
USCA1 Opinion

	




          November 3, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1074                                             MARIA ELVIRA MORENO,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                  *[Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                                ___________________                                 ___________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Maria Elvira Moreno on brief pro se.               ___________________               Jay  P. McCloskey,  United  States  Attorney,  and  F.  Mark               _________________                                   ________          Terison, Assistant U.S. Attorney, on brief for appellee.          _______                                  __________________                                  __________________                                                  ______________________________          *Of the District of Puerto Rico, sitting by designation.                      Per Curiam.   Maria Elvira Moreno was  convicted of                      __________            one  count of conspiring  with Andres Gonzalez  to distribute            and to  possess with  intent to distribute  in excess  of 500            grams  of cocaine.    We affirmed  her  conviction in  United                                                                   ______            States v.  Moreno, 947 F.2d  7 (1st Cir. 1991).   Thereafter,            ______     ______            Moreno brought a motion under 28 U.S.C.   2255  to vacate her            sentence,  alleging that both her trial and appellate counsel            had  rendered her  ineffective assistance  of  counsel.   The            district court denied  her petition.  Concluding  that Moreno            has not met her burden of  proving by a preponderance of  the            evidence  that  her  counsel's  performance  fell  below   an            objective  standard of reasonableness and that such deficient            performance  had prejudiced  her defense,  see  Strickland v.                                                       ___  __________            Washington, 466 U.S. 668, 687 (1984), we now affirm.            __________                      I.  Ineffective Assistance by Trial Counsel                          _______________________________________                      Moreno   alleges  that   her   trial  counsel   was            ineffective for several reasons, which we discuss in turn.                        Rule  29 Motions.   Moreno claims that  her counsel                      _________________            moved ineffectively for a judgment of acquittal under Fed. R.            Crim.  P. 29.    Moreno  says that  her  counsel should  have            submitted  a  written  memorandum in  support  of  her motion            because the  court would  have been  better able  to evaluate            counsel's  arguments that  insufficient  evidence existed  to            convict  Moreno  beyond a  reasonable  doubt.   Her  claim is            meritless.  Not only is it the general  practice to make Rule                                         -2-            29  motions orally, without  written support, but  we have no            doubt  that the  court did  not require  any special  written            instruction  on  how to  evaluate  evidence in  light  of the            reasonable  doubt  standard.    Moreover,  the  court  showed            complete  familiarity  with the  evidence  in explaining  its            denial of  the Rule 29  motion.  Thus,  Moreno has  not shown            that her attorney's failure to submit a written memorandum in            support of  her Rule 29 motion fell below objective standards            of  reasonableness,  or that  reviewing a  written memorandum            would have altered the court's view of the evidence.                        Moreno also  faults her attorney  for not  renewing            her Rule  29 motion after  the jury rendered its  verdict and            was discharged.  As it was, Moreno's attorney moved twice for            acquittal, first after the government had presented its case-            in-chief and  then after the  close of all the  evidence, and            both times  she was unsuccessful.   Moreno has not  said what            further arguments her attorney could have presented after the            jury  was  discharged that  would  have caused  the  court to            reconsider  its prior  rulings.   Consequently,  she has  not            shown that  she was prejudiced  by her attorney's  failure to            renew the motion a third time.                      Severance/Co-Conspirator   Statements.       Moreno                      ______________________________________            appears  to argue  that her  counsel  was ineffective  either            because  she  did not  move  to  sever  Moreno's  trial  from            Gonzalez's  trial,  or  because  she did  not  object  to the                                         -3-            admission  of  co-conspirator  statements,  specifically  the            testimony  by Laura  Speer that  Gonzalez had  told her  that            Moreno  had gift-wrapped  a package of  cocaine Speer  was to            deliver to  John Carmichael.   Moreno's  arguments appear  to            derive   from   her  challenge   to   the  district   court's            Petrozziello finding,  see United States v. Petrozziello, 548            ____________           ___ _____________    ____________            F.2d 20  (1st Cir.  1977), which she  raised in  her original            section  2255   motion.    The  magistrate   interpreted  her            challenge  to suggest that counsel was ineffective in failing            to  request  a  ruling  under  Petrozziello   (although  both                                           ____________            preliminary  and final Petrozziello findings were made by the                                   ____________            court), and rejected  her claim as  conclusory since she  did            not  identify a  single  co-conspirator  statement  to  which            counsel  should have objected.   The district  court believed            that  Moreno's claim essentially alleged that her counsel was            ineffective  for  not  moving to  sever  Moreno's  trial from            Gonzalez's trial.   Because of  the obvious ambiguity  of her            original claim, the precise  claim to be addressed  on appeal            is  also somewhat  uncertain.1   Based on  our review  of the                                            ____________________            1.  For example, strictly speaking Moreno did not complain to            the district  court that her  trial counsel had not  moved to            sever her  trial from  Gonzalez's, and so,  by virtue  of the            "bedrock"  principle in  this circuit  that we do  not review            claims  not  "squarely"  presented to  the  court  below, see                                                                      ___            United  States  v. Ocasio-Rivera,  991  F.2d 1,  3  (1st Cir.            ______             _____________            1993), we  normally would not  consider her claim now.   Yet,            the district court analyzed her claim as if she had presented            that  argument.   Because the  district  court discussed  the            severance  issue even  though  Moreno did  not  raise it,  an            argument could be made that  we should consider that issue on                                         -4-            record,  and putting  to  the  side the  question  of how  to            interpret Moreno's original  claim, we  conclude that  Moreno            has not shown ineffective assistance of counsel.                        First, the trial  transcript suggests that Moreno's            counsel  had moved,  unsuccessfully, for severance,  and also            indicates that she essentially moved for severance again when            the  government   proffered  Laura  Speer's   testimony  that            Gonzalez had  told her that Moreno had gift-wrapped a package            of  cocaine intended  for delivery  by  Speer to  Carmichael.            Moreno's attorney  objected  vigorously to  the admission  of            Speer's testimony under Bruton v. United States, 391 U.S. 123                                    ______    _____________            (1968), and Fed.  R. Evid. 403, but the  court concluded that            Speer's  testimony was  admissible  against  Moreno  as  non-            hearsay co-conspirator  statements  and  that  its  probative            value  outweighed its  prejudicial effect.    The court  also            concluded that severance was not warranted.                        Second,  Gonzalez testified  at  trial that  Moreno            knew  nothing  about his  cocaine dealing,  and so,  far from            impairing  Moreno's defense,  Gonzalez's testimony  bolstered            it.    Therefore,  the   district  court's  conclusion   that            severance was not warranted was justified.  See Fed. R. Crim.                                                        ___            P. 14  (permitting severance where  a joint trial with  a co-            defendant would result in undue prejudice to a defendant).                                              ____________________            appeal.                                         -5-                      Third,  the  district court's  determination  under            Petrozziello that sufficient evidence of a conspiracy existed            ____________            to permit co-conspirator statements to be  introduced against            Moreno was not  clearly erroneous.  The  evidence showed that            Gonzalez and  Moreno  were  long-time  companions  who  lived            together.   Although  Carmichael most  frequently  dealt only            with   Gonzalez  in   buying  cocaine,   occasionally  Moreno            "fetched" Carmichael,  bringing him to where  Gonzalez waited            to effect the sale.   Carmichael said that Moreno never spoke            to him about cocaine when he met her, but he did testify that            occasionally Moreno would hand him  the cocaine wrapped up to            look like a  gift.  Subsequently,  Speer, who had  introduced            Carmichael to Gonzalez and had  received a "finder's fee" for            doing  so   from  Gonzalez's  subsequent  cocaine   sales  to            Carmichael, testified about Gonzalez's  statement that Moreno            had gift-wrapped the package of cocaine Speer  was to deliver            to   Carmichael.    Furthermore,  Moreno  was  present  at  a            controlled buy in New York where  Carmichael, now helping the            government, used marked Drug Enforcement Administration funds            to  buy cocaine  from  Gonzalez;  on  that  occasion,  Moreno            arrived first to greet Carmichael, told him that he was late,            and waited  with him  for Gonzalez;  although Carmichael  and            Gonzalez apparently discussed the sale of cocaine out  of her            earshot, after their  conversation was done, she  waited with            Carmichael for another half hour  while Gonzalez went to  get                                         -6-            the  cocaine.   The next  day  she was  observed engaging  in            countersurveillance  before  Carmichael  and  Gonzalez  began            negotiations  with  undercover  government  agents posing  as            prospective cocaine purchasers.  She also actively urged that            Carmichael  stay  involved   in  the  negotiation   when  the            government  agents  suggested  that  he  leave.    There  was            evidence that she  had prepared for the trip  to Maine, where            the negotiation with  undercover agents took place,  and that            she had  not just gone there on the spur  of the moment for a            lobster dinner and  a boat ride, as  she claimed.   The purse            she  carried  when she  was  arrested  in Maine  contained  a            significant  portion of the marked money which Carmichael had            given to Gonzalez  during the controlled buy in  New York the            preceding day.                      Since the evidence sufficed to show a conspiracy to            distribute  cocaine  among Gonzalez,  Moreno, and  Speer, the            court's  admission  of  Carmichael's  testimony  and  Speer's            statements  against   Moreno  was   not  clearly   erroneous.            Therefore,   counsel's  failure  to  object  to  the  court's            Petrozziello  finding  was  not prejudicial  and  so  was not            ____________            ineffective assistance of counsel.                      Failure  to Request  Special Instructions.   Moreno                      __________________________________________            contends  that  her  defense was  "unique"  and  that counsel            rendered ineffective assistance by failing to request special            jury  instructions.   Moreno's  defense was  essentially that                                         -7-            insufficient evidence  had been  presented to  show beyond  a            reasonable doubt  that she was  a knowing participant  in the            conspiracy to  distribute  cocaine, and  her  counsel  argued            vigorously to the  jury that convicting Moreno  of conspiracy            would be tantamount to finding her guilty by mere association            with Gonzalez.   This defense  strikes us as a  fairly common            one, and our review of  the record shows that the  court gave            the  jury correct instructions on the elements the government            was required to prove to  convict Moreno of conspiracy:  that            Moreno  and Gonzalez  had willfully  formed  an agreement  to            distribute cocaine and  to possess with intent  to distribute            cocaine   and  that  they  had  intentionally  and  willfully            conspired  knowing the  unlawful purpose  of  the conspiracy.            The court also instructed the jury that it could not find the            defendants  guilty merely by virtue of their association with            one another or by their mere presence at the scene of a crime            knowing that a crime was being committed.                        Moreno  alleges  further that  her  attorney should            have asked  for an instruction  that the jury could  not find            that  a conspiracy existed  where a government  informant who            intended  to  frustrate  the conspiracy  is  the  alleged co-            conspirator.  The conspiracy was not alleged to exist between            Carmichael,  who acted as a government informant, and Moreno,            but among Moreno, Gonzalez, and  others, and so the rule that            government agents  cannot be co-conspirators  did not  apply,                                         -8-            and there was  no need for such an  instruction.2  See United                                                               ___ ______            States v. Giry,  818 F.2d 120, 126 (1st  Cir.), cert. denied,            ______    ____                                  ____________            484 U.S. 855 (1987).                      Moreno's  other claims  of  error relating  to  the            alleged  need to give  special jury instructions  are equally            meritless.                      II.  Ineffective Assistance by Appellate Counsel                           ___________________________________________                      Moreno alleges  that the lawyer who  prosecuted her            appeal  was ineffective  because  he  failed  to  appeal  her            sentence.  According to Moreno, the district court's decision            not to decrease her base offense level by four levels for her            allegedly  minimal role  in the  conspiracy,  see U.S.S.G.                                                             ___            3B1.2, was erroneous because the evidence showed that she was            the  least culpable  of  the  conspirators  and  because  the            court's  decision   conflicted  with  its  own   findings  at            sentencing.  We cannot say  that the court's refusal to grant            Moreno  the   requested  four-level  reduction   was  clearly            erroneous, and we  see no conflict  between the findings  the            court made  at sentencing and  its decision not to  grant the            downward adjustment.                                               ____________________            2.  At the request of defense counsel, the court did instruct            the jury  that it  had to evaluate  with particular  care the            testimony  of both Speer, who had violated certain conditions            of her  parole and then testified  at trial under a  grant of            immunity,  and Carmichael, who  was arrested on  drug charges            and  testified at  trial pursuant  to  an agreement  with the            government,  because both  might be  inclined  to give  false            testimony   in  order  to   secure  certain   advantages  for            themselves in view of their own violations of law.                                         -9-                      Although section  3B1.2 indicates that  a reduction            in base  offense level is  warranted for defendants  "who are            plainly  among  the least  culpable"  of a  group  engaged in            criminal  activity, guideline  commentary  also says  that  a            defendant's  "lack of knowledge or understanding of the scope            and  structure of  the enterprise  and of  the  activities of            others  is  indicative  of a  role  as  minimal participant."            U.S.S.G.     3B1.2(a),  comment.  (n.1)  (Nov.  1990).    The            commentary  says  further  that  a  downward  adjustment  for            minimal participation is to be used "infrequently," and gives            as an  example of  a minimal  participant someone  whose only            role is to offload part of a single marijuana shipment or  to            be  courier for  a single  smuggling transaction  of a  small            amount of drugs.  Id. (n.2).  At  sentencing, the court found                              ___            that Moreno knew  "what was going on,"  discounted Gonzalez's            testimony  that  Moreno   was  on  the  "periphery"   of  the            conspiracy, and concluded  that the evidence showed  that she            was  not a minimal participant in the conspiracy, conclusions            which were  not clearly  erroneous in light  of the  evidence            presented at trial.  We note as well that the evidence showed            that the conspiracy  to which Moreno was a  party was ongoing            and contemplated multiple  transactions involving significant            quantities of  cocaine.   Accordingly, we  conclude that  the            court's   determination  that  Moreno   was  not   a  minimal            participant was justified.  Consequently, appellate counsel's                                         -10-            failure to appeal  the court's refusal to make  the requested            downward adjustment did  not prejudice Moreno and  so was not            ineffective assistance of counsel.                      The judgment of the district court is affirmed.                                                            ________                                         -11-
