USCA1 Opinion
May 3, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2176
VICTOR VEGA-ENCARNACION,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Victor Vega-Encarnacion on brief pro se.
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Daniel F. Lopez-Romo, United States Attorney, Edwin O. Vazquez,
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Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior
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Litigation Counsel, brief for appellee.
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Per Curiam. Appellant, Victor Vega-Encarnacion,
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was convicted along with a co-defendant, Hector Orlando Cruz-
Rosario, of aiding and abetting in the distribution of more
than 5,000 grams of cocaine in violation of 21 U.S.C.
841(a)(1) and 18 U.S.C. 2. A third co-defendant, Roberto
Vazquez-Carrera, pled guilty prior to trial. The only
witness to testify at trial was an undercover agent for the
DEA, Miguel Andaluz Baez. We affirmed the convictions of
appellant and Cruz-Rosario on appeal. United States v. Vega-
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Encarnacion, 914 F.2d 20 (1st Cir. 1990), cert. denied, 111
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S. Ct. 1626 (1991).
Appellant has filed a petition under 28 U.S.C.
2255 seeking to set aside his conviction. He alleges
ineffective assistance of counsel. On the form provided to
appellant, he specified that counsel (1) had failed to object
to part of the prosecutor's closing argument; and (2) had
failed to object to the trial court's jury instruction
regarding appellant's failure to testify. A third ground
surfaced in the pleadings filed by appellant in the course of
the district court proceedings. First, in his memorandum in
support of the 2255 motion, appellant merely stated, in
describing the nature of the defense presented at trial, that
he "was not permitted to testify on his own behalf." Next,
in his objections to the report and recommendation of the
magistrate judge, appellant developed this point by arguing
that counsel's performance was inadequate on the ground that
counsel had told appellant that it was "not possible" for
appellant to take the stand. This, appellant averred,
violated his right to testify on his own behalf. Finally, in
a request for an evidentiary hearing, appellant stated that
trial counsel "erroneously advised [appellant] that it was
impossible for him to testify. . . ."
I.
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A full account of the facts is presented in our
opinion affirming appellant's conviction. We repeat only
those facts necessary for an understanding of the claims
raised in the 2255 motion. In 1989, the DEA and Puerto
Rico police officers began an investigation concerning
suspected drug dealers. Andaluz, the undercover agent,
arranged to purchase five kilograms of cocaine for $70,000
from Vazquez-Carrera. The cocaine was not delivered at the
first meeting because Vazquez-Carrera did not have the keys
to the apartment where the drugs were stored. However, Cruz-
Rosario met with Andaluz to discuss further arrangements.
A few days later, a second meeting was set up.
Andaluz and an informant drove to the designated place, a
shopping center, where they were met by Cruz-Rosario and
Vazquez-Carrera who arrived in the same automobile. Vazquez-
Carrera and the informant then left in the informant's car to
pick up the cocaine. When they returned, they drove into a
rear parking lot of the shopping center. They were followed
by appellant in a separate car. When Andaluz went over to
the informant's car to look at the cocaine, he was joined by
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appellant who had been seated on the sidewalk next to the
parking lot. Andaluz asked appellant if he was with Vazquez-
Carrera and appellant said that he was; appellant then told
Andaluz that the cocaine was in the back seat of the car.
When they arrived at the informant's car, they found it
unlocked with the keys in the ignition. According to
Andaluz, appellant helped him to lock up the car. Appellant
stated to Andaluz that he had come himself because Vazquez-
Carrera did not know how to do the deal and that any future
deals would be done differently. Appellant also responded
affirmatively when Andaluz asked him if the cocaine was his.
As the money was about to change hands, appellant was
arrested.
II.
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To present a successful claim of ineffective
assistance of counsel, appellant must establish that "the
alleged deficiencies in professional performance assumed
unconstitutional dimensions. . . ." Barrett v. United
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States, 965 F.2d 1184, 1193 (1st Cir. 1992). The benchmark
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is "whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result." Strickland
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v. Washington, 466 U.S. 668, 686 (1984). Strickland
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established a two-prong test for determining whether
counsel's conduct was so defective as to require reversal of
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a conviction. A defendant must establish that counsel's
conduct fell below an objective standard of reasonableness
and that he was prejudiced in the sense that "but for
counsel's errors, the result below would have been
different." See Murchu v. United States, 926 F.2d 50, 58
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(1st Cir.) (per curiam), cert. denied, 112 S. Ct. 99 (1991).
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Because we find that appellant has not established prejudice,
we need not address the question whether counsel's
performance was ineffective. See Strickland, 466 U.S. at 697
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(court need not examine adequacy of counsel's performance
"[i]f it is easier to dispose of the . . . claim on the
ground of lack of sufficient prejudice").
1. The prosecutor's closing argument. Appellant
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argues that counsel erred in not objecting to the following
statements.
The evidence shows that the
informant's vehicle and the defendant
[Vega-Encarnacion] parked at the back
side of the shopping center parking lot.
And the evidence shows that he stayed,
you remember that he stayed during [the]
time that Roberto goes to the other side
to talk with Officer Andaluz. And why
will he stay in that place, near the area
that the informant's car was and near the
area that [the] cocaine was.
You remember that the evidence
proves that the informant's car was
unlocked, with a key in the ignition and
with the five kilos of the cocaine in the
back seat. Are you going to believe that
Roberto Vazquez Carrera will leave in
that area with five kilos of cocaine that
cost seventy thousand dollars, with a key
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in the ignition and the door open. Of
course not. Drug traffickers don't work
in that way.
On appeal, appellant argues that these remarks were
improper on the ground that they constituted personal
expressions of opinion that appellant's role was as a look-
out during the transaction. As for the reference to the way
drug dealers work, appellant maintains that testimony
concerning drug operations is the subject of expert opinion.
Appellant relies on cases in which challenges to
prosecutorial comments were attacked on direct appeal. In so
doing, appellant misconstrues the nature of the inquiry. The
test is not whether the prosecutor's comments constituted
plain error, but whether counsel's failure to object to them
prejudiced appellant.
On this question, we fail to see any prejudice to
appellant. The direct testimony of Andaluz identified
appellant, based on appellant's own statements, as a primary
player in the drug transaction. Thus, we can hardly fault
counsel for failing to object to the characterization of
appellant as a look-out -- a less involved role. Certainly,
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we cannot say that but for counsel's failure to object, the
result would have been different, i.e., that appellant would
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not have been convicted.
2. Jury Instruction. Appellant's second ground
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for relief is based on counsel's failure to object to the
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trial judge's "ambiguous" jury instruction concerning the
effect of appellant's failure to testify. The trial judge
charged as follows:
Now, the indictment or form of
charges against a defendant is not
evidence of guilt. Indeed, the defendant
is presumed by the law to be innocent.
The law does not require a defendant to
prove his innocence or produce any
evidence at all and no inference may be
drawn by the [decision of] defendant not
to testify.
We first note that appellant's only reference to this ground
on appeal is in a description of the contents of the 2255
petition. Nowhere does appellant present any argument as to
why the failure of counsel to object to this instruction
constitutes ineffective assistance of counsel.
In any event, the allegations of prejudice
presented below -- (1) that the instruction left the jury "in
the dark" as to what weight to place on appellant's decision
not to testify; and (2) that the instruction did nothing to
prevent the jury from imagining reasons for appellant's
failure to testify in rebuttal to the statements of Andaluz -
- are not persuasive. This is highlighted by appellant's
argument set out in his objections to the report and
recommendation of the magistrate judge that the proper
instruction should have stated that
"under our constitution, he has no
obligation to testify or to present any
other evidence because it is the
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prosecution's duty to prove the defendant
guilty beyond a reasonable doubt."
Perceiving no significant difference between the two
instructions, it also is difficult to perceive any prejudice.
3. Right to testify. Appellant claims that his
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attorney deceived him by leading him to believe that it was
legally impossible for appellant to testify on his own
behalf. He asserts that this claim cannot be resolved in the
absence of an evidentiary hearing. The district court is
required to hold such a hearing "if the records and files in
the case, or an expanded record, cannot conclusively resolve
substantial issues of material fact, `and when the
allegations made, if true, would require relief.'" United
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States v. Butt, 731 F.2d 75, 78 (1st Cir. 1984) (quoting
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United States v. Fournier, 594 F.2d 276, 279 (1st Cir.
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1979)). We therefore must first determine whether appellant
would be entitled to relief if he proved his allegations.
Only if he would, do we then decide whether the district
court abused its discretion in not holding an evidentiary
hearing.
A criminal defendant has a constitutional right to
testify on his own behalf. Rock v. Arkansas, 483 U.S. 44,
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51-53 (1987). This right is personal and cannot be waived by
trial counsel. Nichols v. Butler, 953 F.2d 1550, 1552 (11th
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Cir. 1992).
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[I]f defense counsel never informed the
defendant of the right to testify, and
that the ultimate decision belongs to the
defendant, counsel would have neglected
the vital professional responsibility of
ensuring that the defendant's right to
testify is protected and that any waiver
of that right is knowing and voluntary.
United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.),
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cert. denied, 113 S. Ct. 127 (1992). Teague held that in
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such circumstances, counsel has not provided "reasonably
effective assistance." Id.
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We question, however, whether the bare allegation
that counsel would not let appellant testify is sufficient,
without more, to satisfy the first prong of Strickland. See
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Underwood v. Clark, 939 F.2d 473, 475-76 (7th Cir. 1991)
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(affidavit of defendant stating only the "barebones
assertion" that "[m]y attorney told me I could not testify"
insufficient to require an evidentiary hearing; some "greater
particularity is necessary"). We addressed a similar
situation in regard to allegations that a guilty plea was
induced by attorney misrepresentations. We stated that
evidentiary hearings have been granted to defendants "only
when [such] allegations were highly specific and usually
accompanied by some independent corroboration." Butt, 731
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F.2d at 80 n.5, quoted in Siciliano v. Vose, 834 F.2d 29, 30
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(1st Cir. 1987).
Even assuming that his counsel's performance was
constitutionally deficient, appellant still must satisfy the
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second part of the Strickland test. In this regard,
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appellant points out that the government informant and Cruz-
Rosario identified Vazquez-Carrera as the primary
distributor. Further, appellant asserts, his name was never
mentioned during the negotiations for the sale of the
cocaine. The only evidence implicating appellant, he points
out, was the testimony of Andaluz as to the incriminating
statements allegedly made by appellant to Andaluz.
Appellant argues that where the issue is not
whether a crime was committed but rather is whether the
defendant was the individual who committed the crime, his
testimony takes on "`greater importance.'" He relies on
Nichols for this proposition. However, in Nichols, there was
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a real question as to whether the defendant actually was the
person who perpetrated the crime. The only witness to the
robbery in Nichols had glanced at the robber for less than a
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second and another witness had testified that he, not the
defendant, had committed the crime. 953 F.2d at 1551. There
is no question here that appellant was on the scene and he
does not deny that he spoke with Andaluz.
Nonetheless, he asserts that he was prejudiced in
this situation because "there was only one person in the
position to challenge agent Andaluz's testimony -- Vega-
Encarnacion himself." As such, he urges, the jury was
entitled to hear appellant's version of the facts so that
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they could weigh his credibility against the credibility of
Andaluz. Thus, appellant concludes that prejudice is
established and that "the government is wrong in claiming
that [his] testimony could not [have] changed the outcome of
the trial."
Although appellant's claim that he has a right to
testify which cannot be waived by his counsel is one
cognizable under 2255, his allegations concerning the
prejudice resulting from counsel's supposedly inadequate
representation are nothing more than "conclusions without
specific and detailed supporting facts." See Butt, 731 F.2d
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at 77. In this situation, we need not treat them as true.
See Porcaro v. United States, 784 F.2d 38, 40 (1st Cir.) (per
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curiam), cert. denied, 479 U.S. 916 (1986). In essence,
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appellant's argument regarding prejudice boils down to the
bare assertion that had appellant been allowed to testify, he
would have adequately rebutted and explained the statements
made by Andaluz. What is lacking, obviously, is any
indication of exactly what appellant's testimony would have
been. Indeed, there is no getting around the fact that
appellant could have supplied this information to the
district court when he filed his 2255 motion. In the
absence of this kind of specificity, it is impossible to
determine that, but for counsel's alleged errors, the result
below would have been different.
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We do not believe that in this situation a 2255
movant can just declare that because he was entitled to
testify, a hearing should have been held. "Some greater
particularity is necessary . . . to give the claim sufficient
credibility to warrant a further investment of judicial
resources in determining the truth of the claim." Underwood,
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939 F.2d at 476. As appellant has not demonstrated that he
is entitled to relief by providing the requisite specificity,
the district court did not abuse its discretion in not
holding an evidentiary hearing.
For the foregoing reasons, the judgment of the
district court is affirmed.
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