
USCA1 Opinion

	




          October 19, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1559                                PETER N. GEORGACARAKOS,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________        No. 94-1750                                PETER N. GEORGACARAKOS,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Peter N. Georgacarakos on brief pro se.            ______________________            Jay P.  McCloskey, United States  Attorney, and Michael M. DuBose,            _________________                               _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   After carefully reviewing the  record                      __________            and the  briefs of the parties, we affirm the judgment of the            district court.   We do  so essentially for  the reasons  set            forth  in the  Report  and Recommendation  of the  magistrate            judge  which was adopted by  the district court  in its order            dated May 12, 1994.                      Specifically, we agree that under the standards set            forth  in  Strickland v.  Washington,  466  U.S. 668  (1984),                       __________     __________            counsel's choice to forego  an entrapment defense plainly was            an  objectively reasonable choice, given appellant's criminal            history and  the  evidence.   As  for the  jury  instructions            concerning  venue, we add that even if they had been reviewed            for abuse of discretion -- the standard of review  applicable            to properly preserved objections -- appellant still would not            have  prevailed.   Under  this standard,  "[t]he trial  court            should be  reversed only  if the  instruction was capable  of            confusing and thereby misleading the jury."  United States v.                                                         _____________            Fischbach  & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984),            ________________________            cert. denied, 470 U.S. 1029 (1985).            ____________                      The  venue  instruction,  viewed in  light  of  all            evidence,  was not  misleading.   As we  held in  appellant's            direct appeal, even had the jury accepted appellant's version            of the events, the evidence of venue in Maine  was "so clear"            that  "no  reasonable  juror  could  have  found  otherwise."            United States v. Georgacarakos, 988 F.2d 1289, 1297 (1st Cir.            _____________    _____________            1993).  Further,  when the instruction  is considered in  the            context of  the charge as a whole, it is plain that there was            no abuse of discretion.  See United States v. Doane, 975 F.2d                                     ___ _____________    _____            8, 11 (1st  Cir. 1992)  (quoting Cupp v.  Naughten, 414  U.S.                                             ____     ________            141,  146-47  (1973)).   Given  our  findings concerning  the            adequacy  of  the  instructions  on  constructive  and  joint            possession, counsel's  failure to timely object  to the venue            instruction  did  not deprive  appellant  of  "a trial  whose            result  is  reliable."   See  Strickland,  466  U.S.  at 687.                                     ___  __________            Therefore, he was not prejudiced.                      Because  we  affirm the  judgment  of the  district                                   ______            court, appellant's appeal of the denial of bail is moot.                                         -3-
