215 F.3d 1312 (1st Cir. 2000), 98-1750, U.S. v. Hernandez Garcia

Docket Nº:98-1750.
Citation:215 F.3d 1312
Party Name:UNITED STATES, Appellee, v. Giovany HERNANDEZ-GARCIA, a/k/a Vani, a/k/a Bani, Defendant, Appellant.
Case Date:February 15, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1312

215 F.3d 1312 (1st Cir. 2000)

UNITED STATES, Appellee,

v.

Giovany HERNANDEZ-GARCIA, a/k/a Vani, a/k/a Bani, Defendant, Appellant.

No. 98-1750.

United States Court of Appeals, First Circuit

February 15, 2000

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA1 Rule 36 regarding use of unpublished opinions)

Defendant was convicted in the United States District Court for the District of Puerto Rico, Salvador E. Casellas, J., of conspiracy to distribute more than five kilograms of cocaine. Defendant appealed. The Court of Appeals, Wallace, J., held that: (1) defendant's ineffective assistance of counsel claim could not be addressed on appeal; (2) tape recorded evidence admitted against defendant during his trial was properly authenticated; (3) evidence was sufficient to support defendant's conviction for conspiracy to distribute more than five kilograms of cocaine; and (4) defendant failed to preserve for appellate review his claim that the district court erred when it calculated his sentence range.

Affirmed.

[1] Criminal Law 1119(1)

110 ----

110XXIV Review

110XXIV(G) Record and Proceedings Not in Record

110XXIV(G)15 Questions Presented for Review

110k1113 Questions Presented for Review

110k1119 Conduct of Trial in General

110k1119(1) In General.

[See headnote text below]

[1] Criminal Law 1440(2)

110 ----

110XXX Post-Conviction Relief

110XXX(A) In General

110k1435 Consideration Despite Waiver or Other Bar

110k1440 Counsel

110k1440(2) Preferability of Raising Effectiveness Issue on Post-Conviction Motion.

Defendant's ineffective assistance of counsel claim, based upon alleged conflict of interest, could not be addressed on appeal, where defendant failed to sufficiently develop the evidentiary record, instead making the claim appropriate for a habeas corpus petition. 28 U.S.C.A. §2255.

[2] Criminal Law 1119(1)

110 ----

110XXIV Review

110XXIV(G) Record and Proceedings Not in Record

110XXIV(G)15 Questions Presented for Review

110k1113 Questions Presented for Review

110k1119 Conduct of Trial in General

110k1119(1) In General.

[See headnote text below]

[2] Criminal Law 1440(2)

110 ----

110XXX Post-Conviction Relief

110XXX(A) In General

110k1435 Consideration Despite Waiver or Other Bar

110k1440 Counsel

110k1440(2) Preferability of Raising Effectiveness Issue on Post-Conviction Motion.

Ineffective assistance of counsel claims will not be entertained on direct appeal absent a sufficiently developed evidentiary record; instead, a collateral habeas corpus proceeding is the appropriate vehicle for such an ineffective-assistance claim. 28 U.S.C.A. §2255.

[3] Criminal Law 444

110 ----

110XVII Evidence

110XVII(P) Documentary Evidence

110k444 Authentication of Documents.

Tape recorded evidence admitted against defendant during his trial for conspiracy to distribute cocaine was properly authenticated, when a special agent and a government witness both identified defendant as the voice on the tape, even though the special agent later said he couldn't be sure that the voice was that of defendant but he assumed it was since the speaker identified himself as "Vani", the defendant's alias. Rules of Evid., Rule 901.

[4] Criminal Law 1153(1)

110 ----

110XXIV Review

110XXIV(N) Discretion of Lower Court

110k1153 Reception of Evidence

110k1153(1) In General.

The Court of Appeals reviews the admission of tape recorded evidence for abuse of discretion. Rules of Evid., Rule 901.

[5] Criminal Law 386

110 ----

110XVII Evidence

110XVII(I) Competency in General

110k386 Nature and Source of Evidence.

Before certain voice evidence is admissible, it must be authenticated. Rules of Evid., Rule 901(a),(b)(15).

[6] Criminal Law 444

110 ----

110XVII Evidence

110XVII(P) Documentary Evidence

110k444 Authentication of Documents.

The burden of authentication does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be; rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood. Rules of Evid., Rule 901.

[7] Criminal Law 444

110 ----

110XVII Evidence

110XVII(P) Documentary Evidence

110k444 Authentication of Documents.

Circumstantial evidence, either alone or in conjunction with direct evidence, is admissible for authentication purposes. Rules of Evid., Rule 901.

[8] Conspiracy 47(12)

91 ----

91II Criminal Responsibility

91II(B) Prosecution

91k44 Evidence

91k47 Weight and Sufficiency

91k47(3) Particular Conspiracies

91k47(12) Narcotics and Dangerous Drugs.

Evidence that a government witness saw defendant give a bag full of money to the head of the conspiracy, that jury heard audiotapes of defendant conversing with head of conspiracy concerning drug trafficking, that jury saw photograph of defendant with head of conspiracy, and that during wiretap of head of conspiracy's beeper it received 192 messages from defendant, was sufficient to support defendant's conviction for conspiracy to distribute cocaine.

...

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