United States v. Panzardi Lespier ( 1996 )

USCA1 Opinion

          March 6, 1996         [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-2008



                                    UNITED STATES,



                                      Appellee,



                                          v.



                              SANTIAGO PANZARDI LESPIER,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Elfrick Mendez Morales on brief for appellant.
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            John C. Keeney, Acting Assistant Attorney General, Theresa M.B.
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        Van Vliet, Chief, Criminal Division U.S. Department of Justice, Philip
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        Urofsky, Trial Attorney, Criminal Division Department of Justice, on
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        brief for appellee.





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                      Per  Curiam.   Defendant  Santiago Panzardi-Lespier
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            appeals from the district court judgment and sentence entered



            on  a  jury  verdict  finding him  guilty  of  conspiring  to



            distribute more than 1000 pounds of marijuana in violation of



            21  U.S.C.    841(a)(1) and 846 and possessing less than 1000



            pounds of marijuana with intent to distribute in violation of



            21 U.S.C.   841(a)(1) and 18 U.S.C.   2.   We briefly address



            the two major points defendant raises on appeal.



                 1.   We need not  resolve defendant's argument  that the



            district court erred in not dismissing the indictment because



            no  evidence linking  defendant  to the  alleged offense  was



            presented to the grand jury.  Defendant waived that objection



            to the indictment by not raising it before the trial.  United
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            States  v. Mack, 892 F.2d 134, 135-136 (1st Cir. 1989), cert.
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            denied, 498 U.S. 859 (1990); Fed.R.Crim.P. 12(b).
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                 Defendant has offered no  explanation for his failure to



            comply with  Rule 12, and he has made no showing of cause for



            relief  from the waiver.  Further, in ruling on defendant's



            2255 petition, the district  court specifically rejected  his



            claim  of ineffective  assistance of  counsel for  failure to



            object to the indictment, and defendant has not appealed from



            that  ruling.   Accordingly  we  will not  consider  his late



            challenge to the indictment.



                 2.   Defendant  also  argues that  he was  substantially



            prejudiced by  spillover evidence  from the other  counts and







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            defendants  and  that the  district  court  erred in  denying



            severance of counts and defendants.  We also need not resolve



            that  argument because  defendant  waived this  objection  by



            failing to raise it before trial.



                 Requests  for severance  of counts  or  defendants under



            Federal Rule of Criminal Procedure 14 must be raised prior to



            trial.  Fed.R.Crim.P. 12(b)(5);  United States v. McLaughlin,
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            957 F.2d 12, 18 (1st Cir. 1992).



                 Defendant first  raised his claim for severance in the



            2255 petition filed five years after  trial.  Accordingly, we



            will not consider it now.



                 Affirmed.  Loc.R. 27.1.
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