U.S. v. Herrera-Rivera

• Decision Date: 03 June 1994
• Docket Number: No. 91-2831,HERRERA-RIVERA,91-2831
• Citation: 25 F.3d 491
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juventino, also known as Dino, Tito and Tino, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 491

25 F.3d 491

UNITED STATES of America, Plaintiff-Appellee, v. Juventino HERRERA-RIVERA, also known as Dino, Tito and Tino Defendant-Appellant.

No. 91-2831.

United States Court of Appeals Seventh Circuit.

Argued Feb. 8, 1994.

Decided May 25, 1994.

As Amended June 3, 1994.

Helene B. Greenwald, Dean J. Polales, Asst. U.S. Attys., Debra Riggs Bonamici (argued) James M. Geraghty (argued), Chicago, IL, for defendant-appellant.

Office of the U.S. Atty., Criminal Div., Chicago, IL, Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Before PELL, WOOD, JR., and ESCHBACH, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

On May 5, 1986, a grand jury issued a third and superseding indictment against Defendant Juventino Herrera-Rivera and ten other individuals for violating numerous drug and conspiracy laws. Herrera-Rivera was tried jointly with seven other members of the alleged conspiracy. Following a two month long trial, a jury found the eight defendants guilty of all charges except for a 21 U.S.C. Sec. 843 charge against a defendant not involved in this appeal. Herrera-Rivera now appeals his convictions for conspiracy to distribute controlled substances in violation of 21 U.S.C. Sec. 846, RICO 18 U.S.C. Sec. 1962(c), for being a part of a Continuing Criminal Enterprise ("CCE") 21 U.S.C. Sec. 848, distribution of controlled substances, ¹ and using a telephone to distribute controlled substances. Herrera-Rivera presents three arguments for reversal: that he was denied effective assistance of counsel; the evidence is insufficient to support the CCE conviction; and the district court improperly sentenced the defendant for his CCE and conspiracy convictions. ² As discussed below, these claims have no merit and we affirm.

BACKGROUND

Relevant to this appeal are the facts surrounding the actions of defendant's attorney before, during, and after trial. Herrera-Rivera retained Mark Krasnow, a criminal lawyer from Miami. Krasnow represented the defendant at several pretrial proceedings, but was involved in another trial in Florida for several months directly preceding this trial which was scheduled to begin on April 14. Because of this other trial, Krasnow filed a motion for a continuance on April 1, 1986. The trial was delayed several times while Judge Kocoras and all eight defendants waited for Krasnow to become available. When the Florida trial eventually concluded in the middle of the week of May 5, 1986, Judge Kocoras rescheduled the trial date for May 12, 1986, and had his courtroom deputy inform Krasnow's office of this new date. When Krasnow did not seek a continuance or appear for trial on May 12, Judge Kocoras issued a bench warrant for his arrest. The next day United States marshals travelled to Florida where they arrested Krasnow and brought him forthwith to Chicago where he was past due.

Judge Kocoras held criminal contempt proceedings on May 14, 1986. During the contempt proceedings Krasnow testified extensively regarding his rigorous trial schedule before other judges in Florida who would not allow him to leave prematurely. However, at the hearing Krasnow stated "I am prepared to try this case." He had been retained to represent the defendant months before. Krasnow explained that when his Florida trial ended, he knew that this trial was scheduled to begin on May 12, 1986, but did not appear because he assumed Judge Kocoras had several trials scheduled to begin on the same day and that this trial would not begin until later in the week. He assumed incorrectly and Judge Kocoras deservedly held him in contempt of court. Judge Kocoras concluded that Krasnow should have known his presence was required in Chicago I think ... that you decided for whatever reason--the reason that your Florida cases were more important than this case--that you were not going to show up here and you were going to show up here on your good time. I have that deep conviction and belief and I think the record amply supports that conclusion; and because of that, and because I find that you acted intentionally--you decided to give your other business priority and decided not to pay attention to this case--I think you acted with the requisite intent for a criminal contempt finding and I so find, Mr. Krasnow.

immediately after his other trial finished. He stated:

In addition to that, I find your failure to appear here not only seriously inconvenienced all of the parties, but impeded the administration of justice, and that is what happened here. We were all sitting here waiting for you, at some great expense, I might add, and inconvenience.

. . . . .

So for all of those reasons, I do, in fact, find you in criminal contempt of this Court for your deliberate and wilful failure to appear for trial this Monday, as you were required to do, as you had more than abundant notice of the fact of that trial and its starting date and you deliberately chose not to do that. I do find you in contempt of court for that purpose.

It is apparent in the record that Judge Kocoras fully considered Krasnow's excuses and was no more impressed with them than we are. He sentenced Krasnow to fifteen days in the custody of the Attorney General and fined him $1,551.44 (cost of fifty jurors who appeared on May 12), but stayed the sentence until after trial.

Once the trial began, the government presented evidence of fourteen alleged sales of narcotics totalling almost ten pounds by Herrera-Rivera to undercover officers. The evidence consisted mainly of testimony from Raleigh Lopez, a Drug Enforcement Administration ("DEA") agent, numerous tapes of telephone conversations, and physical surveillance. All of this evidence was collected during an extensive undercover and surveillance operation that portrayed an elaborate drug conspiracy involving the defendant. After hearing the testimony and reviewing the evidence, the jury convicted Herrera-Rivera on all counts of the indictment.

ANALYSIS

Herrera-Rivera presents three issues for our review: (1) whether he received effective assistance of counsel; (2) whether the evidence was sufficient to support a CCE conviction; and (3) whether the district court properly sentenced the defendant for his CCE and conspiracy convictions. We review each of these arguments in turn.

I. Ineffective Assistance of Counsel

In reviewing whether the defendant received effective assistance of counsel, we are bound by the decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and begin strongly presuming counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066. The defendant must demonstrate (1) that the attorney's representation fell below an objective standard of reasonableness, and (2) that but for the attorney's inadequate performance the result of the proceedings would have been different (the prejudice prong). Id. at 690-94, 104 S.Ct. at 2066-68; United States v. Levine, 5 F.3d 1100, 1108 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1224, 127 L.Ed.2d 569 (1994); United States v. Delgado, 936 F.2d 303, 310 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992). ³ Herrera-Rivera's arguments do not satisfy this test.

To meet the first part of the test, the defendant must identify specific acts or omissions that fell outside the wide range of professionally competent assistance. Dugan v. United States, 18 F.3d 460, 464 (7th Cir.1994); Lilly v. Gilmore, 988 F.2d 783, 785 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 154, 126 L.Ed.2d 116 (1993); Delgado, 936 F.2d at 310. Herrera-Rivera points to the circumstances surrounding the efforts required to get his attorney to attend the trial and contends that Krasnow neglected this case and was unprepared to competently defend him. In support of this argument the defendant emphasizes Krasnow's rigorous trial schedule and the fact that Krasnow appeared at trial only after the court issued a bench warrant for his arrest and had him forcefully brought to Chicago.

At first glance defendant's argument is intriguing because it seems logical to assume that where the district court is required to have an attorney arrested and brought to court just to defend his client, the attorney may not be fully prepared to put on the best possible defense for his client. It is almost routine for lawyers to have difficult schedules. A claimed hectic schedule, however, does not automatically mean that the attorney was not prepared and did not provide competent legal representation. "All attorneys must make decisions about how to allocate their scarce lawyerly resources among the many clients they may represent at any given time. Evaluating decisions is not within the province of this court. We ask only whether [the lawyer involved] performed adequately in this case." United States v. Flores, 5 F.3d 1070, 1080 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 884, 127 L.Ed.2d 79 (1994). Here the case had been pending for more than one year and there is nothing in the record suggesting that Krasnow never met with his client nor prepared for trial.

Perhaps realizing that this general assertion would be insufficient to show ineffective assistance of counsel, Herrera-Rivera asserts that Krasnow rendered inadequate representation when presenting his opening statement; presenting evidence on the CCE charge; in tendering jury instructions on the conspiracy charge; and when he failed to timely file the notice of appeal.

A. Opening Statement

Defendant argues: "One need look no further then [sic] his opening statement wherein not only did he incorrectly refer to his client, but also he failed to make any reference whatsoever to any facts at issue or matters of controversy with regard to the case." App.Br. at 10. During the opening statements,...