United States v. Ortiz-Medina ( 1999 )

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<pre> [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 96-1996 UNITED STATES, Appellee, v. DANIEL J. ORTIZ-MEDINA, a/k/a FLATTOP, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domnguez, U.S. District Judge] Before Selya, Boudin and Lynch, Circuit Judges. Marlene Aponte Cabrera on brief for appellant. Guillermo Gil, United States Attorney, Jose A. Quiles- Espinosa, Senior Litigation Counsel, Camille Velez-Rive, Assistant United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, on brief for appellee. July 16, 1999 Per Curiam. Defendant-appellant Daniel Ortiz-Medina appeals from his conviction and sentence on several grounds. Based upon a thorough review of the record and the briefs, we conclude for the following reasons that "no substantial question is presented" by this appeal. See Loc. R. 27.1. I. Ineffective Assistance of Counsel "The rule in this circuit is that a fact-specific claim of ineffective assistance cannot be raised initially on direct review of a criminal conviction but must originally be presented to the district court." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). Although Ortiz presented his ineffective assistance of counsel claims in his motion for new trial under Fed.R.Crim.P. 33, the district court properly construed the claims as appropriately brought pursuant to 28 U.S.C 2255. See United States v. Lema, 909 F.2d 561, 566 (1st Cir. 1990)(holding that a claim of ineffective assistance of counsel is not newly discovered for the purposes of Rule 33 when based on facts known to the defendant at the time of trial). The district court also properly dismissed the claims (without prejudice), because this appeal was pending at the time and Ortiz failed to make a showing of extraordinary circumstances. See United States v. Buckley, 847 F.2d 991, 993 n.1 (1st Cir. 1988). Ortiz' ineffective assistance of counsel claims are denied without prejudice to his presenting them to the district court in a 2255 motion. II. Rule 33 Motion "The district court's denial of the motion for a new trial is reviewable only for a manifest abuse of discretion." United States v. Montilla-Rivera, 115 F.3d 1060, 1064 (1st Cir. 1997). "A motion for 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). Under the fourth requirement, "the evidence must create an actual probability that an acquittal would have resulted if the evidence had been available." United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993). Ortiz' motion was based upon "new evidence of untruthfulness" on the part of one of the government witnesses. "Neither our decisions nor those of other circuits have been sympathetic to new trial claims based solely on the discovery of additional information useful for impeaching a government witness." Sepulveda, 15 F.3d at 1220, n.5; see also United States v. Formanczyk, 949 F.2d 526, 531 (1st Cir. 1991). As the district court emphasized, the argument for granting a new trial on the basis of such evidence is particularly weak here because the witness in question admitted at Ortiz' trial to having lied to federal authorities. Ortiz has failed to show that the denial of the Rule 33 motion amounted to a "manifest abuse of discretion." III. Federal Rule of Evidence 404(b) Because Ortiz failed to object at trial to the evidence that he now argues was evidence of "other crimes, wrongs or acts," this court reviews the admission of the evidence for plain error only. See United States v. Carrillo- Figueroa, 34 F.3d 33, 40 (1st Cir. 1994). "Under the plain error standard of review, 'appellant bears the burden of persuasion to establish that there was an error, that the error was clear or obvious, and that the error affected substantial rights.'" United States v. Cruz, 156 F.3d 22, 30 (1st Cir. 1998) (citation omitted), cert. denied, __ U.S. __, 119 S.Ct. 1781 (1999). Ortiz specifically objects to questioning of the government witnesses from which, Ortiz argues, the jury could have inferred that Ortiz participated in murders. The transcript of the trial, however, reveals that the government and the court successfully kept the witnesses from referring to the murders in their testimony. There is no suggestion from the transcripts of an "error so obvious that it could rise to the level of substantial and fundamental prejudice required by plain error review." United States v. Graham, 146 F.3d 6, 11 (1st Cir. 1998). IV. Sentencing Ortiz argues that Fed.R.Crim.P. 32 was violated in his case because the district court failed to 1) provide defendant with a copy of the PSR until the day of sentencing, and 2) verify that defendant and defendant's counsel had read and discussed the PSR. Ortiz also contends that the probation officer abandoned her neutrality in the positions she took in his PSR, in violation of Rule 32. The transcript of the sentencing hearing reveals that neither Ortiz nor his attorney indicated to the court that more time was needed to review the PSR. "[T]he failure to invoke [the section of Rule 32 setting forth the time frame within which the defendant must be provided with a copy of the PSR] or request a continuance effectively waives the claim, absent a miscarriage of justice." United States v. Barrows, 996 F.2d 12, 14 (1st Cir. 1993). Ortiz has failed to make a showing that a miscarriage of justice resulted from his receipt of the PSR on the day of sentencing. Ortiz argues that the court's failure to inquire at sentencing whether he had read the report and discussed it with his attorney "is itself sufficient to have the case remanded for resentencing." Appellant's Brief, p. 20. "However, binding precedent in this circuit has directed that if it is abundantly clear from the sentencing hearing that both defendant and his counsel are familiar with the report, a new sentencing hearing will not be mandated, even if the court failed to directly inquire whether defendant had an opportunity to review the report." United States v. Manrique, 959 F.2d 1155, 1157 (1st Cir. 1992). The sentencing transcript demonstrates that Ortiz and his attorney were familiar with the PSR. Defense counsel objected to several aspects of the PSR which were discussed in detail. The transcript includes references by defense counsel to discussion of aspects of the PSR with Ortiz. On this record, it appears that the standard of demonstrated familiarity with the PSR was met. See Manrique, supra, p. 1158 (noting that counsel's specific reference to the PSR "clearly indicat[ed] that he read the report"). Moreover, Ortiz does not allege on appeal that he did not receive a copy of the PSR, instead objecting to the district court's failure to verify the receipt. Under like circumstances, this court has found that the requirements of Rule 32(c)(3)(A) were met. See United States v. Cruz, 981 F.2d 613, 620 (1st Cir. 1992). Finally, Ortiz argues that the probation officer who prepared the PSR violated Rule 32 by engaging in advocacy and abandoning her proscribed role as a neutral arm of the court. This court has interpreted the role of the probation officer under the guidelines to include the "exercise [of] his independent judgment as to the application of the guidelines. . . . Anything less would be a dereliction of duty." United States v. Fraza, 106 F.3d 1050, 1056 (1st Cir. 1997). None of the aspects of the PSR which Ortiz relies upon as demonstrations of the probation officer's "advocacy" evince more than "exercise [of the probation officer's] independent judgment as to the application of the guidelines." Id. Ortiz' conviction and sentence are affirmed. See Loc. R. 27.1. This affirmance is without prejudice to Ortiz' right to present his claim of ineffective assistance of counsel pursuant to 28 U.S.C. 2255. </pre>

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