Hoyos-Medina v. United States ( 1993 )


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  • March 15, 1993        [NOT FOR PUBLICATION]
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 92-2283
    JORGE HERNANDO HOYOS-MEDINA,
    Petitioner, Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Jos  Antonio Fust , U.S. District Judge]
    Before
    Breyer, Chief Judge,
    Torruella and Selya, Circuit Judges.
    Frank D. Inserni for appellant.
    Jos   A.  Quiles-Espinosa, Senior  Litigation  Counsel, with
    whom  Daniel F. L pez-Romo, United States  Attorney, was on brief
    for appellee.
    Per  Curiam.   Appellant  Jorge  Hernando  Hoyos-Medina
    appeals the denial of  his 28 U.S.C.    2255 petition to  reverse
    his  conviction.  He claims ineffective  assistance of counsel in
    violation   of  the   sixth  amendment   of  the   United  States
    Constitution.  For  the reasons  stated below, we  find that  the
    district court properly denied the petition.
    BACKGROUND
    Appellant  was convicted  of  violations  of 21  U.S.C.
    952(a), 841(a)(1), 955 for possession and importation into the
    United  States,  of 10.4  kilograms  of cocaine.    Appellant was
    arrested  while  traveling  from  Bogot ,  Colombia   to  Geneva,
    Switzerland on Iberia Airlines.   The plane stopped in  San Juan,
    Puerto Rico and  was searched by United States Customs officials.
    The  inspectors  isolated  what  was alleged  to  be  appellant's
    suitcase  because it was heavy and had irregular stitching on the
    outside  that  suggested the  bag had  a  secret compartment.   A
    search of its contents revealed a stash of cocaine.  The suitcase
    bore  a  baggage claim  ticket; a  plastic  name tag,  written in
    appellant's handwriting and  identifying the bag  as his; and  an
    Iberia  Airlines control number.  The control number is placed on
    the baggage, the airline ticket, and the boarding pass, to insure
    that  the passenger who checked-in  a particular piece of luggage
    boards  the aircraft.    Every  bag  must  be  accompanied  by  a
    passenger  or  it  is removed  from  the  plane  before take-off.
    Because the control number  is an antiterrorist safeguard,  it is
    attached without  the passenger's knowledge.   Appellant's ticket
    and boarding pass corresponded to  the control number attached to
    the  suspect  luggage.    Customs  officials  arrested  appellant
    primarily on the basis of this matching control number.
    Appellant maintains that he was traveling to Madrid and
    Geneva for pleasure, and to purchase dental equipment for the son
    of a friend.  While appellant admitted writing the identification
    tag, he  denies ownership  of the  suspect  suitcase.   Appellant
    claims that when he  approached the Iberia counter in  the Bogot
    airport, he  was asked  by the  female attendant  to fill  out an
    identification tag for his carry-on bag and to pay the  exit tax.
    He  contends  that he  left his  bag  and the  identification tag
    unattended at the counter to  get exact change to pay the  tax at
    the direction of the Iberia check-in official.  When he returned,
    the female attendant had been replaced by another individual, who
    instructed appellant  to  hurry to  the gate  since boarding  had
    begun.   Appellant argues that  during the mix-up,  while his bag
    was  out  of   his  sight,   an  employee  must   have  put   the
    identification tag he filled out on someone else's baggage.
    After a  jury convicted appellant,  his court-appointed
    trial  counsel moved  to withdraw  from the  case.   The district
    court granted the motion, appointed  a federal public defender to
    represent  appellant  at   sentencing,  and  sentenced  appellant
    according to the guidelines.
    In United States v. Hoyos-Medina, 
    878 F.2d 21
     (1st Cir.
    1989), we  affirmed the conviction but allowed appellant to raise
    the  ineffective  assistance of  counsel  claim  in a  collateral
    proceeding, since it  was not  properly before the  court at  the
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    time  of the  first appeal.   Appellant  unsuccessfully presented
    this  ineffective assistance  of  counsel claim  in the  district
    court.  We now turn to the merits of his claim.
    DISCUSSION
    In Strickland  v. Washington, 
    466 U.S. 668
     (1984), the
    Supreme  Court  established  a  two-prong  test  for  ineffective
    assistance  of   counsel  claims.    The   first  prong  requires
    petitioners  to demonstrate  that "counsel's  representation fell
    below  an objective standard of reasonableness."  
    Id. at 688
    ; see
    also L pez-Nieves v. United  States, 
    917 F.2d 645
    , 648  (1st Cir.
    1990).  This aspect of the test  presents a formidable hurdle, as
    the  court begins  with the  presumption that  "counsel's conduct
    falls within the wide rage 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. at 669
      (citation omitted).   The
    second  prong   demands  a   showing  that  defendant   has  been
    prejudiced.   More specifically, defendant must  show that "there
    is   a   reasonable   probability   that,   but   for   counsel's
    unprofessional errors,  the result  of the proceeding  would have
    been different."   
    Id. at 694
    ; see also L pez-Nieves, 
    917 F.2d at 648
    .
    Appellant alleges  several errors on the  part of trial
    counsel.   He contends that counsel improperly (1) failed to seek
    a continuance to secure  witnesses and documents that  would have
    bolstered  appellant's version  of  the facts;  (2) attempted  to
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    coerce  appellant  into  pleading  guilty;  and  (3)  acted  with
    arrogance towards  appellant and  indifference towards  his case.
    We begin  by  analyzing  the  specific pieces  of  evidence  that
    appellant claims trial counsel negligently failed  to investigate
    and introduce into evidence.
    First,  appellant  maintains  that, had  trial  counsel
    sought a continuance, he would have  presented testimony from his
    wife and friends regarding his good character.  We note, however,
    that counsel reasonably may have  decided not to call appellant's
    wife.   The  two were  separated at  the time  of the  trial, and
    cross-examination  of   the   wife  might   have  ventured   into
    compromising matters for defendant.   Therefore, the decision not
    to call her was  within "sound trial strategy."   Strickland, 
    466 U.S. at 669
    .
    With  respect to  other character  witnesses, we  admit
    that if appellant wished to have  such witnesses testify, counsel
    should have  called them.   At the   2255  hearing, trial counsel
    offered no  explanation for failing to  call character witnesses.
    But, assuming arguendo that such omission constitutes objectively
    unreasonable professional  conduct, we cannot say  that 'but for'
    the  failure to  offer  testimony of  good  character, the  trial
    probably would have  turned out  differently.   
    Id. at 694
    .   In
    light  of the strong  evidence linking appellant  to the luggage,
    the omission of character witnesses was not prejudicial.
    Second, appellant  claims that he would  have offered a
    letter  from  an  official   at  Iberia  Airlines,  stating  that
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    appellant checked one piece of luggage weighing 21 kilograms  for
    which he did not have to pay an overweight charge.  Putting aside
    the  question of admissibility,1 such a letter would be of little
    assistance to appellant unless the disputed bag weighed in excess
    of 21  kilos.  Since the record shows no evidence with respect to
    the weight  of the suitcase  seized by the  government, counsel's
    failure   to   introduce   the  document   was   not  objectively
    unreasonable.  It is unhelpful to argue that trial counsel should
    have attempted to get evidence that the disputed suitcase weighed
    more than defendant's luggage.   To grant such an  argument would
    require that  we reverse  a conviction  based on  the defendant's
    unsupported allegation  of the possible  existence of exculpatory
    evidence.  In the context of a   2255 collateral attack, in order
    to  succeed, appellant  must be  able to  point to  some concrete
    evidence that the trial counsel should have presented.
    The defect  in appellant's line of  argument is readily
    apparent.    At the  hearing on  this  appeal, counsel  said that
    appellant  was not given the opportunity to show that his version
    of  the story  was true.   He maintained  that he  filled out the
    identification  tag in  front  of a  female  check-in clerk;  was
    separated from his  bags at  her direction; and  returned to  the
    counter,  only  to  be hustled  off  to  the  gate.   He  further
    maintained  that  during  his  absence  the  identification  tag,
    1  The district court opined that much of appellant's documentary
    evidence would have been  inadmissible without foundation or live
    testimony.   Hoyos-Medina v. United States, No. 92-1373, slip op.
    at 4 n.3, 5 n.4 (D.P.R. July 22, 1992).
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    written in his hand-writing, had been attached to someone  else's
    suitcase  filled with cocaine.   When asked by  the court whether
    counsel  could  produce  a  witness  to  corroborate  appellant's
    version, or whether the record showed whether such a witness ever
    existed,  counsel replied  only  that trial  counsel should  have
    found  one.  Such a bald  assertion cannot support a reversal for
    ineffective assistance of counsel because we  do not know whether
    there was a witness that trial counsel unprofessionally failed to
    discover.
    Third, appellant claims that counsel failed to obtain a
    letter  or  testimony  from  the  son  of a  friend  (who  is  an
    orthodontist) corroborating appellant's story that the purpose of
    the trip was, in  part, to purchase dental equipment on the son's
    behalf.   While  corroboration of  this purpose  would have  been
    helpful  to him,  appellant testified  as to  the purpose  of his
    trip.  But,  like the  failure to bring  character witnesses,  we
    cannot  say that 'but for'  the failure to  solicit and introduce
    the letter, there is a  reasonable probability -- one "sufficient
    to undermine confidence in the outcome" -- that the verdict would
    have been different.  
    Id. at 694
    .  Thus, appellant failed to make
    the required showing of prejudice.
    The overall object of  the inquiry at this stage  is to
    ensure  that  some significant  piece  of  evidence (which  would
    support  appellant's claim  of  innocence) was  not entered  into
    evidence because  of trial  counsel's unprofessional errors.   At
    this  late  date appellant  has failed  to  show any  evidence to
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    undermine  the  critical piece  of  evidence linking  him  to the
    suspect  baggage:  the control number 145 which connected the bag
    with Hoyos-Medina's ticket and boarding pass.
    We  now  turn  to  appellant's  allegations that  trial
    counsel attempted to coerce  a guilty plea, and that  counsel was
    indifferent towards the case.   Trial counsel purportedly visited
    Hoyos-Medina at  the penitentiary  and falsely informed  him that
    the judge was "rip roaring mad" at him.  In addition, he promised
    that the judge would be lenient if appellant pled guilty and told
    him  to  "go to  hell"  when appellant  protested  his innocence.
    Evidence  of  counsel's  indifference  includes:  (1) failure  to
    vigorously  argue a Rule 29  Motion for Judgment  of Acquittal at
    the close of the government's case; and (2) voluntary suppression
    of  a  document  from   the  Colombian  Government  attesting  to
    appellant's clean criminal record.
    At  the    2255  hearing, trial  counsel admitted  that
    "often  times one  has to  prod [defendants]  for the  purpose of
    helping them  help themselves, so to speak."  He also stated that
    he told Hoyos-Medina  that "if the jury does not  believe you and
    if the judge believes that  you have lied, the judge is  going to
    screw you."
    To  begin with,  we do  not condone  any  pressure from
    defense counsel to plead  guilty.  Defendant's choice of  plea is
    entirely   his  own.     Our   criminal  justice   system  exerts
    considerable pressure  to  induce guilty  pleas without  improper
    influence from court-appointed attorneys charged with the duty to
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    defend accused.
    Nonetheless, it is unnecessary to delve too deeply into
    appellant's final allegations of ineffective assistance.  Because
    trial  counsel  was  unsuccessful  in  his  attempt  to  pressure
    appellant to  plead  guilty, the  purported  coercion is  but  an
    example of  counsel's alleged  negative  or indifferent  attitude
    towards his case.   We  find these claims  without merit  because
    outward indicia of trial  counsel's effort suggests the contrary.
    He  filed the  appropriate motions  in a  timely manner  and kept
    abreast  of  appellant's  case.     For  example,  trial  counsel
    succeeded  in excluding  a damaging  document that  appellant now
    argues  should have been admitted.  Indeed, the document from the
    Colombian government regarding appellant's criminal history would
    have  shown no convictions, but it also would have indicated that
    he  had been tried and  acquitted of extortion.   This seems like
    sound  trial  strategy to  us.   Appellant's vague  assertions of
    ineffectiveness  and indifference  do not  constitute objectively
    reasonable  professional misconduct, nor  do they demonstrate the
    necessary  prejudice.    In  this  case,  we  do  not  find  that
    ineffective representation caused a break-down of the adversarial
    process such that defendant did not receive a fair trial.
    Finally, we  need not  consider appellant's  request to
    remand the  case to the district court for a ruling on the merits
    of his  Motion Requesting Amendments and Further Findings of Fact
    to the Judgment,  submitted pursuant  to Fed. R.  Civ. P.  52(b),
    because  the motion  offers substantially  the same  arguments as
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    appellant's  brief  on appeal.    We have  amply  canvassed these
    arguments.
    The district court's decision is affirmed.
    Affirmed.
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Document Info

Docket Number: 92-2283

Filed Date: 3/16/1993

Precedential Status: Non-Precedential

Modified Date: 4/17/2021