Filed: Mar. 16, 1993
Latest Update: Feb. 21, 2020
Summary: , Jos A. Quiles-Espinosa, Senior Litigation Counsel, with, whom Daniel F. L pez-Romo, United States Attorney, was on brief, for appellee.1 The district court opined that much of appellant's documentary, evidence would have been inadmissible without foundation or live, testimony.arguments.
March 15, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2283
JORGE HERNANDO HOYOS-MEDINA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Selya, Circuit Judges.
Frank D. Inserni for appellant.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Daniel F. L pez-Romo, United States Attorney, was on brief
for appellee.
Per Curiam. Appellant Jorge Hernando Hoyos-Medina
appeals the denial of his 28 U.S.C. 2255 petition to reverse
his conviction. He claims ineffective assistance of counsel in
violation of the sixth amendment of the United States
Constitution. For the reasons stated below, we find that the
district court properly denied the petition.
BACKGROUND
Appellant was convicted of violations of 21 U.S.C.
952(a), 841(a)(1), 955 for possession and importation into the
United States, of 10.4 kilograms of cocaine. Appellant was
arrested while traveling from Bogot , Colombia to Geneva,
Switzerland on Iberia Airlines. The plane stopped in San Juan,
Puerto Rico and was searched by United States Customs officials.
The inspectors isolated what was alleged to be appellant's
suitcase because it was heavy and had irregular stitching on the
outside that suggested the bag had a secret compartment. A
search of its contents revealed a stash of cocaine. The suitcase
bore a baggage claim ticket; a plastic name tag, written in
appellant's handwriting and identifying the bag as his; and an
Iberia Airlines control number. The control number is placed on
the baggage, the airline ticket, and the boarding pass, to insure
that the passenger who checked-in a particular piece of luggage
boards the aircraft. Every bag must be accompanied by a
passenger or it is removed from the plane before take-off.
Because the control number is an antiterrorist safeguard, it is
attached without the passenger's knowledge. Appellant's ticket
and boarding pass corresponded to the control number attached to
the suspect luggage. Customs officials arrested appellant
primarily on the basis of this matching control number.
Appellant maintains that he was traveling to Madrid and
Geneva for pleasure, and to purchase dental equipment for the son
of a friend. While appellant admitted writing the identification
tag, he denies ownership of the suspect suitcase. Appellant
claims that when he approached the Iberia counter in the Bogot
airport, he was asked by the female attendant to fill out an
identification tag for his carry-on bag and to pay the exit tax.
He contends that he left his bag and the identification tag
unattended at the counter to get exact change to pay the tax at
the direction of the Iberia check-in official. When he returned,
the female attendant had been replaced by another individual, who
instructed appellant to hurry to the gate since boarding had
begun. Appellant argues that during the mix-up, while his bag
was out of his sight, an employee must have put the
identification tag he filled out on someone else's baggage.
After a jury convicted appellant, his court-appointed
trial counsel moved to withdraw from the case. The district
court granted the motion, appointed a federal public defender to
represent appellant at sentencing, and sentenced appellant
according to the guidelines.
In United States v. Hoyos-Medina, 878 F.2d 21 (1st Cir.
1989), we affirmed the conviction but allowed appellant to raise
the ineffective assistance of counsel claim in a collateral
proceeding, since it was not properly before the court at the
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time of the first appeal. Appellant unsuccessfully presented
this ineffective assistance of counsel claim in the district
court. We now turn to the merits of his claim.
DISCUSSION
In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court established a two-prong test for ineffective
assistance of counsel claims. The first prong requires
petitioners to demonstrate that "counsel's representation fell
below an objective standard of reasonableness." Id. at 688; see
also L pez-Nieves v. United States, 917 F.2d 645, 648 (1st Cir.
1990). This aspect of the test presents a formidable hurdle, as
the court begins with the presumption that "counsel's conduct
falls within the wide rage 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. at 669 (citation omitted). The
second prong demands a showing that defendant has been
prejudiced. More specifically, defendant must show that "there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694; see also L
pez-Nieves, 917 F.2d at
648.
Appellant alleges several errors on the part of trial
counsel. He contends that counsel improperly (1) failed to seek
a continuance to secure witnesses and documents that would have
bolstered appellant's version of the facts; (2) attempted to
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coerce appellant into pleading guilty; and (3) acted with
arrogance towards appellant and indifference towards his case.
We begin by analyzing the specific pieces of evidence that
appellant claims trial counsel negligently failed to investigate
and introduce into evidence.
First, appellant maintains that, had trial counsel
sought a continuance, he would have presented testimony from his
wife and friends regarding his good character. We note, however,
that counsel reasonably may have decided not to call appellant's
wife. The two were separated at the time of the trial, and
cross-examination of the wife might have ventured into
compromising matters for defendant. Therefore, the decision not
to call her was within "sound trial strategy." Strickland, 466
U.S. at 669.
With respect to other character witnesses, we admit
that if appellant wished to have such witnesses testify, counsel
should have called them. At the 2255 hearing, trial counsel
offered no explanation for failing to call character witnesses.
But, assuming arguendo that such omission constitutes objectively
unreasonable professional conduct, we cannot say that 'but for'
the failure to offer testimony of good character, the trial
probably would have turned out differently. Id. at 694. In
light of the strong evidence linking appellant to the luggage,
the omission of character witnesses was not prejudicial.
Second, appellant claims that he would have offered a
letter from an official at Iberia Airlines, stating that
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appellant checked one piece of luggage weighing 21 kilograms for
which he did not have to pay an overweight charge. Putting aside
the question of admissibility,1 such a letter would be of little
assistance to appellant unless the disputed bag weighed in excess
of 21 kilos. Since the record shows no evidence with respect to
the weight of the suitcase seized by the government, counsel's
failure to introduce the document was not objectively
unreasonable. It is unhelpful to argue that trial counsel should
have attempted to get evidence that the disputed suitcase weighed
more than defendant's luggage. To grant such an argument would
require that we reverse a conviction based on the defendant's
unsupported allegation of the possible existence of exculpatory
evidence. In the context of a 2255 collateral attack, in order
to succeed, appellant must be able to point to some concrete
evidence that the trial counsel should have presented.
The defect in appellant's line of argument is readily
apparent. At the hearing on this appeal, counsel said that
appellant was not given the opportunity to show that his version
of the story was true. He maintained that he filled out the
identification tag in front of a female check-in clerk; was
separated from his bags at her direction; and returned to the
counter, only to be hustled off to the gate. He further
maintained that during his absence the identification tag,
1 The district court opined that much of appellant's documentary
evidence would have been inadmissible without foundation or live
testimony. Hoyos-Medina v. United States, No. 92-1373, slip op.
at 4 n.3, 5 n.4 (D.P.R. July 22, 1992).
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written in his hand-writing, had been attached to someone else's
suitcase filled with cocaine. When asked by the court whether
counsel could produce a witness to corroborate appellant's
version, or whether the record showed whether such a witness ever
existed, counsel replied only that trial counsel should have
found one. Such a bald assertion cannot support a reversal for
ineffective assistance of counsel because we do not know whether
there was a witness that trial counsel unprofessionally failed to
discover.
Third, appellant claims that counsel failed to obtain a
letter or testimony from the son of a friend (who is an
orthodontist) corroborating appellant's story that the purpose of
the trip was, in part, to purchase dental equipment on the son's
behalf. While corroboration of this purpose would have been
helpful to him, appellant testified as to the purpose of his
trip. But, like the failure to bring character witnesses, we
cannot say that 'but for' the failure to solicit and introduce
the letter, there is a reasonable probability -- one "sufficient
to undermine confidence in the outcome" -- that the verdict would
have been different. Id. at 694. Thus, appellant failed to make
the required showing of prejudice.
The overall object of the inquiry at this stage is to
ensure that some significant piece of evidence (which would
support appellant's claim of innocence) was not entered into
evidence because of trial counsel's unprofessional errors. At
this late date appellant has failed to show any evidence to
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undermine the critical piece of evidence linking him to the
suspect baggage: the control number 145 which connected the bag
with Hoyos-Medina's ticket and boarding pass.
We now turn to appellant's allegations that trial
counsel attempted to coerce a guilty plea, and that counsel was
indifferent towards the case. Trial counsel purportedly visited
Hoyos-Medina at the penitentiary and falsely informed him that
the judge was "rip roaring mad" at him. In addition, he promised
that the judge would be lenient if appellant pled guilty and told
him to "go to hell" when appellant protested his innocence.
Evidence of counsel's indifference includes: (1) failure to
vigorously argue a Rule 29 Motion for Judgment of Acquittal at
the close of the government's case; and (2) voluntary suppression
of a document from the Colombian Government attesting to
appellant's clean criminal record.
At the 2255 hearing, trial counsel admitted that
"often times one has to prod [defendants] for the purpose of
helping them help themselves, so to speak." He also stated that
he told Hoyos-Medina that "if the jury does not believe you and
if the judge believes that you have lied, the judge is going to
screw you."
To begin with, we do not condone any pressure from
defense counsel to plead guilty. Defendant's choice of plea is
entirely his own. Our criminal justice system exerts
considerable pressure to induce guilty pleas without improper
influence from court-appointed attorneys charged with the duty to
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defend accused.
Nonetheless, it is unnecessary to delve too deeply into
appellant's final allegations of ineffective assistance. Because
trial counsel was unsuccessful in his attempt to pressure
appellant to plead guilty, the purported coercion is but an
example of counsel's alleged negative or indifferent attitude
towards his case. We find these claims without merit because
outward indicia of trial counsel's effort suggests the contrary.
He filed the appropriate motions in a timely manner and kept
abreast of appellant's case. For example, trial counsel
succeeded in excluding a damaging document that appellant now
argues should have been admitted. Indeed, the document from the
Colombian government regarding appellant's criminal history would
have shown no convictions, but it also would have indicated that
he had been tried and acquitted of extortion. This seems like
sound trial strategy to us. Appellant's vague assertions of
ineffectiveness and indifference do not constitute objectively
reasonable professional misconduct, nor do they demonstrate the
necessary prejudice. In this case, we do not find that
ineffective representation caused a break-down of the adversarial
process such that defendant did not receive a fair trial.
Finally, we need not consider appellant's request to
remand the case to the district court for a ruling on the merits
of his Motion Requesting Amendments and Further Findings of Fact
to the Judgment, submitted pursuant to Fed. R. Civ. P. 52(b),
because the motion offers substantially the same arguments as
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appellant's brief on appeal. We have amply canvassed these
arguments.
The district court's decision is affirmed.
Affirmed.
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