United States v. Gonzalez-Vazquez

219 F.3d 37, 2000 U.S. App. LEXIS 17261
CourtCourt of Appeals for the First Circuit
DecidedJuly 18, 2000
DocketNos. 98-2108, 98-2109
StatusPublished
Cited by56 cases

This text of 219 F.3d 37 (United States v. Gonzalez-Vazquez) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gonzalez-Vazquez, 219 F.3d 37, 2000 U.S. App. LEXIS 17261 (1st Cir. 2000).

Opinion

LIPEZ, Circuit Judge.

Hector Hernández-Negrón and Waldemar González-Vázquez appeal from their convictions following a trial for conspiracy to distribute controlled substances and aiding and abetting the distribution of controlled substances within one thousand feet of a school. Hernández claims that he received ineffective assistance of counsel when his trial attorney failed to accept a plea bargain as instructed, and that the government then violated his constitutional rights by withdrawing the original plea offer and offering a new “package deal” plea bargain that Hernández could only accept if his two remaining co-defendants also pled guilty. Hernández also argues that the district court misapplied U.S.S.G. § 3B1.1 in finding him to be a “manager or supervisor” of the criminal activity. Gon-zález challenges the sufficiency of the evidence, arguing that it was based solely on testimony from the government’s confidential informant. We reject these arguments (as well as several arguments concerning evidentiary errors) and affirm the convictions and sentence of Hernández and the convictions of González.

I. Background

We recite the facts in the light most favorable to the jury’s verdict, consistent with record support. See United States v. Hughes, 211 F.3d 676, 679 (1st Cir.2000). In January 1995, FBI Agent Michael Anderson learned that an individual named Angel González-Ortiz, a.k.a. “Pichi,” headed a gang that distributed illegal drugs at the Luis Palés Matos housing project in Guayama, Puerto Rico. The distribution point was within 1000 feet of the Palés Matos Public School. Anderson opened an investigation, assisted by Agent José Tira-do, a Puerto Rico Police officer who had performed some initial investigation of the drug ring. Anderson met with a confidential informant (“Cl”), Ramonita Massó-Nieves, who had assisted Agent Tirado in his initial investigation. To corroborate the information provided by Massó, Anderson set up two video surveillance cameras at the drug point, recording numerous drug deals.

In February 1996 a Grand Jury returned a two-count indictment against twenty-two individuals, charging a conspiracy to distribute controlled substances in violation of 21 U.S.C §§ 841(a)(1) & 846 and aiding and abetting the distribution of controlled substances within,1,000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) & 860 and 18 U.S.C. § 2. Shortly after the indictments, the government offered plea bargains to all of the co-defendants. Nineteen of the twenty-two co-defendants accepted a plea bargain; Hernández, Gonzá-lez, and Louis Bonano-Serrano went to trial.

The jury trial lasted seven days. Through surveillance videotapes, the jury saw drug transactions involving many of the individuals who had pled guilty. Her-[41]*41nández, González, and Bonano, however, did not appear in these videos. The government attempted to link the defendants to the conspiracy through the testimony of Massó and Agent Tirado. Massó testified that, from her experience working at the drug point, she knew that Hernández, González, and Bonano were the “guilterro” or “triggermen” for Pichi, insuring that the kingpin and his interests were protected. She further testified that González had provided drugs to the distribution point and that Hernández was second in command, after Pichi himself. She also testified that on one occasion Hernández had used her apartment to package drugs, and that she called Agent Tirado to inform him. Agent Tirado confirmed this, testifying that upon arriving at Massó’s apartment, he found Hernández and two others sitting around a table packaging a powder that a field test indicated was cocaine. A chemist testified that later laboratory tests also indicated that the substance was cocaine. Tirado also testified that when he stopped González for a traffic violation .he found a bag containing drug packaging paraphernalia.

González and Bonano did not offer defense witnesses. Hernández offered one witness: a co-conspirator who had pled guilty, and who testified that Hernández had been with him when Agent Tirado came to Massó’s apartment and found them packaging drugs. The jury found Hernández and González guilty on both counts. Bonano was acquitted. Hernán-dez was sentenced to 450 months and Gon-zález was sentenced to 360 months.

We evaluate Hernández’s claims first, turn then to the issues raised by González, and finally address an issue raised by both appellants.

II. Hernández

A. The Plea Bargain

Hernández raises two arguments related to his unsuccessful efforts to obtain a plea agreement from the government. Like all of the twenty-two original co-defendants, Hernández was offered a plea agreement after he was indicted in 1996. Nineteen of the co-defendants accepted the plea bargain and were sentenced to between eighteen and forty-six months. Hernández, however, deferred a decision on the plea offer while preparing a motion to dismiss. After that motion was denied, Hernández moved to -compel the government to honor the initial plea- agreement. The government responded that there had been no agreement. Rather, there had only been an offer that Hernández had not accepted and that was now. withdrawn. The government further stated that it had advised Hernández that “trial preparation in this case would be the same against one or against any of the three co-defendants.”

1. Ineffective Assistance of Counsel

Hernández argues that he received ineffective assistance of counsel because his trial counsel mishandled the plea bargaining process by grossly underestimating Hernández’s potential sentence if the case were taken to trial, having stated that Hernández could face a maximum of a ten year prison term when in reality he faced a life sentence (and in fact received thirty-seven and a half years). Additionally, Hernández asserts that his trial counsel failed to accept the plea offer as instructed, allowing the offer to lapse. Hernández asserts that he went so far as to call his sisters in the United States to enlist then-help in bypassing his attorney and communicating .to the government that he wanted to accept the plea bargain.

If true, Hernández’s claims would present a serious ineffective- assistance question. See Boria v. Keane, 99 F.3d 492, 496 (2nd Cir.1996) (“A defense lawyer in a criminal case has the duty to-advise his client fully on whether a particular plea to a charge appears to be desirable.”); id. at 496-97 (“The decision whether to plead guilty or contest a criminal charge ... must ultimately be left to the client’s wishes.”). However, “[w]e have held with [42]*42a regularity bordering on the monotonous that fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court.” United States v. Berríos, 132 F.3d 834, 841 (1st Cir.1998) (quoting United States v. Mala, 7 F.3d 1058, 1062-63 (1st Cir.1993)); see also United States v. McGill, 952 F.2d 16, 19 (1st Cir.1991);

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Cite This Page — Counsel Stack

Bluebook (online)
219 F.3d 37, 2000 U.S. App. LEXIS 17261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gonzalez-vazquez-ca1-2000.