                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-27-2005

USA v. Rodriguez
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1801




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                                             NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ____________

                   No. 04-1801
                  ____________

        UNITED STATES OF AMERICA

                          v.

            MIGUEL A. RODRIGUEZ

                 Miguel Rodriguez,

                        Appellant
                  ____________

  On Appeal from the United States District Court
           for the District of New Jersey
             (D.C. No. 02-cr-00021-5)
    District Judge: Honorable John C. Lifland
                   ____________

    Submitted Under Third Circuit LAR 34.1(a)
               September 22, 2005

Before: ROTH, McKEE and FISHER, Circuit Judges.

           (Filed: December 27, 2005 )
                  ____________

     AMENDED OPINION OF THE COURT
             ____________
FISHER, Circuit Judge.

                                              I.

    Following a jury trial, Appellant Miguel Rodriguez was convicted of one count of

conspiracy to distribute cocaine and two counts of distribution of cocaine, and was

sentenced to 210 months imprisonment on each count, to be served concurrently. For the

reasons set forth below, we will affirm his conviction as to each count, and remand for

resentencing. As we write only for the parties, we will avoid recapitulation of the briefs,

and set forth only those facts necessary to our analysis.

    Rodriguez was driving a van containing 74 kilograms of cocaine in cardboard boxes

when he was stopped and arrested by the New Jersey state police. He claimed that he did

not know what was in the boxes and that they did not belong to him. Of particular

relevance to this appeal are two undisputed facts: First, the cocaine that was found in the

van had been placed there by state police officers while the van was in the sole control of

the police. Second, the government’s case relied heavily on the testimony of one Carlos

Ruben Ojeda, who testified, inter alia, that he and Rodriguez had planned and executed

this and several other cocaine shipments.

    Because Rodriguez did not put the cocaine in the van, his knowledge of the contents

of the boxes is a necessary element of the second distribution count. As to the conspiracy

count, Ojeda’s testimony is virtually the sole evidence for the existence of the conspiracy

and for Rodriguez’s participation. Ojeda’s testimony is therefore the key to the



                                              2
government’s case. Rodriguez contends that his trial counsel failed to pursue certain lines

of cross examination that could have undermined Ojeda’s credibility.

    Rodriguez raises three issues on appeal. First, he contends that his trial counsel

provided ineffective assistance. Second, he challenges the sufficiency of the evidence

supporting the verdict. Third, he challenges the validity of his sentence under recent

Supreme Court precedents. We have jurisdiction to hear appeals of both conviction and

sentence under 28 U.S.C. § 1291.

                                              II.

    Rodriguez argues that his counsel was ineffective and seeks reversal of his conviction

on that ground. The United States urges us to deny the ineffective assistance claim based

on the record on appeal. Our review of ineffective assistance claims on direct appeal is

governed by United States v. Thornton, 327 F.3d 267 (3d Cir. 2003). While ineffective

assistance claims may, in rare cases, be resolved on direct appeal, our preference is to

“defer the issue of ineffectiveness of trial counsel to a collateral attack.” Id. at 271. We

will decide ineffective assistance claims on direct appeal only in those rare cases in which

“the record is sufficient to allow determination of ineffective assistance,” so that “there is

no need for further factual development.” United States v. Headley, 923 F.2d 1079, 1083

(3d Cir. 1991).

    Both Rodriguez and the United States argue that the existing record is sufficient to

decide the issue of ineffective assistance. However, we do not find the record sufficiently



                                              3
compelling to overcome our preference for a separate hearing. We therefore decline to

decide on the basis of the existing record whether defense counsel was ineffective, as

Rodriguez claims, or “exemplary,” as the government claims. In his appeal, Rodriguez

makes much of the fact that his trial counsel could have conducted a more thorough

investigation and a more searching cross-examination. However, the question to be

answered is whether there is a “rational basis to believe that ... trial counsel’s failure [to

ask certain questions or make certain arguments] was a strategic choice.” Headley, 923

F.2d at 1083. That question is best addressed in a separate proceeding under 28 U.S.C.

§ 2255 in which a record may be developed concerning counsel’s strategy and choices.

                                              III.

    Rodriguez argues that much of Ojeda’s testimony is absurd and that Ojeda had clear

motives to lie. Because the jury verdict necessarily relied heavily on Ojeda’s testimony,

Rodriguez urges us to reverse it as being based on insufficient evidence. “When deciding

whether a jury verdict was based on sufficient evidence,” our review is “particularly

deferential.” United States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002) (citing United

States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)). “It is not our role to weigh the

evidence or to determine the credibility of the witnesses. We must view the evidence in

the light most favorable to the Government and sustain the verdict if any rational juror

could have found the elements of the crime beyond a reasonable doubt.” Id. (internal

citation omitted). Because Rodriguez did not preserve this issue for appeal by making a



                                               4
timely motion for a judgment of acquittal, his burden is even higher, and we will affirm

his conviction unless it constitutes a “fundamental miscarriage of justice.” United States

v. Gordon, 290 F.3d 539, 547 (3d Cir. 2002) (internal quotation marks, citation omitted).

    This distinction is of little moment, however, because the sufficiency issue here is a

credibility issue, and an appellate court cannot make credibility judgments on an appellate

record. That task is for the jury alone. Schlup v. Delo, 513 U.S. 298, 330 (1995);

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Burks v. United States, 437 U.S. 1, 16-

17 (1978); Hoffa v. United States, 385 U.S. 293, 311 (1966); Glasser v. United States,

315 U.S. 60, 80 (1942). For the purposes of appellate review of the sufficiency of the

evidence supporting a jury verdict, we must “presume that the jury properly evaluated

[the] credibility of the witnesses,” United States v. Iafelice, 978 F.2d 92, 94 (3d Cir.

1992). If Rodriguez’s counsel failed adequately to undermine Ojeda’s credibility,

Rodriguez is free to raise that issue at a collateral proceeding on his ineffective assistance

claim. But on this appeal, we must ask only whether, if the jury believed Ojeda, there

was sufficient evidence to convict. And to that question the clear answer is “yes.”

Accordingly we will affirm Rodriguez’s conviction.

                                             IV.

    Rodriguez also challenges his sentence under Blakely v. Washington, 542 U.S. 296

(2004), on the grounds that the factual determination of the amount of cocaine he

distributed was made by the judge rather than the jury. United States v. Booker, 543 U.S.



                                              5
---, 125 S. Ct. 738 (2005), decided during the pendency of this appeal, controls this case.

Having concluded that the sentencing issues raised here are best determined by the

District Court in the first instance, we will vacate Rodriguez’s sentence and remand for

resentencing in accordance with Booker.




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