USCA1 Opinion
March 22, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1809
RAMON A. ABREU,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________
____________________
Before
Breyer, Chief Judge, ___________
Torruella and Selya, Circuit Judges. ______________
____________________
Ramon Alfredo Abreu on brief pro se. ___________________
Edwin J. Gale, United States Attorney, and Kenneth P. Madden, ______________ __________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. Defendant-appellant Ramon Abreu was ___________
convicted on July 5, 1990 of thirteen counts of drug and
firearms offenses, and was sentenced to twenty-eight years
imprisonment. On January 3, 1992, this court affirmed
Abreu's conviction, with the exception that this court
vacated his conviction on one count of conspiracy to
distribute cocaine. United States v. Abreu, 952 F.2d 1458 _____________ _____
(1st Cir.), cert. denied, 112 S. Ct. 1695 (1992). ____________
On April 12, 1993, Abreu filed a pro se motion to
vacate sentence under 28 U.S.C. 2255, raising a number of
grounds. On May 24, 1993, he filed an amendment to his
motion, raising additional grounds. The district court
denied Abreu's motion on June 7, 1993. We affirm.
Prosecutorial misconduct in the grand jury __________________________________________
Abreu alleges that a Drug Enforcement
Administration agent, Robert Botelho, gave perjured testimony
to the grand jury that indicted Abreu. Specifically, Botelho
testified to the grand jury that Abreu had stated that Abreu
had ten people working for him. Botelho further testified
that in searching an apartment in Woonsocket, R.I. from which
a handgun and $ 26,000 in U.S. currency were seized, federal
agents also seized utility bills and correspondence in
Abreu's name. In contrast, other federal agents testified at
trial that Abreu had stated that he had six or seven people
working for him; that a video card, insurance cards, a
receipt for an insurance payment, and money transfer receipts
in Abreu's name were seized from the apartment; and that the
money transfer receipts listed the apartment as Abreu's
address.
We agree with the district court that Agent
Botelho's misstatements to the grand jury could not have
prejudiced Abreu. The precise number of people working for
Abreu was relevant only to his conviction for conducting a
continuing criminal enterprise in violation of 21 U.S.C.
848. That section requires acting "in concert with five or _______
more other persons with respect to whom such person occupies ____
a position of organizer, a supervisory position, or any other
position of management." 21 U.S.C. 848(c)(2)(A) (emphasis
added). It was therefore of no importance whether Abreu
supervised six people or ten, as long as he supervised five
or more.
Similarly, the documents bearing Abreu's name that
were seized at the apartment were relevant only to connect
Abreu to that apartment, where evidence of drug and firearms
offenses had been found. The particular documents testified
to at trial -- especially the money transfer receipts listing
the apartment as Abreu's address -- established that
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connection at least as strongly as Agent Botelho's erroneous
testimony had.
Abreu has said nothing to suggest that Agent
Botelho's misstatements were intentional and perjurious.
Indeed, given the relative insignificance of these
misstatements and the lack of resulting prejudice to Abreu,
Abreu's allegation of perjury strains credulity.
A showing of prejudice to the defendant is
necessary before an indictment may be dismissed because of
errors in grand jury proceedings. United States v. Valencia- _____________ _________
Lucena, 925 F.2d 506, 511 (1st Cir. 1991). Where, as here, ______
the defendant already has been convicted, an indictment may
be dismissed only on account of egregious prosecutorial
misconduct. United States v. Rivera-Santiago, 872 F.2d 1073, _____________ _______________
1088 (1st Cir.), cert. denied, 492 U.S. 910 (1989). Since ____________
there was no prejudice here, and no evidence of any
prosecutorial misconduct at all, there was no basis to
dismiss the indictment, in whole or in part.
Sufficiency of the evidence of firearms offenses ________________________________________________
In his May 24, 1993 amendment to his 2255 motion,
Abreu argued that the evidence was insufficient to convict
him on Counts XIII and XIV of the indictment. Count XIII
charged him with using a firearm during and in relation to a
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drug trafficking crime; Count XIV charged him with possession
of an unregistered shotgun. In his brief on appeal, Abreu
objects that the district court failed to address these
claims in its dismissal order.
Both of these sufficiency-of-the-evidence arguments
were raised by Abreu and squarely rejected by this court in
Abreu's direct appeal from his conviction. Abreu, supra, 952 _____ _____
F.2d at 1466 (Count XIII), 1469 (Count XIV). Abreu cannot
relitigate them collaterally in a 2255 motion. United ______
States v. Michaud, 901 F.2d 5, 6 (1st Cir. 1990). ______ _______
In light of our rulings on direct appeal, any
failure by the district court to consider these claims was
inconsequential. We note, in any event, that the district
court did state in its dismissal order that it would not
consider claims already rejected by this court on direct
appeal.
Abreu also objects that whereas he was charged in
Counts XIII and XIV with offenses involving a shotgun with
serial number 145266, the government submitted a written
statement of a police officer to the effect that a shotgun
bearing serial number 48084 had been test fired and was found
to be in operating condition. Abreu contends that the
government should have been required to explain this
additional shotgun, and that the discrepancy in serial
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numbers requires that his conviction on those counts be
vacated.
We agree with the government that in essence this
is merely another, precluded attack on the sufficiency of the
evidence to convict on Counts XIII and XIV. The police
officer's statement, moreover, only concerned the shotgun's
operability. Any discrepancy as to serial numbers therefore
did not detract from the government's evidence regarding
Abreu's possession or use of the shotgun numbered 145266. In
any event, the government points out in its brief on appeal
that before trial the government provided Abreu's counsel
with a corrected statement by the same police officer,
testifying to the operability of shotgun number 145266.
Ineffective assistance of counsel _________________________________
Abreu's final challenge is to the district court's
dismissal of his claim of ineffective assistance of counsel
at trial. In his 2255 motion, Abreu claimed that counsel
was ineffective for opposing Abreu's desire to testify;
failing to pursue an evidentiary hearing; failing to inform
Abreu of the evidence against him; and failing to provide
Abreu with copies of documents, such as grand jury notes and
transcripts and exculpatory materials the government was
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required to provide to the defense under Brady v. Maryland, _____ ________
373 U.S. 83 (1963).
To succeed on an ineffective assistance of counsel
claim, a defendant must show (1) that counsel's performance
was deficient, falling below an objective standard of
reasonableness, and (2) that counsel's deficient performance
prejudiced the defense because, but for counsel's errors, the
result of the trial would have been different. Strickland v. __________
Washington, 466 U.S. 668, 687-88 (1984); Murchu v. United __________ ______ ______
States, 926 F.2d 50, 58 (1st Cir.), cert. denied, 112 S.Ct. ______ ____________
99 (1991).
With regard to counsel's failure to permit Abreu to
testify -- the point upon which Abreu puts the greatest
emphasis -- Abreu has said nothing to suggest that his
failure to testify prejudiced his defense in any way. He has
never specified what he would have said that he believes
would have turned the tide in his favor. Indeed, as both the
district court and the government note, Abreu alleged that
when Abreu asked his counsel about testifying, counsel
responded, "What are you going to say?" Apparently Abreu did
not inform counsel then, and he has shed no further light on
the question since.
In addition, Abreu has offered nothing to cast
doubt on the district court's finding that Abreu's failure to
testify was a tactical decision. "[T]actical decisions,
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whether wise or unwise, successful or unsuccessful, cannot
ordinarily form the basis of a claim of ineffective
assistance." United States v. Ortiz Oliveras, 717 F.2d 1, 3 _____________ ______________
(1st Cir. 1983). Furthermore, given the apparent strength of
the government's evidence, we have no reason to doubt the
district court's judgment that, whatever the eventual outcome
of the trial, this tactical decision was a wise one.
With regard to the other allegations of ineffective
assistance raised briefly in Abreu's 2255 motion -- that
counsel failed to provide Abreu with copies of documents,
including grand jury notes and transcripts and Brady _____
materials; failed to pursue an evidentiary hearing; and
failed to inform Abreu of the evidence against him -- Abreu
similarly does not explain how these alleged errors, if they
occurred, prejudiced his defense. He does argue that these
errors prevented him from raising at trial -- rather than
later -- the matters of Agent Botelho's allegedly perjured
testimony before the grand jury and the discrepancy in the
shotgun's serial number on the original report of the police
operability test. As we have already ruled, however, any
such challenges would have been meritless.
In his brief on appeal, Abreu raises a number of
additional allegations of ineffective assistance that were
not contained in his 2255 motion or in the amendment
thereto. He alleges that counsel failed to object to the
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district court's participation in the examination of
witnesses; failed to object to the admission of certain
cocaine evidence; failed to object to jury instructions; and
failed to object to the prosecutor's closing argument.
Having failed to present these allegations, in the
context of a claim of ineffective assistance of counsel, to
the district court in the first instance, Abreu is precluded
from raising them for the first time on appeal. Dziurgot v. ________
Luther, 897 F.2d 1222, 1224 (1st Cir. 1990). ______
In any event, each of the practices to which
Abreu's counsel failed to object was cited in Abreu's direct
appeal, and this court affirmed the district court on each
point. Abreu, supra, 952 F.2d at 1470-72. Although we did _____ _____
make clear in Abreu that, in the absence of contemporaneous _____
objections, our review was only for plain error, id., our __
discussion there suggested that these were not troublesome
issues. In light of that discussion, Abreu has said nothing
to suggest that counsel's failure to object on any of these
points may have affected the outcome of either his trial or
his appeal.
Conclusion __________
We have considered each of Abreu's remaining
arguments and find them meritless.
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The district court's dismissal of Abreu's motion to
vacate sentence under 28 U.S.C. 2255 is affirmed. ________
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