United States v. Villa-Contreras

• Court: Court of Appeals for the First Circuit
• Decided: July 16, 1998
• Docket: 96-1764
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 96-1764



                          UNITED STATES,



                       Plaintiff-Appellee,



                                v.



                      JULIO CONEO-GUERRERO,



                       Defendant-Appellant.


No. 96-1765



                          UNITED STATES,



                       Plaintiff-Appellee,



                                v.



                     JUAN JOSE ARANGO-HERRERA



                       Defendant-Appellant.



                       ___________________



No. 96-1766



                          UNITED STATES,



                       Plaintiff-Appellee,



                                v.



                    JESUS A. VILLA-CONTRERAS,



                       Defendant-Appellant.



                       ____________________



          APPEALS FROM THE UNITED STATES DISTRICT COURT



                     DISTRICT OF PUERTO RICO



          [Hon. Jose Antonio Fuste, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                                

                Campbell, Senior Circuit Judge,

                                

                   and Selya, Circuit Judge.


Zygmunt G. Slominski on brief for appellant Julio Coneo-

Guerrero.

     Carmen R. De Jesus on brief for appellant Juan Jose Arango-

Herrera.

     Jorge A. Toro-McCown on brief for appellant Jesus A. Villa-

Contreras.

     Jacabed Rodriguez Coss, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jose A. Quiles-

Espinosa, Assistant United States Attorney, were on brief for

appellee.


July 14, 1998


CAMPBELL, Senior Circuit Judge.  After a jury trial, the

district court convicted Julio Coneo-Guerrero, Juan Jose Arango-

Herrera, and Jesus A. Villa-Contreras of importing into the United

States and possessing with intent to distribute 543 kilograms of

cocaine.  21 U.S.C.  952(a), 841(a)(1).  The three Defendants

appeal from their convictions and sentences, citing many purported

errors.  We affirm.  In so doing, we discuss only the most salient

points.  We have, however, considered carefully all the arguments

Appellants raise.



                           BACKGROUND

          In reviewing a judgment of conviction, we view the facts

in the light most favorable to the government.  See United Statesv. Christopher, 142 F.3d 46, 48 (1st Cir. 1998).  

          On the night of June 27-28, 1995, U.S. Customs pilots

flying approximately fifteen miles from the southern coast of

Puerto Rico spotted a forty-foot boat traveling rapidly north

toward Puerto Rico with its lights out.  Joined by other agents on

sea and in the air, the agents tracked the boat until it stopped at

an area within three miles of the coast of Puerto Rico known as

Cayo Cabuzazos.  There, the agents used night vision goggles to

observe the boat's crew dumping objects overboard into the water.

          To improve the scene's visibility, the agents summoned a

helicopter equipped with a powerful "night sun" searchlight, which

they directed at the boat.  Realizing that they had unwanted

company, the crew immediately sped away toward the south.  After a

lengthy chase and with the help of a local marine police unit,

Customs agents apprehended the boat roughly thirteen or fourteen

miles from the coast of Puerto Rico.  Agents boarded the ship and

arrested all four members of the crew:  the three Appellants, plus

the boat's captain, who is now deceased.

          While aboard, the agents made several discoveries. 

First, they observed that the boat's dashboard lights were covered

with opaque tape, obscuring their glow from nighttime observation. 

Second, there were two hand-written notes on board.  One contained

five sets of coordinates plotting a route from Colombia to Puerto

Rico.  The other, written in Spanish, vaguely prescribed an

allocation:  "399 for the office [oficina]"; "85 for Nando"; "85

for Lindo"; and "5 for the crew."  A later search revealed a pair

of burlap sacks.

          The significance of the sacks became apparent after a

contemporaneous search of the Cayo Cabuzazos area, where Appellants

had earlier been observed dumping items from their boat.  There,

agents found several burlap sacks floating in the water, along with

hundreds of packages containing a total of 543 kilograms of

cocaine.  According to the trial testimony of a FBI expert, the

sacks found aboard Appellants' boat were of the same color, make,

composition, and construction as those found floating with the

cocaine.  Moreover, a second FBI expert testified that both sets of

sacks contained traces of cocaine.

          Upon their arrest, Appellants each explained that they

had come to Puerto Rico to pick up money, although they could not

say when or from whom.  However, government agents testified at

trial that neither Appellants nor their boat were carrying any

document that would permit them to make a legal entry into Puerto

Rico.

          A week after the arrest, a federal grand jury indicted

Appellants for aiding and abetting, 18 U.S.C.  2, two substantive

violations:  possessing a controlled substance with intent to

distribute, 21 U.S.C.  841(a)(1), and importation of a controlled

substance, 21 U.S.C.  952(a).  Upon learning that a single

attorney, Miguel R. Calderon, planned on representing all

Defendants, the magistrate held a Foster hearing.  See United

States v. Foster, 469 F.2d 1 (1st Cir. 1972).  The district court

[(Fuste, J.)] held a second Foster hearing on August 22, 1995,

about ten weeks before trial.  

          Calderon continued to represent all Defendants throughout

the trial.  The jury returned a verdict of guilty as to all

Defendants on both counts on December 15, 1995.  Prior to

sentencing and after a third Foster hearing, the district court

granted attorney Calderon's motion to withdraw from representing

Defendants and appointed each separate counsel for purposes of

sentencing and appeal.  The district court sentenced each defendant

to 235 months' imprisonment.  This appeal followed.



                           DISCUSSION

1.        Ineffective Assistance of Counsel

          Appellants argue that their convictions are procedurally

invalid owing to the district court's having allowed Calderon to

represent all of them at the trial.  Because one defendant's

interests may be adverse to another's, representation of multiple

defendants by the same attorney may lead to serious conflicts and

violate the Sixth Amendment's guarantee of effective counsel.  SeeWood v. Georgia, 450 U.S. 261, 271 (1981).  On the other hand, the

Sixth Amendment right to choose one's own counsel includes the

right to choose as a lawyer the representative of a co-defendant. 

See Wheat v. United States, 486 U.S. 153, 159 (1988).  Balancing

these two aspects of the right to counsel   the right to conflict-

free representation and the right to select one's counsel  

requires that joint representation be permitted only if each

defendant knowingly and voluntarily assumes the risk of potential

conflicts.

          Accordingly, Federal Rule of Criminal Procedure 44(c)

provides that the district court must inquire into each instance of

joint representation of multiple defendants, and must advise each

defendant of his right to separate counsel.  In Foster, this court

spelled out the proper procedure for apprising a defendant of his

constitutional rights:

          [I]t shall be the duty of the trial court, as

          early in the litigation as practicable, to

          comment on some of the risks confronted where

          defendants are jointly represented to insure

          that defendants are aware of such risks, and

          to inquire diligently whether they have

          discussed the risks with their attorney, and

          whether they understand that they may retain

          separate counsel, or if qualified, may have

          counsel appointed by the court and paid for by

          the government.  For the time being, at least,

          we leave to the discretion to the trial court

          the exact time and form of the inquiry.

          

Foster, 469 F.2d at 5; see also Bucuvalas v. United States, 98 F.3d

652, 655 (1st Cir. 1996).  Without an appropriate Foster hearing,

the burden of persuasion shifts to the government to demonstrate

the absence of any likelihood of prejudice from the conflict of

interest.  See United States v. Hernandez-Lebron, 23 F.3d 600, 606

(1st Cir. 1994).  However, if the record shows a satisfactory

Foster hearing, the appellant bears the burden of "establish[ing]

that an actual conflict of interest adversely affected his lawyer's

performance."  Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); see

also United States v. Mazzaferro, 865 F.2d 450, 454-55 (1st Cir.

1989).  Appellants argue that none of the Foster hearings was

adequate, shifting the burden of demonstrating a lack of actual

conflict to the government.  They contend that the court seriously

erred in addressing them jointly, rather than separately, and in

failing to discern precisely who had retained Calderon to serve as

their attorney.

          We disagree on both scores.  First, our review of the

record indicates that the district court conducted satisfactory

Foster hearings.  There were three such hearings in this case, two

prior to trial.  The two pre-trial Foster hearings more than

sufficed to ensure that Defendant-Appellants' acquiescence in joint

representation comported with Rule 44(c).

          The first hearing was conducted by the Magistrate just

before the bail hearing.  The Magistrate granted each of four

court-appointed attorneys' request to withdraw from representing

the four Defendants in light of Calderon's appearance.  The

Magistrate instructed Defendants regarding their constitutional

right to adequate and independent representation, and that joint

representation was not necessarily proper.  The Magistrate then

asked all the Defendants whether they understood the potential for

conflicts and the difficulty of avoiding such conflicts.  The

Magistrate then described potential conflicts that could emerge

during the course of proceedings, noting that the Defendants' level

of culpability could vary; that one or more of the Defendants could

cooperate in exchange for leniency; that the evidence might prove

stronger against one Defendant compared to another both as to guilt

and as to sentencing.  The Magistrate also noted that if any of the

Defendants wanted to testify at trial, it would place their shared

counsel in an untenable position.  Following these warnings, the

Magistrate asked Defendants whether they desired representation by

Calderon; they answered in the affirmative.  

          Finally, the Magistrate warned the Defendants that if any

of them changed his mind after trial, it would be too late to

conduct a new trial.  Following the hearing, each Defendant

executed an "Acknowledgment of Joint Representation Admonishment"

also signed by their attorney Calderon.

          A few months before trial, the district court judge

conducted a second Foster hearing.  There, the court specifically

noted that it had to appoint each defendant separate counsel

"unless it appear[ed] that there [was] good cause to believe no

conflict of interest was likely to arise."  The court also

enumerated myriad issues that potentially would give rise to a

conflict of interest, including the inability of counsel to conduct

independent investigations, the inability of counsel to enter into

independent plea negotiations, the inability of counsel to seek

immunity for one defendant to testify against another, the

inability of counsel to communicate information gained from one

client to another because of attorney-client privilege, the

inability to waive the right to jury trial for any single

defendant, the inability of counsel to represent individual

interests in jury selection or the introduction of evidence, the

inability of counsel to present evidence that is exculpatory for

one defendant if inculpatory for another; the inability of counsel

to argue in the alternative as to the level of culpability of each

defendant, the inability of counsel to negotiate after trial on

behalf of one defendant against another, and the inability of

counsel to argue the Defendants' relative blame at sentencing. 

Calderon told the court, in the presence of Defendant-Appellants,

that he had discussed the potential for conflict with each of them

several times.

          The court then inquired, ultimately with no clear answer,

as to who was paying counsel for the Defendants and where that

person's loyalties lay.  The court then questioned each defendant

as to his competency and capacity to understand what was being

explained.  Finally, after warning the Defendants that the

emergence of a conflict "down the line" would not "stop the case,"

the court permitted Calderon to continue representing all the

Defendants.  From the time of the second Foster hearing in August,

1995, until after the trial and conviction in December, 1995,

neither a Defendant nor Calderon suggested that the joint

representation had led to a conflict of interest.

          Between the verdict and sentencing, each of the three

surviving Defendant-Appellants requested the assignment of new

counsel.  The district court then conducted a third Foster hearing,

at which it ultimately granted the request for new counsel during

sentencing and appeal.  At this hearing, the district court

questioned each of the Defendants about his choice of Calderon as

attorney.  Arango-Herrera complained about Calderon's tactical

decisions during trial and his communication regarding the

potential conflict.  Each of the other two Appellants said that he

was satisfied with Calderon's performance.  Indeed, each said that

they sought new counsel because they no longer had adequate funds

to pay for Calderon's representation.

          Appellants now argue that these apparently thorough

procedures were inadequate.  First, citing United States v.

Gilliam, 975 F.2d 1050, 1053 (4th Cir. 1992), and United States v.

Edwardo-Franco, 885 F.2d 1002 (2d Cir. 1989), they argue that the

district court should have engaged Defendants in a "narrative"

colloquy.  Second, based on the Advisory Note to Rule 44(c), they

claim that the district court should have addressed each defendant

separately.  Finally, they suggest that the district court erred in

failing to advise them of their right to seek the assistance of an

independent attorney in understanding the risks of joint

representation.  See United States v. Romero, 780 F.2d 981, 985

(11th Cir. 1986). 

          We do not think that the district court erred by failing

to do more than we have traditionally held a Foster hearing

requires.  While each of the procedures Appellants suggest might

serve the interests motivating a Foster hearing, their absence is

not error where, as here, the record shows that the district court

made a diligent inquiry   in this case, multiple inquiries   into

whether the risks of joint representation were clear. 

          In light of the adequacy of the Foster hearings,

Appellants bear the burden of showing that the joint representation

caused an actual conflict of interest.  In this regard, Appellants

point to the fact that the district court never pinpointed exactly

who was paying Calderon to represent them; the source of those

funds still remains a mystery.  However, Appellants have failed to

adduce any evidence of an actual conflict, though they hypothesize

a number of potential conflicts relating to "the inherent dangers

that arise when a criminal defendant is represented by a lawyer

hired and paid by a third party."  Wood, 450 U.S. at 268-69.  For

instance, they point out that a conflict could have arisen if one

of them had accepted the government's offer of a plea bargain. 

However, there is no credible suggestion that this or any other

potential conflict ever occurred.  Indeed, the problem with

Calderon's representation appears not to have been disloyalty, but

rather his lack of success and his cost.  At the third Fosterhearing, Arango told the district court that he did not become

dissatisfied with Calderon's performance until they lost the case;

the two other Appellants stated that they sought new counsel only

because they could no longer afford Calderon.  Accordingly,

Appellants have failed to meet their burden of showing that an

actual conflict arose adversely affecting Calderon's performance. 

See Carey v. United States, 50 F.3d 1097, 1100 (1st Cir. 1995)

("[T]he defendant must demonstrate that the alleged conflict is

more than 'some attenuated hypothesis having little consequence to

the adequacy of representation.'" (quoting Brien v. United States,

695 F.2d 10, 15 (1st Cir. 1982))); Mazzaferro, 865 F.2d at 454.  

2.        Jury Instruction Regarding Reasonable Doubt

          Appellants fault the district court for not giving an

unrequested jury instruction that reasonable doubt exists when upon

viewing the evidence a reasonable juror would "hesitate to act" in

finding the defendant guilty.  Their theory is that the absence of

such an instruction inappropriately reduced the government's burden

of proof.  We disagree.

          "Reasonable doubt instructions are erroneous when, taken

as a whole, they have a 'reasonable likelihood' of misleading the

jury to believe that it can convict on some lesser standard of

proof than that required under the reasonable doubt standard." 

United States v. Romero, 32 F.3d 641, 651 (1st Cir. 1994).  The

trial court's instruction was in this regard quite clear:

                    [r]emember that the defendants are presumed by

                    law to be not guilty or innocent.  The law

                    does not require defendants to prove that they

                    are not guilty or produce any evidence at all. 

                    The government has the burden of proving their

                    guilty beyond a reasonable doubt.  And if the

                    government fails to do so, you must acquit the

                    defendants.  

                    

          Later, the court defined reasonable doubt as "a real doubt based

upon reason and common sense after careful and impartial

consideration of all the evidence in the case."  Nothing in these

passages, nor in any cited by Appellants, shifted the burden of

proof from the government.  Much less was the instruction's

definition of "reasonable doubt" inadequate.  We cannot find

Appellants' preferred instruction plain error, see United States v.

Olano, 507 U.S. 725, 737 (1993) (defining plain error standard),

particularly given the district court's "considerable latitude" in

charging the jury, see United States v. Cassiere, 4 F.3d 1006, 1022

(1st Cir. 1993).

3.        Jury Instruction Regarding the Elements of Importation

          Next, Appellants criticize the court for failing to

instruct the jury that the offense of importation, 21 U.S.C. 

952(a), requires that the defendant have brought contraband within

the twelve-mile outer limit of the United States' customs

territory.  See United States v. Alvarado, 982 F.2d 659, 662 (1st

Cir. 1992) (explaining scope of 21 U.S.C.  952(a)).  Because

Appellants did not object nor raise this contention at trial, our

review is confined to plain error.  See United States v. Sullivan,

85 F.3d 743, 748 (1st Cir. 1996).

          We have ruled that "[a] critical element of the offense

of importation is that a defendant imports or causes to be imported

a controlled substance into the customs territory of the United

States."  Alvarado, 982 F.2d at 662.  In explaining the U.S.'s

"customs territory," the district court here instructed the jury

that 

                    [t]he term United States when used in the

                    geographic sense that we are dealing with

                    here, means all places and waters continental

                    or insular subject to the jurisdiction of the

                    United States.  The territorial waters of

                    Puerto Rico are territorial waters of the

                    United States.  

                    

          While the district court did not explain, as it might have, that

the territory of the United States extended only twelve miles from

the shores of Puerto Rico, in the present context its omission was

not "plain error," i.e., the sort of error that warrants correction

as a matter of the fairness of the proceedings below.  See Olano,

509 U.S. at 137 (instructing Courts of Appeals that Rule 52(b)

requires reversal only if error "seriously affect[s] fairness,

integrity or public reputation of judicial proceedings" (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936))).  The jury

received adequate guidance on the point from testimony at trial

from a U.S. Customs investigator:

          Q:   Can you explain to the members of the

          jury the difference between international

          waters and Custom's territories?



          A:   Custom's waters are those waters that are

          up to twelve miles from the coast of the U.S.,

          including Puerto Rico.  Anything beyond the

          twelve miles is considered international

          waters.



          Q:   So anything within twelve miles from the

          coast of Puerto Rico would be considered

          United States waters, is that correct?



          A:   Yes, ma'am, Customs' waters.



The same investigator, who was at the arrest scene, testified that

he tracked Appellants' boat as it made its way to within three

miles of the Puerto Rico coast.  

          This testimony indicated to the jury that, in order to

convict Appellants of importing contraband into the United States,

it had to find that Appellants brought the contraband within twelve

miles of Puerto Rico.  It also provided evidence that Appellants

had imported contraband into waters well within the twelve-mile

limit.  Taken together, these pieces of testimony show that the

jury was adequately advised of the relevant legal standard relating

to the importation element as well as being furnished credible

evidence establishing the importation element.  We have no reason

to believe that the court's purported omission affected Appellants'

substantial rights or denigrated judicial proceedings.

4.        Sentencing             

          Appellants argue that the district court erred by not

granting them a two-level downward adjustment for a minor role in

the offense under U.S.S.G.  3B1.2.  Appellants' claim in this

regard rests on their purported role as mere transporters of

cocaine, less responsible than other, unnamed participants. 

However, as the district court noted, Appellants produced no

evidence to show that their role was necessarily minor.  All were

aboard a boat transporting cocaine from Colombia to Puerto Rico.

There is little evidence of their specific duties.  A now-deceased

individual served as captain, but that does not indicate that

others on board had a less significant function relative to the

criminal activities.  Quite possibly, persons uninvolved in the

operation of the boat had greater responsibilities for acquiring

and distributing the drugs.  Reviewing the district court's factual

determinations for clear error, see United States v. Brandon, 17

F.3d 409, 460 (1st Cir. 1994), we conclude that none occurred in

the district court's rejection of a role-in-the-offense reduction. 

          Finally, Appellants suggest that the district court erred

in failing to depart downward under U.S.S.G.  5K2.0 based on a

variety of personal hardships that, in Appellants' view, reduced

their culpability for their crimes.  However, this court will

entertain an appeal from such a decision only if the district court

erroneously believed it lacked the legal authority to depart

downward.  See United States v. Romolo, 937 F.2d 20, 22 (1st Cir.

1991).  As Appellants nowhere allege that the district court was

under such a misapprehension, their challenge fails for want of

appellate jurisdiction.

          We have carefully considered Appellants' other arguments,

and conclude that they are without merit.  

          Affirmed.