909 F.2d 561 (1st Cir. 1990), 89-2107, United States v. Lema

Docket Nº:89-2107.
Citation:909 F.2d 561
Party Name:UNITED STATES, Appellee, v. Charles Donald LEMA, Defendant, Appellant.
Case Date:July 18, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 561

909 F.2d 561 (1st Cir. 1990)

UNITED STATES, Appellee,

v.

Charles Donald LEMA, Defendant, Appellant.

No. 89-2107.

United States Court of Appeals, First Circuit

July 18, 1990

Heard June 5, 1990.

Page 562

Thomas J. Connolly, Portland, Me., for appellant.

Charles D. Lema, on brief pro se.

F. Mark Terison, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., was on brief for appellee.

Before CAMPBELL and SELYA, Circuit Judges and COFFIN, Senior Circuit Judge.

COFFIN, Senior Circuit Judge.

Charles Donald Lema appeals his convictions for aiding and abetting the possession with intent to distribute over 500 grams of cocaine, and for conspiracy to do so. His appointed counsel has raised a single issue on review: whether the evidence was sufficient as a matter of law to find that Lema aided and abetted. In addition, Lema has filed a pro se brief in which he argues that the district court erred by denying his motions for new trial and judgment of acquittal based on ineffective assistance of counsel and prosecutorial misconduct. We affirm both the convictions and the denials of the motions.

FACTS

Alex Hood, Jr., a cocaine dealer since 1985, began to cooperate with the Drug

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Enforcement Administration (DEA) in approximately October 1988 in connection with a plea agreement. Hood told DEA agents that he had been supplied drugs by Raymond Souza, Jr. on occasions between February 1987 and April or May 1988. In cooperation with the government, Hood arranged to purchase a kilogram of cocaine from Souza on December 15, 1988.

Hood and Souza agreed to meet at a liquor store in New Hampshire to complete the transaction. Prior to the meeting, Hood was fitted with a transmitter by government agents so that the discussions could be recorded. When Hood arrived, Souza was waiting for him in the parking lot in a red truck. The defendant, Lema, was a passenger in that truck. A Chevrolet Nova was parked nearby in which two other individuals waited. Souza got out of the truck and approached Hood. Lema remained in the truck. Hood informed Souza that the purchaser of the cocaine refused to take his money out of Maine and that the transaction therefore needed to be completed in Kittery, Maine.

Souza objected strenuously to this change of plan. He walked over to the truck and appeared to have conversation with Lema. He then went over to the Nova and again appeared to have conversation. After these discussions, he returned to Hood and agreed to follow Hood to Kittery. Hood drove his own vehicle to Maine, followed by Souza and Lema in the truck. The occupants of the Nova did not follow. The parties proceeded to Valle's Charterhouse restaurant and motel in Kittery.

In the parking lot at Valle's, the exchange was completed. Hood removed a bag of money from the trunk of a red Firebird parked nearby. He handed it to Souza. He testified that Souza passed the bag to Lema, asking, "Is it all here?" Lema reportedly replied, "It looks like it." Souza then passed the cocaine, which was inside a McDonald's Happy Holidays bag, to Hood. Souza said to Lema, "Let's get out of here. I'm nervous." Lema responded, "Let's get the ---- out of here." Souza and Lema drove away. Tests revealed that the bag contained 1005 grams of 95% pure cocaine.

Souza contacted Hood later that night and expressed interest in another transaction. Negotiations ensued over the next few weeks for the purchase of ten kilograms of cocaine. During this time, Hood introduced Souza to Michael Bansmer, a DEA agent who was posing as a buyer. Souza was ultimately unable to deliver ten kilograms, and agreed to sell three. Arrangements were made to deliver the drugs, again at Valle's, on January 25, 1989.

During these negotiations, Lema never was mentioned or present. On January 25, however, Lema again was a passenger in Souza's truck. This time, the Chevrolet Nova also was present in Kittery, driven by Alberto Leon Monsalve-Zapata. Once again, Hood was fitted with a transmitter. When Hood and Bansmer arrived, Souza, Lema and Monsalve-Zapata were inside the restaurant. Souza met Hood and Bansmer near the door. Lema and Monsalve-Zapata were near the souvenir counter, some five to ten feet away.

Souza informed Hood and Bansmer that the drugs were in the car that Monsalve-Zapata had driven. The evidence was somewhat conflicting, but, taken in the light most favorable to the government, Souza also apparently told Monsalve-Zapata to get the cocaine while Lema was standing nearby. Monsalve-Zapata left the restaurant. Shortly thereafter, the others left the restaurant, Hood and Bansmer first, followed by Souza and then Lema.

Hood and Bansmer drove around the side of the motel to the room they had rented for completion of the sale. As they went, they observed Souza, Lema and Monsalve-Zapata standing together near the truck and car, which were parked on the side of the building and not visible from the restaurant foyer. Hood and Bansmer told Souza to meet them at the room, and gave them the number. Shortly after Hood and Bansmer reached the hotel room, Souza and Lema drove up in the truck. Bansmer, watching from the window, saw the truck pull up, and, together with Hood, went

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outside to meet Souza and Lema. Bansmer asked if Souza had "the package." Souza said that he had it in the truck. When Bansmer asked to see it, Souza asked Lema to pass it out. Lema handed Souza an opaque plastic shopping bag from a retail clothing store. Souza in turn gave the bag to Bansmer and Hood.

Hood carried the bag into the motel room. Bansmer and Souza followed, while Lema remained in the truck. After "flash testing" 1 the cocaine, Bansmer asked Souza how much money was owed. After receiving an answer, Bansmer indicated that he had to go to a different motel room to get the money. He took the cocaine next door, where the surveillance team was waiting. Government agents then entered the room where Souza was waiting and arrested him. Lema was arrested in the parking lot.

The government presented this evidence via testimony from informant Hood and agents Bansmer and Lear, the agent in charge of the operation. Defendant called DEA agent Bradford as his only witness, and the questioning was directed at the inexpertness of government surveillance at the New Hampshire liquor store location. No transcripts or tapes of the transactions were presented to the jury to corroborate the testimony of government witnesses, though the tapes were the subject of extensive cross-examination. At the end of the government's case and again at the close of the evidence, Lema moved for a judgment of acquittal. The motion was denied. The jury returned a verdict against Lema on all counts on August 9, 1989.

MOTION FOR NEW TRIAL

Rule 33 allows the district court, on motion of a party and in the interest of justice, to grant a new trial. A new trial motion must be made within seven days after a verdict or finding of guilty unless "based on the ground of newly discovered evidence," in which case it may be made within two years after final judgment. Fed.R.Crim.P. 33.

On September 13, 1989, over a month after the verdict, Lema filed a series of pro se motions, among them a motion for new trial based on the ineffective assistance of counsel. At that time, he filed no memorandum in support of his motion. The motion was somewhat confusing, but asserted two specific failures of his counsel. First, he claimed that his trial counsel was aware of notes in the file of a co-defendant's attorney that stated that Lema "kn[e]w nothing about what was going on at the time of the arrest and he never handed a package to any agents on the day in question." Second, he argued that the failure to call this attorney as a witness amounted to ineffective assistance of counsel.

Without holding an evidentiary hearing or reaching the merits, the district court denied the motion for new trial on October 25, ruling that it lacked jurisdiction to consider the motion because a claim of ineffective assistance of counsel was not newly discovered under the rule when the facts underlying the claim were known to the defendant at the time of trial; the motion therefore had to be filed within seven days of the verdict. The court also found that the defendant had not shown that the alleged failures of counsel, i.e., the failures to pursue or call a potential witness, were in fact newly discovered despite due diligence. For both reasons, the court held that the motion was time-barred.

Three weeks after this decision, on November 14, 1989, the defendant filed two memoranda. The first was entitled "Memorandum of Law in Support of motion for new trial and new appointment of Counsel. Rule 33, FCP. [sic] For ineffective assistance of Counsel." The second purported to be a "Memorandum of Law in support of motion for new trial or acquittal Rule 29 F.C.P. [sic] Rule 33 F.C.P. [sic] Prosecution Misconduct. New Discovered Evidence." In his first memorandum, in support of his pro se motion for new trial, Lema contended for the first time that...

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