Argencourt v. United States ( 1996 )


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    United States Court of Appeals
    For the First Circuit
    ____________________

    No. 95-2086

    JOSEPH ARGENCOURT,

    Petitioner, Appellant,

    v.

    UNITED STATES OF AMERICA,

    Respondent, Appellee.

    ____________________


    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND

    [Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________

    ____________________

    Before

    Boudin, Circuit Judge, _____________

    Campbell, Senior Circuit Judge, ____________________

    and Lynch, Circuit Judge. _____________

    ____________________

    Gary E. Blais for appellant. _____________

    James H. Leavey, Assistant United States Attorney, with whom _______________
    Sheldon Whitehouse, United States Attorney, was on brief, for the __________________
    United States.

    ____________________

    March 18, 1996
    ____________________




















    LYNCH, Circuit Judge. In his second trip to this _____________

    court, Joseph Argencourt argues that he was denied effective

    assistance of counsel during his criminal trial and that the

    district court erred in denying his Motion to Vacate, Set

    Aside or Correct Sentence under 28 U.S.C. 2255. Argencourt

    was convicted of conspiring with his co-defendant Rodney

    Andreoni to distribute cocaine. His conviction was affirmed

    on direct appeal. United States v. Argencourt, 996 F.2d 1300 _____________ __________

    (1st Cir. 1993), cert. denied, 114 S. Ct. 731 (1994). We now _____ ______

    affirm the denial of his motion under 28 U.S.C. 2255.

    The facts are set forth in our prior opinion.

    Suffice it to say that the FBI, in the course of an

    undercover investigation of insurance fraud in Rhode Island

    and Massachusetts, learned that a target of the investigation

    -- Andreoni -- was willing to sell substantial quantities of

    cocaine. Recorded conversations revealed that Argencourt was

    to be the supplier of the cocaine. Argencourt, having had

    prior experience with informants wearing wires, was skittish,

    became spooked, and failed to appear to consummate the deal

    on the designated day. The government thus had no cocaine to













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    show, but proved its case through the recordings. Id. at __

    1302.
    Petitioner's Burden ___________________
















































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    The arguments properly before this court fail on

    their merits.1 Those arguments are evaluated against the

    heavy burden of proof the law imposes. Argencourt must

    demonstrate both that trial counsel's performance fell below

    an objective standard of reasonable effectiveness, and that

    counsel's deficient performance was so prejudicial as to

    undermine confidence in the outcome of the trial. See ___

    Strickland v. Washington, 466 U.S. 668, 688-89 (1984); Lema __________ __________ ____

    v. United States, 987 F.2d 48, 51 (1st Cir. 1993). In ______________

    determining whether trial counsel's performance fell below

    the relevant objective benchmark, "[j]udicial scrutiny of

    counsel's performance must be highly deferential," and "every

    effort [should] be made to eliminate the distorting effects

    of hindsight." Strickland, 466 U.S. at 689. The court "must __________

    ____________________

    1. Many of the arguments Argencourt presents to this court
    were not raised in the district court and so will not be
    heard here. Among others, he has waived his argument that
    counsel erred in not requesting an instruction on aiding and
    abetting liability (which, in any event, was not even charged
    in the count of conviction). Another of his arguments --
    concerning the examination of Special Agent Brotan -- was
    raised and decided against him on his direct appeal, on
    grounds of lack of prejudice to Argencourt. See Argencourt, ___ __________
    996 F.2d at 1304. Argencourt is not free to relitigate this
    issue. See United States v. Michaud, 901 F.2d 5, 6 (1st Cir. ___ _____________ _______
    1990) (per curiam).
    It is unclear whether Argencourt also argues that he
    received ineffective assistance of counsel at the sentencing
    phase, as the issue is mentioned but not developed in his
    brief. Thus, we do not address it. See United States v. ___ ______________
    Zannino, 895 F.2d 1, 17 (1st Cir.) ("[I]ssues adverted to in _______
    a perfunctory manner, unaccompanied by some effort at
    developed argumentation, are deemed waived."), cert. denied, _____ ______
    494 U.S. 1082 (1990). The sentence was, in any event,
    plainly proper under the Guidelines.

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    indulge a strong presumption that counsel's conduct falls

    within the wide range of reasonable professional assistance;

    that is, the defendant must overcome the presumption that,

    under the circumstances, the challenged action 'might be

    considered sound trial strategy.'" Id. (quoting Michel v. ___ ______

    Louisiana, 350 U.S. 91, 101 (1955)); Lema, 987 F.2d at 51. _________ ____

    The "prejudice" element of an ineffective assistance

    claim also presents a high hurdle. "An error by counsel,

    even if professionally unreasonable, does not warrant setting

    aside the judgment of a criminal proceeding if the error had

    no effect on the judgment." Strickland, 466 U.S. at 691. __________

    The requisite showing of prejudice requires more than

    postulating that counsel's "errors had some conceivable

    effect on the outcome of the proceeding." Id. at 693. ___

    Rather, Argencourt must affirmatively prove "a reasonable

    probability that, but for counsel's unprofessional errors,

    the result of the proceeding would have been different. A

    reasonable probability is a probability sufficient to

    undermine confidence in the outcome." Id. at 694. ___

    Argencourt has demonstrated neither objectively ineffective

    assistance nor prejudice.


    Conspiracy Indictment _____________________

    Argencourt argues counsel should have moved to

    dismiss the conspiracy indictment on the grounds that it

    failed to charge possession with intent to distribute. The


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    argument is based on the mistaken premise that possession is

    an essential element of a conspiracy to distribute. Indeed,

    it is not. The statute that criminalizes possession and

    distribution makes it unlawful to "manufacture, distribute,

    or dispense, or possess with intent to manufacture, __

    distribute, or dispense" a controlled substance. 21 U.S.C.

    841(a) (emphasis added). Possession has not been found to

    be a distinct, essential element of the crime of

    distribution, let alone conspiracy to distribute. See United ___ ______

    States v. Polan, 970 F.2d 1280, 1282 (3d Cir. 1991) ("[T]he ______ _____

    offense of illegal drug distribution . . . contains three

    essential elements: the [defendant] must (1) knowingly or

    intentionally (2) distribute (3) a controlled substance."),

    cert. denied, 507 U.S. 953 (1993). To the extent that _____ ______

    Argencourt is asserting that trial counsel should have argued

    that the government needed to prove possession as an "overt

    act" in furtherance of the charged conspiracy, he is clearly

    wrong. See United States v. Shabani, 115 S. Ct. 382, 386 ___ ______________ _______

    (1994) (holding that proof of an overt act is not required

    for conviction under 21 U.S.C. 846).


    Tapes _____

    Argencourt is bound by the prior ruling of this court

    concerning his challenge to the replaying of a particular

    tape to the jury, at its request, during its deliberations.

    See Argencourt, 996 F.2d at 1305 n.6. Variants of this ___ __________


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    claim, which Argencourt did not argue on direct appeal but

    argues now, fare no better. He focuses on a tape of a

    conversation between himself, his co-defendant Andreoni, an

    FBI agent, and an undercover informant. He contends that

    trial counsel should have objected to admission of the tape

    on grounds that it was inaudible. The asserted problem of

    the tape being inaudible, however, appears to be more

    asserted than a problem. The trial judge alone of the

    listeners had a defective earphone (which was replaced);

    counsel explicitly stated that he was able to hear the

    recorded conversations; and there was no indication from the

    jury of any problem in hearing the tape, in the face of a

    prior instruction from the court to raise their hands if they

    could not hear. Moreover, the jurors were provided with a

    transcript of the tape. The choice by defense counsel not to

    have the tape highlighted by questioning jurors about whether

    they heard it was a classic strategy choice, not amenable to

    attack under the guise of ineffective assistance. See Lema, ___ ____

    987 F.2d at 55-56.

    Argencourt makes the additional argument that defense

    counsel should have insisted that the entire tape recordings,

    not just redacted versions, be played to the jury. But

    certainly, trial counsel's decision not to demand that the

    tapes be played in their entirety was, on its face, a

    strategic choice to try to limit what the jury heard. See ___



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    Lema, 987 F.2d at 55-56. Further, defendant has failed to ____

    show any prejudice. He has had access to the unredacted

    tapes since before trial. It is his burden to show that the

    tapes contained unplayed exculpatory material or otherwise

    undermined confidence in the outcome of the trial. See ___

    Strickland, 466 U.S. at 694. That he has not done. __________


    "Newly Discovered" Evidence ___________________________

    Argencourt argues that he was entitled to an

    evidentiary hearing in the district court to determine

    whether certain "newly discovered evidence," which he asserts

    should have been discovered by trial counsel, requires that

    his motion be granted. He argues that counsel erred in

    failing to adduce proof that phone lines were not working at

    a place called the "Phone Connection," from which a call to

    him was purportedly made on the date the cocaine deal was to

    be consummated. He claims he first learned, while in prison

    for this offense, from the "CEO of the Phone Connection" (a

    fellow prisoner) that the Phone Connection's phone service

    had been stopped. From this he argues that his co-defendant

    Andreoni could not have made a call to him from the Phone

    Connection in furtherance of the drug deal, as the government

    asserted at trial. He asserts that this evidence was

    "discovered" after the district court denied his 2255

    motion. The government says there is nothing new about the

    Phone Connection evidence, that it was well known to defense


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    counsel before trial, and that the jury even had such

    evidence before it. In all events, Argencourt did not ask

    the district court to consider this evidence or to give him a

    hearing, and so has waived the argument.

    Even if the claim had been properly raised, and the

    evidence truly "newly discovered," it would still fall far

    short. Even should the phone call not have been made to

    Argencourt from his co-defendant from the listed lines at the

    Phone Connection on the scheduled date of the drug

    transaction, no resulting prejudice could be established.

    The jury could have credited the testimony before it that an

    illegal line was rigged and used for the call. Argencourt's

    suggestion that phone company records (which Argencourt

    asserts trial counsel should have obtained) would have shown

    that telephone service had been cancelled amounts to naught.

    To the extent that the phone call testimony at trial was

    relevant to establish that Argencourt, on the scheduled date,

    was in the vicinity of the location where the parties had

    agreed the drug transaction would be completed, independent

    evidence that his car was seen in the area at the time

    undercuts the utility of this "newly discovered evidence."

    Furthermore, if the phone call testimony was somewhat

    relevant to the government's case in support of the charge of

    attempting to distribute drugs (of which Argencourt was

    acquitted), it had little apparent bearing on the



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    government's case in support of the conspiracy charge. That

    case, which was based primarily on the earlier recorded

    conversations between Argencourt, Andreoni, and FBI agents,

    would have been unaffected by the status of the Phone

    Connection's telephones. Thus, Argencourt has shown no

    prejudice from any failure by trial counsel to obtain the

    Phone Connection evidence.


    Affirmed. ________




































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