USCA1 Opinion
July 11, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1685
UNITED STATES,
Appellee,
v.
JUAN CONSORO FAMILIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
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Before
Torruella, Boudin and Stahl,
Circuit Judges.
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Juan Consoro Familia on brief pro se.
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Edwin J. Gale, United States Attorney, Margaret E. Curran
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and Kenneth P. Madden, Assistant United States Attorneys, on
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brief for appellee.
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Per Curiam. After a jury trial, appellant Juan Consoro
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Familia and his live-in girlfriend, Priscilla Jackson, were
convicted of conspiring to possess and possession with intent
to distribute cocaine in violation of 21 U.S.C. 846,
841(a)(1), and 841(b)(1)(C).1 Familia was sentenced to 85
months' imprisonment and 5 years of supervised release. He
is subject to deportation upon his release from prison.
We affirmed codefendant Jackson's sentence in United
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States v. Jackson, 3 F.3d 506 (1st Cir. 1993). Familia, who
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is proceeding pro se, now appeals his conviction. He raises
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one argument - i.e. - that his defense attorney rendered him
constitutionally ineffective assistance due to a conflict of
interest. Familia specifically charges that his defense
attorney's fee was paid by the true owner of the cocaine: his
brother, Bonifacio Consoro Familia (Bonifacio). Familia
contends that his counsel failed to mount a proper defense
because his loyalty to Familia was compromised by his desire
to protect Bonifacio so that he could receive payments from
him. Familia also charges that his defense attorney
deliberately failed to introduce evidence that would have
proven that he and Jackson were innocent and that Bonifacio
and Bonifacio's girlfriend ("Kris") were the real drug
dealers. Having thoroughly reviewed the record and the
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1. Familia was acquitted of using a firearm in relation to a
drug trafficking crime in violation of 18 U.S.C. 924(c).
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parties' briefs on appeal, we affirm Familia's conviction
without prejudice to his raising his ineffective assistance
of counsel claim in a 28 U.S.C. 2255 proceeding.
I.
Familia and Jackson were arrested after certain members
of the Providence Police Department executed a search warrant
at their apartment on November 11, 1991. The underlying
facts are described in United States v. Jackson, 3 F.3d at
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508, which states as follows:
On November 11, 1991, police officers from
Providence, Rhode Island went to execute a search
warrant at the second floor apartment of 142 Bowdoin
Street, Providence. At approximately 7:00 p.m., Familia
departed from the apartment and drove away in a Dodge
minivan. The officers stopped the vehicle and returned
with Familia to his apartment.
They entered the kitchen through the rear door
using Familia's keys. The kitchen leads directly
to the master bedroom, which contained a bed, a
crib, an upright dresser, a bureau and a television
table. Jackson was on the bed with the couple's
child.
Upon entering the apartment, Familia declared:
"All I have is a gun. It's under the mattress." The
police proceeded to search the apartment. They found
the pistol under the mattress. A bottle of inositol, a
chemical used to cut or dilute cocaine, sat on top of
the bureau. The bottom drawer of the dresser was nailed
shut. The officers discovered that the drawer itself had
been removed and only the facade remained. On the floor
behind the false drawer front, they found a paper bag
and a metal box. The paper bag held three plastic bags
that contained 299.22 grams of cocaine. The metal box
contained $3866 in United States currency and two Rhode
Island state lottery receipts, which indicated that
Familia had received a total of $2085 in winnings on
August 28, 1991. The police also found a small plastic
bag containing ten rounds of .38 caliber ammunition in
plain view on the floor in front of the bedroom closet.
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At trial, the foregoing facts were established through
the testimony of the five Providence police officers who
participated in the search of the apartment. There was also
evidence that shortly after the arrest, Familia told the
police, "She had nothing to do with it. I'm responsible for
everything you found."
The defendants were represented by separate counsel.
They argued that the evidence did not prove that they
knowingly possessed the cocaine with the intent to distribute
it. Familia, who had no criminal record, testified in his
defense. He maintained that his post-arrest statement
referred only to the gun and that he did not own the cocaine.
He testified that his brother Bonifacio also resided in the
apartment.2 On cross-examination, Familia implied that the
cocaine might have belonged to Bonifacio, although his
testimony was not firm on this point.3 While he
acknowledged that the strongbox and gun were his, he
testified that most of the money in the strongbox had been
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2. His landlady also testified that Bonifacio frequently
stayed at Familia's apartment.
3. The testimony went as follows:
Assistant U.S. Attorney: Who do you claim is the owner
of the cocaine?
Familia: The only one related who had anything to do
with drugs was my brother. I knew he was
involved in that before. I didn't know that he
was still involved in that.
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given to him by his sister to purchase his van and ship it to
Puerto Rico.
The trial record suggests that Familia's trial counsel
made a faint-hearted attempt to imply that Bonifacio was the
drug dealer. On cross-examining one of the police officers
(Drohan), counsel established that Bonifacio had been
arrested on 9/4/90 for selling cocaine to an undercover
police officer. He also established that the police had
received many complaints that Bonifacio was selling drugs
from a barricaded Providence address (65 Laura Street) around
that time. But he did not elicit further evidence to that
effect from Familia. The little evidence that Familia gave
impugning his brother was brought out by the government on
cross-examination. In any event, neither the jury nor the
sentencing judge were persuaded by Familia's story.
II.
On appeal, Familia argues that his attorney deprived
him of the effective assistance of counsel by failing to use
evidence that would have shown that Bonifacio was the real
owner of the cocaine. Familia claims that Bonifacio was in
the United States illegally after previously being deported
for a drug offense. He alleges that Bonifacio paid his
attorney in cash and that his attorney had an interest in not
turning Bonifacio in so that he could continue receiving
payments and avoid implicating himself in the crime of
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failing to report an illegal alien.4 Familia contends that
his counsel's ineffectiveness is shown by the following acts
and omissions:
(1) failing to file a motion to suppress, a motion
to quash the indictment, and a motion for an
acquittal;
(2) failing to file a motion to compel a confidential
informant, who participated in three drug buys before
Familia's arrest and provided the Providence police with
information which lead them to suspect that persons
occupying Familia's apartment were selling cocaine, to
testify and identify the real drug pushers (i.e.,
Bonifacio and Kris);
(3) failing to use documents and things that the
government provided in pretrial discovery. In support
of this particular claim, Familia argues that:
(a) his counsel could have used the affidavit that
the police submitted in support of the application
for the search warrant to prove that he and Jackson
do not satisfy the physical descriptions of the
Hispanic male and black female who allegedly sold
cocaine as described in the affidavit;
(b) counsel also could have used the defendants'
passports and a picture of Jackson to prove that he
and Jackson were in Puerto Rico when the informant
purchased cocaine and that his sister gave him the
money that was found in the strongbox;5
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4. Familia contends that had Bonifacio been arrested, he
would have confessed to owning the cocaine and further shown
that the police were lying when they testified that the
cocaine was found in the bedroom occupied by Familia and
Jackson. Familia says that his brother would make a deal
with the government to disclose the truth about the cocaine
to avoid a stiff prison sentence for being in the United
States illegally.
5. We note that the transcript of the probable cause hearing
indicates that Jackson did not have a passport. The trial
record indicates that two passports in Familia's name were
confiscated during the apartment search.
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(c) counsel failed to secure copies of the
defendants' airline tickets, which would have
corroborated his story that they were in Puerto
Rico when the informant made the drug buys; and
(d) counsel failed to introduce a photograph of
Bonifacio and documentary evidence that would have
established that Bonifacio had previously been
convicted of selling drugs and deported.6
(4) failing to call Familia's sister as a witness at his
trial, although she would have corroborated Familia's
testimony that most of the money found in the strongbox
represented the proceeds of Familia's sale of the van to
her, as her testimony at his sentencing demonstrates;
(5) suborning perjury by instructing Familia to lie
about how much money was found in the strongbox to
protect a Providence police officer who stole some of
that money;7
(6) failing to show that Detective Lennon lied to the
grand jury about Jackson's involvement in drug sales.8
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6. The documentary evidence Familia relies upon is attached
to his appellate brief. It consists of the police reports
and search warrant that pertained to Bonifacio's 1990 arrest
and a copy of an Immigration and Naturalization Service (INS)
detainer on Bonifacio. These documents are not part of the
district court's record. Familia asks that we conduct a "de
novo review" of this and other evidence that is in the record
in assessing his ineffective assistance claim.
7. Familia claims that there was $5007 in the strongbox, not
the $3866 identified at trial. He says that the officer in
charge of the investigation (Providence Detective Lennon)
pocketed the difference and that his attorney covered it up
by refusing to let Familia testify to the true amount.
8. Familia also argues that his attorney failed to ask
certain questions that were asked at his probable cause
hearing. The questions, which are recorded on pp. 19-26 of
the transcript, concern the information that the police had
before they secured the search warrant for Familia's
apartment. Familia suggests that counsel could have
established that the police had no direct evidence that
either he or Jackson sold drugs.
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Familia asks that we set aside both his and Jackson's
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conviction based on the foregoing allegations. The
government urges us to deny Familia's claim on the ground
that he has failed to show an actual conflict of interest.
Alternatively, the government says that we should decline to
address this issue on direct appeal.
At the outset we note that significant portions of
Familia's brief raise arguments on behalf of his co-
defendant, Jackson. But as Familia has no standing to
challenge Jackson's conviction, the arguments he asserts on
her behalf have no merit. Familia's conflict of interest
claim requires further attention.
III.
"In order to establish a violation of ...[a defendant's]
Sixth Amendment [right to the effective assistance of
counsel], a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely
affected his lawyer's performance." Cuyler v. Sullivan, 446
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U.S. 335, 348 (1980). See also United States v. Rodriguez,
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929 F.2d 747, 749 (1st Cir. 1991)(per curiam). And, "in
order to show an actual conflict of interest, a defendant
must show that (1) the lawyer could have pursued a plausible
alternative defense strategy or tactic and (2) the
alternative strategy or tactic was inherently in conflict
with or not undertaken due to the attorney's other interests
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or loyalties." United States v. Soldevila-Lopez, 17 F.3d
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480, 486 (1st Cir. 1994). While the defendant "need not show
that the alternative strategy would have been successful" he
must establish that "it possessed 'sufficient substance' to
be a viable alternative." United States v. Garcia-Rosa, 876
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F.2d 209, 231 (1st Cir. 1989), cert. denied, 493 U.S. 1030
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(1990)(quoting Brien v. United States, 695 F.2d 10, 15 (1st
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Cir. 1982)). "[A] defendant who shows that a conflict of
interest actually affected the adequacy of his representation
need not demonstrate prejudice in order to obtain relief."
Cuyler v. Sullivan, 446 U.S. at 349-50.
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Familia primarily faults defense counsel for failing to
use evidence generated by the police surveillance of his
apartment before the search that lead to his arrest. He
claims that counsel could have proven that he and Jackson
were away in Puerto Rico when the informant purchased cocaine
from Bonifacio and his girlfriend "Kris," and that this in
turn would have persuaded the jury that he and Jackson were
innocent. It is not clear that this was a plausible
alternative strategy. Even if counsel had pursued it, the
evidence could have shown that Jackson and Familia had
allowed their home and their respective motor vehicles to be
used by others to sell cocaine.9 The jury could easily have
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9. The affidavit which Detective Lennon used to obtain the
search warrant for Familia's apartment indicates that the
informant purchased cocaine from the suspects on three
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construed this evidence as further supporting the
government's claim that Familia and Jackson were involved in
a conspiracy to possess and distribute cocaine, particularly
in light of the other evidence that was adduced at trial.
Counsel's decision to refrain from introducing this evidence
thus may well have been a reasonable tactical decision, not
necessarily an effort to protect Bonifacio at Familia's
expense. Familia also offers no sound reasons to believe
that Bonifacio would have confessed to being the true owner
of the cocaine had defense counsel turned him in. Compare
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United States v. Garcia-Rosa, 876 F.2d at 231 (rejecting
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ineffective assistance claim based on failure to call a
witness).10
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occasions, two of which occurred in November 1991. On the
first occasion, the date of which is not specified, the
informant purchased cocaine from the Hispanic male suspect at
Familia's apartment. On the second occasion, the informant
purchased cocaine from the same man while he was in a car
that was registered to Jackson. On the third occasion, the
informant purchased cocaine from the black female suspect
while she was in the van that was registered to Familia.
Familia claims that this affidavit proves that he and Jackson
do not meet the physical descriptions of the suspects who
sold the cocaine. But even assuming that is true, the jury
could still have concluded that Familia and Jackson were
involved in the conspiracy because they allowed their home
and vehicles to be used for the drug transactions.
10. Familia posits that Bonifacio would have confessed in a
"deal" with the government. We see no reason why the
government should be inclined to offer a "deal" to Bonifacio,
nor to assume that Bonifacio would have given testimony that
would otherwise have cleared Familia and Jackson.
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We also fail to see how Familia was prejudiced by
counsel's other alleged shortcomings. While the record
verifies Familia's claim that counsel failed to file a motion
to suppress, a motion to quash the indictment, and a motion
for an acquittal, we discern no basis upon which any of these
motions could have been allowed. Counsel's failure to call
Familia's sister as a witness at his trial also appears to
have had a negligible impact on the verdict given the
weaknesses in her testimony. See United States v. Jackson, 3
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F.3d at 511.11
Nevertheless, "[i]t is well established in this circuit
that a claim of ineffective assistance of counsel will not be
resolved on direct appeal where the claim was not raised in
the district court, unless the critical facts are not in
dispute and a sufficiently developed record exists." United
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States v. Daniels, 3 F.3d 25, 26-27 (1st Cir. 1993). This is
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because "[a] claim of ineffective assistance of counsel which
involves matters not fully developed in the trial record, but
necessary for determination of the claim, is not ripe for
decision on direct appeal." United States v. Georgacarakos,
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988 F.2d 1289, 1297 (1st Cir. 1993)(declining to reach claim
that defense counsel rendered ineffective assistance by
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11. Familia's claim that his counsel suborned perjury
obviously makes a very serious charge. However, he does not
explain how this particular act prejudiced his defense, thus
it is not clear that this alleged misconduct rendered
counsel's representation constitutionally ineffective.
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failing to raise entrapment defense where record did not
enable reviewing court to determine whether counsel made a
tactical decision not to pursue the defense and likelihood of
prejudice resulting from the failure to raise it). Moreover,
the trial judge is in the best position to evaluate defense
counsel's performance in the first instance. See, e.g.,
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United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991).
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Resolution of Familia's ineffective assistance claim
requires a factual inquiry to determine whether Bonifacio
actually paid defense counsel's fee, whether defense counsel
knew Bonifacio to be a drug dealer as Familia alleges, and
whether defense counsel failed to pursue any viable defenses
as a result of his alleged relationship with Bonifacio.
Therefore, we decline to resolve this ineffective assistance
claim on direct appeal. Rather, we leave Familia to develop
this claim in a 28 U.S.C. 2255 proceeding.
Accordingly, Familia's conviction and sentence are
affirmed without prejudice to Familia's right to pursue
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relief under 28 U.S.C. 2255. Familia's motion for a
polygraph examination is denied.
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