United States v. Manuel Castillo and Juan Fernandez

14 F.3d 802, 40 Fed. R. Serv. 242, 1994 U.S. App. LEXIS 1462

• Court: Court of Appeals for the Second Circuit
• Decided: January 28, 1994
• Docket: 7, Docket 92-1279
• Status: Published

Opinions

MAHONEY, Circuit Judge:

Defendant-appellant Manuel Castillo appeals from a judgement of conviction entered May 19, 1992 pursuant to a jury verdict in the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge.1 Castillo was found guilty of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).

Castillo contends that he was wrongfully deprived of the right to testify in his own defense, and that his trial counsel’s alleged refusal to permit Castillo to testify and failure to rectify the error by moving for a new trial pursuant to Fed.R.Crim.P. 33 constituted ineffective assistance of counsel. Castillo also argues that the trial judge (1) impermis-sibly admitted hearsay evidence against him, (2) incorrectly charged the jury concerning reasonable doubt, and (3) erroneously sentenced him as a supervisor.

We affirm.

Background

On July 10,1989, Castillo was arrested in a “buy and bust” operation conducted by the Manhattan North Tactical Narcotics Team of the New York City Police Department. He was originally convicted by a jury of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, distribution of cocaine within 1,000 feet of an elementary school in violation of 21 U.S.C. §§ 812, 841(a), 841(b)(1)(C), and 845a(a) [now § 860(a)] and 18 U.S.C. § 2, possession of cocaine with intent to distribute within 1,000 feet of an elementary school in violation of 21 U.S.C. §§ 812, 841(a), 841(b)(1)(C), and 845a(a) and 18 U.S.C. § 2, and the use and carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

On the initial appeal, this court reversed and remanded for resentencing on the first three counts because the sentences of Castillo and Fernandez had been improperly enhanced for assault of an official victim pursuant to USSG § 3A1.2(b), and for retrial on the firearms count because prejudicial expert testimony had been admitted regarding that charge. See United States v. Castillo, 924 F.2d 1227 (2d Cir.1991). A detailed narrative of the facts in this case is set forth in our prior opinion, id. at 1228-30, familiarity with which is assumed.

After a retrial, Castillo was again convicted of the firearms charge. Judge Kram sentenced Castillo on all four convictions to a total of eighty-four months imprisonment to be followed by six years supervised release, and a mandatory $200 special assessment. This sentence reflected a two level enhancement of the base offense level, pursuant to USSG § 3Bl.l(c), for acting in a supervisory role in the commission of the crimes.

This appeal followed.

Discussion

Castillo contends on appeal that: (1) he was denied his fundamental right to testify because his counsel’s failure to call Castillo as a witness resulted in an unknowing and involuntary waiver of Castillo’s right to testify; (2) he was denied his right to effective assistance of counsel because his attorney (a) did not call him to testify and (b) subsequently failed to make a motion for a new trial under Fed.R.Crim.P. 33 within the prescribed seven day period; (3) the district court impermissibly permitted hearsay testimony concerning the presence of a firearm, and failed to cure the asserted defect when it gave an inadequate limiting instruction; (4) the court erroneously departed from the traditional reasonable doubt charge, thereby im-permissibly shifting the burden of proof to Castillo; and (5) in sentencing Castillo, the court incorrectly enhanced his -base offense calculation by two levels pursuant to USSG § 3Bl.l(c) for acting in a supervisory capacity-

We consider these arguments in turn.

A Castillo’s Right to Testify.

Castillo contends that counsel’s failure to call him as a witness in his own defense resulted in an involuntary waiver of his right to testify because he was unaware that he had such a right. Castillo asserts, in an affidavit submitted in support of his belated motion for a new trial, see infra Part B of this Discussion, that although he did not testify at his original trial, he told his counsel during the second trial that he wanted to testify but his counsel refused to call him to the stand, and Castillo believed that he had no recourse at that juncture.

The record is clear, however, that Castillo had been advised at his first trial, in open court, regarding his right to testify. Accordingly, accepting as true, arguendo, the assertions in Castillo’s affidavit regarding his conversations with his counsel at the second trial,² he cannot prevail on this issue. See United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991) (per curiam) (record from first trial shows that defendant knew of his right to testify, thus “his failure to testify in his second trial cannot be the product of ignorance”); cf. Underwood v. Clark, 939 F.2d 473, 476 (7th Cir.1991) (“The defendant need not protest and the judge need not question him,' but in a subsequent collateral attack on the conviction the defendant must produce something more than a bare, unsubstantiated, thoroughly self-serving, and none too plausible statement that his lawyer (in violation of professional standards) forbade him to take the stand.”).

B. Castillo’s Motion for a New Trial.

After his retrial, Castillo retained new counsel and moved for a new trial pursuant to Fed.R.Crim.P. 33. Rule 33 requires such motions to be made within seven days after verdict except in the case of newly discovered evidence; Castillo’s motion was made outside the seven-day limit. Castillo argues that this limitation should not bar his motion for two reasons. First, he contends that his post-trial affidavit concerning counsel’s alleged failure to allow him to testify was “newly discovered evidence” within the meaning of Rule 33 that allowed his motion for a new trial to be made up to two years after entry of judgment.' Second, Castillo argues that his original counsel’s failure to file a motion for a new trial within the seven day limit denied Castillo the effective assistance of counsel.

We ruled in United States v. Dukes, 727 F.2d 34, 39 (2d Cir.1984), however, that ineffective assistance claims do not present new evidence within the meaning of Rule 33. Furthermore, it can hardly constitute ineffective assistance to fail to present a claim via a Rule 33 motion that, as we have just held, is without merit.

C. The Admission of Hearsay.

Shawn Johnson, an undercover policeman, made the cocaine purchase from Castillo and Fernandez that led to their arrest. Castillo argues that the court improperly admitted hearsay testimony concerning statements made by Johnson. Johnson testified without objection that immediately following the drug purchase, he reported to his commanding officer, Lieutenant Kraeji, that Fernandez had displayed a handgun while Castillo presented Johnson with cocaine that he was required to snort before being allowed to leave the apartment in which the drug purchase took place. See Castillo, 924 F.2d at 1229. The court also admitted the testimony of Kraeji and another officer concerning Johnson’s statements to Kraeji. Castillo contends on appeal, as he did before the district court, that the testimony of Kraeji and the other officer was inadmissible hearsay.

Fed.R.Evid. 801(d)(1)(B) provides that testimony is not hearsay if “[t]he declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive.” The prosecution concedes in its brief that Rule 801(d)(1)(B) is inapplicable because “if Johnson had a motive to fabricate the story concerning being forced to ingest cocaine, he presumably had that motive when he was debriefed by his superior.”

The prosecution argues, however, that the testimony was not offered for the truth of the matter asserted, and was not admitted as a prior consistent statement under Rule 801(d)(1)(B). Rather, the government contends, the testimony was offered to rehabilitate Johnson’s credibility, and the court did not abuse its discretion in accepting the testimony for this limited purpose. See United States v. Colon, 885 F.2d 27, 31 (2d Cir.1987), cert. denied, 485 U.S. 980, 108 S.Ct. 1279, 99 L.Ed.2d 490 (1988); United States v. Khan, 821 F.2d 90, 94 (2d Cir.1987); United States v. Brennan, 798 F.2d 581, 587-89 (2d Cir.1986); United States v. Pierre, 781 F.2d 329, 333-34 (2d Cir.1986); Jack B. Weinstein & Margaret A. Berger, 4 Weinstein’s Evidence ¶ 801(d)(l)(B)[01], at 801-198-99 & n. 15 (1992).

Throughout the trial, defense counsel sought to discredit Johnson by arguing that Johnson lied about the presence of a gun to justify his snorting cocaine during the drug purchase. Part of this strategy involved contrasting Johnson’s testimony that immediately after the buy he told Kracji that he “had been forced to ingest cocaine at gunpoint,” with his testimony that the gun was displayed but never removed from Fernandez’ waistband. The defense maintained that these statements were contradictory.

In Pierre, we held that:

When the prior [consistent] statement tends to east doubt on whether the prior inconsistent statement was made or on whether the impeaching statement is really inconsistent with the trial testimony, its use for rehabilitation purposes is within the sound discretion of the judge. Such use is also permissible when the consistent statement will amplify or clarify the allegedly inconsistent statement. It matters not whether such use is deemed a permissible type of rehabilitation or only an invocation of the principle of completeness, though not a precise use of Rule 106.

Id. at 333. And as we explained in Brennan, the standard for admitting hearsay under this exception is less onerous than the standard used to determine whether testimony qualifies as nonhearsay under Fed.R.Evid. 801(d)(1)(B). 798 F.2d at 587 (citing United States v. Rubin, 609 F.2d 51, 66-70 (2d Cir.1979) (Friendly, J., concurring), aff'd on grant of cert. limited to another issue, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981)).

In determining whether the proffered hearsay falls within the Pierre exception, the inquiry is “whether the particular consistent statement sought to be used has some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony.” Pierre, 781 F.2d at 331. Castillo argues that the hearsay admitted in the instant case was introduced solely to bolster Johnson’s trial testimony through mere repetition of Johnson’s statements concerning the presence of a gun in Fernandez’ waistband.

When Castillo sought to impeach Johnson’s credibility by characterizing the “gun in the waistband” statement as contradictory to the “at gunpoint” statement, it was within Judge Kram’s discretion to allow the prosecution to proffer hearsay testimony to aid the jury in determining whether the two statements meant the same thing — that Johnson’s use of the phrase “at gunpoint” was shorthand for the presence of a gun in Fernandez’ waistband. The hearsay was admitted for the limited purpose of clarifying the apparent contradiction brought out during cross-examination of Johnson. Under Pierre, this is a permissible rehabilitative use of hearsay. Id. at 331, 333.

Castillo also argues, and our dissenting colleague agrees, that the prosecutor abrogated the court’s limiting instructions by improperly arguing the truth of the hearsay testimony during his closing and rebuttal arguments. However, the prosecutor invoked the hearsay for the permissible purpose of rehabilitating Johnson’s credibility. Immediately following defense counsel’s objection to his closing argument, the prosecutor stated to the jury that he was not arguing that; the substance of the hearsay testimony be accepted as true, explaining that “... the fact that [Johnson] makes the statement at that point, that is something that you can consider as the judge will instruct you.”

The dissent quotes passages from the prosecution’s rebuttal argument which essentially contend, in response to the defense’s wholesale assault on Johnson’s credibility (as well as Kracji’s), that Johnson was consistent in his description of the events in the apartment, as Pierre permits. We do not regard this argument as crossing the line, especially in light of the court’s subsequent instruction (echoing a prior instruction in response to a defense request) that: “I instruct you with all the authority at my command that you must consider [Johnson’s statements to Kracji] only for the limited purpose for which they were received and for no other purpose.”

D. The Reasonable Doubt Instruction.

Castillo also questions the district court’s reasonable doubt instruction, contending that it shifted the burden of proof to the defense. In her charge to the jury, Judge Kram stated that reasonable doubt was present if a juror “can candidly and honestly say that [he is] not satisfied of the guilt of any of the defendants, that [he does] not have an abiding conviction of any defendant’s guilt.” As we held in United States v. Torres, 901 F.2d 205, 242-43 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990), this language does not shift the burden of proof, especially when we consider the jury instruction as a whole, which in this case contained numerous declarations that the burden of proof rested with the prosecution.

During oral argument and in a post-argument letter, Castillo cited Sullivan v. Louisiana, — U.S. -, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), for the proposition that the “abiding conviction” language used by Judge Kram is improper. However, Sullivan involved a very different instruction from the one at issue here, see id. at --, 113 S.Ct. at 2080 (charge essentially identical to one held unconstitutional in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), overruled on another ground, Estelle v. McGuire, — U.S. -,- n. 4 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991)), and is accordingly of no assistance to Castillo. The Cage instruction required the jury to have “an actual substantial doubt” giving rise to “a grave uncertainty” regarding guilt before it could find reasonable doubt necessary to acquit the defendant. Cage, 498 U.S. at 40, 111 S.Ct. at 329. Such an instruction lowered the prosecution’s burden of proof below that required by the Due Process Clause. Id. at 41, 111 S.Ct. at 329. By contrast, the instruction in this case maintained the prosecution’s burden of proof at a level that respects Castillo’s right to due process.

E. The Sentencing Enhancement.

Finally, Castillo claims that there was insufficient evidence for the court to enhance his sentence under USSG § 3Bl.l(c) for acting in a supervisory capacity during the commission of the crimes of which he was convicted. We review enhancement pursuant to this provision for clear error. See United States v. Beaulieau, 959 F.2d 375, 380 (2d Cir.1992). The district court was not clearly erroneous in finding by a preponderance of the evidence that Castillo played an organizing role in the commission of the offenses of which he was convicted. Castillo weighed and packaged the cocaine sold to officer Johnson, and at the time of his arrest possessed $80 of the $90 of prerecorded money used by the officer to purchase the cocaine' from Castillo and Fernandez.

Conclusion

The judgment of the district court is affirmed.

1 . Defendant-appellant Juan Fernandez- withdrew, but later reinstated, his appeal, which as a result will be heard and decided separately from Castillo’s.

2 . Castillo’s counsel at the second trial reported to the court that he had successfully persuaded Castillo not to testify.