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USCA1 Opinion
October 1, 1992 [NOT FOR PUBLICATION]
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No. 92-1157
RAFAEL MORENO MORALES,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Rafael Moreno Morales on brief pro se.
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Daniel F. Lopez Romo, United States Attorney, Jose A.
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Quiles-Espinosa, Assistant United States Attorney, and Jeanette
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Mercado-Rios, Assistant United States Attorney, on brief for
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appellee.
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Per Curiam. In 1985, in connection with his involvement
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in the infamous Cerro Maravilla incident, Rafael Moreno-
Morales was convicted of six federal offenses: one count of
conspiring to obstruct justice, give false testimony and
suborn perjury, in violation of 18 U.S.C. 371, and five
substantive counts of perjury, in violation of 18 U.S.C.
1621 & 1623. After his convictions were affirmed on appeal,
United States v. Moreno Morales, 815 F.2d 725 (1st Cir.),
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cert. denied, 484 U.S. 966 (1987), he filed the instant pro
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se petition under 28 U.S.C. 2255 for post-judgment relief.
Of the various claims presented in his petition, he has
preserved three for appeal: (1) that two of the perjury
convictions involved multiplicitous counts and thereby
violated Double Jeopardy; (2) that another of the perjury
convictions was invalid because his testimony was literally
true; and (3) that his attorney rendered ineffective
assistance on the direct appeal. We find each of these
contentions to be without merit, and therefore affirm.
I.
The multiplicity argument need not detain us. In Count
14, petitioner was charged with a violation of 18 U.S.C.
1623 for testifying falsely before a federal grand jury on
January 9, 1980. And in Count 18, he was charged with a
violation of 18 U.S.C. 1621 for testifying falsely in a
civil deposition on March 26, 1980, conducted as part of a
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federal civil rights action. Petitioner contends that the
two counts involved the same testimony and therefore did not
charge separate offenses. In Quiles-Hernandez v. United
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States, No. 90-1804 (1st Cir. 1991), we rejected an identical
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argument advanced by one of petitioner's codefendants. We
first noted that such a challenge had not been raised prior
to trial, as required under Fed. R. Crim. P. 12(b)(2), and
therefore had been waived. Id. at 4-5. We also determined
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that the claim was in any event meritless: since one count
involved statements made to the grand jury, while the other
involved statements offered at the civil deposition three
months later, separate offenses had been committed. Id. at
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6-8. The same analysis controls here.
II.
Petitioner's "literal truth" claim involves the
following exchange which occurred during the deposition on
March 26, 1980:
Q. What was the first contact on July 25th with
other persons, other than the ones that were
stationed at Toro Negro?
A. Well, at almost twelve noon Commander Perez and
Lieutenant Quiles and agents from Ponce and other
personnel arrived there.
Q. How many agents from Ponce?
A. I think two.
Q. What other personnel?
A. Perez, Quiles, Carmelo Cruz and two other
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agents from Ponce. I do not recall if there was
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anyone else.
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The indictment charged, in Count 17, that the underlined
answer was perjurious, in that "Carmelo Cruz did not come
from Ponce to Toro Negro with [Perez and Quiles], but that
Nelson Gonzalez-Perez and Jose Montanez-Ortiz came to Toro
Negro with [Perez and Quiles]." Petitioner contends that he
reasonably understood the final question as asking--not what
personnel arrived from Ponce at noon with Perez and Quiles--
but rather what personnel were present at Toro Negro at that
time. And since the evidence established the presence of
Carmelo Cruz at that place and time, he argues that his
response was literally true, even if misleading, and thus not
perjurious. See, e.g., Bronston v. United States, 409 U.S.
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352 (1973).
Generally, "where an answer may or may not be false
depending upon possible interpretations of an ambiguous
question, it is for the jury to decide whether the defendant
has committed perjury." United States v. Finucan, 708 F.2d
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838, 848 (1st Cir. 1983); accord, e.g., Moreno Morales, 815
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F.2d at 745 n.26. An exception to this rule holds that,
where a question is so vague under all the circumstances as
to be "fundamentally ambiguous," the response cannot be
perjurious as a matter of law. See, e.g., United States v.
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Glantz, 847 F.2d 1, 6 (1st Cir. 1988) ("the jury cannot be
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allowed to guess at the witness' understanding of a clearly
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ambiguous question"); United States v. Yasak, 884 F.2d 996,
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1002-03 (7th Cir. 1989); United States v. Lighte, 782 F.2d
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367, 375-76 (2d Cir. 1986); United States v. Martellano, 675
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F.2d 940, 942-43 (7th Cir. 1982).
We find no such fundamental ambiguity in the question at
issue here. At the beginning of the exchange, petitioner
asserted that Perez and Quiles arrived at almost twelve noon
with "agents from Ponce" and "other personnel." The next two
inquiries asked petitioner to elaborate on this statement.
In both questions ("How many agents from Ponce?"; "What other
personnel?"), the questioner tracked the very language just
employed by petitioner. We think it plain that the
questioner thereby implicitly incorporated the factual
predicates contained in petitioner's earlier response--i.e.,
that the question asked was: "What other personnel [arrived
with Perez and Quiles at noon]?" Whatever lack of clarity
may have been lent by the questioner's failure to reiterate
these predicates aloud, we do not find the question so
fundamentally ambiguous as to have warranted acquittal as a
matter of law. See, e.g., United States v. Doherty, 867 F.2d
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47, 69 (1st Cir.) (Bronston did not hold that "a defendant is
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immune from prosecution for perjury whenever some ambiguity
can be found by an implausibly strained reading of the
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questions he is asked"), cert. denied, 492 U.S. 918 (1989).1
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III.
In Moreno Morales, we heard the appeals of petitioner
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and eight of his codefendants on a consolidated basis.
Petitioner was there represented by his trial counsel.
Petitioner now contends, in his final argument, that counsel
provided ineffective assistance during that appeal. He
asserts that counsel failed to raise any specific challenges
to petitioner's convictions, but instead simply joined in the
generalized arguments advanced by other counsel.2 He
suggests that counsel never filed a separate brief at all on
his behalf. And he states that counsel failed to consult
with him at any time after the verdict, such that petitioner
(1) had no input into the choice of issues to be raised, (2)
never was shown a copy of the brief, and (3) only learned
through third parties of the results of the appeal and the
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1. While petitioner does not otherwise challenge the
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sufficiency of the evidence in this regard, we might add that
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the perjurious statement here tied directly into a coverup
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scheme concocted by the defendants. As explained in Moreno
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Morales, the evidence showed that part of the coverup was to
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conceal the presence of Montanez at the shootings by
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"substituting Cruz in his place." 815 F.2d at 747-48; see
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also United States v. Reveron Martinez, 836 F.2d 684, 690
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(1st Cir. 1988); Quiles-Hernandez, supra, slip op. at 6 n.5.
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That petitioner intended to testify falsely regarding Cruz'
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involvement is plainly inferable from such evidence.
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2. In our decision, we noted that Moreno Morales, along with
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other defendants, "did not appeal on specific grounds" as to
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the perjury counts, but did "appeal on more general grounds."
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815 F.2d at 742 n.21.
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subsequent application for certiorari. Such conduct,
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petitioner alleges, constituted a constructive denial of the
assistance of counsel, in violation of the Sixth Amendment.
We disagree. We see nothing in the record reflecting an
effective abandonment by counsel of his client on appeal. To
the contrary, the records of this court reveal that
petitioner's attorney did file a separate appellate brief.
Furthermore, counsel's choice of issues to pursue on appeal
is one presumed to fall "within the wide range of reasonable
professional assistance." Strickland v. Washington, 466 U.S.
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668, 689 (1984). And that presumption is bolstered here by
three factors. First, counsel obviously was conversant with
all facets of the case, having represented petitioner at
trial. Second, petitioner has voiced no complaint as to
counsel's trial performance. And third, he has failed to
identify any meritorious (or even arguably meritorious)
issues that were omitted from the direct appeal.
To be sure, counsel's failure to consult with petitioner
while preparing the appeal is a less than commendable
practice. Yet even if such conduct is deemed deficient,
petitioner has not shown that he was thereby prejudiced.
See, e.g., United States v. Campa, 679 F.2d 1006, 1014 (1st
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Cir. 1982) (defendant has "burden of establishing actual
prejudice" stemming from inadequate contact with attorney);
McCarthy v. United States, 764 F.2d 28, 31 (1st Cir. 1985)
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(per curiam) (same). As mentioned, petitioner has not
identified any appellate issue that should have been raised
earlier, nor has he otherwise explained how the lack of
consultation with counsel, following trial, hampered the
prosecution of his appeal. Under these circumstances, we
perceive no constitutional infirmity in the appellate
representation received by petitioner.
Affirmed.
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Document Info
Docket Number： 92-1157
Filed Date： 10/1/1992
Precedential Status： Precedential
Modified Date： 9/21/2015