United States v. Ademaj

Opinion

USCA1 Opinion

                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT


No. 97-2352



                       UNITED STATES OF AMERICA,



                               Appellee,



                                  v.



                             FREDI ADEMAJ,



                         Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF MASSACHUSETTS



             [Hon. William G. Young, U.S. District Judge]


Before



                         Lynch, Circuit Judge,



                      Cyr, Senior Circuit Judge,



                       and Lipez, Circuit Judge.


John J. Barter for appellant.

     Theodore B. Heinrich, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.


March 4, 1999

                                                       CYR, Senior Circuit Judge.  Defendant Fredi Ademaj

challenges various district court rulings relating to his trial and

conviction on three counts of distributing cocaine, see 21 U.S.C.

 841(a)(1), and two counts of conspiring to distribute cocaine,

see id.  846.  We affirm the district court judgment in all

respects.

                                I

                            BACKGROUND

          The evidence showed that Ademaj had been involved in a

wholesale cocaine distribution operation in the Boston area. 

During May 1996 the Drug Enforcement Agency ("DEA") began using a

cooperating witness, nicknamed "Bob," to investigate Stefanos

Meraklis, Ademaj's brother-in-law.  During the DEA investigation,

"Bob" engaged in undercover cocaine transactions with both Meraklis

and Meraklis' cocaine supplier.  Some transactions were tape-

recorded and Ademaj served as a go-between in certain transactions. 

For the most part, the recorded conversations were conducted in

Greek.

                                II

                            DISCUSSION

          Ademaj presents six claims, which we discuss in turn.

A.   Constructive Deprivation

     of Right to Trial Counsel

          Initially, Ademaj filed a pro se motion requesting

replacement counsel three days prior to trial, arguing that since

he and his court-appointed counsel spoke different languages their

inability to communicate resulted in a constructive deprivation of

his Sixth-Amendment right to trial counsel, in that "there was no

opportunity for effective trial preparation."  Cf.  Strickland v.

Washington, 466 U.S. 668, 685-87 (1984).

          Thereafter, on the first day of trial, court-appointed

counsel moved for a continuance on the ground that "it was evident

that [Ademaj] did not understand the federal court procedures, as

[counsel] had previously explained to this Albanian defendant in

English . . . ."  Counsel further represented to the court: 

"Unfortunately, I don't think that Mr. Ademaj has understood

everything I have indicated to him about the trial process." 

Although counsel acknowledged that an interpreter had been made

available previously, he added that initially he had thought

"Ademaj had understood certain things and now I'm not sure if he .

. . actually did."  For his part, Ademaj asserted that he was not

prepared to proceed to trial because there was evidence which he

had not yet been able to obtain.  Asked what further evidence he

sought, Ademaj simply responded:  "[M]y evidence."

          The district court heard and rejected these motions the

day trial was scheduled to begin.  Shortly thereafter, as the petit

jury entered the courtroom to begin the trial, defense counsel once

again requested a continuance, which was denied.  The court then

informed Ademaj and counsel that an interpreter would be available

should they wish to confer further prior to trial.

          During jury empanelment, Ademaj indicated that he wished

to proceed without counsel.  The court responded that he would be

allowed to proceed without counsel, but that replacement counsel

would not be appointed.  After Ademaj advised the court that he had

no confidence in court-appointed counsel, the request for

replacement counsel was denied once again and Ademaj decided

against proceeding pro se.

          As an initial matter it is not at all clear that a

criminal defendant represented by court-appointed counsel may

assert a "constructive" denial-of-counsel claim under the Sixth

Amendment separate and apart from the conventional ineffective-

assistance-of-counsel claim.  Ademaj cites no apposite authority,

nor have we found any.  As a conceptual matter, moreover, such a

claim would appear redundant in the instant context, given that

ineffective assistance by court-appointed counsel would constitute

a denial of the Sixth Amendment right to counsel in the sense that

the trial itself could not be relied upon to produce a just result

in such a circumstance.  See Scarpa v. Dubois, 38 F.3d 1, 8 (1st

Cir. 1994).

          At bottom, then, this constructive denial-of-counsel

claim is simply an ineffective-assistance-of-counsel claim wherein

Ademaj asks the court to presume prejudice.  We decline to do so. 

Instead, we inquire whether the absence of an interpreter prior to

trial actually prejudiced Ademaj's defense.  See United States v.

Cronic, 466 U.S. 648, 659 n.26 (1984) (dicta) (noting:  "[a]part

from [certain limited] circumstances . . . there is generally no

basis for finding a Sixth Amendment violation unless the accused

can show how specific errors of counsel undermined the reliability

of the finding of guilt.").

          We have held that a presumption of prejudice under the

Sixth Amendment is "the exception, not the rule ÄÄ and it can be

employed only if the record reveals presumptively prejudicial

circumstances such as an outright denial of counsel, a denial of

the right to effective cross-examination, or a complete failure to

subject the prosecution's case to adversarial testing."  Scarpa, 38

F.3d at 12.  As we observed in Scarpa, ". . . the Court's language

in Cronic was driven by the recognition that certain types of

conduct are in general so antithetic to effective assistance ÄÄ for

example, lawyers who leave the courtroom for long stretches of time

during trial are unlikely to be stellar advocates in any matter ÄÄ

that a case-by-case analysis simply is not worth the cost of

protracted litigation."  Id. at 12.  By contrast, the Cronicrationale is not implicated in the present case, since Ademaj

understands and speaks considerable English and only belatedly even

alleged that pretrial communications with counsel were difficult. 

Thus, the instant claim lends itself to no brightline per se rule. 

          The capacity to converse in English, and any concomitant

need for an interpreter, represent fact-intensive inquiries

implicating such considerations as the defendant's intelligence,

education, and the length of time he has been exposed to an

English-speaking environment, as well as the relevant English-

language skills of the defendant and any foreign-language skills of

defense counsel.  As we cautioned some time ago in a similar

context:

          Because the determination is likely to hinge

          upon various factors, including the complexity

          of the issues and testimony presented during

          trial and the language ability of the

          defendant's counsel, considerations of

          judicial economy would dictate that the trial

          court, coming into direct contact with the

          defendant, be granted wide discretion in

          determining whether an interpreter is

          necessary.  



United States v. Carrion, 488 F.2d 12, 14-15 (1st Cir. 1973)

(citing Perovich v. United States, 205 U.S. 86, 91 (1907));  seealso United States v. Sosa, 379 F.2d 525, 527 (7th Cir. 1967);  cf.United States v. Arthurs, 73 F.3d 444, 447 (1st Cir. 1996) ("The

district judge, who heard the defendant speak, had considerable

discretion in these circumstances to determine if Arthurs' English

testimony was intelligible to the jury.").

          Furthermore, the right to an interpreter during pretrialpreparation is less than clear in the present circumstances, since

Ademaj was afforded an interpreter immediately before and

throughout the trial and only now belatedly asserts that one was

needed even earlier in pretrial consultations with court-appointed

counsel.  Accordingly, we must consider whether any difficulty in

pretrial communications with court-appointed counsel resulting from

the alleged language barrier could have impinged upon Ademaj's

right to counsel during the trial preparation stage.  Cf. Carrion,

488 F.2d at 14 ("the right to confront witnesses would be

meaningless if the accused could not understand their testimony,

and the effectiveness of cross-examination would be severely

hampered.  The status of the right becomes less certain [where] the

defendant has some ability to understand and communicate, but

clearly has difficulty.")

     i.   The Degree of Difficulty in Communicating

          The record on appeal would not support a contention that

Ademaj was totally unable to communicate with counsel at any stage

in the proceedings.  More to the point, his extensive

correspondence and numerous colloquies with the trial judge in the

English language belie any claim that pretrial communications with

court-appointed counsel were so severely impeded as to deprive him

of the right to counsel at any relevant time.  Furthermore,

although Ademaj raised many pretrial issues below, including claims

that he needed more time to prepare for trial and did not

understand court procedures, his complaints with counsel were

premised on the assertion that he was not being afforded a

sufficiently vigorous defense.  

          The only time Ademaj even arguably broached the instant

claim was on the first day of trial, by requesting new counsel and

a continuance.  Under questioning by the district court, however,

Ademaj responded that he was not ready for trial because he did not

have certain evidence, then added through the interpreter:

          COURT INTERPRETER: [H]e's not prepared he

          said, your Honor.  He's had a problem

          understanding Mr. Laymon.



          COURT: What is it that you want me to do to

          get prepared?



          COURT INTERPRETER: He wants another lawyer.



          COURT: Why do you want another lawyer?



          COURT INTERPRETER: He doesn't believe in Mr.

          Laymon.  He said he has no confidence in him.



          Prior to the first day of trial, Ademaj mentioned no

language or other communication problem, either with counsel or in

regard to trial preparations generally.  Moreover, in two letters

to his attorney, written in English approximately three weeks prior

to trial and made available to the district court, there was no

reference to any problem with court-appointed counsel.  Finally,

the motion alleging ineffective assistance of counsel asserted that

court-appointed counsel was "substandard," but mentioned no

communication problem.

          Thus, Ademaj utterly failed to allege, let alone

demonstrate, how any language difficulties he may have encountered

impeded pretrial communications with court-appointed counsel.  In

fact, the letters Ademaj wrote to counsel, which he typed himself,

are comparable in English-language fluency   if not superior   to

those drafted by many pro se litigants whose only language is

English.  See supra note 4.  Thus, there has been no plausible

demonstration that any language barrier which may have existed

worked a constructive denial of the Sixth Amendment right to

counsel. 

B. Ineffective Assistance of Counsel

          Ademaj mounts a conventional ineffective-assistance claim

as well, on the ground that court-appointed counsel failed:  (i) to

communicate in an effective manner; (ii) to obtain the services of

a translator during pretrial preparation; (iii) to call

codefendants as trial witnesses; (iv) to obtain an expert to

translate the tape-recorded Greek conversations; (v) to obtain a

voice print; and (vi) otherwise failed to make adequate preparation

for trial.

          In order to prevail on an ineffective-assistance claim,

Ademaj must show that counsel's performance was so deficient that

it prejudiced his defense.  See United States v. Ortiz, 146 F.3d

25, 27 (1st Cir. 1998) (citing Strickland, 466 U.S. at 687).  That

is, he "must show . . . that 'counsel's errors were so serious as

to deprive the defendant of a fair trial, a trial whose result is

reliable.'"  United States v. Sutherland, 929 F.2d 765, 774 (1st

Cir. 1991) (quoting Strickland, 466 U.S. at 687).  In analyzing the

ineffective-assistance claim, we examine what counsel knew or

should have known at the time any tactical choices were made and

implemented.  United States v. Natanel, 938 F.2d 302, 309 (1st Cir.

1991);  see also United States v. Georgacarakos, 988 F.2d 1289,

1298 (1st Cir. 1993).

          It is well settled that an ineffective-assistance claim

will not be entertained on direct appeal absent a sufficiently

developed evidentiary record.  See, e.g., United States v.

Lopez-Pineda, 55 F.3d 693, 697 (1st Cir. 1995);  United States v.

Jadusingh, 12 F.3d 1162, 1169 (1st Cir. 1994).  Instead, a

collateral proceeding under 28 U.S.C.  2255 is the appropriate

vehicle for such an ineffective-assistance claim.  United States v.

Cofske, 157 F.3d 1, 2 (1st Cir. 1998);  United States v.

Tuesta-Toro, 29 F.3d 771, 776 (1st Cir. 1994).  Since the existing

record does not enable reliable appellate review, we decline to

consider the ineffective-assistance claim on direct appeal. 

     C.   Continuance



          Following a nine-month delay resulting from five previous

continuances, on the first day of trial the district court denied

a further request for continuance to permit Ademaj to obtain new

counsel and conduct additional discovery.  In response to an

inquiry by the district court as to why he was requesting new

counsel, Ademaj stated simply:  "[H]e think I'm guilty. . . . He's

trying to cop me out."  When the district court asked what

additional evidence he sought, Ademaj adverted vaguely to "my

evidence."  See supra at p. 3.

          We accord "extraordinary deference" to trial court rulings

on "last-minute" requests for a continuance. See United States v.

Pierce, 60 F.3d 886, 891 (1st Cir. 1995), cert. denied, 518 U.S.

1033 (1996).  The instant challenge is frivolous.

D.   The Tape Transcripts

          At trial, the government called "Bob," two DEA agents, a

DEA drug analyst, and a Greek-language translator.  The next day

Ademaj filed a handwritten motion, titled "Object My Trial,"

requesting an expert witness to translate the Greek conversations

on the tapes.  The motion was denied as untimely.

          While "Bob" was on the witness stand the government

offered five tape-recorded conversations, four conducted primarily

in Greek and another in English.  "Bob" prepared English

transcripts and Ademaj objected to their use.  The court allowed

the jury to review the transcripts while the tapes were played or

particular witnesses were on the stand, but did not admit them into

evidence.  The tape transcripts were utilized by counsel in closing

argument.  At its request, the jury was allowed to use the

transcripts during its deliberations subject to a cautionary

instruction.

          Ademaj asserts that the district court erred in allowing

the transcripts to be used by counsel at trial, and the jury during

its deliberations.  Further, he argues that since the court refused

to admit the transcripts into evidence because they had been

transcribed by a government witness, they should not have been used

by the jury during its deliberations.

          Authenticated transcripts may be used by the jury to

facilitate its understanding of the tape recordings themselves,

see, e.g., United States v. Rengifo, 789 F.2d 975, 980 (1st Cir.

1986) (citing cases), provided the court "makes clear that the

tapes, not the transcript, constitute evidence in the case."  Id. 

Furthermore, should the defendant fail to offer either a sufficient

objection during playback of the tape, or an alternative

transcript, the district court does not abuse its discretion by

authorizing use of the government's duly authenticated transcript

during jury deliberations subject to an appropriate cautionary

instruction.  United States v. Young, 105 F.3d 1, 10 (1st Cir.

1997).

          A similar situation was before us in United States v.

Font-Ramirez, 944 F.2d 42 (1st Cir. 1991), where we upheld jury use

of foreign-language transcripts prepared by a government informant:

          Where inaccuracies in the transcript combine

          with possible bias in the transcription

          process, a transcript may be excluded from

          evidence.  The touchstone, however, is the

          accuracy of the transcript.  Because

          Font-Ramirez did not offer an alternative

          transcript and did not point out any specific

          inaccuracies in the government's transcript,

          the district court was within its discretion

          in allowing its use.  



Id. at 48 (citations omitted) (emphasis added).

          The record reflects that though Ademaj received copies of

the government transcripts prior to trial, and objected to their

use at trial, no specific objection was made to their accuracy, nor

was an alternative transcript submitted.  Moreover, the court

repeatedly instructed the jury that the transcripts were not

evidence.  Finally, after the jury requested the transcripts during

its deliberations, it received an appropriate cautionary

instruction.  The court did not abuse its discretion.

     E.   Reasonable Doubt

          Prior to the close of evidence Ademaj submitted a

proposed jury instruction on reasonable doubt:  "A charge is proved

beyond a reasonable doubt if, after you have compared and

considered all the evidence, you have in your minds an abiding

conviction, to a moral certainty, that the charge is true."  The

district court responded that it would not define reasonable

doubt.  During closing argument, defense counsel attempted to

define reasonable doubt in the same terms proposed in the requested

instruction.  The trial judge interrupted defense counsel and

explained to the jury that the court would explain the law to the

jury.

          We have taken the position that "[m]ost efforts at

clarification [of the meaning of "reasonable doubt"] result in

further obfuscation of the concept[,]" thus "an instruction which

uses the words reasonable doubt without further definition

adequately apprises the jury of the proper burden of proof." 

United States v. Olmstead, 832 F.2d 642, 645-46 (1st Cir. 1987). 

That is not to say, however, "that the phrase can be buried as an

aside in the [jury charge]."  United States v. Cassiere, 4 F.3d

1006, 1024 (1st Cir. 1993) (citing Olmstead, 832 F.2d at 646). 

Nevertheless, normally the district court is in a better position

to determine whether, and if so how, "reasonable doubt" should be

defined.  Id.;  see also United States v. Rodriguez-Cardona, 924

F.2d 1148, 1160 (1st Cir. 1991) ("We have emphasized in the past,

and do so again here, that reasonable doubt does not require

definition.").  Under our precedents, therefore, the district court

did not abuse its discretion in refusing to define "reasonable

doubt." 

          Ademaj next argues that the district court erred in

precluding discussion of the concept of reasonable doubt when

defense counsel stated in closing argument that "[a] charge is

proved beyond a reasonable doubt if, after you have compared and

considered all the evidence, you have in your minds an abiding

conviction, to a moral certainty . . . ."  At that point the court

interrupted and stated that it would "explain" the law to the jury;

adding:  "I'll explain the concept of reasonable doubt, or mention

it at least." 

          The district court acted properly in precluding counsel

from arguing that the jury should equate "reasonable doubt" with "an

abiding conviction to a moral certainty."  See Gilday v. Callahan,

59 F.3d 257, 262 (1st Cir. 1995) ("Equating the concept of

reasonable doubt to 'moral certainty' may be, in isolation,

reversible error.").

     F.   Notification of Consular Rights

          Ademaj asserts a Fifth Amendment due-process claim, based

on the fact that he was never advised of an alleged right, under

the Vienna Convention on Consular Relations, see 596 U.N.T.S. 261

("Convention"), to request assistance from the local Albanian

consulate in his criminal defense.  As this claim is raised for

the first time on appeal, we review only for "plain error"; that is,

an error which was "clear" or "obvious" and affected "substantial

rights."  United States v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir.

1993).

          An unpreserved error is "plain" only if it undermines the

fundamental fairness or basic integrity of the trial court

proceedings.  See, e.g., United States v. Taylor, 54 F.3d 967, 973

(1st Cir. 1995).  Furthermore, "[e]ven when faced with an

apparently plain error, an appellate court 'has authority to order

correction, but is not required to do so.'"  Id. (quoting United

States v. Olano, 507 U.S. 725, 732 (1993)).  There has been no

showing that the error belatedly asserted on appeal in this case

was other than "harmless."

          Ademaj neither indicates how the Albanian Consul could

have afforded assistance in his defense, nor that any material due-

process right was infringed by the failure to notify the Consul. 

See Breard v. Greene, 118 S.Ct. 1352, 1355 (1998) ("Even were

Breard's Vienna Convention claim properly raised and proven, it is

extremely doubtful that the violation should result in the

overturning of a final judgment of conviction without some showing

that the violation had an effect on the trial.") (citing Arizona v.

Fulminante, 499 U.S. 279 (1991)).

          Although Ademaj cites Breard v. Pruett, 134 F.3d 615 (4th

Cir.), cert. denied sub nom., Breard v. Greene, 118 S.Ct. 1352

(1998), and Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996), as

support for the claim that the Vienna Convention guarantees foreign

nationals the right to set aside a criminal conviction absent

compliance with its notification provisions, neither case meets its

billing.  In Pruett, the Fourth Circuit bypassed the merits and

denied habeas relief because the consular claim had never been

raised in the state court.  134 F.3d at 619.  In Faulder, the Fifth

Circuit determined that a violation of the Convention was harmless

error.  81 F.3d at 520.  Thus, neither court considered the merits

or the remedy for a consular claim violation.

          Finally, the Vienna Convention itself prescribes no

judicial remedy or other recourse for its violation, let alone

vacatur of a conviction.  Cf. Breard, 118 S.Ct. 1356 (denying stay

of execution based on violation of consular notification

provisions, and stating that "neither the text nor the history of

the Vienna Convention clearly provides a foreign nation a private

right of action in United States' courts to set aside a criminal

conviction and sentence for violation of consular notification

provisions.").  Accordingly, we conclude that the failure to

accord Ademaj an alleged right of notification pursuant to the

Vienna Convention did not constitute plain error.

                              III

                           CONCLUSION

          For the foregoing reasons, we decline to entertain the

ineffective-assistance-of-counsel claim on direct appeal, without

prejudice to its assertion in a collateral proceeding. 

Accordingly, the district court judgment is affirmed.

          SO ORDERED.