United States v. Jackson

• Court: Court of Appeals for the First Circuit
• Decided: July 12, 1994
• Docket: 92-1685
• Status: Published

Opinion

USCA1 Opinion

July 11, 1994         [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 92-1685

UNITED STATES,

                                      Appellee,

                                          v.

                                JUAN CONSORO FAMILIA,

                                Defendant, Appellant.

__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

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

                                 ___________________

                                        Before

                             Torruella, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

Juan Consoro Familia on brief pro se.
               ____________________
               Edwin J.  Gale, United  States Attorney, Margaret  E. Curran
               ______________                           ___________________
          and   Kenneth P.  Madden, Assistant  United States  Attorneys, on
              ____________________
          brief for appellee.

__________________

__________________

Per Curiam.  After a jury  trial, appellant Juan Consoro
                 __________

            Familia  and his live-in  girlfriend, Priscilla Jackson, were

            convicted of conspiring to possess and possession with intent

            to  distribute  cocaine  in  violation of  21  U.S.C.    846,

            841(a)(1), and  841(b)(1)(C).1   Familia was sentenced  to 85

            months'  imprisonment and 5 years of  supervised release.  He

            is subject to deportation upon his release from prison.  

                 We affirmed  codefendant  Jackson's sentence  in  United
                                                                   ______

            States v. Jackson, 3 F.3d 506 (1st Cir.  1993).  Familia, who
            ______    _______

            is  proceeding pro se, now appeals his conviction.  He raises
                           ___ __

            one  argument - i.e. - that his defense attorney rendered him

            constitutionally ineffective  assistance due to a conflict of

            interest.   Familia  specifically  charges  that his  defense

            attorney's fee was paid by the true owner of the cocaine: his

            brother,  Bonifacio  Consoro  Familia (Bonifacio).    Familia

            contends that his  counsel failed to  mount a proper  defense

            because his loyalty to Familia was compromised  by his desire

            to protect Bonifacio so  that he could receive payments  from

            him.    Familia  also   charges  that  his  defense  attorney

            deliberately  failed to  introduce evidence  that would  have

            proven that he  and Jackson were innocent  and that Bonifacio

            and  Bonifacio's  girlfriend  ("Kris")  were  the  real  drug

            dealers.    Having thoroughly  reviewed  the  record and  the

____________________

            1.  Familia was acquitted of using a firearm in relation to a
            drug trafficking crime in violation of 18 U.S.C.  924(c).

                                         -3-

parties'  briefs  on appeal,  we affirm  Familia's conviction

            without  prejudice to his  raising his ineffective assistance

            of counsel claim in a 28 U.S.C.  2255 proceeding.

                                          I.

                 Familia and  Jackson were arrested after certain members

            of the Providence Police Department executed a search warrant

            at  their apartment  on November  11, 1991.    The underlying

            facts  are described in United  States v. Jackson,  3 F.3d at
                                    ______________    _______

            508, which states as follows:

                      On   November  11,   1991,  police   officers  from
                 Providence,  Rhode  Island  went  to  execute  a  search
                 warrant  at the  second floor  apartment of  142 Bowdoin
                 Street, Providence.  At approximately 7:00 p.m., Familia
                 departed from  the apartment and  drove away in  a Dodge
                 minivan.  The officers  stopped the vehicle and returned
                 with Familia to his apartment.   

                      They entered the kitchen through the rear door
                 using Familia's keys.   The kitchen  leads directly
                 to  the master  bedroom, which  contained a  bed, a
                 crib, an upright dresser, a bureau and a television
                 table.  Jackson  was on the  bed with the  couple's
                 child.   

                      Upon  entering  the  apartment,  Familia  declared:
                 "All I  have is a gun.   It's under the  mattress."  The
                 police proceeded  to search  the apartment.   They found
                 the  pistol under the mattress.  A bottle of inositol, a
                 chemical  used to cut or  dilute cocaine, sat  on top of
                 the bureau.  The bottom drawer of the dresser was nailed
                 shut. The officers discovered that the drawer itself had
                 been removed and only the facade remained.  On the floor
                 behind  the false drawer  front, they found  a paper bag
                 and a metal box.  The  paper bag held three plastic bags
                 that contained 299.22 grams  of cocaine.  The metal  box
                 contained $3866 in United  States currency and two Rhode
                 Island  state lottery  receipts,  which  indicated  that
                 Familia had  received a total  of $2085  in winnings  on
                 August  28, 1991.  The police also found a small plastic
                 bag containing  ten rounds of .38  caliber ammunition in
                 plain view on the floor in front of the bedroom closet.

-4-

At trial, the foregoing  facts were established  through

            the  testimony of  the  five Providence  police officers  who

            participated  in the search of the apartment.  There was also

            evidence  that shortly  after  the arrest,  Familia told  the

            police, "She had nothing to do  with it.  I'm responsible for

            everything you found." 

                 The  defendants were  represented  by separate  counsel.

            They  argued  that  the  evidence  did  not  prove  that they

            knowingly possessed the cocaine with the intent to distribute

            it.   Familia, who had  no criminal record,  testified in his

            defense.    He  maintained  that  his  post-arrest  statement

            referred only to the gun and that he did not own the cocaine.

            He testified that his  brother Bonifacio also resided in  the

            apartment.2  On  cross-examination, Familia implied  that the

            cocaine  might  have  belonged  to  Bonifacio,  although  his

            testimony  was   not  firm   on  this   point.3     While  he

            acknowledged  that  the  strongbox   and  gun  were  his,  he

            testified  that most of the  money in the  strongbox had been

____________________

            2.  His landlady  also  testified that  Bonifacio  frequently
            stayed at Familia's apartment.

            3.  The testimony went as follows:

                 Assistant U.S. Attorney: Who  do you claim is the  owner
            of                            the cocaine?
                 Familia: The only  one related  who had  anything to  do
            with               drugs  was  my brother.    I  knew he  was
            involved in             that before.   I didn't  know that he
            was still                         involved in that.  

                                         -5-

given to him by his sister to purchase his van and ship it to

            Puerto Rico. 

                 The trial  record suggests that  Familia's trial counsel

            made a faint-hearted attempt to imply that Bonifacio was  the

            drug dealer.   On cross-examining one of  the police officers

            (Drohan),  counsel   established  that  Bonifacio   had  been

            arrested  on  9/4/90 for  selling  cocaine  to an  undercover

            police officer.    He also  established that  the police  had

            received many  complaints  that Bonifacio  was selling  drugs

            from a barricaded Providence address (65 Laura Street) around

            that time.   But he did  not elicit further evidence  to that

            effect from  Familia. The  little evidence that  Familia gave

            impugning his brother  was brought out  by the government  on

            cross-examination.   In any event,  neither the jury  nor the

            sentencing judge were persuaded by Familia's story.      

                                         II.

                  On appeal,  Familia argues that  his attorney  deprived

            him  of the effective assistance of counsel by failing to use

            evidence that would  have shown that  Bonifacio was the  real

            owner of the cocaine.   Familia claims that Bonifacio  was in

            the United  States illegally after previously  being deported

            for  a  drug offense.   He  alleges  that Bonifacio  paid his

            attorney in cash and that his attorney had an interest in not

            turning  Bonifacio in  so  that he  could continue  receiving

            payments  and  avoid  implicating  himself in  the  crime  of

-6-

failing to report an  illegal alien.4  Familia  contends that

            his counsel's ineffectiveness is  shown by the following acts

            and omissions:

                 (1) failing to file a motion to suppress, a  motion
                 to  quash  the  indictment,  and a  motion  for  an
                 acquittal;

                 (2) failing  to file a  motion to compel  a confidential
                 informant, who  participated in three  drug buys  before
                 Familia's arrest and provided the Providence police with
                 information  which  lead them  to  suspect that  persons
                 occupying  Familia's apartment were  selling cocaine, to
                 testify  and  identify  the  real  drug  pushers  (i.e.,
                 Bonifacio and Kris);

                 (3)  failing  to  use  documents  and  things  that  the
                 government provided  in pretrial discovery.   In support
            of   this particular claim, Familia argues that:

                      (a) his counsel could  have used the affidavit that
                      the police submitted in support of the application
                      for the search warrant to prove that he and Jackson
                      do  not satisfy  the  physical descriptions  of the
                      Hispanic male and black female who allegedly sold 
            cocaine as described in the affidavit; 

                      (b) counsel  also could  have used the  defendants'
                      passports and a picture of Jackson to prove that he
                      and Jackson were in Puerto Rico when the informant
                      purchased cocaine and that  his sister gave him the
                      money that was found in the strongbox;5 

____________________

            4.  Familia  contends  that had  Bonifacio been  arrested, he
            would have confessed to owning the cocaine and  further shown
            that the  police  were lying  when  they testified  that  the
            cocaine  was found  in the  bedroom occupied  by  Familia and
            Jackson.  Familia  says that  his brother would  make a  deal
            with the government to disclose  the truth about the  cocaine
            to  avoid a  stiff prison  sentence for  being in  the United
            States illegally. 

            5.  We note that the transcript of the probable cause hearing
            indicates that  Jackson did not  have a  passport. The  trial
            record indicates  that two  passports in Familia's  name were
            confiscated during the apartment search.

                                         -7-

(c)  counsel  failed   to  secure  copies  of   the
                      defendants' airline tickets,   which   would   have
                      corroborated his  story  that they  were in  Puerto
            Rico           when the informant made the drug buys; and

                      (d)  counsel failed  to introduce  a photograph  of
                      Bonifacio  and documentary evidence that would have
                      established  that  Bonifacio  had  previously  been
                      convicted of selling drugs and deported.6

                 (4) failing to call Familia's sister as a witness at his
                 trial,  although she  would have  corroborated Familia's
                 testimony that most  of the money found in the strongbox
                 represented the proceeds of Familia's sale of the van to
                 her, as her testimony at his sentencing demonstrates;

                 (5) suborning  perjury  by instructing  Familia  to  lie
            about     how  much  money  was  found in  the  strongbox  to
            protect a      Providence  police officer  who stole  some of
            that money;7 

                 (6) failing to show that Detective Lennon lied to the 
            grand jury about Jackson's involvement in drug sales.8

____________________

            6.  The documentary evidence Familia  relies upon is attached
            to  his appellate brief.   It consists of  the police reports
            and search warrant that  pertained to Bonifacio's 1990 arrest
            and a copy of an Immigration and Naturalization Service (INS)
            detainer on Bonifacio.   These documents are not part  of the
            district  court's record.  Familia asks that we conduct a "de
            novo review" of this and other evidence that is in the record
            in assessing his ineffective assistance claim. 

            7.  Familia claims that there was $5007 in the strongbox, not
            the $3866  identified at trial.  He  says that the officer in
            charge  of  the investigation  (Providence  Detective Lennon)
            pocketed  the difference and that his  attorney covered it up
            by refusing to let Familia testify to the true amount.

            8.  Familia  also  argues that  his  attorney  failed to  ask
            certain  questions  that were  asked  at  his probable  cause
            hearing. The questions,  which are recorded  on pp. 19-26  of
            the transcript,  concern the information that  the police had
            before  they  secured  the   search  warrant  for   Familia's
            apartment.     Familia  suggests   that  counsel  could  have
            established  that  the police  had  no  direct evidence  that
            either he or Jackson sold drugs. 

-8-

Familia asks that  we set aside  both his and  Jackson's
                                                  ____

            conviction   based  on  the   foregoing  allegations.     The

            government urges  us to  deny Familia's  claim on  the ground

            that  he has failed to  show an actual  conflict of interest.

            Alternatively, the government says  that we should decline to

            address this issue on direct appeal.  

                 At  the  outset we  note  that  significant portions  of

            Familia's  brief  raise  arguments   on  behalf  of  his  co-

            defendant,  Jackson.    But as  Familia  has  no  standing to

            challenge Jackson's  conviction, the arguments  he asserts on

            her behalf  have no  merit.  Familia's  conflict of  interest

            claim requires further attention. 

                                         III.

                 "In order to establish a violation of ...[a defendant's]

            Sixth  Amendment  [right  to  the   effective  assistance  of

            counsel],  a defendant who raised  no objection at trial must

            demonstrate  that an  actual  conflict of  interest adversely

            affected his lawyer's  performance." Cuyler v.  Sullivan, 446
                                                 ______     ________

            U.S. 335, 348 (1980).   See also United States  v. Rodriguez,
                                    ___ ____ _____________     _________

            929  F.2d 747,  749 (1st  Cir. 1991)(per  curiam).   And, "in

            order to  show an  actual conflict  of interest,  a defendant

            must  show that (1) the lawyer could have pursued a plausible

            alternative  defense   strategy   or  tactic   and  (2)   the

            alternative  strategy or  tactic  was inherently  in conflict

            with or not  undertaken due to the attorney's other interests

-9-

or  loyalties."   United States  v. Soldevila-Lopez,  17 F.3d
                              _____________     _______________

            480, 486 (1st Cir. 1994).  While the defendant "need not show

            that the alternative strategy  would have been successful" he

            must establish that  "it possessed 'sufficient  substance' to

            be a viable alternative."   United States v. Garcia-Rosa, 876
                                        _____________    ___________

            F.2d  209, 231 (1st Cir.  1989), cert. denied,  493 U.S. 1030
                                             _____ ______

            (1990)(quoting  Brien v. United States,  695 F.2d 10, 15 (1st
                            _____    _____________

            Cir. 1982)).   "[A] defendant  who shows that  a conflict  of

            interest actually affected the adequacy of his representation

            need not  demonstrate prejudice  in order to  obtain relief."

            Cuyler v. Sullivan, 446 U.S. at 349-50.
            ______    ________

                 Familia primarily  faults defense counsel for failing to

            use  evidence generated  by  the police  surveillance of  his

            apartment  before the  search that  lead to  his arrest.   He

            claims that  counsel could have  proven that  he and  Jackson

            were away in Puerto Rico when the informant purchased cocaine

            from  Bonifacio and his  girlfriend "Kris," and  that this in

            turn would have persuaded  the jury that he and  Jackson were

            innocent.      It is  not  clear  that this  was  a plausible

            alternative  strategy.  Even  if counsel had  pursued it, the

            evidence  could  have  shown  that Jackson  and  Familia  had

            allowed their home and their respective motor vehicles to  be

            used by others to sell cocaine.9  The jury  could easily have

____________________

            9.  The affidavit  which Detective Lennon used  to obtain the
            search  warrant for  Familia's  apartment indicates  that the
            informant  purchased  cocaine  from  the  suspects  on  three

                                         -10-

construed   this   evidence   as   further   supporting   the

            government's claim that Familia  and Jackson were involved in

            a conspiracy to possess and distribute cocaine,  particularly

            in light of  the other  evidence that was  adduced at  trial.

            Counsel's decision  to refrain from introducing this evidence

            thus  may well have been a  reasonable tactical decision, not

            necessarily  an  effort  to protect  Bonifacio  at  Familia's

            expense.   Familia also  offers no  sound reasons  to believe

            that Bonifacio would have  confessed to being the true  owner

            of the cocaine  had defense  counsel turned  him in.  Compare
                                                                  _______

            United  States v.  Garcia-Rosa,  876 F.2d  at 231  (rejecting
            ______________     ___________

            ineffective  assistance  claim based  on  failure  to call  a

            witness).10

____________________

            occasions,  two of which occurred  in November 1991.   On the
            first  occasion,  the date  of  which is  not  specified, the
            informant purchased cocaine from the Hispanic male suspect at
            Familia's apartment.   On the second  occasion, the informant
            purchased cocaine  from the same  man while  he was in  a car
            that was registered to  Jackson.  On the third  occasion, the
            informant purchased  cocaine from  the  black female  suspect
            while  she was  in the  van that  was registered  to Familia.
            Familia claims that this affidavit proves that he and Jackson
            do not  meet the  physical descriptions of  the suspects  who
            sold the cocaine.   But even assuming that is true,  the jury
            could  still have  concluded  that Familia  and Jackson  were
            involved in  the conspiracy  because they allowed  their home
            and vehicles to be used for the drug transactions.       

            10.  Familia posits that Bonifacio  would have confessed in a
            "deal"  with  the  government.   We  see  no  reason why  the
            government should be inclined to offer a "deal" to Bonifacio,
            nor  to assume that Bonifacio would have given testimony that
            would otherwise have cleared Familia and Jackson. 

                                         -11-

We  also  fail  to see  how  Familia  was prejudiced  by

            counsel's  other  alleged  shortcomings.    While the  record

            verifies Familia's claim that counsel failed to file a motion

            to suppress, a motion  to quash the indictment, and  a motion

            for an acquittal, we discern no basis upon which any of these

            motions  could have been allowed.   Counsel's failure to call

            Familia's  sister as a witness  at his trial  also appears to

            have  had  a  negligible  impact  on  the verdict  given  the

            weaknesses in  her testimony. See United States v. Jackson, 3
                                          ___ _____________    _______

            F.3d at 511.11

                 Nevertheless,  "[i]t is well established in this circuit

            that a claim of ineffective assistance of counsel will not be

            resolved on direct appeal  where the claim was not  raised in

            the  district court,  unless the  critical facts  are not  in

            dispute and a sufficiently  developed record exists."  United
                                                                   ______

            States v. Daniels, 3 F.3d 25, 26-27 (1st Cir. 1993).  This is
            ______    _______

            because "[a] claim of ineffective assistance of counsel which

            involves matters not fully developed in the trial record, but

            necessary for determination  of the  claim, is  not ripe  for

            decision on direct appeal."   United States v. Georgacarakos,
                                          _____________    _____________

            988 F.2d 1289, 1297 (1st  Cir. 1993)(declining to reach claim

            that  defense  counsel  rendered  ineffective  assistance  by

____________________

            11.  Familia's  claim  that  his  counsel   suborned  perjury
            obviously  makes a very serious charge.  However, he does not
            explain how this particular  act prejudiced his defense, thus
            it  is  not  clear  that  this  alleged  misconduct  rendered
            counsel's representation constitutionally ineffective. 

                                         -12-

failing  to raise  entrapment  defense where  record did  not

            enable reviewing  court to  determine whether counsel  made a

            tactical decision not to pursue the defense and likelihood of

            prejudice resulting from the failure to raise it).  Moreover,

            the trial judge is  in the best position to  evaluate defense

            counsel's  performance in  the  first instance.   See,  e.g.,
                                                              ___   ____

            United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991). 
            _____________    ______

                 Resolution  of  Familia's  ineffective assistance  claim

            requires a  factual  inquiry to  determine whether  Bonifacio

            actually paid defense counsel's fee, whether defense  counsel

            knew  Bonifacio to be a  drug dealer as  Familia alleges, and

            whether defense counsel failed  to pursue any viable defenses

            as  a  result of  his  alleged  relationship with  Bonifacio.

            Therefore, we decline to  resolve this ineffective assistance

            claim  on direct appeal.  Rather, we leave Familia to develop

            this claim in a 28 U.S.C.  2255 proceeding. 

                 Accordingly,  Familia's  conviction  and   sentence  are

            affirmed without  prejudice  to  Familia's  right  to  pursue
            ________

            relief  under  28  U.S.C.   2255.   Familia's  motion  for  a

            polygraph examination is denied.   
                                     ______

-13-