U.S. v. Aulet

• Citation: 618 F.2d 182
• Decision Date: 10 March 1980
• Docket Number: No. 547,D,547
• Parties: UNITED STATES of America, Appellee, v. Gloria AULET, Appellant. ocket 79-1228.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 182

618 F.2d 182

UNITED STATES of America, Appellee, v. Gloria AULET, Appellant.

No. 547, Docket 79-1228.

United States Court of Appeals, Second Circuit.

Argued Jan. 7, 1980.

Decided March 10, 1980.

Kristin Booth Glen, Hofstra Law School, Hempstead, N. Y., for appellant.

Vivian Shevitz, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Harvey M. Stone, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for appellee.

Before MOORE, FRIENDLY and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York after a three day jury trial before Chief Judge Jacob Mishler. Appellant was convicted of the knowing importation of cocaine into the United States and of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 952(a) and 841(a)(1), and was sentenced to two years' imprisonment and a special parole term of eight years on each count, to run concurrently. Appellant raises several claims of error, the most serious of which is that she was denied the effective assistance of counsel. Having determined that these claims are lacking in merit, we affirm.

BACKGROUND

In December, 1978, Gloria Aulet, an Argentinian citizen living in the United States as a resident alien, arrived at John F. Kennedy Airport on a flight from Bolivia. During a routine inspection at the airport, United States Customs Inspector James Cirigliano asked Aulet several questions and examined her luggage. Although the luggage revealed nothing unusual, statements made by Aulet apparently aroused Cirigliano's Cirigliano's supervisor summoned Special Agent Trustey of the Drug Enforcement Administration, who arrived at the examination room several minutes later. After reading Aulet her rights, again in English, Trustey had a short conversation with her, pursuant to which Aulet agreed to cooperate with the DEA Agent and to give him information about another courier who had accompanied her on the plane. Trustey thereupon called for an interpreter to facilitate further discussion. Aulet and the agents spent approximately six hours in the airport developing the details surrounding her trip to Bolivia, her return with the napkins, and the other participants in the venture. Testimony given at the subsequent trial indicated that during these conversations Aulet had admitted to traveling to Bolivia at the request of an acquaintance who promised to pay her four thousand dollars for successfully bringing two small packages into the United States.

suspicions ¹ and he decided that a search of her person was necessary. Cirigliano escorted Aulet to a private examination room and summoned a female Customs Inspector, Annette Artis. When Artis asked Aulet to disrobe, Aulet reached inside her clothing and removed two feminine napkins, stating, "Here it is." Artis immediately turned the napkins over to Cirigliano. As they appeared to have something inside them, Cirigliano opened the napkins. Inside he discovered a white powder which he tested and found to be cocaine. Cirigliano arrested Aulet and read her the Miranda warnings in English. Although it was apparent that English was not her native language, Aulet stated that she understood Cirigliano.

After being assigned court-appointed counsel, Aulet pleaded not guilty and went to trial. Aulet did not deny that she had carried cocaine into the country. Instead her defense centered on the claim that she had lacked the requisite criminal intent. Aulet testified that she had believed she was carrying contraband, either gold or jewelry, and had not known or believed that she was carrying drugs, and she produced character witnesses who testified to her reputation for honesty and truthfulness. No motion was made before or during trial to suppress the evidence gathered during the search and questioning of Aulet at the airport.

On appeal Aulet, represented by a different attorney, ² alleges that she did not receive effective assistance of counsel at trial, that the evidence did not support a guilty verdict, that the district judge improperly excluded cooperation evidence, and that the jury was not properly charged on the issue of conscious avoidance.

DISCUSSION

1. The Record on Appeal

Before reaching the merits of Aulet's claims, we note the difficulties encountered in addressing an issue which is raised for the first time on appeal, as is the ineffective assistance of counsel question in this case. Generally, an appellate court will not consider an issue that has not been presented to the court below. United States v. Hermann, 524 F.2d 1103, 1104 (2d Cir. 1975); United States v. Foddrell, 523 F.2d 86, 87 (2d Cir.), cert. denied, 423 U.S. 950, 96 S.Ct. 370, 46 L.Ed.2d 286 (1975). The usual method of challenging the effectiveness of defense counsel in a federal criminal trial is by a collateral attack on the conviction under 28 U.S.C. § 2255. See, e. g., United States v. Schreiber, 599 F.2d 534, 538 (3d Cir.), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (U.S. Oct. 2, 1979); United States v. Rodriquez, 582 F.2d 1015, 1016 (5th Cir. 1978) (per curiam); United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978). When this path is taken, the district judge can, in an appropriate case, hold an evidentiary hearing and develop a full factual record before reaching a decision. ³

The value of proceeding in this way is amply demonstrated by the instant case. Aulet's attack on trial counsel's effectiveness is directed at the failure to move for suppression of the physical evidence and statements taken from Aulet at the airport during and subsequent to an allegedly illegal search. On a record completely devoid of any indication of trial counsel's reasons for foregoing a suppression motion, Aulet has asked us to hold that the failure to make such a motion constituted a denial of Aulet's Sixth Amendment right to counsel. On an equally barren record the government asks us to rule that there was no such denial of the right to counsel. With the case in this posture, it is difficult for either side to present to this Court the factual material that would be helpful in deciding whether Aulet should receive a new trial. Despite the general rule of forebearance, however, "(c)ertainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt . . . or where 'injustice might otherwise result.' " Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). This is one of those rare cases. Because we believe that resolution of this issue is beyond any doubt and that a remand for further proceedings or a refusal to address the merits of the issue without prejudice to its being raised collaterally would be a waste of judicial resources, and because both sides ask us to decide the issue, we reach the merits of Aulet's claim of ineffective assistance of counsel.

Before doing so, however, we must resolve the dispute that has arisen over what parts of the record before us we may properly consider. The notice of appeal in this case was filed on June 8, 1979, and the record on appeal was filed on July 19, 1979, and supplemented with trial transcripts on August 29, 1979. The government, after receiving appellant's brief and learning that she was raising a claim of ineffective assistance of counsel, supplemented this record on October 11, 1979, adding "3500 material" ⁴ which it had given to trial counsel before trial, but had never had occasion to introduce into evidence during the proceedings below. Appellant's counsel made a motion to strike this second supplemental record on November 2, 1979, alleging that because it was not part of the trial record, it is not properly before this Court. The motion was denied, with assurances that this Court would not rest its decision on materials not properly in the record on appeal. It appears that appellant's counsel objects to the inclusion of the 3500 material on the ground that she was unaware of its existence until she received the government's brief in October of 1979. An examination of the trial transcript, however, reveals that the court below noted on the record that the government attorney had given the 3500 material to Aulet's trial counsel at the beginning of the trial. Since the existence of this material and trial counsel's access to it would have been disclosed by a simple reading of the transcript, appellant's present counsel cannot now complain about her failure to have ascertained the contents of this potentially crucial material at an earlier stage in the appeal process.

Appellant maintains, however, that we should decide whether failure to move for a suppression hearing constituted inadequate assistance of counsel solely on the record below, without any consideration of the very materials which may have prompted trial counsel to forego such a motion. Appellant does not contest the fact that trial counsel had timely access to the 3500 material now before this Court but she strenuously objects to our considering the 3500 material itself in deciding the ineffective assistance of counsel issue. We see no justification in this case for ignoring these materials which bear heavily on the merits of appellant's claim. Indeed, were we to do so, appellant would be in a stronger position than she would have been in had she raised the issue either below or collaterally and thus facilitated the creation of a proper factual record for our review. The 3500 material which appellant wishes to prevent us from considering includes the very materials a district judge would have examined in deciding a suppression motion, had one been made. In urging this Court to ignore this same evidence in deciding whether trial counsel's failure to make a suppression motion constitutes ineffective...