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<pre>       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] <br>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 96-1996 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>              DANIEL J. ORTIZ-MEDINA, a/k/a FLATTOP, <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. Daniel R. Domnguez, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                    Selya, Boudin and Lynch, <br>                        Circuit Judges. <br>                                 <br>                                 <br>                                 <br>                                 <br>     Marlene Aponte Cabrera on brief for appellant. <br>     Guillermo Gil, United States Attorney, Jose A. Quiles- <br>Espinosa, Senior Litigation Counsel, Camille Velez-Rive, Assistant <br>United States Attorney, and Nelson Perez-Sosa, Assistant United <br>States Attorney, on brief for appellee. <br> <br> <br> <br> <br> <br>July 16, 1999 <br> <br> <br> <br>   <br>   <br>            Per Curiam. Defendant-appellant Daniel Ortiz-Medina <br>  appeals from his conviction and sentence on several grounds.  <br>  Based upon a thorough  review of the record and the briefs, we <br>  conclude for the following reasons that "no substantial <br>  question is presented" by this appeal. See Loc. R. 27.1. <br>            I. Ineffective Assistance of Counsel <br>            "The rule in this circuit is that a fact-specific <br>  claim of ineffective assistance cannot be raised initially on <br>  direct review of a criminal conviction but must originally be <br>  presented to the district court." United States v. Hunnewell, <br>  891 F.2d 955, 956 (1st Cir. 1989).  Although Ortiz presented his <br>  ineffective assistance of counsel claims in his motion for new <br>  trial under Fed.R.Crim.P. 33, the district court properly <br>  construed the claims as appropriately brought pursuant to 28 <br>  U.S.C  2255. See United States v. Lema, 909 F.2d 561, 566 (1st <br>  Cir. 1990)(holding that a claim of ineffective assistance of <br>  counsel is not newly discovered for the purposes of Rule 33 <br>  when based on facts known to the defendant at the time of <br>  trial).  The district court also properly dismissed the claims <br>  (without prejudice), because this appeal was pending at the <br>  time and Ortiz failed to make a showing of extraordinary <br>  circumstances.  See United States v. Buckley, 847 F.2d 991, 993 <br>  n.1 (1st Cir. 1988).  Ortiz' ineffective assistance of counsel <br>  claims are denied without prejudice to his presenting them to <br>  the district court in a  2255 motion.    <br>            II. Rule 33 Motion <br>            "The district court's denial of the motion for a new <br>  trial is reviewable only for a manifest abuse of discretion." <br>  United States v. Montilla-Rivera, 115 F.3d 1060, 1064 (1st Cir. <br>  1997).  "A motion for new trial based on newly discovered <br>  evidence will not be allowed unless the movant establishes that <br>  the evidence was: i) unknown or unavailable at the time of <br>  trial, (ii) despite due diligence, (iii) material, and (iv) <br>  likely to result in an acquittal upon retrial." United States <br>  v. Tibolt, 72 F.3d 965, 971 (1st Cir. 1995).  Under the fourth <br>  requirement, "the evidence must create an actual probability <br>  that an acquittal would have resulted if the evidence had been <br>  available." United States v. Sepulveda, 15 F.3d 1216, 1220 (1st <br>  Cir. 1993). <br>            Ortiz' motion was based upon "new evidence of <br>  untruthfulness" on the part of one of the government witnesses.  <br>  "Neither our decisions nor those of other circuits have been <br>  sympathetic to new trial claims based solely on the discovery <br>  of additional information useful for impeaching a government <br>  witness." Sepulveda, 15 F.3d at 1220, n.5; see also United <br>  States v. Formanczyk, 949 F.2d 526, 531 (1st Cir. 1991).  As the <br>  district court emphasized, the argument for granting a new <br>  trial on the basis of such evidence is particularly weak here <br>  because the witness in question admitted at Ortiz' trial to <br>  having lied to federal authorities.  Ortiz has failed to show <br>  that the denial of the Rule 33 motion amounted to a "manifest <br>  abuse of discretion." <br>            III. Federal Rule of Evidence 404(b) <br>            Because Ortiz failed to object at trial to the <br>  evidence that he now argues was evidence of "other crimes, <br>  wrongs or acts," this court reviews the admission of the <br>  evidence for plain error only. See United States v. Carrillo- <br>  Figueroa, 34 F.3d 33, 40 (1st Cir. 1994).  "Under the plain <br>  error standard of review, 'appellant bears the burden of <br>  persuasion to establish that there was an error, that the error <br>  was clear or obvious, and that the error affected substantial <br>  rights.'" United States v. Cruz, 156 F.3d 22, 30 (1st Cir. 1998) <br>  (citation omitted), cert. denied, __ U.S. __, 119 S.Ct. 1781 <br>  (1999). <br>            Ortiz specifically objects to questioning of the <br>  government witnesses from which, Ortiz argues, the jury could <br>  have inferred that Ortiz participated in murders.  The <br>  transcript of the trial, however, reveals that the government <br>  and the court successfully kept the witnesses from referring to <br>  the murders in their testimony. There is no suggestion from the <br>  transcripts of an "error so obvious that it could rise to the <br>  level of substantial and fundamental prejudice required by <br>  plain error review." United States v. Graham, 146 F.3d 6, 11 <br>  (1st Cir. 1998). <br>            IV. Sentencing <br>            Ortiz argues that Fed.R.Crim.P. 32 was violated in <br>  his case because the district court failed to 1) provide <br>  defendant with a copy of the PSR until the day of sentencing, <br>  and 2) verify that defendant and defendant's counsel had read  <br>  and discussed the PSR. Ortiz also contends that the probation <br>  officer abandoned her neutrality in the positions she took in <br>  his PSR, in violation of Rule 32.  <br>            The transcript of the sentencing hearing reveals that <br>  neither Ortiz nor his attorney indicated to the court that more <br>  time was needed to review the PSR.  "[T]he failure to invoke <br>  [the section of Rule 32 setting forth the time frame within <br>  which the defendant must be provided with a copy of the PSR] or <br>  request a continuance effectively waives the claim, absent a <br>  miscarriage of justice." United States v. Barrows, 996 F.2d 12, <br>  14 (1st Cir. 1993).  Ortiz has failed to make a showing that a <br>  miscarriage of justice resulted from his receipt of the PSR on <br>  the day of sentencing. <br>            Ortiz argues that the court's failure to inquire at <br>  sentencing whether he had read the report and discussed it with <br>  his attorney "is itself sufficient to have the case remanded <br>  for resentencing."  Appellant's Brief, p. 20.  "However, <br>  binding precedent in this circuit has directed that if it is <br>  abundantly clear from the sentencing hearing that both <br>  defendant and his counsel are familiar with the report, a new <br>  sentencing hearing will not be mandated, even if the court <br>  failed to directly inquire whether defendant had an opportunity <br>  to review the report." United States v. Manrique, 959 F.2d <br>  1155, 1157 (1st Cir. 1992).   <br>            The sentencing transcript demonstrates that Ortiz and <br>  his attorney were familiar with the PSR.  Defense counsel <br>  objected to several aspects of the PSR which were discussed in <br>  detail.  The transcript includes references by defense counsel <br>  to discussion of aspects of the PSR with Ortiz.  On this <br>  record, it appears that the standard of demonstrated <br>  familiarity with the PSR was met. See Manrique, supra, p. 1158 <br>  (noting that counsel's specific reference to the PSR "clearly <br>  indicat[ed] that he read the report").  Moreover, Ortiz does <br>  not allege on appeal that he did not receive a copy of the PSR, <br>  instead objecting to the district court's failure to verify the <br>  receipt.  Under like circumstances, this court has found that <br>  the requirements of Rule 32(c)(3)(A) were met. See United <br>  States v. Cruz, 981 F.2d 613, 620 (1st Cir. 1992). <br>            Finally, Ortiz argues that the probation officer who <br>  prepared the PSR violated Rule 32 by engaging in advocacy and <br>  abandoning her proscribed role as a neutral arm of the court.  <br>  This court has interpreted the role of the probation officer <br>  under the guidelines to include the "exercise [of] his <br>  independent judgment as to the application of the guidelines. <br>  . . . Anything less would be a dereliction of duty." United <br>  States v. Fraza, 106 F.3d 1050, 1056 (1st Cir. 1997).  None of <br>  the aspects of the PSR which Ortiz relies upon as <br>  demonstrations of the probation officer's "advocacy" evince <br>  more than "exercise [of the probation officer's] independent <br>  judgment as to the application of the guidelines." Id. <br>            Ortiz' conviction and sentence are affirmed. See Loc. <br>  R. 27.1.  This affirmance is without prejudice to Ortiz' right <br>  to present his claim of ineffective assistance of counsel <br>  pursuant to 28 U.S.C.  2255.   <br>             <br>             <br></pre>

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