
USCA1 Opinion

	




          July 12, 1996                                [NOT FOR PUBLICATION]                             United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1616                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               JACINTO ORLANDO MORALES,                                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, Chief Judge,                                          ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            George J. West for appellant.            ______________            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Zechariah  Chafee,   Assistant  United  States  Attorney  and  Sheldon        _________________                                              _______        Whitehouse, United  States  Attorney, were  on  brief for  the  United        __________        States.                                 ____________________                                 ____________________                      LYNCH, Circuit Judge.  Jacinto Orlando Morales, who                      LYNCH, Circuit Judge.                             _____________            at  age forty-eight  began his drug-related  criminal career,            was tried and convicted, at age fifty-six, of possession with            intent to  distribute both  cocaine base and  cocaine and  of            being a  felon in possession of  a firearm.  He  appeals from            his convictions, arguing that they should be reversed due  to            ineffective assistance  of counsel,  that the district  court            erred in  its  instructions  to  the jury  and  in  admitting            certain  evidence,  that  the evidence  was  insufficient  to            convict, that the  prosecutor impermissibly  vouched for  the            government's witnesses  and that the statutes  under which he            was  convicted  are unconstitutional  as  exceeding Congress'            lawful  power under  the Commerce  Clause.   In  addition, he            appeals from his sentence, which will keep him in prison past            age  seventy-one,  on the  grounds  that  the district  court            should have departed  downward in  light of his  age and  the            small amounts of cocaine he says were involved.  We affirm.                                          I                                      Background                                      __________                      Local police work  led to this  federal conviction.            Two  experienced  members  of the  Providence,  Rhode Island,            Police Department investigated stories of drug trafficking by            Morales.  They obtained a search warrant for his apartment in            a three-decker tenement and drove to the residence.  They saw            Morales  leaving his building.  They stopped him, told him of            the warrant, informed  him of  his rights, and  asked him  to            return to  the apartment with them.   Morales did so  and let                                         -3-                                          3            the two detectives into his small  apartment.  The detectives            found two bags, containing a total of over twenty-eight grams            of cocaine, hidden in a pocket hollowed out of the insulation            in the refrigerator door.  They also found twenty-three vials            of    crack   cocaine   (cocaine    base),   alongside   drug            paraphernalia, in  cabinets above  the kitchen sink.   Hidden            between  pairs of shoes on  a curtained shelf  in the bedroom            they found  a  fully operable  and loaded  Raven .25  caliber            semi-automatic handgun.                      The defense theory was  that the police planted the            evidence.   The theory relied  on the testimony  of a defense            witness   who    lived   in   Morales'   building,   and   on            inconsistencies in the detectives'  testimony about the order            in which the  evidence was discovered and  about the handling            of the evidence.  The jury convicted Morales on three of four            counts:  possession with intent  to distribute cocaine (count            one) and  possession with  intent to distribute  cocaine base            (count  two), both in violation of 21 U.S.C.   841(a)(1); and            possession of a firearm  by a convicted felon  (count three),            in violation of 18 U.S.C.   922(g)(1).  Morales was acquitted            on  the fourth count: use of a firearm during and in relation            to  a drug  trafficking crime,  in violation  of 18  U.S.C.              924(c)(1).                      At   sentencing,  Morales'   counsel  appropriately            conceded  that Morales  qualified  as a  career offender  for                                         -4-                                          4            purposes  of  U.S.S.G.   4B1.1,  but  argued  that the  court            should  ignore that status  in light of  the relatively small            quantities  of drugs  involved.   Morales requested  that the            court  depart downward for two reasons.  He asserted that the            career offender enhancement overstated his  criminal history.            He  also said  the  government's  recommended sentence  would            effectively constitute a  life sentence given  his age.   The            court found there was, on the facts of this case, no basis to            veer from  the career offender guideline and refused to grant            a downward departure.   The  court sentenced  Morales to  210            months  imprisonment  consecutive  to  the   state  sentences            Morales was then serving, with other conditions not pertinent            here.                                          II                                     Convictions                                     ___________                      Morales'   attacks  on  his  convictions  tread  on            familiar ground and do not warrant extensive discussion.            Ineffective Assistance of Counsel            _________________________________                      Morales  did not present his ineffective assistance            claim to the district court.  "With a regularity bordering on            the  monotonous," this  court  has  held "that  fact-specific            claims of  ineffective assistance cannot make  their debut on            direct review  of  criminal convictions,  but,  rather,  must            originally  be presented  to,  and acted  upon by,  the trial                                         -5-                                          5            court."   United States v. Mala,  7 F.3d 1058, 1063 (1st Cir.                      _____________    ____            1993), cert. denied, 114 S. Ct. 1839 (1994).                   _____ ______                      This case does not fall within the exception to the            rule.   Only "where the  critical facts are  not genuinely in            dispute  and the  record is  sufficiently developed  to allow            reasoned   consideration"  will   this  court   entertain  an            ineffective  assistance  claim  raised  initially  on  direct            review.  United  States v.  Natanel, 938 F.2d  302, 309  (1st                     ______________     _______            Cir.  1991), cert. denied, 502 U.S. 1079 (1992).  The alleged                         _____ ______            ineffective assistance of counsel arose, Morales argues, from            the failure of his trial counsel to file a motion to suppress            the  evidence  resulting from  the  search  of his  apartment            undertaken pursuant  to a  facially  valid warrant.   By  its            nature, this claim will  require the presentation of evidence            that it would have had some  actual basis in fact, as well as            proof of prejudice.  See Kimmelman v. Morrison, 477 U.S. 365,                                 ___ _________    ________            375 (1986).   Thus, Morales' ineffective  assistance claim is            unsuited for consideration initially on this appeal.            Limiting Instruction            ____________________                      Morales argues  that the  trial court erred  in not            sua sponte  giving the jury a  limiting instruction directing            ___ ______            it to consider  the parties' stipulation  that Morales was  a            felon only for purposes of establishing a required element in                  ____            the  felon-in-possession  of  a  firearm  charge.    But  the            defendant  cannot have his cake and eat  it too.  As a result                                         -6-                                          6            of the stipulation, the government could  not put in evidence            of   the  number   and  nature   of  Morales'   prior  felony            convictions,   thereby   protecting  Morales   against  undue            prejudice from such evidence.  The stipulation was proper and            in accord with our  decision in United States v.  Tavares, 21                                            _____________     _______            F.3d 1, 4-5 (1st Cir. 1994) (en banc), where we noted that in            most,  but not all cases,  such evidence has little relevance            to the felon-in-possession charge and usually presents a risk            of unfair prejudice.                      Morales now asks  for a blanket  rule that a  trial            court must sua  sponte give the type of  limiting instruction                       ___  ______            he urges in this appeal, a  position he is forced into by his            failure  to ask  for  such an  instruction  at trial.    That            failure is  fatal.  See United States v. De La Cruz, 902 F.2d                                ___ _____________    __________            121, 124 (1st Cir. 1990) (holding that as a general  rule the            failure  of the trial court  to give a cautionary instruction            sua sponte is  not reversible error).   Even so, the cure  he            ___ ______            seeks may be worse than the hypothesized disease.  Whether to            seek a limiting  instruction is a  strategic choice by  trial            counsel.   "Whether an  instruction will 'cure'  a problem or            exacerbate it by calling more  attention to it than warranted            is  within the ken of counsel and part of litigation strategy            and judgment.  The obligation to suggest [an instruction], if            any, rested on defense counsel."  United States v. Cartagena-                                              _____________    __________            Carrasquillo,  70 F.3d  706, 713  (1st Cir.  1995).   Despite            ____________                                         -7-                                          7            Morales'  argument in  this case,  defendants in  other cases            might  well think  that  the limiting  instruction sought  by            Morales here  would unnecessarily highlight  their status  as            felons.  Morales' post-conviction  assertion of error in this            case is no warrant for  constraining the strategic choices of            counsel in other cases.  There was no error.            Vials of Crack Cocaine            ______________________                      Morales says the district court  erred in admitting            into evidence twenty-three vials  of crack cocaine.  He  says            they  were inadmissible  because  the transmittal  sheet that            accompanied the  vials to  the laboratory for  testing stated            there were  twenty vials,  and because  the chemist  tested a            sample, only two, and not all twenty-three of the vials.                      On  the  first  argument, chain-of-custody  attacks            usually  go  to  the  weight  of  the  evidence  and  not  to            admissibility; our review  is for abuse  of discretion.   See                                                                      ___            Cartagena-Carrasquillo,  70  F.3d  at  715.    The government            ______________________            explained  that  the  "20" on  the  transmittal  sheet  was a            typographical  error and  produced  testimony  that  in  fact            twenty-three vials were seized  from Morales' apartment, kept            in  custody,  sent to  the lab,  and  that that  lab received            twenty-three vials.   There  was  no abuse  of discretion  in            admitting the vials.                      On the second point, Morales' argument assumes that            the  government  had  to  show that  all  twenty-three  vials                                         -8-                                          8            contained crack.  To convict Morales,  however, the jury need            only have  found that  defendant possessed some  amount of  a            controlled  substance.  See 21 U.S.C.   841; United States v.                                    ___                  _____________            Barnes, 890 F.2d 545, 551-52 & n.6 (1st Cir. 1989),  494 U.S.            ______            1019 (1990).   While undoubtedly relevant  to the sentencing,            the  precise quantity  and  nature of  the  substance, be  it            cocaine or cocaine base, was not an element of the crime  for            the  jury to decide.   That twenty-three  vials were admitted            but only two vials  were tested thus could not  have amounted            to reversible error.            Firearm            _______                      Morales challenges  the admission of the handgun on            authentication  grounds, pointing  to inconsistencies  in the            testimony  of the  two  detectives as  to  the order  of  the            discovery  of the evidence and the absence of an evidence tag            on the handgun.   Our review on this evidentiary  question is            for abuse of  discretion.   See United States  v. Abreu,  952                                        ___ _____________     _____            F.2d  1458,  1467  (1st Cir.),  cert.  denied,  503  U.S. 994                                            _____  ______            (1992).  The trial judge admitted the gun into evidence after            hearing testimony  that it  was the same  gun the  detectives            discovered, the gun had the same serial number, and it was in            the  same condition  as when discovered.   The  serial number            evidence alone arguably provided sufficient authentication in            light of  the legal requirement imposed  on gun manufacturers            to  place an  indelible,  non-duplicating  individual  serial                                         -9-                                          9            number on all firearms.  See 27 C.F.R.   179.102; see also 26                                     ___                      ___ ____            U.S.C.   5842(a).  There was no abuse of discretion.            Sufficiency of the Evidence            ___________________________                      In  reviewing the  sufficiency of the  evidence, we            look  at  the evidence  and  reasonable  inferences from  the            evidence in  the light most  favorable to the  prosecution to            determine if it  would allow  a rational jury  to find  guilt            beyond  a reasonable doubt.   See  United States  v. Luciano-                                          ___  _____________     ________            Mosquera, 63  F.3d 1142, 1149  (1st Cir. 1995),  petition for            ________                                         ________ ___            cert. filed, 64 U.S.L.W.  3765 (U.S. Apr. 26, 1996)  (No. 95-            _____ _____            1775).  Here, there was no  dispute that Morales lived in the            apartment and was its sole occupant.  That is where the drugs            were found, some of which were hidden, with some effort, in a            refrigerator door.   The gun  was also hidden,  out of  plain            view.   The jury could  reasonably infer that  Morales was in            knowing  possession of both the  gun and the  drugs, and need            not have  believed the  somewhat incoherent testimony  of the            building  occupant  proffered by  the  defense.   See  United                                                              ___  ______            States  v.  Calderon,   77  F.3d  6,   10  (1st  Cir.   1996)            ______      ________            ("Credibility  determinations are uniquely  within the jury's            province,  and we defer to the jury's verdict if the evidence            can  support  varying   inferences."  (quotation  marks   and            citation omitted)).            Prosecutor's Closing            ____________________                                         -10-                                          10                      Morales argues that the prosecution, in its closing            rebuttal,  improperly  vouched  for  the  credibility of  its            police  witnesses.   In  particular,  Morales  points to  the            prosecutor's final argument:                      They're not,  I submit to you, members of                      the  jury, they're not  going to  run the                      risk   of    perjuring   themselves   and                      jeopardizing  their  careers  over  this.                      They're doing  what they do.   They do it                      day in  and day  out.   They go  out with                      these  search  warrants and  make arrests                      and you make the  decision.  This is what                      they found.    I submit  to  you  they're                      credible officers  who testified credibly                      about  the one  day  in their  lives that                      they were working  as police officers and                      they told you what they found.  I'm going                      to ask you to find  the Defendant guilty.                      Thank you.            As  Morales  made  no  contemporaneous  objection  to   these            statements,  review is for plain error.  See United States v.                                                     ___ _____________            Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir. 1996).            ___________                      Morales'  theory of  the case  was that  the police            planted the firearm  and illegal drugs  in his apartment  and            subsequently lied  at trial in testifying  that they belonged            to  Morales.   The credibility  of the  police was  at issue.            "Improper vouching  occurs where the  prosecution places  the            `prestige  of  the  government  behind a  witness  by  making            personal assurances  about the  witness' credibility.'"   Id.                                                                      ___            (quoting  United States v. Neal, 36 F.3d 1190, 1207 (1st Cir.                      _____________    ____            1994)).   The prosecution,  in responding to  the defendant's            theory by  pointing out that  the police officers  had little                                         -11-                                          11            incentive  to  lie,   was  arguably   not  "making   personal            assurances."    Cf.  id.  (prosecution's  argument  that  its                            ___  ___            witnesses were speaking the truth  because they had reason to            do  so, made  in  response to  an  attack on  the  witnesses'            credibility, was  not improper  vouching).  Nevertheless,  as            the government appropriately conceded at oral argument, there            were statements  in the prosecution's closing,  such as "[h]e            testified  truthfully,"  of  a   type  that  this  court  has            disapproved in  the past as  improper vouching.1   See United                                                               ___ ______            States  v. Wihbey, 75 F.3d  761, 771-73 (1st  Cir. 1996); see            ______     ______                                         ___            also United States v. Sullivan, __ F.3d __, __, Nos. 95-1719,            ____ _____________    ________            95-1760, slip op. at 18 (1st  Cir. 1996) (there can be a fine            line  between proper  arguments  in  response to  credibility            attacks on government witnesses and improper vouching).                      In  this case,  however, the  prosecutor's comments            "did not impact the  fairness, integrity or public reputation            of  the proceedings  and so  should not  be noticed  as plain            error."  Sullivan, __ F.3d at __, slip op. at 19.  Therefore,                     ________            even assuming that the  prosecutor's comments were  improper,            there was no reversible error.   Cf. Wihbey, 75 F.3d at  771-                                             ___ ______            72.             Constitutionality of the Statutes            _________________________________                                            ____________________            1.  The  United  States  represented at  oral  argument  that            prosecutors  in that  office  were undergoing  "training"  to            ensure that such statements were not made in the future.                                         -12-                                          12                      Morales  challenges  both  the  felon-in-possession            statute, 18  U.S.C.    922(g)(1), and  the  drug  trafficking            statute, 21 U.S.C.   841(a)(1), as being unconstitutional  in            light of the analysis employed in United States v. Lopez, 115                                              _____________    _____            S. Ct. 1624 (1995).                        The challenge to the constitutional validity of the            felon-in-possession  statute,  18   U.S.C.    922(g)(1),   is            foreclosed by United States v. Abernathy, __ F.3d __, __, No.                          _____________    _________            95-1720, slip op. at 5-6 (1st Cir. 1996) and United States v.                                                         _____________            Bennett, 75 F.3d 40, 49 (1st Cir. 1996).            _______                      We decline  to entertain the challenge  to the drug            statute,  21 U.S.C.    841(a)(1),  which is  made in  summary            fashion,  is  wholly   lacking  in  developed   argumentation            focusing on  that particular statute,  and is raised  for the            first  time on appeal.   See Argencourt v.  United States, 78                                     ___ __________     _____________            F.3d 14, 16 n.1 (1st Cir. 1996) (arguments mentioned, but not            developed, are deemed waived);  cf. United States v. Carvell,                                            ___ _____________    _______            74 F.3d  8, 14 (1st  Cir. 1996).   There was no  plain error.            United States v. Olano, 507 U.S. 725, 736 (1993).            _____________    _____                                         III                                       Sentence                                       ________                      Morales  argues that the district court erroneously            ruled  that it  was  powerless to  depart  downward from  the            applicable career offender range.  To the extent the district            court's  decision rested  on its  belief that  it  lacked the                                         -13-                                          13            power to depart, we  have jurisdiction over the appeal.   See                                                                      ___            United States v. Lombard,  72 F.3d 170, 184 (1st  Cir. 1995).            _____________    _______            However, we lack jurisdiction if the district court was aware            of its  authority to  depart,  but declined  to exercise  its            discretion to do  so.  See United States v. Morrison, 46 F.3d                                   ___ _____________    ________            127, 130 (1st  Cir. 1995).   To determine  whether the  court            misapprehended  its  authority  to depart  or  exercised  its            discretion not to depart, we  look to the sentencing  judge's            remarks within the context of the record.  See id. at 130-31.                                                       ___ ___            The record reveals that  the district court was aware  of its            power  to grant  Morales a  downward  departure, but  did not            think departure was warranted in the factual circumstances of            this case.                      At  sentencing,  Morales  argued  for   a  downward            departure  on a number of grounds.  Primarily, he argued that            because  his prior drug convictions  were minor, his case was            similar to that of  United States v. Reyes, 8 F.3d  1379 (9th                                _____________    _____            Cir.  1993).  In  Reyes, as a  result of applying  the career                              _____            offender provision, U.S.S.G.    4B1.1, to a defendant's prior            minor  drug trafficking  offenses, the  applicable sentencing            range was increased  from a  33-41 month range  to a  210-262            month  range.   Id.  at 1381-82.    The district  court there                            ___            decided that although the career offender  guideline applied,            it was  going to depart downward to a sentence within the 33-            41  month  range.   See  id.  at 1383.    The  basis for  the                                ___  ___                                         -14-                                          14            departure  was  that   the  Guidelines'   treatment  of   the            defendant's  previous  criminal  history overrepresented  its            true seriousness. See U.S.S.G.    4A1.3, 5K2.0; Reyes, 8 F.3d                              ___                           _____            at 1383-84.                      The  sentencing  transcript  here  shows  that  the            district court  carefully considered Morales'  argument based            on Reyes.  In fact, the court recessed specifically to review               _____            Reyes  and the  other  cases cited  by  Morales.   After  the            _____            recess, the court explained that it did not consider Morales'            previous  drug  convictions  minor,  that  Morales'  criminal            history suggested a "lack of regard for the law or the people            . . . being poisoned by this stuff," and that the enhancement            required by the  career offender guideline  (from a range  of            110-137  months   to  210-262   months)  did  not   create  a            disproportionate result.  The court concluded that it did not            think  that the defendant's  Guidelines sentencing  range was            "subject  to departure in these circumstances, and . . . that                                   ______________________            there[]  [was] no basis for departure under the facts of this                                                  _______________________            case."  (emphasis  added).     The  district  court   clearly            ____            recognized  its authority to  depart, but did  not think that            the  facts  or circumstances  of  this  case merited  such  a                                         -15-                                          15            departure.2    Therefore, we  lack  jurisdiction  to consider            Morales' sentencing appeal.                      Morales argues  in passing that  the district court            erroneously  thought that  it could  never grant  a departure            based on age.  Morales misunderstands the district court.  In            response to Morales' argument at sentencing that he should be            granted  leniency  because  he  was  sixty  at  the  time  of            sentencing  and  would  be  seventy-one  when  released,  the            district  court  explained,  quoting  from  United States  v.                                                        _____________            Norflett, 922 F.2d  50, 53  (1st Cir. 1990),  that under  the            ________            Guidelines  it could not depart merely because it thought the            sentence was excessive.  Norflett explicitly says that age is                                     ________            a disfavored reason for departure, and can be considered only            in circumstances  of "substantial  atypicality."  See  id. at                                                              ___  ___            54.   The  Norflett court held  that the  mere fact  that the                       ________            defendant was thirty-four when  sentenced and would be fifty-            four when released, did not constitute unusual circumstances.            We have no reason to believe that the district court in  this            case   misapprehended  its   authority  to   depart   on  the            (disfavored) ground of age.                      Affirmed.                                 ________                                            ____________________            2.  Since  the sentencing  in this  case, we  have recognized            that a district  court has the  authority to depart  downward            where  a  career offender  criminal  history  category of  VI            overrepresents a defendant's criminal history.  United States                                                            _____________            v. Lindia, 82 F.3d 1154, 1164-65 (1st Cir. 1996).               ______                                         -16-                                          16
