
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 96-2363 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                      ISRAEL SANTIAGO-LUGO, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Lynch and Lipez, Circuit Judges. <br> <br>                      _____________________ <br> <br>    Terrance J. McCarthy, by appointment of the Court, on brief, <br>for appellant. <br>    Lena Watkins, Associate Deputy Chief, Narcotic and Dangerous <br>Drug Section, Criminal Division, U.S. Department of Justice, <br>James K. Robinson, Assistant Attorney General, Mary Ellen Warlow, <br>Acting Chief, Narcotic and Dangerous Drug Section, and Guillermo <br>Gil, Acting United States Attorney, on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                        February 3, 1999 <br>                       ____________________

          TORRUELLA, Chief Judge. Israel Santiago-Lugo ("Santiago- <br>Lugo") was the lead defendant in a fifty-count indictment returned <br>on June 7, 1995, in the District of Puerto Rico.  Count 1 of the <br>indictment charged Santiago-Lugo and thirty co-defendants with <br>conspiracy to possess cocaine base, cocaine, heroin, and marijuana <br>with intent to distribute from 1988 through the date of the <br>indictment, in violation of 21 U.S.C.  846.  Count 2 charged <br>Santiago-Lugo and several co-defendants with engaging in a <br>continuing criminal enterprise, in violation of 18 U.S.C.  2 and <br>21 U.S.C.  848, and further alleged that Santiago-Lugo was the <br>principal administrator, organizer, and leader of the enterprise.  <br>Counts 4 through 45 charged Santiago-Lugo and various co-defendants <br>with engaging in monetary transactions in criminally derived <br>property, in violation of 18 U.S.C.  2 and 1957.  The jury <br>returned guilty verdicts on all counts.  The district court imposed <br>concurrent sentences of life imprisonment as to Count 2 and <br>imprisonment for 10 years as to each of counts 4 through 45, to be <br>followed by concurrent five and three year terms of supervised <br>release.  On appeal, Santiago-Lugo challenges procedural rulings <br>made by the trial court.  For the following reasons, we affirm. <br>                            BACKGROUND <br>          Santiago-Lugo was the kingpin of a vast drug conspiracy.  <br>His actions, and those of his associates, are fully documented in <br>this Court's opinions in United States v. Eulalio Candelaria-Silva, <br>No. 96-1711, slip op. (1st Cir. Jan. 22, 1999), United States v. <br>Luis Candelaria-Silva, No. 97-1659, slip op. (1st Cir. Dec. 10, <br>1998), and United States v. Marrero-Ortiz, No. 96-2187, slip op. <br>(1st Cir. Nov. 17, 1998). <br>                            DISCUSSION <br>I.  Anonymous Jury <br>          The need for the district court to empanel an anonymous <br>jury for Santiago-Lugo and his co-conspirators was enunciated by <br>this Court in Marrero-Ortiz, slip op. at 13-14.  We see no need to <br>rethink our decision. <br>II.  Jury Selection <br>          Our discussion of whether the district court violated <br>Santiago's constitutional or statutory rights by excusing fourteen <br>jurors prior to voir dire is set forth in Eulalio Candelaria-Silva, <br>slip op. at 12-25.  Suffice to say, we held that the district <br>court's actions did not constitute reversible error. <br>III.  Unfair Trial <br>          Santiago-Lugo contends that the placement of a marshal <br>near the defense table during the testimony of Noem Garca-Otero, <br>in conjunction with the anonymous jury, resulted in erosion of the <br>presumption of innocence and, therefore, an unfair trial.  His <br>claim is without merit. <br>          First, Santiago-Lugo did not even object to the marshal's <br>location at trial.  In fact, none of the attorneys who inquired <br>about the marshal's presence expressed any concern that his <br>presence would unfairly convey the message that the defendants were <br>dangerous to the jury.  Thus, the record offers no indication that <br>the marshal's presence and location was "so inherently prejudicial"  <br>as to deny the defendants a fair trial.  See Holbrook v. Flynn, 475 <br>U.S. 560, 570 (1986).  Where there is cause for security measures, <br>a "slight degree of prejudice" is tolerated.  See id. at 571. <br>          Second, with respect to decisions about security at <br>trial, the trial judge "must be accorded broad discretion."  United <br>States v. Darden, 70 F.3d 1507, 1533 (8th Cir. 1995).  In this <br>case, the district court indicated that the U.S. Marshals Service <br>had requested the specific placement of the marshal.  The judge's <br>dialogue with co-defendants' counsel appeared to reflect more <br>concern about the marshal overhearing what occurred at the defense <br>table than about the marshal's presence imparting to the jury a <br>presumption of dangerousness.  Therefore, the court properly <br>exercised its discretion in this matter and certainly did not <br>commit plain error. <br>IV.  Conflict of Interest  <br>          The presumption in favor of a defendant's counsel of <br>choice "may be overcome not only by a demonstration of actual <br>conflict, but by a showing of serious potential for conflict."  <br>Wheat v. United States, 486 U.S. 153, 164 (1989).  In each case, <br>however, "[t]he evaluation of the facts and circumstances . . . <br>under this standard must be left primarily to the informed judgment <br>of the trial court."  Id.  Furthermore, although a district court <br>must inquire when advised of a potential conflict of interest, the <br>court may rely on counsel's representations that no such conflict <br>exists.  See United States v. Kliti, 156 F.3d 150, 153 (2d Cir. <br>1998).  It is within the district court's discretion to override a <br>defendant's waiver of protection from a conflict of interest.  SeeWheat, 486 U.S. at 164.  Here, the district court properly <br>exercised its discretion in accepting Santiago-Lugo's waiver of the <br>potential conflict of interest identified by the government, and no <br>actual conflict developed with respect to the evidence presented at <br>trial. <br>          The government's conflict of interest pleadings reflected <br>that, prior to Santiago-Lugo's investment in the Magdalena S.E. <br>partnership, his attorney, Humberto Ramrez-Ferrer ("Ramrez"), had <br>been a partner.  Although correspondence from a bank was addressed <br>to Ramrez as a partner in Magdalena for the period March-July <br>1992, all other documentation and information reflected that <br>Ramrez's interest in the partnership terminated prior to Santiago- <br>Lugo's acquisition of a one-half interest in the partnership from <br>Jos Gmez-Cruz.  Thus, the only information linking Ramrez to <br>Santiago-Lugo's financial transactions was the evidence--from which <br>Ramrez's name was redacted--that Ramrez provided and was paid for <br>legal services in conjunction with Santiago-Lugo's purchase of two <br>gas stations. <br>          In arguing that the district court should have <br>disqualified Ramrez as his attorney, Santiago-Lugo highlights <br>their participation in the Magdalena partnership and legal services <br>that Ramrez subsequently provided to Santiago-Lugo--some in <br>relation to Santiago-Lugo's interest in the partnership.  <br>          While it is true that an actual conflict exists where <br>counsel's representation of a defendant precludes the admission of <br>favorable or exculpatory evidence, see Kliti, 156 F.3d at 157, this <br>case does not present such a circumstance.  First, Ramrez's <br>involvement in Magdalena, including the partnership's purchase of <br>real estate in 1989, was completely unrelated to the transactions <br>relevant to this case.  Second, Ramrez withdrew from the <br>partnership prior to Santiago-Lugo's purchase of a one-half <br>interest from Gmez-Cruz for $250,000 in 1992.   <br>          There is no information in the record supporting the <br>allegation that Ramrez possessed knowledge bearing on the sources <br>of the illicit funds attributed to Santiago-Lugo.  Santiago-Lugo's <br>claim that the district court should have disqualified his attorney  <br>is without merit. <br>V.  Inadequate Representation <br>          Santiago-Lugo alleges that Ramrez failed to adequately <br>cross-examine the expert accountant, Pablo Montes.  He also alleges <br>that another of his attorneys, Erick Morales: (1) failed to bring <br>forth witnesses who could have identified his brother, Ral <br>Santiago-Lugo, as the leader of the conspiracy; (2) elicited <br>damaging information from a government agent and a cooperating <br>witness; and (3) hurt his cause by arguing with the district court <br>over evidentiary and procedural matters. <br>          However, the appellate record does not indicate that any <br>of these claims was properly raised before and/or addressed by the <br>district court.  Moreover, our review of the record persuades us <br>that the record is not sufficiently developed for us to address the <br>merits of Santiago-Lugo's Sixth Amendment claim at this time.  <br>Accordingly, we do not reach it.  See, e.g., United States v. Gray, <br>958 F.2d 9, 15 (1st Cir. 1992) ("Time and again we have held that <br>a claim of inadequate representation will not be resolved on direct <br>appeal when the claim has not been raised in the district court, <br>unless the critical facts are not in dispute and a sufficiently <br>developed record exists."); see also United States v. Hoyos-Medina, <br>878 F.2d 21, 22 (1st Cir. 1989) ("Fairness to the parties and <br>judicial economy both warrant that, absent extraordinary <br>circumstances, an appellate court will not consider an ineffective <br>assistance claim where no endeavor was first made to determine the <br>claim at the district court level."). <br>                            CONCLUSION <br>     For the above reasons, we AFFIRM. <br></pre>

</body>

</html>

