United States Court of Appeals
For the First Circuit
No. 04-1395
UNITED STATES OF AMERICA,
Appellee,
v.
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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