71 F.3d 946 (1st Cir. 1995), 95-1083, United States v. Diaz-Martinez

Docket Nº:95-1083, 95-1536.
Citation:71 F.3d 946
Party Name:UNITED STATES of America, Appellee, v. Edwin DIAZ-MARTINEZ, a/k/a Alexis El Boxeador, Defendant, Appellant. Edwin DIAZ-MARTINEZ, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
Case Date:December 13, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 946

71 F.3d 946 (1st Cir. 1995)

UNITED STATES of America, Appellee,

v.

Edwin DIAZ-MARTINEZ, a/k/a Alexis El Boxeador, Defendant, Appellant.

Edwin DIAZ-MARTINEZ, Petitioner, Appellant,

v.

UNITED STATES of America, Respondent, Appellee.

Nos. 95-1083, 95-1536.

United States Court of Appeals, First Circuit

December 13, 1995

Heard Nov. 7, 1995.

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[Copyrighted Material Omitted]

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James Kousouros, Kew Gardens, NY, with whom Debra K. Kousouros, White Plains, NY, were on brief, for appellant.

Edwin O. Vazquez, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation Counsel, were on brief, for the United States.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Following a shootout near 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. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). We reject his claims and affirm.

I

Factual Background

The sounds of gunfire and a man 1 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.

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 on February 9, 1994, charging two counts of knowing possession of firearms bearing obliterated serial numbers that had been transported in foreign and interstate

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commerce in violation of 18 U.S.C. Sec. 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. Sec. 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

  1. Sixth Amendment Right to Counsel Claim

    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.

    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.

    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...

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