U.S. v. Aguirre

• Decision Date: 27 August 1990
• Docket Number: D,No. 1485,1485
• Citation: 912 F.2d 555
• Parties: UNITED STATES of America, Appellant, v. Edwin P. AGUIRRE, Defendant-Appellee. ocket 90-1133.
• Court: U.S. Court of Appeals — Second Circuit

Page 555

912 F.2d 555

UNITED STATES of America, Appellant, v. Edwin P. AGUIRRE, Defendant-Appellee.

No. 1485, Docket 90-1133.

United States Court of Appeals Second Circuit.

Argued June 14, 1990.

Decided Aug. 27, 1990.

Susan Corkery, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., Matthew E. Fishbein, Peter R. Ginsberg, Asst. U.S. Attys., of counsel), for appellant.

William Mogulescu, New York City, for defendant-appellee.

Ross & Hardies, New York City (Peter I. Livingston, Michelle J. D'Arcambal, New York City, of counsel), for amicus curiae The Legal Aid Society.

Chester L. Mirsky, New York University School of Law, New York City, amicus curiae.

Before LUMBARD, MESKILL and PRATT, Circuit Judges.

LUMBARD, Circuit Judge:

The United States appeals the grant of a writ of error coram nobis to Edwin Aguirre by the District Court for the Eastern District of New York (Charles P. Sifton, Judge ). After a hearing on January 12, 1990, the court held that Aguirre received "ineffective assistance of counsel" during his 1989 trial for cocaine importation and possession. The court vacated the conviction and granted a new trial.

Our study of the trial record, the papers submitted thereafter, and the hearing on the coram nobis petition, persuades us that the court's findings of fact and conclusions of law are clearly erroneous. The record does not show that Aguirre's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), or "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," id. at 686, 104 S.Ct. at 2064. Nor do we find any support for the view that the outcome of the trial would have been different had counsel followed the course Aguirre suggests.

Accordingly, we reverse and remand for sentencing.

I.

After Ecuatoriana de Aviacon flight 052 arrived at Kennedy Airport from Quito, Ecuador on the evening of August 5, 1988, customs officials, contrary to their usual practice, inspected the luggage of the crew. One official, inspecting the luggage of Aguirre, a flight attendant, noticed that the sides of his blue Samsonite bag were "thick and heavy." Examination of the contents of the suitcase revealed false sides in which were found packages containing fourteen pounds of cocaine.

The grand jury filed an indictment on August 19, 1988 charging Aguirre in Count One with "knowingly and intentionally" importing cocaine into the United States, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), and 960(b)(1)(B)(ii), and in Count Two with "knowingly and intentionally" possessing with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(ii)(II).

The trial took place over two days beginning on April 3, 1989, and after two days of deliberations, resulted in a verdict of guilty on both counts. Aguirre was represented by James C. Neville and Peter Kirchheimer of the Legal Aid Society's Federal Defender Services Unit. Neville, who acted as principal counsel from the time of Aguirre's arrest, was admitted to practice in September 1985. During almost two years with Legal Aid, he had represented clients in fifteen trials. Kirchheimer has been an attorney since 1974.

A. Investigation Before Trial

During initial preparations, Neville relied heavily on his conversations with Edwin Aguirre, his brother Oscar, who resided in New York City, and Edwin's wife Jennie, who came to New York to assist in his defense. Fluent in Spanish, Neville regularly conversed with them in that language. Despite their assistance and cooperation, Neville encountered great difficulty in arranging for interviews of potential witnesses, all of whom resided in Ecuador.

1. The Source of the Suitcase Based on his conversations with Aguirre and his family members, Neville's early strategy was to establish that Aguirre brought the suitcase into the United States not knowing it contained cocaine. To accomplish this, Neville hoped to prove that the blue Samsonite, which Aguirre said he had borrowed from an airline storeroom because of the theft of his regular suitcase, contained the cocaine before Aguirre obtained it. Neville planned to trace the suitcase to Julia Orovic, a Dutch national who abandoned it in Caracas, Venezuela after an Ecuatoriana flight from Quito. Thereafter it had been returned to Quito, the point of origin.

Despite a subpoena, Ecuatoriana failed to make available the witnesses necessary to pursue the Orovic aspect of the defense. It complied in part only after the court issued an order to show cause why it should not be held in contempt. Because Ecuatoriana resisted producing these potential witnesses, Neville was unable to interview them until the evening of the first day of trial. In the course of these interviews, Neville learned that it was doubtful that the Orovic theory could be supported. Moreover, some of the witnesses revealed damaging information.

First, Germanico Coronel, an airline employee, informed Neville that the Orovic suitcase, which he had previously described in a telex on its arrival in Quito, did not contain wheels, straps or handles. By this description, the suitcase differed from the blue Samsonite, which did have those features. Second, Carmen Trueba Piedrahita, an employee who was prepared to testify that the seized and the Orovic suitcases were the same, weakened significantly Aguirre's account of the events leading up to his boarding flight 052. Aguirre had earlier told Neville that he received a last-minute call from the airline to work the flight and that, as a result, he arrived at the airport late and boarded hurriedly. Piedrahita, who impressed Neville as a bright, credible witness, volunteered that Aguirre arrived quite early and refused her request to allow his suitcase to be identified and inspected for drugs by trained dogs.

Third, Neville hoped that Luis Peredes, the employee who removed the blue Samsonite from the storeroom and gave it to another employee to give to Aguirre, would corroborate the chain of custody of the Orovic suitcase by identifying its luggage tags. Instead, Peredes impressed Neville as a hostile witness whose testimony, if it was to be used at all, should be sharply curtailed to avoid a potentially damaging revelation. Peredes's failure to bring the original tags with him to New York, despite repeated requests that he do so, supported that impression and weakened his usefulness as a witness. Peredes also maintained that the Orovic suitcase was not decorated with stickers, in contrast to the seized suitcase, which was. Peredes was a dangerous witness for another reason; he had told Neville during their interview that narcotics sensitive dogs had come through the storeroom while the Samsonite was still there and that the results of the search were negative. This would have supported the government's position that cocaine was placed in the Samsonite after it was taken from the storeroom. At the post-trial hearing, Neville explained that he feared Peredes would "say something that [would] kill us." He added: "[M]y feeling was he was hostile because he thought Edwin Aguirre was guilty."

Additionally, Neville learned from Magdalena Solorzano, another airline employee, that in June 1988 Aguirre borrowed a suitcase from the storeroom but was told to return it. However, Solorzano had no knowledge concerning the blue Samsonite, which Aguirre borrowed in July 1988. Moreover, Neville learned from a potential witness that men's clothing had been removed from the Samsonite before it was lent to Aguirre, thus weakening the claim that the suitcase belonged originally to Orovic, a woman.

As a result of these interviews, Neville and Kirchheimer decided to abandon the Orovic theory. Instead, they chose to argue generally that Aguirre carried the cocaine unwittingly in a borrowed suitcase but not that he carried Julia Orovic's suitcase in particular. This change in strategy altered the tenor of the defense, and necessitated a number of subsidiary tactical decisions: they would not call Coronel and Piedrahita; the examination of Peredes would be limited; they would not argue, based on chemical evidence, that the brittle "slab" condition of the seized cocaine was caused by humidity from the airline's storeroom; they would forego arguing that the blue Samsonite, including the cocaine and other contents of the bag, weighed about forty-four pounds, approximately the same as the Orovic suitcase, according to airline records; and they would not seek to introduce documentary evidence, such as luggage tags and the airline storeroom entry book, which may have been relevant to proving Orovic's ownership of the blue Samsonite.

Sometime after the indictment, apparently as a result of Aguirre's claims of innocence, Neville arranged for Aguirre to take a lie detector test administered by the United States Attorney's office. By agreement, Neville was not present during the questioning, but he recalled that the Government agent, who briefed him beforehand, administered "an extremely elaborate extensive interview." Aguirre failed the test; Neville was "dishearten[ed]" by the results.

2. The Advice that Aguirre not Testify Neville initially planned that Aguirre would testify on his own behalf. He believed, based on his conversations with Aguirre and his family, that Aguirre would make a credible witness and that the Government had little if any information with which to impeach him. He changed his mind because of his discovery, the night before trial, that the passport Aguirre carried stated inaccurately that he was unmarried and a student. Additionally, Aguirre's brother informed Neville that Aguirre had a second passport that Jennie, Aguirre's wife, brought to the United States after Aguirre's arrest. Neville was concerned that these revelations,...