Argencourt v. United States

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit

                                 ____________________



          No. 95-2086



                                  JOSEPH ARGENCOURT,



                                Petitioner, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                Respondent, Appellee.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
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                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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                                 ____________________



               Gary E. Blais for appellant.
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               James H. Leavey, Assistant United States Attorney, with whom
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          Sheldon Whitehouse, United States Attorney, was on brief, for the
          __________________

          United States.



                                 ____________________



                                    March 18, 1996

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LYNCH, Circuit Judge.   In  his second  trip to  this
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            court, Joseph Argencourt argues  that he was denied effective



            assistance of counsel during his  criminal trial and that the



            district  court erred  in denying his  Motion to  Vacate, Set



            Aside or Correct Sentence under 28 U.S.C.   2255.  Argencourt



            was  convicted of  conspiring  with  his co-defendant  Rodney



            Andreoni to distribute cocaine.   His conviction was affirmed



            on direct appeal.  United States v. Argencourt, 996 F.2d 1300
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            (1st Cir. 1993), cert. denied, 114 S. Ct. 731 (1994).  We now
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            affirm the denial of his motion under 28 U.S.C.   2255.



                    The  facts  are  set  forth  in  our  prior  opinion.



            Suffice  it  to  say  that  the  FBI,  in  the course  of  an



            undercover investigation  of insurance fraud in  Rhode Island



            and Massachusetts, learned that a target of the investigation



            -- Andreoni -- was willing to sell substantial  quantities of



            cocaine.  Recorded conversations revealed that Argencourt was



            to  be the supplier of  the cocaine.   Argencourt, having had



            prior experience with informants wearing wires, was skittish,



            became spooked, and failed  to appear to consummate  the deal



            on the designated day.  The government thus had no cocaine to


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show, but proved  its case  through the recordings.   Id.  at
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            1302.  

            Petitioner's Burden
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The  arguments  properly before  this  court  fail on



            their  merits.1   Those arguments  are evaluated  against the



            heavy  burden of  proof  the law  imposes.   Argencourt  must



            demonstrate  both that trial counsel's performance fell below



            an objective standard of  reasonable effectiveness, and  that



            counsel's  deficient performance  was  so  prejudicial as  to



            undermine confidence  in  the  outcome of  the  trial.    See
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            Strickland v.  Washington, 466 U.S. 668,  688-89 (1984); Lema
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            v. United  States,  987 F.2d  48,  51 (1st  Cir. 1993).    In
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            determining  whether trial  counsel's performance  fell below



            the relevant  objective  benchmark, "[j]udicial  scrutiny  of



            counsel's performance must be highly deferential," and "every



            effort [should]  be made to eliminate  the distorting effects



            of hindsight."  Strickland, 466 U.S. at 689.  The court "must
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            1.  Many of  the arguments Argencourt presents  to this court

            were not  raised in the  district court  and so  will not  be

            heard  here.  Among others,  he has waived  his argument that

            counsel erred in not requesting  an instruction on aiding and

            abetting liability (which, in any event, was not even charged

            in the count  of conviction).   Another of  his arguments  --

            concerning  the examination  of Special  Agent Brotan  -- was

            raised  and decided  against  him on  his  direct appeal,  on

            grounds of lack of prejudice to  Argencourt.  See Argencourt,
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            996 F.2d at  1304.  Argencourt is not free to relitigate this

            issue.  See United States v. Michaud, 901 F.2d 5, 6 (1st Cir.
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            1990) (per curiam).

                It  is unclear  whether Argencourt  also  argues that  he

            received ineffective assistance of  counsel at the sentencing

            phase, as the  issue is  mentioned but not  developed in  his

            brief.   Thus, we do  not address it.   See United  States v.
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            Zannino,  895 F.2d 1, 17 (1st Cir.) ("[I]ssues adverted to in
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            a  perfunctory  manner,  unaccompanied  by  some   effort  at

            developed argumentation, are  deemed waived."), cert. denied,
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            494 U.S.  1082 (1990).     The  sentence was,  in any  event,

            plainly proper under the Guidelines.



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indulge  a  strong presumption  that counsel's  conduct falls



            within the wide range of reasonable  professional assistance;



            that is,  the defendant  must overcome the  presumption that,



            under  the  circumstances, the  challenged  action 'might  be



            considered sound  trial strategy.'"   Id. (quoting  Michel v.
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            Louisiana, 350 U.S. 91, 101 (1955)); Lema, 987 F.2d at 51.
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                    The  "prejudice" element of an ineffective assistance



            claim also presents  a high  hurdle.  "An  error by  counsel,



            even if professionally unreasonable, does not warrant setting



            aside  the judgment of a criminal proceeding if the error had



            no effect on  the judgment."   Strickland, 466  U.S. at  691.
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            The  requisite   showing  of  prejudice  requires  more  than



            postulating  that  counsel's  "errors  had  some  conceivable



            effect  on the  outcome  of the  proceeding."   Id.  at  693.
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            Rather,  Argencourt must  affirmatively  prove "a  reasonable



            probability  that, but  for counsel's  unprofessional errors,



            the  result of the proceeding  would have been  different.  A



            reasonable  probability   is  a  probability   sufficient  to



            undermine  confidence   in  the   outcome."    Id.   at  694.
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            Argencourt has demonstrated  neither objectively  ineffective



            assistance nor prejudice.


Conspiracy Indictment
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                    Argencourt   argues  counsel  should  have  moved  to



            dismiss  the conspiracy  indictment  on the  grounds that  it



            failed to charge  possession with intent to  distribute.  The


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argument is based on the mistaken  premise that possession is



            an  essential element of a conspiracy to distribute.  Indeed,



            it  is not.   The  statute that  criminalizes possession  and



            distribution makes it  unlawful to "manufacture,  distribute,



            or  dispense,   or  possess   with  intent  to   manufacture,
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            distribute, or  dispense" a controlled substance.   21 U.S.C.



              841(a) (emphasis added).   Possession has not been found to



            be   a  distinct,   essential   element  of   the  crime   of



            distribution, let alone conspiracy to distribute.  See United
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            States v. Polan, 970  F.2d 1280, 1282 (3d Cir.  1991) ("[T]he
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            offense of  illegal drug  distribution  . . . contains  three



            essential  elements: the  [defendant] must  (1)  knowingly or



            intentionally (2) distribute  (3) a controlled  substance."),



            cert.  denied, 507  U.S.  953 (1993).    To the  extent  that
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            Argencourt is asserting that trial counsel should have argued



            that  the government needed to  prove possession as an "overt



            act" in furtherance of the charged conspiracy,  he is clearly



            wrong.   See United  States v. Shabani,  115 S. Ct.  382, 386
                     ___ ______________    _______



            (1994)  (holding that proof of  an overt act  is not required



            for conviction under 21 U.S.C.   846).


Tapes
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                    Argencourt is bound by the prior ruling of this court



            concerning  his challenge  to the  replaying of  a particular



            tape to the  jury, at its request, during  its deliberations.



            See  Argencourt,  996 F.2d  at 1305  n.6.   Variants  of this
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claim, which Argencourt  did not argue  on direct appeal  but



            argues  now,  fare no  better.   He focuses  on  a tape  of a



            conversation between  himself, his co-defendant  Andreoni, an



            FBI  agent, and  an undercover informant.   He  contends that



            trial counsel should  have objected to admission  of the tape



            on  grounds that it was  inaudible.  The  asserted problem of



            the  tape  being  inaudible,  however,  appears  to  be  more



            asserted  than a  problem.   The  trial  judge alone  of  the



            listeners had  a  defective earphone  (which  was  replaced);



            counsel  explicitly  stated  that he  was  able  to hear  the



            recorded conversations; and there  was no indication from the



            jury of  any problem in  hearing the tape,  in the face  of a



            prior instruction from the court to raise their hands if they



            could  not hear.  Moreover,  the jurors were  provided with a



            transcript of the tape.  The choice by defense counsel not to



            have the tape highlighted by questioning jurors about whether



            they  heard it was a classic strategy choice, not amenable to



            attack under  the guise of ineffective assistance.  See Lema,
                                                                ___ ____



            987 F.2d at 55-56.



                    Argencourt makes the additional argument that defense



            counsel should have insisted that the entire tape recordings,



            not  just  redacted versions,  be played  to  the jury.   But



            certainly, trial  counsel's decision  not to demand  that the



            tapes  be  played  in their  entirety  was,  on  its face,  a



            strategic choice  to try to limit  what the jury heard.   See
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Lema,  987 F.2d at 55-56.   Further, defendant  has failed to
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            show  any prejudice.   He  has had  access to  the unredacted



            tapes since before trial.  It  is his burden to show that the



            tapes contained unplayed   exculpatory material  or otherwise



            undermined  confidence in  the  outcome of  the  trial.   See
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            Strickland, 466 U.S. at 694.  That he has not done.
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"Newly Discovered" Evidence
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                    Argencourt  argues  that  he   was  entitled  to   an



            evidentiary  hearing  in  the  district  court  to  determine



            whether certain "newly discovered evidence," which he asserts



            should have  been discovered by trial  counsel, requires that



            his  motion  be granted.   He  argues  that counsel  erred in



            failing  to adduce proof that phone lines were not working at



            a place called the  "Phone Connection," from which a  call to



            him  was purportedly made on the date the cocaine deal was to



            be  consummated.  He claims he first learned, while in prison



            for this offense, from  the "CEO of the Phone  Connection" (a



            fellow prisoner) that  the Phone  Connection's phone  service



            had  been stopped.  From this he argues that his co-defendant



            Andreoni could not  have made a  call to him  from the  Phone



            Connection in furtherance of the drug deal, as the government



            asserted  at trial.    He  asserts  that  this  evidence  was



            "discovered"  after  the  district court  denied  his    2255



            motion.  The government  says there is nothing new  about the



            Phone Connection evidence, that it  was well known to defense


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counsel  before  trial,  and  that  the jury  even  had  such



            evidence  before it.  In  all events, Argencourt  did not ask



            the district court to consider this evidence or to give him a



            hearing, and so has waived the argument.



                    Even if the  claim had been properly  raised, and the



            evidence truly  "newly discovered,"  it would still  fall far



            short.   Even should  the phone call  not have  been made  to



            Argencourt from his co-defendant from the listed lines at the



            Phone  Connection   on  the   scheduled  date  of   the  drug



            transaction,  no  resulting prejudice  could  be established.



            The  jury could have credited the testimony before it that an



            illegal  line was rigged and used for the call.  Argencourt's



            suggestion  that  phone  company  records  (which  Argencourt



            asserts trial counsel should  have obtained) would have shown



            that telephone service had  been cancelled amounts to naught.



            To  the extent  that the  phone call  testimony at  trial was



            relevant to establish that Argencourt, on the scheduled date,



            was in the  vicinity of  the location where  the parties  had



            agreed the drug transaction  would be completed,  independent



            evidence that  his  car was  seen  in the  area at  the  time



            undercuts the  utility of  this "newly  discovered evidence."



            Furthermore,  if  the  phone  call   testimony  was  somewhat



            relevant to the government's case in support of the charge of



            attempting  to  distribute  drugs  (of  which  Argencourt was



            acquitted),   it   had  little   apparent   bearing  on   the


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government's case in support of the  conspiracy charge.  That



            case,  which  was based  primarily  on  the earlier  recorded



            conversations between  Argencourt, Andreoni, and  FBI agents,



            would  have  been  unaffected  by  the  status  of  the Phone



            Connection's  telephones.   Thus,  Argencourt  has  shown  no



            prejudice from  any failure by  trial counsel  to obtain  the



            Phone Connection evidence.


Affirmed.
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