USCA1 Opinion
November 3, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1074
MARIA ELVIRA MORENO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
*[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Selya, Boudin and Stahl,
Circuit Judges.
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Maria Elvira Moreno on brief pro se.
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Jay P. McCloskey, United States Attorney, and F. Mark
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Terison, Assistant U.S. Attorney, on brief for appellee.
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*Of the District of Puerto Rico, sitting by designation.
Per Curiam. Maria Elvira Moreno was convicted of
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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
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States v. Moreno, 947 F.2d 7 (1st Cir. 1991). Thereafter,
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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.
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Washington, 466 U.S. 668, 687 (1984), we now affirm.
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I. Ineffective Assistance by Trial Counsel
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Moreno alleges that her trial counsel was
ineffective for several reasons, which we discuss in turn.
Rule 29 Motions. Moreno claims that her counsel
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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
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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
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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
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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
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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
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preliminary and final Petrozziello findings were made by the
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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
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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
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United States v. Ocasio-Rivera, 991 F.2d 1, 3 (1st Cir.
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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
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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
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(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.
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P. 14 (permitting severance where a joint trial with a co-
defendant would result in undue prejudice to a defendant).
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appeal.
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Third, the district court's determination under
Petrozziello that sufficient evidence of a conspiracy existed
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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
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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
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ineffective assistance of counsel.
Failure to Request Special Instructions. Moreno
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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
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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,
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and there was no need for such an instruction.2 See United
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States v. Giry, 818 F.2d 120, 126 (1st Cir.), cert. denied,
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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
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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.
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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.
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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.
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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
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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
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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.
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