United States of America v. Gary Mcgahee, a/k/a CASBAH SALAAM, a/k/a CAS, a/k/a CUZ On Appeal from the United…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3559
UNITED STATES OF AMERICA,
Appellant.
v.
GARY MCGAHEE, a/k/a CASBAH SALAAM,
a/k/a CAS, a/k/a CUZ
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 2-03-cr-00788-001)
District Judge: Hon. Ronald L. Buckwalter
Submitted under Third Circuit LAR 34.1(a)
on July 16, 2009
Before: RENDELL, FUENTES and ROTH, Circuit Judges
(Opinion filed: March 18, 2010)
O P I N I O N
ROTH, Circuit Judge:
The United States appeals from the District Court’s order vacating the conviction
and sentence of Gary McGahee. The District Court had jurisdiction under 18 U.S.C. §

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3231. We have jurisdiction under 28 U.S.C. § 1291. The district court found that
McGahee’s trial counsel provided ineffective assistance of counsel, which impelled the
court to vacate McGahee’s conviction and sentence under 28 U.S.C. § 2255(a) and grant
him a new trial. Because the parties are familiar with the facts, we will describe them
only as necessary to explain our decision. For the reasons discussed below, we will
affirm.
The government argues that the district court erred in finding McGahee’s trial
counsel ineffective. We review de novo the district court’s determination that McGahee’s
counsel was ineffective. See United States v. McCoy, 410 F.3d 124, 131 n.1 (3d Cir.
2005). Under the familiar standard, a defendant must satisfy two steps to establish a
claim of ineffective assistance of counsel. “First, the defendant must show that counsel’s
performance was deficient.” Strickland v. Washington, 466 U.S. 668, 687 (1984). This
requires showing the counsel’s representation “fell below an objective standard of
reasonableness.” Id. at 688. “Second, the defendant must show that the deficient
performance prejudiced the defense.” Id. at 687. That is, “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. The government argues only the second step,
viz., prejudice, on appeal.
The district court did not err in finding McGahee prejudiced by his counsel’s
failure to call alibi witnesses to testify on McGahee’s behalf. The evidence against

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McGahee came from Gary Oliver and Gloria Hoffman, both of whom suffered from
nontrivial credibility issues. Oliver, among other things, delayed coming forward to the
police, changed stories about what happened on the night in question, and received
sentencing benefits by disclosing McGahee’s name. And Hoffman had an extensive
criminal record and was concerned that she would receive a longer sentence if she did not
cooperate with the government. The testimony of the three alibi witnesses, one of whom
is a police officer, when measured against Oliver’s and Hoffman’s questionable
testimony, could have been sufficient to create reasonable doubt. See United States v.
Agurs, 427 U.S. 97, 113 (1976) (“[I]f the verdict is already of questionable validity,
additional evidence of relatively minor importance might be sufficient to create a
reasonable doubt.”). Simply put, after weighing the credibility of the three alibi witnesses
against Oliver’s and Hoffman’s testimony, we agree with the District Court that there is a
reasonable probability that the outcome would have been different with the three alibi
witnesses’ testimony.
Accordingly, we will affirm the District Court’s order.

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