United States v. Correia , 77 F. App'x 12 ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2313
UNITED STATES OF AMERICA,
Appellant,
v.
HUMBERTO CORREIA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge
Before
Selya, Circuit Judge,
Stapleton,* Senior Circuit Judge,
and Howard, Circuit Judge.
Gregory Moffatt, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Denise Jefferson
Casper, Assistant United States Attorney, were on the brief, for
appellant.
Robert A. George, for appellee.
October 8, 2003
* Of the Third Circuit, sitting by designation.
STAPLETON, Circuit Judge. Defendant/Appellee Humberto
Correia was convicted of arson, three counts of mail fraud, and use
of fire in the commission of a felony. After the verdict, he moved
for a new trial pursuant to Fed. R. Civ. P. 33. At the suggestion
of the district court, one of the claims advanced by Correia in
support of that motion was ineffective assistance of counsel.
After the Rule 33 hearing, at which Correia was represented by new
counsel, the court granted a new trial on that ground. The
government now appeals. We affirm the order of the district court.
I
In September 1996, a fire broke out in Correia’s photo
processing plant at approximately nine o’clock in the morning. It
was quickly extinguished by the fire department. Correia submitted
an insurance claim to his insurer, Travelers Insurance. Travelers
investigated the incident and paid the claim.
The district court accurately summarized the government’s
case at trial in the following terms:
At trial, the government could not, and
did not, present any direct evidence that
defendant set fire to his photo processing
laboratory on that fateful Monday morning, in
downtown Taunton, Massachusetts. Rather, the
case against him was crafted from a patchwork
of circumstantial evidence, largely unrebutted
by the defense. According to the government,
defendant arrived at his photo lab on
September 30, 1996, with the intent to set
fire to the building. The government’s theory
was that defendant was in financial straits
and the fire became his “exit strategy.”
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At trial, the government relied largely upon the
testimony of three individuals: Vincent Calenda, a fire causation
expert; Gregory Galligan, a fire investigator; and Roger
Nascimento, a wiring inspector. They testified that there was no
evident accidental cause and, in particular, that an electrical
problem was not involved. Galligan testified that Correia told him
on two occasions that he turned off the fire alarm system in his
building on the morning of the fire but was unable to offer any
explanation for having done so.
For the purpose of establishing the defendant’s motive
for the arson, the government introduced a chart into evidence
detailing the defendant’s debt at the time of the fire. This chart
showed debts of over $270,000, without explanation. These debts
apparently included approximately $208,000 in mortgages–$90,000 on
his home, and $118,000 on his business–as well as an equipment loan
of around $53,000 and a car loan of $6,000, though the chart did
not inform the jury of these facts.
The defense argued that the government had failed to
prove the elements of the crime beyond a reasonable doubt. It
suggested that the fire was electrical in nature but offered no
expert testimony in support of that suggestion.
The trial court found four deficiencies in counsel’s
performance.1 First, counsel had no acceptable reason for failing
1
Correia was in fact represented by two attorneys.
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to call Manuel Franco, who would have testified that he installed
the alarm system in Correia’s building, that it was a burglar alarm
system, and that there was no fire alarm system to be turned off.
Second, counsel’s argument that the fire was electrical in nature,
without any proffer of expert testimony and in the face of numerous
experts for the government who stated that it was definitively not
electrical in nature, was counterproductive. More importantly,
according to the court, counsel ignored a key piece of testimony
that would have helped the defense immeasurably. Galligan
testified that in 20% of the cases, the origin and cause of the
fire remains forever undetermined. Because there was no direct
evidence linking Correia to the fire and because the government’s
experts had reached their conclusion of arson by a process of
eliminating all other possible causes, counsel’s failure to follow
up and cross-examine Galligan on the fact that fires often go
unexplained, in the court’s words, “fell below the standard for
professionally competent assistance that is safeguarded by the
Sixth Amendment.” Third, the district court faulted counsel’s
failure to call the attorney who had conducted Travelers’
investigation of the fire and who had concluded that “the cause of
fire should be classified as undetermined.” In the court’s view,
the “facts and opinions contained in [the attorney’s] report
potentially provided a roadmap to reasonable doubt and a list of
solid defense witnesses.” Finally, the district court was troubled
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by counsel’s failure to object to the chart of Correia’s debts,
which was “highly misleading,” as it listed the total debt without
explanation and did not include any mention of Correia’s assets.
In fact, much of the debt was typical of business ownership and was
not evidence of a failing business. Furthermore, there was no
reference to Correia’s savings account of $26,000, nor to the fact
that he was able to support a household of five.
The district court concluded that the failure to call
Franco, by itself, as well as all four errors combined, “fell below
an objective standard of reasonableness and prejudiced the
defense.” As a result, “a serious miscarriage of justice” had
occurred and a new trial was warranted. For essentially the same
reasons given by the district court, we affirm.
II
“Motions for a new trial are directed to the discretion
of the trial court.” United States v. Wright, 625 F.2d 1017, 1019
(1st Cir. 1980). “We will not disturb the disposition of a new
trial motion unless the court abused its discretion or misapplied
the law.” United States v. Rothrock, 806 F.2d 318, 321-22 (1st
Cir. 1986). The district court clearly applied the correct legal
standard and, so, it is its discretionary judgment that we must
review. See United States v. Conley, 249 F.3d 38, 44-45 (1st Cir.
2001).
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“The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel at trial.” United States
v. Downs-Moses, 329 F.3d 253, 265 (1st Cir. 2003). “To demonstrate
a violation of this right, a defendant must show that counsel's
performance was constitutionally deficient and that prejudice
resulted.” Id. Counsel’s assistance is constitutionally
ineffective only when it falls “below an objective standard of
reasonableness,” Strickland v. Washington, 466 U.S. 668, 688
(1984). Moreover, counsel’s deficiency “must have resulted in
prejudice, defined as a ‘reasonable probability that, but for
counsel's unprofessional errors, the result . . . would have been
different.’” Epsom v. Hall, 330 F.3d 49, 53 (1st Cir. 2003)
(quoting Strickland, 466 U.S. at 694).
We hold that there was no abuse of discretion in the
finding that the errors identified by the district court rendered
the assistance received by Correia constitutionally ineffective.
Defense counsel’s failure to call Franco, who was in the best
position to know whether the defendant had a fire alarm and would
have testified that no such alarm existed for the defendant to have
turned off, is mystifying. Galligan’s testimony that Correia had
admitted turning off the fire alarm on the morning of the fire was
by far the most damning evidence the government had to offer.
Defense counsel had a full and convincing response from a neutral
witness and failed to play this trump card. Moreover, given the
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absence of direct evidence of arson and the fact that the
government’s experts were accordingly compelled to attempt to prove
the government’s case by eliminating other causes, the frequency of
cases of undetermined cause was an obvious theme to have stressed.
With respect to prejudice, given the entirely
circumstantial nature of the government’s case and the seriousness
of the failings of defense counsel, the district court did not
abuse its discretion in finding a “reasonable probability that, but
for counsels’ unprofessional errors, the result . . . would have
been different.”
III
The order of the district court granting a new trial is
affirmed.
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