October 19, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1559
PETER N. GEORGACARAKOS,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
No. 94-1750
PETER N. GEORGACARAKOS,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
Peter N. Georgacarakos on brief pro se.
Jay P. McCloskey, United States Attorney, and Michael M. DuBose,
Assistant United States Attorney, on brief for appellee.
Per Curiam. After carefully reviewing the record
and the briefs of the parties, we affirm the judgment of the
district court. We do so essentially for the reasons set
forth in the Report and Recommendation of the magistrate
judge which was adopted by the district court in its order
dated May 12, 1994.
Specifically, we agree that under the standards set
forth in Strickland v. Washington, 466 U.S. 668 (1984),
counsel's choice to forego an entrapment defense plainly was
an objectively reasonable choice, given appellant's criminal
history and the evidence. As for the jury instructions
concerning venue, we add that even if they had been reviewed
for abuse of discretion -- the standard of review applicable
to properly preserved objections -- appellant still would not
have prevailed. Under this standard, "[t]he trial court
should be reversed only if the instruction was capable of
confusing and thereby misleading the jury." United States v.
Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984),
cert. denied, 470 U.S. 1029 (1985).
The venue instruction, viewed in light of all
evidence, was not misleading. As we held in appellant's
direct appeal, even had the jury accepted appellant's version
of the events, the evidence of venue in Maine was "so clear"
that "no reasonable juror could have found otherwise."
United States v. Georgacarakos, 988 F.2d 1289, 1297 (1st Cir.
1993). Further, when the instruction is considered in the
context of the charge as a whole, it is plain that there was
no abuse of discretion. See United States v. Doane, 975 F.2d
8, 11 (1st Cir. 1992) (quoting Cupp v. Naughten, 414 U.S.
141, 146-47 (1973)). Given our findings concerning the
adequacy of the instructions on constructive and joint
possession, counsel's failure to timely object to the venue
instruction did not deprive appellant of "a trial whose
result is reliable." See Strickland, 466 U.S. at 687.
Therefore, he was not prejudiced.
Because we affirm the judgment of the district
court, appellant's appeal of the denial of bail is moot.
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