U.S.A. v. Chavez

• Decision Date: 02 November 1999
• Docket Number: No. 98-50910,98-50910
• Parties: (5th Cir. 1999) United States of America, Plaintiff-Appellee, v. Bruce Marlin Chavez, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 375

193 F.3d 375 (5th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Bruce Marlin Chavez, Defendant-Appellant.

No. 98-50910

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

November 2, 1999

Rehearing Denied February 14, 2000.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant, Bruce Marlin Chavez, was convicted on charges relating to his involvement in a cocaine distribution operation. Chavez previously brought a direct appeal of his conviction, alleging, inter alia, that the prosecutor improperly commented on his post- arrest silence during cross-examination and closing, in violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). This court found that the prosecutor did, in fact, commit a Doyle violation. However, because Chavez's counsel failed to object at trial, this court reviewed for plain error and determined that, given the evidence adduced at trial, the error was not so substantial or prejudicial that Chavez's trial lacked the fundamental elements of justice.

Chavez subsequently filed a motion to vacate pursuant to 28 U.S.C. 2255. Chavez alleged that his counsel's failure to object to the prosecutor's remarks constituted ineffective assistance of counsel. The matter was referred to a magistrate judge who, after conducting a hearing, recommended that the motion to vacate be denied. The district court reviewed the matter and denied the motion. Chavez now seeks relief in this court. As Chavez filed his motion before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, he does not need a certificate of appealability to appeal.

In November 1991, Juan Cardenas contacted the Drug Enforcement Agency (DEA) in El Paso, Texas, agreeing to become a confidential informant. As a result, the DEA began an investigation of his half-brother, Ramon Abel Cardenas-Hernandez, and others with whom Juan Cardenas had been admittedly involved in drug trafficking.

Chavez's purported involvement in this matter arose out of the use of his house, located at 3460 Slocum, as a "stash" house for the trafficking operation. For approximately eighteen months, Chavez allowed a long-time acquaintance, Jose Humberto Garcia, to stay with him at the Slocum residence. Garcia was a key participant in the drug operation.

An undercover DEA agent, Sal Martinez, testified that in July 1992, he went to the Slocum residence with Juan Cardenas and another participant, Jorge Bermudez-Casas, to pick up a suitcase containing 24 kilograms of cocaine. The suitcase had a luggage tag bearing Chavez's name and address. Martinez later returned the suitcase to Chavez, and at that point, engaged him in a conversation which indicated that Chavez was aware of the drug activities. Chavez replied, "Oh, shit," when told the suitcase had borne a name tag with his name on it. In addition, upon questioning by Martinez, Chavez indicated that he could obtain additional cocaine for sale. He also demonstrated familiarity with another stash house and its owner, and when Martinez indicated the grass at the other house was getting high and might look suspicious, Chavez informed Martinez that someone would take care of it. Martinez asked if it would be "Guero," referring to Bermudez-Casas, to which Chavez responded in the affirmative.

Dennis Haught, Garcia's brother-in-law and a participant in the drug operations, testified that Chavez was aware of the drug activities in the house. Haught testified that at some point in October 1992, he and Bermudez-Casas went to Chavez's house to load cocaine in a secret compartment in a car being used to transport the cocaine. Haught and Bermudez-Casas had difficulty with the secret compartment and asked Chavez to purchase glue to hold the carpet down. Chavez left and returned with some cement which did not work. According to Haught, Chavez then permitted Haught and Bermudez-Casas to store the cocaine in his garage. On October 28, 1992, DEA agents conducted a consensual search of Chavez's house and seized 28 kilograms of cocaine.

Chavez testified on his own behalf at trial. He denied any knowledge of the drug trafficking activities and stated that he had become suspicious of Garcia and had asked him to move out on a number of occasions, beginning in May or June of 1992. With respect to the suitcase, and that it had been full of cocaine, Chavez stated that the suitcase did not belong to him, but to Garcia, and that Garcia had lent it to him earlier. When questioned about his conversation with Martinez, Chavez testified that he "went along" and participated in the conversation "playing detective" because of his suspicions about Garcia. He stated that he discussed the situation with is then-girlfriend, now wife, Karrie Dillard Chavez, and they discussed calling the police. Mrs. Chavez corroborated this testimony. Mrs. Chavez further testified that she had encouraged Chavez to ask Garcia to move out, and that her husband did not want Haught in the house. In addition, two of Chavez's co-workers testified that Chavez had expressed concern about Garcia, and related the suitcase incident to them. As for Haught's use of Chavez's garage when trying to fill the secret compartment of his car, Chavez testified that Garcia had asked him if Haught could use his driveway to work on his brakes.

At the time of his arrest, Chavez did not relate to the arresting officers what he testified to at trial. Instead, Chavez only commented by asking why he was being arrested and denying any knowledge of narcotics trafficking.

At trial, the prosecutor made the following remarks during cross-examination of Chavez:

Prosecutor: Now, after you were arrested, Mr. Chavez - Well, the story that you've told today, this is the first time you've told the story, is that correct, other than maybe your attorneys?

Chavez: Yes, sir.

Prosecutor: All right. You saw [DEA agent] Martinez the night you were arrested, is that right?

Chavez: Yes, sir.

Prosecutor: Did you recognize him?

Chavez: Yeah, I think I did.

Prosecutor: Did you say anything to him concerning this conversation? Did he talk to you about this conversation?

Chavez: Yes, he did.

Prosecutor: And did you remember the conversation at that time?

He told me something about -

The Court: His question was, did you remember the conversation at that time?

Chavez: No.

In addition, the prosecutor stated the following during closing argument:

Finally, ladies and gentlemen, when you look at everything in this case, consider when he was arrested, . . . none of this, none of what you heard from the witness stand ever got told to the police that day. None of that explanation, because it didn't happen. You look at the law, you look at the evidence and you look at common sense. These two guys are guilty. It's your duty to find them guilty.

As already discussed, a panel of this court determined that these comments violated Doyle, but that under the plain error standard, Chavez's trial did not lack the fundamental elements of justice. Now, Chavez argues that his counsel's failure to object to the prosecutor's remarks constituted ineffective assistance of counsel.

II. STANDARD OF REVIEW

In reviewing a district court's denial of a motion to vacate sentence under 28 U.S.C.A. 2255, this court reviews questions of fact for clear error and questions of law de novo. United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). A defendant's claim that he received ineffective assistance of counsel is a mixed question of law and fact to be reviewed de novo. Id.

III. DISCUSSION

In order to prevail on an ineffective assistance of counsel claim, a defendant must show (1) that counsel's assistance was deficient, and (2) that the deficiency prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To satisfy the prejudice prong, the defendant...