UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 99-20483

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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) conspiracyto possess crack cocaine

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

for federal habeas corpus relief claiming, inter alia, ineffective assistance of counsel. After

conducting an evidentiary hearing, the district court granted habeasrelief, holding that Drones’strial

counselwasineffective 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 (the
1 Arnold 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.

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“government”) now appeals the district court’s ruling, arguing that Drones received effective

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 Texas 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 callfrom 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 ofthe Burger King where they

saw a parked Ford Mustang. 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 trial
2 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.

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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 attempt 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 crossexamination of Haire, Drones’s court-appointed counsel, Christopher Goldsmith, emphasized the

sloppy nature of the police investigation and the fact that, despite the high reliability of voice

identification evidence, the government had put forth no expert testimony identifyingDrones’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 Freddies 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 testified that she and Drones were at her
3 Cain’s qualifications are extensive. At the time of trial, he was the president of

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

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

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

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

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

reconsidered and granted Drones’s motion for judgment of acquittalon the conspiracyand 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 district 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 timely motion to vacate, set aside, or correct his 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, Steve 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 TreasuryDepartment, the InternationalAssociation for Identification, and

the American College of Forensic Examiners.

4 Voice identification analysis consists of both “critical listening,” which 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 that there were seven possible results of a voice identification analysis:

identification, probable identification, possible identification, inconclusive, possible elimination,

probable elimination, and elimination. 

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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 

WhileCain testified that there were published recommended proceduresfor conducting voice

identification examinations, he also acknowledged several weaknesses 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 waslargely 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, testified that he was also

familiar with Drones’s voice, and that Goldsmith had never asked him to 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 not
5 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.

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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 more 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 alibitestimony ofBrown, and the Freddies’testimony, rather than upon expert voice

identification testimony 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 ofBruce 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 voice identification,” largely

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

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

spectrographic 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
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tapes.

After making extensive findings offact 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 forego investigation of the tape after

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

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

of voice 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. See 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 in

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. See 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 assistance.” Id. at 690, 104 S. Ct. 2052. If he succeeds in

satisfying the first hurdle, then a petitioner must also demonstrate that the deficient performance

prejudiced the defense such that “there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.” Id. 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 we “indulge a strong

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

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

investigate” cases the temptation to rely on hindsight is strong, the Supreme Court stated that

“strategic choices made after thorough investigation oflaw and factsrelevant to plausible options are

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

than 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 reasonable 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. See 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 availability of expert voice 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

before trial, 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 layperson
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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 initial matter, we note the 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

inwhich 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. See 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” proving 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 testimonyinaneffort to determine whether the voice

on the tape was in fact Drones’s voice, and that his failure to do so constituted constitutionally

deficient conduct. 

We turn first to counsel’s decision not to investigate cert ain layperson identification

testimony. Goldsmith testified that his decision not to play the tape for Johnson was based on his
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concerns that Johnson’s testimony (1) would have been impeachable due to his familial relationship

with Drones and (2) could have opened the door to questi oning about Drones’s prior narcotics

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 trialstrategy. Goldsmith was correct that, if Johnson testified,

he could have opened the door to questions about 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.” Lamb v. Johnson, 179 F. 3d 352, 358 (5th

Cir. 1999) (quoting Rector v. Johnson, 126 F. 3d 551, 564 (5thCir. 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 mentalillness wassound trialstrategy). Similarly, Goldsmith

determined that Krisna’sidentification testimonywould 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 determination 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 availability 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
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a justification for his limited investigation. Here, our analysis is complicated by the fact that

Goldsmith testified that he chose not to investigate spectrographic analysis for strategic reasons.

Specifically, Goldsmith testified that, at the start of the case, he made the “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 tape.” Go ldsmith further testified that his choice of trial

strategy was influenced by the controversial 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 Goldsmith’s testimony raises serious doubts as to

whether he actuallyknew enough about the relevant law to have made a reasoned legaldecision based

upon 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 investigation of the law; [counsel] was

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

his beliefthat “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 wasreasonable in failing to investigate

expert voice identification testimony because the reliability ofsuch 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. Cf. 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 effort
6 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 trialstrategy 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 explicitly hold that a failure to investigate can be

deficient only ifsuch failure leadsto the exclusion of admissible evidence, the underlying assumption

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

evidence. See, e.g., Moore v. Johnson, 194 F.3d 604, finding failure to investigate defendant’s

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

unreasonable); Bryant, 28 F.3d at 1418 (holding counsel’s failure to investigate alibi witness and

eyewitnesses to the crime amounted to constitutionally deficient performance); Loyd, 977 F.2d at

157-59 (holding failure to obtain psychological analysis of defendant 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.

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

enough research into expert voice analysisto 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 anymeans bywhich he could affirmativelydisprove that Drones’s voice was

on the tapes. He then relies on 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 admissibility of spectrographic evidence to 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 investigate can be constitutionally deficient only if it

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

admissibility of expert voice identification testimony and the expert testimony presented at the
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evidentiary hearing, we cannot say that counsel’s choice ofstrategy 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, several other circuits have held expert testimony concerning spectrographic voice

identification admissible. . . . We join these circuitstoday, and hold that expert testimony concerning

spectrographic voice analysis is admissible 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 ofthe Frye test of admissibility);

United States v. Baller, 519 F.2d 463, 465-67 (4th Cir. 1975) (same); United States v. Franks, 511

F.2d 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); see

generally United States v. McDaniel, 538 F.2d 408, 413 (D.C. Cir. 1976) (finding that court was

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

admissibility of “voiceprints”). However, all of these cases were decided before Daubert v. Merrell

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

the admissibility ofscientific evidence. See Daubert, 509 U.S. 579,589-90, 113 S. Ct. 2786, 125 L.

Ed. 2d 469 (1993) (holding that Federal Rule of Evidence 702 superceded the “Frye standard” of

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

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

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

scientific evidence). No federal case decided post- Daubert has considered the admissibility of expert
8 We note that the one state court to address the admissibility of spectrographic

evidence post-Daubert determined that spectrographic analysis was admissible. See State v. Coon,

974 P.2d 386 (Alaska 1999). 

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voice identification testimony.8

In addition to the fact that the state of the law concerning expert voice identification was

ambiguous, the expert testimony presented at the evidentiary hearing demonstrates that

spectrographic analysisis—and was at the time of Drones’strial—of questionable scientific validity.

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 and therefore identifiable. He further

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

few decades, from fifty to sixty practitioners in the 1970’s to roughly a dozen experts at the time of

Drones’s trial. 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 relevant scientific community. He also

acknowledged that numerous factors—including a defendant’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 rigorous cross-examination ofDrones’s expert. Most likely, the government would have

also presented Koenig’s testimony that spectrographic analysis was, at best, a dwindling science.

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

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

admissible under Daubert.

10 Because we find that Goldsmith’s failure to investigate layperson testimony from

Krisna and Johnson was reasonable, the government correctly isolates the issue here as whether

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

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In sum, given the uncertainty of the current state of the law regarding the reliability and

admissibility 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 identification 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. See 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 outcome.” Ransom, 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, defendant must demonstrate that “there is a reasonable

probabilitythat, but for counsel’s unprofessional errors, the result ofthe proceeding would have been

different”). We find that, under the facts of this case, the district 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
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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 additionalsignificant circumstantial evidence

in the record to support the jury’s convictions.

In order to prove a drug conspiracy, 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. See 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 (5thCir.

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 concerted actions, 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, Officer 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 some point during the transaction, Drones
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stepped out of the Mustang and stood beside the car, and that when the officers approached the

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

packages of crack in the front passenger compartment of the vehicle. Viewed as a whole, this

evidence of concerted action and flight is strong support for the jury verdict. Cf. Gallo, 927 F.2d at

820 (“The existence ofthe agreement, the defendant’s participation in the conspiracymay be inferred

from the ‘development and collocation of circumstances.’”); United States v. Thorn, 917 F.2d 170,

173 (5th Cir. 1989) (“If Thorn understood the 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 conspiracy 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.