U.S. v. Hunnewell, 89-1177

• Citation: 891 F.2d 955
• Decision Date: 07 November 1989
• Docket Number: No. 89-1177,89-1177
• Parties: UNITED STATES of America, Appellee, v. Dale Scott HUNNEWELL, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 955

891 F.2d 955

UNITED STATES of America, Appellee, v. Dale Scott HUNNEWELL, Defendant, Appellant.

No. 89-1177.

United States Court of Appeals First Circuit.

Heard Nov. 7, 1989.

Decided Dec. 14, 1989.

Steven A. Feldman, New York City, with whom Feldman and Feldman was on brief, for defendant, appellant.

Jonathan R. Chapman, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., were on brief, for U.S.

Before BOWNES, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Dale Scott Hunnewell was indicted for, and convicted of, drug trafficking offenses. See 21 U.S.C. §§ 841(a)(1); 841(b)(1)(C); 18 U.S.C. § 2. His appellate counsel looses a torrent comprising eight thundersqualls of assigned error. We find the downpour insufficient to wash out the convictions.

I

As to six of the cloudbursts, we can swiftly clear the air. First, Hunnewell's assertion that he was deprived of proficient representation below is premature at best. The rule in this circuit is that a fact-specific claim of ineffective legal assistance cannot be raised initially on direct review of a criminal conviction, but must originally be presented to the district court. United States v. Costa, 890 F.2d 480, 482-83, (1st Cir.1989); United States v. Carter, 815 F.2d 827, 829 (1st Cir.1987); United States v. Kobrosky, 711 F.2d 449, 457 (1st Cir.1983). In this case, the claim was not pressed below and the record is too exiguous to permit us to make an informed judgment on it. We therefore reject it as unripe. ¹

Of the remaining seven arguments, five strike us as having evaporated under the hot glare of procedural default. We discuss them in the ensemble, seeing little to be gained by exegetic narration of the underlying facts and/or legal theories. We then proceed to the nondefaulted claims, erecting needed factual scaffolds in the context of our discussion of particular issues.

II

Hunnewell contends that the prosecutor's closing argument impermissibly injected personal opinion into the case; and that four different kinds of errors were committed in regard to the admission of evidence and examination of witnesses. But, in none of these instances was a timely objection proffered. In United States v. Griffin, 818 F.2d 97 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987), we dealt with a very similar situation:

The governing precepts are straightforward and unambiguous. In general, error may not be predicated upon rulings admitting or excluding evidence, Fed.R.Evid. 103 ... unless the party putatively aggrieved makes his complaint known to the trial court in due season, thus preserving his rights.... If a party shirks this duty ... he forfeits much of his opportunity thereafter to complain about ensuing mistakes. Such points can be reviewed on appeal only for the existence of what courts have come to term "plain error."

Id. at 99-100. Griffin applied the same principle to a claim, not the subject of a contemporaneous objection, that the prosecutor's summation went too far. See id. at 99 n. 1. See also United States v. Mejia-Lozano, 829 F.2d 268, 272 (1st Cir.1987).

The plain error hurdle is high. See, e.g., United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985) (plain errors are limited to those which "undermine the fundamental fairness of the trial"); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936) (plain errors are restricted to those which "are obvious, or ... seriously affect the fairness, integrity or public reputation of judicial proceedings"). It follows, unsurprisingly, that the plain error exception is to be used "sparingly," only to prevent justice from miscarrying. United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982). Inasmuch as plain error "gives a defendant a free second bite at the cherry, [it] is to be narrowly limited." United States v. Rivera, 872 F.2d 507, 509 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 71, 107 L.Ed.2d 38 (1989).

When we evaluate appellant's procedurally defaulted claims against so rigorous a standard, they cannot pass muster. The parts of the prosecutor's summation which appellant assails (e.g., "[Hunnewell] got caught red-handed;" "in this case ... the evidence points to Dale Hunnewell") seem to us to comprise unexceptionable statements of fact rather than forbidden expressions of personal belief. That these remarks may have displeased Hunnewell is beside the point; a prosecuting attorney must refrain from striking foul blows, but he can nevertheless strike forceful ones. The prosecutor need not wrap every word in a soft cloak of antiseptic neutrality.

The evidentiary rulings, by and large, seem likewise within the pale. We see no profit in rehearsing the details. The areas of dispute are pedestrian and peripheral, not portentous and pivotal. Without exception, the assigned errors involve, at worst, the "ordinary backfires ... which may mar a trial record," rather than the "blockbusters" needed to overcome the lack of contemporaneous objections. See Griffin, 818 F.2d at 100. Moreover, having examined each of the challenged rulings in context, we are hard pressed to fault the presider; the determinations seem likely correct (or at least, within the trier's discretion). We have grave difficulty spying even a sprinkling of error--let alone error so teeming as to be termed "plain."

In fine, there is nothing in the summation or in the district court's evidentiary rulings which supports the notion that the claimed shortcomings, singly or in combination, "seriously affect[ed] the fundamental fairness and basic integrity of the proceedings conducted below." Id. Plain error being plainly absent, our consideration of these initiatives terminates.

III

We pass next to defendant's principal ground of appeal, a multifaceted grievance which implicates compliance vel non with the Interstate Agreement on Detainers (IAD), 18 U.S.C. App. pp. 585-91. Although the IAD initiative was properly preserved for appellate scrutiny, we find it unmeritorious in its several permutations.

Many of the pertinent facts are undisputed. The last month of 1987 was eventful for Hunnewell. On December 11, he was found guilty of drug trafficking in Maine Superior Court, sentenced to a 10-year prison term, and released on bail pending appeal. On December 16, he was indicted by a state grand jury on neoteric trafficking charges. A day later, a federal grand jury handed up the instant indictment. On December 19, a state judge revoked bail, and Hunnewell was taken into state custody. After a brief, temporary detention at the Cumberland County Jail (CCJ), state authorities moved him to the Maine State Prison in Thomaston (MSP-Thomaston). He began serving his 10-year sentence there. Subsequently, the United States Attorney lodged a detainer and request for temporary custody pursuant to the IAD.

On February 19, 1988, the warden of MSP-Thomaston turned Hunnewell over to federal marshals, acting in furtherance of the detainer. ² The marshals brought the defendant to federal district court, Portland, on the same day. After arraignment, the district court remanded Hunnewell to the marshals' custody. Because Maine has no federal prison, and Hunnewell was subject to pretrial detention, his trial counsel asked that he be housed at CCJ (a facility located hard by the federal courthouse). The government objected, citing inter alia security considerations. The district court refused to order that Hunnewell be held at CCJ, and the marshals returned him to MSP-Thomaston that very day.

Apart from federal court appearances, Hunnewell remained at MSP-Thomaston until he was sentenced on the federal charges. There was, however, one exception: on March 18, 1988, he was transported by county sheriffs, acting under a state writ of habeas corpus, to superior court for arraignment on a new state charge of trafficking in prison contraband (a charge which grew out of defendant's ongoing incarceration at MSP-Thomaston). Because counsel failed to appear, the arraignment was adjourned and, apparently, not rescheduled during the interval with which we are concerned.

A

Appellant filed a pretrial motion to dismiss the federal indictment, contending that, even after February 19, he was held at MSP-Thomaston in state, not federal, custody, thus violating the IAD and requiring that the federal indictment be dismissed with prejudice. ³ In Hunnewell's view, that he remained at MSP-Thomaston, and was taken so easily by county sheriffs on March 18 for a nonfederal purpose, proved his point. The government argued to the contrary, adverting to (1) the practice, commonplace in Maine, of housing federal pretrial detainees at state correctional facilities, (2) the district judge's unambiguous order remanding the prisoner to federal safekeeping, and (3) a letter from the United States Attorney to the warden (dated February 25) confirming that Hunnewell was being held in the marshals' custody while at MSP-Thomaston.

After an evidentiary hearing, the district court filed a rescript denying the motion. Noting that the United States Marshals' Service paid board for Hunnewell at MSP-Thomaston from February 19 forward, the court found that Hunnewell "was not returned to state custody when he went back to Thomaston; following the February 19 arraignment, he remained in federal custody while at the State Prison." Given the evidence of record, we believe the finding to be well supported. We must accept it.

The finding, in turn, draws the grease from the goose. The IAD was designed to achieve two interrelated ends: (1) to dispel the miasma of uncertainty enveloping persons already incarcerated when untried charges hovered over them; and (2) to inhibit the retardation of a prisoner's institutional care and rehabilitation which all too often arises when he is...