
USCA1 Opinion

	




          July 11, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1685                                                UNITED STATES,                                      Appellee,                                          v.                                JUAN CONSORO FAMILIA,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ___________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Juan Consoro Familia on brief pro se.               ____________________               Edwin J.  Gale, United  States Attorney, Margaret  E. Curran               ______________                           ___________________          and   Kenneth P.  Madden, Assistant  United States  Attorneys, on              ____________________          brief for appellee.                                  __________________                                  __________________                 Per Curiam.  After a jury  trial, appellant Juan Consoro                 __________            Familia  and his live-in  girlfriend, Priscilla Jackson, were            convicted of conspiring to possess and possession with intent            to  distribute  cocaine  in  violation of  21  U.S.C.    846,            841(a)(1), and  841(b)(1)(C).1   Familia was sentenced  to 85            months'  imprisonment and 5 years of  supervised release.  He            is subject to deportation upon his release from prison.                   We affirmed  codefendant  Jackson's sentence  in  United                                                                   ______            States v. Jackson, 3 F.3d 506 (1st Cir.  1993).  Familia, who            ______    _______            is  proceeding pro se, now appeals his conviction.  He raises                           ___ __            one  argument - i.e. - that his defense attorney rendered him            constitutionally ineffective  assistance due to a conflict of            interest.   Familia  specifically  charges  that his  defense            attorney's fee was paid by the true owner of the cocaine: his            brother,  Bonifacio  Consoro  Familia (Bonifacio).    Familia            contends that his  counsel failed to  mount a proper  defense            because his loyalty to Familia was compromised  by his desire            to protect Bonifacio so  that he could receive payments  from            him.    Familia  also   charges  that  his  defense  attorney            deliberately  failed to  introduce evidence  that would  have            proven that he  and Jackson were innocent  and that Bonifacio            and  Bonifacio's  girlfriend  ("Kris")  were  the  real  drug            dealers.    Having thoroughly  reviewed  the  record and  the                                            ____________________            1.  Familia was acquitted of using a firearm in relation to a            drug trafficking crime in violation of 18 U.S.C.  924(c).                                         -3-            parties'  briefs  on appeal,  we affirm  Familia's conviction            without  prejudice to his  raising his ineffective assistance            of counsel claim in a 28 U.S.C.  2255 proceeding.                                          I.                 Familia and  Jackson were arrested after certain members            of the Providence Police Department executed a search warrant            at  their apartment  on November  11, 1991.    The underlying            facts  are described in United  States v. Jackson,  3 F.3d at                                    ______________    _______            508, which states as follows:                      On   November  11,   1991,  police   officers  from                 Providence,  Rhode  Island  went  to  execute  a  search                 warrant  at the  second floor  apartment of  142 Bowdoin                 Street, Providence.  At approximately 7:00 p.m., Familia                 departed from  the apartment and  drove away in  a Dodge                 minivan.  The officers  stopped the vehicle and returned                 with Familia to his apartment.                         They entered the kitchen through the rear door                 using Familia's keys.   The kitchen  leads directly                 to  the master  bedroom, which  contained a  bed, a                 crib, an upright dresser, a bureau and a television                 table.  Jackson  was on the  bed with the  couple's                 child.                         Upon  entering  the  apartment,  Familia  declared:                 "All I  have is a gun.   It's under the  mattress."  The                 police proceeded  to search  the apartment.   They found                 the  pistol under the mattress.  A bottle of inositol, a                 chemical  used to cut or  dilute cocaine, sat  on top of                 the bureau.  The bottom drawer of the dresser was nailed                 shut. The officers discovered that the drawer itself had                 been removed and only the facade remained.  On the floor                 behind  the false drawer  front, they found  a paper bag                 and a metal box.  The  paper bag held three plastic bags                 that contained 299.22 grams  of cocaine.  The metal  box                 contained $3866 in United  States currency and two Rhode                 Island  state lottery  receipts,  which  indicated  that                 Familia had  received a total  of $2085  in winnings  on                 August  28, 1991.  The police also found a small plastic                 bag containing  ten rounds of .38  caliber ammunition in                 plain view on the floor in front of the bedroom closet.                                         -4-                 At trial, the foregoing  facts were established  through            the  testimony of  the  five Providence  police officers  who            participated  in the search of the apartment.  There was also            evidence  that shortly  after  the arrest,  Familia told  the            police, "She had nothing to do  with it.  I'm responsible for            everything you found."                  The  defendants were  represented  by separate  counsel.            They  argued  that  the  evidence  did  not  prove  that they            knowingly possessed the cocaine with the intent to distribute            it.   Familia, who had  no criminal record,  testified in his            defense.    He  maintained  that  his  post-arrest  statement            referred only to the gun and that he did not own the cocaine.            He testified that his  brother Bonifacio also resided in  the            apartment.2  On  cross-examination, Familia implied  that the            cocaine  might  have  belonged  to  Bonifacio,  although  his            testimony  was   not  firm   on  this   point.3     While  he            acknowledged  that  the  strongbox   and  gun  were  his,  he            testified  that most of the  money in the  strongbox had been                                            ____________________            2.  His landlady  also  testified that  Bonifacio  frequently            stayed at Familia's apartment.            3.  The testimony went as follows:                 Assistant U.S. Attorney: Who  do you claim is the  owner            of                            the cocaine?                 Familia: The only  one related  who had  anything to  do            with               drugs  was  my brother.    I  knew he  was            involved in             that before.   I didn't  know that he            was still                         involved in that.                                           -5-            given to him by his sister to purchase his van and ship it to            Puerto Rico.                  The trial  record suggests that  Familia's trial counsel            made a faint-hearted attempt to imply that Bonifacio was  the            drug dealer.   On cross-examining one of  the police officers            (Drohan),  counsel   established  that  Bonifacio   had  been            arrested  on  9/4/90 for  selling  cocaine  to an  undercover            police officer.    He also  established that  the police  had            received many  complaints  that Bonifacio  was selling  drugs            from a barricaded Providence address (65 Laura Street) around            that time.   But he did  not elicit further evidence  to that            effect from  Familia. The  little evidence that  Familia gave            impugning his brother  was brought out  by the government  on            cross-examination.   In any event,  neither the jury  nor the            sentencing judge were persuaded by Familia's story.                                               II.                  On appeal,  Familia argues that  his attorney  deprived            him  of the effective assistance of counsel by failing to use            evidence that would  have shown that  Bonifacio was the  real            owner of the cocaine.   Familia claims that Bonifacio  was in            the United  States illegally after previously  being deported            for  a  drug offense.   He  alleges  that Bonifacio  paid his            attorney in cash and that his attorney had an interest in not            turning  Bonifacio in  so  that he  could continue  receiving            payments  and  avoid  implicating  himself in  the  crime  of                                         -6-            failing to report an  illegal alien.4  Familia  contends that            his counsel's ineffectiveness is  shown by the following acts            and omissions:                 (1) failing to file a motion to suppress, a  motion                 to  quash  the  indictment,  and a  motion  for  an                 acquittal;                 (2) failing  to file a  motion to compel  a confidential                 informant, who  participated in three  drug buys  before                 Familia's arrest and provided the Providence police with                 information  which  lead them  to  suspect that  persons                 occupying  Familia's apartment were  selling cocaine, to                 testify  and  identify  the  real  drug  pushers  (i.e.,                 Bonifacio and Kris);                 (3)  failing  to  use  documents  and  things  that  the                 government provided  in pretrial discovery.   In support            of   this particular claim, Familia argues that:                      (a) his counsel could  have used the affidavit that                      the police submitted in support of the application                      for the search warrant to prove that he and Jackson                      do  not satisfy  the  physical descriptions  of the                      Hispanic male and black female who allegedly sold             cocaine as described in the affidavit;                       (b) counsel  also could  have used the  defendants'                      passports and a picture of Jackson to prove that he                      and Jackson were in Puerto Rico when the informant                      purchased cocaine and that  his sister gave him the                      money that was found in the strongbox;5                                             ____________________            4.  Familia  contends  that had  Bonifacio been  arrested, he            would have confessed to owning the cocaine and  further shown            that the  police  were lying  when  they testified  that  the            cocaine  was found  in the  bedroom occupied  by  Familia and            Jackson.  Familia  says that  his brother would  make a  deal            with the government to disclose  the truth about the  cocaine            to  avoid a  stiff prison  sentence for  being in  the United            States illegally.             5.  We note that the transcript of the probable cause hearing            indicates that  Jackson did not  have a  passport. The  trial            record indicates  that two  passports in Familia's  name were            confiscated during the apartment search.                                         -7-                      (c)  counsel  failed   to  secure  copies  of   the                      defendants' airline tickets,   which   would   have                      corroborated his  story  that they  were in  Puerto            Rico           when the informant made the drug buys; and                      (d)  counsel failed  to introduce  a photograph  of                      Bonifacio  and documentary evidence that would have                      established  that  Bonifacio  had  previously  been                      convicted of selling drugs and deported.6                 (4) failing to call Familia's sister as a witness at his                 trial,  although she  would have  corroborated Familia's                 testimony that most  of the money found in the strongbox                 represented the proceeds of Familia's sale of the van to                 her, as her testimony at his sentencing demonstrates;                 (5) suborning  perjury  by instructing  Familia  to  lie            about     how  much  money  was  found in  the  strongbox  to            protect a      Providence  police officer  who stole  some of            that money;7                  (6) failing to show that Detective Lennon lied to the             grand jury about Jackson's involvement in drug sales.8                                            ____________________            6.  The documentary evidence Familia  relies upon is attached            to  his appellate brief.   It consists of  the police reports            and search warrant that  pertained to Bonifacio's 1990 arrest            and a copy of an Immigration and Naturalization Service (INS)            detainer on Bonifacio.   These documents are not part  of the            district  court's record.  Familia asks that we conduct a "de            novo review" of this and other evidence that is in the record            in assessing his ineffective assistance claim.             7.  Familia claims that there was $5007 in the strongbox, not            the $3866  identified at trial.  He  says that the officer in            charge  of  the investigation  (Providence  Detective Lennon)            pocketed  the difference and that his  attorney covered it up            by refusing to let Familia testify to the true amount.            8.  Familia  also  argues that  his  attorney  failed to  ask            certain  questions  that were  asked  at  his probable  cause            hearing. The questions,  which are recorded  on pp. 19-26  of            the transcript,  concern the information that  the police had            before  they  secured  the   search  warrant  for   Familia's            apartment.     Familia  suggests   that  counsel  could  have            established  that  the police  had  no  direct evidence  that            either he or Jackson sold drugs.                                                        -8-                 Familia asks that  we set aside  both his and  Jackson's                                                  ____            conviction   based  on  the   foregoing  allegations.     The            government urges  us to  deny Familia's  claim on  the ground            that  he has failed to  show an actual  conflict of interest.            Alternatively, the government says  that we should decline to            address this issue on direct appeal.                   At  the  outset we  note  that  significant portions  of            Familia's  brief  raise  arguments   on  behalf  of  his  co-            defendant,  Jackson.    But as  Familia  has  no  standing to            challenge Jackson's  conviction, the arguments  he asserts on            her behalf  have no  merit.  Familia's  conflict of  interest            claim requires further attention.                                          III.                 "In order to establish a violation of ...[a defendant's]            Sixth  Amendment  [right  to  the   effective  assistance  of            counsel],  a defendant who raised  no objection at trial must            demonstrate  that an  actual  conflict of  interest adversely            affected his lawyer's  performance." Cuyler v.  Sullivan, 446                                                 ______     ________            U.S. 335, 348 (1980).   See also United States  v. Rodriguez,                                    ___ ____ _____________     _________            929  F.2d 747,  749 (1st  Cir. 1991)(per  curiam).   And, "in            order to  show an  actual conflict  of interest,  a defendant            must  show that (1) the lawyer could have pursued a plausible            alternative  defense   strategy   or  tactic   and  (2)   the            alternative  strategy or  tactic  was inherently  in conflict            with or not  undertaken due to the attorney's other interests                                         -9-            or  loyalties."   United States  v. Soldevila-Lopez,  17 F.3d                              _____________     _______________            480, 486 (1st Cir. 1994).  While the defendant "need not show            that the alternative strategy  would have been successful" he            must establish that  "it possessed 'sufficient  substance' to            be a viable alternative."   United States v. Garcia-Rosa, 876                                        _____________    ___________            F.2d  209, 231 (1st Cir.  1989), cert. denied,  493 U.S. 1030                                             _____ ______            (1990)(quoting  Brien v. United States,  695 F.2d 10, 15 (1st                            _____    _____________            Cir. 1982)).   "[A] defendant  who shows that  a conflict  of            interest actually affected the adequacy of his representation            need not  demonstrate prejudice  in order to  obtain relief."            Cuyler v. Sullivan, 446 U.S. at 349-50.            ______    ________                 Familia primarily  faults defense counsel for failing to            use  evidence generated  by  the police  surveillance of  his            apartment  before the  search that  lead to  his arrest.   He            claims that  counsel could have  proven that  he and  Jackson            were away in Puerto Rico when the informant purchased cocaine            from  Bonifacio and his  girlfriend "Kris," and  that this in            turn would have persuaded  the jury that he and  Jackson were            innocent.      It is  not  clear  that this  was  a plausible            alternative  strategy.  Even  if counsel had  pursued it, the            evidence  could  have  shown  that Jackson  and  Familia  had            allowed their home and their respective motor vehicles to  be            used by others to sell cocaine.9  The jury  could easily have                                            ____________________            9.  The affidavit  which Detective Lennon used  to obtain the            search  warrant for  Familia's  apartment indicates  that the            informant  purchased  cocaine  from  the  suspects  on  three                                         -10-            construed   this   evidence   as   further   supporting   the            government's claim that Familia  and Jackson were involved in            a conspiracy to possess and distribute cocaine,  particularly            in light of  the other  evidence that was  adduced at  trial.            Counsel's decision  to refrain from introducing this evidence            thus  may well have been a  reasonable tactical decision, not            necessarily  an  effort  to protect  Bonifacio  at  Familia's            expense.   Familia also  offers no  sound reasons  to believe            that Bonifacio would have  confessed to being the true  owner            of the cocaine  had defense  counsel turned  him in.  Compare                                                                  _______            United  States v.  Garcia-Rosa,  876 F.2d  at 231  (rejecting            ______________     ___________            ineffective  assistance  claim based  on  failure  to call  a            witness).10                                            ____________________            occasions,  two of which occurred  in November 1991.   On the            first  occasion,  the date  of  which is  not  specified, the            informant purchased cocaine from the Hispanic male suspect at            Familia's apartment.   On the second  occasion, the informant            purchased cocaine  from the same  man while  he was in  a car            that was registered to  Jackson.  On the third  occasion, the            informant purchased  cocaine from  the  black female  suspect            while  she was  in the  van that  was registered  to Familia.            Familia claims that this affidavit proves that he and Jackson            do not  meet the  physical descriptions of  the suspects  who            sold the cocaine.   But even assuming that is true,  the jury            could  still have  concluded  that Familia  and Jackson  were            involved in  the conspiracy  because they allowed  their home            and vehicles to be used for the drug transactions.                   10.  Familia posits that Bonifacio  would have confessed in a            "deal"  with  the  government.   We  see  no  reason why  the            government should be inclined to offer a "deal" to Bonifacio,            nor  to assume that Bonifacio would have given testimony that            would otherwise have cleared Familia and Jackson.                                          -11-                 We  also  fail  to see  how  Familia  was prejudiced  by            counsel's  other  alleged  shortcomings.    While the  record            verifies Familia's claim that counsel failed to file a motion            to suppress, a motion  to quash the indictment, and  a motion            for an acquittal, we discern no basis upon which any of these            motions  could have been allowed.   Counsel's failure to call            Familia's  sister as a witness  at his trial  also appears to            have  had  a  negligible  impact  on  the verdict  given  the            weaknesses in  her testimony. See United States v. Jackson, 3                                          ___ _____________    _______            F.3d at 511.11                 Nevertheless,  "[i]t is well established in this circuit            that a claim of ineffective assistance of counsel will not be            resolved on 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. Daniels, 3 F.3d 25, 26-27 (1st Cir. 1993).  This is            ______    _______            because "[a] claim of ineffective assistance of counsel which            involves matters not fully developed in the trial record, but            necessary for determination  of the  claim, is  not ripe  for            decision on direct appeal."   United States v. Georgacarakos,                                          _____________    _____________            988 F.2d 1289, 1297 (1st  Cir. 1993)(declining to reach claim            that  defense  counsel  rendered  ineffective  assistance  by                                            ____________________            11.  Familia's  claim  that  his  counsel   suborned  perjury            obviously  makes a very serious charge.  However, he does not            explain how this particular  act prejudiced his defense, thus            it  is  not  clear  that  this  alleged  misconduct  rendered            counsel's representation constitutionally ineffective.                                          -12-            failing  to raise  entrapment  defense where  record did  not            enable reviewing  court to  determine whether counsel  made a            tactical decision not to pursue the defense and likelihood of            prejudice resulting from the failure to raise it).  Moreover,            the trial judge is  in the best position to  evaluate defense            counsel's  performance in  the  first instance.   See,  e.g.,                                                              ___   ____            United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991).             _____________    ______                 Resolution  of  Familia's  ineffective assistance  claim            requires a  factual  inquiry to  determine whether  Bonifacio            actually paid defense counsel's fee, whether defense  counsel            knew  Bonifacio to be a  drug dealer as  Familia alleges, and            whether defense counsel failed  to pursue any viable defenses            as  a  result of  his  alleged  relationship with  Bonifacio.            Therefore, we decline to  resolve this ineffective assistance            claim  on direct appeal.  Rather, we leave Familia to develop            this claim in a 28 U.S.C.  2255 proceeding.                  Accordingly,  Familia's  conviction  and   sentence  are            affirmed without  prejudice  to  Familia's  right  to  pursue            ________            relief  under  28  U.S.C.   2255.   Familia's  motion  for  a            polygraph examination is denied.                                        ______                                                                                    -13-
