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09-3356-cr

United States v. Fisher

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).

A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED

BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the

16th day of November, two thousand eleven.

PRESENT:

JOSEPH M. McLAUGHLIN,

ROBERT D. SACK,

PETER W. HALL,

Circuit Judges.

 ______________________________________________

UNITED STATES OF AMERICA,

Appellee,

 v. No. 09-3356-cr

GWAYNE FISHER,

Defendant-Appellant.

______________________________________________

FOR APPELLEE: S. DAVE VATTI, Assistant United States Attorney (Robert

M. Spector, Assistant United States Attorney, of counsel)

for David B. Fein, United States Attorney for the District of

Connecticut, Hartford, CT.

FOR APPELLANT: BRIAN SHEPPARD, Esq. New Hyde Park, NY.

______________________________________________
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Appeal from a judgment of the United States District Court for the District of

Connecticut (Kravitz, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED, that the judgment of the district court is AFFIRMED.

Gwayne Fisher was found guilty, after a jury trial, of conspiracy to possess with the

intent to distribute, and to distribute, 500 grams or more of cocaine in violation of 21 U.S.C. 

 §§ 841(a)(1), 841(b)(1)(B) and 846; possession with intent to distribute 500 grams or more of

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and use of a telephone to

facilitate a drug trafficking felony in violation of 21 U.S.C. § 843(b). His sole claim on appeal is

that his trial counsel rendered constitutionally ineffective assistance. We assume the parties’

familiarity with the underlying facts and procedural history of the case.

We are generally disinclined to resolve ineffective assistance claims on direct appeal. 

See United States v. Gaskin, 364 F.3d 438, 467 (2d Cir. 2004); see also United States v.

Salameh, 152 F.3d 88, 161 (2d Cir. 1998) (noting our “baseline aversion to resolving

ineffectiveness claims on direct review”). Nevertheless, direct review is not always foreclosed. 

“When faced with a claim for ineffective assistance of counsel on direct appeal, we may: (1)

decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the

district court for necessary factfinding; or (3) decide the claim on the record before us.” United

States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). This third option is appropriate where

resolution is “beyond any doubt” or direct review is “in the interest of justice.” United States v.

Hasan, 586 F.3d 161, 170 (2d Cir. 2009) (internal quotation marks omitted); see also Ellerby v.
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United States, 187 F.3d 257, 259 (2d Cir. 1998) (per curiam) (holding that resolution of

ineffectiveness claim in direct review is appropriate where such claim is “not plausible”). This

appeal presents such a case.

Reviewing Fisher’s claim de novo, see United States v. Stantini, 85 F.3d 9, 16 (2d Cir.

1996), we conclude that he has failed to raise a plausible ineffectiveness claim because he cannot

demonstrate that any alleged deficiencies in his trial counsel’s performance deprived him of a

fair trial. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (“[D]efendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”); see id. at 695 (“[T]he question is whether there is a

reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.”).

First, Fisher cannot demonstrate prejudice based on his trial counsel’s failure to object to

the fact that the transcripts of the intercepted phone calls identified him by name. Even if the

transcripts had attributed statements to an “unidentified male,” as opposed to Fisher himself, 

Colon, Fisher’s source for drugs, repeatedly identified the voice in question as Fisher’s and

verified the contents of the telephone calls. Moreover, Fisher does not argue that his nickname,

“Fruit” (a name that appears on the audio recordings in reference to Colon’s interlocutor) would

or should not have surfaced at trial. Finally, FBI Agent William Aldenberg confirmed that the

voice Colon ascribed to Fisher was internally consistent among all of the recorded telephone

calls, including those calls that referenced “Fruit,” and both the court and defense counsel

reminded the jurors that the question of voice identification was theirs to decide. Courts

generally presume “that jurors, conscious of the gravity of their task, attend closely the particular
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language of the trial court's instructions in a criminal case and strive to understand, make sense

of, and follow the instructions given them.” Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985).

Second, Fisher maintains that his counsel should have prevented the introduction of

evidence that, he argues, implied he had previous encounters with law enforcement officials. As

a general matter, we note that evidence of a defendant’s nickname is appropriate for

identification, so long as its admission otherwise conforms with Rule 403, and any prejudicial

information attendant to the nickname is not overemphasized. See United States v. Farmer, 583

F.3d 131, 146 (2d Cir. 2009). Here, the prosecution did not overemphasize law enforcement

officers’ testimony concerning the basis of their knowledge of Fisher’s nickname (which was

highly probative information), but mentioned it briefly at closing argument in connection with

the issue of identification. In addition, the court imposed limitations on this testimony, and the

jury never learned that Fisher’s prior arrest was drug-related. Thus, because the jury was not

provided with any specific information concerning Fisher’s prior contact with law enforcement,

and because the evidence against Fisher was overwhelming, Fisher cannot demonstrate prejudice

on this ground. See also United States v. Mercado, 573 F.3d 138, 142 (2d Cir. 2009)

(identifying only nominal prejudice where the jury heard evidence concerning the defendant’s

prior sale of illegal firearms, which was only tangentially related to the defendant’s charged drug

offenses). Third, Fisher faults his trial counsel for failing to object to FBI Agent Aldenberg’s

conclusions (based on research rather than on firsthand experience) that Fisher purchased drugs

from Colon and that Fisher was the person identified as “Fruit” in the intercepted phone calls. 

We acknowledge that Agent Aldenberg’s statement that Fisher bought drugs from Colon was

potentially improper, inasmuch as law enforcement officials may not ordinarily use the totality
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of information gathered in the course of an investigation as the basis of an opinion as to a

defendant’s culpability. See United States v. Garcia, 413 F.3d 201, 211 (2d Cir. 2005). And,

although it is a closer question, it may have been improper for Agent Aldenberg to offer opinion

testimony that the voice on the tapes was in fact Fisher’s. The failure successfully to exclude

this testimony, however, does not rise to the level of ineffective assistance of counsel. Agent

Aldenberg’s identification of Fisher as the “Fruit” from the tapes and his statement that Colon

sold drugs to Fisher were cumulative of Colon’s testimony and of the audio recordings. 

Moreover, the prosecution’s closing statement did not make improper use of Agent Aldenberg’s

stray comments. Indeed, because Fisher argued at trial that he and Colon were in a buyer-seller

relationship, but that he did not participate in a larger conspiracy, Agent Aldenberg’s testimony

can hardly be deemed unduly prejudicial.

The last aspect of Agent Aldenberg’s testimony that Fisher flags as problematic is Agent

Aldenberg’s statement that one of the cell phones Fisher used belonged to a person with a drug

history, which Fisher claims his trial counsel could have prevented by foregoing the argument

that Fisher used only two cell phones while his co-defendant had used over a dozen. Fisher fails

to demonstrate that this testimony was prejudicial in light of the other evidence against him.

Viewed in aggregate, therefore, these alleged errors do not support a showing of

prejudice. Even assuming that the alleged errors had not occurred, the jury would still have been

presented with: (1) Colon’s testimony that he regularly sold large quantities of cocaine to Fisher;

(2) wiretapped conversations that document two consummated 500 gram cocaine deals and

several attempted deals between Colon and an individual at times identified as “Fruit”; (3)

Colon’s verification of the events heard in the intercepted phone calls, including identification of
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Fisher as his interlocutor; (4) independent confirmation (albeit without reference to Fisher’s

prior contact with law enforcement) that Fisher went by “Fruit”; and (5) testimony by the FBI

agent who reviewed the recordings that the voice that Colon attributed to Fisher was internally

consistent among the tapes. Given this evidence, Fisher cannot establish that, absent his trial

counsel’s purported errors, the jury “would have had a reasonable doubt respecting guilt.” 

Strickland, 466 U.S. at 695.

 The judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk