United States v. Valerio

United States Court of Appeals
For the First Circuit

No. 10-1994

UNITED STATES OF AMERICA,

Appellee,

v.

LIZBETH VALERIO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

Peter J. Cyr, for appellant.
Vassili N. Thomadakis, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.

April 17, 2012
 TORRUELLA, Circuit Judge. Defendant-Appellant Lizbeth

Valerio ("Valerio") was convicted of three counts of mail fraud

under 18 U.S.C. § 1341 and one count of aggravated identity theft

under 18 U.S.C. § 1028A. After the jury rendered its guilty

verdict, Valerio filed two motions: (1) a motion for acquittal on

the aggravated identity theft count due to insufficient evidence;

and (2) a motion for a new trial on all counts due to ineffective

assistance of counsel. The district court denied both motions, and

Valerio now appeals. We find that there was sufficient evidence to

sustain Valerio's conviction and that she was not prejudiced by her

trial counsel's performance. Accordingly, we affirm.

I. Background

A. Theft of Rosa Hernández's Identity

"Because this appeal involves a challenge to the

sufficiency of the government's proof, we rehearse the facts in the

light most favorable to the jury verdict, consistent with record

support." United States v. Dwinells, 508 F.3d 63, 65 (1st Cir.

2007) (citing United States v. Carroll, 105 F.3d 740, 742 (1st Cir.

1997)).

Valerio is a native and citizen of Costa Rica. On

March 20, 1991, Valerio entered the United States illegally and

made her way to New Jersey. There, her companion, Carlos Gómez

("Gómez"), paid $500 to obtain a birth certificate and Social

Security card in the name of Rosa Hernández ("Hernández").

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Hernández is a real person who resides in Puerto Rico. The birth

certificate listed the birthplace for Hernández as Adjuntas, Puerto

Rico, included the names and birthplaces of Hernández's parents

(also Adjuntas, Puerto Rico), and had an official stamp from the

municipality.

Valerio eventually settled in Massachusetts. Over the

course of more than a decade, from 1995 until 2007, Valerio used

Hernández's identity to hold a variety of jobs. Valerio also used

the name "Rosa Hernández" to pay taxes, open numerous lines of

credit, purchase two cars, and take out a loan to purchase a home.

Furthermore, Valerio used Hernández's identity to apply for a

driver's license in Massachusetts. The license application form

required a Social Security number ("SSN") and stated that the

number provided would be verified with the Social Security

Administration ("SSA"). Valerio provided Hernández's SSN and opted

to use that same number as her driver's license number, declining

the option of using a random number instead.

At the same time she was using Hernández's identity,

Valerio applied for various welfare benefits for herself and her

family, including food stamps and housing assistance, under her

real name. Each of the agencies to which Valerio applied required

her to truthfully disclose all of her income and assets. However,

Valerio withheld information regarding income she earned and assets

she held under Hernández's name. In addition, Valerio used

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Hernández's name to give credence to information that she was

providing to government agencies; she mailed letters purporting to

be from Hernández to state and federal agencies stating that

Hernández was Valerio's "supervisor" and vouching for Valerio's

employment and volunteer activities.

At various times while Valerio was using Hernández's

identity, she received credit reports for "Rosa Hernández" from

credit reporting agencies. These reports listed various addresses

for "Rosa Hernández," including Valerio's address in Massachusetts

and other addresses in Massachusetts at which Valerio had never

lived. The reports also listed an address for "Rosa Hernández" in

Adjuntas, Puerto Rico. In response to reports listing addresses

other than her own, Valerio submitted correction forms stating she

had never lived at those addresses. In addition, Valerio received

a credit report listing Hernández's outstanding student loan debt

at Pontificia Universidad Católica ("Pontificia") in Puerto Rico.

Valerio submitted a correction form stating that she had never

studied at Pontificia, and the reporting agency deleted that debt

from her report.

B. Valerio's Apprehension

In 2006, when the real Rosa Hernández tried to purchase

a car, she learned that someone in Massachusetts had numerous lines

of credit under her name. Hernández filed a police report with the

Chelsea, Massachusetts Police Department in 2007. The police tied

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the "Rosa Hernández" name being used in Chelsea to a subsidized

housing unit rented by Valerio. The police went to Valerio's home

and asked her whether she knew Hernández. Valerio replied that

Hernández was a friend of hers. The police apprehended Valerio,

searched her, and later searched her apartment. The police found

numerous documents relating to both Valerio's true identity and her

assumed "Rosa Hernández" identity, including the Social Security

card, birth certificate, and credit reports. These documents were

organized by identity into two separate drawers, with one drawer

dedicated to Valerio's real identity and the other dedicated to the

"Rosa Hernández" identity.

C. Pretrial Proceedings and Trial

Valerio was represented at trial by Robert F. Collins

("Collins"). Collins did not file certain pretrial motions that

Valerio claims he should have filed. Collins did not file any

written pretrial motions to suppress Valerio's statement to the

police that Hernández was her friend. Collins also did not file a

motion to sever the aggravated identity theft count from the mail

fraud counts. Moreover, Collins did not file witness or exhibit

lists, and he failed to use the court's electronic filing system

for documents he did file.

During his opening statement at trial, Collins correctly

informed the jury that under Flores-Figueroa v. United States, 129

S. Ct. 1886, 1888 (2009), the government would have to prove that

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Valerio knew that the identification documents she was using

belonged to an actual person in order to convict Valerio of

aggravated identity theft. During its case, the government

introduced evidence of Valerio's use of Hernández's identity

through various witnesses, including the officer who arrested

Valerio and Hernández herself. Collins cross-examined Hernández,

emphasizing that she and Valerio had never met. The government

also introduced evidence of Valerio's false statements in her

written applications for various types of government assistance.

At the close of the government's case, Collins moved on

Valerio's behalf for a judgment of acquittal under Fed. R. Crim. P.

29 on the aggravated identity theft charge, arguing that the

government failed to carry its burden under Flores-Figueroa of

proving that Valerio knew that Hernández was an actual person. The

judge denied this motion, and Collins proceeded to present the

defense's case. Valerio testified that she had never met

Hernández, did not know she was a real person, and had no way of

knowing whether the "Rosa Hernández" birth certificate or Social

Security card was authentic.

Under cross-examination, Valerio admitted that she

possessed the birth certificate and numerous other documents

linking "Rosa Hernández" to Adjuntas, Puerto Rico. Valerio also

admitted that she had engaged in the mailings which were the

subject of the mail fraud counts. At one point during Valerio's

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cross-examination, Collins allegedly closed his eyes and appeared

to fall asleep. The judge took note of this and adjourned the

jury, then questioned Collins. Collins maintained that he was

awake the entire time.

Prior to trial, Collins had orally moved to dismiss the

charges against Valerio based on a theory of selective prosecution,

but the court denied the motion for lack of factual support.

Collins repeatedly tried to raise the selective prosecution defense

during trial, and was reprimanded for it by the judge on many

occasions. Collins also raised a jury nullification defense a

number of times and was similarly reprimanded for doing so.

After Valerio testified, Collins renewed the motion for

a judgment of acquittal based on the government's purported failure

to prove the knowledge required under Flores-Figueroa. The court

denied the motion. In his closing argument to the jury, Collins

argued that the government failed to carry its burden of proving

beyond a reasonable doubt that Valerio knew the identification she

was using belonged to another. The jury found Valerio guilty on

the three mail-fraud counts and the one aggravated identity theft

count.

D. Post-Trial Proceedings

After the trial, but prior to sentencing, Valerio

successfully moved to have new counsel appointed for her.

Valerio's new counsel again moved for judgment of acquittal under

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Fed. R. Crim. P. 29 on the aggravated identity theft count.

Counsel also moved for a new trial under Fed. R. Crim. P. 33 on all

counts. The district court denied both motions.

The district court denied the motion for acquittal

because the court found the evidence sufficient for the jury to

convict Valerio of aggravated identity theft. In particular, the

court noted the following evidence: (1) Valerio had a copy of

Hernández's Social Security card; (2) she had a copy of Hernández's

birth certificate; (3) the birth certificate indicated that

Hernández was born in Adjuntas; (4) the credit reports listed

Hernández's address in Adjuntas, the name of a university Hernández

attended (Pontificia), and Hernández's student loan; (5) the

student loan appeared in the liability section of a mortgage

application Valerio filed in Hernández's name; and (6) Valerio used

Hernández's SSN to get a driver's license. The court highlighted

Valerio's possession of Hernández's Social Security card and birth

certificate and noted that Valerio's "willingness to subject the

Social Security card repeatedly to government scrutiny" constituted

evidence that she knew the identity belonged to a real person.

As to the motion for a new trial, Valerio put forth five

different theories of ineffective assistance, each of which the

district court rejected. First, as to Valerio's assertion that

Collins had not presented an adequate defense on the knowledge

issue, the court held that Collins's performance was not

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unreasonable and that there was no reasonable probability of a

different outcome assuming Collins had performed better. Second,

the court rejected the argument that Collins was "inattentive" in

failing to suppress evidence of Valerio's illegal entry into the

U.S., noting that any motion to exclude that evidence would have

been futile. For similar reasons, the court rejected Valerio's

third argument, that Collins should have objected to the

introduction of the amount of loss stemming from Valerio's fraud.

Fourth, the district court rejected Valerio's argument

that she was prejudiced by Collins's failure to heed the court's

admonitions regarding his pursuit of the selective prosecution and

jury nullification defenses. The court found that even if Collins

had acted unreasonably, the evidence against Valerio was strong

enough that there was no prejudice. Finally, the court rejected

the argument that Collins should have suppressed Valerio's

statement to the police that Hernández was her friend. The court

held that any such motion would have been futile, and further held

that even if such a motion could have succeeded, the strength of

the government's remaining evidence was overwhelming.

Valerio now appeals the district court's denial of her

motions for acquittal and for a new trial.

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 II. Discussion

A. Denial of Rule 29 Motion

We review a district court's denial of a Rule 29 motion

for judgment of acquittal de novo. United States v. Lipscomb, 539

F.3d 32, 40 (1st Cir. 2008). We must uphold the denial if, "after

assaying all the evidence in the light most amiable to the

government, and taking all reasonable inferences in its favor," we

determine that "a rational factfinder could find, beyond a

reasonable doubt, that the prosecution successfully proved the

essential elements of the crime." United States v. Hernández, 146

F.3d 30, 32 (1st Cir. 1998) (quoting United States v. O'Brien, 14

F.3d 703, 706 (1st Cir. 1994)) (internal quotation marks omitted).

We take into account all evidence, both direct and circumstantial,

and resolve evidentiary conflicts and credibility disputes in favor

of the jury's verdict. See id.; see also United States v. Manor,

633 F.3d 11, 13 (1st Cir. 2011).

Under 18 U.S.C. § 1028A(a)(1), a person is guilty of

aggravated identity theft if, in relation to any felony listed in

§ 1028A(c), she "knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of another person."

The list of offenses in § 1028A(c) includes mail fraud under 18

U.S.C. § 1341. In Flores-Figueroa, the Supreme Court held that to

satisfy the knowledge element of § 1028A(a)(1), the government must

prove "that the defendant knew that the means of identification at

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issue belonged to another person." 129 S. Ct. at 1894. This Court

had previously reached the same conclusion in United States v.

Godin, 534 F.3d 51, 61 (1st Cir. 2008) (finding ambiguity regarding

whether Congress intended the "knowingly" mens rea requirement of

§ 1028A to extend to "of another person" and applying rule of

lenity to hold that it does).

Valerio contends that there was no direct evidence that

she knew Rosa Hernández was a real person. She notes that there is

no direct evidence that she knew anything about the origin of the

documents Gómez procured for her. She also points out that both

she and Hernández testified that neither of them knew the other.

However, when a crime has a knowledge element, "it is well-

established that knowledge may be proven by circumstantial evidence

alone; indeed, it frequently cannot be proven in any other way."

United States v. Agosto-Vega, 617 F.3d 541, 549 (1st Cir. 2010)

(quoting United States v. García, 521 F.3d 898, 901 (8th Cir.

2008)) (alterations and internal quotation marks omitted). We find

that there is sufficient circumstantial evidence that Valerio knew

that Rosa Hernández was a real person to justify a conviction.

In United States v. Martins, we upheld a defendant's

conviction for aggravated identity theft where the defendant

possessed the victim's Social Security card and knew "specific

details of [the victim's] life." 325 F. App'x 7, 8 (1st Cir.

2009). Here, Hernández's birth certificate -- which Valerio

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possessed -- showed Hernández's place of birth as Adjuntas, showed

Hernández's parents' names, and showed Hernández's parents' place

of birth (which was also Adjuntas). Moreover, Valerio also had

credit reports for "Rosa Hernández" listing an address in Adjuntas.

The combination of the birth certificate and the credit reports was

sufficient to allow a rational finder of fact to conclude that

Valerio knew that the "Rosa Hernández" whose birth certificate she

possessed was in fact a real person residing in Adjuntas, Puerto

Rico.

In addition, as the district court noted, Valerio

repeatedly subjected the "Rosa Hernández" identity to government

scrutiny. Valerio used Hernández's SSN to apply for a driver's

license in Massachusetts, knowing that the number would be verified

with the SSA. Valerio also used Hernández's SSN on forms she

submitted to the Internal Revenue Service and to the Massachusetts

Department of Revenue. A "willingness to subject [a] social

security card repeatedly to government scrutiny" is evidence that

allows a reasonable jury to find that a defendant knew that a

stolen identity belonged to a real person. United States v.

Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010); see also United

States v. Gómez-Castro, 605 F.3d 1245, 1249 (11th Cir. 2010)

(upholding aggravated identity theft conviction where defendant

"repeatedly and successfully tested the authenticity of the

[stolen] birth certificate and social security card" by obtaining

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driver's license, credit cards, and passport, and where defendant

used passport with victim's identity to enter the United States).

Valerio contends that this case is similar to Godin, in

which this Court overturned an aggravated identity theft

conviction. In Godin, the defendant opened a bank account using a

SSN she created by altering digits of her own SSN; this number

turned out to belong to another person. 534 F.3d at 54, 62.

However, the defendant in Godin did not possess any documents

suggesting that the SSN she used might belong to a real person.

Here, in contrast, Valerio possessed documents suggesting that

Hernández was a real person, including Hernández's Social Security

card, birth certificate, and credit reports listing Hernández's

address in Adjuntas, Puerto Rico. Moreover, in this case, Valerio

did not simply make up a SSN herself; rather, she obtained a SSN

from an actual Social Security card with another person's name.1

1
Valerio also likens her case to United States v.
Grajeda-Gutiérrez, 372 F. App'x 890 (10th Cir. 2010). In that
case, the defendant used the victim's SSN, a fabricated resident
alien card bearing the victim's name, and a driver's license with
the victim's name to obtain employment at Walmart. Id. at 891.
The Tenth Circuit overturned the defendant's aggravated identity
theft conviction. Id. at 893. However, in Grajeda-Gutiérrez,
there was no evidence that the defendant possessed additional
documents -- such as the credit reports in this case -- that would
suggest that the identity the defendant was using belonged to a
real person. Moreover, in Grajeda-Gutiérrez, the defendant had
been convicted prior to the Supreme Court's decision in Flores-
Figueroa, and on appeal the government conceded that it did not
present enough evidence to the jury to satisfy the newly-applicable
knowledge requirement. Id. at 893. Here, by contrast, the parties
and the trial court were aware of Flores-Figueroa, and the
government contends that it did present enough evidence to convince

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 Valerio also contends that the evidence supports an

inference that she did not know that "Rosa Hernández" was a real

person. Valerio points out that none of the government agencies to

which she submitted Hernández's SSN ever informed her that there

was a "Rosa Hernández" living in Adjuntas, Puerto Rico. Valerio

also argues that the credit reports listing Hernández's address in

Adjuntas would not necessarily have caused Valerio to conclude that

Rosa Hernández was a real person living in Adjuntas. Valerio

points to published studies showing that credit reports frequently

contain errors, and she further notes that one of the credit

reporting agencies removed the reference to Pontificia from her

report after she submitted a correction form.

However, when this Court reviews a jury verdict for

sufficiency of evidence, "it matters not whether [the defendant]

can raise a plausible theory of innocence: if the record as a whole

justifies a judgment of conviction, it need not rule out other

hypotheses more congenial to a finding of innocence." Manor, 633

F.3d at 14 (quoting United States v. Gifford, 17 F.3d 462, 467 (1st

Cir. 1994)) (internal quotation marks omitted). Here, even if one

plausible inference from the evidence was that Valerio did not know

that Hernández was a real person, an at least equally plausible

inference was that Valerio did in fact possess that knowledge. The

jury was entitled to choose the latter inference, and it is not

a jury that Valerio knew that Rosa Hernández was a real person.

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this Court's place to question the jury's choice. See Dwinells,

508 F.3d at 74; United States v. Guerrero-Guerrero, 776 F.2d 1071,

1075 (1st Cir. 1985) (explaining that jurors are "free to choose

among varying interpretations of the evidence, as long as the

interpretation they choose is reasonable").

We find that based on the evidence presented, a

reasonable jury could have concluded beyond a reasonable doubt that

Valerio knew that the "Rosa Hernández" identity she was using

belonged to an actual person. We therefore affirm the district

court's denial of Valerio's motion for judgment of acquittal.

B. Denial of Motion for New Trial

Valerio appeals the district court's denial of her motion

for a new trial under Fed. R. Crim. P. 33. Valerio argues that the

district court should have granted her motion because Collins

rendered ineffective assistance as trial counsel. Specifically,

Valerio argues that Collins's performance was ineffective for four

reasons: (1) Collins did not file a motion to suppress Valerio's

statement to the police that Hernández was her friend; (2) Collins

failed to present an adequate defense against the government's

proof of the Flores-Figueroa knowledge element; (3) Collins pursued

selective prosecution and jury nullification arguments at the

expense of competent argument on the Flores-Figueroa knowledge

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element; and (4) Collins fell asleep at one point during the

trial.2

This Court reviews the denial of a Rule 33 motion for

"manifest abuse of discretion." United States v. Josleyn, 206 F.3d

144, 151 (1st Cir. 2000). Where a defendant claims ineffective

assistance of counsel, she must demonstrate both: (1) that

"counsel's performance was deficient," meaning that "counsel made

errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment"; and (2) "that the

deficient performance prejudiced the defense." Strickland v.

Washington, 466 U.S. 668, 687 (1984). "[B]oth the performance and

prejudice components of the ineffectiveness inquiry are mixed

questions of law and fact." Id. at 698. The standard of review

applied "depends, in the last analysis, on the extent to which a

particular question is fact-dominated or law-dominated." Dugas v.

Coplan, 506 F.3d 1, 8 (1st Cir. 2007) (quoting Pike v. Guarino, 492

F.3d 61, 68 (1st Cir. 2007)) (internal quotation marks omitted).

"Judicial scrutiny of counsel's performance must be

highly deferential." Strickland, 466 U.S. at 689. The reviewing

court "must indulge a strong presumption that counsel's conduct

2
Valerio also argues that she was prejudiced by Collins's failure
to sever the aggravated identity theft count from the mail fraud
counts. However, she did not raise this argument before the
district court; therefore, this argument is waived. See, e.g.,
United States v. Wallace, 573 F.3d 82, 96 n.13 (1st Cir. 2009)
("Arguments raised for the first time on appeal are considered
waived.").

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falls within the wide range of reasonable professional assistance."

Id. "It is only where, given the facts known at the time,

counsel's choice was so patently unreasonable that no competent

attorney would have made it, that the ineffective assistance prong

is satisfied." Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)

(internal quotation marks omitted).

With regard to the prejudice prong of Strickland, "[t]he

defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694. The reviewing court "must consider

the totality of the evidence before the judge or jury." Id. at

695. "[A] verdict or conclusion only weakly supported by the

record is more likely to have been affected by errors than one with

overwhelming record support." Id. at 696.

Here, Valerio first contends that she was prejudiced by

Collins's failure to suppress her statement to the police that

Hernández was her friend. Yet even assuming arguendo that there

was any valid basis for suppressing this statement, there is no

"reasonable probability" that "the result of the proceeding would

have been different" had the statement been suppressed. See id. at

694. The government used Valerio's statement against her to show

her guilt on the mail fraud counts. However, even without this

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statement, the evidence against her on these counts was

overwhelming.

The government introduced evidence showing that Valerio

lied about her income and assets on various forms she submitted to

government agencies in order to get benefits. In addition, Valerio

admitted at trial that she intentionally failed to report all of

her income and assets despite knowing that she was required to do

so. Furthermore, she admitted that she mailed certain letters

under the name "Rosa Hernández" to various government agencies with

the intent to deceive those agencies. Given this evidence, Valerio

suffered no prejudice from Collins's supposedly erroneous failure

to move to suppress the statement to the police. See United States

v. Van Helden, 920 F.2d 99, 103 (1st Cir. 1990) (rejecting

ineffective assistance of counsel claim based on failure to

suppress an admission where evidence other than admission

established defendant's guilt beyond a reasonable doubt).

Second, Valerio contends that Collins failed to present

an adequate defense to the government's showing that she knew that

Hernández was a real person. Valerio concedes that Collins

correctly explained the knowledge requirement of Flores-Figueroa to

the jury and that Collins elicited testimony from Valerio that she

did not know that Hernández was a real person. However, Valerio

contends that Collins did not adequately develop his argument on

the knowledge issue because he failed to employ certain tactics

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that he should have employed. For example, Valerio argues that

Collins should have asked her what the credit reports, and the fact

that some credit reporting agencies complied with her requests for

correction, led her to believe. She also contends that Collins

should have presented witnesses to testify about the prevalence of

errors in credit reporting statements. In addition, she argues

that Collins should have had someone from the SSA testify to the

fact that there are millions of unassigned SSNs.

We find nothing inadequate about Collins's performance

regarding the knowledge issue. Collins correctly informed the jury

during opening arguments that the government had the burden of

proving that Valerio knew that Rosa Hernández was a real person.

Collins asked a number of questions during his cross-examination of

Hernández and his direct examination of Valerio designed to press

the point that Valerio and Hernández had never met each other.

Furthermore, Collins elicited testimony from Valerio that she

herself did not purchase Hernández's birth certificate and Social

Security card and that she did not know whether those documents

were genuine. Finally, Collins argued to the jury at length during

his closing arguments that the government had failed to meet its

burden of showing knowledge. The fact that Collins's defense was

ultimately unsuccessful does not mean that his performance was

unconstitutionally deficient. See, e.g., Matthews v. Rakiey, 54

F.3d 908, 917 (1st Cir. 1995) (that a particular defense theory

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"was not ultimately a winning strategy is of no moment in assessing

its reasonableness at the time").

Moreover, there is no reasonable probability that any of

the additional tactics that Valerio faults Collins for not using

would have affected the outcome. Valerio might have testified that

the credit reports "led her to believe" that Rosa Hernández was not

a real person; however, it is unlikely that such testimony would

have swung the tide in her favor, given how many different

documents Valerio had from different sources indicating that

Hernández was a real person. Likewise, that credit reports often

contain errors does not diminish the probative weight of the fact

that in this case, the credit reports and the birth certificate

both connected Hernández with Adjuntas, Puerto Rico. The fact that

there are many unassigned SSNs is likewise irrelevant, since in

this case there was ample evidence that Valerio knew that the SSN

she was using was in fact assigned to another person. Valerio's

arguments simply amount to "Monday morning quarterbacking of trial

tactics," which is insufficient to sustain an ineffective

assistance of counsel claim. United States v. Thomann, 609 F.2d

560, 566 (1st Cir. 1979).

Third, Valerio argues that Collins pursued jury

nullification and selective prosecution theories at the expense of

his defense on the knowledge front. However, as discussed above,

Collins did present an adequate defense on the knowledge issue.

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Perhaps Collins could have spent more time on the knowledge issue

had he not pursued his alternate theories (which were themselves

not unreasonable defense choices). However, as previously noted,

none of the additional tactics that Valerio says Collins should

have employed regarding the knowledge issue would have influenced

the outcome of the case. Thus, we find that Valerio suffered no

prejudice from Collins's choice to spend time pursuing his

alternate theories.3

Finally, Valerio argues that she was prejudiced because

Collins allegedly fell asleep. However, upon seeing Collins close

his eyes, the district court immediately held a conference with

counsel and concluded that Collins had not fallen asleep. This was

a factual finding by the district court that we can overturn only

if it was clearly erroneous. Cf. Coplan, 506 F.3d at 8 (district

court's factual findings on ineffective assistance of counsel claim

raised in a habeas corpus petition reviewed for clear error). We

have no basis for concluding that the district court was incorrect.

Since Valerio has not shown that she was in any way

prejudiced by Collins's performance as trial counsel, we affirm the

district court's denial of Valerio's motion for a new trial.

3
The district court admonished Collins for continuing to pursue
these theories after the court instructed him not to. However, the
district court found that this did not prejudice Valerio, and
Valerio does not challenge this finding on appeal.

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 III. Conclusion

For the foregoing reasons, we affirm the district court's

denial of Valerio's motion for judgment of acquittal and of her

motion for a new trial.

Affirmed.

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