Miguel Vines v. United States , 28 F.3d 1123 ( 1994 )

COX, Circuit Judge:

This appeal arises out of the denial of Miguel Vines’s § 2255 motion. On this appeal we must determine whether the temporary absence of a defendant’s trial counsel during the presentation of evidence necessarily gives rise to an irrebuttable presumption of prejudice that mandates vacation of that defendant’s conviction. We conclude that the temporary absence of counsel during the presentation of evidence is not per se violative of the Sixth Amendment right to the assistance of counsel.

I. BACKGROUND

In June of 1988, a senior Customs inspector examined the shipping documents of a shipment of ninety-one boxes of fresh fish that had arrived at the Miami International Airport on a flight from Panama. Not recognizing the company listed as the shipment’s consignee, and suspicious of the address to which the shipment was to be delivered, the Customs inspector determined that the shipment should be physically inspected. An inspection revealed that at least one of the ninety-one boxes contained cocaine. Based on that discovery, the entire shipment was placed under surveillance by Customs.

Several men arrived at the airport and loaded the ninety-one boxes onto a truck and transported the boxes to a warehouse. At the warehouse, two men unloaded the boxes under the direction of a third man, Manuel Casas. Eighty-five of the boxes were moved inside the warehouse and the other six were loaded into a small pickup truck driven by Jorge Fabal. Fabal drove the truck to an apartment complex.

At the complex, Fabal exited the truck and entered an apartment. Shortly thereafter, Fabal left the apartment with his brother-in-law, Miguel Vines. Vines entered a van parked next to the truck that Fabal had driven. With Vines’s assistance, Fabal moved the six boxes from the truck to the van. A short time passed, and Fabal reloaded the six boxes into the truck. Then, Vines moved the truck and Fabal parked a car next to the van. At that point, Fabal and Vines moved several opaque plastic items from the van to the trunk of the car.

After that final transfer, Customs agents arrested Vines and Fabal. Agents recovered from the trunk of the car five or six packages wrapped tightly in yellow tape and covered with plastic. The packages contained 95.33 kilograms of 81% pure cocaine. Other Customs agents arrested Casas at the warehouse and proceeded to search the warehouse pursuant to a search warrant.

A federal grand jury returned a two-count indictment charging Casas, Vines and Fabal with: (1) conspiracy to possess with intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. § 846, and (2) possession of at least five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Ex. 1-1). Casas and Vines were tried together.¹ The trial lasted two days. At about 4:15 p.m. on the first day of trial, the court excused Vines’s counsel for the remainder of the day.² Prior to Vines’s counsel’s departure, the court instructed the jury: “Members of the jury, Mr. Shapiro [Vines’s attorney] has got another important matter that he has to attend to. This witness won’t testify as to his particular client. His client has waived his presence for the remainder of the afternoon, so we will excuse Mr. Shapiro at this time.” (Ex. 2 at 142-43).³ During Vines’s counsel’s absence, two witnesses testified for the prosecution: Special Agent Hank Blair and Donald Evans.⁴

Blair’s testimony centered around the arrest of Casas and the search of the warehouse. (Ex. 2 at 143-160). Blair testified about items found in Casas’s briefcase at the warehouse. In addition, Blair testified, over Casas’s attorney’s objection, that the items discovered in the briefcase and the manner of shipping employed in this case fit the modus opercmdi of contraband smugglers. Casas’s attorney cross-examined Blair about the arrest of Casas, the search, the evidence secured from that search, and Blair’s opinion regarding the specific facts of this case vis-a-vis drug smuggling operations generally. (Ex. 2 at 160-176).

Evans, as part owner and operator of the warehouse, simply testified about leasing the space where the fish shipment was delivered. (Ex. 2 at 176-182). Evans could not identify the individuals to whom he had leased the space. (Ex. 2 at 179). Casas’s attorney briefly cross-examined Evans about the nature of the relevant lease. (Ex. 2 at 182). Thereafter, the court called a recess. (Ex. 2 at 182-83). The trial resumed the following Monday morning with Vines’s counsel present.

Casas was convicted on both Counts I and II. (Ex. 1-53). Vines was acquitted on Count I, the conspiracy charge, and convicted on Count II, the distribution charge. (Id.).

On direct appeal, Vines and Casas challenged the sufficiency of evidence supporting their convictions. Vines also contested the use of a modified Allen⁵ charge and claimed ineffective assistance of counsel because of the absence of his attorney during the taking of evidence. In an unpublished opinion, we affirmed the convictions but declined to address Vines’s claim of ineffective assistance of counsel, noting that it should be raised in a 28 U.S.C. § 2255 motion. United States v. Casas, 897 F.2d 535 (11th Cir.1990) (Ex. 1-98 at 8, 9 n. 5).

Thereafter, Vines, proceeding pro se, filed a § 2255 motion. (R.l-100). Therein, Vines advances two arguments in support of his contention that his Sixth Amendment right to counsel has been violated. First, Vines argues that he did not voluntarily and knowingly waive his right to counsel. (Id. at 5). Second, Vines asserts that he was denied effective assistance of counsel based on his trial counsel’s absence during the taking of evidence. (Id.). Without an evidentiary hearing, a magistrate judge recommended that Vines’s § 2255 motion be denied. (R. 1-116 at 12). In so recommending, the magistrate judge concluded that Vines waived his right to counsel, that the temporary absence of his counsel did not warrant a presumption of prejudice, and that Vines suffered no prejudice as a consequence of his counsel’s temporary absence during trial. (Id. at 9, 11-12). Vines objected to the magistrate judge’s report and recommendation. (R. 1-117). The district court denied Vines’s § 2255 motion “[f]or the reasons stated in the report of the Magistrate Judge.” (R. 1-118). This appeal follows.

II. CONTENTIONS OF THE PARTIES & ISSUE ON APPEAL

Vines contends that his Sixth Amendment right to counsel was violated because his trial counsel was temporarily absent during the taking of evidence. In support of that contention, Vines argues that under United States v. Cronic, 466 U.S. 648,104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the temporary absence of counsel gives rise to an irrebuttable presumption of prejudice and his conviction must therefore be vacated. In the alternative, Vines argues that his conviction must be vacated because prejudicial testimony was taken while his trial counsel was absent. The Government counters that no prejudicial testimony was taken during Vines’s counsel’s absence and that Vines is not entitled to a presumption of prejudice under Cronic,⁶ Accordingly, the Government argues that the district court’s denial of Vines’s § 2255 motion should be affirmed and Vines’s conviction should stand.

III. STANDARD OF REVIEW

The claim that the temporary absence of trial counsel during the taking of evidence constitutes a Sixth Amendment violation presents a mixed question of law and fact and, as such, is subject to plenary review. See Lusk v. Dugger, 890 F.2d 332, 336 (11th Cir.1989) (concluding that an ineffective assistance of counsel claim, which presents a mixed question of law and fact, is subject to plenary review), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 805 (1990).

IV. DISCUSSION

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... the Assistance of Counsel for his defence.” U.S. Const. amend. VI. “[T]he right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). To establish a claim of ineffectiveness of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must demonstrate (1) that his counsel’s performance was deficient and (2) that his counsel’s deficient performance resulted in prejudice. Id. at 687, 104 S.Ct. at 2064. Under Strickland, prejudice means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068.

Vines argues that his Sixth Amendment right to counsel was violated because his trial counsel was temporarily absent during the taking of evidence. Strickland assumes the presence of counsel and is therefore inapplicable in the absence of counsel context. Strickland is therefore inapplicable in this case.⁷

In the companion case to Strickland, United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court carved out a narrow exception to the two prong Strickland test. Cronic recognizes that there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. 466 U.S. at 658, 104 S.Ct. at 2046. Cronic teaches that prejudice will be presumed if: (1) counsel is completely denied; (2) counsel is denied at a critical stage of trial; or (3) counsel fails to subject the prosecution’s ease to meaningful adversarial testing. Id. at 659, 104 S.Ct. at 2047. This presumption of prejudice is seemingly irrebuttable since “the cost of litigating [its] effect ... is unjustified.” Id. at 658, 104 S.Ct. at 2046.

Vines contends that where a defendant is temporarily denied the assistance of counsel, that defendant is entitled to an irrebuttable presumption of prejudice under Cronic. In order to apply Cronic in this case, however, we must conclude that Vines’s claim falls under one of the three circumstances Cronic enumerates as an exception to the Strickland standard.⁸ Vines was not completely denied counsel. Rather, Vines’s counsel was temporarily absent during a portion of the actual trial. Vines does not contend that his trial counsel failed to subject the prosecution’s case to meaningful adversarial testing. Thus, in order for Vines to be entitled to a presumption of prejudice, we must conclude that Vines was denied counsel at a critical stage of trial within the meaning of Cronic.

Vines argues that under Cronic the taking of evidence is a critical stage of trial per se. Vines proffers no authority that compels this court to reach that conclusion; and, we decline to give birth to a rule that the taking of evidence is necessarily a critical stage of trial. Upon review of the record, we find that no evidence directly inculpating Vines was presented during his counsel’s absence. Where, as in this case, no evidence directly inculpating a defendant is presented while that defendant’s counsel is absent, we decline to hold that counsel was absent during a critical stage of trial within the meaning of Cronic. Accordingly, we conclude that Vines’s counsel was not absent during a critical stage of trial, and Vines is therefore not entitled to a presumption of prejudice under Cronic.

Having concluded that Vines’s temporary absence of counsel claim cannot be analyzed under Strickland or Cronic, we must determine the appropriate analytical framework for reviewing his claim.⁹ Vines asserts that his Sixth Amendment right to counsel was violated because his counsel was absent during the taking of evidence. We assume, without deciding, that Vines establishes constitutional error by showing that his trial counsel was absent during the taking of evidence. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court held that “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Id. at 22, 87 S.Ct. at 827.

We have previously applied the harmless-error analysis in the contexts of absence of counsel at a preliminary hearing, Thomas v. Kemp, 796 F.2d 1322 (11th Cir.), cert. denied, 479 U.S. 996, 107 S.Ct. 602, 93 L.Ed.2d 601 (1986), and absence of counsel when the court delivered a modified Allen charge to the jury, United States v. Rapp, 871 F.2d 957 (11th Cir.), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 184 (1989); see also United States v. Guida, 792 F.2d 1087, 1091-94 (11th Cir.1986) (applying harmless-error analysis in a case where a judge, responding to a request by the jury, allowed the jury to study an unredaeted copy of a witness and exhibit list without notifying or consulting defendant’s counsel). It would be incongruous to hold that the absence of counsel while a jury is being instructed should be subject to harmless-error analysis but that the absence of counsel during the taking of non-inculpatory testimony is not susceptible to harmless-error analysis.

However, in order to determine whether Vines’s claim is susceptible to harmless-error analysis, we must first address the query of whether the temporary absence of Vines’s counsel during the taking of evidence amounts to a “structural defect” or a “trial error.” Duest v. Singletary, 997 F.2d 1336, 1338 n. 3 (11th Cir.1993), cert. denied, — U.S. —, —, 114 S.Ct. 1107, 1126, 127 L.Ed.2d 418 (1994). Trial errors are subject to harmless-error analysis; structural defects are not. Id. A trial error is an “error which occur[s] during the presentation of [a] case to [a] jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless.” Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991). Conversely, structural defects affect “the framework within which the trial proceeds,” Id. at 310, 111 S.Ct. at 1265; “they involve deprivations of constitutional protections so basic that in their absence no criminal trial can be deemed reliable, nor any punishment fundamentally fair,” Duest, 997 F.2d at 1338 n. 3. Typical structural errors are the total deprivation of the right to counsel at trial, a trial judge who is not impartial, the unlawful exclusion of members of the defendant’s race from a grand jury, the denial of the right to self-representation at trial, and the denial of the right to a public trial. Fulminante, 499 U.S. at 309-10, 111 S.Ct. at 1265.¹⁰

Vines alleges constitutional error based on the temporary absence of his trial counsel during the taking of evidence — the testimony of Blair and Evans. Vines contends that if his counsel had been present he would have objected to Blair’s drug smuggler profile testimony, and if overruled, he would have requested a limiting instruction as to Vines. In addition, Vines argues that if his counsel had been present he would have cross-examined both Blair and Evans. We conclude that counsel’s failure to object and cross-examine are “capable of quantitative assessment in relation to all the evidence at trial in order to determine whether it was harmless.” Duest, 997 F.2d at 1338 n. 3.¹¹

Vines proffers no authority that would compel us to conclude that the temporary absence of counsel is necessarily a structural defect. The Supreme Court has held that the total deprivation of counsel amounts to a structural defect. Fulminante, 499 U.S. at 309, 111 S.Ct. at 1265 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). That holding is predicated upon the recognition that “[t]he entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant.” Id. at 309-10, 111 S.Ct. at 1265. We conclude that the temporary absence of a defendant’s trial counsel during a portion of the actual trial does not necessarily affect the conduct of the entire trial. While trial counsel may exercise poor judgment in absenting himself or herself from a portion of a trial, such flawed judgment does not necessarily infect the entire trial. For example, in a multi-defendant trial, testimony may be presented regarding one defendant that does not inculpate another defendant. Though we do not countenance the abandonment of a defendant by his counsel even during the presentation of noninculpatory testimony, we cannot say that such an absence compromises the entire trial of that defendant such that harmless-error analysis would be inapplicable. Because we find that Vines’s counsel’s alleged errors are capable of quantitative assessment and that no inculpatory evidence was presented during the temporary absence of his counsel, we conclude that the absence of Vines’s counsel constitutes a trial error subject to harmless-error analysis.¹²

In Brecht v. Abrahamson, — U.S. —, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the Supreme Court held that the harmless-error standard enunciated in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), “applies in determining whether habeas relief must be granted because of constitutional error of the trial type.” Brecht, — U.S. at —, 113 S.Ct. at 1722.¹³ Because Vines’s § 2255 motion is a collateral attack, we must apply the Kottea-kos standard. Under Kotteakos, a defendant is entitled to reversal only when error resulted in “actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” See United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986) (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253). The appropriate inquiry is not whether the jury was right in its judgment

regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, in the total setting.

[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Kotteakos, 328 U.S. at 764-65, 66 S.Ct. at 1247-48. Thus, our task is to determine whether the temporary absence of Vines’s counsel during the testimony of Blair and Evans had a substantial influence on the jury’s verdict in this case.

In determining whether Blair’s and Evans’s testimony had a substantial influence on the jury’s conviction of Vines on Count II — possession with intent to distribute cocaine — we must address two questions. First, did that testimony directly inculpate Vines? Second, did that testimony indirectly prejudice Vines’s defense of the offense of which he was convicted?

As to the first question, we find that neither Blair’s nor Evans’s testimony directly inculpates Vines. Rather, upon review of the record, we find that Blair’s and Evans’s testimony simply inculpates Casas and serves to describe the overarching drug smuggling operation in this case while paralleling it to the typical modus operandi of contraband smugglers.

As to the second question, Vines argues that he was indirectly prejudiced by Blair’s and Evans’s testimony. Vines asserts that the jury applied the testimony regarding the modus operandi of contraband smugglers to him and that if his counsel had been present during that testimony such prejudice could have been avoided. In support of that assertion, Vines advances three spurious arguments. Vines argues that if his counsel had been present during such testimony, his counsel would have objected to the admission of Blair’s testimony regarding the modus operandi of drug smugglers. (Appellant’s Br. at 43). At the very least, Vines argues, such an objection would have yielded “an instruction to the jury that the drug smuggler profile testimony was hot applicable to VINES.” (Id.). Finally, Vines argues that if his counsel had been present he would have cross-examined Blair and Evans in order to establish that there was no connection whatsoever between Vines and the matters about which Blair and Evans testified. (Appellant’s Br. at 42).¹⁴

We find Vines’s argument regarding cross-examination totally unpersuasive. Neither Blair nor Evans directly referred to, or even alluded to, Vines. Vines argues that his counsel could have emphasized the fact that neither Blair’s nor Evans’s testimony related to him. The cross-examination of a witness who has said nothing harmful to one’s case is a perilous undertaking, and generally inadvisable. We reject the suggestion that Vines would have benefited from this kind of cross-examination.

We find equally unpersuasive Vines’s argument that if his counsel had been present he could have prevented the admission of Blair’s drug smuggler profile testimony. Vines’s co-defendant’s counsel objected to the admission of that testimony, and the trial judge overruled the objection. (Ex. 2 at 155-57). Vines’s suggestion that his counsel’s objection to Blair’s testimony might have met with success is, at best, disingenuous.

Vines also argues that his counsel could have prevented him from being prejudiced by Blair’s and Evans’s testimony by requesting a limiting instruction. We note that pri- or to Blair’s testimony, the judge instructed the jury that Blair “won’t testify as to” Vines. (Ex. 2 at 142-43). We doubt that Vines was entitled to a more explicit limiting instruction. Assuming arguendo that Vines was entitled to a limiting instruction, we conclude that Vines suffered no harm as a consequence of the admission of Blair’s testimony. We find nothing in Blair’s and Evans’s testimony that would have “substantially influenced” the jury to convict Vines of possession with intent to distribute cocaine — Count II. Vines’s acquittal on Count I — the conspiracy charge — suggests that the jury did not link Blair’s and Evans’s testimony to Vines. Accordingly, we conclude that the temporary absence of Vines’s counsel during the testimony of Blair and Evans was harmless.

In this case the cargo, it says on the paper the consignee Greater Trading was to receive it. It did not go there. They took it to another place.

V. CONCLUSION

We affirm the district court’s denial of Vines’s § 2255 motion.

AFFIRMED.

1 . Fabal was a fugitive at the time of the trial and was not tried together with Casas and Vines.

2 . The record is silent as to why Vines's counsel needed to abandon his client during the taking of evidence.

3 .Prior to Vines's attorney’s departure, the following exchange occurred outside the presence of the jury:

THE COURT: At 4:15 I am going to release Mr. Shapiro [Vines’s attorney] and at that time, regardless of who is on the stand, the government will put on — where is Mr. Xantto-poulos [Prosecutor]? The government will put on a witness who pertains only to Mr. Tarkoff's client, who will not have any testimony regarding Mr. Vines, so Mr. Vines, do you waive the presence of your attorney during that time?

DEFENDANT VINES: Yes.

THE COURT: You explained it to him?

MR. SHAPIRO [VINES’S ATTORNEY]: Yes, I discussed this with him and he has no objection.

THE COURT: All right, very good.

(Ex. 2 at 107-08). We do not address the question of whether Vines waived his right to counsel.

4 . Exhibits were also introduced, without objection, during Vines’s counsel’s absence.

5 . See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

6 . The Government advances two additional arguments in opposition to Vines’s § 2255 motion. First, the Government argues that Vines waived his Sixth Amendment right to counsel. Second, the Government argues that Vines's co-defendant’s attorney agreed to represent Vines’s interest during Vines’s counsel’s absence and that Vines was therefore never unrepresented by counsel. Because we conclude that any error based on Vines’s counsel’s temporary absence was harmless, we need not address these arguments.

7 . "The crucial premise on which the Strickland formula rests — that counsel was in fact assisting the accused during the proceedings and should be strongly presumed to have made tactical judgments ... is totally inapplicable when counsel was absent from the proceedings and unavailable to make any tactical judgments whatsoever." Siverson v. O’Leary, 764 F.2d 1208, 1216 (7th Cir.1985) (citation omitted).

8 . “Cronic's presumption of prejudice applies to only a very narrow spectrum of cases where the circumstances leading to counsel’s ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all." Chadwick v. Green, 740 F.2d 897, 901 (11th Cir.1984).

9 . Two of our sister circuits have grappled with the question of how to analyze a temporary absence of counsel claim. In Green v. Arn, 809 F.2d 1257 (6th Cir.), vacated on other grounds, 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987), reinstated, 839 F.2d 300 (6th Cir.1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989), the Sixth Circuit held that ”[t]he absence of counsel during the taking of evidence on the defendant’s guilt is prejudical [sic] per se and justifies an automatic grant of the writ 'without any opportunity for a harmless error inquiry.’ ” Id. at 1263 (emphasis added) (quoting Siverson, 764 F.2d at 1217-18 n. 6). However, the Green court also recognized that "some absences by a criminal defendant's attorney might be so de minimis that there would be no constitutional significance.” Id. at 1261.

The Seventh Circuit has held that “the proper standard for determining the prejudice resulting from the ... [temporary absence of counsel] is the same standard that was applied to similar errors prior to Strickland: whether the error was harmless.” Siverson, 764 F.2d at 1217 (so holding in a case where counsel was absent during jury deliberations and the return of the verdict).

10 . This list is merely illustrative, not exhaustive.

11 . The Supreme Court recognizes that "[i]t may be possible in some cases to identify from the record the prejudice resulting from an attorney's failure to undertake certain trial tasks.” Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1182, 55 L.Ed.2d 426 (1978).

12 .Because Vines was acquitted on the conspiracy charge, our analysis in this case focuses only on the distribution charge.

13 . However, the Supreme Court did recognize that its “holding does not foreclose the possibility that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence the jury’s verdict.’’ Brecht, - U.S. at -, 113 S.Ct. at 1722 n. 9.

14 . On appeal, Vines proposes a hypothetical cross-examination of Blair. (Appellant’s Br. at 38-41). The following is illustrative of his proffered cross-examination:

Actual Testimony—Agent Blair (TR. Vol. 1, pp. 157-158) APP. 70-72

THE WITNESS: They will assign it to an address and a name. Upon importation of the cargo, it is subject to inspection by the U.S. Customs Service. If narcotics is found, they like to have a last escape valve to walk away.

The advantage of this is the day that the inspector found it and we did not carry the controlled delivery or the attempt to make the control deliver forward, what we would have, what I would have, anybody who would investigate this case would essentially have the narcotics itself, would be the information contained on this air waybill.

It didn’t go there. It went to Greater Trading. Who is Greater Trading? I mean, basically it's a shell.

Hypothetical Cross-Examination

Q Did you find any connection of any kind between Mr. Vines and the address and name on the waybill or the name of the corporation or any of the organizers?

Hypothetical Answer

A No.

Actual Question — Agent Blair (TR. Vol. 1, pp. 158, 159) APP. 72, 73

Q. Let me ask you this. In referring to the documents you have found here in Mr. Casas’ briefcase and the use of traveler’s checks and money orders to pay the bills of Greater Trading, including the utility bills, what's your opinion as to that, as to how that fits into the modus operandi for smuggling of cargo?

A. This is consistent, because if you are reporting it, unfortunately in your perspective it is seized, you want to minimize the chance of myself or any agent following up any trail.

If you showed a person cash, had you written a check on your personal checking account or corporate account, it leaves a trail. However, you can go into a bank, go into a post office. You can give them the money and tell them you want a money order, a cashier's check, of a certain amount, you can merely [sic] maintain total anonymity.

The day comes, as in this case, it is sort of a dead end.

Hypothetical Cross Examination [sic]

Q Did you in your entire investigation find any evidence whatsoever of any connection between Mr. Vines and the documents you found in Mr. Casas' briefcase, including the traveler’s checks, money orders, utility bills or any other document or transaction of any kind?

Hypothetical Answer

A No.

(Appellant’s Br. at 39-40).