United States Court of Appeals,
Fifth Circuit.
No. 92-5571.
UNITED STATES of America, Plaintiff-Appellee,
v.
Luis S. SANTIAGO, Defendant-Appellant.
June 21, 1993.
Appeal from the United States District Court for the Western District of Texas.
Before POLITZ, Chief Judge, DUHÉ, Circuit Judge, and BELEW,* District Judge.
POLITZ, Chief Judge:
Asserting a Brady1 violation, a sentencing error and ineffective assistance of counsel, Luis S.
Santiago appeals pro se the denial of his motion to vacate sentence under 28 U.S.C. § 2255. For the
reasons assigned we affirm in part and vacate and remand in part.
BACKGROUND
DEA agents met with Francisco Altamirano at a Denny's restaurant in San Antonio where
Altamirano was to deliver 15 o unces of cocaine. Santiago was in a nearby booth, within earshot.
Altamirano told the agents he had seven ounces and after they paid for those, he could get the
remaining eight ounces from his source a few blocks away.
An agent displayed the cash to Altamirano and then returned it to his auto; Santiago followed
him out of the restaurant and appeared to be co nducting counter-surveillance as he walked to the
parking lot of a restaurant located about two blocks distant. He there entered a blue Chevy Malibu
occupied by two other individuals. Altamirano then produced seven ounces of cocaine for the agents
and was immediately arrested. On signal, Santiago and the two individuals in the Malibu, Walter and
Sonia Albrecht, also were arrested. Santiago eventually admitted that he owned a nearby gold Ford
Thunderbird in the parking lot. The agents looked through the window of the Thunderbird and saw
* District Judge of the Northern District of Texas, sitting by designation. 1 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). a bag which Santiago had carried as he left Denny's. They obtained a search warrant, searched the
car, and found eight ounces of cocaine in two containers. Sonia Albrecht's fingerprints were on one
of the containers. Walter Albrecht's prints were found on the paper bag containing the first seven
ounces. In addition, the search revealed handwritten records of drug transactions, some of which
were identified at trial as being in Santiago's handwriting.
Santiago was convicted by a jury of conspiracy to possess with intent to distribute cocaine
and possession with intent to distribute cocaine. At sentencing, Santiago's offense level was increased
for his leadership role in the offense. He was sentenced to concurrent terms of 84 months
incarceration and five years supervised released on the two counts. On appeal we affirmed his
conviction and sentence. Proceeding pro se he filed the instant section 2255 motion to vacate
sentence which was denied by the district court. From that order, he timely appeals.
ANALYSIS
The Brady Violation
Santiago claims that, in violation of Brady v. Maryland,2 the government failed to reveal the
existence of an immunity agreement with the Albrechts or otherwise failed to reveal that they could
testify that they owned the cocaine found in his car. The Albrechts were not called to testify at trial.
To establish a Brady violation, the defendant must establish: (1) evidence was suppressed, (2) the
evidence was favorable to the defense, and (3) the evidence was material to guilt or punishment.3
The district court dismissed this claim finding that given his involvement with the Albrechts,
the fact that they were guilty of a crime and granted immunity would only inculpate Santiago. We
agree. He was indicted for conspiring with Altamirano and others; the Albrechts reasonably could
be considered those others. In addition, Santiago failed to subpoena the Albrechts despite the
opportunity to do so. Finally, Santiago has not established the exculpatory nature of the allegedly
suppressed evidence—his allegations are mere speculation and co njecture. He has failed to
demonstrate a Brady violation.
2 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 3 United States v. Ellender, 947 F.2d 748 (5th Cir.1991). Sentencing—Leadership Role
Santiago challenges the increase in the computation of his guideline offense level for his
leadership role, advancing two grounds: (1) the increase was based upon an incorrect interpretation
of the requirements for such an adjustment, and (2) it was made on the basis of unreliable evidence.
His first challenge was raised and disposed of on direct appeal; we will not reconsider that issue on
a section 2255 motion.4 His second challenge invokes the due process requirement that a defendant
be sentenced on the basis of evidence having some minimal indicia of reliability and that the
information bear some rational relationship to the court's decision to impose a particular sentence.5
The burden is on the defendant to demonstrate that the information relied on at sentencing is
materially untrue.6
Santiago alleges that his coconspirator, Altamirano, lied to the probation officer when stating
that Santiago was his cocaine source, and that this lie caused the increase in the offense level. The
record contains sufficient additional evidence, however, supporting the statement and the increase.
For example, we noted in reviewing Santiago's direct appeal:
[E]ight ounces of cocaine were seized from Santiago's car—the exact amount that Altamirano had represented he would retrieve from his source and deliver to the undercover agents in order to consummate the two-part transaction. Moreover, the location of Santiago and his car were consistent with Altamirano's representations as to the location of his source.
Other evidence of his leadership role included the bag in his car containing records written in
Santiago's handwriting detailing substantial drug transactions.
Ineffective Assistance
Appellate Counsel
Santiago also alleges that he received ineffective assistance of appellate counsel because on
the direct appeal his counsel refused to introduce certain affidavits as new evidence. These are the
4 United States v. Kalish, 780 F.2d 506 (5th Cir.), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 660 (1986). Santiago also contends that the trial court improperly relied on Altamirano's hearsay statements and that he was deprived of his confrontation rights regarding these statements. This issue was also raised on direct appeal and will not be considered. 5 United States v. Fulbright, 804 F.2d 847 (5th Cir.1986). 6 United States v. Flores, 875 F.2d 1110 (5th Cir.1989). same affidavits which Santiago presented with his section 2255 motion, asserting that Altamirano lied
to the probation officer. An ineffective assistance claim requires proof both that counsel's
representation was deficient and that the defendant was prejudiced by the deficient performance.7
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United States Court of Appeals,
Fifth Circuit.
No. 92-5571.
UNITED STATES of America, Plaintiff-Appellee,
v.
Luis S. SANTIAGO, Defendant-Appellant.
June 21, 1993.
Appeal from the United States District Court for the Western District of Texas.
Before POLITZ, Chief Judge, DUHÉ, Circuit Judge, and BELEW,* District Judge.
POLITZ, Chief Judge:
Asserting a Brady1 violation, a sentencing error and ineffective assistance of counsel, Luis S.
Santiago appeals pro se the denial of his motion to vacate sentence under 28 U.S.C. § 2255. For the
reasons assigned we affirm in part and vacate and remand in part.
BACKGROUND
DEA agents met with Francisco Altamirano at a Denny's restaurant in San Antonio where
Altamirano was to deliver 15 o unces of cocaine. Santiago was in a nearby booth, within earshot.
Altamirano told the agents he had seven ounces and after they paid for those, he could get the
remaining eight ounces from his source a few blocks away.
An agent displayed the cash to Altamirano and then returned it to his auto; Santiago followed
him out of the restaurant and appeared to be co nducting counter-surveillance as he walked to the
parking lot of a restaurant located about two blocks distant. He there entered a blue Chevy Malibu
occupied by two other individuals. Altamirano then produced seven ounces of cocaine for the agents
and was immediately arrested. On signal, Santiago and the two individuals in the Malibu, Walter and
Sonia Albrecht, also were arrested. Santiago eventually admitted that he owned a nearby gold Ford
Thunderbird in the parking lot. The agents looked through the window of the Thunderbird and saw
* District Judge of the Northern District of Texas, sitting by designation. 1 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). a bag which Santiago had carried as he left Denny's. They obtained a search warrant, searched the
car, and found eight ounces of cocaine in two containers. Sonia Albrecht's fingerprints were on one
of the containers. Walter Albrecht's prints were found on the paper bag containing the first seven
ounces. In addition, the search revealed handwritten records of drug transactions, some of which
were identified at trial as being in Santiago's handwriting.
Santiago was convicted by a jury of conspiracy to possess with intent to distribute cocaine
and possession with intent to distribute cocaine. At sentencing, Santiago's offense level was increased
for his leadership role in the offense. He was sentenced to concurrent terms of 84 months
incarceration and five years supervised released on the two counts. On appeal we affirmed his
conviction and sentence. Proceeding pro se he filed the instant section 2255 motion to vacate
sentence which was denied by the district court. From that order, he timely appeals.
ANALYSIS
The Brady Violation
Santiago claims that, in violation of Brady v. Maryland,2 the government failed to reveal the
existence of an immunity agreement with the Albrechts or otherwise failed to reveal that they could
testify that they owned the cocaine found in his car. The Albrechts were not called to testify at trial.
To establish a Brady violation, the defendant must establish: (1) evidence was suppressed, (2) the
evidence was favorable to the defense, and (3) the evidence was material to guilt or punishment.3
The district court dismissed this claim finding that given his involvement with the Albrechts,
the fact that they were guilty of a crime and granted immunity would only inculpate Santiago. We
agree. He was indicted for conspiring with Altamirano and others; the Albrechts reasonably could
be considered those others. In addition, Santiago failed to subpoena the Albrechts despite the
opportunity to do so. Finally, Santiago has not established the exculpatory nature of the allegedly
suppressed evidence—his allegations are mere speculation and co njecture. He has failed to
demonstrate a Brady violation.
2 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 3 United States v. Ellender, 947 F.2d 748 (5th Cir.1991). Sentencing—Leadership Role
Santiago challenges the increase in the computation of his guideline offense level for his
leadership role, advancing two grounds: (1) the increase was based upon an incorrect interpretation
of the requirements for such an adjustment, and (2) it was made on the basis of unreliable evidence.
His first challenge was raised and disposed of on direct appeal; we will not reconsider that issue on
a section 2255 motion.4 His second challenge invokes the due process requirement that a defendant
be sentenced on the basis of evidence having some minimal indicia of reliability and that the
information bear some rational relationship to the court's decision to impose a particular sentence.5
The burden is on the defendant to demonstrate that the information relied on at sentencing is
materially untrue.6
Santiago alleges that his coconspirator, Altamirano, lied to the probation officer when stating
that Santiago was his cocaine source, and that this lie caused the increase in the offense level. The
record contains sufficient additional evidence, however, supporting the statement and the increase.
For example, we noted in reviewing Santiago's direct appeal:
[E]ight ounces of cocaine were seized from Santiago's car—the exact amount that Altamirano had represented he would retrieve from his source and deliver to the undercover agents in order to consummate the two-part transaction. Moreover, the location of Santiago and his car were consistent with Altamirano's representations as to the location of his source.
Other evidence of his leadership role included the bag in his car containing records written in
Santiago's handwriting detailing substantial drug transactions.
Ineffective Assistance
Appellate Counsel
Santiago also alleges that he received ineffective assistance of appellate counsel because on
the direct appeal his counsel refused to introduce certain affidavits as new evidence. These are the
4 United States v. Kalish, 780 F.2d 506 (5th Cir.), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 660 (1986). Santiago also contends that the trial court improperly relied on Altamirano's hearsay statements and that he was deprived of his confrontation rights regarding these statements. This issue was also raised on direct appeal and will not be considered. 5 United States v. Fulbright, 804 F.2d 847 (5th Cir.1986). 6 United States v. Flores, 875 F.2d 1110 (5th Cir.1989). same affidavits which Santiago presented with his section 2255 motion, asserting that Altamirano lied
to the probation officer. An ineffective assistance claim requires proof both that counsel's
representation was deficient and that the defendant was prejudiced by the deficient performance.7
Santiago's counsel was not deficient; Santiago had no right to produce new evidence on
appeal. We have held, "[w]e will not consider on appeal, however, evidence not produced at the
sentencing hearing and arguments not raised in the trial court."8 In addition, Santiago cannot
demonstrate prejudice, i.e., that there is a reasonable probability that but for counsel's errors, the
result would have been different.9 As noted above, there was ample evidence, apart from
Altamirano's testimony, to support the offense level increase.
Trial Counsel's Conflict of Interest
Santiago raises several deficiencies of trial counsel for the first time on appeal, one of which
gives us serious pause. Santiago avers that his trial counsel, without his knowledge, also represented
the Albrechts at all relevant times. He states that he learned of the conflict for the first time in June
1992, after the district court had dismissed his section 2255 motion and it was pending appeal. This
raises serious concerns, given the apparent plethora of evidence connecting the Albrechts with the
drugs and the fact that they were never prosecuted for this offense.
"[W]hen a new factual or legal issue is raised for the first time on appeal, plain error occurs 10 where our failure to consider the question result s in "manifest injustice.' " This claim alleging
conflict of interest is not sufficiently developed in the record before us to permit an adequate review
of its merits. We find that manifest injustice might result if we did not remand for an evidentiary
hearing on whether Santiago's trial counsel provided ineffective assistance of counsel because he was
7 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 8 U.S. v. Bounds, 943 F.2d 541 (5th Cir.1991). 9 Strickland. 10 United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2032, 114 L.Ed.2d 117 (1991). operating under a conflict of interest.11 The district court is urged to appoint counsel for Santiago
for the proceedings on remand.
For the foregoing reasons, we AFFIRM IN PART and VACATE AND REMAND IN PART.
11 Trial counsel's other deficiencies alleged by Santiago include: (1) failure to object to and request limiting instructions as to statements made by Altamirano; and (2) failure to conduct an adequate investigation regarding the Albrechts, and failure to subpoena them. On remand these claims need only be considered to the extent that they are relevant to the inquiry regarding the conflict of interest.