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[NOT FOR PUBLICATION]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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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).
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