Moreno v. United States

Opinion

USCA1 Opinion

November 3, 1993      [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-1074

MARIA ELVIRA MORENO,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                  *[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                                ___________________

                                 ___________________

                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

Maria Elvira Moreno on brief pro se.
               ___________________
               Jay  P. McCloskey,  United  States  Attorney,  and  F.  Mark
               _________________                                   ________
          Terison, Assistant U.S. Attorney, on brief for appellee.
          _______

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                                  __________________

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          *Of the District of Puerto Rico, sitting by designation.

Per Curiam.   Maria Elvira Moreno was  convicted of
                      __________

            one  count of conspiring  with Andres Gonzalez  to distribute

            and to  possess with  intent to distribute  in excess  of 500

            grams  of cocaine.    We affirmed  her  conviction in  United
                                                                   ______

            States v.  Moreno, 947 F.2d  7 (1st Cir. 1991).   Thereafter,
            ______     ______

            Moreno brought a motion under 28 U.S.C.   2255  to vacate her

            sentence,  alleging that both her trial and appellate counsel

            had  rendered her  ineffective assistance  of  counsel.   The

            district court denied  her petition.  Concluding  that Moreno

            has not met her burden of  proving by a preponderance of  the

            evidence  that  her  counsel's  performance  fell  below   an

            objective  standard of reasonableness and that such deficient

            performance  had prejudiced  her defense,  see  Strickland v.
                                                       ___  __________

            Washington, 466 U.S. 668, 687 (1984), we now affirm.
            __________

                      I.  Ineffective Assistance by Trial Counsel
                          _______________________________________

                      Moreno   alleges  that   her   trial  counsel   was

            ineffective for several reasons, which we discuss in turn.  

                      Rule  29 Motions.   Moreno claims that  her counsel
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            moved ineffectively for a judgment of acquittal under Fed. R.

            Crim.  P. 29.    Moreno  says that  her  counsel should  have

            submitted  a  written  memorandum in  support  of  her motion

            because the  court would  have been  better able  to evaluate

            counsel's  arguments that  insufficient  evidence existed  to

            convict  Moreno  beyond a  reasonable  doubt.   Her  claim is

            meritless.  Not only is it the general  practice to make Rule

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29  motions orally, without  written support, but  we have no

            doubt  that the  court did  not require  any special  written

            instruction  on  how to  evaluate  evidence in  light  of the

            reasonable  doubt  standard.    Moreover,  the  court  showed

            complete  familiarity  with the  evidence  in explaining  its

            denial of  the Rule 29  motion.  Thus,  Moreno has  not shown

            that her attorney's failure to submit a written memorandum in

            support of  her Rule 29 motion fell below objective standards

            of  reasonableness,  or that  reviewing a  written memorandum

            would have altered the court's view of the evidence.  

                      Moreno also  faults her attorney  for not  renewing

            her Rule  29 motion after  the jury rendered its  verdict and

            was discharged.  As it was, Moreno's attorney moved twice for

            acquittal, first after the government had presented its case-

            in-chief and  then after the  close of all the  evidence, and

            both times  she was unsuccessful.   Moreno has not  said what

            further arguments her attorney could have presented after the

            jury  was  discharged that  would  have caused  the  court to

            reconsider  its prior  rulings.   Consequently,  she has  not

            shown that  she was prejudiced  by her attorney's  failure to

            renew the motion a third time.

                      Severance/Co-Conspirator   Statements.       Moreno
                      ______________________________________

            appears  to argue  that her  counsel  was ineffective  either

            because  she  did not  move  to  sever  Moreno's  trial  from

            Gonzalez's  trial,  or  because  she did  not  object  to the

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admission  of  co-conspirator  statements,  specifically  the

            testimony  by Laura  Speer that  Gonzalez had  told her  that

            Moreno  had gift-wrapped  a package of  cocaine Speer  was to

            deliver to  John Carmichael.   Moreno's  arguments appear  to

            derive   from   her  challenge   to   the  district   court's

            Petrozziello finding,  see United States v. Petrozziello, 548
            ____________           ___ _____________    ____________

            F.2d 20  (1st Cir.  1977), which she  raised in  her original

            section  2255   motion.    The  magistrate   interpreted  her

            challenge  to suggest that counsel was ineffective in failing

            to  request  a  ruling  under  Petrozziello   (although  both
                                           ____________

            preliminary  and final Petrozziello findings were made by the
                                   ____________

            court), and rejected  her claim as  conclusory since she  did

            not  identify a  single  co-conspirator  statement  to  which

            counsel  should have objected.   The district  court believed

            that  Moreno's claim essentially alleged that her counsel was

            ineffective  for  not  moving to  sever  Moreno's  trial from

            Gonzalez's trial.   Because of  the obvious ambiguity  of her

            original claim, the precise  claim to be addressed  on appeal

            is  also somewhat  uncertain.1   Based on  our review  of the

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            1.  For example, strictly speaking Moreno did not complain to
            the district  court that her  trial counsel had not  moved to
            sever her  trial from  Gonzalez's, and so,  by virtue  of the
            "bedrock"  principle in  this circuit  that we do  not review
            claims  not  "squarely"  presented to  the  court  below, see
                                                                      ___
            United  States  v. Ocasio-Rivera,  991  F.2d 1,  3  (1st Cir.
            ______             _____________
            1993), we  normally would not  consider her claim now.   Yet,
            the district court analyzed her claim as if she had presented
            that  argument.   Because the  district  court discussed  the
            severance  issue even  though  Moreno did  not  raise it,  an
            argument could be made that  we should consider that issue on

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record,  and putting  to  the  side the  question  of how  to

            interpret Moreno's original  claim, we  conclude that  Moreno

            has not shown ineffective assistance of counsel.  

                      First, the trial  transcript suggests that Moreno's

            counsel  had moved,  unsuccessfully, for severance,  and also

            indicates that she essentially moved for severance again when

            the  government   proffered  Laura  Speer's   testimony  that

            Gonzalez had  told her that Moreno had gift-wrapped a package

            of  cocaine intended  for delivery  by  Speer to  Carmichael.

            Moreno's attorney  objected  vigorously to  the admission  of

            Speer's testimony under Bruton v. United States, 391 U.S. 123
                                    ______    _____________

            (1968), and Fed.  R. Evid. 403, but the  court concluded that

            Speer's  testimony was  admissible  against  Moreno  as  non-

            hearsay co-conspirator  statements  and  that  its  probative

            value  outweighed its  prejudicial effect.    The court  also

            concluded that severance was not warranted.  

                      Second,  Gonzalez testified  at  trial that  Moreno

            knew  nothing  about his  cocaine dealing,  and so,  far from

            impairing  Moreno's defense,  Gonzalez's testimony  bolstered

            it.    Therefore,  the   district  court's  conclusion   that

            severance was not warranted was justified.  See Fed. R. Crim.
                                                        ___

            P. 14  (permitting severance where  a joint trial with  a co-

            defendant would result in undue prejudice to a defendant).  

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            appeal.

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Third,  the  district court's  determination  under

            Petrozziello that sufficient evidence of a conspiracy existed
            ____________

            to permit co-conspirator statements to be  introduced against

            Moreno was not  clearly erroneous.  The  evidence showed that

            Gonzalez and  Moreno  were  long-time  companions  who  lived

            together.   Although  Carmichael most  frequently  dealt only

            with   Gonzalez  in   buying  cocaine,   occasionally  Moreno

            "fetched" Carmichael,  bringing him to where  Gonzalez waited

            to effect the sale.   Carmichael said that Moreno never spoke

            to him about cocaine when he met her, but he did testify that

            occasionally Moreno would hand him  the cocaine wrapped up to

            look like a  gift.  Subsequently,  Speer, who had  introduced

            Carmichael to Gonzalez and had  received a "finder's fee" for

            doing  so   from  Gonzalez's  subsequent  cocaine   sales  to

            Carmichael, testified about Gonzalez's  statement that Moreno

            had gift-wrapped the package of cocaine Speer  was to deliver

            to   Carmichael.    Furthermore,  Moreno  was  present  at  a

            controlled buy in New York where  Carmichael, now helping the

            government, used marked Drug Enforcement Administration funds

            to  buy cocaine  from  Gonzalez;  on  that  occasion,  Moreno

            arrived first to greet Carmichael, told him that he was late,

            and waited  with him  for Gonzalez;  although Carmichael  and

            Gonzalez apparently discussed the sale of cocaine out  of her

            earshot, after their  conversation was done, she  waited with

            Carmichael for another half hour  while Gonzalez went to  get

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the  cocaine.   The next  day  she was  observed engaging  in

            countersurveillance  before  Carmichael  and  Gonzalez  began

            negotiations  with  undercover  government  agents posing  as

            prospective cocaine purchasers.  She also actively urged that

            Carmichael  stay  involved   in  the  negotiation   when  the

            government  agents  suggested  that  he  leave.    There  was

            evidence that she  had prepared for the trip  to Maine, where

            the negotiation with  undercover agents took place,  and that

            she had  not just gone there on the spur  of the moment for a

            lobster dinner and  a boat ride, as  she claimed.   The purse

            she  carried  when she  was  arrested  in Maine  contained  a

            significant  portion of the marked money which Carmichael had

            given to Gonzalez  during the controlled buy in  New York the

            preceding day.

                      Since the evidence sufficed to show a conspiracy to

            distribute  cocaine  among Gonzalez,  Moreno, and  Speer, the

            court's  admission  of  Carmichael's  testimony  and  Speer's

            statements  against   Moreno  was   not  clearly   erroneous.

            Therefore,   counsel's  failure  to  object  to  the  court's

            Petrozziello  finding  was  not prejudicial  and  so  was not
            ____________

            ineffective assistance of counsel.

                      Failure  to Request  Special Instructions.   Moreno
                      __________________________________________

            contends  that  her  defense was  "unique"  and  that counsel

            rendered ineffective assistance by failing to request special

            jury  instructions.   Moreno's  defense was  essentially that

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insufficient evidence  had been  presented to  show beyond  a

            reasonable doubt  that she was  a knowing participant  in the

            conspiracy to  distribute  cocaine, and  her  counsel  argued

            vigorously to the  jury that convicting Moreno  of conspiracy

            would be tantamount to finding her guilty by mere association

            with Gonzalez.   This defense  strikes us as a  fairly common

            one, and our review of  the record shows that the  court gave

            the  jury correct instructions on the elements the government

            was required to prove to  convict Moreno of conspiracy:  that

            Moreno  and Gonzalez  had willfully  formed  an agreement  to

            distribute cocaine and  to possess with intent  to distribute

            cocaine   and  that  they  had  intentionally  and  willfully

            conspired  knowing the  unlawful purpose  of  the conspiracy.

            The court also instructed the jury that it could not find the

            defendants  guilty merely by virtue of their association with

            one another or by their mere presence at the scene of a crime

            knowing that a crime was being committed.  

                      Moreno  alleges  further that  her  attorney should

            have asked  for an instruction  that the jury could  not find

            that  a conspiracy existed  where a government  informant who

            intended  to  frustrate  the conspiracy  is  the  alleged co-

            conspirator.  The conspiracy was not alleged to exist between

            Carmichael,  who acted as a government informant, and Moreno,

            but among Moreno, Gonzalez, and  others, and so the rule that

            government agents  cannot be co-conspirators  did not  apply,

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and there was  no need for such an  instruction.2  See United
                                                               ___ ______

            States v. Giry,  818 F.2d 120, 126 (1st  Cir.), cert. denied,
            ______    ____                                  ____________

            484 U.S. 855 (1987).

                      Moreno's  other claims  of  error relating  to  the

            alleged  need to give  special jury instructions  are equally

            meritless.

                      II.  Ineffective Assistance by Appellate Counsel
                           ___________________________________________

                      Moreno alleges  that the lawyer who  prosecuted her

            appeal  was ineffective  because  he  failed  to  appeal  her

            sentence.  According to Moreno, the district court's decision

            not to decrease her base offense level by four levels for her

            allegedly  minimal role  in the  conspiracy,  see U.S.S.G.   
                                                          ___

            3B1.2, was erroneous because the evidence showed that she was

            the  least culpable  of  the  conspirators  and  because  the

            court's  decision   conflicted  with  its  own   findings  at

            sentencing.  We cannot say  that the court's refusal to grant

            Moreno  the   requested  four-level  reduction   was  clearly

            erroneous, and we  see no conflict  between the findings  the

            court made  at sentencing and  its decision not to  grant the

            downward adjustment.   

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            2.  At the request of defense counsel, the court did instruct
            the jury  that it  had to evaluate  with particular  care the
            testimony  of both Speer, who had violated certain conditions
            of her  parole and then testified  at trial under a  grant of
            immunity,  and Carmichael, who  was arrested on  drug charges
            and  testified at  trial pursuant  to  an agreement  with the
            government,  because both  might be  inclined  to give  false
            testimony   in  order  to   secure  certain   advantages  for
            themselves in view of their own violations of law.

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Although section  3B1.2 indicates that  a reduction

            in base  offense level is  warranted for defendants  "who are

            plainly  among  the least  culpable"  of a  group  engaged in

            criminal  activity, guideline  commentary  also says  that  a

            defendant's  "lack of knowledge or understanding of the scope

            and  structure of  the enterprise  and of  the  activities of

            others  is  indicative  of a  role  as  minimal participant."

            U.S.S.G.     3B1.2(a),  comment.  (n.1)  (Nov.  1990).    The

            commentary  says  further  that  a  downward  adjustment  for

            minimal participation is to be used "infrequently," and gives

            as an  example of  a minimal  participant someone  whose only

            role is to offload part of a single marijuana shipment or  to

            be  courier for  a single  smuggling transaction  of a  small

            amount of drugs.  Id. (n.2).  At  sentencing, the court found
                              ___

            that Moreno knew  "what was going on,"  discounted Gonzalez's

            testimony  that  Moreno   was  on  the  "periphery"   of  the

            conspiracy, and concluded  that the evidence showed  that she

            was  not a minimal participant in the conspiracy, conclusions

            which were  not clearly  erroneous in light  of the  evidence

            presented at trial.  We note as well that the evidence showed

            that the conspiracy  to which Moreno was a  party was ongoing

            and contemplated multiple  transactions involving significant

            quantities of  cocaine.   Accordingly, we  conclude that  the

            court's   determination  that  Moreno   was  not   a  minimal

            participant was justified.  Consequently, appellate counsel's

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failure to appeal  the court's refusal to make  the requested

            downward adjustment did  not prejudice Moreno and  so was not

            ineffective assistance of counsel.

                      The judgment of the district court is affirmed.
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