USA v. Gonzales-Vazquez

• Decision Date: 08 March 2000
• Docket Number: HERNANDEZ-NEGRO,GONZALEZ-VAZQUE,D,No. 98-2108,98-2109,98-2108
• Citation: 219 F.3d 37
• Parties: (1st Cir. 2000) UNITED STATES, Appellee, v. WALDEMARefendant, Appellant. UNITED STATES, Appellee, v. HECTORefendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 37

219 F.3d 37 (1st Cir. 2000)

UNITED STATES, Appellee, v. WALDEMAR GONZALEZ-VAZQUEZ, Defendant, Appellant.

UNITED STATES, Appellee, v. HECTOR HERNANDEZ-NEGRON, Defendant, Appellant.

No. 98-2108, 98-2109

United States Court of Appeals For the First Circuit

Heard March 8, 2000.

Decided July 18, 2000.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Hector M. Laffitte, U.S. District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Lydia Lizarribar-Masini for appellant Gonzalez-Vazquez.

Mauricio Hernandez Arroyo for appellant Hernandez-Negron.

Antonio A. Bazan, Assistant United States Attorney, with whomGuillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, Chief, Criminal Division, and Camille Velez-Rive, Assistant United States Attorney, were on brief, for the United States.

Before: Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

Hector Hernandez-Negron and Waldemar Gonzalez-Vazquez appeal from their convictions following a trial for conspiracy to distribute controlled substances and aiding and abetting the distribution of controlled substances within one thousand feet of a school. Hernandez claims that he received ineffective assistance of counsel when his trial attorney failed to accept a plea bargain as instructed, and that the government then violated his constitutional rights by withdrawing the original plea offer and offering a new "package deal" plea bargain that Hernandez could only accept if his two remaining co-defendants also pled guilty. Hernandez also argues that the district court misapplied U.S.S.G. § 3B1.1 in finding him to be a "manager or supervisor" of the criminal activity. Gonzalez challenges the sufficiency of the evidence, arguing that it was based solely on testimony from the government's confidential informant. We reject these arguments (as well as several arguments concerning evidentiary errors) and affirm the convictions and sentence of Hernandez and the convictions of Gonzalez.

I. Background

We recite the facts in the light most favorable to the jury's verdict, consistent with record support. See United Statesv. Hughes, 211 F.3d 676, 679 (1st Cir. 2000). In January 1995, FBI Agent Michael Anderson learned that an individual named Angel Gonzalez-Ortiz, a.k.a. "Pichi," headed a gang that distributed illegal drugs at the Luis Pales Matos housing project in Guayama, Puerto Rico. The distribution point was within 1000 feet of the Pales Matos Public School. Anderson opened an investigation, assisted by Agent Jose Tirado, a Puerto Rico Police officer who had performed some initial investigation of the drug ring. Anderson met with a confidential informant ("CI"), Ramonita Masso-Nieves, who had assisted Agent Tirado in his initial investigation. To corroborate the information provided by Masso, Anderson set up two video surveillance cameras at the drug point, recording numerous drug deals.

In February 1996 a Grand Jury returned a two-count indictment against twenty-two individuals, charging a conspiracy to distribute controlled substances in violation of 21 U.S.C §§ 841(a)(1) & 846 and aiding and abetting the distribution of controlled substances within 1,000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) & 860 and 18 U.S.C. § 2. Shortly after the indictments, the government offered plea bargains to all of the co-defendants. Nineteen of the twenty-two co-defendants accepted a plea bargain; Hernandez, Gonzalez, and Louis Bonano-Serrano went to trial.

The jury trial lasted seven days. Through surveillance videotapes, the jury saw drug transactions involving many of the individuals who had pled guilty. Hernandez Gonzalez, and Bonano, however, did not appear in these videos. The government attempted to link the defendants to the conspiracy through the testimony of Masso and Agent Tirado. Masso testified that, from her experience working at the drug point, she knew that Hernandez, Gonzalez, and Bonano were the "guilterro" or "triggermen" for Pichi, insuring that the kingpin and his interests were protected. She further testified that Gonzalez had provided drugs to the distribution point and that Hernandez was second in command, after Pichi himself. She also testified that on one occasion Hernandez had used her apartment to package drugs, and that she called Agent Tirado to inform him. Agent Tirado confirmed this, testifying that upon arriving at Masso's apartment, he found Hernandez and two others sitting around a table packaging a powder that a feld test indicated was cocaine. A chemist testified that later laboratory tests also indicated that the substance was cocaine. Tirado also testified thatwhen he stopped Gonzalez for a traffic violation he found a bag containing drug packaging paraphernalia.

Gonzalez and Bonano did not offer defense witnesses. Hernandez offered one witness: a co-conspirator who had pled guilty, and who testified that Hernandez had been with him when Agent Tirado came to Masso's apartment and found them packaging drugs. The jury found Hernandez and Gonzalez guilty on both counts. Bonano was acquitted. Hernandez was sentenced to 450 months and Gonzalez was sentenced to 360 months.

We evaluate Hernandez's claims first, turn then to the issues raised by Gonzalez, and finally address an issue raised by both appellants.

II. Hernandez

A. The Plea Bargain

Hernandez raises two arguments related to his unsuccessful efforts to obtain a plea agreement from the government. Like all of the twenty-two original co-defendants, Hernandez was offered a plea agreement after he was indicted in 1996. Nineteen of the co-defendants accepted the plea bargain and were sentenced to between eighteen and forty-six months. Hernandez, however, deferred a decision on the plea offer while preparing a motion to dismiss. After that motion was denied, Hernandez moved to compel the government to honor the initial plea agreement. The government responded that there had been no agreement. Rather, there had only been an offer that Hernandez had not accepted and that was now withdrawn. The government further stated that it had advised Hernandez that "trial preparation in this case would be the same against one or against any of the three co-defendants."

1. Ineffective Assistance of Counsel

Hernandez argues that he received ineffective assistance of counsel because his trial counsel mishandled the plea bargaining process by grossly underestimating Hernandez's potential sentence if the case were taken to trial, having stated that Hernandez could face a maximum of a ten year prison term when in reality he faced a life sentence (and in fact received thirty-seven and a half years). Additionally, Hernandez asserts that his trial counsel failed to accept the plea offer as instructed, allowing the offer to lapse. Hernandez asserts that he went so far as to call his sisters in the United States to enlist their help in bypassing his attorney and communicating to the government that he wanted to accept the plea bargain.

If true, Hernandez's claims would present a serious ineffective assistance question. See Boria v. Keane, 99 F.3d 492, 496 (1st Cir. 1996) ("A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable."); id. at 496-97 ("The decision whether to plead guilty or contest a criminal charge . . . must ultimately be left to the client's wishes."). However, "[w]e have held with a regularity bordering on the monotonous that fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court." United States v. Berros, 132 F.3d 834, 841 (1st Cir. 1998) (quoting United States v. Mala, 7 F.3d 1058, 1062-63 (1st Cir. 1993)); see also United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991); United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989); United States v. Costa, 890 F.2d 480, 482-83 (1st Cir. 1989).

While there is an exception to this bar in cases "where the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration of the ineffective assistance claim," United States v. Soldevila-Lopez, 17 F.3d 480, 485 (1st Cir. 1994), Hernandez's claims require the resolution of factual disputes. We thus follow our usual practice of dismissing this portion of the appeal without prejudice to Hernandez raising the ineffective assistance claim in a 28 U.S.C. § 2255 petition. See id.

We note, though, that this seems to be one of the "rare section 2255 cases in which the appointment of counsel [would be] warranted." Mala, 7 F.3d at 1064. As in Mala, the allegation of ineffectiveness is serious and the record provides some support for the defendant's claim. Under the initial plea agreement that Hernandez's trial counsel allegedly refused to accept, Hernandez would have likely received forty-six months, given a reduction for acceptance of responsibility and the government's willingness to drop the aiding and abetting count and stipulate that Hernandez was only responsible for a fraction of the drugs. Both at the sentencing hearing and in an affidavit filed on appeal, Hernandez stated that he had instructed his trial attorney to accept the plea bargain because it was much less severe than the twenty years he was serving on Puerto Rico charges relating to his involvement in the conspiracy. ¹ After trial, Hernandez received a sentence of thirty-seven and half years--almost ten times the sentence he would have likely received pursuant to the proposed plea agreement. Moreover, the court ruled that the federal sentence could not be served concurrently with the related twenty year Puerto Rico sentence because the local courts were "too lenient." We therefore "direct the district court,...