899 F.2d 99 (1st Cir. 1990), 87-1876, United States v. Caggiano

Docket Nº:87-1876.
Citation:899 F.2d 99
Party Name:UNITED STATES, Appellee, v. Allen J. CAGGIANO, Defendant, Appellant.
Case Date:March 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 99

899 F.2d 99 (1st Cir. 1990)

UNITED STATES, Appellee,

v.

Allen J. CAGGIANO, Defendant, Appellant.

No. 87-1876.

United States Court of Appeals, First Circuit

March 26, 1990

Heard Jan. 8, 1990.

Page 100

Arza Rayches Feldman, with whom Feldman and Feldman, was on brief for appellant.

Stephen Higginson, Asst. U.S. Atty., Washington, D.C., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for the U.S.

Before BREYER, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendant-appellant Allen Caggiano appeals his jury trial convictions on five counts of violating federal firearms laws under different parts of 18 U.S.C. Sec. 922 and 18 U.S.C. App. II Sec. 1202. The issue on appeal is whether his attorney rendered ineffective assistance because he withdrew motions to suppress the firearms that were the grounds for defendant's convictions. We reject the ineffective assistance of counsel claim.

I. APPELLATE JURISDICTION

As a preliminary matter, we rule that this appeal is properly before us. Most ineffective assistance claims arise after the completion of trial and require an independent factual inquiry into the merits of the claim. The proper route for such claims is through a collateral proceeding in district court pursuant to 28 U.S.C. Sec. 2255 (1982) so proper factual determinations can be made. See United States v. Hoyos-Medina, 878 F.2d 21 (1st Cir.1989); United States v. Carter, 815 F.2d 827, 829 (1st Cir.1989). In the case before us, however, the defendant's ineffective assistance claim is confined to matters found in the trial record and in an affidavit submitted by his trial attorney explaining the withdrawal of the suppression motions. Since there is no need for additional fact finding, the issue is properly before us on direct appeal. See Brien v. United States, 695 F.2d 10, 13 (1st Cir.1982) (stating that "[w]hile some ineffective assistance claims might be capable of presentation solely on the record of the criminal trial itself, most such claims require the independent development of evidence outside of, and collateral to, the criminal proceeding"). This is an ineffective assistance claim that can be decided on the record before the court without further fact finding.

II. THE FACTS

Defendant was arrested and indicted pursuant to the execution of two search warrants. The issuance of both warrants was based on the affidavits of Detective Washek of the Brockton Massachusetts Police Department. In the affidavit for the first warrant, Washek stated that his information came from an informant who had supplied information in the past that had resulted in several drug-related arrests. The affidavit contained the following information: Defendant, known to the informant as "Al," was distributing cocaine from his apartment at 14 Tremont Street, Brockton. The other occupants of the apartment were named. The informant had visited the apartment between July 2 and July 7, 1986. On three different occasions, the informant saw persons come into the apartment, hand cash to Al and receive in exchange glassine bags of white powder. Al told the informant on July 7 that the bags contained "pure coke." Washek stated in his affidavit that the informant was a former "user" and familiar with the way drugs are packaged and the terminology of the drug trade.

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The informant told Washek that there were guns in "Al's" apartment. On the basis of this, Washek asked for and was issued a "no knock" warrant. The warrant authorized the police to enter defendant's apartment and search for cocaine and drug-related paraphernalia. It did not list guns as items sought.

The warrant was executed on the day it was issued, July 7, 1986, by Washek and five other Brockton police officers. Three bags of white powder and drug paraphernalia were seized. In searching defendant's apartment the police also found and seized two shotguns, three boxes of shotgun shells, four boxes of 9 millimeter rifle ammunition, a manual for an Uzi semiautomatic rifle and a barrel for the Uzi. The shotguns were in a closet that opened into the kitchen. The ammunition was on a kitchen shelf and the manual and Uzi barrel were in a suspended ceiling of an office next to the kitchen.

The second warrant was obtained and executed on November 22, 1986. In the affidavit Washek also relied on an informant for his information. The credentials of the informant were practically identical to those given by Washek for the informant in the affidavit for the first warrant...

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