United States v. Arizaga ( 1999 )

  • USCA1 Opinion

    United States Court of Appeals
    For the First Circuit
    No. 97-2356


    Plaintiff, Appellee,



    Defendant, Appellant.



    [Hon. H‚ctor M. Laffitte, U.S. District Judge]

    Boudin, Circuit Judge,

    Reavley, Senior Circuit Judge,and Lipez, Circuit Judge.

    David W. Rom n for appellant.
    Jos‚ A. Quiles-Espinosa, Senior Litigation Counsel, with whom Guillermo Gil, United States Attorney, and Camille V‚lez-Riv‚, Assistant United States Attorney, were on the brief, for appellee.

    March 11, 1999

    LIPEZ, Circuit Judge. Jos‚ Arizaga was convicted by a
    jury, after a joint trial with three co-defendants, of conspiracy
    to possess multiple kilograms of cocaine with intent to distribute,
    and of two specific instances of cocaine possession with intent to
    distribute, both occurring in the course of the conspiracy. On
    appeal, Arizaga claims that the court erred in failing to grant a
    new trial in light of allegedly newly discovered exculpatory
    evidence. He also argues that he was deprived of effective
    assistance of counsel at trial, and that the evidence was
    insufficient to sustain his convictions. We affirm.
    The indictment alleged that Arizaga and sixteen other
    named conspirators were involved in a series of cocaine
    transactions dating from November 1993 through July 1996 in which
    cocaine was purchased in Puerto Rico and transported to the
    mainland using a variety of methods. The government's case relied
    primarily on the testimony of Luis Ch‚vere, a central figure in
    every drug transaction executed in the course of the conspiracy.
    After being arrested in May 1995 in connection with an attempted
    purchase of ten kilograms of cocaine, Ch‚vere subsequently
    testified as a government witness. A comprehensive description of
    all the transactions in furtherance of the conspiracy may be found
    in our opinion in United States v. Portela, Nos. 97-2353, 97-2354,
    97-2355, slip op. 3-11 (1st Cir. Feb. 9, 1999). For the purposes of
    resolving Arizaga's appeal, we describe only the transactions in
    which he participated directly. "We recite the facts in the light
    most favorable to the verdicts being appealed." United States v.
    Shifman, 124 F.3d 31, 33 (1st Cir. 1997), cert. denied, 118 S. Ct.
    1053 (1998).
    In April 1995, Ch‚vere traveled to Puerto Rico from his
    home in Rochester, New York, in order to purchase a kilogram of
    cocaine as a replacement for several kilograms of cocaine which he
    had previously purchased but which had been interdicted by law
    enforcement. Ch‚vere's usual suppliers were unable to provide him
    with any cocaine and indicated that the supply of cocaine was
    scarce at that time. After several days, Ch‚vere was approached by
    Arizaga, who offered to procure a kilogram of cocaine. At some
    point afterwards Ch‚vere purchased a kilogram of cocaine from
    Arizaga for $14,000. Unhappy with the quality of this cocaine,
    Ch‚vere resold it in Puerto Rico instead of transporting it back to
    the mainland and reselling it there, which had been his usual
    practice. The evidence of this transaction produced at trial
    consisted solely of the testimony of Ch‚vere.
    On May 11, 1995, Victor Rold n-Flores informed Ch‚vere of
    an opportunity to purchase ten kilograms of cocaine. Since Ch‚vere
    did not have enough cash to complete the transaction, he attempted
    to recruit several others to provide capital and share in the
    purchase. He first spoke to Arizaga, who agreed to try to recruit
    others to the venture. By the morning of May 12th, Arizaga had
    raised enough money to buy one kilogram of the cocaine, and Arizaga
    and Ch‚vere together sought out Samuel Rivera-Maldonado, who agreed
    to buy two of the ten kilograms. The three of them then met Rold n-
    Flores, who was with William Santiago-Col¢n, and all five men went
    to a Burger King in Isla Verde. Arizaga went in Rivera-Maldonado's
    truck, in which the pooled money of all five buyers had been
    stowed. Arizaga had contributed $13,000 to the pool. Rold n-Flores
    recognized his supplier driving into the parking lot of the plaza
    where the Burger King was located; Rold n-Flores went out into the
    parking lot to speak to the supplier. Rold n-Flores then returned
    to the restaurant and asked Ch‚vere and Rivera-Maldonado to go out
    into the lot and get the money from the truck. The supplier was in
    fact an undercover Drug Enforcement Administration agent, and all
    five buyers were arrested. Arizaga was in the lavatory of the
    Burger King when he was arrested. The evidence of this transaction
    adduced at trial was the testimony of Ch‚vere and of the two law
    enforcement officers who had conducted surveillance inside the
    Burger King during the sting operation.
    After Ch‚vere was released on bail, he decided to
    cooperate with the government. Arizaga had been released later in
    the day after his arrest on May 12, 1995, but he was rearrested in
    July 1996 in light of inculpatory information provided to law
    enforcement by Ch‚vere. Arizaga was charged in three counts of the
    indictment. Count One charged conspiracy to possess with intent to
    distribute cocaine. Count Twelve charged him with possession with
    intent to distribute one kilogram of cocaine in connection with the
    April 1995 sale to Ch‚vere. Count Fourteen charged him with
    attempting to possess with intent to distribute ten kilograms of
    cocaine in connection with the Burger King events in May 1995.
    Arizaga was convicted of all three counts in a jury trial. Shortly
    after conviction, Arizaga filed a pro se motion to dismiss his
    trial counsel; his counsel then requested that he be allowed to
    withdraw and the court granted this motion. Sentencing proceeded
    with new counsel (David W. Rom n), and Arizaga was sentenced to
    concurrent terms of 60 and 121 months in prison followed by two
    concurrent five year terms of supervised release, and a special
    monetary assessment. This appeal followed.
    On July 21, 1997, after trial but before sentencing,
    Arizaga (represented by current counsel David W. Rom n) filed a
    motion for a new trial, based on trial counsel's alleged
    ineffective assistance. This motion was denied by the court. On
    August 20, 1997, Arizaga filed a renewed motion for a new trial
    accompanied by a statement from Samuel Rivera-Maldonado, a co-
    defendant who had pled guilty. Rivera-Maldonado's statement
    indicates that
    Mr. Arizaga . . . is completely innocent of
    any wrongdoing in this case and had nothing to
    do with the criminal acts charged against him.
    To my knowledge, Mr. Arizaga . . . is
    completely innocent of the charges against him
    because he had nothing to do with criminal
    acts described in the indictment in this case.

    This motion was also denied by the court. Rivera-Maldonado's typed
    statement is dated April 2, 1997, but the word "June" is typed on
    the document, crossed out in ink, and the word "April" written by
    hand in its place.
    Federal Rule of Criminal Procedure 33 authorizes a new
    trial "if required in the interest of justice." A Rule 33 motion
    for a new trial based on newly discovered evidence will not be
    allowed unless "the movant establishes that the evidence was: (i)
    unknown or unavailable at the time of trial, (ii) despite due
    diligence, (iii) material, and (iv) likely to result in an
    acquittal upon retrial." United States v. Tibolt, 72 F.3d 965, 971
    (1st Cir. 1995). If any of these four factors are missing, "then a
    Rule 33 motion must be denied." United States v. Natanel, 938 F.2d
    302, 313 (1st Cir. 1991). We review the denial of a motion for a
    new trial for "manifest abuse of discretion." Tibolt, 72 F.3d at
    Even assuming arguendo the unavailability of Rivera-
    Maldonado's statement and testimony at Arizaga's trial, the due
    diligence of trial counsel, and the materiality of the new
    evidence, we must ask whether this evidence was likely to result in
    acquittal on retrial. There was no such likelihood. Attempts by one
    defendant to take full responsibility for a crime after his guilt
    has been established, or to exonerate a co-defendant, are common
    and are properly viewed with skepticism. See United States v.
    Benavente Gomez, 921 F.2d 378, 383 (1st Cir. 1990). Rivera-
    Maldonado's statement is conclusory in nature and contains nothing
    that might account for or seriously cast doubt upon the directly
    contradictory testimony of Ch‚vere or that of the police officers
    present at the Burger King. Under such circumstances, we conclude
    that the introduction of Rivera-Maldonado's testimony would not
    have been likely to result in Arizaga's acquittal upon retrial. The
    court did not abuse its discretion in denying the motion for a new
    Arizaga contends that he was deprived of the effective
    assistance of counsel because his trial counsel allegedly failed to
    call Rivera-Maldonado as a witness, interview the manager of the
    Burger King restaurant where the arrests were made (who allegedly
    would have testified that Arizaga arrived separately from the other
    defendants), present the government's videotape of the events
    taking place in the parking lot of the Burger King (so as to
    establish that Arizaga was not present in the parking lot), and
    discover and present medical evidence of Arizaga's chronic
    gastrointestinal illness (presumably so as to establish that
    Arizaga was not necessarily simply hiding from the police in the
    lavatory). Arizaga also alleges that counsel frustrated his right
    to take the stand.
    Ineffective assistance of counsel claims require the
    defendant to show that counsel's performance was constitutionally
    deficient and that the deficient performance prejudiced the
    defense. Because both findings typically require the resolution of
    factual issues by a trial judge, we have generally declined to
    resolve such claims on direct appeal unless the record is
    sufficiently developed to permit review of the claim. See United
    States v. Berrios, 132 F.3d 834, 840 (1st Cir. 1998). The court
    issued no findings as to trial counsel's performance in rejecting
    Arizaga's two Rule 33 motions. We have no indication of what
    tactical considerations may have motivated counsel's decisions not
    to call Rivera-Maldonado or present the videotape, nor do we have
    evidence of the extent of counsel's discovery efforts. The
    affidavit of counsel in the record indicates only that counsel
    informed Arizaga of his right to testify. Therefore, the record
    before us is inadequate to resolve the ineffective assistance of
    counsel claim raised by Arizaga, and we decline to address it.
    Arizaga moved for a judgment of acquittal, pursuant to
    Federal Rule of Criminal Procedure 29, at the close of the
    government's case and again at the close of all the evidence. Rule
    29 allows for entry of a judgment of acquittal "if the evidence is
    insufficient to sustain a conviction." Arizaga argues that the
    evidence against him was insufficient because he "was convicted
    solely on the uncorroborated accomplice testimony of Luis
    [Ch‚vere], given more than a year after the events charged in the
    indictment." Arizaga claims the delay and the alleged lack of
    corroboration make Ch‚vere's testimony "facially incredible" and
    "unbelievable as a matter of law." In assessing a sufficiency
    challenge, "we review the record to determine whether the evidence
    and reasonable inferences therefrom, taken as a whole and in the
    light most favorable to the prosecution, would allow a rational
    jury to determine beyond a reasonable doubt that the defendant was
    guilty as charged." United States v. Alicea-Cardoza, 132 F.3d 1, 5
    (1st Cir. 1997) (internal quotation marks omitted).
    "[A] conviction based solely upon the uncorroborated
    testimony of an accomplice can be upheld, as long as the jury is
    properly instructed and the testimony is not incredible as a matter
    of law." United States v. Hern ndez, 109 F.3d 13, 15 (1st Cir.
    1997). In this case, "[t]he judge gave complete and correct
    instructions detailing the special care the jury should take in
    assessing the testimony," United States v. Ortiz-Arrigoitia, 996
    F.2d 436, 438-39 (1st Cir. 1993), and Ch‚vere's testimony was not
    "incredible or insubstantial on its face," United States v. Aponte-
    Suarez, 905 F.2d 483, 488 (1st Cir. 1990). Ch‚vere's testimony as
    to the May transaction was in fact substantially corroborated by
    the testimony of the two police officers who provided surveillance
    at the Burger King and participated in the arrests. Moreover,
    nothing about the delay between the time of Ch‚vere's arrest and
    the time at which he implicated Arizaga while cooperating with the
    government (at most, fourteen months) made his testimony incredible
    as a matter of law. A rational juror could have relied upon it to
    find Arizaga guilty beyond a reasonable doubt.