performance where counsel

“did not testify that such efforts would have been fruitless

. . . [but] simply failed to make the effort6 For example, Goldsmith testified that he did not make a motion for appointment of

funds for an expert voice identification analysis because his “decision on the trial strategy made that

motion unnecessary.” He also testified that, to his knowledge, there was no local expert witness but

that he “made the strategic choice before needing to attempt to locate an expert.”

7 While none of our previous cases explic it ly hold that a failure to investigate can be

deficient only if such failure leads to the exclusion of admissible evidence, the underlying assumption

in our prior cases is that an investigation would have resulted in, at the very least, a dmissible

evidence. S ee, e.g., Moore v. Johnson

, 194 F.3d 6 04, finding failure to investigate defendant’s

background and the facts underlying an “a ccidental shooting” theory was professionally

unreasonable); Bryant

, 28 F.3d at 1418 (ho lding co unsel’s failure to investigate alibi witness and

eyewitnesses to the crime amounted to constitutionally deficien t performance); L oyd

, 977 F.2d at

157-59 (holding failure to obtain psychological analysis of de fendant to present during sentencing

phase of trial was not reasonable). In contrast, we are unable to locate any federal case in which a

court held that an attorney rendered a constitutionally deficient performance due to his failure to

investigate evidence that he would not have been able to present at trial.

-12- to investigate”). Here, however, there is virtually no indication in the record that Goldsmith ever did

enough research into expert voice analysis to make a determination regarding the merits of a defense

based on expert testimony. Rather, Goldsmith testified that he decided at the start of the case that

he would not investigate any means by which he could affirmat ively disprove that Drones’s voice was

on the tapes. He then relies o n this “strategic” decision to justify his failure to conduct even a

preliminary investigation into the availability of expert witnesses in the Texas area. 6

Nonetheless, despite our reservations as to whether Goldsmith actually knew enough about

the law surrounding the admissibilit y of spectrographic evidenc e t o have made a reasoned legal

decision based upon it, see Loyd , 977 F.2d at 158 (finding deficient performance where “counsel’s

decision had not been made after a thorough investigation of the law; [counsel] was unaware of the

law”), we find that Goldsmith’s failure to in vest igate can be constitutionally deficient only if it

resulted in the exclusion of competent evidence. 7 Given the current state of the law regarding the

admissibilit

y of expert voice identification te st imony and the expert testimony presented at the-13-

evidentiary hearing, we cannot say that counsel’s choice of strategy was unreasonable and therefore

deficient.

At the time of Drones’s trial, four of our sister circuits had upheld the admissibility of

spectrographic evidence, see United States v. Smith

, 869 F.2d 348, 351 (7th Cir. 1989) (“Under the

Frye test, seve ral other circuits have held expert testimony concerning spectrographic voice

identification admissible.

. . . We join these circuits today, and hold that expert testimony concerning

spectrographic voice analysis is admiss ible in cases where the proponent of this testimony has

established a proper foundation.”); United States v. Williams

, 583 F. 2d 1194, 1201 (2d Cir. 1978)

(finding spectrographic analysis admissible under a modified version of the Frye test of admissibilit y);

United States v. Baller

, 519 F.2d 463, 465-67 (4th Cir. 1975) (same); United States v. Franks

, 511

F.2 d 25, 32-34 (6th Cir. 1975) (same), and one appellate court had refused to admit expert voice

identification testimony, see United States v . Addison , 498 F.2d 741, 745 (D.C. Cir. 1975); s ee

generally United States v. McDaniel

, 538 F.2d 408, 413 (D.C. Cir. 19 76) (finding that court was

bound by prior ruling tha t voice identification evidence was inadmissible but noting trend towards

admissibilit

y of “voiceprints”). However, all of these cases were decided before D aubert v. Merrell

Dow Pharmaceuticals

, in which the Supreme Court set out the applicable standard for determining

the admissibilit

y of scient ific evidence. S ee Daubert

, 509 U.S. 579,589-90, 113 S. Ct. 2786, 125 L.

Ed. 2d 469 (1993) (ho lding that Federal Rule of Evidence 702 superceded the “ F rye standard” of

admissibilit

y of scientific evidence and that under Rule 702, the district court had to determine that

proffered expert testimony was both reliable and relevant); id. at 593-94, 113 S. Ct. 2786 (setting out

five non-exclusive factors to assist t he district court in determining the reliability of proffered

scient ific evidence). No federal case decided post- D aubert has considered the admissibilit y of expert8 We note that the one state court to address the admissibili ty of spectrographi c

evidence post- Daubert determined that spectrographic analysis was admissible. S ee State v. Coon

, 974 P.2d 386 (Alaska 1999).

-14- voice identification testimony. 8

In addition to the fact that t he st at e o f the law concerning expert voice identification was

ambiguous, the expert t e stimony presented at the evidentiary hearing demonstrates that

spectrographic analysis is—and was at the time of Drones’s trial—of questionable scient ific validit y.

Most notably, at the hearing, Koenig testified that there is no proven theoretical basis for the basic

underlying premise that one person’s voice is truly unique an d t herefo re identifiable. He further

stated that this has resulted in a precipitous drop in the number of expert practitioners over the past

few decades, from fift

y to sixty practitioners in the 1970’s to roughly a dozen experts at the time of

Drones’s t rial. While Cain testified that expert voice identification testimony has been used

extensively in state and federal courts over the past thirty years, he also testified that he did not know

if spectrographic evidence was widely accepted by the releva nt scientific community. He also

acknowledged that numerous factors—including a defend ant ’s ability to disguise his own

voice—could affect the reliability of expert analysis.

Thus, even assuming that expert voice identification would have met the Daubert standard,

at trial, expert testimony that voice analysis would have indicated a “probable exclusion” of Drones

as the unidentified voice on the tape would have almost certainly have been accompanied by, at the

very least, a ri gorous cross-examination of Drones’s expert. Most likely, the government would have

also presented Koenig’s testimony t hat spectrographic analysis was, at best, a dwindling science.

Beyond this, any expert testimony that Goldsmith could have presented woul d have been further

impeached by the substantial circumstantial evidence of Drones’s participation in the drug conspiracy.9 We do not reach the question of whether expert voice identification testimony is

admissible under Daubert.

10 Because we find that Go ldsmit h’s failure to investigate layperson testimony from

Krisna and Johnson

was reasonable, the government correctly isolates the issue here as whether

Goldsmith’s failure to investigate voice identification testimony was prejudicial to Drones’s defense.

-15- In sum, gi ven t he uncertainty of the current state of the law regarding the reliability and

admissibilit

y of expert voice identification evidence, and the vulnerability of such expert testimony

at trial, we simply cannot say that Goldsmith’s choice of strategy— and specifically his decision to

attack the government’s case rather than to rely on expert voice identi ficat io n testimony—was

unreasonable. 9 Accordingly, his representation of Drones was not constitutionally deficient.

B

Additionally, Drones cannot prevail under Strickland because he is unable to prove that he

was prejudiced by his counsel’s actions. S ee Strickland

, 466 U.S. at 694, 104 S.Ct. 2052. In order

to satisfy the prejudice prong of Strickland, Drones must show “more than the mere possibility of a

different outcom e.” R ansom

, 126 F. 3d at 723. Rather, a petitioner must present “evidence of

sufficient quality and force to raise a reasonable probability that,” had it been presented to the jury,

the outcome would have been different. Id. ; see also Strickland , 466 U.S. at 694, 104 S. Ct. 2052

(holding that in order to show prejudice, defen dant must demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different”). We find that, under the facts of this case, t he dist rict court erred in concluding that

Drones met this substantial burden. More precisely, we find that given the existence of other

circumstantial evidence against Drones, Drones cannot demonstrate that Goldsmith’s failure to

investigate and present expert voice identification testimony prejudiced his defense. 10-16-

While the government tapes were clearly important to proving the overall conspiracy, this is

not a case where a determination of guilt rested entirely on this evidence. To the contrary, here, even

assuming Drones’s voice was not on the tape, there was additional significant circumstantial evidence

in the record to support the jury’s convictions.

In order to prove a drug c o nspiracy, the government must present evidence of (1) an

agreement between two or more persons to violate narcotics laws, (2) a defendant’s knowledge of

the agreement, and (3) a defendant’s voluntary participation in that agreement. S ee United States v.

Chavez

, 119 F.3d 342, 347 (5th Cir. 1997). The agreement that forms the basis of a conspiracy

charge can be implicit, and a jury may infer its existence from circumstantial evidence. See United

States v. Thomas , 12 F.3d 1350 (5th Cir. 1994); see also Chavez

, 119 F.3d at 347 (“A defendant’s

presence and association with other members of the conspiracy, when supported by other evidence,

may be used to support a finding of conspiracy.”); United States v. Gallo

, 927 F.2d 815, 820 (5th Cir.

1991) (“The Government is not required to prove the existence of the conspiracy and the agreement

between the co-conspirators and the defendant by direct evidence, but may present circumstantial

evidence, such as the co-conspirator’s conc ert ed act io ns, from which the jury can infer that a

conspiracy existed.”). The essential elements of an aiding and abetting claim are (1) association with

a criminal drug venture, (2) participation in the venture, and (3) action by the defendant that, in some

way, tries to make the venture succeed. See Chavez , 119 F.3d at 347. Typically, the evidence that

supports a conspiracy conviction supports an aiding and abetting conviction. See id. at 347.

Here, Of ficer Haire testified that he observed Drones sitting in the driver’s seat of the

Mustang during the drug transaction. While Drones was in the car, the Freddies weighed eighteen

pieces of crack cocaine. Haire further testified that at so me point during the transaction, Drones-17-

stepped out of the Mustang and stood beside the car, and that when the officers app roached the

vehicle, Drones attempted to flee the parking lot. When the officers searched the vehicle, they found

packages of crack in the front passenger compa rt ment o f the vehicle. Viewed as a whole, this

evidence of concerted action and flight is strong support for the jury verdict. C f. Gallo

, 927 F.2d at

820 (“The existence of the agreement, the defendant’s participation in the conspiracy may be inferred

from the ‘development and collocation of circumstances.’”); United States v. Thorn

, 917 F.2d 170,

173 (5th Cir. 1989) (“If Thorn understo o d t he unlawful nature of the activity and knowingly or

intentionally joined it on at least one occasion, that was sufficient to convict him of conspiracy, even

though he played only a minor role in the scheme.”). The same evidence could also establish

Drones’s association with a criminal narcotics venture and his participation in it. See United States

v. Gallo , 927 F.2d 815, 822 (5th Cir. 1991) (“The same evidence that establishes [a defendant’s]

knowing and voluntary participation in the co nspiracy also establishes his association with the

criminal venture and participation in it.”). Specifically, the fact that eighteen pieces of crack cocaine

were weighed while Drones sat in the driver’s seat of the car is strong circumstantial evidence of his

association with and participation in the sale of that crack.

The fact that—even if Goldsmith had conducted a thorough investigation—at trial, the jury

would have been presented with considerable circumstantial evidence of Drones’s guilt leads us to

conclude that Drones was not prejudiced by counsel’s deficient conduct.

III

For the foregoing reasons, we REVERSE the judgment of the district court and REMAND

with instructions to deny habeas relief.