United States v. Vasquez ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1930
UNITED STATES OF AMERICA,
Appellee,
v.
HUGO SANTANA-DONES, t/n Rafael Jose Ventura, a/k/a Raffi, a/k/a
Rafael Ventura, a/k/a Hugo Santana, a/k/a Wilthron Flores,
Defendant, Appellant.
No. 17-1970
UNITED STATES OF AMERICA,
Appellee,
v.
ELVIS GENAO, a/k/a Cocolo,
Defendant, Appellant.
No. 17-2103
UNITED STATES OF AMERICA,
Appellee,
v.
FELIX MELENDEZ, a/k/a Felo, a/k/a Felito,
Defendant, Appellant.
No. 17-2113
UNITED STATES OF AMERICA,
Appellee,
v.
OSVALDO VASQUEZ, a/k/a Chu Chu, a/k/a Anthony Christopher,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Lynch, Selya, and Boudin,
Circuit Judges.
Karen A. Pickett and Pickett Law Offices, P.C. on brief for
appellant Santana-Dones.
Leslie W. O'Brien on brief for appellant Genao.
Alan Jay Black on brief for appellant Melendez.
Marie Theriault on brief for appellant Vasquez.
Andrew E. Lelling, United States Attorney, and Alexia R. De
Vincentis, Assistant United States Attorney, on brief for
appellee.
March 29, 2019
SELYA, Circuit Judge. For the most part, these
consolidated appeals turn on a single issue: whether the district
court erred in concluding that the court which issued the wiretap
warrant could have found the facts in the application to be at
least minimally adequate to support the issuance of the warrant.
We resolve that issue favorably to the government, conclude that
the defendants' unified challenge to the wiretap is unavailing,
determine that the separate claims of error mounted by one of the
defendants are meritless, and affirm the judgments below.
I. BACKGROUND.
We rehearse here only those facts necessary to place
these appeals in perspective. In the summer of 2014, the Drug
Enforcement Administration (DEA), assisted by local law
enforcement officers, began investigating the drug-trafficking
activities of defendant-appellant Osvaldo Vasquez and his cohorts,
including defendants-appellants Hugo Santana-Dones, Elvis Genao,
and Felix Melendez. During the next year, the investigators relied
heavily on two confidential sources, who were buyers, to gather
evidence of the defendants' drug-trafficking activities. All
told, these confidential sources carried out controlled purchases
of nearly 500 grams of heroin and heroin laced with fentanyl and
methamphetamine. They also arranged to purchase at least one
kilogram of cocaine.
- 3 -
DEA agents supplemented the efforts of these
confidential sources through traditional investigative techniques
such as physical surveillance and the use of a pen register. In
September of 2014, the agents obtained a warrant from a federal
magistrate judge, pursuant to 18 U.S.C. § 3117 and Federal Rule of
Criminal Procedure 41(e)(2)(C), authorizing the installation of a
GPS tracking device on a vehicle driven by Vasquez during certain
observed drug sales. The agents then went a step further and,
from April to July of 2015, made use of a wiretap of Vasquez's
cellular telephone, which had been authorized and periodically
renewed by a federal district judge pursuant to 18 U.S.C. § 2518.
Matters came to a head in August of 2015 when DEA agents,
accompanied by local officers, executed search warrants at six
locations linked to the defendants (five in Massachusetts and one
in Rhode Island). Arrest warrants had also been obtained and all
four defendants were arrested at that time. Large quantities of
heroin and cocaine, as well as drug paraphernalia and a firearm,
were recovered in the process.
The next month, a federal grand jury sitting in the
District of Massachusetts handed up an indictment charging all
four defendants with conspiracy to distribute and to possess with
intent to distribute heroin and cocaine and distribution and
possession with intent to distribute heroin and/or cocaine. See
21 U.S.C. §§ 841(a)(1), 846. Vasquez alone was charged with
- 4 -
possession of a firearm in furtherance of a drug-trafficking crime.
See 18 U.S.C. § 924(c). All the defendants initially maintained
their innocence and moved to suppress any and all evidence
garnered, directly or indirectly, through the use of the wiretap.
The defendants argued that the affidavit in support of the
application for the wiretap failed to satisfy the statutory
requirement that the government demonstrate necessity. See 18
U.S.C. § 2518 (1)(c). The government opposed the motion.
Following a non-evidentiary hearing, the district court took the
matter under advisement and, on October 11, 2016, found the showing
of necessity sufficient and denied the motion.
Starting around this time, Vasquez experienced a number
of changes in his legal representation. Counsel 2A and 2B,
appointed just before Vasquez's arraignment, withdrew shortly
after the denial of the motion to suppress, citing a breakdown in
the attorney-client relationship. Vasquez's next attorney
(Counsel 3) represented him for less than a month before
withdrawing on December 5 due to a conflict. His successor
(Counsel 4) was appointed on December 8, 2016.
Less than one month later, Vasquez moved for a 90-day
extension of time to file additional motions to suppress. The
government opposed the motion, and the district court denied it on
January 24, 2017. The court subsequently rejected Vasquez's motion
for reconsideration.
- 5 -
In due course, the four defendants pleaded guilty to all
the charges, reserving the right to challenge the district court's
suppression-related rulings and to claim ineffective assistance of
counsel. See Fed. R. Crim. P. 11(a)(2). After accepting the
quartet of pleas, the district court sentenced Santana-Dones to
serve an 80-month term of immurement; sentenced Genao to serve 37
months; sentenced Melendez to serve 70 months; and sentenced
Vasquez (whom both the government and the court regarded as the
ring leader) to serve 125 months. These timely appeals followed,
and we consolidated them for briefing and oral arguments. On
appeal, all of the defendants pursue their challenges to the
suppression-related rulings but only Vasquez attempts to pursue an
ineffective assistance of counsel claim.
II. THE WIRETAP EVIDENCE.
"When assaying a district court's ruling on a motion to
suppress wiretap evidence, we review its factual findings for clear
error and its legal conclusions de novo." United States v. Gordon,
871 F.3d 35, 43 (1st Cir. 2017). Applying this standard, the
pivotal question is whether "the facts set forth in the application
were minimally adequate to support the determination that was
made." United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir.
2003) (quoting United States v. Ashley, 876 F.2d 1069, 1074 (1st
- 6 -
Cir. 1989)).1 The district court answered this question in the
affirmative and, to find clear error, we "must form a strong,
unyielding belief, based on the whole of the record, that a mistake
has been made." United States v. Rodrigues, 850 F.3d 1, 6 (1st
Cir. 2017) (quoting United States v. Siciliano, 578 F.3d 61, 67
(1st Cir. 2009)). Put another way, we will "affirm under the clear
error standard 'if any reasonable view of the evidence supports'
the district court's finding." Id. (quoting Siciliano, 578 F.3d
at 68).
In this instance, "[o]ur inquiry is guided by Title III
of the Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C. §§ 2510-2522, which governs the rules for federal telephone
wiretaps." United States v. Rose, 802 F.3d 114, 118 (1st Cir.
2015). "Title III provides a comprehensive scheme for the
regulation of electronic surveillance, prohibiting all secret
interception of communications except as authorized by certain
state and federal judges in response to applications from specified
federal and state law enforcement officials." Rodrigues, 850 F.3d
at 6 (quoting Dalia v. United States, 441 U.S. 238, 249 (1979)).
1 Santana-Dones acknowledges that this is the correct standard
of review under our circuit precedent, but "wishes to preserve for
the record [the argument] that such a standard does not comport
with statutory requirements or with due process under the Fifth
Amendment because it relieves the Government of its burden of
proof." Given his concession, we need not dwell upon the argument
that he wishes to preserve.
- 7 -
Congress has made pellucid the law's main purposes: "(1)
protecting the privacy of wire and oral communications, and (2)
delineating on a uniform basis the circumstances and conditions
under which the interception of wire and oral communications may
be authorized." Gelbard v. United States, 408 U.S. 41, 48 (1972)
(quoting S. Rep. No. 90-1097, at 66 (1968), as reprinted in 1968
U.S.C.C.A.N. 2153)). It follows, then, that "wiretapping is to be
distinctly the exception — not the rule." United States v.
Hoffman, 832 F.2d 1299, 1307 (1st Cir. 1987).
To ensure that the exception does not swallow the rule,
the law "imposes a set of statutory requirements on top of the
constitutional requirements applicable to ordinary search
warrants." United States v. Burgos-Montes, 786 F.3d 92, 101 (1st
Cir. 2015). Of particular pertinence for present purposes, the
wiretap application must contain (in addition to the foundational
showing of probable cause) "a full and complete statement as to
whether or not other investigative procedures have been tried and
failed or why they reasonably appear to be unlikely to succeed if
tried or to be too dangerous." United States v. Nelson-Rodriguez,
319 F.3d 12, 32 (1st Cir. 2003) (quoting 18 U.S.C. § 2518(1)).
"This aptly-named 'necessity' prong requires the government to
have 'made a reasonable, good faith effort to run the gamut of
normal investigative procedures before resorting to means so
intrusive as electronic interception of telephone calls.'" Rose,
- 8 -
802 F.3d at 118 (quoting United States v. Cartagena, 593 F.3d 104,
109 (1st Cir. 2010)).
Of course, necessity is "a relative term — and it is
context-specific." Gordon, 871 F.3d at 46. Necessity must,
therefore, "be viewed through the lens of what is pragmatic and
achievable in the real world." Id. at 45. This is particularly
true in cases — like this one — that involve large, complex drug-
trafficking networks: "[b]ecause drug trafficking is inherently
difficult to detect and presents formidable problems in pinning
down the participants and defining their roles, investigative
personnel must be accorded some latitude in choosing their
approaches." United States v. David, 940 F.2d 722, 728 (1st Cir.
1991).
In the case at hand, the government pinned its hopes for
a wiretap authorization on an affidavit executed by Michael P.
Boyle, a DEA special agent.2 The defendants challenge the adequacy
of this affidavit as a means of demonstrating necessity. Although
their challenge is multi-dimensional, their central thesis is that
the government gave short shrift to traditional investigative
procedures and sought to resort to wiretap surveillance with
2 At the time he submitted the affidavit, Boyle had been a
DEA special agent for over twenty-four years and had served as the
case agent for numerous high-priority drug and gang cases. In his
own words, he had received "hundreds of hours of additional
specialized training in narcotics law enforcement, including
courses in drug trafficking, criminal enterprises and gangs."
- 9 -
precipitous haste. The district court rejected this thesis,
determining that the government "made a reasonably good faith
effort to run the gam[ut] of normal investigative procedures before
resorting to electronic surveillance."
We begin with bedrock: the Supreme Court has warned
that a wiretap is "not to be routinely employed as the initial
step in criminal investigation." United States v. Giordano, 416
U.S. 505, 515 (1974). Even so, "the government need not
demonstrate that it exhausted all investigative procedures" before
turning to a wiretap. Santana, 342 F.3d at 65. To strike this
balance, a reviewing court must examine whether reasonable
procedures were attempted (or at least thoroughly considered)
prior to seeking a wiretap. See United States v. Lopez, 300 F.3d
46, 52 (1st Cir. 2002). Relatedly, the court must examine the
need for a wiretap in light of what those procedures yielded. See
United States v. Delima, 886 F.3d 64, 70 (1st Cir. 2018).
The defendants counter that the government made a
gadarene rush to employ electronic surveillance and that, as a
result, its attempt to show necessity is unconvincing. Here,
however, the district court supportably determined that Boyle's
affidavit was sufficient to allay any reasonable concern that the
wiretap was being sought prematurely. The affidavit demonstrated
that the government had employed (and exhausted) a number of
traditional investigative measures over the course of more than
- 10 -
six months, which included obtaining information from confidential
sources and informants; conducting protracted physical
surveillance; participating in controlled drug buys; issuing
administrative subpoenas for telephone, rental car, and travel
records; and analyzing telephone records and pen register data.
The district court found that nothing in Boyle's affidavit, fairly
read, suggested an effort on the government's part to shortcut
normal procedures. This finding easily passes muster under clear
error review.
Next, the defendants assert that the affidavit
demonstrated the opposite of what the government intended. Rather
than showing that the procedures employed to that point had failed
to achieve the goals of the investigation, the affidavit — as
Santana-Dones says in his brief — is a testament to the
government's "great investigative success by traditional
investigative means." He adds that the government "had more than
enough 'goods' to pursue criminal prosecution but instead wanted
to get to bigger fish." Seen in this light, the defendants
contend, the more intrusive wiretap procedure was not necessary.
The district court rejected this contention, and so do
we. The inquiry into whether the government has sufficiently
demonstrated necessity does not hinge on whether it already has
garnered enough goods to pursue criminal prosecution. After all,
an application for a wiretap will always have to disclose some
- 11 -
meaningful level of previous success in order to satisfy the
probable cause requirement and justify further investigation. See
Rose, 802 F.3d at 119 n. 1; Nelson-Rodriguez, 319 F.3d at 32.
Thus, the inquiry must be directed to whether traditional
investigative procedures already have succeeded or would be likely
to succeed in laying bare the full reach of the crimes that are
under investigation. See Delima, 886 F.3d at 70; Villarman-Oviedo,
325 F.3d at 10. If not, the government may be able — as here — to
show the need for a wiretap in order to complete its investigation.
See Rose, 802 F.3d at 119 (holding that some level of success in
investigation did not foreclose a finding of necessity when "the
government was still seeking a wealth of information at the time
that it submitted the wiretap applications").
To be sure, the level of success achieved through a given
procedure will vary in relation to the scope of the investigation
as established by the government. It follows that, in seeking a
wiretap, the government cannot be permitted to set out goals that
are either unrealistic or overly expansive. See Delima, 886 F.3d
at 70. Placing a judicial imprimatur on such a tactic would allow
the government to characterize any level of success as incomplete
and, thus, to portray a wiretap as necessary in virtually every
circumstance. See United States v. Blackmon, 273 F.3d 1204, 1211
(9th Cir. 2001) ("The government may not cast its investigative
- 12 -
net so far and so wide as to manufacture necessity in all
circumstances.").
Here, however, the government's stated investigatory
goals mirror those that we have sanctioned in earlier wiretap
cases. The government's brief summarizes those goals as including
"discovering the sources, delivery means, storage locations, and
distribution methods for the narcotics; locating resources used to
finance the trafficking; and determining how the conspiracy
invested and laundered their drug proceeds." The district court
implicitly found these goals, which focused on locating
distribution sources and tracking funds, both reasonable and
attainable.
Information such as the government sought by means of
the proposed wiretap is meat and potatoes in a drug-trafficking
investigation, not pie in the sky. This helps to explain both why
the stated goals of the investigation appear reasonable and
attainable and why we conclude that the district court's implicit
finding was not clearly erroneous. And in so concluding, we do
not write on a pristine page. For instance, we held in Delima
that the government's investigatory goals were not overly broad
when the government sought to "(1) identify the conspiracy's
leaders; (2) ascertain the names, phone numbers, and addresses of
associates of the conspiracy, including drug suppliers,
distributors, and customers; (3) determine the manner in which
- 13 -
drugs were trafficked [] and stored . . . ; and (4) discover the
methods used by the organization to funnel proceeds back to
individual participants." 886 F.3d at 70. So, too, in United
States v. Martinez, we identified as "discrete and realistic goals
for a criminal drug investigation" the government's stated
objectives of identifying drug suppliers, discerning the manner in
which the organization transported drugs, establishing how
payments were made, pinpointing storage locations, and
understanding how the coconspirators laundered and invested drug
proceeds. 452 F.3d 1, 6 (1st Cir. 2006).
The district court also found that the government's
affidavit described a level of success through traditional
procedures that fell short of meeting these "legitimate and
attainable" goals. Id. at 7. This finding, too, passes muster
under clear error review. We hold, therefore, that the
government's successful use of traditional investigative tools up
to the date of Boyle's affidavit does not defenestrate its showing
of necessity. See United States v. Cao, 471 F.3d 1, 3 (1st Cir.
2006) ("Plainly the partial success of the investigation did not
mean that there was nothing more to be done." (emphasis in
original)).
The defendants launch yet another attack on the
government's showing of necessity. They say that the government
did not sufficiently demonstrate the failure, futility, or danger
- 14 -
of traditional investigative procedures. Their argument rests
heavily on the fact that one of the government's confidential
sources, who previously had engaged only in controlled drug buys,
was invited to work directly for the drug-trafficking organization
but refused on the government's instructions. Building on this
foundation, the defendants maintain that Boyle's affidavit "never
establishe[d] with any logic" why the DEA failed to avail itself
of this opportunity to penetrate the drug ring. Moreover, the
defendants insist that the government presented no evidence of any
likely danger.
Like the district court, we review the government's
assessment that a specific investigative opportunity is overly
dangerous or unlikely to be productive in a "practical and
commonsense manner." Hoffman, 832 F.2d at 1307 (quoting United
States v. Scibelli, 549 F.2d 222, 226 (1st Cir. 1977)). Here,
some of the statements contained in Boyle's affidavit are based,
at least in part, upon his experience as a specially trained agent.
"We have regularly upheld affidavits in support of wiretap
applications where the agents assert a well-founded belief" that
traditional investigative procedures had run their course and that
further use of them would likely prove futile in achieving the
goals of the investigation. Rodrigues, 850 F.3d at 10. So, too,
where the agents assert a well-founded belief that traveling down
- 15 -
a particular investigative avenue would be too dangerous. See,
e.g., Ashley, 876 F.2d at 1075.
Viewed against this backdrop, it is evident that the
mere existence of an opportunity for a government cooperator to
take a more prominent position in the targeted enterprise does not
automatically render a wiretap unnecessary. United States v.
Woods, 544 F.2d 242 (6th Cir. 1976), illustrates this point.
There, a government informant had declined an invitation to become
a "lieutenant" in the enterprise under investigation. Id. at 257.
The defendant moved to suppress subsequently gathered wiretap
evidence on the basis that the government turned down this
invitation. The district court denied the motion, and the Sixth
Circuit affirmed, stating that the informant's opportunity to
"penetrate deeper into a criminal organization under
investigation" did not in any way undermine the government's
showing of necessity. Id.
Boyle's affidavit struck a similar tone. In it, he
highlighted several potential pitfalls. He first reasoned that
even if the confidential source became a member of the drug-
trafficking organization, she was unlikely to gain access to needed
"information such as the identity of the source of supply, the
methods of delivery or the intended transportation route, or the
larger distribution network." In support, Boyle noted the high
degree of compartmentalization that characterized the drug-
- 16 -
trafficking organization and what would be the source's entry-
level status. Based on these representations — which comprise
appreciably more than "conclusory statements that normal
techniques would be unproductive," Ashley, 876 F.2d at 1022 — the
district court concluded that the government sufficiently showed
that the proposed infiltration would in all probability be futile
as a means of achieving certain goals of the investigation and,
thus, did not obviate the necessity for a wiretap. This finding
is not clearly erroneous.
If more were needed — and we doubt that it is — the
district court also gave weight to Boyle's expressed concern that
an attempt to infiltrate the organization could backfire and
jeopardize the entire investigation. Boyle's affidavit
persuasively predicted a greater likelihood of exposure should an
infiltration be attempted, emphasizing the wariness of members of
the drug ring and the fact that the government's other confidential
source had already been compromised. Given these concerns, we
discern no clear error in the district court's determination that
the risk of exposure reinforced the government's decision not to
try the infiltration gambit before seeking a wiretap.3
3 In a related vein, the district court concluded that
pursuing infiltration of the drug-trafficking organization was apt
to be too dangerous. The court based its conclusion on the
inherent perils of asking a government cooperator to work
undercover for a large drug-trafficking organization and the risk
of discovery. Even though Boyle's affidavit was not specific on
- 17 -
In sum, the limited prospect of advancing the
investigation's goals, the potential jeopardy to the confidential
source, and the risk of exposing the investigation coalesced to
provide a firm basis for the district court's conclusion that the
game was not worth the candle. It follows inexorably, as night
follows day, that the opportunity to infiltrate did not render the
proposed wiretap unnecessary.
That ends this aspect of the matter. We hold that the
district court did not err in concluding that the wiretap
application, read in tandem with its supporting affidavit, was
more than minimally adequate to justify the authorization of a
wiretap. Consequently, we reject the defendants' unified claim of
error.
this score — it stated, in conclusory terms, only that the
government feared that an attempt to infiltrate the organization
would "pose a serious risk to the personal safety" of the
confidential source — the status and circumstances of the
investigation justified a reasoned belief that the proposed
infiltration was fraught with danger. See Gonzalez, 412 F.3d at
1115 ("Quite sensibly, the necessity requirement for a wiretap
order does not compel law enforcement officers to use traditional
investigative strategies at the risk of danger to themselves or
others."); United States v. Smith, 31 F.3d 1294, 1300 (4th Cir.
1994) (affirming district court's finding that infiltration was
"too dangerous to be a reasonable option"); see also United States
v. Mills, 710 F.3d 5, 13 (1st Cir. 2013) (stating that "snitching
is dangerous work, and informants literally put their lives on the
line by doing what they do").
- 18 -
III. THE REMAINING CLAIMS.
Vasquez — who is represented in this court by yet another
counsel — advances two more claims of error. First, he submits
that the district court erred in denying his motion for an
extension of time within which to file additional motions to
suppress. Second, he submits that certain of his prior lawyers
(Counsel 2A, 2B, and 3) abridged his Sixth Amendment right to
effective assistance of counsel. We discuss these claims of error
sequentially.
A. Extension of Time.
Court-imposed deadlines are often used to ensure the
orderly administration of justice — and quite properly so. In
federal criminal cases, district courts typically set such
deadlines for the filing of pretrial motions. This practice is
memorialized in Federal Rule of Criminal Procedure 12(c)(1), which
provides in pertinent part that a district court may, in its
discretion, "set a deadline for the parties to make pretrial
motions." The court may enlarge or revise such a deadline at any
time before trial. See Fed. R. Crim. P. 12(c)(2).
When a party seeks to file a pretrial motion out of time,
the district court may, upon a showing of "good cause," grant such
a motion. Fed. R. Crim. P. 12(c)(3). This good cause standard
gives Rule 12(c) some bite, underscoring the district court's
authority to set and enforce motion-filing deadlines. Cf. United
- 19 -
States ex. rel. D'Agostino v. EV3, Inc., 802 F.3d 188, 194 (1st
Cir. 2015) (discussing civil analogue to Rule 12(c)). We review
a district court's decision to deny relief under Rule 12(c)(3)
solely for abuse of discretion. See United States v. Arias, 848
F.3d 504, 513 (1st Cir. 2017); United States v. Santos Batista,
239 F.3d 16, 20 (1st Cir. 2001).
We move now from the general to the specific. Early on,
the parties in this case filed a joint memorandum, see D. Mass. R.
116.5(c), setting a June 13, 2016, deadline for filing pretrial
motions to suppress. The district court acquiesced in this
deadline, and the defendants twice obtained judicial extensions of
it. The latest version of the deadline expired on July 18, 2016.
By then, the defendants had filed their joint motion to suppress
the wiretap evidence. See supra Part II.
The district court denied the joint suppression motion
on October 11, 2016. Vasquez's lawyers (Counsel 2A and 2B)
withdrew shortly thereafter. They were succeeded by Counsel 3,
who served in that capacity for less than a month and withdrew on
December 5, 2016. Three days later, the district court appointed
Counsel 4 to represent Vasquez.
On January 3, 2017, Counsel 4 moved for a 90-day
extension of time within which to file a motion to suppress.
Counsel 4 indicated that Vasquez wished to file a motion to
suppress evidence obtained from the search of his home and
- 20 -
"possibly" another motion to suppress wire communications. In a
hearing on the motion to extend, Counsel 4 doubled down, stating
that Vasquez also wished to move to suppress the fruits of the GPS
tracking warrant.
Because Vasquez's motion for an extension effectively
sought leave to file untimely motions, it directly implicated Rule
12(c)(3)'s good cause standard. See United States v. Sweeney, 887
F.3d 529, 534 (1st Cir.), cert. denied, 139 S. Ct. 322 (2018). We
have interpreted the good cause standard to require a showing of
both cause (that is, a good reason for failing to file a motion on
time) and prejudice (that is, some colorable prospect of cognizable
harm resulting from a failure to allow the late filing). See
Arias, 848 F.3d at 513; Santos Batista, 239 F.3d at 19. "Such a
showing is, by its very nature, fact-specific." United States v.
Ayer, 857 F.2d 881, 885 (1st Cir. 1988).
In the court below, Vasquez's attempt to show good cause
consisted of characterizing his prior lawyers as either too busy
to file timely motions or simply guilty of dereliction of duty.
For example, he suggested that Counsel 2A and 2B "surely spent the
bulk of [their] time reviewing the voluminous related discovery
and preparing the very well-crafted motion and memorandum" on the
wiretap suppression motion and, thus, did not have enough time to
file other motions to suppress. He surmised that Counsel 2A and
2B would have filed these additional motions if they had more time,
- 21 -
and that their failure to file these motions indicated some
irredeemable flaw in their representation.
The district court rejected Vasquez's speculative
arguments, finding that Counsel 2A and 2B had "ample opportunity
to prepare and present the issues," especially since the relevant
deadline had been suggested by the defendants and twice extended
by the court. The district court further found that Vasquez had
been represented by "experienced, able and qualified" attorneys
and that he could not "avail himself of a 'do over' [simply]
because he ha[d] successor counsel."
We detect nothing resembling an abuse of discretion in
the district court's conclusion that Vasquez failed to demonstrate
good cause for reopening the motion-filing deadline over five
months after it had expired. Good cause for allowing a defendant
to file motions out of time demands more than the appearance of
new counsel seeking to second-guess the decisions of prior counsel.
See United States v. Trancheff, 633 F.3d 696, 698 (8th Cir. 2011).
After all, allowing new counsel to reopen an expired deadline in
order to pursue strategic options forgone by prior counsel would
put a premium on changing counsel and unfairly advantage the
defendant.
Nor is there any basis for a claim that Vasquez was
subjected to unreasonable temporal constraints. His then-counsel
participated in the setting of the original deadline for filing
- 22 -
motions to suppress, and the district court twice obliged the
defendants (including Vasquez) when they sought to enlarge this
deadline. All told, Vasquez had a total of 297 days from the date
of his arraignment until the expiration of the extended deadline
within which to file pretrial motions. That was ample time for
his counsel to prepare and file any strain of suppression motion.
To say more about this claim of error would be pointless.
We conclude, without serious question, that the district court
acted well within the wide encincture of its discretion in denying
Vasquez's motion to extend.
B. Ineffective Assistance of Counsel.
Vasquez also argues that several of his prior lawyers
(namely, Counsel 2A, 2B, and 3) were constitutionally ineffective
in representing him. See U.S. Const. amend. VI; see also
Strickland v. Washington, 466 U.S. 668, 687 (1984). This claim of
error, though, was not adjudicated in the district court. While
Vasquez's motion to extend alleged that ineffective assistance of
counsel was one of the reasons explaining the untimeliness of the
motion, he did not make a Sixth Amendment claim at that time.
Consequently, no attempt was made to develop a record that might
be suitable for the adjudication of such a claim.
"We have held with a regularity bordering on the
monotonous that fact-specific claims of ineffective assistance
cannot make their debut on direct review of criminal convictions,
- 23 -
but, rather, must originally be presented to, and acted upon by,
the trial court." United States v. Mala, 7 F.3d 1058, 1063 (1st
Cir. 1993). In adopting this prudential praxis, we have reasoned
that "such claims typically require the resolution of factual
issues that cannot efficaciously be addressed in the first instance
by an appellate tribunal." Id. More particularly, "'why counsel
acted as he did [is] information rarely developed in the existing
record,' and this information is crucial to resolve an ineffective
assistance claim." United States v. Vázquez-Larrauri, 778 F.3d
276, 294 (1st Cir. 2015) (emphasis and alteration in original)
(quoting United States v. Torres-Rosario, 447 F.3d 61, 64 (1st
Cir. 2006)). Unless "the critical facts are not genuinely in
dispute and the record is sufficiently developed to allow reasoned
consideration" of a claim of ineffective assistance, a criminal
defendant who wishes to pursue such a claim must do so in a
collateral proceeding. United States v. Natanel, 938 F.2d 302,
309 (1st Cir. 1991).
Apparently mindful that, over the years, we have
resolutely hewed to this principle, see, e.g., United States v.
Miller, 911 F.3d 638, 642, 646 (1st Cir. 2018); United States v.
Kifwa, 868 F.3d 55, 63-64 (1st Cir. 2017); United States v. Torres-
Estrada, 817 F.3d 376, 379 (1st Cir. 2016), Vasquez struggles to
bring his case within the narrow confines of the Natanel exception.
He suggests, based primarily on the assessment of Counsel 4, that
- 24 -
the additional motions to suppress had such obvious merit that the
failure to file them within the allotted time frame was
unquestionably a grave mistake. The premise on which this
suggestion rests is sound: the Natanel exception might apply if
the record was sufficiently developed to demand a conclusion that
the failure to file the additional suppression motions was
"objectively unreasonable 'under prevailing professional norms.'"
United States v. Mercedes-De La Cruz, 787 F.3d 61, 67 (1st Cir.
2015) (quoting Strickland, 466 U.S. at 688). But this is not such
a case.
The searches at issue here were conducted pursuant to
duly issued warrants, so that a court, in each instance, had made
a preliminary determination of probable cause. Moreover, we have
no way of telling, on this incomplete record, why Vasquez's prior
counsel did not file such motions. The rule of Occam's Razor
teaches that the simplest of competing theories should often be
preferred and, here, the obvious reason — that counsel simply did
not believe that the motions would succeed — is entirely plausible.
In a nutshell, the record simply does not justify a finding that
counsel's failure to file additional motions to suppress was
objectively unreasonable under prevailing professional norms.
The short of it is that the relevant facts have not been
adequately developed. And, thus, Vasquez's ineffective assistance
- 25 -
of counsel claim falls squarely within the Mala rule. We therefore
dismiss this claim of error without prejudice.
IV. CONCLUSION.
We need go no further. For the reasons elucidated above,
we affirm the judgments of the district court; without prejudice,
however, to Vasquez's right to raise his ineffective assistance of
counsel claim, should he so elect, in a collateral proceeding
pursuant to 28 U.S.C. § 2255.
So Ordered.
- 26 -