
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2435                          LUIS GUILLERMO SANTIAGO-MARTINEZ,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Luis Guillermo Santiago-Martinez on brief pro se.            ________________________________            Lincoln C. Almond, United States Attorney, Margaret E. Curran  and            _________________                          __________________        James H.  Leavey,  Assistant United  States  Attorneys, on  brief  for        ________________        appellee.                                 ____________________                                     June 8, 1993                                 ____________________                      Per  Curiam.   Appellant  Luis Guillermo  Santiago-                      ___________            Martinez was  convicted, after  a jury  trial, of  possession            with   intent  to  distribute   cocaine  and   conspiracy  to            distribute   cocaine.    He   was  sentenced  to   97  months            imprisonment and  five years of  supervised release.   He did            not  pursue a  direct appeal.   Instead,  he filed  a motion,            under 28  U.S.C.    2255, to  set aside his  conviction.   He            raised  one  ground  for relief  --  that  his  trial counsel            provided  ineffective assistance of counsel when he failed to            object to part of the prosecutor's closing argument.                                          I.                                          _                      The  relevant facts, taken  from the briefs  of the            parties, are these.   On February 15, 1991,  a paid informant            for  the Drug  Enforcement Administration  (DEA) arranged  to            purchase  from   Rodrigo  Sostre,  one  of   appellant's  co-            defendants, a kilogram of cocaine for $28,000.  During one of            their telephone  conversations (which  was recorded),  Sostre            told  the  informant that  his "source"  for the  cocaine was            about to arrive  at his (Sostre's) apartment.   A few minutes            later, appellant  drove up  to the  apartment building,  went            inside and came back out with Sostre.                      On February  19, 1991,  the final  arrangements for            the drug  transaction took  place.   During another  recorded            phone call, Sostre told  the informant that he was on his way            to meet  his source  to discuss where  the deal  would occur.                                         -2-            Shortly  thereafter,  Sostre  was seen  entering  appellant's            apartment  building.   Sostre  then instructed  the informant            that the sale would take  place at Sostre's apartment.  After            further negotiations at which the informant and his "business            partner,"  Anthony  Roberto, an  undercover  DEA agent,  were            present,  it  was  agreed  that  Sostre  would  activate  the            informant's beeper when the cocaine arrived.                      During this  time,  a  surveillance  team  observed            Aguilino Jose Sanchez and Jose Hernandez (also co-defendants)            drive up to appellant's building.  Appellant got into the car            with  Sanchez and  Hernandez;  they  then  went  to  Sostre's            apartment.     A  few   minutes  after  their   arrival,  the            informant's beeper sounded.   When the informant  and Roberto            arrived  at   Sostre's  apartment,  Sanchez,   Hernandez  and            appellant  were already inside.   When questioned  by Roberto            why three people were necessary, Sostre replied that that was            the way he did business.  The arrest ensued.                      Appellant testified at trial.  He claimed that when            Sostre visited him  on the 19th, they arranged  to meet later            in  the  day.   He  denied having  gotten  into the  car with            Hernandez and Sanchez.   Rather, he stated, he  had walked to            Sostre's apartment  and had arrived  at the same time  as his            co-defendants, whom he did not know.  He averred that he  was            there, as arranged, to have a beer with Sostre.  He therefore            sat   apart  from  the  others  while  the  drug  transaction                                         -3-            occurred.  He testified  that he was  unaware of the sale  of            cocaine, that he could not  hear the conversation between his            co-defendants, the informant  and Roberto, and that  he could            not see the contents of the bag that contained the cocaine.                                         II.                                         __                      To  establish  a  successful  claim of  ineffective            assistance  of counsel, appellant must show that "the alleged            deficiencies    in    professional     performance    assumed            unconstitutional  dimensions  . .  .  ."   Barrett  v. United                                                       _______     ______            States, 965 F.2d  1184, 1193 (1st Cir. 1992).   The benchmark            ______            is  "whether  counsel's  conduct  so  undermined  the  proper            functioning  of the adversarial process that the trial cannot            be relied on  as having produced a just  result."  Strickland                                                               __________            v.  Washington, 466 U.S. 668, 686  (1984).  Under Strickland,                __________                                    __________            there  is a  two-pronged  test  for  determining  whether  an            attorney's conduct was so defective as to require reversal of            a  conviction.  A  defendant must demonstrate  that counsel's            conduct fell below "an objective standard of  reasonableness"            and  that  he was  prejudiced  in  the  sense that  "but  for            counsel's   errors,  the   result  below   would   have  been            different."   See Murchu  v. United States,  926 F.2d  50, 58                          ___ ______     _____________            (1st Cir.) (per curiam), cert. denied, 112 S. Ct. 99 (1991).                                     ____________                      Further, "[t]he  Constitution does not  guarantee a            defendant  a letter-perfect defense  or a successful defense;            rather,  the  performance  standard  is  that  of  reasonably                                         -4-            effective assistance under the circumstances then obtaining."            United  States  v.   Natanel,  938  F.2d  302,   309-10  (1st            ______________       _______            Cir.1991), cert. denied, 112 S. Ct. 986 (1992).  The range of                       ____________            acceptable assistance is broad so  that counsel is not unduly            restricted in making  strategic and tactical decisions.   Id.                                                                      ___            at 310.   "Judicial scrutiny of counsel's performance must be            highly deferential."  Strickland, 466 U.S. at 689.                                  __________                      Turning  to the  merits of  appellant's claims,  he            contends that counsel's performance fell below the Strickland                                                               __________            standard on the  ground that counsel failed to  object to the            following  comments made  by the  prosecutor  in his  closing            argument:                      Now, one Defendant took  the stand.   Mr.                      Martinez  took the stand  and he gave you                      what  he says happened.  How do you judge                      whether or  not a person  is telling  the                      truth?    You  do that  every  day.   The                      politician  who   says,  "I'm   going  to                      improve police protection.   I'm going to                      improve the schools.  There's going to be                      better fire  service  and  I'm  going  to                      lower  your taxes."   You  say okay,  but                      that  person has  a  motive, a  motive to                      lie.   Who has a  motive to  lie in  this                      case?  I  would suggest to you  that it's                      the Defendant, Mr. Santiago-Martinez.                      "[I]t is, of course, elementary that  statements of            counsel  as  to  personal belief  or  opinion  are improper."            United States v.  Cain, 544 F.2d 1113, 1116  (1st Cir. 1976).            _____________     ____            Thus, a prosecutor  may not include in closing  arguments his            or her  own opinions about  what conclusions should  be drawn            from the  evidence.  United  States v. Cresta, 825  F.2d 538,                                 ______________    ______                                         -5-            555 (1st Cir. 1987), cert. denied, 486 U.S. 1042 (1988).  The                                 ____________            concerns  behind this rule are that a prosecutor's expression            of opinion  might imply that the prosecutor  has knowledge of            information  that  is  not  before the  jury  and  that  such            expression puts in issue the credibility of counsel, with the            government having the advantage.  Id.                                              ___                      However, there is nothing  improper in a suggestion            by the  prosecutor which inferences the jury should draw from            the evidence.  United States v. Smith, 982 F.2d 681, 683 (1st                           _____________    _____            Cir. 1993);  United States v.  Mount, 896 F.2d 612,  625 (1st                         _____________     _____            Cir. 1990).  Similarly, a prosecutor has the right to comment            on  the  plausibility of  the  theory posed  by  the defense.            Smith, 982  F.2d at  683; United States  v. Garcia,  818 F.2d            _____                     _____________     ______            136, 143 (1st  Cir. 1987); United States v.  Glantz, 810 F.2d                                       _____________     ______            316, 321 (1st Cir.), cert. denied, 482 U.S. 929 (1987).  This                                 ____________            right includes,  in appropriate circumstances,  commentary on            the  "motivations  and  biases  of  the   defense  witnesses,                  ___________       ______            including [the defendant]."  Smith, 982 F.2d at 683 (emphasis            _________________________    _____            added).                      Here,  appellant took  the stand  and  testified to            facts that were  in contradiction to  those proffered by  the            government's  witnesses.    As such,  his  credibility  was a            central  issue,  leaving  the jury  with  the  basic decision            concerning which  of two  different stories  to believe.   In            these circumstances,  a reference  by the  prosecutor to  the                                         -6-            veracity of  a defendant  is proper so  long as  there is  no            suggestion of the  prosecutor's personal opinion.   See e.g.,                                                                ___ ____            Garcia, 818 F.2d at 143  (where "defense theory . . .  rested            ______            substantially  on pitting  [defendant's] credibility  against            that of the testifying police officers," prosecutor's comment            that "if you believe that  story, you believe in Santa Claus"            not improper); United States v.  Molina, 934 F.2d 1440,  1445                           _____________     ______            (9th Cir. 1991) (comments of prosecutor that someone is lying            and  that  the one  who  lied is  the  one who  is  guilty --            referring  to defendant --  are within  "reasonable latitude"            where case is  one that "essentially reduces to  which of two            conflicting stories is true").                      Appellant argues that the  prosecutor in this  case            improperly bolstered  the believability  of the  government's            witnesses while at the same time urging the jury to determine            appellant's  credibility based on his interest in the outcome            of  the trial and his motivation to lie.  He urges us to find            that  the prosecutor's remarks amounted to "plain error" and,            as  such, "undermine[d] the fundamental fairness of the trial            and contribute[d] to  a miscarriage of justice."   See United                                                               ___ ______            States v. Young, 470 U.S. 1,  16 (1985); Garcia, 818 F.2d  at            ______    _____                          ______            143  (absent  timely  objection, review  is  conducted  under            "plain error" standard).                      Appellant  likens his case  to Cresta.   In Cresta,                                                     ______       ______            the prosecutor  made the  following contested  comment:   "`I                                         -7-            suggest  Mr. Trundy [government  witness] is believable.  . .            .'"  825  F.2d at  555.  We  characterized this as  "personal            vouching" and found the comment to be improper.   Id. at 556.                                                              ___            We nonetheless determined  that the offending remark  did not            substantially prejudice the defendant.  Id. at 556-57.  In so                                                    ___            doing,  we  viewed  the  comment  in  light  of  all  of  the            circumstances.  In  addition to the length of  the trial, the            length of  closing arguments and the development of the issue            of  credibility of the government's witnesses, "there was the            key factor of the substantial evidence of appellants' guilt."            Id. at 556.            ___                      Appellant  argues that this "key factor" is missing            in his case because all of the evidence connecting him to the            crime  was  circumstantial.   Moreover,  he  claims,  defense            counsel did not  "open the door" to the prosecutor's comments            by  first  attacking  the  credibility  of  the  government's            witnesses.    See  Garcia, 818  F.2d  at  143  (where defense                          ___  ______            counsel suggested in closing that testifying police  officers            had  lied,  prosecutor, on  rebuttal,  did not  substantially            prejudice defendant's case by  assailing the truthfulness  of            defendant's version of the facts).                      Appellant misunderstands the  nature of our inquiry            in this case.  We  are not reviewing the prosecutor's comment            to see  whether it constituted  plain error.  Rather,  we are            deciding  whether  appellant's counsel  provided  ineffective                                         -8-            assistance  to appellant by failing to object to the comment.                                        _________________            This issue turns on whether  counsel's conduct "fell below an            objective standard of  reasonableness."  Murchu, 926  F.2d at                                                     ______            58.   Thus, considerations  such as  whether the  comment was            made on rebuttal  and whether the evidence  against appellant            was substantial are only part of the equation.                      The cases discussed above persuade us that in these            circumstances, counsel's  behavior was  well within  the wide            range  of acceptable  assistance.   The  decision whether  to            object  during a  closing  argument  is  plainly  a  tactical            choice.   For instance, counsel  may not have wanted  to risk            drawing  attention to the conflicting stories.  Further, when            credibility is  placed in  issue by  a defendant's  choice to            take  the stand and  present his side of  the story, as here,            the law in our circuit permits a prosecutor to comment on the            motivation of the defendant.  See Smith, 982 F.2d at 683.                                          ___ _____                      Given the range and type of  prosecutorial argument            we have allowed in such  a situation, see, e.g., id. (comment                                                  ___  ____  ___            that witness and defendant had "concocted" their story proper            as it suggested  inferences jury could draw  from conflicting            evidence)  and Garcia,  818 F.2d at  143-44 &  n.7 (statement                           ______            that defendant  "is lying," though  not to be  encouraged, is            proper "commentary on  the implausibility of the  defendant's            story"),  we   cannot   say  that   counsel's   conduct   was            constitutionally deficient.   Indeed, counsel's  decision not                                         -9-            to  object  is  supported by  these  cases.   This  is  not a            situation, as appellant  suggests, where  the prosecutor,  in            closing, made a  deliberate misrepresentation as to  what the            evidence showed.   See United States v.  Santana-Camacho, 833                               ___ _____________     _______________            F.2d  371, 373 (1st Cir. 1987)  (where comment that defendant            had  illegally entered  country  unsupported  in  record  and            contrary to only evidence on the issue, plain error existed).                      For  the foregoing  reasons,  the  judgment of  the            district court is affirmed.                              ________                                         -10-
