Arias v. U.S.

Full title: ROBERTO ARIAS v. UNITED STATES OF AMERICA

Court: United States District Court, D. Rhode Island

Date published: Aug 5, 2002

C.A. No. 02-069 ML, (CR. No. 98-110 ML) (D.R.I. Aug. 5, 2002)

Opinion

C.A. No. 02-069 ML, (CR. No. 98-110 ML)

August 5, 2002

George J. West, Esq., for Appellant.

Zechariah Chafee, Esq., for Appellee.

Report and Recommendation

JACOB HAGOPIAN, United States Magistrate Judge.

Roberto Arias filed a motion with the Court pursuant to 28 U.S.C. § 2255, seeking to set aside his conviction of narcotics violations. The United States of America has objected to the motion. This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. An evidentiary hearing was held on June 25, 2002, where Arias was represented by counsel. For the reasons that follow, I recommend that Arias's motion be denied.

Background

On the evening of November 5, 1998, the Providence police received an anonymous tip from a confidential informant that two Hispanic males would be delivering narcotics to a pizza parlor on Elmwood Avenue, driving a blue Volkswagen bearing Rhode Island registration CV-270. At approximately 9:40 p.m., Detective Enright, driving in an unmarked car, spotted the vehicle driving along Broad Street and began to follow. While following the car, Detective Enright observed the car engage in "typical tactics" used by narcotics dealers to evade potential followers, including: making several short stops, weaving through traffic, driving at excessive speeds, pulling over without any lights on, and stopping at a green light and then "jackrabbiting" through just as it turned red.

When the vehicle arrived at the pizza parlor, the driver of the vehicle, Roberto Arias, and the passenger, Louis Moscoso, were arrested. A search of Moscoso revealed a brick of high grade heroin concealed in his jacket, with a value of $20,000. Neither narcotics nor large amounts of money were found on Arias, in his vehicle, or in his home.

A federal grand jury soon thereafter indicted Arias for (1) aiding and abetting the possession of heroin, with the intent to distribute, see 21 U.S.C. § 841 (a); 18 U.S.C. § 2, and (2) conspiring to possess heroin, with the intent to distribute see 21 U.S.C. § 846. At trial, the government's case against Arias was based upon circumstantial evidence. Arias claimed, and testified, that he was simply giving a ride to a friend and had no knowledge of the brick of heroin contained in Moscoso's jacket. With respect to the illusive maneuvers of his vehicle, he explained that he did not know the location of the pizza parlor where Moscoso wanted to be taken. Although Moscoso had plead guilty to similar charges at the time of Arias's trial and was awaiting sentencing, he was not called to testify to verify Arias's account.

The jury returned a guilty verdict on both charges. Petitioner appealed the conviction to the U.S. Court of Appeals for the First Circuit on the basis that their was insufficient evidence to sustain the conviction. The Court of Appeals affirmed. Petitioner filed a writ of certiorari to the U.S. Supreme Court, which was denied in June, 2001.

Petitioner has now filed the instant motion, seeking to set aside his conviction, on the basis of (1) ineffective assistance of counsel, since his trial counsel failed to call Moscoco as a witness, and (2) insufficient evidence to sustain the conviction.

Facts Adduced At Hearing

On hearing, Arias produced an affidavit dated November 28, 1998, signed by Moscoso. In the affidavit, Moscoso confesses his own guilt but denies that Arias had any knowledge of the heroin. The affidavit thus exculpates the petitioner. Moscoso wrote the affidavit on his own initiative, and delivered it directly to Arias while being detained at the Wyatt Detention Center. Arias, in turn, secured its delivery to his trial counsel in the early days of December 1998.¹

1 At the hearing, a secretary from trial counsel's firm testified that trial counsel is incapacitated due to suffering a stroke. He has been hospitalized since late April and is unable to speak. A recovery is not expected in the near future. She also testified that the firm was unable to locate any of the files relating to this case.

Arias testified at the hearing that prior to his trial, he spoke with his trial counsel concerning his desire to have Moscoso testify on his behalf. According to Arias, trial counsel never told him if he would comply with his request, but stated that "everything was fine" and that "he knew what he was doing."

Moscoso's attorney, Michael Lepizzera, testified at the hearing. Upon learning of the affidavit's existence, he called trial counsel and inquired if he played a role in procuring it. After trial counsel denied doing so, trial counsel inquired whether Moscoso would be willing to testify on Arias's behalf. Lepizzera informed trial counsel that he would advise Moscoso not to testify, citing possible concerns with, inter alia, obstruction of justice and/or perjury charges.

In support of its objection, the United States submitted witness statements by two Providence police officers. The statements indicate that on the night of the arrest, Moscoso made statements incriminating Arias. See Government's Exhibits D and E.

Discussion

A. Ineffective Assistance of Counsel Claim

The U.S. Supreme Court has recognized that the Sixth Amendment's guarantee of counsel is the right to "effective assistance of counsel."McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). Counsel can deprive a defendant of this right by failing to render "adequate legal assistance." Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). "A single, serious error . . . can support a claim of ineffective assistance of counsel." Prou v. U.S., 199 F.3d 37, 47 (1^St Cir. 1999). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two prong test for analyzing ineffective assistance claims, enunciating that judicial scrutiny of counsel's performance must be "highly deferential," indulging a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. As this language indicates, the standard of effectiveness is objective and can be assessed with reference to "prevailing norms of practice" within the legal profession. Id. When applying these norms, a court must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.

The Strickland test requires Arias to show (1) that counsel's error or deficient performance was "so serious that [he] was not acting as the counsel," and (2) prejudice to the plaintiff amounting to deprivation of "a trial whose result is reliable." Id. at 687.

(1) Deficient Performance

Petitioner complains that his attorney's failure to call Moscoso to testify on his behalf amounted to deficient performance. However, "the decision whether to call a particular witness is almost always strategic, requiring a balancing of the benefits and risks of the anticipated testimony." Lema v. U.S. 987 F.2d 48, 53 (1^St Cir. 1993). The witness may not testify as anticipated, or the witness's demeanor or character may impress the jury unfavorably and taint the jury's perception of the accused. Id. Thus, numerous factors may counsel against presenting a witness, whether character, alibi, or even one who, as here, seems willing to accept full responsibility for the crime in question.

Lema v. U.S. id., is particularly relevant. In Lema, the petitioner had been convicted of aiding and abetting, and conspiracy to aid and abet, the possession with intent to distribute cocaine. Lema asserted an ineffective assistance claim, claiming that his trial counsel failed to call three witnesses who would have provided testimony that would tend to exculpate him. Id. One of the witnesses, a co-defendant, would have testified to Lema's ignorance. Id. The Court of Appeals noted that the witness was awaiting sentencing at the time of trial and therefore retained a Fifth Amendment right against self-incrimination. Id. at 55, n. 6, citing U.S. v. Lugg, 892 F.2d 101, 102-03 03 (D.C. Cir. 1989); cf. U.S. v. Zirpolo, 704 F.2d 23, 26 (1^St Cir. 1983), cert. denied, 464 U.S. 822 (1983). Given this fact, and that any such testimony would have exposed the witness as the only culpable participant, the Court was unwilling to assume that he would have waived his Fifth Amendment right.Id.

Here, Arias presented an affidavit to trial counsel prior to his trial. Although Moscoso admits guilt in the affidavit, it does not indicate that he was willing to testify, and waive his Fifth Amendment right. To the contrary, the evidence on hearing indicated otherwise: Lepizerra testified that he had made trial counsel aware that he would advise Moscoso not to testify, citing, inter alia, concerns with obstruction of justice/perjury charges.

Moreover "[w]here the prosecution's case is less than compelling the risk of 'rocking the boat' may warrant a decision by trial counsel to forego the presentation of further defense testimony, even favorable testimony." Id. at 54, citing Johnson v. Lockhart, 921 F.2d 796, 800 (8^th Cir. 1990). In Lema, the court observed that the prosecution based its case largely on the testimony of two witnesses, an informant and the undercover detective who participated in the transactions. Here too, the government's case was less then compelling: it was based entirely on circumstantial evidence. There is little reason to believe that counsel's failure to present Moscoso's testimony "was anything other than a tactical decision," see id. especially considering the inculpatory statements made by Moscoso on the night of the arrest, implicating Arias. See Government's Exhibits D and B.

Given these factors, it was reasonable for trial counsel not to call Moscoso as a witness and was within the "wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Accordingly, Arias has failed to establish a deficient performance by his trial counsel.

(2) Prejudice to Arias

Assuming arguendo that Arias had established a deficient performance, he also has the burden of proving prejudice. Strickland, 466 U.S. at 687. To meet this burden, petitioner must show a "reasonable probability that, but for counsel's errors, the result of the proceeding would have different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. This does not require a showing that the error was more likely than not to have affected the outcome, but it does require that more than "some conceivable effect" be proven. Id. at 693. "The ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696.

In cases like the present one, the question is fact bound, and a court "making [the prejudice] determination . . . [in] an ineffectiveness claim must consider the totality of the evidence before the judge or jury."Strickland, 466 U.S. at 695. Factors to be considered include the strength of the government's case, effectiveness of the defense absent the testimony, and the value of the testimony in undermining the prosecution. See, e.g., Gonzalez-Soberal v. U.S., 244 F.3d 273, 278 (1^St Cir. 2001).

Here, the government's case was weak, since it was based entirely on circumstantial evidence. This factor weighs in Arias's favor. However, the defense's case in chief was effective, albeit unsuccessful, since Arias's version of the facts was presented to the jury. The jury however, choose not to credit Arias. Moscoso's testimony, if available, would have been in accord with petitioner's and thus would have attempted to undermine the government's case. However, petitioner himself testified to the same story, which the jury chose not to credit. It is unlikely that the testimony of a confessed drug trafficker would be given more weight.

Considering the facts available to the jury, the failure to call Moscoso did not result in prejudice. Petitioner has not met his burden of proving a "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 466 U.S. at 694. Accordingly, Arias's ineffective assistance of counsel claim should fail. I so recommend.

B. Insufficient Evidence Claim

Petitioner also asserts as a basis for relief that there was insufficient evidence to sustain his conviction. However, the Court of Appeals for the First Circuit already decided that sufficient evidence did exist for a jury to find that petitioner was guilty beyond a reasonable doubt. See U.S. v. Arias, 238 F.3d 1 (1^St Cir. 2001). Since the petitioner has already asserted this claim in his direct appeal, he may not re-argue it here. See e.g. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981), citing, Cromwell v. County of Sac, 94 U.S. 351, 352 (1877). This claim is barred by res judicata.

Conclusion

For the reasons stated above, I recommend that petitioner's motion be denied. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1^St Cir. 1980).