
USCA1 Opinion

	




          October 1, 1992       [NOT FOR PUBLICATION]                                 ___________________          No. 92-1157                                            RAFAEL MORENO MORALES,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ___________________               Rafael Moreno Morales on brief pro se.               _____________________               Daniel F.  Lopez  Romo,  United  States  Attorney,  Jose  A.               ______________________                              ________          Quiles-Espinosa, Assistant  United States Attorney,  and Jeanette          _______________                                          ________          Mercado-Rios,  Assistant United  States  Attorney,  on brief  for          ____________          appellee.                                  __________________                                 __________________                                          -2-                                         ___                 Per Curiam.  In 1985, in connection with his involvement                 __________            in the  infamous  Cerro Maravilla  incident,  Rafael  Moreno-            Morales was convicted  of six federal offenses:  one count of            conspiring  to  obstruct justice,  give  false testimony  and            suborn perjury, in  violation of  18 U.S.C.    371, and  five            substantive  counts of perjury, in violation  of 18 U.S.C.               1621  & 1623.  After his convictions were affirmed on appeal,            United  States v. Moreno  Morales, 815  F.2d 725  (1st Cir.),            ______________    _______________            cert. denied, 484 U.S.  966 (1987), he filed the  instant pro            ____________            se petition under 28 U.S.C.    2255 for post-judgment relief.            Of the  various  claims presented  in  his petition,  he  has            preserved  three for  appeal:  (1) that  two  of the  perjury            convictions  involved  multiplicitous   counts  and   thereby            violated  Double Jeopardy;  (2) that  another of  the perjury            convictions was invalid  because his testimony was  literally            true;   and  (3)  that   his  attorney  rendered  ineffective            assistance  on  the direct  appeal.   We  find each  of these            contentions to be without merit, and therefore affirm.                                          I.                 The  multiplicity argument need not detain us.  In Count            14,  petitioner was charged with  a violation of  18 U.S.C.              1623 for testifying  falsely before a  federal grand jury  on            January 9,  1980.  And  in Count  18, he was  charged with  a            violation of 18  U.S.C.    1621 for testifying  falsely in  a            civil  deposition on March 26,  1980, conducted as  part of a                                         -3-                                         ___            federal civil  rights action.   Petitioner contends  that the            two  counts involved the same testimony and therefore did not            charge  separate offenses.    In Quiles-Hernandez  v.  United                                             ________________      ______            States, No. 90-1804 (1st Cir. 1991), we rejected an identical            ______            argument advanced  by one  of petitioner's codefendants.   We            first noted that such  a challenge had not been  raised prior            to  trial, as required under  Fed. R. Crim.  P. 12(b)(2), and            therefore  had been waived.  Id. at  4-5.  We also determined                                         ___            that  the claim was in  any event meritless:  since one count            involved statements made to  the grand jury, while  the other            involved statements  offered at  the  civil deposition  three            months later, separate  offenses had been committed.   Id. at                                                                   ___            6-8.  The same analysis controls here.                                         II.                 Petitioner's   "literal   truth"   claim  involves   the            following  exchange which occurred  during the  deposition on            March 26, 1980:                 Q.   What was the  first contact on  July 25th with                 other  persons,  other  than  the  ones  that  were                 stationed at Toro Negro?                 A.  Well, at almost twelve noon Commander Perez and                 Lieutenant Quiles  and agents from  Ponce and other                 personnel arrived there.                 Q.  How many agents from Ponce?                 A.  I think two.                 Q.  What other personnel?                 A.    Perez, Quiles,  Carmelo  Cruz  and two  other                       _____________________________________________                 agents  from Ponce.  I  do not recall  if there was                 ___________________________________________________                                         -4-                                         ___                 anyone else.                 ____________            The  indictment charged,  in  Count 17,  that the  underlined            answer was  perjurious, in  that "Carmelo  Cruz did  not come            from  Ponce to Toro Negro  with [Perez and  Quiles], but that            Nelson Gonzalez-Perez  and Jose  Montanez-Ortiz came to  Toro            Negro with [Perez and Quiles]."  Petitioner contends  that he            reasonably understood the final  question as asking--not what            personnel arrived from Ponce at noon with  Perez and Quiles--            but  rather what personnel were present at Toro Negro at that            time.  And  since the  evidence established  the presence  of            Carmelo  Cruz  at that  place and  time,  he argues  that his            response was literally true, even if misleading, and thus not            perjurious.   See, e.g., Bronston v. United  States, 409 U.S.                          ___  ____  ________    ______________            352 (1973).                 Generally,  "where an  answer  may or  may not  be false            depending  upon  possible  interpretations  of  an  ambiguous            question,  it is for the jury to decide whether the defendant            has committed perjury."   United States v. Finucan, 708  F.2d                                      _____________    _______            838, 848 (1st Cir.  1983); accord, e.g., Moreno  Morales, 815                                       ______  ____  _______________            F.2d  at 745 n.26.   An  exception to  this rule  holds that,            where a question is  so vague under all the  circumstances as            to  be  "fundamentally  ambiguous,"  the response  cannot  be            perjurious  as a matter of law.   See, e.g., United States v.                                              ___  ____  _____________            Glantz, 847  F.2d 1, 6 (1st  Cir. 1988) ("the  jury cannot be            ______            allowed  to guess at the  witness' understanding of a clearly                                         -5-                                         ___            ambiguous question");  United States v. Yasak,  884 F.2d 996,                                   _____________    _____            1002-03  (7th Cir. 1989);  United States v.  Lighte, 782 F.2d                                       _____________     ______            367, 375-76 (2d Cir. 1986);  United States v. Martellano, 675                                         _____________    __________            F.2d 940, 942-43 (7th Cir. 1982).                   We find no such fundamental ambiguity in the question at            issue here.   At the  beginning of  the exchange,  petitioner            asserted that Perez  and Quiles arrived at almost twelve noon            with "agents from Ponce" and "other personnel."  The next two            inquiries  asked petitioner to  elaborate on  this statement.            In both questions ("How many agents from Ponce?"; "What other            personnel?"), the questioner  tracked the very  language just            employed  by  petitioner.    We   think  it  plain  that  the            questioner  thereby  implicitly   incorporated  the   factual            predicates contained in petitioner's  earlier response--i.e.,            that the  question asked was: "What  other personnel [arrived            with  Perez and Quiles at  noon]?"  Whatever  lack of clarity            may have been lent by  the questioner's failure to  reiterate            these  predicates  aloud,  we do  not  find  the  question so            fundamentally ambiguous  as to have warranted  acquittal as a            matter of law.  See, e.g., United States v. Doherty, 867 F.2d                            ___  ____  _____________    _______            47, 69 (1st Cir.) (Bronston did not hold that "a defendant is                               ________            immune from prosecution  for perjury whenever some  ambiguity            can  be  found by  an  implausibly  strained reading  of  the                                         -6-                                         ___            questions he is asked"), cert. denied, 492 U.S. 918 (1989).1                                     ____________                                         III.                 In Moreno  Morales, we  heard the appeals  of petitioner                    _______________            and  eight  of  his  codefendants on  a  consolidated  basis.            Petitioner  was  there  represented  by  his  trial  counsel.            Petitioner now contends, in  his final argument, that counsel            provided  ineffective  assistance  during that  appeal.    He            asserts that counsel failed  to raise any specific challenges            to petitioner's convictions, but instead simply joined in the            generalized  arguments  advanced  by  other  counsel.2     He            suggests  that counsel never filed a separate brief at all on            his behalf.   And he  states that counsel  failed to  consult            with  him at any time after the verdict, such that petitioner            (1) had  no input into the choice of issues to be raised, (2)            never was shown  a copy of  the brief, and  (3) only  learned            through  third parties of the  results of the  appeal and the                                            ____________________            1.  While  petitioner  does   not  otherwise  challenge   the            _____________________________________________________________            sufficiency of the evidence in this regard, we might add that            _____________________________________________________________            the perjurious  statement here  tied directly into  a coverup            _____________________________________________________________            scheme concocted by the  defendants.  As explained  in Moreno            _____________________________________________________________            Morales,  the evidence showed that part of the coverup was to            _____________________________________________________________            conceal  the  presence  of   Montanez  at  the  shootings  by            _____________________________________________________________            "substituting  Cruz in his place."   815 F.2d  at 747-48; see            _____________________________________________________________            also United  States v.  Reveron Martinez,  836 F.2d  684, 690            _____________________________________________________________            (1st Cir. 1988); Quiles-Hernandez, supra, slip op.  at 6 n.5.            _____________________________________________________________            That petitioner intended  to testify falsely  regarding Cruz'            _____________________________________________________________            involvement is plainly inferable from such evidence.            ____________________________________________________            2.  In our decision, we noted that Moreno Morales, along with            _____________________________________________________________            other defendants, "did not appeal on specific grounds"  as to            _____________________________________________________________            the perjury counts, but did "appeal on more general grounds."            _____________________________________________________________            815 F.2d at 742 n.21.            _____________________                                         -7-                                         ___            subsequent  application  for   certiorari.    Such   conduct,                                           __________            petitioner alleges, constituted a constructive denial  of the            assistance of counsel, in violation of the Sixth Amendment.                   We disagree.  We see nothing in the record reflecting an            effective abandonment by counsel of his client on appeal.  To            the  contrary,   the  records  of  this   court  reveal  that            petitioner's attorney  did file  a separate  appellate brief.            Furthermore, counsel's  choice of issues to  pursue on appeal            is  one presumed to fall "within the wide range of reasonable            professional assistance."  Strickland v. Washington, 466 U.S.                                       __________    __________            668, 689 (1984).   And that presumption is bolstered  here by            three factors.  First,  counsel obviously was conversant with            all  facets of  the  case, having  represented petitioner  at            trial.   Second,  petitioner has  voiced no  complaint as  to            counsel's trial  performance.  And  third, he  has failed  to            identify  any  meritorious  (or  even  arguably  meritorious)            issues that were omitted from the direct appeal.                  To be sure, counsel's failure to consult with petitioner            while  preparing  the  appeal  is  a  less  than  commendable            practice.   Yet  even if  such  conduct is  deemed deficient,            petitioner  has not  shown  that he  was thereby  prejudiced.            See, e.g., United States  v. Campa, 679 F.2d 1006,  1014 (1st            ___  ____  _____________     _____            Cir. 1982)  (defendant  has "burden  of  establishing  actual            prejudice" stemming  from inadequate contact  with attorney);            McCarthy  v. United States, 764  F.2d 28, 31  (1st Cir. 1985)            ________     _____________                                         -8-                                         ___            (per  curiam)  (same).    As mentioned,  petitioner  has  not            identified any  appellate issue that should  have been raised            earlier,  nor has  he  otherwise explained  how  the lack  of            consultation  with counsel,  following  trial,  hampered  the            prosecution of  his appeal.    Under these  circumstances, we            perceive  no   constitutional  infirmity  in   the  appellate            representation received by petitioner.                 Affirmed.                 _________                                         -9-                                         ___
