USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 95-1083
UNITED STATES OF AMERICA,
Appellee,
v.
EDWIN DIAZ-MARTINEZ, a/k/a ALEXIS EL BOXEADOR,
Defendant, Appellant.
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No. 95-1536
EDWIN DIAZ-MARTINEZ,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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James Kousouros, with whom Debra K. Kousouros was on brief, for
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appellant.
Edwin O. Vazquez, Assistant United States Attorney, with whom
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Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa,
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Senior Litigation Counsel, were on brief, for the United States.
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December 13, 1995
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LYNCH, Circuit Judge. Following a shootout near
LYNCH, Circuit Judge.
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the Bayamon Judicial Center in Bayamon, Puerto Rico,
defendant Diaz-Martinez was convicted of possessing firearms
with obliterated serial numbers. He appeals, saying he was
forced to go to trial with defense counsel not of his
choosing, that the prosecutor improperly argued at closing,
that his sentence was too harsh under the Guidelines, and
that the statute under which he was convicted cannot
withstand Commerce Clause scrutiny under United States v.
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Lopez, 115 S. Ct. 1624 (1995). We reject his claims and
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affirm.
I
Factual Background
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The sounds of gunfire and a man1 lying on the
ground with critical gunshot wounds evidenced a gun battle on
January 24, 1994 near the Bayamon courthouse and in the
parking lot of the Santa Rosa Shopping Center. A law
enforcement officer leaving the courthouse heard the shots
and ran toward the parking lot. He saw the defendant running
through the lot, pistol in one hand and a small object,
probably a cellular phone, in the other. The officer saw the
defendant fire two rounds and ran after him.
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1. The defendant later told police that he had gone to the
Bayamon courthouse to pick up this man, and that they were
fired upon as they were leaving the building.
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The defendant, who was found squatting behind some
bushes, came out with his hands up when he saw the officer
approaching and exclaimed that someone was trying to kill
him. Other officers who had heard the shots and one of whom
had seen the defendant with a gun also arrived at the scene.
A search of the area where the defendant was found turned up
a cellular phone and two guns. One gun had a bullet jammed
inside. Both smelled of gunpowder, from recent firing. Both
had their serial numbers obliterated. Twenty-two bullets
were found in the shopping center parking lot. Expert
analysis later indicated that thirteen had been fired from
the two pistols. A car was also discovered in the parking
lot, inside which were papers indicating it had been rented
to the defendant, plus two nine millimeter bullet casings
the same caliber as the guns. Other nearby cars were marked
with bullet holes.
Weapons charges were filed against the defendant
under Puerto Rico law. After a finding of probable cause by
the local court, those charges were dropped to accommodate
the federal prosecution.2 The federal indictment was filed
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2. At the time of his arrest, the defendant was facing
unrelated homicide charges in the Puerto Rico local courts in
connection with murders that had apparently received some
public notoriety. Defendant says he is known in the media as
Alexis El Boxeador (Alexis the Boxer) and that he was
recognized by some of the police under that moniker. He was
ultimately acquitted of the murder charges after a bench
trial.
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on February 9, 1994, charging two counts of knowing
possession of firearms bearing obliterated serial numbers
that had been transported in foreign and interstate commerce
in violation of 18 U.S.C. 922(k). After a four-day trial
commencing April 26, 1994, Diaz-Martinez was convicted on
both counts of the indictment. He was sentenced to serve two
concurrent terms of 45 months plus three years supervised
release and was ordered on each conviction to pay $3,000 in
fines and a special assessment of $50.
While this appeal was pending, the defendant filed
a petition in the district court for collateral relief under
28 U.S.C. 2255, arguing that his trial had been prejudiced
by ineffective assistance of counsel. The district court
dismissed the petition as premature, inasmuch as his direct
appeal was still pending. The defendant appealed that
dismissal. We consolidated the defendant's direct appeal
from his convictions and sentence with his appeal from the
dismissal of the section 2255 petition.
II
A. Sixth Amendment Right to Counsel Claim
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Diaz-Martinez claims that the district court, by
refusing to grant him extra time to seek out his own counsel
and instead forcing him to go to trial with court-appointed
counsel, denied him his right under the Sixth Amendment to
choose his own attorney. His argument is without merit.
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Since before his February 15, 1994 arraignment, the
defendant had been represented by attorney Mendez-Lebron.
When the district court on March 3, 1994, scheduled the
defendant's trial for April 11, 1994, Mendez-Lebron was still
his counsel of record. However, on March 29, less than two
weeks prior to trial, Mendez-Lebron filed a motion to
withdraw. On March 31, 1994, the district court held a
hearing on Mendez-Lebron's motion, together with the
defendant's motion to obtain new counsel. The defendant told
the court that he had already contacted several other
attorneys as potential replacements for Mendez-Lebron, and
that one of them, attorney Acevedo, was on his way to the
courthouse to be interviewed by the defendant.
The district court, after expressing skepticism as
to why the defendant had waited so long to ask for new
counsel, allowed Mendez-Lebron to withdraw, but warned the
defendant that he would not tolerate strategic refusals to
accept representation by particular counsel in order to delay
the trial. The court adjourned to permit the defendant an
opportunity to interview attorney Acevedo, and then
reconvened later the same day. The defendant reported that
Acevedo was unable to represent him, but that he had other
candidates in mind whom he wished to contact. One of those
candidates was attorney Jose Gaztambide.
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The court, observing that the trial date was
rapidly approaching, refused to give the defendant additional
time to interview all of his potential choices and instead
appointed Jose Gaztambide one of the attorneys specifically
identified by the defendant as someone he planned to contact
as defendant's counsel. As a further accommodation, the
court ordered that the defendant, who was at the time under
house arrest in Florida, be allowed to travel to Puerto Rico
to confer with Gaztambide in preparation for trial, and also
advised the defendant that he could, if he so chose, hire
another attorney as Gaztambide's co-counsel. The defendant
did not object to Gaztambide's appointment. The court also
accommodated the defendant and his new counsel by granting,
on the defendant's motion, a two-week continuance of trial.
The trial started on April 26, 1994, with Gaztambide acting
as defendant's counsel. At no time before or during trial
did the defendant advise the district court that he was
dissatisfied with Gaztambide's representation.
That a criminal defendant has an absolute right to
counsel "does not confer an absolute right to a particular
counsel." United States v. Poulack, 556 F.2d 83, 86 (1st
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Cir.), cert. denied, 434 U.S. 986 (1977); see also Wheat v.
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United States, 486 U.S. 153, 159 (1988) ("[T]he essential aim
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of the [Sixth] Amendment is to guarantee an effective
advocate for each criminal defendant rather than to ensure
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that a defendant will inexorably be represented by the lawyer
whom he prefers."); Morris v. Slappy, 461 U.S. 1, 13-14
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(1983) (Sixth Amendment does not guarantee that an accused
have a "meaningful relationship" with trial counsel); United
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States v. Betancourt-Arretuche, 933 F.2d 89, 93 (1st Cir.),
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cert. denied, 502 U.S. 959 (1991). A district court's
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decision not to permit substitution of trial counsel is given
deference and is reviewed only for abuse of discretion,
especially when that decision is based on legitimate trial
management concerns. See Poulack, 556 F.2d at 86 ("[T]he
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right of an accused to choose his own counsel cannot be
insisted upon in a manner that will obstruct reasonable and
orderly court procedure."); see also United States v. Pierce,
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60 F.3d 886, 890-91 (1st Cir. 1995), petition for cert.
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filed, 64 U.S.L.W. ____ (U.S. Oct. 19, 1995) (No. 95-6474).
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The appointment of Gaztambide as the defendant's
trial counsel did not constitute an abuse of discretion and
did not violate the defendant's Sixth Amendment rights. If
anything, the defendant was granted more choice than he was
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due. Cf. United States v. Allen, 789 F.2d 90, 92-93 (1st
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Cir.) (affirming denial for request for new appointed counsel
absent showing of good cause), cert. denied, 479 U.S. 846
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(1986). The district court gave the defendant the benefit of
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the doubt in allowing his original attorney to withdraw.3
When the defendant's first choice to replace that counsel
refused the representation, the district court was
understandably wary about the prospect of delaying trial in
order to permit the defendant to interview his entire slate
of alternate candidates. The court's decision simply to
appoint one of the counsel specifically identified as a
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candidate by the defendant himself was surely a permissible
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means of expediting the process and minimizing delay. Both
the public and the defendant have an interest in a prompt
trial in criminal cases, and the judge properly acted to
protect that interest.
A district judge's decision on a defendant's
request to substitute trial counsel is entitled to
"extraordinary deference" when granting the request would be
at the expense of the court's trial calendar. See Pierce, 60
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F.3d at 891; see also Morris, 461 U.S. at 11-12. Here, the
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district court's decision to permit the withdrawal of
original counsel and to appoint one of the alternate
candidates identified by the defendant himself (instead of
waiting for the defendant to interview each candidate and
make a decision on his own) reflected a fair balancing
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3. The defendant's stated reason was that the original
attorney was not his choice but had been selected by another
of his lawyers representing him in a different criminal
matter.
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between the defendant's interest in choosing his counsel and
the court's trial management needs. Cf. Poulack, 556 F.2d at
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86. That the defendant never objected to the appointment of
Gaztambide before or during trial makes the district court's
decision all the more impervious to the defendant's post-
conviction attacks.
B. The Prosecutor's Closing Argument
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Defendant argues that references made by the
government in its closing argument to the shootout in the
shopping center parking lot were improper and tainted his
right to a fair trial. He claims that those statements
encouraged the jury to convict him not on the basis of
firearms possession, but on the basis of uncharged conduct:
his participation in the shootout. This argument is
unpersuasive.
The defendant made no objection to the allegedly
improper statements during the closing argument, and so our
review is only for plain error. See United States v. DeMasi,
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40 F.3d 1306, 1322 (1st Cir. 1994), cert. denied sub nom.
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Bonasia v. United States, 115 S. Ct. 947 (1995). On the
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record before us, there was no such error.
In fact, there is no basis for concluding that the
prosecutor's statements were improper at all. Testimony by
prosecution witnesses concerning the shootout some of it
deliberately elicited by the defendant's own counsel on
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cross-examination was admitted at trial without objection
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by the defendant. The prosecutor's comments about the
incident were no more than proper references to that
evidence.
The defendant's complaint about the prosecution's
closing argument relies upon an unrealistic view of the
firearms charges. The prosecution was not limited, as
defendant would have it, to saying simply that the defendant
was found in a shopping mall parking lot, with firearms on
the ground nearby. Such utter elimination of context would
have unfairly handicapped the government's case, leaving it
unable to respond to the defendant's trial theory that the
law enforcement officer who first found him had planted the
weapons in the parking lot in order to frame him. The
government could provide the jury with a coherent story that
met this defense, and it committed no transgression by
commenting on the evidence admitted at trial.4 See United
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States v. Garcia, 818 F.2d 136, 144 (1st Cir. 1987).
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The prosecutor also explicitly asked the jury to
base its verdict on the elements of the firearms possession
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4. The defendant also seems to suggest that evidence of the
shootout constituted references to "other crimes"
inadmissible under Fed. R. Evid. 404(b). Because, however,
the "shootout" was integrally related to the evidence linking
the guns to the defendant (the possession charges), that
evidence could not have been barred by Rule 404(b). See
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United States v. David, 940 F.2d 722, 737 (1st Cir. 1991),
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cert. denied, 504 U.S. 955 (1992).
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charges, not on evidence of the shootout.5 The court gave
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instructions cautioning the jury that the defendant was not
charged with any offenses other than those detailed in the
indictment. There was no danger that the jury was prompted
by the government's argument to convict the defendant on the
basis of extraneous conduct.
Finally, the defendant claims that the prosecutor
impermissibly attempted to shift the burden of proof to the
defendant by making the following statement in his closing:
Ah, but the government has not
present[ed] evidence that these two
weapons came from Brazil. It's not
enough that we don't have manufacturers?
The government has to prove that it [h]as
traveled in interstate or foreign
commerce. We don't have to prove that
they were brought from Brazil. But it is
the government's burden to bring
evidence? Of course not.
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5. The defense criticized as extremely thin the government's
evidence that the defendant had ever fired any weapon in the
shopping center parking lot. In response, the prosecutor
commented:
And [defendant's counsel] has been talking about
firing, firing, firing, firing. Ladies and
gentlemen of the jury, this defendant is not charged
with firing a weapon. . . . [T]hat is irrelevant,
not because I said that, [but] because the judge is
going to instruct that on the law. [Sic] And if you
see [i]n that instruction that one of the elements
is firing, I'm going to request to all of you that
you bring a verdict of not guilty, if you heard that
instruction. But if you heard the instruction that
the government was to prove only possession of a
weapon as [you] are going to be instruct[ed] by the
judge, bring a verdict of guilty. [Paragraph
structure omitted.]
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The context of this statement makes it clear that it was not
improper. The statement was made in connection with a
discussion of the interstate or foreign commerce element of
the section 922(k) offense. It responded to the defendant's
suggestion that the government had produced no evidence that
the guns had been brought to Puerto Rico from Brazil. In
fact, one of the government's witnesses had testified that
the firearms' country of manufacture and the importer's
location could be determined by examining the identifying
markings engraved on weapons imported to this country. The
government's response to this criticism continued:
When you go, you examine you have to
examine this weapon to see the
obliterated serial number. The same
weapon says that the manufacturer is
located at Brazil. That is the best
evidence and that the importer is located
at Miami. What else [do] you need to
find out? No manufacturers in Puerto
Rico. Therefore, it ha[d] to come [from]
foreign commerce or [a] foreign country
or interstate.
The import of these statements was clearly that, because no
gun manufacturers exist in Puerto Rico, and because the
weapons themselves bore evidence that they had been
manufactured in Brazil and imported originally to Miami, the
government did not need to produce additional or more direct
evidence that the guns had been brought from Brazil in order
to prove the interstate or foreign commerce element of the
section 922(k) offense. The court's instructions to the jury
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as well as other portions of the government's own closing
made unmistakably clear that the burden rested solely upon
the government to prove the defendant's guilt, and each
element of the offenses with which he was charged, beyond a
reasonable doubt.
C. Sentencing Issues
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1. Criminal History Category
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The district court departed upward from a
Guidelines-directed criminal history category ("CHC") of II
to a CHC of IV, based on a finding that the former
classification did not adequately reflect the seriousness of
the defendant's criminal history. We affirm.
The specific grounds for the district court's CHC
departure were (1) that the defendant had engaged in prior
similar criminal conduct (including weapons offenses) that
had not resulted in conviction; and (2) that the defendant,
at the time he committed the federal offense, had been
released on bail pending trial on charges filed in the local
court, thus demonstrating a serious lack of respect for the
judicial system and a high risk of recidivism. These are
both encouraged grounds for upward departure under the
Guidelines. See U.S.S.G. 4A1.3(d) (Nov. 1994)6 (departure
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6. All citations to the Sentencing Guidelines are to the
November 1994 version, the version in effect at the time of
the defendant's December 1994 sentencing. See United States
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v. Aymelek, 926 F.2d 64, 66 n.1 (1st Cir. 1991) (district
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from Guidelines CHC may be considered where "the defendant
was pending trial or sentencing on another charge at the time
of the [offense of conviction]"); U.S.S.G. 4A1.3(e) (same,
where defendant engaged in "prior similar adult criminal
conduct not resulting in a criminal conviction"); see also
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United States v. Shrader, 56 F.3d 288, 292 (1st Cir. 1995)
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(noting appropriateness of "recidivist determination" to
departure decision); cf. generally United States v. Rivera,
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994 F.2d 942, 947-49 (1st Cir. 1993). Because the district
court's CHC departure was based on grounds specifically
provided for by the Guidelines, we defer to and find no error
in the district judge's determination that the circumstances
of the defendant's criminal history were understated by a CHC
of II. See Shrader, 56 F.3d at 292 (quoting Rivera, 994 F.2d
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at 951-52).
2. Guidelines Sentencing Range
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The district court departed upward from a
Guidelines sentencing range of 21 to 27 months (assuming a
CHC of IV), to impose concurrent sentences of 45 months on
each conviction. The upward departure was the equivalent of
an increase from a base offense level of 12 to a level of 17.
The departure was permissible.
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court should apply the version of the Guidelines in effect at
the time of sentencing, barring ex post facto problems).
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The defendant's suggestion that the district
court's departure decision was based on no more than a
dissatisfaction with the Guidelines sentencing range
mischaracterizes and is contradicted by the record. To be
sure, the district court did conclude that the sentencing
range was unsatisfactory that was why it entertained
departure in the first place. What is important is that, as
the court's lucid discussion at the sentencing hearing made
clear, its "dissatisfaction" was not based on some "personal
sense of inequity," United States v. Wogan, 938 F.2d 1446,
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1449 (1st Cir.) (quoting United States v. Norflett, 922 F.2d
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50, 54 (1st Cir. 1990)), cert. denied, 502 U.S. 669 (1991),
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but rather was explicitly premised on features of the case
that arecontemplated asgrounds fordeparture bythe Guidelines.
The defendant was sentenced under U.S.S.G. 2K2.1.
Application note 16 to that guideline specifically permits
upward departure where the defendant's underlying offense
conduct "posed a substantial risk of death or bodily injury
to multiple individuals." U.S.S.G. 2K2.1, comment. (n.16).
Here, the district court expressly found that the defendant
had discharged his two firearms in a congested shopping
center parking lot just before he was apprehended. Noting
that the incident occurred during the middle of the day, that
the defendant had run his car into another vehicle in the
parking lot, and that surrounding vehicles were riddled with
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bullet holes, the court concluded that the case was factually
"out of the heartland" of the applicable guideline and
therefore was an appropriate candidate for departure under
application note 16.
The grounds relied upon by the district court are
supported by the record and are specifically permitted as a
basis for departure in the commentary to section 2K2.1. The
district court's determination that this case falls outside
the heartland of cases encompassed by that guideline, as well
as the magnitude of the departure, were appropriate. See
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Rivera, 994 F.2d at 951-52.
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D. Constitutionality of 18 U.S.C. 922(k)
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Diaz-Martinez argues that this is a simple state
weapons case which Congress had no power under the
Constitution to federalize. The firearms possession statute
under which he was convicted, 18 U.S.C. 922(k), is
unconstitutional, he says, because it exceeds Congress' power
to legislate under the Commerce Clause, as interpreted in
United States v. Lopez, 115 S. Ct. 1624 (1995). We hold to
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the contrary. Whatever the reach of Lopez, it does not
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invalidate 18 U.S.C. 922(k).
In Lopez, the Supreme Court found significant that
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the statute at issue in that case, 18 U.S.C. 922(q),
"contain[ed] no jurisdictional element which would ensure,
through case-by-case inquiry, that the firearm possession in
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question affects interstate commerce." 115 S. Ct. at 1631.
In contrast, that jurisdictional element is present here.
The statute under which Diaz-Martinez was convicted contains
a specific requirement that the firearm with the obliterated
serial number have been "shipped or transported in interstate
or foreign commerce." 18 U.S.C. 922(k). Here there was
proof that the firearms were made in Brazil, imported
originally to Miami, and altered to remove the identifying
number in violation of federal law. Section 922(k) is
readily distinguishable from the provision that was
invalidated in Lopez, and its enactment did not exceed
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Congress' authority under the Commerce Clause.
III
The Section 2255 Petition
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The dispositive question for the defendant's
attempt to obtain relief under section 2255 on grounds of
ineffective assistance of counsel is whether the petition was
prematurely filed. Believing that it was, we affirm the
district court's order dismissing the petition without
prejudice.
The settled rule in this circuit, as the defendant
acknowledges, is that the district court should decline to
hear claims for relief based on allegedly ineffective
assistance of counsel until the direct appeal is decided,
unless "extraordinary circumstances" are demonstrated. See
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United States v. Buckley, 847 F.2d 991, 993 n.1 (1st Cir.
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1988), cert. denied, 488 U.S. 1015 (1989); United States v.
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Gordon, 634 F.2d 638, 638-39 (1st Cir. 1990) ("[I]n the
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absence of extraordinary circumstances, the orderly
administration of criminal justice precludes a district court
from considering a 2255 motion while review of the direct
appeal is still pending . . . ." (internal quotation marks
and citations omitted)). The district court explicitly found
that "extraordinary circumstances" did not exist warranting
consideration of the defendant's section 2255 petition during
the pendency in this court of the defendant's direct appeal.
The court thus dismissed the petition, without prejudice.
There is no basis for second guessing the district
court's finding of an absence of "extraordinary
circumstances." Because the record necessary for a
determination of the ineffective assistance claim has not yet
been factually developed, we decline to consider the issue at
this time, preferring that the district court evaluate the
claim in the first instance. See United States v. Natanel,
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938 F.2d 302, 309 (1st Cir. 1991), cert. denied, 502 U.S.
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1079 (1992); United States v. Hunnewell, 891 F.2d 955, 956
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(1st Cir. 1989). The government concedes that the petition
may be refiled in the district court upon resolution of this
appeal.
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Affirmed.
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