Morales v. United States

• Court: Court of Appeals for the First Circuit
• Decided: October 1, 1992
• Docket: 92-1157
• Status: Published

Opinion

USCA1 Opinion

          October 1, 1992       [NOT FOR PUBLICATION]

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No. 92-1157

RAFAEL MORENO MORALES,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                                 ___________________

               Rafael Moreno Morales on brief pro se.
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               Daniel F.  Lopez  Romo,  United  States  Attorney,  Jose  A.
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          Quiles-Espinosa, Assistant  United States Attorney,  and Jeanette
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          Mercado-Rios,  Assistant United  States  Attorney,  on brief  for
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          appellee.

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                                 __________________ 

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Per Curiam.  In 1985, in connection with his involvement
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            in the  infamous  Cerro Maravilla  incident,  Rafael  Moreno-

            Morales was convicted  of six federal offenses:  one count of

            conspiring  to  obstruct justice,  give  false testimony  and

            suborn perjury, in  violation of  18 U.S.C.    371, and  five

            substantive  counts of perjury, in violation  of 18 U.S.C.   

            1621  & 1623.  After his convictions were affirmed on appeal,

            United  States v. Moreno  Morales, 815  F.2d 725  (1st Cir.),
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            cert. denied, 484 U.S.  966 (1987), he filed the  instant pro
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            se petition under 28 U.S.C.    2255 for post-judgment relief.

            Of the  various  claims presented  in  his petition,  he  has

            preserved  three for  appeal:  (1) that  two  of the  perjury

            convictions  involved  multiplicitous   counts  and   thereby

            violated  Double Jeopardy;  (2) that  another of  the perjury

            convictions was invalid  because his testimony was  literally

            true;   and  (3)  that   his  attorney  rendered  ineffective

            assistance  on  the direct  appeal.   We  find each  of these

            contentions to be without merit, and therefore affirm.

                                          I.

                 The  multiplicity argument need not detain us.  In Count

            14,  petitioner was charged with  a violation of  18 U.S.C.  

            1623 for testifying  falsely before a  federal grand jury  on

            January 9,  1980.  And  in Count  18, he was  charged with  a

            violation of 18  U.S.C.    1621 for testifying  falsely in  a

            civil  deposition on March 26,  1980, conducted as  part of a

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federal civil  rights action.   Petitioner contends  that the

            two  counts involved the same testimony and therefore did not

            charge  separate offenses.    In Quiles-Hernandez  v.  United
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            States, No. 90-1804 (1st Cir. 1991), we rejected an identical
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            argument advanced  by one  of petitioner's codefendants.   We

            first noted that such  a challenge had not been  raised prior

            to  trial, as required under  Fed. R. Crim.  P. 12(b)(2), and

            therefore  had been waived.  Id. at  4-5.  We also determined
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            that  the claim was in  any event meritless:  since one count

            involved statements made to  the grand jury, while  the other

            involved statements  offered at  the  civil deposition  three

            months later, separate  offenses had been committed.   Id. at
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            6-8.  The same analysis controls here.

                                         II.

                 Petitioner's   "literal   truth"   claim  involves   the

            following  exchange which occurred  during the  deposition on

            March 26, 1980:

                 Q.   What was the  first contact on  July 25th with
                 other  persons,  other  than  the  ones  that  were
                 stationed at Toro Negro?

                 A.  Well, at almost twelve noon Commander Perez and
                 Lieutenant Quiles  and agents from  Ponce and other
                 personnel arrived there.

                 Q.  How many agents from Ponce?

                 A.  I think two.

                 Q.  What other personnel?

                 A.    Perez, Quiles,  Carmelo  Cruz  and two  other
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                 agents  from Ponce.  I  do not recall  if there was
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anyone else.
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            The  indictment charged,  in  Count 17,  that the  underlined

            answer was  perjurious, in  that "Carmelo  Cruz did  not come

            from  Ponce to Toro Negro  with [Perez and  Quiles], but that

            Nelson Gonzalez-Perez  and Jose  Montanez-Ortiz came to  Toro

            Negro with [Perez and Quiles]."  Petitioner contends  that he

            reasonably understood the final  question as asking--not what

            personnel arrived from Ponce at noon with  Perez and Quiles--

            but  rather what personnel were present at Toro Negro at that

            time.  And  since the  evidence established  the presence  of

            Carmelo  Cruz  at that  place and  time,  he argues  that his

            response was literally true, even if misleading, and thus not

            perjurious.   See, e.g., Bronston v. United  States, 409 U.S.
                          ___  ____  ________    ______________

            352 (1973).

                 Generally,  "where an  answer  may or  may not  be false

            depending  upon  possible  interpretations  of  an  ambiguous

            question,  it is for the jury to decide whether the defendant

            has committed perjury."   United States v. Finucan, 708  F.2d
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            838, 848 (1st Cir.  1983); accord, e.g., Moreno  Morales, 815
                                       ______  ____  _______________

            F.2d  at 745 n.26.   An  exception to  this rule  holds that,

            where a question is  so vague under all the  circumstances as

            to  be  "fundamentally  ambiguous,"  the response  cannot  be

            perjurious  as a matter of law.   See, e.g., United States v.
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            Glantz, 847  F.2d 1, 6 (1st  Cir. 1988) ("the  jury cannot be
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            allowed  to guess at the  witness' understanding of a clearly

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ambiguous question");  United States v. Yasak,  884 F.2d 996,
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            1002-03  (7th Cir. 1989);  United States v.  Lighte, 782 F.2d
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            367, 375-76 (2d Cir. 1986);  United States v. Martellano, 675
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            F.2d 940, 942-43 (7th Cir. 1982).  

                 We find no such fundamental ambiguity in the question at

            issue here.   At the  beginning of  the exchange,  petitioner

            asserted that Perez  and Quiles arrived at almost twelve noon

            with "agents from Ponce" and "other personnel."  The next two

            inquiries  asked petitioner to  elaborate on  this statement.

            In both questions ("How many agents from Ponce?"; "What other

            personnel?"), the questioner  tracked the very  language just

            employed  by  petitioner.    We   think  it  plain  that  the

            questioner  thereby  implicitly   incorporated  the   factual

            predicates contained in petitioner's  earlier response--i.e.,

            that the  question asked was: "What  other personnel [arrived

            with  Perez and Quiles at  noon]?"  Whatever  lack of clarity

            may have been lent by  the questioner's failure to  reiterate

            these  predicates  aloud,  we do  not  find  the  question so

            fundamentally ambiguous  as to have warranted  acquittal as a

            matter of law.  See, e.g., United States v. Doherty, 867 F.2d
                            ___  ____  _____________    _______

            47, 69 (1st Cir.) (Bronston did not hold that "a defendant is
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            immune from prosecution  for perjury whenever some  ambiguity

            can  be  found by  an  implausibly  strained reading  of  the

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questions he is asked"), cert. denied, 492 U.S. 918 (1989).1
                                     ____________

                                         III.

                 In Moreno  Morales, we  heard the appeals  of petitioner
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            and  eight  of  his  codefendants on  a  consolidated  basis.

            Petitioner  was  there  represented  by  his  trial  counsel.

            Petitioner now contends, in  his final argument, that counsel

            provided  ineffective  assistance  during that  appeal.    He

            asserts that counsel failed  to raise any specific challenges

            to petitioner's convictions, but instead simply joined in the

            generalized  arguments  advanced  by  other  counsel.2     He

            suggests  that counsel never filed a separate brief at all on

            his behalf.   And he  states that counsel  failed to  consult

            with  him at any time after the verdict, such that petitioner

            (1) had  no input into the choice of issues to be raised, (2)

            never was shown  a copy of  the brief, and  (3) only  learned

            through  third parties of the  results of the  appeal and the

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            1.  While  petitioner  does   not  otherwise  challenge   the
            _____________________________________________________________
            sufficiency of the evidence in this regard, we might add that
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            the perjurious  statement here  tied directly into  a coverup
            _____________________________________________________________
            scheme concocted by the  defendants.  As explained  in Moreno
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            Morales,  the evidence showed that part of the coverup was to
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            conceal  the  presence  of   Montanez  at  the  shootings  by
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            "substituting  Cruz in his place."   815 F.2d  at 747-48; see
            _____________________________________________________________
            also United  States v.  Reveron Martinez,  836 F.2d  684, 690
            _____________________________________________________________
            (1st Cir. 1988); Quiles-Hernandez, supra, slip op.  at 6 n.5.
            _____________________________________________________________
            That petitioner intended  to testify falsely  regarding Cruz'
            _____________________________________________________________
            involvement is plainly inferable from such evidence.
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            2.  In our decision, we noted that Moreno Morales, along with
            _____________________________________________________________
            other defendants, "did not appeal on specific grounds"  as to
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            the perjury counts, but did "appeal on more general grounds."
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            815 F.2d at 742 n.21.
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subsequent  application  for   certiorari.    Such   conduct,
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            petitioner alleges, constituted a constructive denial  of the

            assistance of counsel, in violation of the Sixth Amendment.  

                 We disagree.  We see nothing in the record reflecting an

            effective abandonment by counsel of his client on appeal.  To

            the  contrary,   the  records  of  this   court  reveal  that

            petitioner's attorney  did file  a separate  appellate brief.

            Furthermore, counsel's  choice of issues to  pursue on appeal

            is  one presumed to fall "within the wide range of reasonable

            professional assistance."  Strickland v. Washington, 466 U.S.
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            668, 689 (1984).   And that presumption is bolstered  here by

            three factors.  First,  counsel obviously was conversant with

            all  facets of  the  case, having  represented petitioner  at

            trial.   Second,  petitioner has  voiced no  complaint as  to

            counsel's trial  performance.  And  third, he  has failed  to

            identify  any  meritorious  (or  even  arguably  meritorious)

            issues that were omitted from the direct appeal. 

                 To be sure, counsel's failure to consult with petitioner

            while  preparing  the  appeal  is  a  less  than  commendable

            practice.   Yet  even if  such  conduct is  deemed deficient,

            petitioner  has not  shown  that he  was thereby  prejudiced.

            See, e.g., United States  v. Campa, 679 F.2d 1006,  1014 (1st
            ___  ____  _____________     _____

            Cir. 1982)  (defendant  has "burden  of  establishing  actual

            prejudice" stemming  from inadequate contact  with attorney);

            McCarthy  v. United States, 764  F.2d 28, 31  (1st Cir. 1985)
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(per  curiam)  (same).    As mentioned,  petitioner  has  not

            identified any  appellate issue that should  have been raised

            earlier,  nor has  he  otherwise explained  how  the lack  of

            consultation  with counsel,  following  trial,  hampered  the

            prosecution of  his appeal.    Under these  circumstances, we

            perceive  no   constitutional  infirmity  in   the  appellate

            representation received by petitioner.

                 Affirmed.
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