
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-2086                                  JOSEPH ARGENCOURT,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________               Gary E. Blais for appellant.               _____________               James H. Leavey, Assistant United States Attorney, with whom               _______________          Sheldon Whitehouse, United States Attorney, was on brief, for the          __________________          United States.                                 ____________________                                    March 18, 1996                                 ____________________                    LYNCH, Circuit Judge.   In  his second  trip to  this                           _____________            court, Joseph Argencourt argues  that he was denied effective            assistance of counsel during his  criminal trial and that the            district  court erred  in denying his  Motion to  Vacate, Set            Aside or Correct Sentence under 28 U.S.C.   2255.  Argencourt            was  convicted of  conspiring  with  his co-defendant  Rodney            Andreoni to distribute cocaine.   His conviction was affirmed            on direct appeal.  United States v. Argencourt, 996 F.2d 1300                               _____________    __________            (1st Cir. 1993), cert. denied, 114 S. Ct. 731 (1994).  We now                             _____ ______            affirm the denial of his motion under 28 U.S.C.   2255.                    The  facts  are  set  forth  in  our  prior  opinion.            Suffice  it  to  say  that  the  FBI,  in  the course  of  an            undercover investigation  of insurance fraud in  Rhode Island            and Massachusetts, learned that a target of the investigation            -- Andreoni -- was willing to sell substantial  quantities of            cocaine.  Recorded conversations revealed that Argencourt was            to  be the supplier of  the cocaine.   Argencourt, having had            prior experience with informants wearing wires, was skittish,            became spooked, and failed  to appear to consummate  the deal            on the designated day.  The government thus had no cocaine to                                         -2-                                          2            show, but proved  its case  through the recordings.   Id.  at                                                                  __            1302.              Petitioner's Burden            ___________________                                         -3-                                          3                    The  arguments  properly before  this  court  fail on            their  merits.1   Those arguments  are evaluated  against the            heavy  burden of  proof  the law  imposes.   Argencourt  must            demonstrate  both that trial counsel's performance fell below            an objective standard of  reasonable effectiveness, and  that            counsel's  deficient performance  was  so  prejudicial as  to            undermine confidence  in  the  outcome of  the  trial.    See                                                                      ___            Strickland v.  Washington, 466 U.S. 668,  688-89 (1984); Lema            __________     __________                                ____            v. United  States,  987 F.2d  48,  51 (1st  Cir. 1993).    In               ______________            determining  whether trial  counsel's performance  fell below            the relevant  objective  benchmark, "[j]udicial  scrutiny  of            counsel's performance must be highly deferential," and "every            effort [should]  be made to eliminate  the distorting effects            of hindsight."  Strickland, 466 U.S. at 689.  The court "must                            __________                                            ____________________            1.  Many of  the arguments Argencourt presents  to this court            were not  raised in the  district court  and so  will not  be            heard  here.  Among others,  he has waived  his argument that            counsel erred in not requesting  an instruction on aiding and            abetting liability (which, in any event, was not even charged            in the count  of conviction).   Another of  his arguments  --            concerning  the examination  of Special  Agent Brotan  -- was            raised  and decided  against  him on  his  direct appeal,  on            grounds of lack of prejudice to  Argencourt.  See Argencourt,                                                          ___ __________            996 F.2d at  1304.  Argencourt is not free to relitigate this            issue.  See United States v. Michaud, 901 F.2d 5, 6 (1st Cir.                    ___ _____________    _______            1990) (per curiam).                It  is unclear  whether Argencourt  also  argues that  he            received ineffective assistance of  counsel at the sentencing            phase, as the  issue is  mentioned but not  developed in  his            brief.   Thus, we do  not address it.   See United  States v.                                                    ___ ______________            Zannino,  895 F.2d 1, 17 (1st Cir.) ("[I]ssues adverted to in            _______            a  perfunctory  manner,  unaccompanied  by  some   effort  at            developed argumentation, are  deemed waived."), cert. denied,                                                            _____ ______            494 U.S.  1082 (1990).     The  sentence was,  in any  event,            plainly proper under the Guidelines.                                         -4-                                          4            indulge  a  strong presumption  that counsel's  conduct falls            within the wide range of reasonable  professional assistance;            that is,  the defendant  must overcome the  presumption that,            under  the  circumstances, the  challenged  action 'might  be            considered sound  trial strategy.'"   Id. (quoting  Michel v.                                                  ___           ______            Louisiana, 350 U.S. 91, 101 (1955)); Lema, 987 F.2d at 51.            _________                            ____                    The  "prejudice" element of an ineffective assistance            claim also presents  a high  hurdle.  "An  error by  counsel,            even if professionally unreasonable, does not warrant setting            aside  the judgment of a criminal proceeding if the error had            no effect on  the judgment."   Strickland, 466  U.S. at  691.                                           __________            The  requisite   showing  of  prejudice  requires  more  than            postulating  that  counsel's  "errors  had  some  conceivable            effect  on the  outcome  of the  proceeding."   Id.  at  693.                                                            ___            Rather,  Argencourt must  affirmatively  prove "a  reasonable            probability  that, but  for counsel's  unprofessional errors,            the  result of the proceeding  would have been  different.  A            reasonable  probability   is  a  probability   sufficient  to            undermine  confidence   in  the   outcome."    Id.   at  694.                                                           ___            Argencourt has demonstrated  neither objectively  ineffective            assistance nor prejudice.            Conspiracy Indictment            _____________________                    Argencourt   argues  counsel  should  have  moved  to            dismiss  the conspiracy  indictment  on the  grounds that  it            failed to charge  possession with intent to  distribute.  The                                         -5-                                          5            argument is based on the mistaken  premise that possession is            an  essential element of a conspiracy to distribute.  Indeed,            it  is not.   The  statute that  criminalizes possession  and            distribution makes it  unlawful to "manufacture,  distribute,            or  dispense,   or  possess   with  intent  to   manufacture,                            __            distribute, or  dispense" a controlled substance.   21 U.S.C.              841(a) (emphasis added).   Possession has not been found to            be   a  distinct,   essential   element  of   the  crime   of            distribution, let alone conspiracy to distribute.  See United                                                               ___ ______            States v. Polan, 970  F.2d 1280, 1282 (3d Cir.  1991) ("[T]he            ______    _____            offense of  illegal drug  distribution  . . . contains  three            essential  elements: the  [defendant] must  (1)  knowingly or            intentionally (2) distribute  (3) a controlled  substance."),            cert.  denied, 507  U.S.  953 (1993).    To the  extent  that            _____  ______            Argencourt is asserting that trial counsel should have argued            that  the government needed to  prove possession as an "overt            act" in furtherance of the charged conspiracy,  he is clearly            wrong.   See United  States v. Shabani,  115 S. Ct.  382, 386                     ___ ______________    _______            (1994)  (holding that proof of  an overt act  is not required            for conviction under 21 U.S.C.   846).            Tapes            _____                    Argencourt is bound by the prior ruling of this court            concerning  his challenge  to the  replaying of  a particular            tape to the  jury, at its request, during  its deliberations.            See  Argencourt,  996 F.2d  at 1305  n.6.   Variants  of this            ___  __________                                         -6-                                          6            claim, which Argencourt  did not argue  on direct appeal  but            argues  now,  fare no  better.   He focuses  on  a tape  of a            conversation between  himself, his co-defendant  Andreoni, an            FBI  agent, and  an undercover informant.   He  contends that            trial counsel should  have objected to admission  of the tape            on  grounds that it was  inaudible.  The  asserted problem of            the  tape  being  inaudible,  however,  appears  to  be  more            asserted  than a  problem.   The  trial  judge alone  of  the            listeners had  a  defective earphone  (which  was  replaced);            counsel  explicitly  stated  that he  was  able  to hear  the            recorded conversations; and there  was no indication from the            jury of  any problem in  hearing the tape,  in the face  of a            prior instruction from the court to raise their hands if they            could  not hear.  Moreover,  the jurors were  provided with a            transcript of the tape.  The choice by defense counsel not to            have the tape highlighted by questioning jurors about whether            they  heard it was a classic strategy choice, not amenable to            attack under  the guise of ineffective assistance.  See Lema,                                                                ___ ____            987 F.2d at 55-56.                    Argencourt makes the additional argument that defense            counsel should have insisted that the entire tape recordings,            not  just  redacted versions,  be played  to  the jury.   But            certainly, trial  counsel's decision  not to demand  that the            tapes  be  played  in their  entirety  was,  on  its face,  a            strategic choice  to try to limit  what the jury heard.   See                                                                      ___                                         -7-                                          7            Lema,  987 F.2d at 55-56.   Further, defendant  has failed to            ____            show  any prejudice.   He  has had  access to  the unredacted            tapes since before trial.  It  is his burden to show that the            tapes contained unplayed   exculpatory material  or otherwise            undermined  confidence in  the  outcome of  the  trial.   See                                                                      ___            Strickland, 466 U.S. at 694.  That he has not done.            __________            "Newly Discovered" Evidence            ___________________________                    Argencourt  argues  that  he   was  entitled  to   an            evidentiary  hearing  in  the  district  court  to  determine            whether certain "newly discovered evidence," which he asserts            should have  been discovered by trial  counsel, requires that            his  motion  be granted.   He  argues  that counsel  erred in            failing  to adduce proof that phone lines were not working at            a place called the  "Phone Connection," from which a  call to            him  was purportedly made on the date the cocaine deal was to            be  consummated.  He claims he first learned, while in prison            for this offense, from  the "CEO of the Phone  Connection" (a            fellow prisoner) that  the Phone  Connection's phone  service            had  been stopped.  From this he argues that his co-defendant            Andreoni could not  have made a  call to him  from the  Phone            Connection in furtherance of the drug deal, as the government            asserted  at trial.    He  asserts  that  this  evidence  was            "discovered"  after  the  district court  denied  his    2255            motion.  The government  says there is nothing new  about the            Phone Connection evidence, that it  was well known to defense                                         -8-                                          8            counsel  before  trial,  and  that  the jury  even  had  such            evidence  before it.  In  all events, Argencourt  did not ask            the district court to consider this evidence or to give him a            hearing, and so has waived the argument.                    Even if the  claim had been properly  raised, and the            evidence truly  "newly discovered,"  it would still  fall far            short.   Even should  the phone call  not have  been made  to            Argencourt from his co-defendant from the listed lines at the            Phone  Connection   on  the   scheduled  date  of   the  drug            transaction,  no  resulting prejudice  could  be established.            The  jury could have credited the testimony before it that an            illegal  line was rigged and used for the call.  Argencourt's            suggestion  that  phone  company  records  (which  Argencourt            asserts trial counsel should  have obtained) would have shown            that telephone service had  been cancelled amounts to naught.            To  the extent  that the  phone call  testimony at  trial was            relevant to establish that Argencourt, on the scheduled date,            was in the  vicinity of  the location where  the parties  had            agreed the drug transaction  would be completed,  independent            evidence that  his  car was  seen  in the  area at  the  time            undercuts the  utility of  this "newly  discovered evidence."            Furthermore,  if  the  phone  call   testimony  was  somewhat            relevant to the government's case in support of the charge of            attempting  to  distribute  drugs  (of  which  Argencourt was            acquitted),   it   had  little   apparent   bearing  on   the                                         -9-                                          9            government's case in support of the  conspiracy charge.  That            case,  which  was based  primarily  on  the earlier  recorded            conversations between  Argencourt, Andreoni, and  FBI agents,            would  have  been  unaffected  by  the  status  of  the Phone            Connection's  telephones.   Thus,  Argencourt  has  shown  no            prejudice from  any failure by  trial counsel  to obtain  the            Phone Connection evidence.                    Affirmed.                    ________                                         -10-                                          10
