
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2006                                    UNITED STATES,                                      Appellee,                                          v.                                 CHARLES E. DANIELS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                            Cyr and Stahl, Circuit Judges,                                           ______________                             and Fuste,* District Judge.                                         ______________                                 ____________________            Robert J. Carnes, by appointment of the Court, for appellant.            ________________            C. Jeffrey Kinder, Assistant United States  Attorney, with whom A.            _________________                                               __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   August 30, 1993                                 ____________________        ________________        *Of the District of Puerto Rico, sitting by designation.                      STAHL,  Circuit  Judge.   A federal  jury convicted                              ______________            defendant  Charles Daniels ("Daniels")  of illegal possession            of a firearm by a convicted felon, a violation of 18 U.S.C.              922(g)(1).   The district court sentenced  Daniels to fifteen            years imprisonment,  the mandatory minimum sentence under the            Armed Career  Criminal Act  ("ACCA"), 18 U.S.C.    924(e)(1).            On appeal, Daniels  claims that:   1) the indictment  against            him   should  have  been   dismissed  as  a   result  of  the            government's  violation   of  the  Interstate   Agreement  on            Detainers ("IAD"); 2) his trial counsel was  constitutionally            ineffective;   3)  the  district  court  failed  to  properly            instruct the jury on the government's burden of proof; and 4)            the district  court improperly sentenced him  under the ACCA.            Finding these claims meritless, we affirm.                                          I.                                          I.                                          __                       Factual Background and Prior Proceedings                       Factual Background and Prior Proceedings                       ________________________________________                      We recount the facts in the light most favorable to            the prosecution.  United  States v. Alvarez, 987 F.2d  77, 79                              ______________    _______            (1st  Cir. 1993), petition for  cert. filed,      U.S.L.W.                                 ________ ___  _____ _____  ____          __            (U.S.  June   9,  1993)  (No.  92-9080).     A  Massachusetts            investigation  of Daniels  and his  girlfriend, Deborah  Hill            ("Hill"), culminated on November 17, 1989, with the execution            of  search  warrants at  their  respective  residences.   The            warrants   authorized   a   search   for   cocaine,   cocaine                                         -2-                                          2            paraphernalia, and  records related to the  purchase and sale            of cocaine.                      Prior to  the search of  Hill's residence,  Daniels            had  been observed  leaving  his apartment  carrying a  brown            nylon bag.  He drove to Hill's residence and entered her home            with the  bag.  At  approximately 7 p.m.,  five Massachusetts            State Troopers forcibly entered  Hill's residence in order to            execute the warrant.  Three  of the troopers, having  entered            the apartment  by way of  its kitchen, moved  forward towards            other  portions  of  the  apartment.   As  one  trooper,  Lt.            McDonald,  reached the  entrance  to a  bedroom, he  observed            Daniels, in the middle of the room, "crouched" over the brown            bag with  his hand inside it.  As Daniels looked up, McDonald            and  two other troopers rushed toward him and pushed him onto            a bed.  Following a struggle, the troopers handcuffed Daniels            and removed him from the scene.                      While the  three  troopers were  subduing  Daniels,            Trooper  Thomas  Kerle's  cursory  search of  the  brown  bag            revealed cocaine and cocaine  paraphernalia.  A more complete            search of the  bag, performed after Daniels was  removed from            the  room,  yielded  a  loaded  Browning  .38  caliber  semi-            automatic pistol and approximately $1,000 cash.  A subsequent            execution of the warrant to search Daniels's residence netted            17  rounds  of  .38  caliber ammunition  which  matched  that            removed from the gun found in the brown bag.                                           -3-                                          3                      Daniels pled guilty  to cocaine related charges  in            Hampshire County (Mass.) Superior  Court and was sentenced to            three to  six years imprisonment.   On March 5, 1992,  he was            indicted by a federal grand jury on a charge of possession of            a firearm by a convicted felon,  in violation of 18 U.S.C.               922(g)(1).                      At trial,  the various  state troopers  involved in            the case, as well  as both Hill and Daniels, testified.  Hill            testified that  she assisted  Daniels in the  distribution of            cocaine and collection  of cocaine related  debts.  She  also            testified  that the brown bag was one that she had previously            bought for Daniels.  Finally, she testified that the contents            of the  bag belonged to Daniels  and that she  had never seen            the gun before the police showed it to her.  Daniels admitted            that he and  Hill used and  sold cocaine.   He also  admitted            that   the  brown   nylon   bag,  the   seized  cocaine   and            paraphernalia were his.   He  denied, however,   that he  was            reaching into the bag  at the time McDonald sighted  him, and            also claimed that he  had never before seen the gun at issue.            The jury deliberated approximately two hours before returning            a guilty verdict.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________            A.  Ineffective Assistance of Counsel            A.  Ineffective Assistance of Counsel            _____________________________________                                         -4-                                          4                      Daniels argues that his trial counsel's performance            was  constitutionally  infirm because:    1)  she withdrew  a            motion  to  suppress evidence  seized  during  the search  of            Hill's apartment;  and 2)  she cross-examined Hill  about her            drug  activity, thereby  "opening the  door" to  admission of            evidence  regarding  Daniels's  own drug  involvement.    We,            however,  need not address these  claims because they are not            properly before us.  A brief explanation follows.                      It  is well settled in this circuit that a claim of            ineffective assistance of counsel  will not be resolved  on a            direct  appeal where the claim was not raised in the district            court, unless the  critical facts  are not in  dispute and  a            sufficiently  developed  record  exists.   United  States  v.                                                       ______________            Georgacarakos,  988  F.2d  1289,  1297-98  (1st  Cir.  1993).            _____________            Instead,  such a  claim  is to  be  pursued in  a  collateral            proceeding under  28 U.S.C.    2255.   Id.  at  1298.   Here,                                                   ___            appellant  does not argue  that he  raised this  issue below.            Moreover, our  review of the record demonstrates that both of            Daniels's  claims   are  heavily  dependent  on  the  factual            circumstances surrounding  each  of the  allegedly  deficient            actions taken by trial counsel.  Accordingly, we do not reach            Daniels's ineffective assistance of counsel claim.            B.  Interstate Agreement on Detainers            B.  Interstate Agreement on Detainers            _____________________________________                      Daniels next argues that the indictment should have            been dismissed because  his rights under  the IAD, 18  U.S.C.                                         -5-                                          5            app. II,    2, art.  IV(e)1, were violated when  he was twice            transferred   from  Massachusetts  to   federal  custody  for            purposes of arraignment.  We disagree.                      At the time of  his federal indictment, Daniels was            incarcerated   in   a    Gardner,   Massachusetts    facility            ("Gardner"), serving his sentence  on the state drug charges.            On March 6, 1992,  the day after his federal  indictment, the            district court, sua sponte, issued a writ of habeas corpus ad                            ___ ______                   ______ ______ __            prosequendum to  the  warden at  Gardner, ordering  Daniels's            ____________            production on March 20, 1992, for  arraignment on the federal            indictment.   On March  9, 1992, the  United States Marshal's            Service lodged a detainer  with the Gardner warden, notifying            him of the pending federal charges against Daniels.                      Daniels made his initial appearance before a United            States  Magistrate Judge  on  March 20,  1992.   After  being            advised of  the charge against him,  Daniels requested court-            appointed counsel.   The  arraignment was continued  to March            30,  1992, so  that counsel  could be  present.   Daniels was            returned  to  Gardner that  same  day.   The  district court,            meanwhile, issued a second  writ, ordering the Gardner warden            to produce Daniels on March 30, 1992.                                            ____________________            1.  Pursuant  to Article IV(e) of the IAD, "[i]f trial is not            had on any indictment . .  . contemplated hereby prior to the            prisoner's  being   returned   to  the   original  place   of            imprisonment .  . . such indictment . . . shall not be of any            further force or effect,  and the court shall enter  an order            dismissing the same with prejudice."                                         -6-                                          6                      Daniels appeared for arraignment on March 30, 1992,            with appointed counsel,  and entered  a not guilty  plea.   A            discovery  and  motion  schedule  was set,  and  Daniels  was            returned  to Gardner,  where  he remained  until his  federal            trial.                      Daniels's  argument for  dismissal  is  based on  a            literal  reading of  Article IV(e).   Strictly  speaking, the            argument  is not without merit.  In this circuit, however, we            have  firmly held  that  "common sense  rejects that  literal            application."  United States  v. Taylor, 947 F.2d  1002, 1003                           _____________     ______            (1st Cir.), cert. denied,  112 S. Ct. 2982 (1992).   Instead,                        _____ ______            we have  held--as have  several other circuits--that  a brief            interruption  in state  prison  confinement  for purposes  of            arraignment, where the prisoner  is returned to state custody            the same day, does not violate the IAD. Id.; United States v.                                                    ___  _____________            Taylor, 861 F.2d 316, 319 (1st Cir. 1988); see also Baxter v.            ______                                     ___ ____ ______            United  States, 966 F.2d  387, 389  (8th Cir.  1992) (removal            ______________            from  state custody  for few  hours for arraignment  and plea            does not violate  IAD); United  States v.  Johnson, 953  F.2d                                    ______________     _______            1167, 1171  (9th Cir.)  (five different transfers  from state            custody to federal court did  not violate IAD), cert. denied,                                                            _____ ______            113 S.  Ct. 226 (1992); United  States v. Roy, 830  F.2d 628,                                    ______________    ___            636 (7th Cir. 1987) (overnight  removal did not violate IAD),            cert. denied, 484 U.S. 1068 (1988); United States v. Roy, 771            _____ ______                        _____________    ___            F.2d 54, 60  (2d Cir.  1985) (same), cert.  denied, 475  U.S.                                                 _____  ______                                         -7-                                          7            1110 (1986).  But see United States v. Schrum,  638 F.2d 214,                          ___ ___ _____________    ______            215  (10th  Cir.  1981)  (whenever  prisoner is  transferred,            however  briefly,  IAD  is   violated  and  charges  must  be            dismissed), aff'g  504 F.  Supp.  23 (D.  Kan. 1980);  United                        _____                                      ______            States  v. Thompson,  562 F.2d  232, 234  (3d Cir.  1977) (en            ______     ________            banc) (same), cert. denied, 436 U.S. 949 (1978).                          _____ ______                      The rationale behind our  interpretation of the IAD            is that a brief interruption in state custody poses no threat            to the prisoner's rehabilitation efforts, the main purpose of            the  Act.  Taylor, 947  F.2d at 1003;  United States v Mauro,                       ______                      _____________   _____            436 U.S.  340, 349 (1978).   Indeed,  as we have  noted, such            interruptions may be advantageous  to a defendant. See, e.g.,                                                               ___  ____            Taylor,  947  F.2d  at 1003  (securing  speedy  arraignment).            ______            Here, Daniels has alleged  no hindrance to the rehabilitative            efforts of his state  incarceration.2  Finally, Daniels tries            to distinguish both Taylor cases because they involved single                                ______            transfers, while Daniels was twice transferred.  We find this            distinction to be of  no legal moment, especially, where,  as            here, the  second transfer  was effected to  secure Daniels's            right  to counsel.   Accordingly,  we reject  Daniels's claim            under the IAD.                                            ____________________            2.  In fact, as the  government correctly points out, literal            application  of the  IAD could  frustrate its  goals.   If we            accept Daniels's argument for purposes of this case, he would            have been removed from  state custody from the  original date            of his federal arraignment, March 20, 1992, until the date of            his  disposition, August 3, 1992.   We can  hardly think of a            greater disruption in rehabilitative services.                                         -8-                                          8            C.  Sentencing Under the ACCA            C.  Sentencing Under the ACCA            _____________________________                      Pursuant  to   the  ACCA,  a   felon  convicted  of            possessing  a  firearm must  receive  a  minimum sentence  of            fifteen years if  he has three prior  convictions for violent            felonies or  serious drug offenses.   18 U.S.C.    924(e)(1).            To  support the  ACCA  sentence  enhancement, the  government            introduced into evidence at the  sentencing hearing certified            copies of  Daniels's  convictions for  attempted  assault  in            1965, attempted robbery in  1970, rape in 1973,  and reckless            endangerment and assault in 1986.  At the sentencing hearing,            Daniels  argued   that  the  1973  rape   and  1986  reckless            endangerment  and assault convictions were invalid predicates            because he was not represented by counsel during the relevant            proceedings.                      On  appeal, Daniels embarks  on a different course.            He now argues that  the 1965, 1970, and 1973  convictions are            too  old to be  used as predicate  offenses.3  This  claim is            meritless.                      Not only does the ACCA lack a limitations period on            predicate  crimes,   but  appellate  courts   have  uniformly                                            ____________________            3.  In  his brief,  appellant also  argued that  the district            court  improperly used  as a  predicate  Daniels's underlying            drug  conviction  and  also  improperly  considered his  1986            convictions for assault and reckless endangerment as separate            predicate offenses.  These contentions, however, were  waived            at oral argument.                                         -9-                                          9            rejected attempts to  create such a  limitation.  See  United                                                              ___  ______            States  v.  Alvarez, 972  F.2d  1000,  1006  (9th Cir.  1992)            ______      _______            (predicate convictions  more than fifteen  years old),  cert.                                                                    _____            denied, 113 S. Ct. 1427 (1993); United States v. Blankenship,            ______                          _____________    ___________            923 F.2d  1110, 1118  (5th Cir.) (predicate  convictions more            than twenty years old), cert. denied, 111 S. Ct. 2262 (1991);                                    _____ ______            United States v. McConnell, 916 F.2d 448, 450 (8th Cir. 1990)            _____________    _________            (same);  United States v. Preston,  910 F.2d 81,  89 (3d Cir.                     _____________    _______            1990), cert. denied, 111 S. Ct. 1002 (1991); United States v.                   _____ ______                          _____________            Green,  904  F.2d  654, 655  (11th  Cir.  1990)  (same).   We            _____            similarly decline  Daniels's  invitation  to  create  such  a            limitations period,  and find that he  was properly sentenced            pursuant to the ACCA.            D.  Jury Instructions            D.  Jury Instructions            _____________________                      Daniels's final claim  is that  the district  court            failed adequately  to instruct  and define  for the jury  the            government's burden of proof.  As no objection to the court's            instruction  was made  at  trial, we  review  only for  plain            error.   Fed. R. Crim. P. 52(b);  United States v. Olano, 113                                              _____________    _____            S.  Ct. 1770, 1778 (1993) (reversal for plain error warranted            only  where  the  error   "seriously  affects  the  fairness,            integrity or public reputation of judicial proceedings").  We            have read the charge and find no plain error.4                                            ____________________            4.  Indeed,   appellant's   counsel    termed   this    claim            "insupportable," and filed the  relevant section of the brief            pursuant to Anders v. California, 386 U.S. 738 (1967).                        ______    __________                                         -10-                                          10                      Based  on the foregoing, appellant's conviction and            sentence are affirmed.                         affirmed.                         _________                                         -11-                                          11
