U.S. v. Hart, s. 88-2212

• Decision Date: 03 April 1991
• Docket Number: 88-2213,Nos. 88-2212,s. 88-2212
• Parties: UNITED STATES, Appellee, v. Wilfred J. HART a/k/a "Jay Hart," Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 80

933 F.2d 80

UNITED STATES, Appellee, v. Wilfred J. HART a/k/a "Jay Hart," Defendant, Appellant.

Nos. 88-2212, 88-2213.

United States Court of Appeals First Circuit.

Heard April 3, 1991.

Decided May 16, 1991.

Michael Burke with whom Epstein, Burke, MacIntosh & DeVito, P.A. were on brief, Concord, N.H., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., and Jay P. McCloskey, Asst. U.S. Atty., were on brief, Bangor, Me., for appellee.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

BOWNES, Senior Circuit Judge.

This appeal arises from a criminal conviction in which appellant-defendant Wilfred Hart, Jr., also known as Jay Hart, was found guilty on thirteen counts of conspiring to possess and distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846 and 18 U.S.C. Sec. 2. ¹ Hart's conviction on two separate conspiracy counts resulted in two consecutive sentences of fifteen years each. He now raises the following issues on appeal: 1) whether he was denied effective assistance of counsel in violation of the sixth amendment; 2) whether the district court's granting of his post-conviction motion entitled "Lack of Jurisdiction for Sentencing" resulted in a finding of lack of jurisdiction which invalidated his subsequent sentence; and 3) whether his conviction on separate counts of conspiracy fractionalized a single conspiracy, resulting in double punishment in violation of the Double Jeopardy Clause of the fifth amendment.

I. BACKGROUND

On January 15, 1986, a secret indictment was returned against Hart in the district of Maine regarding the charges on which he was later convicted. On April 30, 1986, Hart was arrested in Fort Stockton, Texas, on state charges of possession of 400 grams of cocaine. While released on bail on the Texas charges and prior to any trial or imprisonment, Hart agreed to be removed to Maine where he appeared before a United States magistrate on July 11, 1986. Hart was charged with supplying cocaine to a number of dealers in central Maine during two different time periods between May of 1984 and January of 1985. The first conspiracy from May to October of 1984 principally involved Hart, Norman Grenier, Susan Pierce, and Hart's brother Peter. The second conspiracy started after Grenier was killed in December 1984; Hart allegedly dealt with Michael Massey and others until their arrests in January 1985. Pierce and Massey, as well as Hart's brother Peter, testified for the government at Hart's trial.

A government motion to have Hart detained until trial was granted on July 17, 1986. From that date until the end of his trial, Hart was represented by nine different attorneys ² and filed a flood of motions many pro se, including nine motions, all denied, which sought to dismiss his indictment because the Interstate Agreement on Detainers Act (IAD) had allegedly been violated. He also filed fifteen pro se petitions for writs of habeas corpus or related civil causes of action, all of which were denied.

On March 23, 1987, the government filed a third and final superseding indictment containing the fourteen counts on which Hart was tried. Following a torrent of new pro se motions and the withdrawal of a number of Hart's attorneys, the district court on December 23, 1987, held a hearing to address Hart's request to represent himself and ultimately ordered a hearing on his mental competency. Psychological evaluations held at FCI Butner, North Carolina, in January and February of 1988 could not be completed because of Hart's intransigence; the issue of competency was mooted by the court on March 23, 1988. In the fourteen-month period between the third indictment and his trial, Hart deluged the court with at least sixty-six different motions, most of them pro se.

In April 1988 the court appointed two University of Maine Law School professors to represent Hart at his trial, which began on May 23. At trial Hart took the stand in his own behalf against the advice of his counsel. He claimed that he was supplying the six government witnesses, all confessed cocaine users and dealers, with incense called Aroma, not cocaine. The government rested without cross-examining Hart. It did, however, move to dismiss Count VII. ³ A jury convicted Hart of the remaining thirteen counts. Prior to sentencing, Hart submitted a pro se motion entitled "Lack of Jurisdiction for Sentencing with Federal Question," which the court granted. Hart now claims that by granting the motion, the court divested itself of jurisdiction over him. The issues on appeal are presented in part by Hart's eleventh attorney, in part by his pro se motion.

II. SIXTH AMENDMENT CLAIMS

Hart's claim of ineffective assistance of counsel has been presented for the first time on appeal. First Circuit precedents abound holding that an ineffective assistance claim should be decided initially by the district court. See, e.g., United States v. Arango-Echeberry, 927 F.2d 35, 39 (1st Cir.1991) (issue not to be decided initially on appeal); United States v. Latorre, 922 F.2d 1, 9 (1st Cir.1990) ("Except in unusual circumstances, we will not decide a claim of inadequate representation that has not been first made to the district court."); United States v. Sanchez, 917 F.2d 607, 612-13 (1st Cir.1990) ("two sound reasons" for rule are trial judge's optimal position to assess defense counsel and frequent need to address factual issues in ineffective assistance claims) (citations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 1628, 113 L.Ed.2d 725 (1991). See also United States v. Lema, 909 F.2d 561, 565 (1st Cir.1990) (denying evidentiary hearing on whether claim of ineffective assistance was "newly discovered" for purposes of appeal).

We find no extraordinary circumstances compelling our consideration of the ineffective assistance claim before it has been scrutinized by the district court. We do, however, want to preclude any further discussion of this issue before the Job-like district judge who has been afflicted with this case.

Under the required two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to violate the sixth amendment, counsel's assistance must be both deficient and prejudicial. Id. at 687, 104 S.Ct. at 2064. Strickland also teaches that the standard for attorney performance is that of reasonably effective assistance. Id. at 687-90, 104 S.Ct. at 2064-66. The First Circuit has consistently required a defendant-appellant to demonstrate both his attorney's failure to meet this objective standard of reasonableness and "that but for this ineffective assistance the outcome of the trial would have been different." United States v. Carbone, 880 F.2d 1500, 1501 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1131, 107 L.Ed.2d 1037 (1990). See also Bryant v. Vose, 785 F.2d 364, 369 (1st Cir.) (In light of other evidence, defense counsel's failure to call witness did not create " 'reasonable probability' " that jury's conclusion would have been different.) (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068), cert. denied, 477 U.S. 907, 106 S.Ct. 3281, 91 L.Ed.2d 570 (1986); United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir.1978) (endorsing reasonably competent standard as guaranteeing effective, not errorless, representation).

Of particular pertinence here is Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). In Barnes the Court held that in light of Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), which required an advocate to "support his client's appeal to the best of his ability," defense counsel need not raise every non-frivolous claim advanced by his client:

For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every "colorable" claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders.

Jones, 463 U.S. at 754, 103 S.Ct. at 3314.

In addition, several First Circuit cases have upheld counsel's right to ignore frivolous claims pressed by clients. In United States v. Wright, 573 F.2d 681 (1st Cir.), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978), we responded bluntly to a defendant's charge of ineffective assistance: "Counsel is not required to waste the court's time with futile or frivolous motions." Id. at 684. See also Bosch, 584 F.2d at 1121-22. Surely Hart's requests for his counsel to track down and present as alibi witnesses "that person" or "certain persons" never named or located, even by the time of his sentencing hearing, could be deemed frivolous. Moreover, his trial counsel did accede to Hart's request to testify despite her concerns about his credibility, even that he might perpetrate a fraud on the court. We conclude, without difficulty, that Hart's many attorneys--in particular, the two who represented him at trial--have represented him with both competence and patience. Hart's sixth amendment claims can be dismissed in perpetuity.

III. CLAIM THAT DISTRICT COURT FOUND LACK OF JURISDICTION

This claim is based in the court's granting of a pro se motion entitled "Motion to Chief Judge Conrad K. Cyr on Lack of Jurisdiction for Sentencing with Federal Question." The so-called federal question was Hart's tenth attempt to argue that he was unlawfully held under the Interstate Agreement on Detainers Act. The substance of the motion prayed

that Judge Cyr will uphold his imposed duty under the Interstate Agreement on Detainers Act (AID Act) of Congress and not impose a false imprisonment and the Detainee presents a federal question pursuant to 28 U.S.C. Section 1331. Jurisdiction is properly asserted for IAD relief pursuant to 18 U.S.C., Appendix III, IAD Act, Section 5.

There is no suggestion in the body of the motion that the court lacked jurisdiction.

The court did...