
USCA1 Opinion

	




        March 22, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1809                                    RAMON A. ABREU,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Ramon Alfredo Abreu on brief pro se.            ___________________            Edwin  J. Gale,  United  States Attorney,  and Kenneth  P. Madden,            ______________                                 __________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Defendant-appellant Ramon  Abreu was                      ___________            convicted  on July  5, 1990  of thirteen  counts of  drug and            firearms offenses,  and was sentenced  to twenty-eight  years            imprisonment.    On  January  3, 1992,  this  court  affirmed            Abreu's  conviction,  with  the  exception  that  this  court            vacated  his  conviction  on   one  count  of  conspiracy  to            distribute cocaine.   United States v.  Abreu, 952 F.2d  1458                                  _____________     _____            (1st Cir.), cert. denied, 112 S. Ct. 1695 (1992).                        ____________                      On April 12, 1993,  Abreu filed a pro se  motion to            vacate sentence under 28  U.S.C.   2255, raising a  number of            grounds.   On  May 24,  1993, he  filed an  amendment to  his            motion,  raising additional  grounds.    The  district  court            denied Abreu's motion on June 7, 1993.  We affirm.                      Prosecutorial misconduct in the grand jury                      __________________________________________                      Abreu    alleges    that    a   Drug    Enforcement            Administration agent, Robert Botelho, gave perjured testimony            to the grand jury that indicted Abreu.  Specifically, Botelho            testified  to the grand jury that Abreu had stated that Abreu            had ten  people working for  him.  Botelho  further testified            that in searching an apartment in Woonsocket, R.I. from which            a  handgun and $ 26,000 in U.S. currency were seized, federal            agents  also  seized  utility  bills  and  correspondence  in            Abreu's name.  In contrast, other federal agents testified at            trial  that Abreu had stated that  he had six or seven people            working  for  him; that  a  video  card,  insurance cards,  a            receipt for an insurance payment, and money transfer receipts            in  Abreu's name were seized from the apartment; and that the            money  transfer receipts  listed  the  apartment  as  Abreu's            address.                         We  agree  with  the   district  court  that  Agent            Botelho's  misstatements to  the  grand jury  could not  have            prejudiced Abreu.  The  precise number of people working  for            Abreu was relevant  only to his  conviction for conducting  a            continuing criminal  enterprise in  violation of 21  U.S.C.              848.  That section  requires acting "in concert with  five or                                                                  _______            more other persons with respect to whom such person  occupies            ____            a position of organizer, a supervisory position, or any other            position of management."   21 U.S.C.   848(c)(2)(A) (emphasis            added).   It  was therefore  of no  importance  whether Abreu            supervised six people or  ten, as long as he  supervised five            or more.                        Similarly,  the documents bearing Abreu's name that            were  seized at the  apartment were relevant  only to connect            Abreu to that apartment, where  evidence of drug and firearms            offenses had been found.   The particular documents testified            to at trial -- especially the money transfer receipts listing            the  apartment   as  Abreu's  address   --  established  that                                         -3-            connection at least as  strongly as Agent Botelho's erroneous            testimony had.                      Abreu  has  said  nothing  to  suggest  that  Agent            Botelho's  misstatements  were  intentional  and  perjurious.            Indeed,   given   the   relative   insignificance   of  these            misstatements and  the lack of resulting  prejudice to Abreu,            Abreu's allegation of perjury strains credulity.                      A  showing  of   prejudice  to  the  defendant   is            necessary before  an indictment  may be dismissed  because of            errors in grand jury proceedings.  United States v. Valencia-                                               _____________    _________            Lucena, 925 F.2d  506, 511 (1st Cir. 1991).   Where, as here,            ______            the defendant  already has been convicted,  an indictment may            be  dismissed  only  on account  of  egregious  prosecutorial            misconduct.  United States v. Rivera-Santiago, 872 F.2d 1073,                         _____________    _______________            1088  (1st Cir.), cert. denied,  492 U.S. 910  (1989).  Since                              ____________            there  was  no   prejudice  here,  and  no  evidence  of  any            prosecutorial  misconduct  at  all,  there was  no  basis  to            dismiss the indictment, in whole or in part.                      Sufficiency of the evidence of firearms offenses                       ________________________________________________                      In his May 24, 1993 amendment to his   2255 motion,            Abreu argued  that the  evidence was insufficient  to convict            him  on Counts  XIII and XIV  of the indictment.   Count XIII            charged him with using a firearm  during and in relation to a                                         -4-            drug trafficking crime; Count XIV charged him with possession            of  an unregistered shotgun.   In his brief  on appeal, Abreu            objects  that  the district  court  failed  to address  these            claims in its dismissal order.                      Both of these sufficiency-of-the-evidence arguments            were raised by Abreu  and squarely rejected by this  court in            Abreu's direct appeal from his conviction.  Abreu, supra, 952                                                        _____  _____            F.2d  at 1466 (Count XIII),  1469 (Count XIV).   Abreu cannot            relitigate them  collaterally in  a    2255  motion.   United                                                                   ______            States v. Michaud, 901 F.2d 5, 6 (1st Cir. 1990).              ______    _______                      In  light  of our  rulings  on  direct appeal,  any            failure by  the district court  to consider these  claims was            inconsequential.  We  note, in any  event, that the  district            court  did state  in its  dismissal order  that it  would not            consider  claims already  rejected  by this  court on  direct            appeal.                      Abreu also  objects that whereas he  was charged in            Counts XIII  and XIV with  offenses involving a  shotgun with            serial  number  145266,  the government  submitted  a written            statement  of a police officer  to the effect  that a shotgun            bearing serial number 48084 had been test fired and was found            to  be in  operating  condition.    Abreu contends  that  the            government   should  have  been   required  to  explain  this            additional  shotgun,  and  that  the  discrepancy  in  serial                                         -5-            numbers  requires  that his  conviction  on  those counts  be            vacated.                      We agree  with the government that  in essence this            is merely another, precluded attack on the sufficiency of the            evidence  to  convict on  Counts XIII  and  XIV.   The police            officer's statement,  moreover, only concerned  the shotgun's            operability.  Any discrepancy  as to serial numbers therefore            did  not  detract from  the  government's  evidence regarding            Abreu's possession or use of the shotgun numbered 145266.  In            any event, the government  points out in its brief  on appeal            that before  trial the  government  provided Abreu's  counsel            with  a  corrected  statement  by the  same  police  officer,            testifying to the operability of shotgun number 145266.                      Ineffective assistance of counsel                      _________________________________                      Abreu's final challenge is to the district  court's            dismissal of  his claim of ineffective  assistance of counsel            at  trial.  In his   2255  motion, Abreu claimed that counsel            was  ineffective  for  opposing Abreu's  desire  to  testify;            failing to  pursue an evidentiary hearing;  failing to inform            Abreu  of the  evidence against him;  and failing  to provide            Abreu  with copies of documents, such as grand jury notes and            transcripts  and  exculpatory  materials the  government  was                                         -6-            required to provide to  the defense under Brady  v. Maryland,                                                      _____     ________            373 U.S. 83 (1963).                         To succeed on an ineffective assistance of  counsel            claim, a  defendant must show (1)  that counsel's performance            was  deficient,   falling  below  an  objective  standard  of            reasonableness, and (2)  that counsel's deficient performance            prejudiced the defense because, but for counsel's errors, the            result of the trial would have been different.  Strickland v.                                                            __________            Washington,  466 U.S.  668, 687-88  (1984); Murchu  v. United            __________                                  ______     ______            States, 926 F.2d 50,  58 (1st Cir.), cert. denied,  112 S.Ct.            ______                               ____________            99 (1991).                      With regard to counsel's failure to permit Abreu to            testify  --  the point  upon  which Abreu  puts  the greatest            emphasis  --  Abreu has  said  nothing  to suggest  that  his            failure to testify prejudiced his defense in any way.  He has            never  specified what  he would  have said  that  he believes            would have turned the tide in his favor.  Indeed, as both the            district court  and the  government note, Abreu  alleged that            when  Abreu  asked  his  counsel  about  testifying,  counsel            responded, "What are you going to say?"  Apparently Abreu did            not  inform counsel then, and he has shed no further light on            the question since.                      In addition,  Abreu  has offered  nothing  to  cast            doubt on the district court's finding that Abreu's failure to            testify  was  a tactical  decision.   "[T]actical  decisions,                                         -7-            whether wise or  unwise, successful  or unsuccessful,  cannot            ordinarily  form   the  basis  of  a   claim  of  ineffective            assistance."   United States v. Ortiz Oliveras, 717 F.2d 1, 3                           _____________    ______________            (1st Cir. 1983).  Furthermore, given the apparent strength of            the government's  evidence, we  have no  reason to  doubt the            district court's judgment that, whatever the eventual outcome            of the trial, this tactical decision was a wise one.                      With regard to the other allegations of ineffective            assistance raised  briefly in Abreu's    2255 motion  -- that            counsel  failed to  provide Abreu  with copies  of documents,            including  grand  jury   notes  and  transcripts   and  Brady                                                                    _____            materials;  failed to  pursue  an  evidentiary  hearing;  and            failed to inform Abreu  of the evidence against him  -- Abreu            similarly does not explain how  these alleged errors, if they            occurred,  prejudiced his defense.  He  does argue that these            errors prevented  him from  raising at  trial -- rather  than            later --  the matters  of Agent Botelho's  allegedly perjured            testimony before  the grand jury  and the discrepancy  in the            shotgun's serial number on the original  report of the police            operability test.   As  we have already  ruled, however,  any            such challenges would have been meritless.                        In his brief  on appeal, Abreu  raises a number  of            additional  allegations of  ineffective assistance  that were            not  contained in  his    2255  motion  or in  the  amendment            thereto.  He  alleges that  counsel failed to  object to  the                                         -8-            district   court's  participation   in  the   examination  of            witnesses;  failed  to object  to  the  admission of  certain            cocaine evidence; failed to  object to jury instructions; and            failed to object to the prosecutor's closing argument.                      Having failed  to present these allegations, in the            context  of a claim of ineffective  assistance of counsel, to            the district court  in the first instance, Abreu is precluded            from raising them for  the first time on appeal.  Dziurgot v.                                                              ________            Luther, 897 F.2d 1222, 1224 (1st Cir. 1990).            ______                      In  any  event,  each  of the  practices  to  which            Abreu's  counsel failed to object was cited in Abreu's direct            appeal, and  this court affirmed  the district court  on each            point.  Abreu, supra, 952  F.2d at 1470-72.  Although  we did                    _____  _____            make clear in  Abreu that, in the  absence of contemporaneous                           _____            objections, our  review was only  for plain  error, id.,  our                                                                __            discussion  there suggested that  these were  not troublesome            issues.   In light of that discussion, Abreu has said nothing            to suggest that counsel's  failure to object on any  of these            points may have affected  the outcome of either his  trial or            his appeal.                                     Conclusion                                      __________                      We  have  considered   each  of  Abreu's  remaining            arguments and find them meritless.                                         -9-                      The district court's dismissal of Abreu's motion to            vacate sentence under 28 U.S.C.   2255 is affirmed.                                                      ________                                         -10-
