United States v. Morales

Opinion

USCA1 Opinion

July 12, 1996

                                [NOT FOR PUBLICATION] 



                            United States Court of Appeals

                                For the First Circuit

                                 ____________________



        No. 95-1616



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                               JACINTO ORLANDO MORALES,



                                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, Chief Judge,
                                          ___________



                           Stahl and Lynch, Circuit Judges.
                                            ______________



                                 ____________________



            George J. West for appellant.
            ______________



            Margaret E.  Curran, Assistant United  States Attorney, with  whom
            ___________________

        Zechariah  Chafee,   Assistant  United  States  Attorney  and  Sheldon
        _________________                                              _______

        Whitehouse, United  States  Attorney, were  on  brief for  the  United
        __________

        States.



                                 ____________________


____________________


LYNCH, Circuit Judge.  Jacinto Orlando Morales, who
                      LYNCH, Circuit Judge.
                             _____________



            at  age forty-eight  began his drug-related  criminal career,



was tried and convicted, at age fifty-six, of possession with



            intent to  distribute both  cocaine base and  cocaine and  of



            being a  felon in possession of  a firearm.  He  appeals from



            his convictions, arguing that they should be reversed due  to



            ineffective assistance  of counsel,  that the district  court



            erred in  its  instructions  to  the jury  and  in  admitting



            certain  evidence,  that  the evidence  was  insufficient  to



            convict, that the  prosecutor impermissibly  vouched for  the



            government's witnesses  and that the statutes  under which he



            was  convicted  are unconstitutional  as  exceeding Congress'



            lawful  power under  the Commerce  Clause.   In  addition, he



            appeals from his sentence, which will keep him in prison past



            age  seventy-one,  on the  grounds  that  the district  court



            should have departed  downward in  light of his  age and  the



            small amounts of cocaine he says were involved.  We affirm.



                                          I



                                      Background
                                      __________



                      Local police work  led to this  federal conviction.



            Two  experienced  members  of the  Providence,  Rhode Island,



            Police Department investigated stories of drug trafficking by



            Morales.  They obtained a search warrant for his apartment in



            a three-decker tenement and drove to the residence.  They saw



            Morales  leaving his building.  They stopped him, told him of



            the warrant, informed  him of  his rights, and  asked him  to



            return to  the apartment with them.   Morales did so  and let


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the two detectives into his small  apartment.  The detectives



            found two bags, containing a total of over twenty-eight grams



            of cocaine, hidden in a pocket hollowed out of the insulation



            in the refrigerator door.  They also found twenty-three vials



            of    crack   cocaine   (cocaine    base),   alongside   drug



            paraphernalia, in  cabinets above  the kitchen sink.   Hidden



            between  pairs of shoes on  a curtained shelf  in the bedroom



            they found  a  fully operable  and loaded  Raven .25  caliber



            semi-automatic handgun.



                      The defense theory was  that the police planted the



            evidence.   The theory relied  on the testimony  of a defense



            witness   who    lived   in   Morales'   building,   and   on



            inconsistencies in the detectives'  testimony about the order



            in which the  evidence was discovered and  about the handling



            of the evidence.  The jury convicted Morales on three of four



            counts:  possession with intent  to distribute cocaine (count



            one) and  possession with  intent to distribute  cocaine base



            (count  two), both in violation of 21 U.S.C.   841(a)(1); and



            possession of a firearm  by a convicted felon  (count three),



            in violation of 18 U.S.C.   922(g)(1).  Morales was acquitted



            on  the fourth count: use of a firearm during and in relation



            to  a drug  trafficking crime,  in violation  of 18  U.S.C.  



            924(c)(1).



                      At   sentencing,  Morales'   counsel  appropriately



            conceded  that Morales  qualified  as a  career offender  for


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purposes  of  U.S.S.G.   4B1.1,  but  argued  that the  court



            should  ignore that status  in light of  the relatively small



            quantities  of drugs  involved.   Morales requested  that the



            court  depart downward for two reasons.  He asserted that the



            career offender enhancement overstated his  criminal history.



            He  also said  the  government's  recommended sentence  would



            effectively constitute a  life sentence given  his age.   The



            court found there was, on the facts of this case, no basis to



            veer from  the career offender guideline and refused to grant



            a downward departure.   The  court sentenced  Morales to  210



            months  imprisonment  consecutive  to  the   state  sentences



            Morales was then serving, with other conditions not pertinent



            here.



                                          II



                                     Convictions
                                     ___________



                      Morales'   attacks  on  his  convictions  tread  on



            familiar ground and do not warrant extensive discussion.



            Ineffective Assistance of Counsel
            _________________________________



                      Morales  did not present his ineffective assistance



            claim to the district court.  "With a regularity bordering on



            the  monotonous," this  court  has  held "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


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                                          5



court."   United States v. Mala,  7 F.3d 1058, 1063 (1st Cir.
                      _____________    ____



            1993), cert. denied, 114 S. Ct. 1839 (1994).
                   _____ ______



                      This case does not fall within the exception to the



            rule.   Only "where the  critical facts are  not genuinely in



            dispute  and the  record is  sufficiently developed  to allow



            reasoned   consideration"  will   this  court   entertain  an



            ineffective  assistance  claim  raised  initially  on  direct



            review.  United  States v.  Natanel, 938 F.2d  302, 309  (1st
                     ______________     _______



            Cir.  1991), cert. denied, 502 U.S. 1079 (1992).  The alleged
                         _____ ______



            ineffective assistance of counsel arose, Morales argues, from



            the failure of his trial counsel to file a motion to suppress



            the  evidence  resulting from  the  search  of his  apartment



            undertaken pursuant  to a  facially  valid warrant.   By  its



            nature, this claim will  require the presentation of evidence



            that it would have had some  actual basis in fact, as well as



            proof of prejudice.  See Kimmelman v. Morrison, 477 U.S. 365,
                                 ___ _________    ________



            375 (1986).   Thus, Morales' ineffective  assistance claim is



            unsuited for consideration initially on this appeal.



            Limiting Instruction
            ____________________



                      Morales argues  that the  trial court erred  in not



            sua sponte  giving the jury a  limiting instruction directing
            ___ ______



            it to consider  the parties' stipulation  that Morales was  a



            felon only for purposes of establishing a required element in
                  ____



            the  felon-in-possession  of  a  firearm  charge.    But  the



            defendant  cannot have his cake and eat  it too.  As a result


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of the stipulation, the government could  not put in evidence



            of   the  number   and  nature   of  Morales'   prior  felony



            convictions,   thereby   protecting  Morales   against  undue



            prejudice from such evidence.  The stipulation was proper and



            in accord with our  decision in United States v.  Tavares, 21
                                            _____________     _______



            F.3d 1, 4-5 (1st Cir. 1994) (en banc), where we noted that in



            most,  but not all cases,  such evidence has little relevance



            to the felon-in-possession charge and usually presents a risk



            of unfair prejudice.



                      Morales now asks  for a blanket  rule that a  trial



            court must sua  sponte give the type of  limiting instruction
                       ___  ______



            he urges in this appeal, a  position he is forced into by his



            failure  to ask  for  such an  instruction  at trial.    That



            failure is  fatal.  See United States v. De La Cruz, 902 F.2d
                                ___ _____________    __________



            121, 124 (1st Cir. 1990) (holding that as a general  rule the



            failure  of the trial court  to give a cautionary instruction



            sua sponte is  not reversible error).   Even so, the cure  he
            ___ ______



            seeks may be worse than the hypothesized disease.  Whether to



            seek a limiting  instruction is a  strategic choice by  trial



            counsel.   "Whether an  instruction will 'cure'  a problem or



            exacerbate it by calling more  attention to it than warranted



            is  within the ken of counsel and part of litigation strategy



            and judgment.  The obligation to suggest [an instruction], if



            any, rested on defense counsel."  United States v. Cartagena-
                                              _____________    __________



            Carrasquillo,  70 F.3d  706, 713  (1st Cir.  1995).   Despite
            ____________


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Morales'  argument in  this case,  defendants in  other cases



            might  well think  that  the limiting  instruction sought  by



            Morales here  would unnecessarily highlight  their status  as



            felons.  Morales' post-conviction  assertion of error in this



            case is no warrant for  constraining the strategic choices of



            counsel in other cases.  There was no error.



            Vials of Crack Cocaine
            ______________________



                      Morales says the district court  erred in admitting



            into evidence twenty-three vials  of crack cocaine.  He  says



            they  were inadmissible  because  the transmittal  sheet that



            accompanied the  vials to  the laboratory for  testing stated



            there were  twenty vials,  and because  the chemist  tested a



            sample, only two, and not all twenty-three of the vials.



                      On  the  first  argument, chain-of-custody  attacks



            usually  go  to  the  weight  of  the  evidence  and  not  to



            admissibility; our review  is for abuse  of discretion.   See
                                                                      ___



            Cartagena-Carrasquillo,  70  F.3d  at  715.    The government
            ______________________



            explained  that  the  "20" on  the  transmittal  sheet  was a



            typographical  error and  produced  testimony  that  in  fact



            twenty-three vials were seized  from Morales' apartment, kept



            in  custody,  sent to  the lab,  and  that that  lab received



            twenty-three vials.   There  was  no abuse  of discretion  in



            admitting the vials.



                      On the second point, Morales' argument assumes that



            the  government  had  to  show that  all  twenty-three  vials


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                                          8



contained crack.  To convict Morales,  however, the jury need



            only have  found that  defendant possessed some  amount of  a



            controlled  substance.  See 21 U.S.C.   841; United States v.
                                    ___                  _____________



            Barnes, 890 F.2d 545, 551-52 & n.6 (1st Cir. 1989),  494 U.S.
            ______



            1019 (1990).   While undoubtedly relevant  to the sentencing,



            the  precise quantity  and  nature of  the  substance, be  it



            cocaine or cocaine base, was not an element of the crime  for



            the  jury to decide.   That twenty-three  vials were admitted



            but only two vials  were tested thus could not  have amounted



            to reversible error.



            Firearm
            _______



                      Morales challenges  the admission of the handgun on



            authentication  grounds, pointing  to inconsistencies  in the



            testimony  of the  two  detectives as  to  the order  of  the



            discovery  of the evidence and the absence of an evidence tag



            on the handgun.   Our review on this evidentiary  question is



            for abuse of  discretion.   See United States  v. Abreu,  952
                                        ___ _____________     _____



            F.2d  1458,  1467  (1st Cir.),  cert.  denied,  503  U.S. 994
                                            _____  ______



            (1992).  The trial judge admitted the gun into evidence after



            hearing testimony  that it  was the same  gun the  detectives



            discovered, the gun had the same serial number, and it was in



            the  same condition  as when discovered.   The  serial number



            evidence alone arguably provided sufficient authentication in



            light of  the legal requirement imposed  on gun manufacturers



            to  place an  indelible,  non-duplicating  individual  serial


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number on all firearms.  See 27 C.F.R.   179.102; see also 26
                                     ___                      ___ ____



            U.S.C.   5842(a).  There was no abuse of discretion.



            Sufficiency of the Evidence
            ___________________________



                      In  reviewing the  sufficiency of the  evidence, we



            look  at  the evidence  and  reasonable  inferences from  the



            evidence in  the light most  favorable to the  prosecution to



            determine if it  would allow  a rational jury  to find  guilt



            beyond  a reasonable doubt.   See  United States  v. Luciano-
                                          ___  _____________     ________



            Mosquera, 63  F.3d 1142, 1149  (1st Cir. 1995),  petition for
            ________                                         ________ ___



            cert. filed, 64 U.S.L.W.  3765 (U.S. Apr. 26, 1996)  (No. 95-
            _____ _____



            1775).  Here, there was no  dispute that Morales lived in the



            apartment and was its sole occupant.  That is where the drugs



            were found, some of which were hidden, with some effort, in a



            refrigerator door.   The gun  was also hidden,  out of  plain



            view.   The jury could  reasonably infer that  Morales was in



            knowing  possession of both the  gun and the  drugs, and need



            not have  believed the  somewhat incoherent testimony  of the



            building  occupant  proffered by  the  defense.   See  United
                                                              ___  ______



            States  v.  Calderon,   77  F.3d  6,   10  (1st  Cir.   1996)
            ______      ________



            ("Credibility  determinations are uniquely  within the jury's



            province,  and we defer to the jury's verdict if the evidence



            can  support  varying   inferences."  (quotation  marks   and



            citation omitted)).



            Prosecutor's Closing
            ____________________


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Morales argues that the prosecution, in its closing



            rebuttal,  improperly  vouched  for  the  credibility of  its



            police  witnesses.   In  particular,  Morales  points to  the



            prosecutor's final argument:



                      They're not,  I submit to you, members of

                      the  jury, they're not  going to  run the

                      risk   of    perjuring   themselves   and

                      jeopardizing  their  careers  over  this.

                      They're doing  what they do.   They do it

                      day in  and day  out.   They go  out with

                      these  search  warrants and  make arrests

                      and you make the  decision.  This is what

                      they found.    I submit  to  you  they're

                      credible officers  who testified credibly

                      about  the one  day  in their  lives that

                      they were working  as police officers and

                      they told you what they found.  I'm going

                      to ask you to find  the Defendant guilty.

                      Thank you.


As  Morales  made  no  contemporaneous  objection  to   these



            statements,  review is for plain error.  See United States v.
                                                     ___ _____________



            Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir. 1996).
            ___________



                      Morales'  theory of  the case  was that  the police



            planted the firearm  and illegal drugs  in his apartment  and



            subsequently lied  at trial in testifying  that they belonged



            to  Morales.   The credibility  of the  police was  at issue.



            "Improper vouching  occurs where the  prosecution places  the



            `prestige  of  the  government  behind a  witness  by  making



            personal assurances  about the  witness' credibility.'"   Id.
                                                                      ___



            (quoting  United States v. Neal, 36 F.3d 1190, 1207 (1st Cir.
                      _____________    ____



            1994)).   The prosecution,  in responding to  the defendant's



            theory by  pointing out that  the police officers  had little


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                                          11



incentive  to  lie,   was  arguably   not  "making   personal



            assurances."    Cf.  id.  (prosecution's  argument  that  its
                            ___  ___



            witnesses were speaking the truth  because they had reason to



            do  so, made  in  response to  an  attack on  the  witnesses'



            credibility, was  not improper  vouching).  Nevertheless,  as



            the government appropriately conceded at oral argument, there



            were statements  in the prosecution's closing,  such as "[h]e



            testified  truthfully,"  of  a   type  that  this  court  has



            disapproved in  the past as  improper vouching.1   See United
                                                               ___ ______



            States  v. Wihbey, 75 F.3d  761, 771-73 (1st  Cir. 1996); see
            ______     ______                                         ___



            also United States v. Sullivan, __ F.3d __, __, Nos. 95-1719,
            ____ _____________    ________



            95-1760, slip op. at 18 (1st  Cir. 1996) (there can be a fine



            line  between proper  arguments  in  response to  credibility



            attacks on government witnesses and improper vouching).



                      In  this case,  however, the  prosecutor's comments



            "did not impact the  fairness, integrity or public reputation



            of  the proceedings  and so  should not  be noticed  as plain



            error."  Sullivan, __ F.3d at __, slip op. at 19.  Therefore,
                     ________



            even assuming that the  prosecutor's comments were  improper,



            there was no reversible error.   Cf. Wihbey, 75 F.3d at  771-
                                             ___ ______



            72. 



            Constitutionality of the Statutes
            _________________________________


____________________



            1.  The  United  States  represented at  oral  argument  that

            prosecutors  in that  office  were undergoing  "training"  to

            ensure that such statements were not made in the future.



                                         -12-
                                          12



Morales  challenges  both  the  felon-in-possession



            statute, 18  U.S.C.    922(g)(1), and  the  drug  trafficking



            statute, 21 U.S.C.   841(a)(1), as being unconstitutional  in



            light of the analysis employed in United States v. Lopez, 115
                                              _____________    _____



            S. Ct. 1624 (1995).  



                      The challenge to the constitutional validity of the



            felon-in-possession  statute,  18   U.S.C.    922(g)(1),   is



            foreclosed by United States v. Abernathy, __ F.3d __, __, No.
                          _____________    _________



            95-1720, slip op. at 5-6 (1st Cir. 1996) and United States v.
                                                         _____________



            Bennett, 75 F.3d 40, 49 (1st Cir. 1996).
            _______



                      We decline  to entertain the challenge  to the drug



            statute,  21 U.S.C.    841(a)(1),  which is  made in  summary



            fashion,  is  wholly   lacking  in  developed   argumentation



            focusing on  that particular statute,  and is raised  for the



            first  time on appeal.   See Argencourt v.  United States, 78
                                     ___ __________     _____________



            F.3d 14, 16 n.1 (1st Cir. 1996) (arguments mentioned, but not



            developed, are deemed waived);  cf. United States v. Carvell,
                                            ___ _____________    _______



            74 F.3d  8, 14 (1st  Cir. 1996).   There was no  plain error.



            United States v. Olano, 507 U.S. 725, 736 (1993).
            _____________    _____



                                         III



                                       Sentence
                                       ________



                      Morales  argues that the district court erroneously



            ruled  that it  was  powerless to  depart  downward from  the



            applicable career offender range.  To the extent the district



            court's  decision rested  on its  belief that  it  lacked the


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                                          13



power to depart, we  have jurisdiction over the appeal.   See
                                                                      ___



            United States v. Lombard,  72 F.3d 170, 184 (1st  Cir. 1995).
            _____________    _______



            However, we lack jurisdiction if the district court was aware



            of its  authority to  depart,  but declined  to exercise  its



            discretion to do  so.  See United States v. Morrison, 46 F.3d
                                   ___ _____________    ________



            127, 130 (1st  Cir. 1995).   To determine  whether the  court



            misapprehended  its  authority  to depart  or  exercised  its



            discretion not to depart, we  look to the sentencing  judge's



            remarks within the context of the record.  See id. at 130-31.
                                                       ___ ___



            The record reveals that  the district court was aware  of its



            power  to grant  Morales a  downward  departure, but  did not



            think departure was warranted in the factual circumstances of



            this case.



                      At  sentencing,  Morales  argued  for   a  downward



            departure  on a number of grounds.  Primarily, he argued that



            because  his prior drug convictions  were minor, his case was



            similar to that of  United States v. Reyes, 8 F.3d  1379 (9th
                                _____________    _____



            Cir.  1993).  In  Reyes, as a  result of applying  the career
                              _____



            offender provision, U.S.S.G.    4B1.1, to a defendant's prior



            minor  drug trafficking  offenses, the  applicable sentencing



            range was increased  from a  33-41 month range  to a  210-262



            month  range.   Id.  at 1381-82.    The district  court there
                            ___



            decided that although the career offender  guideline applied,



            it was  going to depart downward to a sentence within the 33-



            41  month  range.   See  id.  at 1383.    The  basis for  the
                                ___  ___


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                                          14



departure  was  that   the  Guidelines'   treatment  of   the



            defendant's  previous  criminal  history overrepresented  its



            true seriousness. See U.S.S.G.    4A1.3, 5K2.0; Reyes, 8 F.3d
                              ___                           _____



            at 1383-84.



                      The  sentencing  transcript  here  shows  that  the



            district court  carefully considered Morales'  argument based



            on Reyes.  In fact, the court recessed specifically to review
               _____



            Reyes  and the  other  cases cited  by  Morales.   After  the
            _____



            recess, the court explained that it did not consider Morales'



            previous  drug  convictions  minor,  that  Morales'  criminal



            history suggested a "lack of regard for the law or the people



            . . . being poisoned by this stuff," and that the enhancement



            required by the  career offender guideline  (from a range  of



            110-137  months   to  210-262   months)  did  not   create  a



            disproportionate result.  The court concluded that it did not



            think  that the defendant's  Guidelines sentencing  range was



            "subject  to departure in these circumstances, and . . . that
                                   ______________________



            there[]  [was] no basis for departure under the facts of this
                                                  _______________________



            case."  (emphasis  added).     The  district  court   clearly
            ____



            recognized  its authority to  depart, but did  not think that



            the  facts  or circumstances  of  this  case merited  such  a


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                                          15



departure.2    Therefore, we  lack  jurisdiction  to consider



            Morales' sentencing appeal.



                      Morales argues  in passing that  the district court



            erroneously  thought that  it could  never grant  a departure



            based on age.  Morales misunderstands the district court.  In



            response to Morales' argument at sentencing that he should be



            granted  leniency  because  he  was  sixty  at  the  time  of



            sentencing  and  would  be  seventy-one  when  released,  the



            district  court  explained,  quoting  from  United States  v.
                                                        _____________



            Norflett, 922 F.2d  50, 53  (1st Cir. 1990),  that under  the
            ________



            Guidelines  it could not depart merely because it thought the



            sentence was excessive.  Norflett explicitly says that age is
                                     ________



            a disfavored reason for departure, and can be considered only



            in circumstances  of "substantial  atypicality."  See  id. at
                                                              ___  ___



            54.   The  Norflett court held  that the  mere fact  that the
                       ________



            defendant was thirty-four when  sentenced and would be fifty-



            four when released, did not constitute unusual circumstances.



            We have no reason to believe that the district court in  this



            case   misapprehended  its   authority  to   depart   on  the



            (disfavored) ground of age.


Affirmed.           
                      ________



                                
            ____________________



            2.  Since  the sentencing  in this  case, we  have recognized

            that a district  court has the  authority to depart  downward

            where  a  career offender  criminal  history  category of  VI

            overrepresents a defendant's criminal history.  United States
                                                            _____________

            v. Lindia, 82 F.3d 1154, 1164-65 (1st Cir. 1996).
               ______



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