[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 95-2277
UNITED STATES,
Appellee,
v.
LUIS A. RODRIGUEZ-CARMONA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Boudin and Lynch, Circuit Judges.
Luis A. Rodriguez-Carmona on brief pro se.
Guillermo Gil, United States Attorney, Warren Vazquez, Assistant
United States Attorney, and Jose A. Quiles Espinosa, Senior Litigation
Counsel, on brief for appellee.
March 26, 1997
Per Curiam. After a jury trial, appellant Luis
Rodriguez-Carmona was convicted of aiding and abetting the
importation and possession of heroin with intent to
distribute in violation of 21 U.S.C. 841(a), 952, and 18
U.S.C. 2. He was sentenced to sixty-three months'
imprisonment and five years of supervised release.
Proceeding pro se on appeal, appellant seeks to overturn his
conviction due to alleged prosecutorial misconduct and
ineffective assistance of defense counsel. We affirm the
conviction, but we decline to reach appellant's ineffective
assistance of counsel claims.
I.
Because appellant does not challenge the sufficiency of
the evidence, we provide a neutral summary of the evidence to
enable us to determine whether the events about which
appellant complains on appeal were harmless or prejudicial.
See, e.g., United States v. Morla-Trinidad, 100 F.3d 1, 2
(1st Cir. 1996); United States v. Hardy, 37 F.3d 753, 755
(1st Cir. 1994).
Acting in response to an intelligence alert, two U.S.
Customs inspectors identified appellant and Edward Iba ez
Cosme (Iba ez), when they arrived at Puerto Rico's Luis Mu oz
Mar n International Airport on a flight from Caracas,
Venezuela. Upon inquiring where he should go to clear
customs, Iba ez was taken for a secondary inspection. During
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the course of this inspection a customs inspector performed a
pat-down search and identified something concealed in
Iba ez's crotch. When instructed to lower his pants, Iba ez
stated, "me mangaste, you caught me" and revealed a package
containing 36 pellets of heroin similar to those often
swallowed by drug smugglers. Iba ez was immediately arrested
and given the Miranda warnings. He told the customs
inspectors that he was travelling alone and that the drugs
belonged to him.
After the heroin had been found on Iba ez, a senior
customs inspector took appellant to a secondary inspection
area for questioning and examination of his luggage. Seven
Western Union money transfer receipts bearing appellant's and
Iba ez's names were found in appellant's bag, five of which
had been signed by Iba ez. Although appellant had initially
stated that he was travelling alone, when questioned further
he said that Iba ez had given him the receipts. Appellant
was also placed under arrest and taken with Iba ez to a local
hospital for x-rays, which proved negative.1 1
Appellant and Iba ez were both indicted on drug
trafficking charges. Shortly before trial, Iba ez entered
into a plea agreement. He thereafter became the government's
star witness at appellant's trial. After acknowledging the
1At the hospital, Iba ez encountered a male acquaintance 1 and told him that he had been caught drug trafficking.
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plea agreement, which was admitted into evidence, and the
fact that he could be prosecuted for perjury if he failed to
tell the truth, Iba ez testified at some length about his
past criminal exploits - without objection from defense
counsel.2 2
Iba ez then described two smuggling ventures that he
claimed to have undertaken on appellant's behalf. In the
first such venture, Iba ez and a friend went to Venezuela to
procure a heroin sample for appellant. As the return flight
to Puerto Rico was delayed, appellant wired Iba ez money so
that he and his friend could fly to Puerto Rico first class.
Iba ez identified one of the Western Union receipts that had
been found in appellant's luggage as the receipt for the
funds that had been used for the return plane tickets on that
occasion. He claimed that he delivered 10 pellets of heroin
to appellant as a result of this trip. Iba ez testified that
the heroin that he delivered to appellant was supplied by a
2The prosecutor first elicited Iba ez's criminal record, 2 which included convictions for theft of a toolbox, auto theft, and contempt. In an effort to minimize the risk of impeachment on cross-examination, the prosecutor next required Iba ez to describe his criminal activities that had not resulted in convictions. Iba ez then testified that he had transported drugs to Spain via Puerto Rico the preceding November and that he had participated in an elaborate escapade which included a hold-up of a gas station, an ensuing shoot-out, hit-and-run, carjacking, and automobile crash, after which Iba ez and his cohorts eluded the police by escaping through a waterfall. While the trial judge twice convened bench conferences to question the relevance of this testimony, defense counsel raised no objection to it.
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Colombian, Cesar Augusto Buendia, and that the remaining
Western Union receipts found in appellant's luggage reflected
drug payments that appellant had made to Buendia.3 3
With regard to the second smuggling venture, which
resulted in the arrests of Iba ez and appellant, Iba ez
testified that he recruited his cousin Jose Iba ez (Jose) to
assist in carrying the drugs but that Jose did not have a
passport. As a result all three men - appellant, Iba ez, and
Jose - travelled to Connecticut to secure passports so that
they could travel to Venezuela and return carrying drugs to
Puerto Rico.4 Because Iba ez informed the passport agency 4
that the three were scheduled to travel to Venezuela very
soon, the agency issued the men passports on the very day
that they applied for them. The three then returned to
Puerto Rico and left for Venezuela on March 22, 1995.
Iba ez related that after staying in Venezuela briefly
the three men travelled to Colombia and checked into a hotel
in accordance with the instructions of their supplier,
Buendia. Eventually, Buendia caused the heroin to be
delivered to appellant's hotel room, where Iba ez washed the
pellets and divided them into two packages. According to
3Iba ez described how appellant sent him to Western Union 3 on multiple occasions to wire money to Buendia.
4Iba ez testified that it was necessary to travel to 4 Connecticut, where Jose had been born, to secure Jose's birth certificate for his passport application.
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Iba ez, appellant was present when the heroin was delivered
and while he was packaging it. Iba ez testified that
appellant had business at his drug point in Puerto Rico, so
he and Iba ez decided to return there with the heroin. Jose
was left behind to return later with two pairs of tennis
shoes that were being loaded with heroin.
Iba ez testified that, initially, Iba ez body-carried
one package with 20 pellets of heroin, while appellant
carried a similar package with 16 pellets. Appellant became
scared after their luggage was searched at the Venezuelan
border, so he instructed Iba ez to carry all the heroin
thereafter. The two flew to Caracas and from there to Puerto
Rico without incident. Upon arriving in Puerto Rico,
appellant instructed Iba ez to go up front to be checked
first. Iba ez testified that although he initially told the
authorities that the drugs were his, in fact they belonged to
appellant.
Iba ez's testimony was corroborated by the passports
and plane tickets of appellant and Iba ez, which were
admitted into evidence, and the testimony of Richard
Herdmann, a senior customs supervisor. Herdmann testified
that after Iba ez had been found with the heroin, he noticed
that the defendants' passports and plane tickets bore
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sequential numbers interrupted by one digit.5 As Herdmann 5
was responsible for determining whether any other persons
were involved in drug trafficking, he made inquiries to
determine who had been issued the passport and plane ticket
with the intervening numbers. Herdmann testified that these
items had been issued to Jose, but that he had not boarded
the plane in Venezuela.6 6
Appellant did not testify at his trial. Although
defense counsel had announced that Jose would be testifying
in appellant's defense, the record indicates that Jose was
arrested at the outset of appellant's trial and charged with
the same crime as appellant (i.e., aiding and abetting the
importation of heroin), and conspiring to import heroin. Jose
was never called as a witness.7 Defense counsel relied on 7
excerpts from the testimony of the customs officers and
Iba ez to argue that Iba ez acted alone in the smuggling
endeavor and that appellant was a legitimate businessman
5Iba ez's passport bore the number 140533715 while 5 appellant's passport bore number 140533717. Both passports had been issued in Connecticut on March 3, 1995. Similarly, Iba ez's plane ticket for his return flight to Puerto Rico bore a number ending in 10, while appellant's plane ticket ended in 12.
6Herdmann also ascertained that Jose's passport had been 6 issued at the same time and place as those of appellant and Iba ez.
7It is undisputed that Jose was tried after appellant and 7 acquitted on all charges. See United States v. Jose Iba ez-
Maldonado, #95-CR-195(SEC).
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unaware of the drug venture. The jury rejected this defense.
Remaining facts will be discussed in the context of the
arguments that appellant raises.
II.
On appeal, appellant asserts that the prosecutor pursued
a "carefully tailored" strategy that was designed to
impermissibly bolster the credibility of the government's
chief witness (Iba ez), while simultaneously depriving
appellant of his own star witness (Jose). Consistent with
this general theme, appellant contends that his conviction
should be reversed on three grounds. First, appellant argues
that certain remarks that the prosecutor made in his rebuttal
argument improperly vouched for the credibility of Iba ez and
expressed the prosecutor's personal opinion about how drug
traffickers work. Second, appellant contends that the
prosecutor violated his Sixth Amendment right to compulsory
process by arresting Jose solely to cause him to invoke his
privilege against self-incrimination, thereby depriving
appellant of his testimony. Finally, appellant contends that
he was deprived of the effective assistance of counsel
because his trial counsel failed to move to suppress the
evidence seized by the customs officers and further failed to
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protect appellant's right to compulsory process by taking
steps to ameliorate the government's arrest of Jose.
We first examine the prosecutor's conduct, mindful that
because defense counsel did not object to it below, we review
only for plain error. See, e.g., United States v. Sullivan,
85 F.3d 743, 751 (1st Cir. 1996). This means that we must
view the prosecutor's conduct in the context of the entire
trial and that we may reverse only if we conclude that, "'a
miscarriage of justice would otherwise result,'" or that a
plain error "'seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings.'" United States v.
Olano, 507 U.S. 725, 736 (1993)(citations omitted); United
States v. Josleyn, 99 F.3d 1182, 1197 (1st Cir. 1996).
Appellant has failed to meet this "hard-to-satisfy standard."
United States v. Taylor, 54 F.3d 967, 977 (1st Cir. 1995).
III.
The Prosecutor's Rebuttal
In cross-examining Iba ez, defense counsel emphasized
the fact that Iba ez had first told the authorities that the
drugs belonged to him alone. Defense counsel's closing
argument implied that Iba ez had changed his story to
incriminate appellant only after he executed the government's
plea agreement.8 Appellant now contends that the prosecutor 8
8Referring to Iba ez, defense counsel argued that, "it was 8 not until the government made a plea agreement with him [that] he reverted (sic) his testimony."
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engaged in improper witness-vouching when he attempted to
rebut defense counsel's insinuation by referring to the plea
agreement as follows:
.... that piece of evidence ... will reflect that definitely Mr. Iba ez was fully debriefed and examined prior to the signing of the plea agreement. So the
government already heard, knew,
investigated, and corroborated the
information given by Iba ez prior to the
signing of the plea agreement and prior
to bringing him here to testify [to] the facts to you. Simply it did not become a magic act as presented by defendant in saying that after the plea agreement was made then he changed his -- his version. No.
These things are investigated thoroughly
first before even thinking of signing a
plea agreement, corroborated by the
agency and also investigated. So read
the totality of the plea agreement, and you will see the terms of it. Just don't take a word of mouth explanation. Just read the evidence. It's there in evidence. So you will know how this takes place, and that will assist you in reaching the truth in your deliberations. (emphasis supplied).
"[A] prosecutor may not imply that the government has
inculpatory information that is not in evidence." United
States v. Manning, 23 F.3d 570, 573 (1st Cir. 1994)(citations
omitted). Comments like, "the government ... investigated,
and corroborated the information given by Iba ez" and the
remaining language emphasized above could fairly be
understood to imply that the government had an additional
source of information from which it learned Iba ez's story
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even before he agreed to cooperate. We agree that these
remarks crossed the line into improper vouching, and the
government essentially concedes as much. See United States
v. Tajjedini, 996 F.2d 1278, 1284 (1st Cir. 1993) (noting
that it is improper for a prosecutor to even "seem to rely on
matters not in evidence").
Appellant next assails the following portion of the
prosecutor's rebuttal, which was made in response to defense
counsel's suggestion that appellant's apparent involvement in
the crime was an accident:
Ladies and gentlemen ... I submit to you [that there are] too many coincidences for this to be a mere accident. This is
how drug traffickers work. Some are
smarter than others and will tell you, listen, they almost caught me. You carry the drugs. Keep -- keep up front. I'm going to stay in the back ... in case something happens. That's what happened here: a very shrewd trafficker, Rodriguez, putting the other guy up front so if he gets caught he gets the ... problem. (emphasis supplied).
Appellant contends that the comment, "[t]his is how drug
traffickers work" was an improper statement of opinion that
was not supported by the evidence.9 We agree that this 9
comment evinces a poor choice of words. While the statement
may have been construed as a simple rhetorical invitation to
9Appellant argues that whether or not drug traffickers use 9 "mules" to avoid apprehension in the way the prosecutor claimed that Iba ez was used here was a subject that required an expert opinion before the prosecutor could comment on it.
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find appellant guilty based on Iba ez's testimony, it
arguably implied that appellant was guilty because his
alleged conduct, as described by Iba ez, was consistent with
the prosecutor's experience with other drug traffickers.
Such an implication is, of course, improper. See, e.g.,
Tajjedini, 996 F.2d at 1284 ("it is ... improper for a
prosecutor to insert his own credibility or opinions into
argument").
Nevertheless, we do not think that these remarks
constitute plain error, for the record suggests that it is
highly unlikely that appellant was prejudiced by them. See
Olano, 507 U.S. at 735 (specific showing of prejudice is
normally required to establish plain error).10 To be sure, 10
the government's case hinged upon the credibility of Iba ez,
and the government could ill afford to vouch improperly for
him. Nevertheless, both of the remarks challenged here
appear to be instances of accidental overkill rather than a
deliberate attempt to mislead the jury. Iba ez's testimony
10The "plain error" test requires that we consider the 10 prosecutor's remarks in light of all the "attendant circumstances," including "(1) the extent to which the prosecutor's conduct is recurrent and/or deliberate, (2) the extent to which the trial judge's instructions insulated the jury against, or palliated, the possibility of unfair prejudice, and (3) the overall strength of the prosecution's case, with particular regard to the likelihood that any prejudice might have affected the jury's judgment." Taylor,
54 F.3d at 977 (citation omitted). The weight of the evidence of guilt or innocence is the most important factor in this analysis. See Arrieta-Agressot v. United States, 3
F.3d 525, 528 (1st Cir. 1993).
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was, in fact, corroborated by the plane tickets, the
passports, and the Western Union receipts that had been found
in appellant's luggage. We think it likely that this
evidence was the outside corroboration to which the
prosecutor referred in his remarks concerning the plea
agreement and that the jury understood as much. Finally, we
note that the trial judge repeatedly instructed the jury that
the arguments of counsel do not constitute evidence and that
its decision was to be based on the evidence alone. The
record indicates that the jury returned three questions
before reaching its verdict, thus indicating that it
carefully deliberated over the elements of the offenses and
did not simply accept the prosecutor's arguments at face
value.11 We think this sound evidence that the jury obeyed 11
the court's instructions to resolve the case on the evidence
and was not seduced to convict on speculation prompted by the
prosecutor's rebuttal. Accordingly, we are confident that
the prosecutor's improper remarks did not so poison the trial
as to require reversal for plain error.12 12
11The jury requested a copy of the court's instructions 11 and the relevant statutes. It also requested that the court clearly define the term "possession" and a copy of that portion of Iba ez's testimony wherein he alleged that appellant had instructed him to carry all of the heroin.
12Appellant also contends that the prosecutor improperly 12 elicited evidence of Iba ez's prior bad acts under the guise of fulfilling the plea agreement's requirement that he testify truthfully and that the trial judge should not have admitted this testimony. See note 2, supra. We agree that
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The Arrest of Jose
Appellant next contends that the prosecutor violated his
Sixth Amendment right to compulsory process by arresting his
star witness, Jose Iba ez, solely as a ploy to prevent him
from testifying for the defense. In a related vein,
appellant contends that defense counsel rendered ineffective
assistance because he failed to object to Jose's arrest and
failed to seek a court order that granted Jose immunity or
required that the government do so. Both claims rely on the
following additional facts, some of which are beyond the
scope of the record but are conceded as true by the
government.13 13
It appears that Jose arrived in Puerto Rico three days
after appellant and Iba ez were arrested and that he was
immediately questioned and released by the customs
authorities, who found no drugs. A few months later, and
approximately eleven days before appellant's trial began,
Iba ez agreed to plead guilty and testify for the government.
Shortly thereafter, defense counsel announced that Jose would
much of this evidence might have been excluded. But defense counsel raised no objection to its admission. Instead, he relied on it as grounds for attacking Iba ez's credibility. As Iba ez's criminal exploits were just as likely to make the jury disbelieve him as otherwise, we cannot say admission of this evidence was plain error.
13These facts pertain to appellant's compulsory process 13 claim and one of his ineffective assistance of counsel claims. The latter is discussed in part IV, infra.
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be called as a witness for the defense.14 As noted above, 14
Jose was arrested on the first day of appellant's trial, when
he arrived at the courthouse to testify for appellant.
The record discloses that after announcing that Jose had
been arrested, the Assistant United States Attorney (AUSA)
immediately agreed to make Jose available to defense counsel
to interview and call as a witness. He also observed that
Jose would probably reevaluate with his own counsel whether
he wished to testify. (Tr. 9-11). Defense counsel never
objected to Jose's arrest. Instead, he proceeded with the
trial and made no complaints about a violation of appellant's
right to compulsory process. Appellant alleges that "the
scuffle created by" Jose's arrest prevented defense counsel
from calling him as a witness. He has submitted an affidavit
from his trial counsel to support this assertion.15 15
14This is apparent from defense counsel's motion to 14 continue the trial (original paper #28). That motion indicates that defense counsel first interviewed a witness who could provide exculpatory testimony on June 7, 1995, i.e., five days after Iba ez executed his plea agreement on June 2, 1995. We presume that the witness identified in the motion is Jose.
15Defense counsel averred that Jose could have provided 15 material, exculpatory testimony to the effect that he did not observe any drug-related activities by appellant during the time that they spent together in Venezuela. Once Jose was arrested, counsel believed that his ethical obligations prohibited him from contacting Jose until after he was properly represented by counsel. Counsel swore that due to the fact that he was "heavily engaged" in appellant's defense during the course of the two-day trial, it was impossible for him to ascertain the status of Jose's case or to coordinate with Jose's counsel to address Jose's Fifth Amendment
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Appellant now complains that the only explanation for
the timing of the arrest is that it was designed to compel
Jose to invoke his privilege against self-incrimination and
thereby deprive appellant of his testimony.16 At the outset 16
we are compelled to observe that this claim was not raised
below. A strong argument can be made that it has been
waived. Cf. United States v. Theresius Filippi, 918 F.2d
244, 246 (1st Cir. 1990)(holding defendant waived right to
compulsory process when defense counsel decided to proceed
with trial without material witness). But as the government
does not make this argument, we will give appellant the
benefit of the doubt and assume the claim was forfeited, not
waived. See Olano, 507 U.S. at 733-34 (discussing distinction
between "waiver" and "forfeiture"). This benefit is of
little moment, for the record, even as supplemented, does not
establish that the arrest of Jose was a plain error that
violated appellant's right to compulsory process.
In order to make out a violation of the right to
compulsory process, the appellant must show that "some
contested act or omission (1) can be attributed to the
sovereign and (2) causes the loss or erosion of testimony
concerns. Counsel's affidavit concludes with the assertion that "these circumstances prevented me from calling ... Jose ... as a witness despite the fact that his testimony could ha[ve] changed the outcome of the trial."
16Appellant says that this conclusion is bolstered by the 16 fact that Jose was ultimately acquitted on all charges.
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which is both (3) material to the case and (4) favorable to
the accused." United States v. Hoffman, 832 F.2d 1299, 1303
(1st Cir. 1987). "[C]ausation is an essential building block
in ...[this] edifice," id. It is on this block that
appellant's claim stumbles. For while it is clear that the
government is responsible for Jose's arrest, and we will
assume, for the sake of argument only, that his testimony
would have been material and exculpatory, the record simply
does not show that the arrest caused the loss of Jose's
testimony. Defense counsel never subpoenaed Jose. He did
not even ascertain that, if subpoenaed, Jose would indeed
invoke the Fifth Amendment and decline to testify.
Consequently, it is not at all clear that Jose's arrest
actually rendered his testimony unavailable. Accordingly, we
cannot say that this arrest was a "plain error" that violated
appellant's right to compulsory process. Cf. United States
v. Arboleda, 929 F.2d 858, 868 (1st Cir. 1991)(holding
appellant failed to establish government violated his right
of access to a witness where defense counsel never formally
attempted to meet with witness).
IV.
Ineffective Assistance of Counsel Claims
Appellant argues that defense counsel was ineffective
because he failed to object to the arrest of Jose and failed
to seek a court order that either granted Jose use immunity
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or required that the government do so. Appellant also
maintains that defense counsel erred by failing to file a
motion to suppress the evidence seized by the customs
inspectors.
As a general rule, this court does not consider
ineffective assistance of counsel claims on direct appeal
unless the critical facts are not in dispute and the record
is sufficiently developed to permit reasoned consideration of
the claim. See, e.g., United States v. Collins, 60 F.3d 4,
7 n. 1 (1st Cir. 1995); United States v. Natanel, 938 F.2d
302, 309 (1st Cir. 1991), cert. denied, 502 U.S. 1079 (1992).
We do not think that the present record is sufficiently
developed to allow us to dispose of the foregoing issues.
Accordingly, we decline to reach appellant's ineffective
assistance of counsel claims in the context of this appeal.
Appellant remains free to raise these issues in a motion for
post-conviction relief under 28 U.S.C. 2255. See, e.g.,
United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993),
cert. denied, 511 U.S. 1086 (1994). The judgment of
conviction is otherwise affirmed.
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