Gonzalez-Soberal v. U.S.

• Decision Date: 13 November 2000
• Docket Number: No. 99-1811,P,LEZ-SOBERA,99-1811
• Citation: 244 F.3d 273
• Parties: (1st Cir. 2001) MANUEL GONZetitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 273

244 F.3d 273 (1st Cir. 2001)

MANUEL GONZ LEZ-SOBERAL, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee.

No. 99-1811

United States Court of Appeals For the First Circuit

Heard November 13, 2000

Decided April 5, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge] Rafael F. Castro-Lang, was on brief, for appellant.

Thomas F. Klumper, Assistant U.S. Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant U.S. Attorney, were on brief, for appellee.

Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.

TORRUELLA, Chief Judge.

Appellant Manuel Gonzalez-Soberal was tried before a jury and convicted of conspiracy to possess with intent to distribute multiple kilograms of cocaine as well as distribution of eight, nineteen, and twenty-nine kilograms of cocaine on three occasions. The government's case against Gonzalez rested entirely on the testimony of two cooperating witnesses, William Negron Zapata and Willy Maya Acosta.

Gonzalez brings this appeal challenging the denial of a writ of habeas corpus pursuant to 28 U.S.C. §a2255. His primary claim is that his trial counsel provided ineffective assistance of counsel by failing to use two pieces of documentary evidence with which to impeach the government's chief witnesses, Negron and Maya.¹ We vacate the denial of the writ and remand for further consideration of this issue by the district court.

Background

In October 1994, pursuant to a cooperation agreement, Negron provided evidence against five individuals in a trial for conspiracy to distribute and distribution of cocaine. All five defendants were convicted. Maya, one of the co-defendants, began cooperating with the government around the time of his sentencing. Maya provided the government with Gonzalez's name and identified him as the sixth indicted co-conspirator, who up to that point had been known only as John Doe, a.k.a. "Raul". This identification ultimately led to Gonzalez's arrest in January 1995.

The government's case against Gonzalez rested wholly on the testimony of cooperating witnesses Maya and Negron. Both Maya and Negron alleged that their introductions to and interactions with Gonzalez revolved around five cocaine transactions taking place in October of 1991. From the record, we summarize the substance of their respective testimonies.

Maya testified to having met Gonzalez for the first time on July 25, 1990. On that date, Maya claims to have been approached by a man and a woman while he was in the process of tying his boat up to the pier in the Boqueron bay area. At the trial, Maya identified this man as Gonzalez. Small talk was made, and the two men went for a ride in Maya's boat, at which point the man asked Maya whether he knew of any fisherman in the area who had found bales of cocaine or marijuana. Maya replied that he "hadn't been that lucky." The man continued that he would be interested in purchasing any bales that became available and that he would pay Maya a $1,000 commission for any such sales that Maya could arrange. After they returned to the pier, the man wrote down his home and cellular phone numbers for Maya and asked him to call if he was able to provide any cocaine or marijuana.

Maya was introduced to Negron at a family gathering in March 1991. The introduction ultimately resulted in arrangements being made to facilitate cocaine sales from Negron to Maya. The first two transactions were an exchange of seven and eighteen kilograms of cocaine between Negron and Maya at a price of $10,000 per kilo. The money for the cocaine was allegedly provided by Gonzalez, with Maya acting as the go-between in exchange for his $1,000 commission per sale.

For the third transaction, Maya testified that Gonzalez arrived at Maya's house with his wife and daughter in a red Toyota station wagon (or hatchback). Maya invited Gonzalez to accompany him to meet Negron. Maya allegedly told Gonzalez not to reveal his real name, but to introduce himself as "Raul". The two met Negron, exchanged the money for the cocaine, and returned to Maya's house, where Gonzalez remained for approximately one hour before leaving.

Gonzalez went with Maya to meet Negron for both the fourth and fifth cocaine transactions. During the fifth exchange, Maya was called away to drive a family member to the airport. Maya instructed Gonzalez to wait for Negron's call (at Maya's house), which he did. Gonzalez then went to meet Negron to pick up the cocaine without Maya. Finally, Maya testified that he and his family had visited Gonzalez at Gonzalez's home during 1992 and 1993.

The trial transcript reveals that Negron corroborated Maya's story as to their introduction and as to the details of the five October cocaine transactions. Negron testified that, at the third meeting, Maya was accompanied by an individual whom Maya introduced to Negron as "Raul", one of his "friends from San Juan." At trial, Negron identified Gonzalez as the person Maya had introduced to him. Negron stated that Gonzalez (known to him as "Raul") accompanied Maya for the fourth and fifth exchanges as well. When he returned with the drugs on the fifth date, only "Raul" and an unidentified woman were there to meet him. "Raul" allegedly explained Maya's absence by saying that he had been called away on a family matter. Negron also testified that "Raul" had arrived at the transaction site in a burgundy Toyota station wagon.

Gonzalez's trial counsel cross-examined both Maya and Negron in several areas. In cross-examining Maya, Gonzalez's attorney questioned him about his agreement to testify and the fact that his sentence might be reduced as a result of his cooperation. Maya also admitted that he had heard Negron's testimony prior to testifying himself.² During Negron's cross-examination, Gonzalez's trial counsel asked him about his prior criminal activities and about the benefits he was receiving from the government in exchange for his testimony.

In addition, Gonzalez's trial counsel elicited the inconsistency between Negron's testimony that "Raul" had accompanied Maya to the third cocaine transaction and his failure to mention "Raul"'s presence at this sale in his 92-page statement written in connection with his cooperation agreement. Negron admitted that no encounters that he had with "Raul" lasted longer than three minutes. Finally, Negron had suggested to agents at one point in the investigation that the "Raul" in question was a person named Raul Tiburon.³

As for Gonzalez's case-in-chief, one of the government agents, Hector Ortiz-Rodriguez, was called to testify. A man by the name of Raul Tiburon was initially arrested, but released after Negron failed to identify him. Later, agents, seeking to arrest Gonzalez, mistakenly arrested his brother.⁴ Ortiz was likely called to testify about these two prior arrests in order to suggest that the government was not sure that they had the right person.

Gonzalez also took the stand in his own defense. He testified that he owned a brown Ford pickup, not a red or burgundy Toyota station wagon. He stated that he lived in Hato Rey, not San Juan, and that he had never traveled to the Boqueron area of Puerto Rico during 1990 or 1991. Under cross-examination, he stated that he had never seen Negron or Maya before and that he did not know them.

Gonzalez was convicted based on Maya's and Negron's testimony on May 23, 1995 and subsequently sentenced to 188-month imprisonment. His trial counsel then withdrew from the case, and a new attorney represented him in the direct appeal of his conviction, United States v. Gonzalez-Soberal, 109 F.3d 868 (1st Cir. 1997) (affirming), and represents him in this §a2255 appeal.

Gonzalez's appellate counsel purports to have discovered two pieces of documentary evidence that could have been used to impeach Negron and Maya. The first document is a letter written by Negron⁵ to someone named Jorge. The main thrust of the letter is aimed at assuring Jorge that, although Negron is cooperating with the government, he does not intend to implicate Jorge in any criminal activity. The letter (translated from Spanish) states, in part:

Jorge I have not yet been sentenced because the federals interviewed me and I went and spoke to them and told them with all the persons I had dealt and they told me that if I cooperated with them they could get me less years and I am telling you but do not tell anyone what is important is that nothing will happen to you you are like a brother to me and I am not going to tell anything that will harm you. Jorge please don't tell anyone for I may be screwed. What I am telling you do not tell anyone, keep it to yourself please. Of those I dealt with the ones that are going are: Perry, Papito, Elton, Pto. Real, Tito Morgan, Cucho, Alejandro, Boliche, Ram and Chamchi of the Parguera.

The letter, according to Gonzalez, should have been used to show that Negron, despite his agreement to be honest and to reveal everything that he knew, had not been entirely truthful with the government agents. From this act of withholding information, the jury could infer that Negron might be willing to be dishonest in other regards. The letter, therefore, could have had a detrimental effect on Negron's credibility.

Gonzalez also contests his trial counsel's failure to impeach Maya with a psychodiagnostic report that suggested that Maya had a below-normal capacity to distinguish truth from fiction. In 1994, a psychological evaluation was performed on Maya to determine whether a diminished capacity defense was appropriate for his trial. The results of the evaluation found that Maya suffered from Attention Deficit Disorder with hyperactivity, the long-term effects of which included an "[in]ability to perceive reality without distortion"⁶ and a tendency to "bend reality to avoid dealing with perceived or anticipated harshness in...