United States v. Panzardi Lespier , 78 F.3d 577 ( 1996 )

78 F.3d 577

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
Santiago Panzardi LESPIER, Defendant, Appellant.

No. 95-2008.

United States Court of Appeals, First Circuit.

March 6, 1996.

Elfrick Mendez Morales on brief for appellant.

John C. Keeney, Acting Assistant Attorney General, Theresa M.B. Van Vliet, Chief, Criminal Division U.S. Department of Justice, Philip Urofsky, Trial Attorney, Criminal Division Department of Justice, on brief for appellee.

Before TORRUELLA, Chief Judge, and CYR and STAHL, Circuit Judges.

PER CURIAM.

1

Defendant Santiago Panzardi-Lespier 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.

2

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 States v. Mack, 892 F.2d 134, 135-136 (1st Cir.1989), cert. denied, 498 U.S. 859 (1990); Fed.R.Crim.P. 12(b).

3

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.

4

2. Defendant also argues that he was substantially prejudiced by spillover evidence from the other counts and 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.

5

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, 957 F.2d 12, 18 (1st Cir.1992).

6

Defendant first raised his claim for severance in the § 2255 petition filed five years after trial. Accordingly, we will not consider it now.

7

Affirmed. Loc.R. 27.1.