Abreu v. United States

Opinion

USCA1 Opinion

March 22, 1994          [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-1809 

                                   RAMON A. ABREU,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ____________________

            Ramon Alfredo Abreu on brief pro se.
            ___________________
            Edwin  J. Gale,  United  States Attorney,  and Kenneth  P. Madden,
            ______________                                 __________________
        Assistant United States Attorney, on brief for appellee.

____________________

____________________


Per  Curiam.   Defendant-appellant Ramon  Abreu was
                      ___________

            convicted  on July  5, 1990  of thirteen  counts of  drug and

            firearms offenses,  and was sentenced  to twenty-eight  years

            imprisonment.    On  January  3, 1992,  this  court  affirmed

            Abreu's  conviction,  with  the  exception  that  this  court

            vacated  his  conviction  on   one  count  of  conspiracy  to

            distribute cocaine.   United States v.  Abreu, 952 F.2d  1458
                                  _____________     _____

            (1st Cir.), cert. denied, 112 S. Ct. 1695 (1992).
                        ____________

                      On April 12, 1993,  Abreu filed a pro se  motion to

            vacate sentence under 28  U.S.C.   2255, raising a  number of

            grounds.   On  May 24,  1993, he  filed an  amendment to  his

            motion,  raising additional  grounds.    The  district  court

            denied Abreu's motion on June 7, 1993.  We affirm.

Prosecutorial misconduct in the grand jury
                      __________________________________________

Abreu    alleges    that    a   Drug    Enforcement

            Administration agent, Robert Botelho, gave perjured testimony

            to the grand jury that indicted Abreu.  Specifically, Botelho

            testified  to the grand jury that Abreu had stated that Abreu

            had ten  people working for  him.  Botelho  further testified

            that in searching an apartment in Woonsocket, R.I. from which

            a  handgun and $ 26,000 in U.S. currency were seized, federal

            agents  also  seized  utility  bills  and  correspondence  in

            Abreu's name.  In contrast, other federal agents testified at


trial  that Abreu had stated that  he had six or seven people

            working  for  him; that  a  video  card,  insurance cards,  a

            receipt for an insurance payment, and money transfer receipts

            in  Abreu's name were seized from the apartment; and that the

            money  transfer receipts  listed  the  apartment  as  Abreu's

            address.   

                      We  agree  with  the   district  court  that  Agent

            Botelho's  misstatements to  the  grand jury  could not  have

            prejudiced Abreu.  The  precise number of people working  for

            Abreu was relevant  only to his  conviction for conducting  a

            continuing criminal  enterprise in  violation of 21  U.S.C.  

            848.  That section  requires acting "in concert with  five or
                                                                  _______

            more other persons with respect to whom such person  occupies
            ____

            a position of organizer, a supervisory position, or any other

            position of management."   21 U.S.C.   848(c)(2)(A) (emphasis

            added).   It  was therefore  of no  importance  whether Abreu

            supervised six people or  ten, as long as he  supervised five

            or more.  

                      Similarly,  the documents bearing Abreu's name that

            were  seized at the  apartment were relevant  only to connect

            Abreu to that apartment, where  evidence of drug and firearms

            offenses had been found.   The particular documents testified

            to at trial -- especially the money transfer receipts listing

            the  apartment   as  Abreu's  address   --  established  that

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connection at least as  strongly as Agent Botelho's erroneous

            testimony had.

                      Abreu  has  said  nothing  to  suggest  that  Agent

            Botelho's  misstatements  were  intentional  and  perjurious.

            Indeed,   given   the   relative   insignificance   of  these

            misstatements and  the lack of resulting  prejudice to Abreu,

            Abreu's allegation of perjury strains credulity.

                      A  showing  of   prejudice  to  the  defendant   is

            necessary before  an indictment  may be dismissed  because of

            errors in grand jury proceedings.  United States v. Valencia-
                                               _____________    _________

            Lucena, 925 F.2d  506, 511 (1st Cir. 1991).   Where, as here,
            ______

            the defendant  already has been convicted,  an indictment may

            be  dismissed  only  on account  of  egregious  prosecutorial

            misconduct.  United States v. Rivera-Santiago, 872 F.2d 1073,
                         _____________    _______________

            1088  (1st Cir.), cert. denied,  492 U.S. 910  (1989).  Since
                              ____________

            there  was  no   prejudice  here,  and  no  evidence  of  any

            prosecutorial  misconduct  at  all,  there was  no  basis  to

            dismiss the indictment, in whole or in part.

Sufficiency of the evidence of firearms offenses 
                      ________________________________________________

In his May 24, 1993 amendment to his   2255 motion,

            Abreu argued  that the  evidence was insufficient  to convict

            him  on Counts  XIII and XIV  of the indictment.   Count XIII

            charged him with using a firearm  during and in relation to a

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drug trafficking crime; Count XIV charged him with possession

            of  an unregistered shotgun.   In his brief  on appeal, Abreu

            objects  that  the district  court  failed  to address  these

            claims in its dismissal order.

                      Both of these sufficiency-of-the-evidence arguments

            were raised by Abreu  and squarely rejected by this  court in

            Abreu's direct appeal from his conviction.  Abreu, supra, 952
                                                        _____  _____

            F.2d  at 1466 (Count XIII),  1469 (Count XIV).   Abreu cannot

            relitigate them  collaterally in  a    2255  motion.   United
                                                                   ______

            States v. Michaud, 901 F.2d 5, 6 (1st Cir. 1990).  
            ______    _______

                      In  light  of our  rulings  on  direct appeal,  any

            failure by  the district court  to consider these  claims was

            inconsequential.  We  note, in any  event, that the  district

            court  did state  in its  dismissal order  that it  would not

            consider  claims already  rejected  by this  court on  direct

            appeal.

                      Abreu also  objects that whereas he  was charged in

            Counts XIII  and XIV with  offenses involving a  shotgun with

            serial  number  145266,  the government  submitted  a written

            statement  of a police officer  to the effect  that a shotgun

            bearing serial number 48084 had been test fired and was found

            to  be in  operating  condition.    Abreu contends  that  the

            government   should  have  been   required  to  explain  this

            additional  shotgun,  and  that  the  discrepancy  in  serial

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numbers  requires  that his  conviction  on  those counts  be

            vacated.

                      We agree  with the government that  in essence this

            is merely another, precluded attack on the sufficiency of the

            evidence  to  convict on  Counts XIII  and  XIV.   The police

            officer's statement,  moreover, only concerned  the shotgun's

            operability.  Any discrepancy  as to serial numbers therefore

            did  not  detract from  the  government's  evidence regarding

            Abreu's possession or use of the shotgun numbered 145266.  In

            any event, the government  points out in its brief  on appeal

            that before  trial the  government  provided Abreu's  counsel

            with  a  corrected  statement  by the  same  police  officer,

            testifying to the operability of shotgun number 145266.

Ineffective assistance of counsel
                      _________________________________

Abreu's final challenge is to the district  court's

            dismissal of  his claim of ineffective  assistance of counsel

            at  trial.  In his   2255  motion, Abreu claimed that counsel

            was  ineffective  for  opposing Abreu's  desire  to  testify;

            failing to  pursue an evidentiary hearing;  failing to inform

            Abreu  of the  evidence against him;  and failing  to provide

            Abreu  with copies of documents, such as grand jury notes and

            transcripts  and  exculpatory  materials the  government  was

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required to provide to  the defense under Brady  v. Maryland,
                                                      _____     ________

            373 U.S. 83 (1963).   

                      To succeed on an ineffective assistance of  counsel

            claim, a  defendant must show (1)  that counsel's performance

            was  deficient,   falling  below  an  objective  standard  of

            reasonableness, and (2)  that counsel's deficient performance

            prejudiced the defense because, but for counsel's errors, the

            result of the trial would have been different.  Strickland v.
                                                            __________

            Washington,  466 U.S.  668, 687-88  (1984); Murchu  v. United
            __________                                  ______     ______

            States, 926 F.2d 50,  58 (1st Cir.), cert. denied,  112 S.Ct.
            ______                               ____________

            99 (1991).

                      With regard to counsel's failure to permit Abreu to

            testify  --  the point  upon  which Abreu  puts  the greatest

            emphasis  --  Abreu has  said  nothing  to suggest  that  his

            failure to testify prejudiced his defense in any way.  He has

            never  specified what  he would  have said  that  he believes

            would have turned the tide in his favor.  Indeed, as both the

            district court  and the  government note, Abreu  alleged that

            when  Abreu  asked  his  counsel  about  testifying,  counsel

            responded, "What are you going to say?"  Apparently Abreu did

            not  inform counsel then, and he has shed no further light on

            the question since.

                      In addition,  Abreu  has offered  nothing  to  cast

            doubt on the district court's finding that Abreu's failure to

            testify  was  a tactical  decision.   "[T]actical  decisions,

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whether wise or  unwise, successful  or unsuccessful,  cannot

            ordinarily  form   the  basis  of  a   claim  of  ineffective

            assistance."   United States v. Ortiz Oliveras, 717 F.2d 1, 3
                           _____________    ______________

            (1st Cir. 1983).  Furthermore, given the apparent strength of

            the government's  evidence, we  have no  reason to  doubt the

            district court's judgment that, whatever the eventual outcome

            of the trial, this tactical decision was a wise one.

                      With regard to the other allegations of ineffective

            assistance raised  briefly in Abreu's    2255 motion  -- that

            counsel  failed to  provide Abreu  with copies  of documents,

            including  grand  jury   notes  and  transcripts   and  Brady
                                                                    _____

            materials;  failed to  pursue  an  evidentiary  hearing;  and

            failed to inform Abreu  of the evidence against him  -- Abreu

            similarly does not explain how  these alleged errors, if they

            occurred,  prejudiced his defense.  He  does argue that these

            errors prevented  him from  raising at  trial -- rather  than

            later --  the matters  of Agent Botelho's  allegedly perjured

            testimony before  the grand jury  and the discrepancy  in the

            shotgun's serial number on the original  report of the police

            operability test.   As  we have already  ruled, however,  any

            such challenges would have been meritless.  

                      In his brief  on appeal, Abreu  raises a number  of

            additional  allegations of  ineffective assistance  that were

            not  contained in  his    2255  motion  or in  the  amendment

            thereto.  He  alleges that  counsel failed to  object to  the

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district   court's  participation   in  the   examination  of

            witnesses;  failed  to object  to  the  admission of  certain

            cocaine evidence; failed to  object to jury instructions; and

            failed to object to the prosecutor's closing argument.

                      Having failed  to present these allegations, in the

            context  of a claim of ineffective  assistance of counsel, to

            the district court  in the first instance, Abreu is precluded

            from raising them for  the first time on appeal.  Dziurgot v.
                                                              ________

            Luther, 897 F.2d 1222, 1224 (1st Cir. 1990).
            ______

                      In  any  event,  each  of the  practices  to  which

            Abreu's  counsel failed to object was cited in Abreu's direct

            appeal, and  this court affirmed  the district court  on each

            point.  Abreu, supra, 952  F.2d at 1470-72.  Although  we did
                    _____  _____

            make clear in  Abreu that, in the  absence of contemporaneous
                           _____

            objections, our  review was only  for plain  error, id.,  our
                                                                __

            discussion  there suggested that  these were  not troublesome

            issues.   In light of that discussion, Abreu has said nothing

            to suggest that counsel's  failure to object on any  of these

            points may have affected  the outcome of either his  trial or

            his appeal.

Conclusion 
                                     __________

We  have  considered   each  of  Abreu's  remaining

            arguments and find them meritless.

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The district court's dismissal of Abreu's motion to

            vacate sentence under 28 U.S.C.   2255 is affirmed.
                                                      ________

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