Argencourt v. United States

United States Court of Appeals
For the First Circuit

No. 95-2086

JOSEPH ARGENCOURT,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

Before

Boudin, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Gary E. Blais for appellant.

James H. Leavey, Assistant United States Attorney, with whom

Sheldon Whitehouse, United States Attorney, was on brief, for the

United States.

March 18, 1996

LYNCH, Circuit Judge. In his second trip to this

court, Joseph Argencourt argues that he was denied effective

assistance of counsel during his criminal trial and that the

district court erred in denying his Motion to Vacate, Set

Aside or Correct Sentence under 28 U.S.C. 2255. Argencourt

was convicted of conspiring with his co-defendant Rodney

Andreoni to distribute cocaine. His conviction was affirmed

on direct appeal. United States v. Argencourt, 996 F.2d 1300

(1st Cir. 1993), cert. denied, 114 S. Ct. 731 (1994). We now

affirm the denial of his motion under 28 U.S.C. 2255.

The facts are set forth in our prior opinion.

Suffice it to say that the FBI, in the course of an

undercover investigation of insurance fraud in Rhode Island

and Massachusetts, learned that a target of the investigation

-- Andreoni -- was willing to sell substantial quantities of

cocaine. Recorded conversations revealed that Argencourt was

to be the supplier of the cocaine. Argencourt, having had

prior experience with informants wearing wires, was skittish,

became spooked, and failed to appear to consummate the deal

on the designated day. The government thus had no cocaine to

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show, but proved its case through the recordings. Id. at

1302.
Petitioner's Burden

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The arguments properly before this court fail on

their merits.1 Those arguments are evaluated against the

heavy burden of proof the law imposes. Argencourt must

demonstrate both that trial counsel's performance fell below

an objective standard of reasonable effectiveness, and that

counsel's deficient performance was so prejudicial as to

undermine confidence in the outcome of the trial. See

Strickland v. Washington, 466 U.S. 668, 688-89 (1984); Lema

v. United States, 987 F.2d 48, 51 (1st Cir. 1993). In

determining whether trial counsel's performance fell below

the relevant objective benchmark, "[j]udicial scrutiny of

counsel's performance must be highly deferential," and "every

effort [should] be made to eliminate the distorting effects

of hindsight." Strickland, 466 U.S. at 689. The court "must

1. Many of the arguments Argencourt presents to this court
were not raised in the district court and so will not be
heard here. Among others, he has waived his argument that
counsel erred in not requesting an instruction on aiding and
abetting liability (which, in any event, was not even charged
in the count of conviction). Another of his arguments --
concerning the examination of Special Agent Brotan -- was
raised and decided against him on his direct appeal, on
grounds of lack of prejudice to Argencourt. See Argencourt,

996 F.2d at 1304. Argencourt is not free to relitigate this
issue. See United States v. Michaud, 901 F.2d 5, 6 (1st Cir.

1990) (per curiam).
It is unclear whether Argencourt also argues that he
received ineffective assistance of counsel at the sentencing
phase, as the issue is mentioned but not developed in his
brief. Thus, we do not address it. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir.) ("[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived."), cert. denied,

494 U.S. 1082 (1990). The sentence was, in any event,
plainly proper under the Guidelines.

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indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action 'might be

considered sound trial strategy.'" Id. (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)); Lema, 987 F.2d at 51.

The "prejudice" element of an ineffective assistance

claim also presents a high hurdle. "An error by counsel,

even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had

no effect on the judgment." Strickland, 466 U.S. at 691.

The requisite showing of prejudice requires more than

postulating that counsel's "errors had some conceivable

effect on the outcome of the proceeding." Id. at 693.

Rather, Argencourt must affirmatively prove "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." Id. at 694.

Argencourt has demonstrated neither objectively ineffective

assistance nor prejudice.

Conspiracy Indictment

Argencourt argues counsel should have moved to

dismiss the conspiracy indictment on the grounds that it

failed to charge possession with intent to distribute. The

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argument is based on the mistaken premise that possession is

an essential element of a conspiracy to distribute. Indeed,

it is not. The statute that criminalizes possession and

distribution makes it unlawful to "manufacture, distribute,

or dispense, or possess with intent to manufacture,

distribute, or dispense" a controlled substance. 21 U.S.C.

841(a) (emphasis added). Possession has not been found to

be a distinct, essential element of the crime of

distribution, let alone conspiracy to distribute. See United

States v. Polan, 970 F.2d 1280, 1282 (3d Cir. 1991) ("[T]he

offense of illegal drug distribution . . . contains three

essential elements: the [defendant] must (1) knowingly or

intentionally (2) distribute (3) a controlled substance."),

cert. denied, 507 U.S. 953 (1993). To the extent that

Argencourt is asserting that trial counsel should have argued

that the government needed to prove possession as an "overt

act" in furtherance of the charged conspiracy, he is clearly

wrong. See United States v. Shabani, 115 S. Ct. 382, 386

(1994) (holding that proof of an overt act is not required

for conviction under 21 U.S.C. 846).

Tapes

Argencourt is bound by the prior ruling of this court

concerning his challenge to the replaying of a particular

tape to the jury, at its request, during its deliberations.

See Argencourt, 996 F.2d at 1305 n.6. Variants of this

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claim, which Argencourt did not argue on direct appeal but

argues now, fare no better. He focuses on a tape of a

conversation between himself, his co-defendant Andreoni, an

FBI agent, and an undercover informant. He contends that

trial counsel should have objected to admission of the tape

on grounds that it was inaudible. The asserted problem of

the tape being inaudible, however, appears to be more

asserted than a problem. The trial judge alone of the

listeners had a defective earphone (which was replaced);

counsel explicitly stated that he was able to hear the

recorded conversations; and there was no indication from the

jury of any problem in hearing the tape, in the face of a

prior instruction from the court to raise their hands if they

could not hear. Moreover, the jurors were provided with a

transcript of the tape. The choice by defense counsel not to

have the tape highlighted by questioning jurors about whether

they heard it was a classic strategy choice, not amenable to

attack under the guise of ineffective assistance. See Lema,

987 F.2d at 55-56.

Argencourt makes the additional argument that defense

counsel should have insisted that the entire tape recordings,

not just redacted versions, be played to the jury. But

certainly, trial counsel's decision not to demand that the

tapes be played in their entirety was, on its face, a

strategic choice to try to limit what the jury heard. See

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Lema, 987 F.2d at 55-56. Further, defendant has failed to

show any prejudice. He has had access to the unredacted

tapes since before trial. It is his burden to show that the

tapes contained unplayed exculpatory material or otherwise

undermined confidence in the outcome of the trial. See

Strickland, 466 U.S. at 694. That he has not done.

"Newly Discovered" Evidence

Argencourt argues that he was entitled to an

evidentiary hearing in the district court to determine

whether certain "newly discovered evidence," which he asserts

should have been discovered by trial counsel, requires that

his motion be granted. He argues that counsel erred in

failing to adduce proof that phone lines were not working at

a place called the "Phone Connection," from which a call to

him was purportedly made on the date the cocaine deal was to

be consummated. He claims he first learned, while in prison

for this offense, from the "CEO of the Phone Connection" (a

fellow prisoner) that the Phone Connection's phone service

had been stopped. From this he argues that his co-defendant

Andreoni could not have made a call to him from the Phone

Connection in furtherance of the drug deal, as the government

asserted at trial. He asserts that this evidence was

"discovered" after the district court denied his 2255

motion. The government says there is nothing new about the

Phone Connection evidence, that it was well known to defense

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counsel before trial, and that the jury even had such

evidence before it. In all events, Argencourt did not ask

the district court to consider this evidence or to give him a

hearing, and so has waived the argument.

Even if the claim had been properly raised, and the

evidence truly "newly discovered," it would still fall far

short. Even should the phone call not have been made to

Argencourt from his co-defendant from the listed lines at the

Phone Connection on the scheduled date of the drug

transaction, no resulting prejudice could be established.

The jury could have credited the testimony before it that an

illegal line was rigged and used for the call. Argencourt's

suggestion that phone company records (which Argencourt

asserts trial counsel should have obtained) would have shown

that telephone service had been cancelled amounts to naught.

To the extent that the phone call testimony at trial was

relevant to establish that Argencourt, on the scheduled date,

was in the vicinity of the location where the parties had

agreed the drug transaction would be completed, independent

evidence that his car was seen in the area at the time

undercuts the utility of this "newly discovered evidence."

Furthermore, if the phone call testimony was somewhat

relevant to the government's case in support of the charge of

attempting to distribute drugs (of which Argencourt was

acquitted), it had little apparent bearing on the

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government's case in support of the conspiracy charge. That

case, which was based primarily on the earlier recorded

conversations between Argencourt, Andreoni, and FBI agents,

would have been unaffected by the status of the Phone

Connection's telephones. Thus, Argencourt has shown no

prejudice from any failure by trial counsel to obtain the

Phone Connection evidence.

Affirmed.

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