United States v. Osorio-Pena

United States Court of Appeals
For the First Circuit

No. 00-1449

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

EDWIN OSORIO-PEÑA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

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

Neil M. Nameroff for appellant.
Michelle Morales, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco, Assistant United States Attorney, were on brief, for
appellee.

April 26, 2001
 LIPEZ, Circuit Judge. The district court denied the

defendant’s motion for a new trial on the ground that his claim of

ineffective assistance of counsel did not meet the standard for "newly

discovered evidence" under Federal Rule of Criminal Procedure 33. The

defendant appeals that ruling. In the alternative, he asks us to

decide his ineffective assistance claim on direct appeal, contending

that the record is sufficiently developed for us to do so. We affirm

the denial of the motion for a new trial and do not decide the

defendant’s ineffective assistance claim.

I.

In the early hours of August 1, 1997, Puerto Rican police

executed a search warrant at the home of Edwin Osorio-Peña. They found

drug paraphernalia and drug ledgers. Based on this evidence, Osorio-

Peña was indicted on August 6 and charged with three separate counts

under 21 U.S.C. § 841(a)(1): possession with intent to distribute

heroin, possession with intent to distribute marijuana, and possession

with intent to distribute cocaine. Osorio-Peña pled not guilty and

went to trial. On November 26, 1997, a jury found him guilty of all

three counts. Osorio-Peña was later sentenced to 78 months in prison

and four years supervised release.

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 Three months after his conviction, the defendant retained

new counsel who continues to represent him on this appeal. On October

1, 1998, ten months after his conviction, the defendant filed a motion

for a new trial under Federal Rule of Criminal Procedure 33. Rule 33

provides that a motion for a new trial must be made within seven days

after a guilty finding unless "based on the ground of newly discovered

evidence," in which case the motion may be made within two years after

the verdict. Fed. R. Crim. P. 33. The defendant claimed that his

motion fell under the "newly discovered evidence" exception to the

seven-day time limit. He argued that his trial lawyer provided

ineffective assistance of counsel by failing to file a motion to

suppress the warrant used to search his house, and by failing to file

a motion for a new trial within Rule 33's seven-day deadline. Osorio-

Peña said that the warrant gave a wrong address and wrong description

of the house, thus violating the Fourth Amendment’s requirement that

warrants must "particularly describ[e] the place to be searched." U.S.

Const. amend. IV. He argued that his ineffective assistance claim

based on his lawyer's failure to challenge the warrant came within Rule

33's "newly discovered evidence" provision because he himself did not

become aware of the warrant’s errors or their legal significance until

after trial.

The warrant at issue describes the property to be searched

as: "A white two story concrete structure located at: Urbanizacion

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Mariolga, Calle 26, T#2, Caguas, Puerto Rico." A police affidavit

sworn out to obtain the warrant said that according to a confidential

informant, a large quantity of heroin had been delivered to this

address, and that its recipients were a woman with the last name of Fnu

Lnu and her husband, a.k.a. "Brunly." The defendant said that the

address in the warrant was incorrect because he lives in the

urbanizacion, or neighborhood, of Villas del Rio Verde rather than

Mariolga, and that the description was incorrect because his house is

a one-story building painted (at the time of the search) light green

with pink trim. He also contended that he has no relationship with the

people to whom the warrant referred.

The same magistrate judge who issued the warrant held an

evidentiary hearing on the defendant’s motion for a new trial on

December 18, 1998. The magistrate judge asked for and received an

affidavit from Osorio-Peña’s trial counsel, Benito I. Rodríguez-Massó,

in which he explained that he did not file a motion to suppress the

warrant because "[t]he defendant at all times stated that his address

was indistinctively referred to as 'Urbanicazion Mariolga' or 'Villas

del Rio Verde.'" The magistrate judge also heard testimony from a

Puerto Rican police officer about the steps taken to obtain the search

warrant. The officer said that a confidential informant provided the

address that appears in the search warrant to another officer, and that

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he and this officer conducted surveillance at the defendant's house for

two or three hours before executing the search.

In a report and recommendation, the magistrate judge found

that the defendant’s ineffective assistance claim met the standard for

"newly discovered evidence" under Rule 33 because the "defendant was

not aware of the search warrant's physical description of the residence

to be searched until after trial." She based this conclusion on the

absence of any mention in the trial transcript of the warrant’s

description of the house, and on Rodríguez-Massó's statement that he

only discussed the wrong address with the defendant. The magistrate

judge recognized our holding that

[a] motion for new trial on the basis of newly
discovered evidence will ordinarily not be
granted unless the moving party can demonstrate
that: (1) the evidence was unknown or
unavailable to the defendant at the time of
trial; (2) failure to learn of the evidence was
not due to lack of diligence by the defendant;
(3) the evidence is material, and not merely
cumulative or impeaching; and (4) it will
probably result in an acquittal upon retrial of
the defendant.

United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980). The

magistrate judge said that Osorio-Peña met the four elements of this

standard. His lawyer’s failure to discuss the warrant's descriptive

errors with him meant that the defendant "did not know, nor did he have

any reason to know, either (1) that the search warrant contained a

physical description of the residence to be searched or (2) that the

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physical description did not match his residence." The evidence was

material because it "goes to the legality of the execution warrant,"

and was likely to result in acquittal because it was "questionable"

whether the defendant would have been tried without the fruits of the

search of his home.

Finding that the defendant’s motion for a new trial was not

time-barred, the magistrate judge considered the merits of his

ineffective assistance claim. She concluded that the warrant used to

search Osorio-Peña’s home included several errors,1 and that his trial

lawyer did not provide effective assistance of counsel because he

failed to challenge the warrant. The government filed a written

objection to the magistrate judge's factual findings with the district

court and argued that she should not have addressed the ineffective

assistance claim because it did not meet the "newly discovered

evidence" standard. The district court did not rule on the

government’s objections to the magistrate judge's factual findings,

1The magistrate judge found that while the defendant's street
address is Calle 26, T#2 in the city of Caguas, he lives in the
urbanizacion, or neighborhood, of Villas del Rio Verde rather than
Mariolga. However, she also found that the two neighborhoods are close
together and often referred to interchangeably. In addition, the
magistrate said that the defendant’s house is a one-story building
painted (at the time of the search) light green with pink trim rather
than the two-story white structure described in the warrant. The
magistrate also said that it was "still unknown" why the warrant
included no reference to Osorio-Peña, given the tip from the
confidential informant and the surveillance conducted by the police.

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instead holding that Rule 33 did not entitle the defendant to a new

trial because his ineffective assistance claim was not based on newly

discovered evidence. We review the district court’s denial of a motion

for a new trial for abuse of discretion. See United States v. Winter,

663 F.2d 1120, 1155 (1st Cir. 1981).

II.

On appeal, Osorio-Peña repeats his argument that his

ineffective assistance claim, based on his lawyer's failure to

challenge the warrant, came within Rule 33's "newly discovered

evidence" provision. Osorio-Peña does not dispute that the warrant was

available to his lawyer, Rodríguez-Massó (or indeed that he and his

lawyer briefly discussed the warrant). Instead, he argues that he is

entitled to Rule 33's "newly discovered evidence" extension because the

information in the warrant was unavailable to him personally at trial

in two ways: (1) Rodríguez-Massó did not tell him about the warrant’s

inaccurate physical description of his house, other than the wrong

address; and (2) even if he had known those facts, he would not have

appreciated their legal significance without a lawyer's help because

he is a Spanish-speaking layperson.

Osorio-Peña relies primarily on our own precedent, United

States v. Lema, 909 F.2d 561 (1st Cir. 1990). Lema argued that his

ineffective assistance claim met Rule 33's "newly discovered evidence"

standard because it was based on his lawyer's failure to investigate

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the existence of audiotapes made by the government which would

contradict the testimony of government witnesses. Id. at 564-65. Lema

contended that he was unaware of the tapes until he looked at his

lawyer's file after trial and found transcripts of them. Id. at 565.

On appeal, we said that "Lema may bypass Rule 33's seven-day time limit

only if his claim that his counsel failed to discover and/or review the

tapes was based on information unavailable to the defendant at the time

of trial." Id. at 566.

Reading this statement as referring to information that is

unavailable to the defendant himself, Osorio-Peña argues that any

information available to his lawyer cannot be attributed to him. If

he discovered facts after the trial known only to his lawyer at the

time of trial, he argues, his personal discovery meets the definition

of "newly discovered evidence." The magistrate judge agreed with this

premise in finding that Osorio-Peña's claim came within Rule 33's

"newly discovered evidence" provision because the defendant did not

know of the warrant's descriptive errors, and because his failure to

learn of this evidence was not due to his own lack of diligence. The

premise for these findings is erroneous.

It is true that Lema sometimes discusses "information

unavailable to the defendant" in terms of Lema’s own awareness of the

existence of the tapes. The court says that "passages from the

testimony make abundantly clear [that] Lema was aware at the time of

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trial that there were tape recordings." Id. at 567. The court also

says: "There is no doubt that Lema was aware at the time of trial of

the existence of tapes and transcripts of the conversations to which

government witnesses were testifying." Id. at 568.

Despite these references to the defendant’s own knowledge,

the dispositive facts in Lema were defense counsel’s access to the

tapes before trial, references to the tapes in the docket record, and

a pre-trial letter from the government to Lema's lawyer discussing

them. Id. at 568 and n. 9. These facts go to defense counsel’s

knowledge of the tapes, not Lema’s personal knowledge of them. In

addition, Lema stated this general proposition: "An interpretation that

would consider facts known at the time of trial to be 'newly

discovered,' if cloaked in the garb of a claim of ineffective

assistance of counsel, flies in the face of the plain meaning of the

rule and the traditional understanding of the narrowness of the time

exception." Id. at 566. Properly read, Lema precludes defendants from

prevailing under Rule 33's "newly discovered evidence" provision when

their lawyers knew at trial about the evidence that defendants now

claim is newly discovered.2

2 Of course, if Osorio-Peña wanted to argue that even his lawyer
did not know about the content of the warrant, he would have to
demonstrate that his lawyer’s failure to learn of this evidence was not
due to lack of diligence to come within Rule 33's "newly discovered
evidence" provision. See Wright, 625 F.2d at 1019. Again, in the
circumstances presented here, it is the diligence of the defendant
through his lawyer that is at issue, not the diligence of the defendant

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 Osorio-Peña alternately argues that the warrant’s errors are

newly discovered because his lawyer did not explain their legal

significance to him. Lema precludes this argument as well by holding

that Rule 33 puts the burden on the defendant to raise concerns about

his lawyer’s investigation of evidence within seven days. Id. at 568

("If [Lema] believed that these tapes contained exculpatory evidence

and that more discovery should have been done or that his attorney

inadequately represented him in this regard, he was able to raise the

issue within the seven-day period governing motions for new trial.").

The majority of circuits similarly have held that facts giving rise to

ineffective assistance claims are not newly discovered evidence under

Rule 33 if the facts were available to the defendant at trial but he

or she did not appreciate their legal significance. See United States

v. Seago, 930 F.2d 482, 488-90 (6th Cir. 1991); United States v.

Ugalde, 861 F.2d 802, 805-06 (5th Cir. 1988); United States v. Dukes,

727 F.2d 34, 39 (2d Cir. 1984); United States v. Lara-Hernandez, 588

F.2d 272, 275 (9th Cir. 1978); United States v. Ellison, 557 F.2d 128,

132-34 (7th Cir. 1977), cert. denied, 434 U.S. 965 (1977). But see

United States v. Brown, 476 F.2d 933, 935 n.11 (D.C. Cir. 1973); United

States v. Smallwood, 473 F.2d 98, 104 (D.C. Cir. 1972) (Bazelon, C. J.,

concurring).

himself.

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 In sum, "courts have given a narrow meaning to the phrase

'newly discovered.'" Lema, 909 F.2d at 566. This narrow

interpretation reflects Rule 33's emphasis on finality. As the Seventh

Circuit has said: "The practical difficulties faced by defendants

seeking to raise ineffective-assistance-of-counsel claims by way of

motions for a new trial . . . do not give us cause to corrupt the clear

language of Rule 33. Newly discovered evidence must be newly

discovered evidence." Ellison, 557 F.2d at 133.

As an alternative to his Rule 33 motion, Osorio-Peña asks

us to make the ineffective assistance determination on direct appeal.

"The rule in this circuit is that a fact-specific claim of ineffective

legal assistance cannot be raised initially on direct review of a

criminal conviction, but must originally be presented to the district

court." United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989).

This practice exists largely to allow for full development of the

record needed to "place the adequacy of a defendant's representation

into proper perspective." United States v. Natanel, 938 F.2d 302, 309

(1st Cir. 1991). On occasion, when the trial record has included all

the relevant facts, we have departed from this rule and decided

ineffective assistance claims on direct appeal. See, e.g., id.; United

States v. Caggiano, 899 F.2d 99, 100 (1st Cir. 1990). Osorio-Peña

argues that the evidentiary hearing before the magistrate judge

produced a full record of the facts relating to his ineffective

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assistance claim. His counsel said at oral argument that requiring him

to file a habeas petition under 28 U.S.C. § 22553 would be "pointless."

We disagree.

A defendant claiming ineffective assistance of counsel "must

show that counsel's representation fell below an objective standard of

reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984).

Because of the difference between this standard and the standard for

"newly discovered evidence," the record relevant to Osorio-Peña's

ineffective assistance claim is not fully developed. While some of the

evidence at the Rule 33 hearing before the magistrate judge related to

the ineffective assistance claim, the defendant's motion for a new

trial, and the post-trial proceedings that followed, focused primarily

on whether the basis for the claim was newly discovered. The

magistrate judge reached the merits of the ineffective assistance

claim, but the district court did not. Osorio-Peña's brief on appeal

also is primarily devoted to the Rule 33 issue rather than the

underlying ineffective assistance claim. At oral argument, several

factual disputes emerged that go to the merits of the ineffective

3 The statute allows a defendant convicted in federal court to
move the sentencing court to vacate, set aside or correct his or her
sentence on the ground that it "was imposed in violation of the
Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject to
collateral attack." 28 U.S.C. § 2255.

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assistance claim.4 Osorio-Peña's brief does not set forth the

defendant's position on several of these contested issues.5

Given these factors, we think the most prudent course is to

decline to decide the defendant's ineffective assistance claim.

Raising that claim in a habeas petition will allow Osorio-Peña to focus

squarely on why his lawyer’s performance may have fallen below an

objective standard of reasonableness when the lawyer decided not to

file a motion to suppress the search warrant. We express no view as

to the merits of this claim, see Lema, 909 F.2d at 568, or as to the

magistrate judge's factual findings and the government's objection to

them.

Affirmed.

4 For example, the government said that the confidential informant
brought the police to Osorio-Peña's address, and provided the
information about an incoming drug delivery that supports the probable
cause basis for the warrant. Osorio-Peña said that the confidential
informant's tip had nothing to do with the defendant, and that there
was no probable cause for the search because the police, in conducting
surveillance of Osorio-Peña's house, observed no suspicious activity.
This dispute may matter because to meet the standard for ineffective
assistance, the defendant must show that his lawyer's failure to
challenge the warrant prejudiced him. See Strickland, 466. U.S. at
687.
5 Citing the record's incompleteness, the government withdrew at
oral argument its agreement in its brief to direct review of the
ineffective assistance claim. See Natanel, 938 F.2d at 309 (reviewing
an ineffective assistance claim on direct appeal partly because
"[n]either side suggests that there is any need for further
factfinding").

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