The Court of Appeals remanded the case to this court for an evidentiary hearing to determine whether Theodore is entitled to a new trial because of the ineffective assistance of his counsel at his first trial. United States v. Theodore, 354 F.3d 1, 3 (1st Cir. 2003).
United States v. Reyes, 352 F.3d 511, 515 (1st Cir. 2003) (quoting United States v. Woodard, 291 F.3d 95, 107 (1st Cir. 2002) ). "We accord ‘extraordinary deference’ to the district court's decision when ‘allowance of the motion would necessitate a last-minute continuance.’ " United States v. Theodore, 354 F.3d 1, 5 (1st Cir. 2003) (quoting Woodard, 291 F.3d at 107 ). We review preserved objections to decisions on motions to withdraw for abuse of discretion, see Reyes, 352 F.3d at 515, and forfeited objections for plain error, see United States v. Brake, 904 F.3d 97, 99 (1st Cir. 2018).
But "consideration," in this context, does not require any elaborate formality. See United States v. Theodore, 354 F.3d 1, 9 (1st Cir. 2003); Vaknin, 112 F.3d at 591. In making a restitutionary order, the court need not make explicit findings or even indicate what it has considered; it suffices if the record contains relevant information about, say, the defendant's income and assets.
also concedes that where the defendant has failed to object below, the appellate court reviews only for plain error. United Statesv. Theodore, 354 F.3d 1, 8 (1st Cir. 2003). The government, however, advances that when a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 is not preserved for appeal because it was not made below, the defendant has "forfeit[ed] the benefit of the customary standard of review, thereby negating any claim of evidentiary insufficiency unless affirming the conviction would work a 'clear and gross injustice.'"
Vázquez states in his brief that we typically review a sufficiency claim de novo, and determine whether any rational jury could have found the defendant guilty beyond a reasonable doubt, United States v. Cortes-Caban, 691 F.3d 1, 12 (1st Cir. 2012), but also concedes that where the defendant has failed to object below, the appellate court reviews only for plain error. United States v. Theodore, 354 F.3d 1, 8 (1st Cir. 2003). The government, however, advances that when a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 is not preserved for appeal because it was not made below, the defendant has "forfeit[ed] the benefit of the customary standard of review, thereby negating any claim of evidentiary insufficiency unless affirming the conviction would work a ‘clear and gross injustice.’ "
Moreover, even on an inchoate record, we will sometimes remand for an evidentiary hearing where the defendant has identified in the record “sufficient indicia of ineffectiveness.” Id.; accord United States v. Colon–Torres, 382 F.3d 76, 85 (1st Cir. 2004) ; United States v. Theodore, 354 F.3d 1, 3 (1st Cir. 2003). We at times have also remanded for an evidentiary hearing when the defendant affirmatively makes out a colorable claim of ineffectiveness, seeUnited Statesv.
The record is insufficiently developed for us to meaningfully review retained counsel's strategy and the effectiveness of his representation, and Cintron has not formally raised an ineffective assistance of counsel claim. See, e.g., United States v. Theodore, 354 F.3d 1, 3 (1st Cir.2003) ( “We note that the almost universal rule ... is that petitioners cannot raise ineffective assistance of counsel claims for the first time on direct review, the concern being that there is often no opportunity to develop the necessary evidence where the claim is first raised on direct appeal.”). Cintron cites his letters to the district court judge in August of 2009 as evidence that his retained counsel acted against his wishes in not presenting Cintron's account of the arrest to the district court.
The fraud charge was based on the fact that Fogg did not report his income from drug dealing while receiving Social Security disability benefits due to a serious injury suffered years earlier. See also United States v. Theodore, 354 F.3d 1, 8–9 (1st Cir.2003) (noting requirement that defendant have ability to pay restitution). The government has not appealed this portion of the district court's sentencing order.
Therefore, we again review only for plain error. See United States v. Theodore, 354 F.3d 1, 8 (1st Cir. 2003). The restitution order itself we review for abuse of discretion and subsidiary factual findings for clear error.
Since evidence subsequently obtained showed that Ramnath and Al-Rikabi engaged in substantial drug transactions (as, indeed, Ramnath admitted, only denying that the parties were conspirators), the relevance of this evidence was clear, and its probative value not substantially outweighed. The further claim of counsel's constitutional inadequacy adds nothing to this appeal; the prevailing rule in this circuit generally bars consideration of an ineffectiveness claim raised for the first time on appeal, United States v. Theodore, 354 F.3d 1, 3 (1st Cir. 2003), and in any event Ramnath's counsel mentions it with a brevity that fails to address adequately the elements of a charge of ineffective assistance under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ramnath's unsuccessful objection to admission of the drugs and paraphernalia found in his apartment was followed by an instruction that the jury could consider them "only for the limited purpose of deciding whether Mr. Ramnath had the state of mind or intent necessary to commit the crime charged," and its admission was consistent with the provision of Federal Rule of Evidence 404(b) that evidence of other crimes, while inadmissible to prove propensity to commit the crime charged, nonetheless may be received to show motive, intent or plan, among other things.