United States v. Glenn

United States Court of Appeals
For the First Circuit

No. 04-1395

UNITED STATES OF AMERICA,

Appellee,

CHARLES GLENN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Paul J. Haley for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.

November 24, 2004
LYNCH, Circuit Judge. Charles Glenn was found guilty on

September 9, 2003, of one count of distribution of Xanax and one

count of distribution of cocaine base ("crack cocaine") in

violation of 21 U.S.C. § 841(a)(1). He appeals from the denial, on

untimeliness grounds, of his motion for new trial and argues, in

this direct appeal, that if the new trial motion was too late, then

his counsel was ineffective for this and other reasons and so both

the denial of the new trial and his conviction should be vacated.

The short response is the motion was too late, not being filed

within the seven days required by Federal Rule of Criminal

Procedure 33, and to obtain a remedy, if any, on his claims of

trial counsel's misfeasance, he must pursue an ineffective

assistance claim on collateral attack.

He also urges us to overrule Siciliano v. Vose, 834 F.2d

29 (1st Cir. 1987), and hold that a trial judge must sua sponte

instruct a defendant on his right to testify. Not only does this

panel lack the authority to overrule Siciliano, we would not, if we

could. There are very good reasons for the Siciliano rule.

Finally, he argues the denial of his motion for mistrial,

after certain testimony by a police officer, was in error,

regardless of the fact that an appropriate limiting instruction was

given. We disagree. In short, we affirm.

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I.

At Glenn's trial, Frank Swirko, an undercover Manchester

police officer and member of the New Hampshire Attorney General's

Drug Task Force, testified as follows. On February 6, 2002, Swirko

went to a hotel in Manchester on a tip from a confidential

informant that a woman, Tina Gerow, was selling crack cocaine

there. After Swirko purchased crack from Gerow, the appellant,

Charles Glenn, entered the room. Swirko acknowledged to Gerow that

he knew "Charlie," and Glenn then offered to sell Swirko some Xanax

pills. Swirko agreed, and later that evening purchased thirteen

pills of Xanax from Glenn for $80.

On February 19, 2002, the same confidential informant

called Swirko and told him that he was with Glenn and that Glenn

wanted to sell Swirko drugs. Glenn came to the phone and

identified himself as "Black Charlie" and "Tina Gerow's Charlie."

The officer and defendant met at a bar about ten minutes later, and

Swirko agreed to buy $125 worth of heroin from Glenn. Another male

was with them as well, who wanted to buy $100 worth of crack

cocaine. Following Glenn's instructions, Swirko then drove them to

Glenn's source; the source did not have any heroin. Glenn said he

would get the desired crack cocaine from Tina Gerow; Swirko then

added his own request to buy some crack cocaine. They then drove

to a nearby neighborhood where Glenn left the vehicle with money

from Swirko and the other buyer, and returned with crack cocaine.

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Because Swirko was working undercover and did not want to

compromise his investigation or his identity, Glenn was not

arrested immediately.

On March 12, 2002, Glenn was indicted on one count of

distribution of Xanax and two counts of distribution of cocaine

base, in violation of 21 U.S.C. § 841(a)(1). He was arrested in

November 2002. Before trial, the government filed a § 851 notice

of sentence enhancement based on Glenn's prior drug convictions.

21 U.S.C. § 851.

The defense filed a pre-trial motion in limine to prevent

Swirko from referring in his testimony to any of Glenn's prior

arrests. The government stated that any officers testifying about

their familiarity with Glenn would only mention that they had known

him in the past, and would not mention any arrests. The court

allowed the testimony, and offered Glenn's counsel the opportunity

to have a jury instruction about the testimony both when offered

and prior to deliberation.

Swirko's direct testimony was that during his thirteen

years as a police officer he had had many contacts with Glenn and

so could identify Glenn easily. During cross-examination, the

defense asked Swirko if he had ever identified Glenn through an

identification card, to which Swirko replied no. On redirect, the

government responded by asking Swirko whether it was necessary to

ask Glenn for an identification card during the course of these

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transactions. Swirko replied "No," "Because I knew Mr. Glenn. I

knew who he was. I had dealt with him numerous times in the past.

I had viewed pictures of him. I knew who he was."

Glenn's counsel objected and moved for a mistrial,

stating that the reference to viewing pictures suggested to the

jury that Swirko had seen mug shots of Glenn, in violation of the

in limine order. The court denied a mistrial, but gave a curative

instruction that any testimony concerning Swirko's prior

involvement with the defendant could only be considered for

determining the accuracy of Swirko's identification.

Other witnesses cemented Glenn's guilt. Tina Gerow

testified that the transactions of February 6 and 19 occurred as

Swirko had testified. Surveillance officers working with Swirko on

the night of these transactions also testified that Glenn was the

seller of the drugs.

Glenn asserted an alibi defense, and offered four

witnesses to testify on his behalf. Each stated that at the time

of the alleged offenses, Glenn was not in Manchester but rather was

visiting relatives in Massachusetts. Glenn did not testify. On

September 9, 2003, the jury convicted Glenn for the February 6 sale

of Xanax and the February 19 sale of cocaine base.

On December 30, 2003, Glenn's trial counsel withdrew from

the case and new counsel was appointed. On February 2, 2004, more

than five months after his conviction, Glenn's new counsel filed a

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motion for new trial, alleging ineffective assistance of counsel

based on Glenn's trial counsel's purported refusal to allow Glenn

to testify at trial. The district court denied the motion as

untimely under Rule 33.

On March 4, 2004, the district court sentenced Glenn to

262 months imprisonment. Glenn was sentenced as a career offender,

based on previous convictions for sale of controlled substances.

See 21 U.S.C. § 851. In addition to the issues raised earlier,

Glenn raises for the first time on appeal an objection to his being

sentenced under the Federal Sentencing Guidelines in light of the

Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531

(2004). We affirm the decisions of the district court on all

claims, and deny Glenn's Blakely claim raised for the first time

here.

II.

A. Denial of Motion for New Trial

Glenn admits the motion was late but says the lateness

should be excused on grounds of equitable tolling, based on the

ineffectiveness of his trial counsel. He represents that he asked

counsel to withdraw immediately after the verdict, and that counsel

did not do so for several months, and in that time did not inform

him of the seven-day limitations period for filing a new trial

motion.

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Review of the denial of a motion for new trial is for

manifest abuse of discretion. United States v. Gonzalez-Gonzalez,

258 F.3d 16, 20 (1st Cir. 2001). This court has repeatedly held

that the seven-day limitations period for Rule 33 motions is

jurisdictional, and therefore a district court is without power to

hear such motions not filed within the seven-day period, unless

based on newly discovered evidence, in which case the limitations

period is two years. United States v. Diaz, 300 F.3d 66, 78 (1st

Cir. 2002). Glenn filed his motion almost five months after the

seven-day period ended. There was no error.

B. Ineffective Assistance of Counsel

Glenn argues that his trial counsel was ineffective in

that counsel denied him his right to testify, did not properly

research or prepare his alibi defense, and failed to file a timely

new trial motion. Unless the record is sufficiently developed on

appeal such that reasoned consideration of the ineffective

assistance claim is possible, the proper vehicle to raise such a

claim is a collateral proceeding under 28 U.S.C. § 2255. United

States v. Genao, 281 F.3d 305, 313 (1st Cir. 2002). There are

simply no facts of record on any of these claims, whatever their

merits, and Glenn does not fall within the exception.

C. Denial of Mistrial

Glenn argues that Officer Swirko's statement that he had

seen pictures of Glenn in the past was so prejudicial that no jury

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instruction could cure the potential prejudice. We will reverse a

denial of a motion for a mistrial only when the defendant shows

clear prejudice rendering the district court's denial a manifest

abuse of discretion. United States v. Freeman, 208 F.3d 332, 339

(1st Cir. 2000). Where, as here, "a curative instruction is

promptly given, a mistrial is warranted only in rare circumstances

implying extreme prejudice." Id. (quoting United States v. Torres,

162 F.3d 6, 12 (1st Cir. 1998) (emphasis added)).

Glenn's claim is utterly frivolous. The district court's

curative instruction was more than adequate to cure any potential

prejudice from Officer Swirko's statement that he had previously

seen photographs of Glenn. It is also far from clear that the

particular testimony was inadmissible. Furthermore, given the

overwhelming evidence of Glenn's guilt, he has failed to

demonstrate that this statement amounted to "clear prejudice."

D. Lack of Judicial Instructions on Right to Testify

Glenn asks us to overturn an earlier decision of this

court in Siciliano v. Vose, 834 F.2d 29 (1st Cir. 1987), which held

that the trial court is not constitutionally required to advise the

defendant of his right to testify or to procure an express waiver

of that right from the defendant. Id. at 30. The reasoning of

Siciliano, that such a rule might unduly pressure the defendant to

waive his "more fragile" constitutional right not to testify,

retains force. Id. at 30. Moreover, only an en banc court or

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intervening controlling law may reverse the rule established by an

earlier panel. See Charlesbank Equity Fund II v. Blinds To Go,

Inc., 370 F.3d 151, 160 & n.4 (1st Cir. 2004). Even were we free

to do so, we would not.

E. Blakely Claim

In supplemental briefing, Glenn asked us to remand his

case to the district court for resentencing in light of the Supreme

Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).

Because Glenn did not challenge the constitutionality of his

sentencing enhancement below, our review is for plain error. See

United States v. Cordoza-Estrada, 385 F.3d 56, 59 (1st Cir. 2004).

Under plain error review, the challenging party has the burden of

showing (1) an error, (2) that is plain, (3) that affects

substantial rights (i.e. the error was not harmless), and (4) that

seriously undermines the fairness, integrity, or public reputation

of judicial proceedings. United States v. Olano, 507 U.S. 725, 732

(1993). Glenn's claim fails to satisfy the prongs of plain error

review. See United States v. Morgan, 384 F.3d 1, 8 (1st Cir.

2004).

The judgment and sentence are affirmed.

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