Apprendi - Element of Offense;

Indictment - Error Subject to Plain Error Review;

Consecutive Sentences - §5G1.2 is Mandatory;

Motion to Suppress - Review Standard;

Judgment of Acquittal - Review Standard;

Firearms (§ 924(c)) - Constructive Possession, In Furtherance;

Substitution of Counsel - Inquiry, Discretion Standard, Breakdown in Communication;

Harmless Error - Error Not Structural, Chapman (Not Strickland)

United States v. Gary Lott, 00-6141 and United States v. Johnny Lott, 00-6200

(November 5, 2002)

This is the court's opinion on a grant of petition for rehearing. The court's July 30, 2002 opinion was withdrawn.

(Howard A. Pincus, FPD, Denver, Colorado for Johnny Lott)

HELD: (1) In Apprendi, the Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi applies to cases pending on direct review. The quantity of drugs is an essential element under 21 U.S.C. § 841, when the quantity exposes the defendant to a heightened maximum sentence under § 841(b)(1)(A) or (b)(1)(B).

(2) In Cotton, the Supreme Court recently held that an omission from an indictment is not jurisdictional, and applied the plain error test of Rule 52(b). A sentence in excess of 20 years, where the drug quantity is omitted from the indictment, constitutes plain error. But for the error to have affected substantial rights, the error must have been prejudicial. Neither Gary nor Johnny Lott can show that the Apprendi errors affected their substantial rights, because their total lengths of imprisonment would not have been shorter even if they were properly sentenced under § 841(b)(1)(C). This is due to the mandatory stacking requirement of §5G1.2(d) which states that, if the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently. In the circuit's decision in Price, it joined the majority of its sister circuits in holding that §5G1.2(d) is mandatory.

(3) In reviewing a motion to suppress, the court accepts the district court's factfindings unless clearly erroneous, and issues of law are reviewed de novo. The thrust of Gary Lott's argument is that this court should overrule its holding en banc in United States v. Singleton, which the court declined to do.

(4) The court reviews the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the government. Possession under § 924(c)(1) can be shown through either constructive or actual possession. A rational juror could have inferred from the evidence that Gary Lott constructively possessed the gun in furtherance of his drug trafficking activities. Possession may be considered by the jury along with other circumstantial evidence to determine whether the defendant intended to possess the weapon in furtherance of drug trafficking.

(5) Johnny Lott claims the district court erred in failing to conduct an inquiry into his request for new counsel following trial and prior to sentencing. The court reviews a district court's refusal to substitute counsel for abuse of discretion. To warrant substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict that leads to an apparently unjust result. If a defendant makes a sufficiently specific, factually based allegation in support of his request for new counsel, the district court must conduct a hearing and make a formal inquiry. A formal inquiry may not be necessary where the defendant otherwise states his reasons for dissatisfaction on the record. Hearings are typically crucial for what they add to a district court's knowledge in this context. To prove a total breakdown in communication, a defendant must put forth evidence of a severe and pervasive conflict with his attorney, or evidence that he had such minimal contact with the attorney that meaningful communication was not possible. The district court abused its discretion in denying the motions in the absence of conducting a hearing.

(6) If the district court finds there was a total breakdown in communication, the government may attempt to show the breakdown constituted harmless error. Harmless error is appropriate in this context because this does not constitute structural error. The proper analysis should be under Chapman's harmless error standard, and not the prejudice analysis of Strickland. Under Strickland, the defendant must prove that but for the error, the result of the proceeding would have been different. Under the Chapman harmless error standard, the government must prove beyond a reasonable doubt that the error was harmless. The Strickland test is whether there is a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. The Strickland test is not "but for the counsel's deficiencies, the result of the proceeding would have been different. Strickland requires a reviewing court to examine the trial as a whole for fundamental fairness. Because motions to substitute counsel can be brought at any time, it is often impossible for a court to consider the trial as a whole when reviewing those motions so that the Strickland test is in opposite. In addition, if the court were to conflate Strickland's ineffective assistance inquiry with a motion to substitute counsel, the court would be analyzing motions to substitute counsel as ineffectiveness claims which must almost always be brought on collateral attack.

Statutory Construction - De Novo Standard, Language;

Archeological Resources Protection Act - Knowledge the Artifacts Are On Public Land, Mistake-of-Fact Defense;

Restitution - MVRA, Government Victim, Offense Against Property, Amount;

Obstruction of Justice (§3C1.1) - Perjury, Findings;

Acceptance of Responsibility - Clearly Erroneous Standard

United States v. James Quarrell, 01-2286, and United States v. Michael Quarrell, 01-2293 (November 5, 2002)

(Robert E. Kinney, FPD, Las Cruces, New Mexico)

James and Michael Quarrell appeal their convictions of violating the Archeological Resources Protection Act (ARPA) and conspiracy under 18 U.S.C. § 371.

HELD: (1) The court reviews the district court's interpretation of a federal statute de novo. The court starts with the language itself. If the language is clear and unambiguous, the plain meaning of the statute controls. Whether the government must prove that a defendant knew he was excavating on public land is an issue of first impression. The Quarrells were convicted of violating subsection (a). The mens rea for this section is in subsection (d) and requires "knowingly." The question is whether "knowingly" extends to each element of subsection (a), including knowing that the archeological resources are located on public or Indian land. Neither the legislative history nor the purpose behind the statute directly answers the question, but extending the mens rea requirement to the "located on public land" element would frustrate the purpose of the Act. Unlike cases cited by the defendants, a person excavating on someone else's land, whether public or private, cannot reasonably expect to be free from regulations. The rule of lenity only applies when, after reviewing all available relevant materials, the court is still left with an ambiguous statute. The district court correctly interpreted ARPA by not requiring the government to prove the Quarrells knew they were on public land as an element of the crime.

(2) In interpreting a statute, a court may look to related statutes to determine Congress' intent. The circuit agreed with Feola and Soyers, and held that a defendant charged with violating ARPA may present a mistake-of-fact defense based on his reasonable belief he was excavating on private land with permission. The Quarrells were not prohibited from presenting such a defense if their belief is that they were lawfully excavating on private land, but the Quarrells presented no such evidence.

(3) The legality of a restitution order is reviewed de novo. Congress addressed this issue in its discussion of the Act's prohibitions and penalties, and stated there is no intent to preclude action under other provisions of law, such as the Mandatory Victim Restitution Act. The government can be a victim under the MVRA. The Quarrells were also convicted under Title 18, of a § 371 conspiracy, and therefore, the fact that a violation of ARPA is not under Title 18 does not matter. Only if the conspiracy conviction was an offense against property is it mandatory that the district court order restitution. Otherwise restitution is discretionary. The underlying predicate acts and purposes of this conspiracy constituted an offense against property.

(4) The court reviews the amount of restitution ordered for abuse of discretion. The government bears the burden of proving amount of loss. The district court correctly included the archeological value in determining the offense level, but erred in including archeological value in determining the amount of restitution, because a restitution order must be based on actual loss.

(5) For the obstruction of justice enhancement under §3C1.1, finding of perjury must encompass all the factual predicates of perjury, and the finding must specifically identify the perjured testimony. The elements of perjury are that a witness gave false testimony, concerning a material matter, with willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory. The district court is not required to recite the perjured testimony verbatim. The district court described the substance of the perjured testimony but failed to make findings of materiality and willfulness so that the court had to remand.

(6) The district court's acceptance of responsibility determination is subject to the clearly erroneous standard of review. The burden of proving acceptance is on the defendant. In rare situations, a defendant may receive credit for acceptance of responsibility even though he exercised his right to trial. Considerations include whether the defendant admitted the elements of the crime, and admitted or did not falsely deny any other relevant conduct. Michael Quarrell admitted excavating for archeological resources, but contested the government's estimate of damages. Under ARPA, the maximum sentence is increased if a defendant causes more than $500 in damages, and therefore the amount of damages is an element of the crime that must be submitted to the jury and proven beyond a reasonable doubt. Accordingly, the district court did not err in denying Michael a reduction for acceptance of responsibility. The district court also found that Michael obstructed justice by testifying falsely at trial, and he does not appeal this finding. A defender who falsely denies or frivolously contests relevant conduct has acted in a manner inconsistent with acceptance of responsibility.

Statutory Construction - Constitutionality;

Child Support (CSRA and DPPA) - Commerce Clause;

Statute of Limitations;

Sufficient Evidence;

More Than Minimal Planning;

Restitution

United States v. Monts, 01-6384 (November 13, 2002)

(Paul Antonio Lacy, FPD, Oklahoma City, Oklahoma)

Monts was convicted of two counts of failure to pay child support in violation of the Child Support Recovery Act (CSRA), 18 U.S.C. § 228(a)(1), and the Deadbeat Parents Punishment Act (DPPA), 18 U.S.C. § 228(a)(3). He was sentenced to 15 months imprisonment, followed by one year of supervised release on count two, and a term of probation of five years on count one, each to run concurrently. He was ordered to pay restitution of $66,415.56.

HELD: (1) The CSRA makes it a federal criminal offense for a person to willfully fail to pay a support obligation with respect to a child who resides in another state, if such obligation has remained unpaid for a period longer than one year or is greater than $5,000. The DPPA makes it a federal felony for a person to willfully fail to pay a support obligation with respect to a child who resides in another state, if such obligation remained unpaid for a period longer than two years or is greater than $10,000. Upon conviction of either provision, the court must order restitution under § 3663A in an amount equal to the total unpaid support obligation as it exists at the time of sentencing.

(2) The court reviews challenges to the constitutionality of a statute de novo and begins with a presumption of constitutionality. The circuit rejected the argument that the CFRA and DPPA were enacted in excess of Congress' authority under the Commerce Clause, citing to the Supreme Court decisions in Jones and Morrison. The Tenth Circuit in Hampshire had previously rejected these arguments. The court also rejected the ex post facto clause claim.

(3) Monts argues that prosecution under § 228(a) is barred because the New York statute of limitations renders all or part of the child support arrearage unenforceable. But New York's six-year statute of limitation has no bearing on the case. Because the support order was from New York, Ms. Cooper resided in Oklahoma, and Monts in Virginia, the Virginia Division of Child Support Enforcement (DCSE), applied the provisions of the Uniform Interstate Family Support Act (UIFSA) which Congress mandated all states adopt.

(4) In addition, because § 228 contained no specific limitations period, the default federal limitations period of five years provided by 18 U.S.C. § 3282 applies. The offenses charged were committed within five years of the indictment.

(5) The court reviews de novo the sufficiency of the evidence to support a conviction and the denial of a motion for judgment of acquittal. Conviction on both counts requires the government to prove willful failure to pay a past due support obligation with respect to a child who resides in another state. Counts one and two required additional proof as to time the obligation remained unpaid and the amount. The evidence was clearly sufficient.

(6) The court reviews the district court's sentencing factual determinations under the clearly erroneous standard, and the determination of what may properly be considered in assessing loss is reviewed de novo.

(7) The two level enhancement for more than minimal planning under §2B1.1(b)(4) refers to §1B1.1 for the definition of "more than minimal planning." One situation warranting the adjustment is when there is more planning than is typical for committing the offense in a simple form. The district court had concluded that Monts' conduct over the years exhibited more planning than is typical for committing this offense in its simple form. The district court's imposition of the adjustment is supported by adequate evidence.

(8) Congress mandated restitution in this type of case in an amount equal to the total unpaid support obligation existing at the time of sentencing. The court reviews the legality of a restitution order de novo, accepts fact findings unless clearly erroneous, and reviews the amount of restitution for abuse of discretion.

Bus Interdiction - Consent, Detention, Taint

United States v. Tapia, 02-1028 (November 7, 2002)

(Robert W. Pepin, FPD, Denver, Colorado)

This case involves conduct of drug interdiction police officers who approach bus passengers at random to ask questions and request consent to searches. In Drayton, the Supreme Court reaffirmed its basic premise in Florida v. Bostick, that when police ask questions of bus passengers to obtain their consent to searches, the proper inquiry necessitates a consideration of all the circumstances surrounding the encounter in order to determine if a Fourth Amendment seizure occurred. Drayton suggested that drug interdiction interviews on a bus will pass constitutional muster if there was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.

Tapia was charged with possession of 500 grams or more of methamphetamine with intent to distribute. Following a hearing, the district court granted Tapia's motion to suppress 14 pounds of methamphetamine found in his baggage aboard a Greyhound bus, and suppressed his subsequent statements to law enforcement. The government appealed.

HELD: (1) The district court concluded that Tapia's interaction with Detective Moreno was not consensual, and found that Tapia was not informed that he was not required to converse with police or that he could refuse the agent's request. The district court disapproved of a set of facts that the Supreme Court favored in Drayton, and understated the Tenth Circuit's precedents in favor of the Eleventh Circuit. In this case the facts are substantially similar to Drayton so as to require a like result. The circuit held there was proper consent obtained for seizure of the contraband.

(2) The district court held that the taint of Tapia's illegal detention remained at the time he waived his Miranda rights, and therefore his waiver was the fruit of an illegal detention and invalid. Since the circuit held there was no illegal detention, the district court's premise fails.

Right to Bear Arms;

Sporting Purpose or Collection (§2K2.1(b)(2));

Downward Departure - Review Standard, Not Know Could Not Possess Firearm, Aberrant Behavior

United States v. Bayles, 01-4092 and 01-4097 (November 15, 2002)

Bayles pleaded guilty to possessing a firearm while subject to a domestic violence protective order in violation of 18 U.S.C. § 922(g)(8). Because Bayles was unaware of the statute, the district court departed downward seven levels and imposed a 24-month sentence. The government appeals the downward departure. Bayles cross-appeals, claiming his conviction violates the Second Amendment and that the district court made certain erroneous fact findings. The court granted the government's appeal and rejected all of Bayles' claims.

A protective order was issued out of state court in Utah that restrained Bayles from threatening to commit abuse or domestic violence against his ex-wife or current husband. The protective order also contains a preprinted paragraph prohibiting possessing a firearm. That paragraph is not initialed or checked by the issuing judge. Bayles received information from several other sources regarding restrictions on his ownership of firearms. Subsequently, an FBI agent received information that Bayles possessed various weapons and began an undercover investigation. Bayles admitted to an undercover agent that he owned firearms, most of which he moved away from the house because of the order his wife had obtained. During the meeting, Bayles retrieved two loaded hand guns from his truck. On another occasion, Bayles told the agent that he got rid of the guns because of the protective order, that he didn't think it was illegal, but his attorney thought someone might misinterpret the law. Bayles was arrested. He moved to dismiss the indictment claiming § 922(g)(8) violated his constitutional rights. After the district court denied the motion, Bayles pleaded guilty on condition he could appeal. With offense level 15 and criminal history category I, the guideline range was 18 to 24 months. The report noted a possibility for a downward departure based on aberrant behavior. Bayles argued that the firearms were solely for lawful sporting purposes or collection, and that the district court should depart downward because the protective order did not expressly prohibit possession of firearms. The district court denied the request as to possession for sporting purposes. The court did rule in favor of Bayles on his motion for downward departure based on bad legal advice, the lack of clarity from the order itself, and aberrant behavior.

HELD: (1) To establish a violation of the right to bear arms under the Second Amendment, the defendant must show he is part of a state militia, his participation is well-regulated by the state, the guns in question are used by the militia, and his possession of guns was recently connected to his militia service. Bayles' Second Amendment challenge lacks merit.

(2) The court rejected the Commerce Clause violation argument.

(3) As to a reduction under §2K2.1(b)(2), as to possession for sporting purposes or collection, the guideline commentary directs the sentencing court to consider the number and type of firearms, amount and type of ammunition, location and circumstances of possession and actual use, defendant's criminal history and the extent to which possession was restricted by local law. The court reviews fact determinations that the firearm was not intended solely for lawful sporting purpose or collection for clear error. The district court did not clearly err. Two of the weapons were handguns. Bayles carried ammunition. Bayles did not transport a weapon for the lawful sporting purposes of another.

(4) The district court downward departed on two bases, finding the conduct was outside the heartland and aberrant behavior. Whether lack of knowledge of § 922(g)(8) is a permissible departure factor is a legal question. But whether the facts of the case are unusual enough to remove it from the heartland is one on which the court must give substantial deference to the district court. As to aberrant behavior, the court examines the district court's factual determinations for clear error.

(5) When a defendant's conduct significantly differs from the norm and is therefore outside the heartland, the sentencing court may depart. Whether departure is proper depends upon the factors on which a sentencing court rules, whether such factors are prohibited, discouraged or encouraged. Section 2K2.1 does not expressly address the defendant's awareness that possession of a firearm is illegal.

(6) In light of §2K2.1, Jones, circuit decisions construing § 922(g)(8), and the Eighth Circuit's decision in Hutzell, the circuit concluded that the district court erred. A defendant's ignorance of § 922(g)(8) does not remove his conduct from the heartland, and is therefore not a permissible basis for departure. The circuit did not foreclose the possibility that, in a given case, a defendant's ignorance of the prohibition set forth in a statute might remove the case from a heartland, when combined with additional circumstances demonstrating that the defendant was actually misled.

(7) Section 5K2.20 provides for a departure based on aberrant behavior, defined as a single criminal occurrence committed without significant planning, of limited duration, and which represents a marked deviation by the defendant from an otherwise law-abiding life. The district court abused its discretion in applying the aberrant behavior provision. The number of weapons, and the fact that Bayles moved most of the weapons as a result of the order, precludes the finding of aberrant behavior.

Search Warrant - Probable Cause, Scope to Include Vehicle Not at Residence;

Car Search - Exception to Warrant Requirement;

Multiplicity - § 924(c) Counts Involved Different Guns and Times;

Sufficient Evidence;

Admission of Evidence

United States v. Jenkins, 01-1412 (November 22, 2002)

Jenkins was convicted of conspiracy to distribute more than 50 grams of crack cocaine, possession with intent to distribute, using or carrying a firearm during and in relation to a drug trafficking crime, and possession of firearms in furtherance of a drug trafficking crime. He was sentenced to 720 months imprisonment.

HELD: (1) In determining whether probable cause exists, a magistrate makes a practical, common sense decision whether, given all the circumstances set forth in the affidavit, including veracity and basis of knowledge, there is a fair probability that contraband or evidence of a crime will be found. Although an anonymous tip alone seldom demonstrates an informant's basis of knowledge or veracity, there are situations where such a tip, suitably corroborated, will suffice. An anonymous tip must have some indicia of reliability in its assertion of illegal activity. Although the informant did not give his last name, he had two face-to -face meetings with police which placed his unanimity at risk. This provides a disincentive for making false allegations. The informant claimed to have personally witnessed the defendant's drug transactions and assisted the defendant in preparing drugs for distribution. These statements against his own penal interest added to reliability. The police obtained independent information tending to support details of the allegations.

(2) The warrant authorized officers to enter and search a residence including outbuildings and vehicles associated with the property. Jenkins' Suburban was not at the residence when the residence was searched. The circuit noted that this case presents a novel question concerning the appropriate scope of the search warrant, but the circuit did not have to address the issue, instead concluding that the search of the Suburban was lawful because there was probable cause to believe the vehicle contained evidence of a crime. Thus, the search was valid under the automobile exception to the warrant requirement. Based on the facts known to the officers, there was a fair probability that items associated with drug trafficking and unlawful possession of firearms would be found in the vehicle.

(3) Jenkins argued that counts three and four covered the same criminal behavior and were multiplicitous. Both counts charged a violation of § 924(c). The two counts were premised on the same underlying drug trafficking crime. Multiplicitous counts are separately charged counts that are based on the same criminal behavior. They are improper because they allow multiple punishments for a single criminal offense. But here, counts three and four were not based on the same criminal behavior. Even if the underlying drug crimes were related in the sense that drug possession was an object of the conspiracy, a conspiracy and the substantive offense are separate crimes. The record surrounding the defendant's request for a bill of particulars further clarifies that the two counts involve different hand guns and occurred several months apart.

(4) To determine sufficiency of the evidence, the court views the evidence in the light most favorable to the prosecution. The "in furtherance of" element of § 924(c) requires the government to show that possession of the firearm furthered, promoted or advanced the drug trafficking crime. The evidence was sufficient to support the firearms conviction in count four.

(5) The court reviews the admission of evidence under an abuse of discretion standard, and found no such abuse in the trial court's decision to admit photographs of Jenkins' storage rental unit. Even if the admission were error, the error was harmless.

Habeas Corpus (28 U.S.C. § 2254)- Death Penalty, AEDPA, Review Standard;

Evidentiary Hearing;

Prosecutorial Misconduct;

Cumulative Error;

Ineffective Assistance of Counsel

Hung Thanh Le v. Mullin, 00-6333 (November 26, 2002)

This is an appeal from denial of habeas corpus relief from a conviction and death sentence in the State of Oklahoma.

Le was charged with first degree murder with malice aforethought, robbery with a dangerous weapon, assault and battery, grand larceny and theft of a motor vehicle. In September 1995, he went to trial and the jury found him guilty. At sentencing, the jury found aggravators of knowing creation of a great risk of death to multiple persons and the commission of a murder that was heinous and cruel. The jury imposed death on the first degree murder conviction. Le sought post-conviction relief and then filed a federal habeas petition.

HELD: (1) The AEDPA and its standard of review applies. Not only must a state court have applied clearly established federal law erroneously, but in addition, the application must also be unreasonable. When state courts have not reached the merits, review is de novo.

(2) Section 2254(e)(2) sets out stringent requirements for purposes of an evidentiary hearing. If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or, a factual predicate that could not have been previously discovered through exercise of due diligence; and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable fact finder would have found the applicant guilty. A threshold question is whether Le failed to develop the factual basis of the claim in state court. Because, if he did fail, then the requirements would be difficult to satisfy. Absent such a failure, Le is entitled to an evidentiary hearing if his allegations, if true and not contravened by the record, would entitle him to relief. A failure to develop the factual basis of a claim is not established unless there is lack of diligence or some greater fault attributable to the prisoner or counsel. Le failed to develop the factual basis of these claims. Neither the ineffective assistance nor prosecutorial misconduct claim relies on a new rule of constitutional law. Therefore, Le has to show that the factual predicate of his claim could not have been previously discovered through due diligence.

(3) There were two prosecutors in Le's case. Le alleges that some of their comments impermissibly asked for sympathy for the victims, misstated the law, argued facts not in evidence, ridiculed Le in front of the jury, and encouraged the jury to think it had a moral obligation to impose the death sentence. Generally, a prosecutor's improper remarks require reversal only if the remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process. If the prosecutorial misconduct denied the petitioner a specific constitutional right, a claim may be established without proof that the entire trial was rendered fundamentally unfair. The court considers the entire proceedings, any instructions, and any failure to object. Arguments that improperly encourage the jury to impose a sentence of death based on sympathy for the victims may constitute due process error. States may choose to allow victim impact evidence. The OCCA stated that the arguments of the prosecutor constituted error but the error was harmless. Le's attorney failed to object to many of the comments and there is overwhelming evidence of guilt and in support of the aggravating factors. The OCCA's decision as to each claim of prosecutorial misconduct was not an unreasonable application of federal law.

(4) The court must consider all the complaints of misconduct in toto because individual, harmless prosecutorial errors can add up to make a trial fundamentally unfair. When reviewing a case for cumulative error, only actual errors are considered in determining whether the defendant's right to a fair trial was violated. The OCCA did not consider the cumulative prejudicial impact of the two sentencing-stage errors it failed to adjudicate, so the circuit considered whether the sentencing had to be reversed. Again, because of overwhelming evidence, the circuit was convinced the jury could assess the evidence fairly.

(5) In his briefs on direct appeal, Le raised all but one of his ineffective assistance of counsel claims. The court recited the familiar Strickland test. The decision not to cross-examine Mrs. Nguyen was reasonable trial strategy, according to the OCCA, and this is not an unreasonable application of federal law. Nor was it unreasonable trial strategy to not call Mr. Le because the decision was to avoid his being impeached. Nor was there error in counsel's failure to request a self-defense instruction. While the court had some concerns, the trial transcript shows that trial counsel made objections, cross-examined witnesses, and argued legal points to the judge. The circuit could not find that the OCCA unreasonably applied Strickland in denying the claim of ineffective assistance.