Santiago-Martinez v. United States

• Court: Court of Appeals for the First Circuit
• Decided: June 8, 1993
• Docket: 92-2435
• Status: Published

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-2435

                          LUIS GUILLERMO SANTIAGO-MARTINEZ,

                                     Petitioner,

                                          v.

                              UNITED STATES OF AMERICA,

                                     Respondent.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

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

                                 ____________________

                                        Before

                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Luis Guillermo Santiago-Martinez on brief pro se.
            ________________________________
            Lincoln C. Almond, United States Attorney, Margaret E. Curran  and
            _________________                          __________________
        James H.  Leavey,  Assistant United  States  Attorneys, on  brief  for
        ________________
        appellee.

____________________

                                     June 8, 1993
                                 ____________________

Per  Curiam.   Appellant  Luis Guillermo  Santiago-
                      ___________

            Martinez was  convicted, after  a jury  trial, of  possession

            with   intent  to  distribute   cocaine  and   conspiracy  to

            distribute   cocaine.    He   was  sentenced  to   97  months

            imprisonment and  five years of  supervised release.   He did

            not  pursue a  direct appeal.   Instead,  he filed  a motion,

            under 28  U.S.C.    2255, to  set aside his  conviction.   He

            raised  one  ground  for relief  --  that  his  trial counsel

            provided  ineffective assistance of counsel when he failed to

            object to part of the prosecutor's closing argument.

                                          I.
                                          _

                      The  relevant facts, taken  from the briefs  of the

            parties, are these.   On February 15, 1991,  a paid informant

            for  the Drug  Enforcement Administration  (DEA) arranged  to

            purchase  from   Rodrigo  Sostre,  one  of   appellant's  co-

            defendants, a kilogram of cocaine for $28,000.  During one of

            their telephone  conversations (which  was recorded),  Sostre

            told  the  informant that  his "source"  for the  cocaine was

            about to arrive  at his (Sostre's) apartment.   A few minutes

            later, appellant  drove up  to the  apartment building,  went

            inside and came back out with Sostre.

                      On February  19, 1991,  the final  arrangements for

            the drug  transaction took  place.   During another  recorded

            phone call, Sostre told  the informant that he was on his way

            to meet  his source  to discuss where  the deal  would occur.

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Shortly  thereafter,  Sostre  was seen  entering  appellant's

            apartment  building.   Sostre  then instructed  the informant

            that the sale would take  place at Sostre's apartment.  After

            further negotiations at which the informant and his "business

            partner,"  Anthony  Roberto, an  undercover  DEA agent,  were

            present,  it  was  agreed  that  Sostre  would  activate  the

            informant's beeper when the cocaine arrived.

                      During this  time,  a  surveillance  team  observed

            Aguilino Jose Sanchez and Jose Hernandez (also co-defendants)

            drive up to appellant's building.  Appellant got into the car

            with  Sanchez and  Hernandez;  they  then  went  to  Sostre's

            apartment.     A  few   minutes  after  their   arrival,  the

            informant's beeper sounded.   When the informant  and Roberto

            arrived  at   Sostre's  apartment,  Sanchez,   Hernandez  and

            appellant  were already inside.   When questioned  by Roberto

            why three people were necessary, Sostre replied that that was

            the way he did business.  The arrest ensued.

                      Appellant testified at trial.  He claimed that when

            Sostre visited him  on the 19th, they arranged  to meet later

            in  the  day.   He  denied having  gotten  into the  car with

            Hernandez and Sanchez.   Rather, he stated, he  had walked to

            Sostre's apartment  and had arrived  at the same time  as his

            co-defendants, whom he did not know.  He averred that he  was

            there, as arranged, to have a beer with Sostre.  He therefore

            sat   apart  from  the  others  while  the  drug  transaction

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occurred.  He testified  that he was  unaware of the sale  of

            cocaine, that he could not  hear the conversation between his

            co-defendants, the informant  and Roberto, and that  he could

            not see the contents of the bag that contained the cocaine.

                                         II.
                                         __

                      To  establish  a  successful  claim of  ineffective

            assistance  of counsel, appellant must show that "the alleged

            deficiencies    in    professional     performance    assumed

            unconstitutional  dimensions  . .  .  ."   Barrett  v. United
                                                       _______     ______

            States, 965 F.2d  1184, 1193 (1st Cir. 1992).   The benchmark
            ______

            is  "whether  counsel's  conduct  so  undermined  the  proper

            functioning  of the adversarial process that the trial cannot

            be relied on  as having produced a just  result."  Strickland
                                                               __________

            v.  Washington, 466 U.S. 668, 686  (1984).  Under Strickland,
                __________                                    __________

            there  is a  two-pronged  test  for  determining  whether  an

            attorney's conduct was so defective as to require reversal of

            a  conviction.  A  defendant must demonstrate  that counsel's

            conduct fell below "an objective standard of  reasonableness"

            and  that  he was  prejudiced  in  the  sense that  "but  for

            counsel's   errors,  the   result  below   would   have  been

            different."   See Murchu  v. United States,  926 F.2d  50, 58
                          ___ ______     _____________

            (1st Cir.) (per curiam), cert. denied, 112 S. Ct. 99 (1991).
                                     ____________

                      Further, "[t]he  Constitution does not  guarantee a

            defendant  a letter-perfect defense  or a successful defense;

            rather,  the  performance  standard  is  that  of  reasonably

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effective assistance under the circumstances then obtaining."

            United  States  v.   Natanel,  938  F.2d  302,   309-10  (1st
            ______________       _______

            Cir.1991), cert. denied, 112 S. Ct. 986 (1992).  The range of
                       ____________

            acceptable assistance is broad so  that counsel is not unduly

            restricted in making  strategic and tactical decisions.   Id.
                                                                      ___

            at 310.   "Judicial scrutiny of counsel's performance must be

            highly deferential."  Strickland, 466 U.S. at 689.
                                  __________

                      Turning  to the  merits of  appellant's claims,  he

            contends that counsel's performance fell below the Strickland
                                                               __________

            standard on the  ground that counsel failed to  object to the

            following  comments made  by the  prosecutor  in his  closing

            argument:

                      Now, one Defendant took  the stand.   Mr.
                      Martinez  took the stand  and he gave you
                      what  he says happened.  How do you judge
                      whether or  not a person  is telling  the
                      truth?    You  do that  every  day.   The
                      politician  who   says,  "I'm   going  to
                      improve police protection.   I'm going to
                      improve the schools.  There's going to be
                      better fire  service  and  I'm  going  to
                      lower  your taxes."   You  say okay,  but
                      that  person has  a  motive, a  motive to
                      lie.   Who has a  motive to  lie in  this
                      case?  I  would suggest to you  that it's
                      the Defendant, Mr. Santiago-Martinez.

                      "[I]t is, of course, elementary that  statements of

            counsel  as  to  personal belief  or  opinion  are improper."

            United States v.  Cain, 544 F.2d 1113, 1116  (1st Cir. 1976).
            _____________     ____

            Thus, a prosecutor  may not include in closing  arguments his

            or her  own opinions about  what conclusions should  be drawn

            from the  evidence.  United  States v. Cresta, 825  F.2d 538,
                                 ______________    ______

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555 (1st Cir. 1987), cert. denied, 486 U.S. 1042 (1988).  The
                                 ____________

            concerns  behind this rule are that a prosecutor's expression

            of opinion  might imply that the prosecutor  has knowledge of

            information  that  is  not  before the  jury  and  that  such

            expression puts in issue the credibility of counsel, with the

            government having the advantage.  Id.
                                              ___

                      However, there is nothing  improper in a suggestion

            by the  prosecutor which inferences the jury should draw from

            the evidence.  United States v. Smith, 982 F.2d 681, 683 (1st
                           _____________    _____

            Cir. 1993);  United States v.  Mount, 896 F.2d 612,  625 (1st
                         _____________     _____

            Cir. 1990).  Similarly, a prosecutor has the right to comment

            on  the  plausibility of  the  theory posed  by  the defense.

            Smith, 982  F.2d at  683; United States  v. Garcia,  818 F.2d
            _____                     _____________     ______

            136, 143 (1st  Cir. 1987); United States v.  Glantz, 810 F.2d
                                       _____________     ______

            316, 321 (1st Cir.), cert. denied, 482 U.S. 929 (1987).  This
                                 ____________

            right includes,  in appropriate circumstances,  commentary on

            the  "motivations  and  biases  of  the   defense  witnesses,
                  ___________       ______

            including [the defendant]."  Smith, 982 F.2d at 683 (emphasis
            _________________________    _____

            added).

                      Here,  appellant took  the stand  and  testified to

            facts that were  in contradiction to  those proffered by  the

            government's  witnesses.    As such,  his  credibility  was a

            central  issue,  leaving  the jury  with  the  basic decision

            concerning which  of two  different stories  to believe.   In

            these circumstances,  a reference  by the  prosecutor to  the

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veracity of  a defendant  is proper so  long as  there is  no

            suggestion of the  prosecutor's personal opinion.   See e.g.,
                                                                ___ ____

            Garcia, 818 F.2d at 143  (where "defense theory . . .  rested
            ______

            substantially  on pitting  [defendant's] credibility  against

            that of the testifying police officers," prosecutor's comment

            that "if you believe that  story, you believe in Santa Claus"

            not improper); United States v.  Molina, 934 F.2d 1440,  1445
                           _____________     ______

            (9th Cir. 1991) (comments of prosecutor that someone is lying

            and  that  the one  who  lied is  the  one who  is  guilty --

            referring  to defendant --  are within  "reasonable latitude"

            where case is  one that "essentially reduces to  which of two

            conflicting stories is true").

                      Appellant argues that the  prosecutor in this  case

            improperly bolstered  the believability  of the  government's

            witnesses while at the same time urging the jury to determine

            appellant's  credibility based on his interest in the outcome

            of  the trial and his motivation to lie.  He urges us to find

            that  the prosecutor's remarks amounted to "plain error" and,

            as  such, "undermine[d] the fundamental fairness of the trial

            and contribute[d] to  a miscarriage of justice."   See United
                                                               ___ ______

            States v. Young, 470 U.S. 1,  16 (1985); Garcia, 818 F.2d  at
            ______    _____                          ______

            143  (absent  timely  objection, review  is  conducted  under

            "plain error" standard).

                      Appellant  likens his case  to Cresta.   In Cresta,
                                                     ______       ______

            the prosecutor  made the  following contested  comment:   "`I

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suggest  Mr. Trundy [government  witness] is believable.  . .

            .'"  825  F.2d at  555.  We  characterized this as  "personal

            vouching" and found the comment to be improper.   Id. at 556.
                                                              ___

            We nonetheless determined  that the offending remark  did not

            substantially prejudice the defendant.  Id. at 556-57.  In so
                                                    ___

            doing,  we  viewed  the  comment  in  light  of  all  of  the

            circumstances.  In  addition to the length of  the trial, the

            length of  closing arguments and the development of the issue

            of  credibility of the government's witnesses, "there was the

            key factor of the substantial evidence of appellants' guilt."

            Id. at 556.
            ___

                      Appellant  argues that this "key factor" is missing

            in his case because all of the evidence connecting him to the

            crime  was  circumstantial.   Moreover,  he  claims,  defense

            counsel did not  "open the door" to the prosecutor's comments

            by  first  attacking  the  credibility  of  the  government's

            witnesses.    See  Garcia, 818  F.2d  at  143  (where defense
                          ___  ______

            counsel suggested in closing that testifying police  officers

            had  lied,  prosecutor, on  rebuttal,  did not  substantially

            prejudice defendant's case by  assailing the truthfulness  of

            defendant's version of the facts).

                      Appellant misunderstands the  nature of our inquiry

            in this case.  We  are not reviewing the prosecutor's comment

            to see  whether it constituted  plain error.  Rather,  we are

            deciding  whether  appellant's counsel  provided  ineffective

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assistance  to appellant by failing to object to the comment.
                                        _________________

            This issue turns on whether  counsel's conduct "fell below an

            objective standard of  reasonableness."  Murchu, 926  F.2d at
                                                     ______

            58.   Thus, considerations  such as  whether the  comment was

            made on rebuttal  and whether the evidence  against appellant

            was substantial are only part of the equation.

                      The cases discussed above persuade us that in these

            circumstances, counsel's  behavior was  well within  the wide

            range  of acceptable  assistance.   The  decision whether  to

            object  during a  closing  argument  is  plainly  a  tactical

            choice.   For instance, counsel  may not have wanted  to risk

            drawing  attention to the conflicting stories.  Further, when

            credibility is  placed in  issue by  a defendant's  choice to

            take  the stand and  present his side of  the story, as here,

            the law in our circuit permits a prosecutor to comment on the

            motivation of the defendant.  See Smith, 982 F.2d at 683.
                                          ___ _____

                      Given the range and type of  prosecutorial argument

            we have allowed in such  a situation, see, e.g., id. (comment
                                                  ___  ____  ___

            that witness and defendant had "concocted" their story proper

            as it suggested  inferences jury could draw  from conflicting

            evidence)  and Garcia,  818 F.2d at  143-44 &  n.7 (statement
                           ______

            that defendant  "is lying," though  not to be  encouraged, is

            proper "commentary on  the implausibility of the  defendant's

            story"),  we   cannot   say  that   counsel's   conduct   was

            constitutionally deficient.   Indeed, counsel's  decision not

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to  object  is  supported by  these  cases.   This  is  not a

            situation, as appellant  suggests, where  the prosecutor,  in

            closing, made a  deliberate misrepresentation as to  what the

            evidence showed.   See United States v.  Santana-Camacho, 833
                               ___ _____________     _______________

            F.2d  371, 373 (1st Cir. 1987)  (where comment that defendant

            had  illegally entered  country  unsupported  in  record  and

            contrary to only evidence on the issue, plain error existed).

                      For  the foregoing  reasons,  the  judgment of  the

            district court is affirmed.
                              ________

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