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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