Full opinion text
DuBOIS, District Judge. TABLE OF CONTENTS 2. Evaluation of Defendant’s Cited Statements 591 VI. CONCLUSION. 594 MEMORANDUM I. INTRODUCTION Presently before the Court are Defendant’s Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (Doc. No. 230, filed Jan. 23, 2001) (“Def.’s Mot.”); Memorandum in Support of Defendant’s Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Corrected 2/12/01] (Doc. No. 241, filed Feb. 12, 2001) (“Def.’s Mem.”); Government’s Reply to Defendant’s Motion Under 28 U.S.C. § 2255 (Doe. No. 249, filed April 23, 2001) (“Gov.’s Rep.”); and a number of supplemental filings. An evi-dentiary hearing and oral argument was held on August 9, 2001. This case involves a complex prosecution for violations of the United States arms embargo against South Africa during the 1980s. The Court issues this Memorandum and Order to address defendant Thomas P. Jasin’s claims under 28 U.S.C. § 2255 that his trial counsel was constitutionally ineffective. The Court agrees with defendant on one of his two claims for relief — that his counsel was ineffective in failing to investigate, interview, and call at trial a number of witnesses who would have been helpful to defendant’s good faith defense to the charges against him. The Court will, however, deny the motion on the ground stated in defendant’s second claim for relief — that his trial counsel was ineffective for failing to object to the government’s cross examination of defendant based on defendant’s proffer statements. II. BACKGROUND The facts of this case, which has been before the Court since 1991, are fully set forth in the Court’s Opinion denying Defendant’s Motion for Post Conviction Judgment of Acquittal Pursuant to Rule 29 of the Federal Rules of Criminal Procedure. See United States v. Jasin, No.Crim. A. 91-602-08, 1993 WL 259436, at *1-11 (E.D.Pa. July 7, 1993). Some facts are restated where necessary throughout the discussion section of this Memorandum. The following brief procedural history is sufficient for the present purpose of addressing defendant’s habeas motion. On October 31, 1991, a Grand Jury in the Eastern District of Pennsylvania returned a sixty-seven-count Indictment against nineteen co-defendants, three counts of which included charges against defendant Jasin — Counts I, XXIII, and XXIV. Count I charged a conspiracy to violate the Arms Export Control Act, 22 U.S.C. §§ 2778(b)(2) and 2778(c), and its implementing regulations, 22 C.F.R. § 121, et seq. (“AECA”); the Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. § 5001, et seq. (“CAAA”); and sections of a money laundering statute, 18 U.S.C. § 1956. Counts XXIII and XXIV charged violations of the AECA. Jasin’s case was severed and he was tried before a jury in November and December of 1992. On December 10, 1992, after a five-week trial, the jury returned a verdict of guilty on Count I of the Indictment and not guilty on Count XXIV of the Indictment. The Government had voluntarily dismissed Count XXIII before trial. Because of lengthy post-trial proceedings involving, inter alia, the Classified Information Procedures Act, 18 U.S.C.App. 3, § 1 et seq., defendant was not sentenced until July 16, 1998. The Court departed downward from a guideline sentencing range of fifty-seven to sixty months and sentenced defendant, inter alia, to twenty-four months incarceration. United States v. Jasin, 25 F.Supp.2d 551 (E.D.Pa.1998). Defendant then appealed. The Court of Appeals, in an unreported opinion, affirmed the judgment of this Court. United States v. Jasin, No. 98-1641, slip op., 191 F.3d 446 (3d Cir. Aug.12, 1999). The Third Circuit then denied defendant’s petition for en banc review. Defendant then filed a Petition For a Writ of Certiorari to the United States Supreme Court. The petition was denied on January 24, 2000. Jasin v. United States, 528 U.S. 1139, 120 S.Ct. 986, 145 L.Ed.2d 935 (2000). Defendant thereafter filed a Motion for New Trial Pursuant to Fed.R.Crim.P. 33 Based Upon Newly Discovered Evidence. The Court denied that motion on November 21, 2000, United States v. Jasin, No. Crim. A. 91-602-08, 2000 WL 1793397 (E.D.Pa. Nov.22, 2000), and directed defendant to commence service of his sentence on December 12, 2000. See United States v. Jasin, No.Crim. A. 91-602-08, 2000 WL 1886576, at *1 (E.D.Pa. Dec.ll, 2000) (detailing Order regarding commencement of incarceration). On December 5, 2000, defendant filed a pro se Emergency Motion for Stay of Imprisonment pending a decision on a motion under 28 U.S.C. § 2255 which, at the time, had not yet been filed, but which defendant represented he would file within a few weeks. The Court denied that motion on December 11, 2000. Id. Thereafter, in December 2000, defendant reported to FCI Schuylkill to. commence service of his sentence. Defendant filed the instant habeas motion on January 23, 2001; he filed a “corrected” memorandum of law in support of the motion on February 12, 2001. In his habeas motion, defendant raised three arguments in support of his requested relief — that the Court vacate and set aside the judgment of conviction and release and discharge him. The first and second of these arguments are based on claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). They are that (1) trial counsel was ineffective in his failure to investigate, interview, and call potential witnesses, and (2) trial counsel was ineffective in his failure to object to the government’s use at trial of defendant’s statements made during proffer sessions with government representatives. In his third argument, defendant asserted that pre- and post-trial delay denied defendant’s constitutional right to a speedy trial and to due process of law. Defendant withdrew this third argument by letter to the Court dated August 14, 2001, but reserved the right to re-raise it should the Court grant defendant a new trial. After reviewing the parties’ filings, the Court decided to conduct an evidentiary hearing and oral argument. During that proceeding, the Court directed the parties to brief two additional issues not addressed in the initial filings: (1) the government’s argument that testimony from witnesses whom defendant alleges trial counsel was ineffective in failing to call at trial would have been cumulative to testimony adduced at trial; and (2) the government’s use at trial of defendant’s statements made at proffer sessions. With respect to the second issue, the government’s standard proffer agreement permitted use of proffer statements only if a defendant’s trial testimony was “materially different” from the proffer. Because defendant argued that the statements used by the government at trial were not “materially different” from defendant’s trial testimony, the Court ordered the government to provide record citations to defendant’s trial testimony which the government believed was “materially different” from the proffer session statements. Supplemental memoranda covering the aforesaid issues were thereafter filed. The Court will consider them together with all of the other filings and the. evidence adduced at the hearing on August 9, 2001, in deciding the § 2255 motion. III. STANDARD OF REVIEW Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), it is well-settled that, in order to establish a claim for ineffective assistance of counsel at trial, a convicted defendant must demonstrate that his counsel’s performance (1) “fell below an objective standard of reasonableness,” id. at 688, 104 S.Ct. 2052, and (2) that counsel’s deficient performance prejudiced the defense. Id. at 693, 104 S.Ct. 2052. As explained by the Supreme Court in Strickland, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. The ultimate focus of the Strickland inquiry is always on the “fundamental fairness of the proceeding whose result is being challenged.” Id. at 696, 104 S.Ct. 2052. In evaluating whether counsel’s performance fell below an objective standard of reasonableness, the Court must examine “whether counsel’s assistance was reasonable considering all the circumstances.” Id. at 688, 104 S.Ct. 2052. The reasonableness analysis must be viewed against the backdrop of counsel’s most basic duties, which include a duty to consult with the defendant on important decisions, to keep the defendant informed of important developments in the prosecution and “to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. An obvious means of ensuring such a reliable adversarial testing process is for counsel to investigate the facts and circumstances of the case. If counsel develops trial strategy “after thorough investigation of law and facts relevant to plausible options,” such strategy is “virtually unchallengeable.” Id. at 690-91, 104 S.Ct. 2052. On the other hand, “strategic choices made after less than complete investigation” are only reasonable “to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. 2052. In sum, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691, 104 S.Ct. 2052. As to the Strickland prejudice prong, the Court’s inquiry must focus on whether defendant has demonstrated “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. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Importantly, this standard does not require a defendant to “show that counsel’s deficient conduct more likely than not altered the outcome of the case.” Id. at 693, 104 S.Ct. 2052. The emphasis, again, is on reasonable probability. In light of this reasonableness standard, the Court’s analysis is governed by the fact that “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 696, 104 S.Ct. 2052. IV. INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON COUNSEL’S FAILURE TO INVESTIGATE, INTERVIEW, AND CALL WITNESSES AT TRIAL Defendant argues that his trial counsel was ineffective because he inexplicably failed to interview and call at trial a number of fact witnesses defendant told him would provide testimony helpful to his defense, and he likewise failed to seek out expert witnesses requested by defendant. Defendant asserts that these failures were so prejudicial as to create a reasonable probability that the result of the trial would have been different had counsel followed through on defendant’s requests. Counsel’s errors were magnified, defendant argues, by the fact that the government had a “weak” or “thin” case against defendant and the fact that the ease was a “close” one. The government argues in response that trial counsel presented a skillful defense. Even if counsel’s failure to interview or call certain witnesses was objectively unreasonable, the government argues, given the government’s strong case against defendant, counsel’s ineffective assistance did not sufficiently meet the Strickland prejudice standard. Defendant cites a number of cases in support of his argument that trial counsel’s failure to interview or investigate witnesses constituted ineffective assistance of counsel. The most pertinent of these cases is United States v. Gray, 878 F.2d 702 (3d Cir.1989). In Gray, the defendant was indicted for possession of a firearm as a convicted felon. Id. at 704. At his trial, the defendant admitted possession of the firearm, but asserted a self-defense claim and maintained that he had taken possession of the firearm from an assailant during a physical altercation with that assailant. Id. Approximately twenty to twenty-five people witnessed the fight. Id. Before the trial in Gray, the defendant met with his attorney who instructed the defendant to obtain the names of potential witnesses to the incident, and he did so, providing counsel with four names. Id. at 707. Once the defendant gave counsel four names, counsel did not ask how the witnesses could be contacted, but instead instructed the defendant to bring the witnesses to counsel’s office for interviews, and, if appropriate, preparation for trial testimony. Id. The defendant did not do so, but, at trial, the defendant attempted to secure the presence of three witnesses about whom he had informed counsel; none of the witnesses appeared. Although the defendant was aware that his attorney had the authority to subpoena witnesses, he “ ‘wasn’t real anxious’ to ask him to do so, instead feeling that he should comply with [counsel’s] instructions to secure the voluntary presence of as many witnesses as he could.” Id. The trial resulted in a conviction. The defendant thereafter filed a habeas petition alleging ineffective assistance of counsel on the ground that his lawyer failed to investigate, interview, and call at trial the four witnesses he identified. Addressing the defendant’s petition, the Third Circuit explained, in its application of the first Strickland prong, that “failure to conduct any pretrial investigation generally constitutes a clear instance of ineffectiveness,” because, “in the context of complete failure to investigate ... counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made.” Id. at 711 (citing Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). The court found such a “complete failure to investigate” in the case before it, explaining that “counsel offered no strategic justification for his failure to make any effort to investigate the case” and that counsel “could have offered no such rationale.” Id. According to the Gray court, the mere fact that the defendant preferred not to subpoena witnesses did not change the circumstances. The client’s reluctance, the court stated, “did not absolve [counsel] of his independent professional responsibility to investigate what information these potential witnesses possessed, even if he later decided not to put them on the stand.” Id. at 712. Turning to the second prong of the Strickland analysis, the Third Circuit concluded that, of the more than twenty-five potential witnesses to the altercation leading to the defendant’s arrest who might have supported the defendant’s self-defense claim, the potential testimony of one witness — of whom counsel was aware and failed to investigate' — was sufficient to establish that counsel’s ineffective conduct prejudiced the defendant. Among other reasons, the court said the witness’ testimony would have been helpful to the defense because it would have provided a disinterested, objective view to corroborate the defendant’s testimony. Id. at 714, 104 S.Ct. 2052. The Gray court’s analysis is particularly relevant to defendant’s claims in this case. In Gray, the court found ineffectiveness in counsel’s failure to investigate and/or interview witnesses even though his client was hesitant to subpoena them. This case, defendant argues, is more extreme than Gray because defendant specifically asked that trial counsel interview witnesses, but trial counsel inexplicably made no effort to do so. Additionally, the Gray court found prejudice in the failure to call one witness. Defendant again argues that his case is more extreme than Gray because of trial counsel’s failure to investigate and/or interview numerous witnesses who could have aided defendant’s trial defense. With these guiding principles, the Court will assess defendant’s claims in the two steps dictated by Strickland: (1) the objective reasonableness of counsel’s conduct, and (2) the prejudice resulting from any objectively unreasonable conduct. For the reasons stated in the following analysis, the Court concludes that defendant’s motion should be granted because of trial counsel’s failure to investigate, interview, and call at trial a number of witnesses. A. TRIAL COUNSEL WAS OBJECTIVELY UNREASONABLE IN HIS FAILURE TO INVESTIGATE, INTERVIEW AND CALL AT TRIAL WITNESSES WITH EVIDENCE IN SUPPORT OF DEFENDANT’S GOOD FAITH DEFENSE AS REQUESTED BY DEFENDANT. At trial, the government endeavored to prove that defendant was involved in three different prongs of a larger conspiracy to violate the Arms Export Control Act and the Comprehensive Anti-Apartheid Act of 1986. The three prongs of the conspiracy were: (1) the illegal importing of surrogate missiles from South Africa to the United States, (2) the illegal exporting of United States missile components to South Africa for integration into South African missiles, and (3) the illegal transfer to South Africa of technical data derived from United States-based flight testing of missiles originally produced in South Africa. Defendant’s defense to all three prongs of the charged conspiracy was that he acted in good faith. Defendant sought to prove — and he argued to the jury — that he held an honest belief that he was acting in compliance with the law. Accordingly, defendant argued, he lacked the willful state of mind required to establish a violation of the relevant law. The Court charged the jury in accordance with this defense, explaining that defendant’s good faith was a “complete defense ... because good faith on the part of the defendant is simply inconsistent with the intent to commit the crime charged.” Trial Transcript (“T.”), Dec. 4,1992, at 100; App. at 3496. In his habeas motion, defendant asserts that he asked that trial counsel investigate and interview a number of witnesses to support his good-faith defense. Defendant’s requests went beyond mere oral inquiries; he made some of his requests in writing and faxed them to trial counsel. See Def.’s Exs. 10-15; see also Defendant’s Jan. 29, 2001, Declaration, Def.’s Ex. 43 (“Def.’s Decl.”) at ¶¶ 9-10 (defendant’s declaration explaining defendant’s request of counsel to conduct a “thorough investigation and interview all persons who would help show that I acted in good faith”). Below, the Court will recount defendant’s arguments as to each prong of the conspiracy and then set forth its analysis supporting the conclusion that trial counsel was indeed ineffective. 1. Defendant’s Allegations of Counsel’s Ineffectiveness (a.) Imports evidence The imports prong of the conspiracy involved charges that defendant and defendant’s employer, International Signal and Control Corporation (“ISC”), illegally imported into the United States South African surrogate missiles, or missile dummies, as part of ISC’s Striker missile program. A central issue with respect to this prong of the conspiracy was the classification of the missile dummies’ country of origin. Under the regulations governing importation of defense articles, anyone seeking to import defense articles was required to complete a Bureau of Alcohol, Tobacco and Firearms (“ATF”) application form, which asked the country of origin of the defense articles. At the relevant time period, a United States embargo prohibited the importation of defense articles that were classified as originating in South Africa. At trial, the government adduced evidence supporting its argument that the missile dummies ISC imported were South African in origin. Defendant, however, testified at trial that he had a good-faith belief that, under the governing rules, the imported missile dummies were properly classified as Italian in origin. This statement was based on the fact, as defendant testified, that South African producers shipped incomplete missile dummies to Italy, where an Italian company, Elmer, added components in assembling the missile dummies that were ultimately imported into the United States. Because the Italian company added components, and, thus, financial value, to the missile dummies, defendant alleged that under a “value added” theory, the proper country of origin for the missile dummies was Italy. To support this defense, defendant requested that trial counsel call witnesses to testify as to (1) the legitimacy of the value-added concept — that is, whether it was a proper interpretation of the governing regulations, and (2) whether, assuming the legitimacy of the value-added concept, sufficient value was added to the missile dummies to render them Italian in origin. In an August 6, 1992 memorandum faxed to trial counsel, defendant wrote: “I want to have expert witnesses on the value added. An ATF expert would be very good and a State Dept AECA expert. A USG military missile expert could explain the value and function of the Elmer modifications.” Def.’s Ex. 13. In that same memorandum, defendant asked trial counsel to “interview the Sikorsky people — especially Gallagher and Kerns,” who, defendant believed, would corroborate his good faith with respect to the illegal import charges. Id. Defendant also argues that trial counsel should have interviewed a key prosecution witness, Sandra Stehman, who testified on cross examination by trial counsel, inter alia, that defendant would be lying if he said that he wanted to import the missile dummies legally. See T., Nov. 12, 1992, at 122; App. at 764. Defendant asserts that he specifically asked trial counsel to interview Stehman. Def.’s Decl. at ¶ 10. Additionally, at some point before trial, defendant supplied trial counsel with a list of twenty-eight witnesses whom he believed might testify at trial. Def.’s Ex. 11; see also Def.’s Decl. at ¶ 17 (defendant’s declaration that he sent the list of witnesses to trial counsel). On this list, defendant gave trial counsel his evaluation of whether a potential witness would provide “helpful” or “hurtful” testimony. Stehman was one of only two witnesses on the list whose testimony defendant rated as “hurtful,” explaining that “since she got an immunity deal she just might say what the USG wants her to say.” Defendant argues that trial counsel should have interviewed Steh-man in light of his request. (b.) Exports evidence The government argued at trial that defendant was part of the ISC conspiracy’s efforts to export components, including batteries and xenon bulbs, to South Africa for integration into South African missiles. Defendant’s defense with respect to this prong of the conspiracy was that his superior at ISC, James Guerin, the leader of the ISC conspiracy, told defendant that ISC had “Washington approval” for the export program. T. Nov. 24, 1992, at 70-71; App. at 2218-19 (defendant’s testimony that Guerin assured him of ISC’s “special channels and Washington approval” in relation to the export activity). On at least two occasions, defendant specifically asked trial counsel to interview Guerin to assess whether Guerin could testify at trial to corroborate defendant’s good-faith defense. First, on October 2, 1992, defendant faxed to trial counsel a copy of a letter from Guerin addressed to the Court. See Def.’s Ex. 14 at 52. That letter explained how Guerin “implied” to defendant that ’he had “Washington’s ‘blessings’ ” for the shipments of missile components to South Africa. Id. Additionally, in the letter, Guerin asserted his belief that defendant had no knowledge of “any of the offenses for which I was charged.” Id. (emphasis supplied). Gue-rin concluded the letter by questioning the government’s efforts to prosecute defendant: “Frankly, I have been somewhat mystified as to why charges have been brought against him at all.” Id. On the cover page of the fax defendant sent to trial counsel, defendant wrote that the letter “provides a basis for exculpatory testimony by Guerin. Please ask him the questions I gave you, which in addition to your questioning, should get at the truth and prove my innocence.” Id. at 50. Defendant’s second communication to trial counsel regarding Guerin was on October 24, 1992. On that date, defendant sent a fax containing the message: “There are only a few weeks left before trial. Please at least telephone Guerin so you can determine what kind of a witness he will make.” Def.’s Ex. 15 (emphasis supplied). In addition to asking trial counsel to interview Guerin, defendant sought another witness with respect to his defense to the exports prong of the conspiracy charges-a handwriting expert to counter the government’s introduction of a faxed memorandum explicitly referencing ISC’s supplying components to South Africa, a statement damaging to the defense. The memorandum was signed with the name “E.M. Blumenthal,” a name which the government claimed defendant wrote. At trial, the government introduced the testimony of a handwriting expert who testified that defendant “may have signed” the letter as E.M. Blumenthal. Jasin, 1993 WL 259436, at *6. Defendant did not introduce any evidence in rebuttal. Defendant asserts that, before trial, he asked trial counsel to investigate handwriting experts to support his case. Specifically, on October 20, 1992, defendant faxed to trial counsel the following note: “I know you have been busy. Since I have not heard back from you on getting a handwriting expert and trial is getting near, I met with a John Gencavage who is an expert & used to be an examiner for ATF & was the top guy for the Pa. State Police. Attached is his resume. He said his rate is $110 per hr ($550 min). If you don’t have someone else at this stage, please contact Mr. Gencavage to get the ball rolling.” Def.’s Ex. 12. Trial counsel failed to follow up with Gencavage or seek out another handwriting expert. (c.) Technology transfer evidence The government argued with respect to the third prong of the conspiracy that defendant acted to transfer to South Africa technological data obtained from United States testing of Striker missiles. Defendant argues that the testimony of Eloy J. Torrez, the former president of ISC Aerospace, a subsidiary of ISC, would have supported defendant’s claim that he acted in good faith in his handling of the technological data. Other than listing Torrez in his compilation of potential witnesses discussed above, see Def.’s Ex. 11, defendant does not argue that he specifically requested trial counsel to contact and/or interview Torrez. 2. Analysis The sum total of the documentary and other evidence establishes that defendant asked trial counsel to interview four witnesses — Kerns and Gallagher with respect to imports and Guerin and Gencavage with respect to exports. The evidence also shows that defendant asked trial counsel to investigate three expert witnesses with respect to his value-added defense to the import-related charges — an ATF expert, a State Department AECA expert, and a United States government military missile expert. Finally, the documentary evidence shows that defendant identified, without specifically requesting that trial counsel conduct interviews, two witnesses whom defendant alleges trial counsel should have interviewed — Torrez and Stehman. Defendant argues in his motion that, notwithstanding these requests, trial counsel failed to interview a single witness in preparation for trial. Instead of following up on defendant’s recommended pre-trial investigation, defendant alleges that trial counsel “discouraged [defendant] from making suggestions concerning trial preparation” and “frequently rejected [his] suggestions and questions with caustic comments and in anger.” Def.’s Decl. at ¶ 11. Shortly before trial, defendant asserts, trial counsel informed defendant that he was only planning to present one witness in defendant’s case — defendant himself. Id. at ¶ 12. Defendant then identified three witnesses whom he knew would willingly testify on his behalf:- Frank L. Ritter, General Robert W. Pointer, Jr., and David B. Ellis. Id. Counsel also called, as on cross examination, James Shinehouse. According to defendant, trial counsel did not interview these witnesses, but instead relied on defendant “to tell him what the witnesses would say.” Id. The Court finds support for defendant’s allegations in at least two portions of the trial record. First, during a sidebar discussion with the Court concerning the testimony of defense witness James Shine-house, trial counsel informed the Court that “I never talked to this man” and “I don’t know what he is going to say.” T., Nov. 30, 1992, at 147; App. at 2657. Second, in another sidebar conversation, the Court explicitly told counsel that Guerin’s testimony concerning what he told defendant about “Washington approval” was relevant and that “if you want to bring in another defense witness, Guerin strikes me as the logical person.” T., Nov. 30, 1992, at 114; App. at 2624. Even after the Court’s question asking counsel “[w]hy don’t you bring Guerin in?” and the government’s offer to transport Guerin from a federal prison in Florida to the trial, see T., Nov. 30, 1992, at 116; App. at 2626, trial counsel did not produce Guerin. Whether trial counsel actually ignored defendant’s requests that he investigate the facts and circumstances of the case, as defendant now alleges, is a factual question for the Court to decide. See 28 U.S.C. § 2255 (“[T]he court shall ... make findings of fact and conclusions of law with respect [to a motion under the statute].”). As support for many of his arguments that trial counsel failed to conduct any investigation into the facts and circumstances of the case, defendant relies solely on his own declaration. In evaluating these arguments, the Court is mindful of the government’s repeated challenges to defendant’s credibility. See Gov.’s Rep. at 6 (“The government at trial challenged the veracity of Jasin and continues to do so. Therefore, Jasin’s assertions as to alleged facts contained in his affidavit are contested by the government.”). On the other hand, defendant supports a number of his claims with documentary evidence. Moreover, the Court finds the two record excerpts of trial counsel’s sidebar colloquies with the Court discussed above supportive of trial counsel’s failure to conduct pre-trial investigation. In a typical case, to determine whether trial counsel conducted no pre-trial investigation or interviews, the Court would weigh defendant’s evidence against any contradictory evidence presented by the government. This case is, however, atypical because the government has produced no such evidence. In habeas cases like this one where a defendant is arguing that his or her trial counsel failed to investigate, interview, and call witnesses, the government customarily produces an affidavit or testimony from trial counsel explaining his or her strategic decision-making process. See, e.g., Gray, 878 F.2d at 708-09 (discussing evi-dentiary hearing where government presented trial counsel’s testimony concerning his trial strategy). In this case, however, the government produced no such affidavit and expressly declined to call trial counsel at the August 9, 2001, evidentiary hearing, as evidenced in the following colloquy between the Court and counsel: THE COURT:.... I don’t know all of the witnesses you will be calling today and I want their names, but I think [trial counsel] will be called as a witness, am I correct? MR. HADDAD [for defendant]: He will not, your Honor, that I know of. We have no reason to call him, I think it would be up to the Government to decide if they need his testimony. THE COURT: On the question of trial strategy and why a witness was called or not called, or why a witness was called without an interview or why a witness of the Government was not interviewed, that’s the burden on the Government, is that- MR. HADDAD: That’s correct. Typically of these cases, your Honor, the Government contacts the defense attorney, obtains an affidavit, says — the defense attorney says, well, here are all of my strategic considerations. That was not done in this case, they are not — to my knowledge, at no time have they told me they’re presenting [trial counsel], and I have told them that I have not contacted him and that was — he’s certainly not part of our case THE COURT:.... But there’s something else, and that is the traditional course that the Government takes in a case like this, and that is to present some testimony regarding trial strategy and why a defense lawyer did or did not do something. Did I mislead you, Mr. Goldman and Mr. Haddad, into thinking— MR. GOLDMAN [for the government]: Oh, not at all. THE COURT: — that you could not call [trial counsel]? MR. GOLDMAN: Absolutely not, your Honor, we both know we could call [trial counsel]. I — frankly, I guess [trial counsel] is one of those witnesses that neither side wants to call. And the Government’s position is that [trial counsel] explained his trial strategy at the suppression motion and, that being, I raised a legal issue, I consulted with Mr. Martin, prior counsel, on the issue, Mr. Martin has confirmed the Government’s position in its pleadings and, based upon that, I’m withdrawing the motion to suppress the proffer statements. THE COURT: All right. Now, that’s limited to the motion to suppress and what I’m talking about transcends that, goes beyond that, what I’m talking about is calling— MR. GOLDMAN: All the issues? THE COURT: Yes. Now, did I mislead you in that regard? MR. GOLDMAN: Not at all, your Honor. It’s our position that the Court has — I assume it’s the position also of both sides is that the Court has in the pleadings on the other issues the information that you need to make a decision. THE COURT: All right. MR. GOLDMAN: No, you didn’t mislead— THE COURT: But I want it clear that nothing that I said was intended to communicate to either of you that you could not call the — I guess it’s just trial counsel or the attorney representing— whoever represented Mr. Jasin at the time to testify as to why he did or did not do something— MR. GOLDMAN: That’s correct. August 9, 2001, Evidentiary Hearing and Oral Argument Transcript (“Hr’g T.”) at 13-19. This colloquy makes it abundantly clear that, on the question of counsel’s trial strategy, the government is relying solely on the written submissions. As previously stated, those filings demonstrate nothing about trial counsel’s decision-making process with regard to trial strategy. With no evidence showing that trial counsel actually' conducted the investigation that defendant requested, let alone any investigation at all, the Court is left to rely on the evidence defendant presented. That evidence leads the Court to find, as a matter of fact, that trial counsel conducted no pretrial investigation and interviewed neither the witnesses defendant asked him to interview nor the witnesses he actually presented. The seriousness of this dereliction is explained, but certainly not excused, by the fact, disclosed to defendant at the beginning of trial, that trial counsel had never tried a criminal case before this 'one. Upon this finding of fact, the question of trial counsel’s ineffectiveness is dictated by the well-established principles enunciated in Gray: “Ineffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made.” Gray, 878 F.2d at 711. Accordingly, the Court concludes that trial counsels “failure to conduct any pretrial investigation ... constitutes a clear instance of ineffectiveness.” Id. Thus, defendant has satisfied the first prong of Strickland with respect to his claim that counsel failed to investigate, interview, and call at trial witnesses with evidence in support of defendant’s good-faith defense. B. TRIAL COUNSEL’S FAILURE TO INVESTIGATE, INTERVIEW, AND CALL AT TRIAL TWO EXPERT WITNESSES AND THREE FACT WITNESSES PREJUDICED DEFENDANT’S GOOD-FAITH DEFENSE. Defendant argues that the cumulative prejudice of trial counsel’s failure to investigate and/or interview witnesses was “huge” and therefore justifies the granting of habeas relief. Defendant also points out that the Court’s analysis of the prejudice issue must take into consideration the fact that this was a close case — a conclusion that defendant supports by pointing to the jury’s five-day deliberations and the Court’s own comments describing the case as a “close” one. See T., Nov. 20, 1992, at 8; App. at 1726 (Court’s commentary that “tilt’s a close case” in denying defendant’s motion for judgment of acquittal). The government’s responsive arguments on prejudice address each of the witnesses whom defendant argues his counsel was ineffective in failing to investigate, interview, or call. In summary, the government contends that even had trial counsel thoroughly investigated the leads provided by defendant, and, even had trial counsel called additional witnesses, the evidence against defendant would have led the jury to reach the same result — a guilty verdict. Upon reviewing the parties’ arguments and their citations to the record, the Court concludes that trial counsel’s conduct resulted in prejudice to defendant. The Court’s conclusion is limited to those witnesses who would have supported defendant’s good faith as to two of the three prongs of the conspiracy: imports and exports. With respect to imports, the Court finds prejudice in counsel’s failure to follow up on defendant’s request that he find an ATF expert and a United States government military missile expert. The prejudicial effect of trial counsel’s failure in this respect is demonstrated by the affidavits, appended to defendant’s habeas motion, of Stephen Higgins, a former director of ATF, and Robert Yates, a military missile expert. Had trial counsel investigated such witnesses, and, had he found expert witnesses like Higgins and Yates, those witnesses would have been able to present testimony helpful to explain defendant’s good-faith belief that the importation of Striker missile dummies was legal under a value-added theory. The Court also finds prejudice with respect to imports in trial counsel’s failure to interview John Kerns and William Gallagher, the representatives of Sikorsky who worked with defendant, and who also would have provided evidence supportive of defendant’s good-faith defense. With respect to exports, the Court finds prejudicial counsel’s failure to interview Guerin, the leader of the ISC conspiracy, who would have offered evidence as to defendant’s good faith belief that ISC was exporting missile components with the federal government’s approval. Moreover, and perhaps even more important to defendant’s case, Guerin’s testimony would have called into doubt defendant’s involvement in any illegal activity at all. The Court does not find prejudicial counsel’s ineffectiveness with respect to the other witnesses cited by defendant (Sandra Stehman, John Gencavage, and Eloy Torrez). Nevertheless, counsel’s failure to interview and call Kerns, Gallagher, and Guerin, and failure to investigate the availability of expert witnesses such as Higgins and Yates, is more than sufficiently prejudicial to compel the Court to grant defendant’s motion. 1. Prejudice in Failure to Investigate, Interview, and Call at Trial Witnesses with Respect to the Imports Prong of the Conspiracy Throughout trial and in its closing argument, the government made defendant’s involvement in the Striker conspiracy a central part of its case. The government argues that defendant’s purported belief in the value-added concept was false and did not amount to good faith. There are two elements to the government’s argument. First, the government asserts that the value-added concept is an illegitimate one that plays no role in determining the country of origin of defense articles, and, accordingly, could not support defendant’s belief that importation of the missile dummies was legal. Second, the government argues that, even if value-added were a legitimate concept, defendant could not have acted in good faith in this case because there was insufficient value added to change the imported missile dummies’ country of origin from South Africa to Italy. In response, defendant contends that the witnesses trial counsel failed to investigate or interview would have provided testimony directly rebutting the government’s two arguments. The Court addresses defendant’s responses to the government’s arguments in turn. (a.) Legitimacy of value-added concept At trial, defendant was the only witness to testify that value added was a legitimate concept. The government, in its closing argument, placed great emphasis on the lack of evidence corroborating defendant’s testimony as to his good faith beliefs, stating: “There has been no testimony of any witness you have heard” concerning value added. T., Dec. 3, 1992, at 77; App. at 3289. Defendant’s value-added testimony, the government argued, was “absurd,” T., Dec. 3, 1992, at 74; App. at 3286, and defendant was seeking to “suck ... the jurors into” an unbelievable analysis: “Mr. Jasin wants you to believe, by adding a little telemetry to this, it makes it Italian. Mr. Jasin would probably tell you that if I put a Sony stereo in my old Ford pickup truck, that I drive a Honda.” T., Dec. 3, 1992, at 176; App. at 3388. The government also supported its argument on the unbelievability of defendant’s testimony by pointing to the Court’s authority: And when you listen to the instructions on the law by the Judge, listen. You’ll hear that there’s no provision in the law for this value added concept. I would submit to you that the only thing that has been added to, and added to, and added to in this case is Thomas Jasin’s testimony. T., Dec. 3, 1992, at 176; App. at 3388. In sum, the government argued, “the whole value added concept is simply a concoction, a subterfuge, a way around the law.” T., Dec. 3,1992, at 76; App. at 3288. The government’s arguments as to the legitimacy of the value-added concept amounted to two separate arguments: first, that defendant’s belief, if he did indeed hold such a belief, was not objectively reasonable because it was not supported by the law, and, second, defendant did not hold a subjective belief in the value-added concept as evidenced by the fact that no other witnesses testified as to facts corroborating defendant’s testimony. In his habeas motion, defendant presents two witnesses who could have testified to the legitimacy of the value-added concept. The first, an expert whom trial counsel could have found upon reasonable investigation, is Stephen Higgins, whose testimony would have supported the objective reasonableness of defendant’s belief in the value-added concept. The second is John Kerns, whom defendant asked trial counsel to interview, and who would have provided testimony rebutting the government’s argument that defendant had no subjective belief in the legitimacy of the value-added concept. (i.) Objective reasonableness of value-added concept: testimony of Stephen Higgins As the parties discuss in their filings, the Court addressed at trial the question of whether value added was indeed a legitimate concept. In a mid-trial argument outside the presence of the jury, defendant’s trial counsel presented the affidavit of Vernon D. Aeree, a former Commissioner for the United States Customs Service, and a number of Customs Service rulings alleged to govern the legality of importing arms under the AECA. See Bet’s Ex. 7 (affidavit without attachments). Acree’s affidavit explained how the Customs Service would determine the country of origin of a defense article “where multiple countries have provided components for an article that is to be imported into the United States.” Id. at ¶ 5. In the affidavit, Aeree asserted the Customs Service would consider the value added approach described in defendant’s testimony, id. at ¶ 5, and stated that he was “personally familiar with rulings by the United States Customs Service approving for import articles which have as component parts and or sub-assemblies manufactured or supplied by manufacturers within embargoed countries.” Id. at ¶ 6. Trial counsel presented Acree’s affidavit in an effort to convince the Court to charge the jury on the value-added concept. See T., Dec. 1, 1992, at 229; App. at 2953 (trial counsel’s mid-trial argument to the court: “We’ve got all of this evidence that value added is there. And then the Judge, of course, gives the law and there isn’t a word of law in there that says value added is a concept recognized.”). The government responded to trial counsel’s request for a charge on value added by arguing that Customs Service practices, which trial counsel cited as support for his argument, were irrelevant: “Customs has no jurisdiction in connection with the regulations regarding] imports or exports.” T., Dec. 1, 1992, at 237; App. at 2961. Rather, the government argued, the agency whose rules would have governed importation of the Striker missile dummies, was ATF. See id. (government’s assertion that “ATF has the enforcement responsibility with defense articles and services, imports”). After considering the parties’ arguments, the Court concluded as follows: I have carefully considered the legal issue for me, which is whether the customs regulations should be considered, and should be the subject of a charge to the jury with respect to the subject of value added, or substantial transformation. And I have concluded under the facts of this case that the answer to that question is no, that the Arms Export Control Act, does not pick up any definitions that might be included in the customs statutes and regulations that were submitted to the Court. T., Dec. 2, 1992, at 181-82; App. at 3187-88. Under the Court’s ruling, to support his claim that value added was a legitimate concept, defendant would have had to present evidence and argue that ATF practices supported his position. Significantly, defendant argues in the instant habeas motion that, had trial counsel acted diligently and followed defendant’s explicit requests transmitted to counsel before trial, see Def.’s Ex. 13 (requesting an ATF expert), defendant would have been able to provide exactly such support. Had trial counsel followed up on the request to investigate an ATF expert, defendant argues counsel should have found Stephen E. Higgins, who worked with ATF for thirty-two-and-one-half years and who served as ATF’s Director from 1982 to 1993. Defendant appends to his motion an affidavit from Higgins, in which Higgins explains how ATF would have addressed the missile dummies’ country of origin. Def.’s Ex. 2. Higgins’ testimony would have filled the gap that existed in defendant’s trial defense: he states in his affidavit that the ATF would have considered the value added concept in the same manner as stated in Acree’s affidavit describing Customs Service practices. This is because “where there is a question with respect to the proper classification or categorization of items to be imported ... ATF would look to U.S. Customs for guidance when the terms in question are not specifically defined in ATF laws or regulations.” Id. at ¶ 6. The described ATF practice would have had direct application in this case “where a question arose as to the true country of origin and manufacture, since to my knowledge those terms are not defined either in the instructions that accompany the forms or in the applicable laws and regulations covering such activities.” Id. Higgins’ affidavit continues to explain that under Customs Service practices, when “multiple countries have provided components for an article that is to be imported into the United States, if the last country of export prior to importation has ‘substantially transformed’ the article in question, then that country and the manufacture within that country are properly designated on ATF Form 6A for Customs purposes.” Id. at ¶ 7. Under Customs rulings, “[substantial transformation is defined as an increase of 35% in labor and material costs (value) to the pre-transfor-mation value of an object.” Id. Because, to his knowledge, the ATF had no rules or regulations governing the country of origin entry on ATF Form 6A, it is Higgins’ “professional opinion based on 32]é years experience in ATF, that ATF’s position would have been to accept the Customs rulings.” Id. Higgins’ affidavit thus demonstrates quite clearly how trial counsel’s lack of diligence prejudiced defendant. Had trial counsel investigated an ATF expert, as explicitly requested by defendant, and had he found either Higgins or the information contained in Higgins’ affidavit, he would have been able to rebut the government’s argument that Acree’s affidavit and the Customs Service rulings cited by trial counsel were inapplicable. Higgins’ affidavit demonstrates the exact opposite — because ATF had no specific rules on the topic, Customs Service practices would have been relevant to the determination of the country of origin of the imported missile dummies. Had trial counsel presented this material, the Court may or may not have decided to charge the jury on the value-added concept. But, it is Higgins testimony — and not á potential charge — on the applicable standards in determining a defense article’s country of origin that would have provided substantial support to defendant’s good-faith defense. As discussed above, the government argued in its closing that defendant was the only person to testify about the value-added concept. Had Higgins, or any other person, testified that ATF would have followed Customs Service practices of looking at the increase in value generated by work on a defense article in a second country, the government would not have been able to make this argument. Moreover, notwithstanding the government’s argument that Higgins’ affidavit is incorrect as a matter of law, Higgins’ testimony on this issue would have been admissible at trial. If nothing else, Higgins’ affidavit, particularly in its reference to the absence of ATF rules on country of origin, shows that reasonable professionals experienced with ATF regulations could disagree about the governing law As defendant points out, in cases where the law may be unclear and where the defendant asserts a good-faith belief in compliance with the law, evidence as to interpretations of the law is admissible. Defendant’s argument is based on a Fifth Circuit decision in which the court held: “[ejxpert testimony may be particularly appropriate when specialized areas of law ... are at issue.” United States v. Cavin, 39 F.3d 1299, 1309 (5th Cir.1994). In Ca-vin, the court reversed a conviction of a lawyer for participating in his client’s fraudulent transactions on the basis that the trial court improperly excluded expert testimony as to the law governing the transactions. The import of Cavin in this case is that an expert’s testimony concerning the state of the law as to importation of defense articles is admissible as it relates to the defendant’s “understanding and resulting state of mind.” Id. Even without the support of the Cavin decision, the Court would have admitted testimony of the sort presented in Higgins’ affidavit in rebuttal because the government presented testimony on the same issue through its own expert witness, Pearl Baylor, an import specialist with the ATF. Baylor testified at trial that an application for the importation of arms would have been denied if it listed the country of manufacture as South Africa. T., Nov. 13, 1992, at 19; App. at 845. According to Baylor, if the items in the application were transferred to a country where value was added, ATF would look to the “originating point” to determine the item’s country of origin. T., Nov. 13, 1992, at 20; App. at 846. This testimony supported the government’s argument that value added was not a legitimate concept. Defendant certainly would have been entitled to rebut that testimony by presenting an expert witness prepared to testify to the contrary. Importantly, for the Court’s prejudice analysis, the expert witness defendant proposes is one who, as Director of ATF, was senior to the government’s expert, Baylor. That certainly is a factor, favorable to defendant, the jury could consider in resolving conflicts in the testimony. The government responds by arguing that Higgins was not involved, as was Baylor, in day-to-day decisions concerning applications for importation of defense articles, and that, presumably, Higgins’ testimony would not be as credible as Baylor’s. The answer to the government’s argument is that, because of counsel’s ineffectiveness, the jury never heard Higgins’ testimony or any other defense testimony from the ATF — to defendant’s prejudice. In addition to challenging Higgins’ credibility, the government attacks the accuracy of the statements made in the affidavit. Specifically, the government argues that defining “substantial transformation” of a defense article as requiring labor or added material such that the article increases in value by thirty-five percent is incorrect. The government argues that the thirty-five percent figure does not appear in the regulations concerning importation of defense articles. This argument, however, misses the point of Higgins affidavit: the thirty-five percent figure does not appear in the regulations, because, as Higgins states, to his knowledge, there are no regulations specifying how ATF should define a defense article’s country of origin. Because of the lack of guidance to ATF, Higgins asserts, ATF would look to Customs Service practices and rulings which support the definition of substantial transformation that Higgins explained in his affidavit. Even if Higgins is incorrect in his explanation of the regulations, as the government argues, that does not change the Court’s inquiry. In arguing the factual legitimacy of Higgins’ affidavit, the government, as it does throughout its filings, misinterprets defendant’s present claim. Defendant is not arguing in his habeas motion that the value-added concept was the definitive legal rule to apply to the case. The issue is not the actual legitimacy of the value-added concept. The issue is whether defendant could have reasonably believed in the legitimacy of that concept. Defendant argues that he was reasonable in holding such a belief. Higgins testimony — regardless of its merits— would have lent considerable weight to defendant’s assertions. Specifically, Higgins testimony would have allowed defendant to argue that if the director of the ATF thought the value added concept was applicable, defendant could have reasonably taken the same view. Such testimony would have enabled defendant to rebut the government’s argument that the value added concept was “absurd.” For these reasons, the Court concludes that trial counsel’s failure to present an expert witness on ATF procedures— whether it was Higgins or someone else possessing similar information — was prejudicial to defendant’s trial defense. (ii.) Subjective belief in the value-added concept: testimony of John Kerns In addition to requesting a witness like Higgins who would have shown the objective reasonableness of defendant’s good faith as to the value-added concept, defendant specifically requested that trial counsel interview and call as a witness John Kerns, a Vice President of the Sikorsky Aircraft Division of United Technologies Corp. Defendant argues that Kerns’ testimony would have demonstrated his subjective good faith — that is, that defendant actually held an honest belief that importation of the missile .dummies was legal if sufficient valué was added in Italy. At trial, the only testimony suggesting defendant’s subjective good faith came from defendant himself. Defendant testified that he discussed the value added concept with Greg Mansker, a lawyer with ISC, and asked Mansker whether ISC could legally import the Striker missile dummies. According to defendant, Mansker responded as follows: Greg got back to me and said that he, it was his opinion that, yes, we could comply with regulations if we did this and he gave me an analogy of a, I remember distinctly, an analogy of a car being assembled in Italy where all these various components would be coming from other manufacturers and other countries and it was the, the location of where all this assembly process was done that identified it as the last place of manufacture or the source of origin, origin. T., Nov. 24, 1992, at 55; App. at 2203. In its argument to the jury, the government responded to defendant’s testimony regarding Mansker by suggesting that defendant had either “duped” Mansker, or that Mansker himself was involved in the conspiracy to illegally import the Striker missiles. T., Dec. 3, 1992, at 175-76; App. at 3387-88. Defendant presented no testimony at trial to rebut the government’s argument. In support of his motion, defendant presented Kerns’ affidavit, Def.’s Ex. 4, and argues that Kerns’ testimony would have shown that a source external to ISC — and thus, not involved in the conspiracy — believed in the legality of importing the missile dummies and communicated that belief to defendant. Kerns worked with Sikorsky when ISC and Sikorsky were planning a program to evaluate whether the Striker missiles could be launched from helicopters. Kerns states in his affidavit that Sikorsky’s “business policies demanded legal review of each program pursued to assure compliance with applicable United States and foreign government laws and regulations.” Def.’s Ex. 4, at ¶ 3. Sikorsky conducted such a review on the Sikorsky ISC program, and, as Kerns explains: This review included discussions with the U.S. Export Licensing and Control Office and concluded that the Restrictive Countries Section concerning the Republic of South Africa would not have a bearing in this case, provided that any hardware imported would be of manufacture or assembly of the ISC Group in the United Kingdom or any country other than South Africa. Id. at ¶ 4 (emphasis added). A fair reading of this statement compels the conclusion that Sikorsky’s legal review led Sikorsky officials to conclude that importation of the Striker missiles would have been permissible under the relevant regulations. Defendant “was informed of the results of this review during the course of on-going program discussions in late July 1986.” Id. at ¶ 5. Accordingly, had trial counsel interviewed and called Kerns as a witness as defendant requested, Kerns’ testimony would have established that defendant received information about Sikorsky officials’ views of the legality of importing the missile dummies from a source independent of ISC. In the first instance, this evidence would have corroborated defendant’s testimony that he honestly believed in the value added concept. More importantly, though, in light of Kerns’ independence of ISC, the evidence would have rebutted the government’s argument that defendant had “duped” Mansker or that the value added concept was a creation of the ISC conspiracy. The government raises several arguments in response to defendant’s reliance on Kerns’ affidavit. First, it argues that Sikorsky’s analysis did not take into consideration the legal risk to ISC, but only considered the risk to Sikorsky. The government conceded at trial that Sikorsky could legally test missiles already imported into the United States. The charged illegal conduct, however, was the importation itself — a task controlled solely by ISC. For this reason, the government argues that Sikorsky’s analysis said nothing about the legality of importing the missile dummies. As support, the government points to an August 15, 1986, le