U.S. v. Ritch, 77-1348

• Decision Date: 13 November 1978
• Docket Number: No. 77-1348,77-1348
• Citation: 583 F.2d 1179
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. John Carlyle RITCH, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1179

583 F.2d 1179

UNITED STATES of America, Plaintiff, Appellee, v. John Carlyle RITCH, Defendant, Appellant.

No. 77-1348.

United States Court of Appeals First Circuit.

Submitted Sept. 7, 1978.

Decided Sept. 22, 1978.

Certiorari Denied Nov. 13, 1978. See 99 S.Ct. 463.

James B. Krasnoo, Boston, Mass., by appointment of the court, and Norris, Kozodoy & Krasnoo, Boston, Mass., on brief for appellant.

Julio Morales Sanchez, U. S. Atty., and Jose A. Quiles, Asst. U. S. Atty., San Juan, P. R., on brief for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Defendant-appellant was indicted for possession and importation of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 952(a), following his arrest at the San Juan International Airport on April 28, 1976. When appellant failed to appear for trial of the drug charges on August 23, 1976, his bail was forfeited and an indictment was returned charging him with violation of 18 U.S.C. § 3150. After he was apprehended and returned to Puerto Rico in January, 1977, the district court, over appellant's objection, ordered that the drug and bail jumping charges be consolidated for trial. Appellant was found guilty after a jury trial on all three counts. He appeals from his convictions, arguing (1) that joinder of the drug and bail jumping charges was improper; and (2) that he was not afforded effective assistance of counsel in violation of his rights under the Sixth Amendment. Finding no merit in either claim, we affirm.

I.

Under Rule 13, Fed.R.Crim.P., the court may order that two or more indictments be tried together if the offenses could have been joined in a single indictment. Rule 8(a) sets forth the test for joinder. It provides that "(t) wo or more offenses may be charged in the same indictment . . . if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or On two or more acts or transactions connected together or constituting parts of a common scheme or plan." (Emphasis added.)

Appellant first argues that a consolidated trial of the cocaine and bail jumping charges was improper under Rule 8 since those offenses are not of a similar character. The simple answer to this claim is that the scope of Rule 8 is broader. It also permits joinder where the offenses are "connected together". It is well established that a charge of bail jumping or escape may be deemed sufficiently "connected" with a substantive offense to permit a single trial, at least where the charges are related in time, the motive for flight was avoidance of prosecution, and appellant's custody stemmed directly from the substantive charges. See, e. g., United States v. Quinones,516 F.2d 1309, 1312 (1st Cir.), Cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76 (1975); United States v. Bourassa, 411 F.2d 69, 74 (10th Cir.), Cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Bayless v. United States, 381 F.2d 67, 71-72 (9th Cir. 1967); See also United States v. Elliot, 418 F.2d 219 (9th Cir. 1969).

Even though consolidation of offenses for trial is proper under Rules 8(a) and 13, a defendant nonetheless may seek severance of the offenses pursuant to Rule 14. Motions for severance, however, are addressed to the discretion of the trial court, See, e. g., United States v. Luna, 585 F.2d 1 at 4 (1st Cir. 1978), and a defendant bears a heavy burden to establish abuse. United States v. Somers, 496 F.2d 723, 730 (3rd Cir.), Cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Abshire, 471 F.2d 116, 118 (5th Cir. 1972). To prevail, a defendant "must make a 'strong showing of prejudice' likely to result from a joint trial." United States v. Luna, Supra, Quoting Sagansky v. United States, 358 F.2d 195, 199 (1st Cir.), Cert. denied, 385 U.S. 816, 87 S.Ct. 36, 17 L.Ed.2d 55 (1966). Moreover, the prejudice that must be shown is something "more than just a better chance of acquittal" at separate trials. United States v. Martinez,479 F.2d 824, 828 (1st Cir. 1973).

Against these principles, appellant's claim must fail. He first asserts prejudice stemming from the fact that the jury at his consolidated trial was exposed to evidence of both offenses and may have used evidence of guilt as to one to infer guilt as to the other. Concededly, the law recognizes that the prejudicial impact of evidence of a defendant's other crimes often outweighs its probative value and therefore that such evidence should not be admissible to prove criminal disposition. See, E. g., Fed.R.Evid. 404(b). Accordingly, courts often have found joinder of unrelated offenses for trial improper, when it would result in the jury's exposure to evidence of the defendant's other misdeeds. See, e. g., King v. United States, 355 F.2d 700, 704 (1st Cir. 1966); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). Yet, there is a well established qualification to this rule in cases where one of the joined offenses involves escape or flight from prosecution. The courts consistently have held that evidence of flight is admissible, from which the jury may draw an inference of the defendant's consciousness of guilt. See, E. g., United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976), Cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 581 (1977); United States v. Rowan, 518 F.2d 685, 691 (6th Cir.), Cert. denied, 423 U.S. 949, 96 S.Ct. 368, 46 L.Ed.2d 284 (1975); United States v. Bourassa, Supra ; Hanks v. United States, 388 F.2d 171, 175 (10th Cir.), Cert. denied, 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131 (1968); United States v. Accardi, 342 F.2d 697, 700 (2d Cir.), Cert. denied, 382 U.S. 954, 86 S.Ct. 426, 15 L.Ed.2d 359 (1965). Thus, since the facts concerning appellant's failure to appear for trial would have been admissible at trial of the drug charges in any event, no prejudice arose from joinder of the offenses. United States v. Bourassa, Supra.

Appellant concedes that the evidence at trial was not complicated and that it is clear that the jury was in no way confused by consolidation. See United States v. Luna, Supra. He argues, however, that consolidation deterred him from presenting fully his defense. We see little in fact or reason to support this claim. Appellant did not testify at trial. He concedes that he had no viable defense to the bail jumping charge and then maintains that joinder inhibited him from taking the stand in support of his defense to the drug charges. At trial, defense counsel did attempt to establish that appellant had been on a hunting trip in Colombia prior to his arrest at San Juan Airport and argued that the drugs found in his luggage had been placed there without his knowledge. Even assuming that appellant would have been subject to some damaging cross-examination concerning his failure to appear for trial, we fail to see how that constituted any substantial deterrent to his testifying in support of his drug defense if he and his counsel genuinely thought it advisable. Appellant does not and cannot claim that his defenses to the separate charges were logically or factually inconsistent. His flight, while damaging, does not require the conclusion that he was guilty of the substantive counts. While he may have fared better on the drug charges had the jury not known of his flight, something more than simply a better chance of acquittal is required to show undue prejudice. United States v. Martinez, Supra. We conclude that appellant suffered no impermissible prejudice in the consolidated trial.

II.

Appellant next contends that the ineffectiveness of his court appointed counsel deprived him of his rights under the Sixth Amendment. In support, he points to numerous alleged errors and omissions by counsel which, it is claimed, singularly or cumulatively amount to a constitutional violation. We note only the most significant. Appellant complains that his counsel failed to seek suppression of the drugs seized after search of his luggage; that as a result of the short time between the appointment of counsel and trial, counsel failed to interview potential defense witnesses; that counsel failed to object to certain hearsay testimony and unresponsive answers by government witnesses; and finally, that counsel did not cross-examine effectively.

In this circuit, ineffective assistance of counsel "means representation such as to make a mockery, a sham or a farce of the trial." United States v. Wright, 573 F.2d 681, 683-84 (1st Cir. 1978), Quoting United States v. Madrid Ramirez, 535 F.2d 125, 129 (1st Cir. 1976). While we have left open the possibility of adopting the more lenient "reasonably competent assistance" standard, See id. at 129-30, we need not reach that question here, because we are convinced that appellant's representation was constitutionally adequate under either test.

Appellant's first allegation that counsel failed to seek suppression of the fruits of the customs search is factually incorrect and legally insufficient. The record reveals that trial counsel did move to suppress the evidence and to have the drug charges dismissed at the close of the government's case. Denying the motion, the district court held that the evidence had been properly admitted. Even if we assume, however, that suppression motions generally should be made before the commencement of trial, appellant's claim must fail.

The decision whether or not to make various pretrial motions is a matter of trial tactics generally not reviewable under a claim of ineffective assistance. See Moran v. Hogan, 494 F.2d 1220, 1223 (1st Cir. 1974); Cottman v. Donnelly, 398 F.Supp. 1086, 1092 (D.Mass.1975). Moreover, counsel is not required to make futile or frivolous motions. United States v. Wright, Supra, 573 F.2d at 684. From the record it seems clear, as the district court found, that the search was not improper. The arresting customs inspector testified that appellant, after deplaning from...