U.S. v. Coneo-Guerrero

• Decision Date: 24 February 1998
• Docket Number: CONEO-GUERRER,D,Nos. 96-1764,ARANGO-HERRERA,VILLA-CONTRERA,s. 96-1764
• Citation: 148 F.3d 44
• Parties: UNITED STATES, Plaintiff-Appellee, v. Julioefendant-Appellant. UNITED STATES, Plaintiff-Appellee, v. Juan JoseDefendant-Appellant. UNITED STATES, Plaintiff-Appellee, v. Jesus A.efendant-Appellant. to 96-1766. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 44

148 F.3d 44

UNITED STATES, Plaintiff-Appellee, v. Julio CONEO-GUERRERO, Defendant-Appellant.

UNITED STATES, Plaintiff-Appellee, v. Juan Jose ARANGO-HERRERA Defendant-Appellant.

UNITED STATES, Plaintiff-Appellee, v. Jesus A. VILLA-CONTRERAS, Defendant-Appellant.

Nos. 96-1764 to 96-1766.

United States Court of Appeals, First Circuit.

Heard Feb. 24, 1998.

Decided July 14, 1998.

Zygmunt G. Slominski on brief for appellant Julio Coneo-Guerrero.

Carmen R. De Jesus on brief for appellant Juan Jose Arango-Herrera.

Jorge A. Toro-McCown on brief for appellant Jesus A. Villa-Contreras.

Jacabed Rodriguez Coss, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jose A. Quiles-Espinosa, Assistant United States Attorney, were on brief for appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and SELYA, Circuit Judge.

CAMPBELL, Senior Circuit Judge.

After a jury trial, the district court convicted Julio Coneo-Guerrero, Juan Jose Arango-Herrera, and Jesus A. Villa-Contreras of importing into the United States and possessing with intent to distribute 543 kilograms of cocaine. 21 U.S.C. §§ 952(a), 841(a)(1). The three Defendants appeal from their convictions and sentences, citing many purported errors. We affirm. In so doing, we discuss only the most salient points. We have, however, considered carefully all the arguments Appellants raise.

BACKGROUND

In reviewing a judgment of conviction, we view the facts in the light most favorable to the government. See United States v. Christopher, 142 F.3d 46, 48 (1st Cir.1998).

On the night of June 27-28, 1995, U.S. Customs pilots flying approximately fifteen miles from the southern coast of Puerto Rico spotted a forty-foot boat traveling rapidly north toward Puerto Rico with its lights out. Joined by other agents on sea and in the air, the agents tracked the boat until it stopped at an area within three miles of the coast of Puerto Rico known as Cayo Cabuzazos. There, the agents used night vision goggles to observe the boat's crew dumping objects overboard into the water.

To improve the scene's visibility, the agents summoned a helicopter equipped with a powerful "night sun" searchlight, which they directed at the boat. Realizing that they had unwanted company, the crew immediately sped away toward the south. After a lengthy chase and with the help of a local marine police unit, Customs agents apprehended the boat roughly thirteen or fourteen miles from the coast of Puerto Rico. Agents boarded the ship and arrested all four members of the crew: the three Appellants, plus the boat's captain, who is now deceased.

While aboard, the agents made several discoveries. First, they observed that the boat's dashboard lights were covered with opaque tape, obscuring their glow from nighttime observation. Second, there were two hand-written notes on board. One contained five sets of coordinates plotting a route from Colombia to Puerto Rico. The other, written in Spanish, vaguely prescribed an allocation: "399 for the office [oficina ]"; "85 for Nando"; "85 for Lindo"; and "5 for the crew." A later search revealed a pair of burlap sacks.

The significance of the sacks became apparent after a contemporaneous search of the Cayo Cabuzazos area, where Appellants had earlier been observed dumping items from their boat. There, agents found several burlap sacks floating in the water, along with hundreds of packages containing a total of 543 kilograms of cocaine. According to the trial testimony of a FBI expert, the sacks found aboard Appellants' boat were of the same color, make, composition, and construction as those found floating with the cocaine. Moreover, a second FBI expert testified that both sets of sacks contained traces of cocaine.

Upon their arrest, Appellants each explained that they had come to Puerto Rico to pick up money, although they could not say when or from whom. However, government agents testified at trial that neither Appellants nor their boat were carrying any document that would permit them to make a legal entry into Puerto Rico.

A week after the arrest, a federal grand jury indicted Appellants for aiding and abetting, 18 U.S.C. § 2, two substantive violations: possessing a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1), and importation of a controlled substance, 21 U.S.C. § 952(a). Upon learning that a single attorney, Miguel R. Calderon, planned on representing all Defendants, the magistrate held a Foster hearing. See United States v. Foster, 469 F.2d 1 (1st Cir.1972). The district court [ (Fuste, J.) ] held a second Foster hearing on August 22, 1995, about ten weeks before trial.

Calderon continued to represent all Defendants throughout the trial. The jury returned a verdict of guilty as to all Defendants on both counts on December 15, 1995. Prior to sentencing and after a third Foster hearing, the district court granted attorney Calderon's motion to withdraw from representing Defendants and appointed each separate counsel for purposes of sentencing and appeal. The district court sentenced each defendant to 235 months' imprisonment. This appeal followed.

DISCUSSION

1. Ineffective Assistance of Counsel

Appellants argue that their convictions are procedurally invalid owing to the district court's having allowed Calderon to represent all of them at the trial. Because one defendant's interests may be adverse to another's, representation of multiple defendants by the same attorney may lead to serious conflicts and violate the Sixth Amendment's guarantee of effective counsel. See Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). On the other hand, the Sixth Amendment right to choose one's own counsel includes the right to choose as a lawyer the representative of a co-defendant. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Balancing these two aspects of the right to counsel--the right to conflict-free representation and the right to select one's counsel--requires that joint representation be permitted only if each defendant knowingly and voluntarily assumes the risk of potential conflicts.

Accordingly, Federal Rule of Criminal Procedure 44(c) provides that the district court must inquire into each instance of joint representation of multiple defendants, and must advise each defendant of his right to separate counsel. ¹ In Foster, this court spelled out the proper procedure for apprising a defendant of his constitutional rights:

[I]t shall be the duty of the trial court, as early in the litigation as practicable, to comment on some of the risks confronted where defendants are jointly represented to insure that defendants are aware of such risks, and to inquire diligently whether they have discussed the risks with their attorney, and whether they understand that they may retain separate counsel, or if qualified, may have counsel appointed by the court and paid for by the government. For the time being, at least, we leave to the discretion to the trial court the exact time and form of the inquiry.

Foster, 469 F.2d at 5; see also Bucuvalas v. United States, 98 F.3d 652, 655 (1st Cir.1996). Without an appropriate Foster hearing, the burden of persuasion shifts to the government to demonstrate the absence of any likelihood of prejudice from the conflict of interest. See United States v. Hernandez-Lebron, 23 F.3d 600, 606 (1st Cir.1994). However, if the record shows a satisfactory Foster hearing, the appellant bears the burden of "establish[ing] that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see also United States v. Mazzaferro, 865 F.2d 450, 454-55 (1st Cir.1989). Appellants argue that none of the Foster hearings was adequate, shifting the burden of demonstrating a lack of actual conflict to the government. They contend that the court seriously erred in addressing them jointly, rather than separately, and in failing to discern precisely who had retained Calderon to serve as their attorney.

We disagree on both scores. First, our review of the record indicates that the district court conducted satisfactory Foster hearings. There were three such hearings in this case, two prior to trial. The two pre-trial Foster hearings more than sufficed to ensure that Defendant-Appellants' acquiescence in joint representation comported with Rule 44(c).

The first hearing was conducted by the Magistrate just before the bail hearing. The Magistrate granted each of four court-appointed attorneys' request to withdraw from representing the four Defendants in light of Calderon's appearance. The Magistrate instructed Defendants regarding their constitutional right to adequate and independent representation, and that joint representation was not necessarily proper. The Magistrate then asked all the Defendants whether they understood the potential for conflicts and the difficulty of avoiding such conflicts. The Magistrate then described potential conflicts that could emerge during the course of proceedings, noting that the Defendants' level of culpability could vary; that one or more of the Defendants could cooperate in exchange for leniency; that the evidence might prove stronger against one Defendant compared to another both as to guilt and as to sentencing. The Magistrate also noted that if any of the Defendants wanted to testify at trial, it would place their shared counsel in an untenable position. Following these warnings, the Magistrate asked Defendants whether they desired representation by Calderon; they answered in the affirmative.

Finally, the Magistrate warned the Defendants that if any of them changed his mind after trial, it would be too late to conduct a new trial. Following the hearing, each Defendant executed an "Acknowledgment of Joint Representation Admonishment" also signed by their attorney Calderon.

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