United States v. Arizaga

• Court: Court of Appeals for the First Circuit
• Decided: March 12, 1999
• Docket: 97-2356
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 97-2356

UNITED STATES,

Plaintiff, Appellee,

v.

JOSE ARIZAGA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hctor M. Laffitte, U.S. District Judge] Before

Boudin, Circuit Judge,

Reavley, Senior Circuit Judge,and Lipez, Circuit Judge.

David W. Romn for appellant. Jos A. Quiles-Espinosa, Senior Litigation Counsel, with whom Guillermo Gil, United States Attorney, and Camille Vlez-Riv, Assistant United States Attorney, were on the brief, for appellee.

March 11, 1999

LIPEZ, Circuit Judge. Jos Arizaga was convicted by a jury, after a joint trial with three co-defendants, of conspiracy to possess multiple kilograms of cocaine with intent to distribute, and of two specific instances of cocaine possession with intent to distribute, both occurring in the course of the conspiracy. On appeal, Arizaga claims that the court erred in failing to grant a new trial in light of allegedly newly discovered exculpatory evidence. He also argues that he was deprived of effective assistance of counsel at trial, and that the evidence was insufficient to sustain his convictions. We affirm. I. The indictment alleged that Arizaga and sixteen other named conspirators were involved in a series of cocaine transactions dating from November 1993 through July 1996 in which cocaine was purchased in Puerto Rico and transported to the mainland using a variety of methods. The government's case relied primarily on the testimony of Luis Chvere, a central figure in every drug transaction executed in the course of the conspiracy. After being arrested in May 1995 in connection with an attempted purchase of ten kilograms of cocaine, Chvere subsequently testified as a government witness. A comprehensive description of all the transactions in furtherance of the conspiracy may be found in our opinion in United States v. Portela, Nos. 97-2353, 97-2354, 97-2355, slip op. 3-11 (1st Cir. Feb. 9, 1999). For the purposes of resolving Arizaga's appeal, we describe only the transactions in which he participated directly. "We recite the facts in the light most favorable to the verdicts being appealed." United States v. Shifman, 124 F.3d 31, 33 (1st Cir. 1997), cert. denied, 118 S. Ct. 1053 (1998). In April 1995, Chvere traveled to Puerto Rico from his home in Rochester, New York, in order to purchase a kilogram of cocaine as a replacement for several kilograms of cocaine which he had previously purchased but which had been interdicted by law enforcement. Chvere's usual suppliers were unable to provide him with any cocaine and indicated that the supply of cocaine was scarce at that time. After several days, Chvere was approached by Arizaga, who offered to procure a kilogram of cocaine. At some point afterwards Chvere purchased a kilogram of cocaine from Arizaga for $14,000. Unhappy with the quality of this cocaine, Chvere resold it in Puerto Rico instead of transporting it back to the mainland and reselling it there, which had been his usual practice. The evidence of this transaction produced at trial consisted solely of the testimony of Chvere. On May 11, 1995, Victor Roldn-Flores informed Chvere of an opportunity to purchase ten kilograms of cocaine. Since Chvere did not have enough cash to complete the transaction, he attempted to recruit several others to provide capital and share in the purchase. He first spoke to Arizaga, who agreed to try to recruit others to the venture. By the morning of May 12th, Arizaga had raised enough money to buy one kilogram of the cocaine, and Arizaga and Chvere together sought out Samuel Rivera-Maldonado, who agreed to buy two of the ten kilograms. The three of them then met Roldn- Flores, who was with William Santiago-Coln, and all five men went to a Burger King in Isla Verde. Arizaga went in Rivera-Maldonado's truck, in which the pooled money of all five buyers had been stowed. Arizaga had contributed $13,000 to the pool. Roldn-Flores recognized his supplier driving into the parking lot of the plaza where the Burger King was located; Roldn-Flores went out into the parking lot to speak to the supplier. Roldn-Flores then returned to the restaurant and asked Chvere and Rivera-Maldonado to go out into the lot and get the money from the truck. The supplier was in fact an undercover Drug Enforcement Administration agent, and all five buyers were arrested. Arizaga was in the lavatory of the Burger King when he was arrested. The evidence of this transaction adduced at trial was the testimony of Chvere and of the two law enforcement officers who had conducted surveillance inside the Burger King during the sting operation. After Chvere was released on bail, he decided to cooperate with the government. Arizaga had been released later in the day after his arrest on May 12, 1995, but he was rearrested in July 1996 in light of inculpatory information provided to law enforcement by Chvere. Arizaga was charged in three counts of the indictment. Count One charged conspiracy to possess with intent to distribute cocaine. Count Twelve charged him with possession with intent to distribute one kilogram of cocaine in connection with the April 1995 sale to Chvere. Count Fourteen charged him with attempting to possess with intent to distribute ten kilograms of cocaine in connection with the Burger King events in May 1995. Arizaga was convicted of all three counts in a jury trial. Shortly after conviction, Arizaga filed a pro se motion to dismiss his trial counsel; his counsel then requested that he be allowed to withdraw and the court granted this motion. Sentencing proceeded with new counsel (David W. Romn), and Arizaga was sentenced to concurrent terms of 60 and 121 months in prison followed by two concurrent five year terms of supervised release, and a special monetary assessment. This appeal followed. II. On July 21, 1997, after trial but before sentencing, Arizaga (represented by current counsel David W. Romn) filed a motion for a new trial, based on trial counsel's alleged ineffective assistance. This motion was denied by the court. On August 20, 1997, Arizaga filed a renewed motion for a new trial accompanied by a statement from Samuel Rivera-Maldonado, a co- defendant who had pled guilty. Rivera-Maldonado's statement indicates that Mr. Arizaga . . . is completely innocent of any wrongdoing in this case and had nothing to do with the criminal acts charged against him. To my knowledge, Mr. Arizaga . . . is completely innocent of the charges against him because he had nothing to do with criminal acts described in the indictment in this case.

This motion was also denied by the court. Rivera-Maldonado's typed statement is dated April 2, 1997, but the word "June" is typed on the document, crossed out in ink, and the word "April" written by hand in its place. Federal Rule of Criminal Procedure 33 authorizes a new trial "if required in the interest of justice." A Rule 33 motion for a new trial based on newly discovered evidence will not be allowed unless "the movant establishes that the evidence was: (i) unknown or unavailable at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial." United States v. Tibolt, 72 F.3d 965, 971 (1st Cir. 1995). If any of these four factors are missing, "then a Rule 33 motion must be denied." United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991). We review the denial of a motion for a new trial for "manifest abuse of discretion." Tibolt, 72 F.3d at 972. Even assuming arguendo the unavailability of Rivera- Maldonado's statement and testimony at Arizaga's trial, the due diligence of trial counsel, and the materiality of the new evidence, we must ask whether this evidence was likely to result in acquittal on retrial. There was no such likelihood. Attempts by one defendant to take full responsibility for a crime after his guilt has been established, or to exonerate a co-defendant, are common and are properly viewed with skepticism. See United States v. Benavente Gomez, 921 F.2d 378, 383 (1st Cir. 1990). Rivera- Maldonado's statement is conclusory in nature and contains nothing that might account for or seriously cast doubt upon the directly contradictory testimony of Chvere or that of the police officers present at the Burger King. Under such circumstances, we conclude that the introduction of Rivera-Maldonado's testimony would not have been likely to result in Arizaga's acquittal upon retrial. The court did not abuse its discretion in denying the motion for a new trial. III. Arizaga contends that he was deprived of the effective assistance of counsel because his trial counsel allegedly failed to call Rivera-Maldonado as a witness, interview the manager of the Burger King restaurant where the arrests were made (who allegedly would have testified that Arizaga arrived separately from the other defendants), present the government's videotape of the events taking place in the parking lot of the Burger King (so as to establish that Arizaga was not present in the parking lot), and discover and present medical evidence of Arizaga's chronic gastrointestinal illness (presumably so as to establish that Arizaga was not necessarily simply hiding from the police in the lavatory). Arizaga also alleges that counsel frustrated his right to take the stand. Ineffective assistance of counsel claims require the defendant to show that counsel's performance was constitutionally deficient and that the deficient performance prejudiced the defense. Because both findings typically require the resolution of factual issues by a trial judge, we have generally declined to resolve such claims on direct appeal unless the record is sufficiently developed to permit review of the claim. See United States v. Berrios, 132 F.3d 834, 840 (1st Cir. 1998). The court issued no findings as to trial counsel's performance in rejecting Arizaga's two Rule 33 motions. We have no indication of what tactical considerations may have motivated counsel's decisions not to call Rivera-Maldonado or present the videotape, nor do we have evidence of the extent of counsel's discovery efforts. The affidavit of counsel in the record indicates only that counsel informed Arizaga of his right to testify. Therefore, the record before us is inadequate to resolve the ineffective assistance of counsel claim raised by Arizaga, and we decline to address it. IV. Arizaga moved for a judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29, at the close of the government's case and again at the close of all the evidence. Rule 29 allows for entry of a judgment of acquittal "if the evidence is insufficient to sustain a conviction." Arizaga argues that the evidence against him was insufficient because he "was convicted solely on the uncorroborated accomplice testimony of Luis [Chvere], given more than a year after the events charged in the indictment." Arizaga claims the delay and the alleged lack of corroboration make Chvere's testimony "facially incredible" and "unbelievable as a matter of law." In assessing a sufficiency challenge, "we review the record to determine whether the evidence and reasonable inferences therefrom, taken as a whole and in the light most favorable to the prosecution, would allow a rational jury to determine beyond a reasonable doubt that the defendant was guilty as charged." United States v. Alicea-Cardoza, 132 F.3d 1, 5 (1st Cir. 1997) (internal quotation marks omitted). "[A] conviction based solely upon the uncorroborated testimony of an accomplice can be upheld, as long as the jury is properly instructed and the testimony is not incredible as a matter of law." United States v. Hernndez, 109 F.3d 13, 15 (1st Cir. 1997). In this case, "[t]he judge gave complete and correct instructions detailing the special care the jury should take in assessing the testimony," United States v. Ortiz-Arrigoitia, 996 F.2d 436, 438-39 (1st Cir. 1993), and Chvere's testimony was not "incredible or insubstantial on its face," United States v. Aponte- Suarez, 905 F.2d 483, 488 (1st Cir. 1990). Chvere's testimony as to the May transaction was in fact substantially corroborated by the testimony of the two police officers who provided surveillance at the Burger King and participated in the arrests. Moreover, nothing about the delay between the time of Chvere's arrest and the time at which he implicated Arizaga while cooperating with the government (at most, fourteen months) made his testimony incredible as a matter of law. A rational juror could have relied upon it to find Arizaga guilty beyond a reasonable doubt. Affirmed.