United States v. Arizaga ( 1999 )

USCA1 Opinion

       [NOT FOR PUBLICATION   NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

                                 No. 97-2356



                          UNITED STATES,



                       Plaintiff, Appellee,



                                v.



                          JOSE ARIZAGA,



                      Defendant, Appellant.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



FOR THE DISTRICT OF PUERTO RICO



[Hon. H‚ctor M. Laffitte, U.S. District Judge]

                                                               Before



 Boudin, Circuit Judge,



 Reavley, Senior Circuit Judge,and Lipez, Circuit Judge.









     David W. Rom n for appellant.

     Jos‚ A. Quiles-Espinosa, Senior Litigation Counsel, with whom Guillermo Gil, United States Attorney, and Camille V‚lez-Riv‚, Assistant United States Attorney, were on the brief, for appellee.









March 11, 1999







  LIPEZ, Circuit Judge.  Jos‚ Arizaga was convicted by a

jury, after a joint trial with three co-defendants, of conspiracy

to possess multiple kilograms of cocaine with intent to distribute,

and of two specific instances of cocaine possession with intent to

distribute, both occurring in the course of the conspiracy. On

appeal, Arizaga claims that the court erred in failing to grant a

new trial in light of allegedly newly discovered exculpatory

evidence. He also argues that he was deprived of effective

assistance of counsel at trial, and that the evidence was

insufficient to sustain his convictions. We affirm.

                               I.

  The indictment alleged that Arizaga and sixteen other

named conspirators were involved in a series of cocaine

transactions dating from November 1993 through July 1996 in which

cocaine was purchased in Puerto Rico and transported to the

mainland using a variety of methods. The government's case relied

primarily on the testimony of Luis Ch‚vere, a central figure in

every drug transaction executed in the course of the conspiracy.

After being arrested in May 1995 in connection with an attempted

purchase of ten kilograms of cocaine, Ch‚vere subsequently

testified as a government witness. A comprehensive description of

all the transactions in furtherance of the conspiracy may be found

in our opinion in United States v. Portela, Nos. 97-2353, 97-2354,

97-2355, slip op. 3-11 (1st Cir. Feb. 9, 1999). For the purposes of

resolving Arizaga's appeal, we describe only the transactions in

which he participated directly. "We recite the facts in the light

most favorable to the verdicts being appealed." United States v.

Shifman, 124 F.3d 31, 33 (1st Cir. 1997), cert. denied, 118 S. Ct.

1053 (1998).

  In April 1995, Ch‚vere traveled to Puerto Rico from his

home in Rochester, New York, in order to purchase a kilogram of

cocaine as a replacement for several kilograms of cocaine which he

had previously purchased but which had been interdicted by law

enforcement. Ch‚vere's usual suppliers were unable to provide him

with any cocaine and indicated that the supply of cocaine was

scarce at that time. After several days, Ch‚vere was approached by

Arizaga, who offered to procure a kilogram of cocaine. At some

point afterwards Ch‚vere purchased a kilogram of cocaine from

Arizaga for $14,000. Unhappy with the quality of this cocaine,

Ch‚vere resold it in Puerto Rico instead of transporting it back to

the mainland and reselling it there, which had been his usual

practice. The evidence of this transaction produced at trial

consisted solely of the testimony of Ch‚vere.

  On May 11, 1995, Victor Rold n-Flores informed Ch‚vere of

an opportunity to purchase ten kilograms of cocaine. Since Ch‚vere

did not have enough cash to complete the transaction, he attempted

to recruit several others to provide capital and share in the

purchase. He first spoke to Arizaga, who agreed to try to recruit

others to the venture. By the morning of May 12th, Arizaga had

raised enough money to buy one kilogram of the cocaine, and Arizaga

and Ch‚vere together sought out Samuel Rivera-Maldonado, who agreed

to buy two of the ten kilograms. The three of them then met Rold n-

Flores, who was with William Santiago-Col¢n, and all five men went

to a Burger King in Isla Verde. Arizaga went in Rivera-Maldonado's

truck, in which the pooled money of all five buyers had been

stowed. Arizaga had contributed $13,000 to the pool. Rold n-Flores

recognized his supplier driving into the parking lot of the plaza

where the Burger King was located; Rold n-Flores went out into the

parking lot to speak to the supplier. Rold n-Flores then returned

to the restaurant and asked Ch‚vere and Rivera-Maldonado to go out

into the lot and get the money from the truck. The supplier was in

fact an undercover Drug Enforcement Administration agent, and all

five buyers were arrested. Arizaga was in the lavatory of the

Burger King when he was arrested. The evidence of this transaction

adduced at trial was the testimony of Ch‚vere and of the two law

enforcement officers who had conducted surveillance inside the

Burger King during the sting operation.

     After Ch‚vere was released on bail, he decided to

cooperate with the government. Arizaga had been released later in

the day after his arrest on May 12, 1995, but he was rearrested in

July 1996 in light of inculpatory information provided to law

enforcement by Ch‚vere. Arizaga was charged in three counts of the

indictment. Count One charged conspiracy to possess with intent to

distribute cocaine. Count Twelve charged him with possession with

intent to distribute one kilogram of cocaine in connection with the

April 1995 sale to Ch‚vere. Count Fourteen charged him with

attempting to possess with intent to distribute ten kilograms of

cocaine in connection with the Burger King events in May 1995.

Arizaga was convicted of all three counts in a jury trial. Shortly

after conviction, Arizaga filed a pro se motion to dismiss his

trial counsel; his counsel then requested that he be allowed to

withdraw and the court granted this motion. Sentencing proceeded

with new counsel (David W. Rom n), and Arizaga was sentenced to

concurrent terms of 60 and 121 months in prison followed by two

concurrent five year terms of supervised release, and a special

monetary assessment. This appeal followed.

                              II.

     On July 21, 1997, after trial but before sentencing,

Arizaga (represented by current counsel David W. Rom n) filed a

motion for a new trial, based on trial counsel's alleged

ineffective assistance. This motion was denied by the court. On

August 20, 1997, Arizaga filed a renewed motion for a new trial

accompanied by a statement from Samuel Rivera-Maldonado, a co-

defendant who had pled guilty. Rivera-Maldonado's statement

indicates that

     Mr. Arizaga . . . is completely innocent of

     any wrongdoing in this case and had nothing to

     do with the criminal acts charged against him.

     To my knowledge, Mr. Arizaga . . . is

     completely innocent of the charges against him

     because he had nothing to do with criminal

     acts described in the indictment in this case.



This motion was also denied by the court. Rivera-Maldonado's typed

statement is dated April 2, 1997, but the word "June" is typed on

the document, crossed out in ink, and the word "April" written by

hand in its place.

     Federal Rule of Criminal Procedure 33 authorizes a new

trial "if required in the interest of justice." A Rule 33 motion

for a 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). If any of these four factors are missing, "then a

Rule 33 motion must be denied." United States v. Natanel, 938 F.2d

302, 313 (1st Cir. 1991). We review the denial of a motion for a

new trial for "manifest abuse of discretion." Tibolt, 72 F.3d at

972.

     Even assuming arguendo the unavailability of Rivera-

Maldonado's statement and testimony at Arizaga's trial, the due

diligence of trial counsel, and the materiality of the new

evidence, we must ask whether this evidence was likely to result in

acquittal on retrial. There was no such likelihood. Attempts by one

defendant to take full responsibility for a crime after his guilt

has been established, or to exonerate a co-defendant, are common

and are properly viewed with skepticism. See United States v.

Benavente Gomez, 921 F.2d 378, 383 (1st Cir. 1990). Rivera-

Maldonado's statement is conclusory in nature and contains nothing

that might account for or seriously cast doubt upon the directly

contradictory testimony of Ch‚vere or that of the police officers

present at the Burger King. Under such circumstances, we conclude

that the introduction of Rivera-Maldonado's testimony would not

have been likely to result in Arizaga's acquittal upon retrial. The

court did not abuse its discretion in denying the motion for a new

trial.

                              III.

     Arizaga contends that he was deprived of the effective

assistance of counsel because his trial counsel allegedly failed to

call Rivera-Maldonado as a witness, interview the manager of the

Burger King restaurant where the arrests were made (who allegedly

would have testified that Arizaga arrived separately from the other

defendants), present the government's videotape of the events

taking place in the parking lot of the Burger King (so as to

establish that Arizaga was not present in the parking lot), and

discover and present medical evidence of Arizaga's chronic

gastrointestinal illness (presumably so as to establish that

Arizaga was not necessarily simply hiding from the police in the

lavatory). Arizaga also alleges that counsel frustrated his right

to take the stand.

     Ineffective assistance of counsel claims require the

defendant to show that counsel's performance was constitutionally

deficient and that the deficient performance prejudiced the

defense. Because both findings typically require the resolution of

factual issues by a trial judge, we have generally declined to

resolve such claims on direct appeal unless the record is

sufficiently developed to permit review of the claim. See United

States v. Berrios, 132 F.3d 834, 840 (1st Cir. 1998). The court

issued no findings as to trial counsel's performance in rejecting

Arizaga's two Rule 33 motions. We have no indication of what

tactical considerations may have motivated counsel's decisions not

to call Rivera-Maldonado or present the videotape, nor do we have

evidence of the extent of counsel's discovery efforts. The

affidavit of counsel in the record indicates only that counsel

informed Arizaga of his right to testify. Therefore, the record

before us is inadequate to resolve the ineffective assistance of

counsel claim raised by Arizaga, and we decline to address it.

                              IV.

     Arizaga moved for a judgment of acquittal, pursuant to

Federal Rule of Criminal Procedure 29, at the close of the

government's case and again at the close of all the evidence. Rule

29 allows for entry of a judgment of acquittal "if the evidence is

insufficient to sustain a conviction." Arizaga argues that the

evidence against him was insufficient because he "was convicted

solely on the uncorroborated accomplice testimony of Luis

[Ch‚vere], given more than a year after the events charged in the

indictment." Arizaga claims the delay and the alleged lack of

corroboration make Ch‚vere's testimony "facially incredible" and

"unbelievable as a matter of law." In assessing a sufficiency

challenge, "we review the record to determine whether the evidence

and reasonable inferences therefrom, taken as a whole and in the

light most favorable to the prosecution, would allow a rational

jury to determine beyond a reasonable doubt that the defendant was

guilty as charged." United States v. Alicea-Cardoza, 132 F.3d 1, 5

(1st Cir. 1997) (internal quotation marks omitted).

     "[A] conviction based solely upon the uncorroborated

testimony of an accomplice can be upheld, as long as the jury is

properly instructed and the testimony is not incredible as a matter

of law." United States v. Hern ndez, 109 F.3d 13, 15 (1st Cir.

1997). In this case, "[t]he judge gave complete and correct

instructions detailing the special care the jury should take in

assessing the testimony," United States v. Ortiz-Arrigoitia, 996

F.2d 436, 438-39 (1st Cir. 1993), and Ch‚vere's testimony was not

"incredible or insubstantial on its face," United States v. Aponte-

Suarez, 905 F.2d 483, 488 (1st Cir. 1990). Ch‚vere's testimony as

to the May transaction was in fact substantially corroborated by

the testimony of the two police officers who provided surveillance

at the Burger King and participated in the arrests. Moreover,

nothing about the delay between the time of Ch‚vere's arrest and

the time at which he implicated Arizaga while cooperating with the

government (at most, fourteen months) made his testimony incredible

as a matter of law. A rational juror could have relied upon it to

find Arizaga guilty beyond a reasonable doubt.

     Affirmed.