Opinion
Civil No. 03-1533 (PG), RE: Criminal No. 00-001 (PG)
September 9, 2003
Nicolás Nogueras Cartagena, San Juan, PR, for Plaintiff
Irene C. Feldman, AUSA, San Juan, PR, for Defendant
REPORT AND RECOMMENDATION
Petitioner initially submitted a pro-se petition with general allegations as to ineffective assistance of counsel. 28 U.S.C. § 2255. The government's response was filed on July 2, 2003. Thereafter, counsel for petitioner requested time to submit a memorandum in support. It was filed, with a statement of facts, on July 7, 2003. A document entitled Memorandum in Support of and Reply to the United States of America's Response was additionally filed on July 9, 200. See D.E. #7, 10 and 12. Upon the Court's referral of this matter for report and recommendation, the available documents of criminal proceedings and the trial and sentencing transcripts in this case, which are part of the record, were considered by this Magistrate (D.E. #3, #4).
Petitioner was charged, together with other co-defendants, in Count Two of a nine count Superseding Indictment for a conspiracy to conduct financial transactions affecting interstate commerce with a financial institution from proceeds of unlawful activity, that is, the distribution of a controlled substance. 18 U.S.C. § 1956 (a)(1)(B) and (h). He was found guilty after a jury trial and was sentenced on June 27, 2001, to fifty seven (57) months of imprisonment, a supervised release term of three (3) years and a special monetary assessment of one hundred dollars ($100).
The total offense level under the Sentencing Guidelines was 25, with a criminal category of I, and the range would be 57-71 months. See Case No. 00cr00l(PG) (D.E. #405).
Claims of alleged procedural errors:
Petitioner draws attention to some of the alleged mistakes during his trial. He claims that, notwithstanding his counsel's objections, evidence of some three pages of the deposition taken to defendant in a civil case was admitted in his criminal case. He submits this entails admissions by a party with a pecuniary interest in the outcome of the criminal case, referring to First Bank and to the testimony of Mr. Nelson Biaggi Rodriguez, its legal counsel. Petitioner cites United States v. Frank, 494 F.2d 145 (2d Cir. 1974), in that the jury should have been instructed that a prosecution witness, who had a civil action pending against the defendant (Case No. 98cv1387 (DRD)), had a special interest in the outcome of his criminal conviction because it could be used as collateral estoppel in the civil action. Petitioner claims that in his criminal case, no such instructions were given to the jury and trial counsel for defendant, Mr. Antonio Bauza, made to further objections. Petitioner also alleges he never received Brady discovery from the government of the complete translated deposition.
The record shows that counsel for defendant had filed a Motion in Limine on January 10, 2001, seeking to exclude the deposition testimony (D.E. #333). Not only defendant was granted an extension of time during trial to obtain the whole deposition, that is, he was given a continuance of trial until January 16, 2001, while the witness, Mr. Biaggi, was excused subject to being recalled, but the trial in fact finally resumed on January 18, 2001. By that time, oral arguments had been entertained by the Court on January 12, 2001, regarding the objection that such testimony be admitted and the Court had ruled by denying same. Once again at trial, the record shows, the parties stipulated as to admission of the deposition (D.E. #335) and therein indicated that the witness at issue, Mr. Biaggi, need not be cross-examined.
Additionally, petitioner's claim that Atty. Bauza did not cross-examine a witness during his trial, Mr. Biaggi, as to his participation in the civil case misconstrues the record. Defense counsel clearly declined to do so. The stipulation of the parties at trial was not to cross-examine the witness. Transcripts of January 12, 2001, pp. 329-332 and of January 17, 2001, pp. 420-421. Likewise, the transcript of the sentencing proceedings of June 27, 2001, pp. 12-17, also refers to counsel Nicolas Nogueras' discussion of the issue regarding Mr. Biaggi's testimony. The sentencing court indicated it would have nevertheless denied counsel Bauza's request for jury instructions as irrelevant.
Petitioner cannot overcome the presumption that counsel's decision not to call witnesses be considered a sound trial strategy. Lema v. United States, 987 F.2d 48, 55 (1st Cir. 1993) (stating that the decision to interview potential witnesses, like the decision to present their testimony, must be evaluated in light of whatever trial strategy reasonably competent counsel devised in the context of a particular case). See also Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974) (stating that the decision to call or bypass particular witnesses is peculiarly a question of trial strategy which courts will practically never second guess). Petitioner also raises that he had invested money in obtaining an expert witnesses from Texas to testify at trial and counsel failed to use same. In the petition, there is no proffer of what this witness could have testified nor how the testimony would have assisted the defense. Thus, petitioner has not presented any issue to establish that counsel's judgment could have been constitutionally defective, amounting to ineffectiveness and from which petitioner was devoid of professional assistance. Even a trial lawyer's badly flawed judgment would be insufficient; petitioner needs to show prejudice in that there is a high likelihood of a different result. Phoenix v. Matesanz, 233 F.3d 77 (1st Cir. 2000); Cepulonis v. Ponte, 699 F.2d 573 (1st Cir. 1983). The transcript of the 8th day of trial shows counsel's response to the Court's question on whether defense witnesses were to be presented as first, still not being certain whether he was going or not to present the witness. See transcript of January 19, 2001, pp. 749, 765. Secondly, shortly thereafter, Atty. Bauzá informed the court he would not be using any witness. Id. pp. 765-766.
To advocate effectively, trial counsel must be allowed to weed out some arguments to stress others, as a matter of strategy. Although a failure to produce a promised witness may, under some circumstances, be deemed ineffective assistance, see, e.g., Anderson v. Butler, 858 F.2d 16, 19 (1st Cir. 1988), the determination of inefficacy is necessarily fact-based. "[N]o particular set of rules can be established to define effective assistance, as hard-and-fast rules would inevitably restrict the independence and latitude counsel must have in making tactical and strategic decisions." United States v. Natanel, 938 F.2d 302, 310 (1st Cir. 1991), cert. denied, 502 U.S. 1079, 112 S.Ct. 986. See United States v. McGill, 11 F.3d 223, 227 (1st Cir. 1993).
The decision of an attorney not to hire independent expert is part of trial strategy and defendant is not denied effective counsel by such failure unless he can show that failure to call expert witness was failure on part of attorney to exercise customary skill and diligence that reasonably competent attorney would exercise under similar circumstances and that he was prejudiced. See Annotation Modern Status of Rule as to Test in Federal Court of Effective Representation by Counsel, 26 A.L.R. Fed. 218 (1976). See also George L Blum, Annotation Adequacy of Defense Counsel's Representation of Criminal Client-Issues of Incompetency, 70 A.L.R.5th 1 (1999).
The petitioner needs to overcome the presumption that counsel's decision not to call these witnesses would be considered sound trial strategy. See, e.g., Lema v. United States, 987 F.2d 48, 55 (1st Cir. 1993) (stating that the "decision to interview potential witnesses, like the decision to present their testimony, must be evaluated in light of whatever trial strategy reasonably competent counsel devised in the context of the particular case"); United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974).
Additionally, the above discussed issues were raised in part in the defendant's direct appeal, regarding his counsel error, if any, to request jury instructions as to Mr. Biaggi's testimony. There is a discussion as to why there was no error, not alone a plain error, since there was no link to establish that Biaggi would have profited from defendant's conviction.
Petitioner also argued that there was no proof of defendant's agreement to participate in a conspiracy to launder money, no evidence of his knowledge of the illegal source of the money or to conceal same in his banking and business transactions. These issues were raised on direct appeal of the conviction and were already discussed by the Court of Appeals for the First Circuit in affirming the conviction. While examining the evidence, the Appeals Court found to the contrary, that it was a classic example of money laundering and a reasonable jury could conclude the obvious, and only plausible explanation, that the defendant was trying to disguise the origin of the proceeds by making it appear that the money had come to him from a legitimate source. United States v. Rivera Rodriguez, 318 F.3d 268 (1st Cir. 2003).
Although claims challenging sufficiency of the evidence may be made by a § 2255 motion, upon establishing cause and prejudice, prior consideration of the substance of such claim on direct appeal precludes further review. Santiago v. United States, 889 F.2d 371, 376 (1st Cir. 1989). Issues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion. Dirring v. United States, 370 F.2d 862, 864 (1st Cir. 1967) cited in Barrett v. United States, 965 F.2d 1184, 1190, n. 11 (1st Cir. 1992). Thus, petitioner's claims cannot prosper.
Claims of ineffective assistance of counsel:
Petitioner states that counsel for defendant, Mr. Antonio Bauzá, was not present at his sentencing and that trial transcripts were not ready and available to new counsel, Nicolás Nogueras. As such, no proper analysis of the presentence report with what had transpired at trial could be accomplished.
The record shows that petitioner was represented at sentencing by retained counsel, Nicolás Nogueras, who later was also his attorney for purposes of his appeal in addition to counsel Bauzá. The transcripts show both counsel received well in advance of sentence, the presentence report and had adequate opportunity to submit objections. These objections were raised at the time of the imposition of sentence. This claim has also been presented in the direct appeal and no prejudice was established. Ineffective assistance at the sentencing stage is a separate issue to the claim of ineffective assistance of his trial counsel. However, it is also governed by the Strickland analysis.Strickland v. Washington, 466 U.S. 668 (1984).
The Supreme Court has developed under Strickland a two prong test for evaluating claims of ineffectiveness of counsel. Petitioner must show that counsel's performance was deficient and also must show that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Unless petitioner makes both showings, it cannot be said that the conviction or sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, supra, at 687. The essence of an ineffective assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial or the sentence proceedings were rendered unfair and the verdict rendered suspect. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Kimmelman v. Morrison, 477 U.S. 365, 374, (1986). Petitioner alleged sentence unfairness are reduced to claims of entitlement to aberrant behavior and a role as a minor participant. Both were raised before the sentencing court at the time of imposition of sentence.
Claims of sentencing errors:
Above petitioner claims that the sentencing court did not consider aberrant behavior for downward departure purpose. The sentencing court was presented with these arguments at the time of sentence and determined not to apply same to defendant's conduct. The record further shows that the government's sentencing memorandum presented to counsel for the defendant and to the Court advanced notice of why the conduct was not aberrant. It was the sentencing court opinion that having the discretion for a downward departure, upon its recollection of the evidence at trial showed planning, various meetings, and instances, there was no indication of any aberrant behavior nor compliance with sentencing guideline 5K2.20. See transcript of June 27, 2001, pp. 18-19. Aberrant behavior has been construed as lack of significant planning and limited duration. Thus, the sentencing judge understood his authority to depart but concluded that such a departure was not warranted.
Petitioner also claims that the court refused to consider him as a minor participant. The record also shows that the sentencing court discussed this issue and determined that the defendant could not be considered a minor participant and was instead the prime source of the money laundering scheme.
Even appellate review of a district court's refusal to depart downward is very limited. Such a review is not warranted if in its refusal to depart the district court plainly understood it had the legal authority to do so but found that the circumstances of the case were not sufficiently unusual and/or extraordinary to warrant a departure. United States v. Saldaña, 109 F.3d 100, 102-03 (1st Cir. 1997). Thus, appellate jurisdiction will attach where the court's refusal was premised on the mistaken belief that it lacked the legal authority to depart under the Sentencing Guidelines. United States v. Ahlers, 305 F.3d 54, 56 (1st Cir. 2002). Likewise, as to aberrant behavior. The refusal of sentencing court to grant downward departure based on aberrant behavior could not be reviewed upon showing that sentencing court was aware of its authority to grant downward departure and declined to do so. United States v. Londoño Quintero, 289 F.3d 147 (1st Cir. 2002); United States v. DiMarzo, 80 F.3d 656 (1st Cir. 1996): United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995).
As to the petitioner's claims insofar as his sentence proceeding, the record is clear that the sentencing judge harbored no doubt of its authority to depart downward and declined to do so. No prejudice can be established as to counsel's performance at the sentencing stage. For which reason, the claim of ineffective assistance of counsel as to sentence is not appropriate.
Other allegations:
The government objected to a defense witness, Mr. Israel Rodriguez, Manager of First Bank, whose testimony would have aid the defense and his trial attorney did not object to the prosecution's request. The record shows that counsel for defendant and the government presented their arguments on the eighth day of trial and the court ruled, after ample discussion on the issues, as to nature of such hearsay testimony and as to its relevance. Transcript of January 19, 2001, pp. 748-765, 767-768.
Another allegation raised by petitioner provides solely a narrative history of codefendant Ubaldo Rivera Colón's plea, who had turned into a witness for the prosecution, of the Court having sealed documents pertaining to same, and the continuance of said codefendant's sentencing proceedings. Although counsel for herein petitioner states a discussion of these documents would follow, no other mention as to their relevance appear. The criminal file, 00cr001(PG) has been available for inspection through the Clerk's Office and could have been photocopied for the benefit of petitioner. A naked assertion that the record was not available, without more, is unsustainable. Still, these documents referred to codefendant Ubaldo Rivera Colón's request for a 5K1.1 Sentencing Guidelines (Motion to Compel Performance) for substantial assistance. Having examined the record, these documents of codefendant Colón are not considered relevant to above petitioner's post-conviction motion.
The issue as to substantial cooperation with the government and codefendant Rivera Colón's attempts to have the government file a substantial assistance motion under 5K1.1 was subject to a Report and Recommendation dated February 13, 2002 (D.E. #462). A hearing was entertained finding support in the government's contention that said codefendant at trial attempted to minimize the roles of the three codefendants, including herein petitioner.
In light of the above discussed, it is recommended that petitioner's motion BE DENIED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1 st Cir. 1994): United States v. Valencia, 792 F.2d 4 (1 st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").
IT SO RECOMMENDED.