United States Court of Appeals
For the First Circuit
No. 92-2006
UNITED STATES,
Appellee,
v.
CHARLES E. DANIELS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Cyr and Stahl, Circuit Judges,
and Fuste,* District Judge.
Robert J. Carnes, by appointment of the Court, for appellant.
C. Jeffrey Kinder, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, was on brief for appellee.
August 30, 1993
*Of the District of Puerto Rico, sitting by designation.
STAHL, Circuit Judge. A federal jury convicted
defendant Charles Daniels ("Daniels") of illegal possession
of a firearm by a convicted felon, a violation of 18 U.S.C.
922(g)(1). The district court sentenced Daniels to fifteen
years imprisonment, the mandatory minimum sentence under the
Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e)(1).
On appeal, Daniels claims that: 1) the indictment against
him should have been dismissed as a result of the
government's violation of the Interstate Agreement on
Detainers ("IAD"); 2) his trial counsel was constitutionally
ineffective; 3) the district court failed to properly
instruct the jury on the government's burden of proof; and 4)
the district court improperly sentenced him under the ACCA.
Finding these claims meritless, we affirm.
I.
Factual Background and Prior Proceedings
We recount the facts in the light most favorable to
the prosecution. United States v. Alvarez, 987 F.2d 77, 79
(1st Cir. 1993), petition for cert. filed, U.S.L.W.
(U.S. June 9, 1993) (No. 92-9080). A Massachusetts
investigation of Daniels and his girlfriend, Deborah Hill
("Hill"), culminated on November 17, 1989, with the execution
of search warrants at their respective residences. The
warrants authorized a search for cocaine, cocaine
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paraphernalia, and records related to the purchase and sale
of cocaine.
Prior to the search of Hill's residence, Daniels
had been observed leaving his apartment carrying a brown
nylon bag. He drove to Hill's residence and entered her home
with the bag. At approximately 7 p.m., five Massachusetts
State Troopers forcibly entered Hill's residence in order to
execute the warrant. Three of the troopers, having entered
the apartment by way of its kitchen, moved forward towards
other portions of the apartment. As one trooper, Lt.
McDonald, reached the entrance to a bedroom, he observed
Daniels, in the middle of the room, "crouched" over the brown
bag with his hand inside it. As Daniels looked up, McDonald
and two other troopers rushed toward him and pushed him onto
a bed. Following a struggle, the troopers handcuffed Daniels
and removed him from the scene.
While the three troopers were subduing Daniels,
Trooper Thomas Kerle's cursory search of the brown bag
revealed cocaine and cocaine paraphernalia. A more complete
search of the bag, performed after Daniels was removed from
the room, yielded a loaded Browning .38 caliber semi-
automatic pistol and approximately $1,000 cash. A subsequent
execution of the warrant to search Daniels's residence netted
17 rounds of .38 caliber ammunition which matched that
removed from the gun found in the brown bag.
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Daniels pled guilty to cocaine related charges in
Hampshire County (Mass.) Superior Court and was sentenced to
three to six years imprisonment. On March 5, 1992, he was
indicted by a federal grand jury on a charge of possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
922(g)(1).
At trial, the various state troopers involved in
the case, as well as both Hill and Daniels, testified. Hill
testified that she assisted Daniels in the distribution of
cocaine and collection of cocaine related debts. She also
testified that the brown bag was one that she had previously
bought for Daniels. Finally, she testified that the contents
of the bag belonged to Daniels and that she had never seen
the gun before the police showed it to her. Daniels admitted
that he and Hill used and sold cocaine. He also admitted
that the brown nylon bag, the seized cocaine and
paraphernalia were his. He denied, however, that he was
reaching into the bag at the time McDonald sighted him, and
also claimed that he had never before seen the gun at issue.
The jury deliberated approximately two hours before returning
a guilty verdict.
II.
Discussion
A. Ineffective Assistance of Counsel
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Daniels argues that his trial counsel's performance
was constitutionally infirm because: 1) she withdrew a
motion to suppress evidence seized during the search of
Hill's apartment; and 2) she cross-examined Hill about her
drug activity, thereby "opening the door" to admission of
evidence regarding Daniels's own drug involvement. We,
however, need not address these claims because they are not
properly before us. A brief explanation follows.
It is well settled in this circuit that a claim of
ineffective assistance of counsel will not be resolved on a
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 States v.
Georgacarakos, 988 F.2d 1289, 1297-98 (1st Cir. 1993).
Instead, such a claim is to be pursued in a collateral
proceeding under 28 U.S.C. 2255. Id. at 1298. Here,
appellant does not argue that he raised this issue below.
Moreover, our review of the record demonstrates that both of
Daniels's claims are heavily dependent on the factual
circumstances surrounding each of the allegedly deficient
actions taken by trial counsel. Accordingly, we do not reach
Daniels's ineffective assistance of counsel claim.
B. Interstate Agreement on Detainers
Daniels next argues that the indictment should have
been dismissed because his rights under the IAD, 18 U.S.C.
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app. II, 2, art. IV(e)1, were violated when he was twice
transferred from Massachusetts to federal custody for
purposes of arraignment. We disagree.
At the time of his federal indictment, Daniels was
incarcerated in a Gardner, Massachusetts facility
("Gardner"), serving his sentence on the state drug charges.
On March 6, 1992, the day after his federal indictment, the
district court, sua sponte, issued a writ of habeas corpus ad
prosequendum to the warden at Gardner, ordering Daniels's
production on March 20, 1992, for arraignment on the federal
indictment. On March 9, 1992, the United States Marshal's
Service lodged a detainer with the Gardner warden, notifying
him of the pending federal charges against Daniels.
Daniels made his initial appearance before a United
States Magistrate Judge on March 20, 1992. After being
advised of the charge against him, Daniels requested court-
appointed counsel. The arraignment was continued to March
30, 1992, so that counsel could be present. Daniels was
returned to Gardner that same day. The district court,
meanwhile, issued a second writ, ordering the Gardner warden
to produce Daniels on March 30, 1992.
1. Pursuant to Article IV(e) of the IAD, "[i]f trial is not
had on any indictment . . . contemplated hereby prior to the
prisoner's being returned to the original place of
imprisonment . . . such indictment . . . shall not be of any
further force or effect, and the court shall enter an order
dismissing the same with prejudice."
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Daniels appeared for arraignment on March 30, 1992,
with appointed counsel, and entered a not guilty plea. A
discovery and motion schedule was set, and Daniels was
returned to Gardner, where he remained until his federal
trial.
Daniels's argument for dismissal is based on a
literal reading of Article IV(e). Strictly speaking, the
argument is not without merit. In this circuit, however, we
have firmly held that "common sense rejects that literal
application." United States v. Taylor, 947 F.2d 1002, 1003
(1st Cir.), cert. denied, 112 S. Ct. 2982 (1992). Instead,
we have held--as have several other circuits--that a brief
interruption in state prison confinement for purposes of
arraignment, where the prisoner is returned to state custody
the same day, does not violate the IAD. Id.; United States v.
Taylor, 861 F.2d 316, 319 (1st Cir. 1988); see also Baxter v.
United States, 966 F.2d 387, 389 (8th Cir. 1992) (removal
from state custody for few hours for arraignment and plea
does not violate IAD); United States v. Johnson, 953 F.2d
1167, 1171 (9th Cir.) (five different transfers from state
custody to federal court did not violate IAD), cert. denied,
113 S. Ct. 226 (1992); United States v. Roy, 830 F.2d 628,
636 (7th Cir. 1987) (overnight removal did not violate IAD),
cert. denied, 484 U.S. 1068 (1988); United States v. Roy, 771
F.2d 54, 60 (2d Cir. 1985) (same), cert. denied, 475 U.S.
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1110 (1986). But see United States v. Schrum, 638 F.2d 214,
215 (10th Cir. 1981) (whenever prisoner is transferred,
however briefly, IAD is violated and charges must be
dismissed), aff'g 504 F. Supp. 23 (D. Kan. 1980); United
States v. Thompson, 562 F.2d 232, 234 (3d Cir. 1977) (en
banc) (same), cert. denied, 436 U.S. 949 (1978).
The rationale behind our interpretation of the IAD
is that a brief interruption in state custody poses no threat
to the prisoner's rehabilitation efforts, the main purpose of
the Act. Taylor, 947 F.2d at 1003; United States v Mauro,
436 U.S. 340, 349 (1978). Indeed, as we have noted, such
interruptions may be advantageous to a defendant. See, e.g.,
Taylor, 947 F.2d at 1003 (securing speedy arraignment).
Here, Daniels has alleged no hindrance to the rehabilitative
efforts of his state incarceration.2 Finally, Daniels tries
to distinguish both Taylor cases because they involved single
transfers, while Daniels was twice transferred. We find this
distinction to be of no legal moment, especially, where, as
here, the second transfer was effected to secure Daniels's
right to counsel. Accordingly, we reject Daniels's claim
under the IAD.
2. In fact, as the government correctly points out, literal
application of the IAD could frustrate its goals. If we
accept Daniels's argument for purposes of this case, he would
have been removed from state custody from the original date
of his federal arraignment, March 20, 1992, until the date of
his disposition, August 3, 1992. We can hardly think of a
greater disruption in rehabilitative services.
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C. Sentencing Under the ACCA
Pursuant to the ACCA, a felon convicted of
possessing a firearm must receive a minimum sentence of
fifteen years if he has three prior convictions for violent
felonies or serious drug offenses. 18 U.S.C. 924(e)(1).
To support the ACCA sentence enhancement, the government
introduced into evidence at the sentencing hearing certified
copies of Daniels's convictions for attempted assault in
1965, attempted robbery in 1970, rape in 1973, and reckless
endangerment and assault in 1986. At the sentencing hearing,
Daniels argued that the 1973 rape and 1986 reckless
endangerment and assault convictions were invalid predicates
because he was not represented by counsel during the relevant
proceedings.
On appeal, Daniels embarks on a different course.
He now argues that the 1965, 1970, and 1973 convictions are
too old to be used as predicate offenses.3 This claim is
meritless.
Not only does the ACCA lack a limitations period on
predicate crimes, but appellate courts have uniformly
3. In his brief, appellant also argued that the district
court improperly used as a predicate Daniels's underlying
drug conviction and also improperly considered his 1986
convictions for assault and reckless endangerment as separate
predicate offenses. These contentions, however, were waived
at oral argument.
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rejected attempts to create such a limitation. See United
States v. Alvarez, 972 F.2d 1000, 1006 (9th Cir. 1992)
(predicate convictions more than fifteen years old), cert.
denied, 113 S. Ct. 1427 (1993); United States v. Blankenship,
923 F.2d 1110, 1118 (5th Cir.) (predicate convictions more
than twenty years old), cert. denied, 111 S. Ct. 2262 (1991);
United States v. McConnell, 916 F.2d 448, 450 (8th Cir. 1990)
(same); United States v. Preston, 910 F.2d 81, 89 (3d Cir.
1990), cert. denied, 111 S. Ct. 1002 (1991); United States v.
Green, 904 F.2d 654, 655 (11th Cir. 1990) (same). We
similarly decline Daniels's invitation to create such a
limitations period, and find that he was properly sentenced
pursuant to the ACCA.
D. Jury Instructions
Daniels's final claim is that the district court
failed adequately to instruct and define for the jury the
government's burden of proof. As no objection to the court's
instruction was made at trial, we review only for plain
error. Fed. R. Crim. P. 52(b); United States v. Olano, 113
S. Ct. 1770, 1778 (1993) (reversal for plain error warranted
only where the error "seriously affects the fairness,
integrity or public reputation of judicial proceedings"). We
have read the charge and find no plain error.4
4. Indeed, appellant's counsel termed this claim
"insupportable," and filed the relevant section of the brief
pursuant to Anders v. California, 386 U.S. 738 (1967).
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Based on the foregoing, appellant's conviction and
sentence are affirmed.
affirmed.
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