U.S. v. Altamirano

• Decision Date: 08 December 1980
• Docket Number: No. 79-1743,79-1743
• Citation: 633 F.2d 147
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard ALTAMIRANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 147

633 F.2d 147

UNITED STATES of America, Plaintiff-Appellee, v. Bernard ALTAMIRANO, Defendant-Appellant.

No. 79-1743.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 14, 1980.

Decided Oct. 17, 1980.

Rehearing Denied Dec. 8, 1980.

James F. Hewitt, Federal Public Defender, San Francisco, Cal., argued, for defendant-appellant.

G. William Hunter, U.S. Atty., Sanford Svetcov, Chief, Asst. U.S. Atty., D. Michael Nerney, Asst. U.S. Atty., Sharon Redel, Research Asst., University of San Francisco School of Law, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WRIGHT and SNEED, Circuit Judges, and FRYE ^*, District Judge.

SNEED, Circuit Judge:

Appellant was charged by indictment with four counts of distribution of heroin, 21 U.S.C. § 841(a)(1), two counts of assault on a federal officer with a deadly weapon, 18 U.S.C. §§ 111, 1114, and one count of being an ex-felon in possession of a firearm, 18 U.S.C. App. § 1202(a)(1). Appellant pleaded not guilty to all counts and at the conclusion of his trial the jury found him guilty on all counts. Initially he was sentenced to thirty-five years of imprisonment, but shortly thereafter his sentence was reduced to thirty years of confinement together with a seven-year parole term and a $15,000 fine with respect to a distribution of heroin count.

Appellant, presently represented by the Federal Public Defender, appeals his conviction on the ground that his trial counsel's incompetence was sufficient under the circumstances existing at trial to require a reversal of appellant's conviction and a remand for a new trial without regard to whether appellant can show that he was prejudiced by counsel's incompetence. Appellant also argues that he was in fact prejudiced by his counsel's incompetence. The government argues that to secure the reversal and remand the appellant seeks he must show prejudice and that it cannot be shown to exist on the basis of the present record.

We have reviewed the record and the transcript of the trial and affirm the appellant's conviction.

I. FACTS AND CONDUCT OF APPELLANT'S COUNSEL

It is not possible to state within a reasonably short space all the facts relevant to our disposition of this case. Only a reproduction of the entire transcript of the trial would be sufficiently comprehensive. We shall content ourselves with a brief recital of the facts as offered by the government, which the jury substantially accepted as proven beyond a reasonable doubt, and a description of the defense offered on behalf of the appellant. Finally, we shall attempt to characterize briefly the conduct of appellant's trial counsel.

Agent Tanaka of the Drug Enforcement Administration (DEA) worked undercover as "Jimmy Rios" with an informer, Gerald Spendler. During November and December, 1978, appellant sold heroin to Tanaka on four occasions. Although the first three sales were made in San Francisco, the last such sale took place in Marin County, California, at which time a likely source of appellant's heroin was observed. A recorded Apparently contact between Tanaka and appellant broke off thereafter and was not resumed until March 20, 1979 at which time negotiations were commenced for a substantially larger purchase of heroin than was made during 1978. A sale of heroin for $22,500 was arranged to occur on the evening of April 10, 1979. Tanaka and another agent, Dijamco, who previously had been introduced to appellant as Tanaka's partner, met appellant on that evening. Appellant got into the rear seat of the agents' car and they drove slowly down an alley.

telephone conversation between Tanaka and appellant occurred on December 12, 1978, the day before the Marin County sale, during which appellant indicated anger at the prospect of Tanaka purchasing heroin elsewhere.

At that point Davis Castro, a friend and associate of the appellant, appeared and followed the car on foot. The driver, Agent Dijamco, began to drive away, whereupon the appellant pointed a .38 revolver at the agents and told them to stop and put their hands on the dashboard. Thereafter Tanaka was shot in the head, a struggle for the gun ensued. In the struggle Tanaka was shot in chest and hand, Castro reached the car and tried to beat and choke Dijamco who shot Castro fatally four times and the appellant twice. Tanaka's gun was never fired.

Appellant's version of the events which he presented through his own testimony is that the 1978 sales were in fact made by Spendler, the informer, and that his apartment was loaned to Spendler in exchange for small amounts of heroin for appellant's own use. He explained that Spendler was afraid of Tanaka and had cautioned appellant always to placate him. This explains the December 12, 1978 recorded telephone conversation, appellant contended. Appellant also utilized his alleged fear of Tanaka in explaining his agreement to sell $22,500 worth of heroin on April 10, 1979. His version was that when he heard that Spendler had died in early April, 1979, he became even more afraid of Tanaka because he suspected Tanaka was responsible for Spendler's death.

With respect to the alley shooting, appellant contended he had no heroin with him when he got into the agents' car, a fact not disputed by the government, and also no .38 revolver, an assertion vigorously contested by the government. As appellant told it, Dijamco saw Castro approaching the car and shot him, at which point appellant attempted to take Dijamco's gun. During the struggle there were additional shots that wounded both Tanaka and appellant. Castro was merely an innocent bystander killed by an officer with too quick a trigger finger according to the appellant.

The government's case with respect to the four counts of heroin distribution was very strong while that supporting the two counts of assault depended largely upon the credibility of Agents Tanaka and Dijamco. The possession of firearm count was also supported by strong evidence in addition to the testimony of the two agents. Appellant's case rested almost entirely on his credibility.

Appellant's trial counsel were Messrs. Arthur D. Dempsey and Edward Solomon of San Francisco, California. Mr. Dempsey conducted appellant's defense, although the record reveals that Mr. Solomon participated in many conferences with the trial judge and prosecuting attorney. Although one cannot be certain, the record strongly suggests that Mr. Solomon in fact participated extensively in the preparation and presentation of appellant's defense. See R.T. IV, 51-6; VII, 96; XII, 886-97; XIII, 1219-29; XIV, 1321-22; XV, 1562-73. No criticism of his performance was expressed by the trial court nor by the Federal Public Defender in his brief or oral argument.

Mr. Dempsey presents an entirely different situation. The government acknowledges that he performed in an incompetent manner. It is difficult to describe his behavior in a comprehensive but brief manner. See Appendix. Perhaps the most apt single word is "shameless." He asserted his ignorance of federal trial court criminal procedure and frequently refused to adhere to proper procedures and techniques explained This catalogue of deficiencies is continued in the appendix to this opinion, but it must be acknowledged that between Mr. Dempsey, Mr. Solomon, and the appellant, who also from time to time expressed his view on certain matters that arose during the course of the trial, the defense of the appellant was put before the jury in an understandable manner. Mr. Dempsey conducted the direct examination of the appellant in an acceptable manner although even this was marked from time to time with unprofessional conduct. This was the crucial part of the appellant's case. He stood or fell on his ability to convince at least one juror that Agents Tanaka and Dijamco were not telling the truth. He failed in this effort despite his counsel's efforts on numerous occasions to create doubt with respect to the government's case by suggesting that perhaps more shots were fired than the government acknowledged, that perhaps either Castro or appellant were kicked by officers who arrived on the scene following the shooting, that perhaps fingerprints had been removed from the guns, and that perhaps the government was not making important witnesses available. None of these suggestions were supported by persuasive evidence, but Mr. Dempsey succeeded in sowing the seeds of uncertainty which he hoped would prevent appellant's conviction on some or all the counts.

to him by an increasingly exasperated trial judge. His conduct normally ranged from near insolence to wounded innocence although on occasions it attained professional levels. More particularly, his objections frequently were repetitive and groundless, his infrequent statements of the law both imprecise and usually wrong, and his cross-examination of the government's witnesses confusing and often inflammatory. A frequent technique employed on cross-examination was to state several propositions that discredit the witness or the prosecution and then ask the witness if the statements were not true. Improper questions of a more specific nature were asked which, when objections thereto were sustained, were never properly formulated but merely dropped with an aside that suggested perhaps counsel did not know why he had asked the question in the first place. Frequently questions were interspersed with comments by counsel designed to cast doubt on the government's case.

A reading of the transcript provides substantial evidence to support the opinion of the trial court, expressed on several occasions, to the effect that Mr. Dempsey had the capacity to conform more closely to professional standards than in fact he did. See R.T. Vol. XIV, 1375; XV, 1383, 1554-55. An attorney who who voluntarily permits his conduct to drop below professional levels deserves discipline by the...