Supplemental Appendix — Gonzalez-Gonzalez v. United States

(2) Supreme @eurt, U.S

FILED

No. 03 -~ 7 9May 9 - 2003

IN THE

Supreme Court of the Gnited States

MANUEL GONZALEZ-GONZALEZ,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

SUPPLEMENTAL APPENDIX

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JUDITH H. MIZNER

Counsel of Record

79 State Street

Newburyport, Massachusetts 01950

(978) 462-0505

Dated: July 9, 2003

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TABLE OF CONTENTS

Report and Recommendation of the

United States District Court

for the District of Puerto Rico,

Castellanos, U.S.M.J. ........eeeee Supp. App. 1-9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

MANUEL GONZALEZ GONZALEZ,

Petitioner, |

CIVIL ACTION NO. 99-2207 (PG)

V. CRIMINAL NO. 93-318 (PG)

UNITED STATES OF AMERICA,

Respondent

REPORT AND RECOMMENDATION

Petitioner’s motion for post-conviction relief

under 28 U.S.C. §2255 was referred to this

Magistrate. Upon receipt of the available transcripts

and with copy of the Clerk’s Office docket sheets, the

record has been reconstructed. Several issues raised

by counsel as to discovery have already been ruled by

this Magistrate through separate orders. No

evidentiary hearing is deemed necessary and the

matters relevant to resolve this post-conviction

petition are discussed below.’

The case was originated in 1993 after a federal

grand jury charged above petitioner and other

individuals -with several offenses, including

importation of controlled substances, to wit; cocaine

and marihuana, as well as a related conspiracy. A

direct appeal from his conviction, motions for new

trial, and appeal thereof, in addition to appeal from

entry of forfeiture are part of the record. All of the

1 A hearing on post-conviction motions is not necessary

where a defendant’s claim is “conclusively refuted as to the alleged

facts by the files and records of the case”. United States v.

Carbone, 880 F.2d 1500, 1502 (1st Cir. 1989).

Supp. App. 2

above referred have been duly examined and

considered by this Magistrate.

Ineffective assistance of counsel:

Petitioner claims that counsel failed to present

other witnesses to delve with the allegation that a

government’s witness had benefited from lenient

treatment of close relatives and such strategy

amounted to ineffective assistance. Such claim is not

substantiated by an examination of the trial record.

The affidavits of counsel Aponte and Castillo were

received and duly considered. Trial counsel had

ample opportunity to cross-examine the government’s

main witness, including questions before the jury’s

presence as to motive and possible benefits related to

the issue raised in the petition that his mother and

brother were not charged or prosecuted.? A district

court must evaluation counsel’s performance from

counsel’s perspective at the time, in light of the

totality of the circumstances. There is a strong

presumption that counsel’s conduct fell within the

wide range of reasonable professional competence.

Lema v. United States, 987 F.2d 48 (1st Cir. 1993)

(citing Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 2064 (1984)). The decision whether

to call a particular witness is almost always strategic.

Counsel did not fail to investigate the defense aspect

raised in the petition.

The possible impeachment of Luz Marina

Giraldo’s testimony through her statements prior to

the trial, should be contemplated together with the

known fact that it was not until the fourth day of trial,

as recognized by petitioner’s counsel closing

arguments, that she decided to enter a plea of guilty

and agree to cooperate with the government against

co-defendant. Up to that time, she was sitting at the

2 Transcript 2-1-96, pp. 1226-1227, 1231; Tr. 2-2-96, pp.

1251, 1322-1323; Tr. 2-5-96, pp. 1399.

Supp. App. 3

defense table. Not only her own benefit in making a

deal thereafter with the government was presented by

defense counsel for petitioner, but arguments to

impeach her testimony as a scorned lover, were also

submitted before the jury. Thus, the jury was made

aware of this witness’ possible self-interest and could

assess her credibility within the required parameters,

including her previous denial of petitioner’s

participation in the offense through letters while they

were both in jail, awaiting trial. Petitioner’s

arguments that counsel failed to submit impeachment

evidence as to Luz Marina’s testimony insofar as what

she had said on prior occasions is belied by the

record. In addition, this was not the only co-

conspirator who testified against defendant; to wit;

Ricardo Rivero and Roberto Garraton-Rivera also

testified as to the defendant’s drug trafficking

activities. Other cooperating witness and an

undercover FBI agent additionally testified, together

with recorded conversations, surveillance photos,

passport entries, travel, and telephone records, as to

the charged illegal activities. Petitioner was not facing

a judicial proceeding in which the government’s

burden was less than compelling.

; Counsel and defendant were provided with the

recording of conversations between the government’s

informants and the defendants, as well as the

transcripts. Regarding the issue that transcripts

presented through the pointer system were

highlighted and not fully preserved as presented, the

jury entertained the taped recordings, not the

3 Transcript 2-14-96, pp. 2425-2426.

4 This issue was also raised in defendant’s appeal where it

was determined that there was no reasonable probability that the

jury, had it known the true extent and earlier dated of her

cooperation with the government, would have reached a different

verdict.

Supp. App. 4

transcripts of said conversations, as instructed that

transcripts were not evidence.5

Apprendi claim:

There was evidence during trial as to the

conspiracy and the importation charges related to the

amount of the loads of controlled substances. The

prosecutor’s closing statements summarizes these

events and amounts of controlled substances were

attributed to the conspiracy through the testimonies

of numerous witnesses’. The Apprendi® issue raised

by petitioner in the supplemental motion should also

be subject to summary dismissal. In Apprendi, the

Supreme Court held that the due process clauses of

the Fifth and Fourteenth Amendments make the jury

the proper decision maker and the reasonable doubt

standard is the proper burden, when a fact raises the

maximum lawful punishment. This is only applicable

in situations where “the judge-made factual

determinations increases the maximum sentence

beyond the statutory maximum, and not in situations

where the defendant’s potential exposure is increased

within the statutory range.” United States v. Baltas,

236 F.3d 27, 41 (1% Cir. 2001). Finally, defendant

was sentenced by the Court within the sentencing

S Transcript 2-2-96, p. 1181; Id. 1188; Tr. 2-5-96, p.

1523.

6 A total of 12 bags of marihuana for 58 pounds, and 204

blocks of cocaine, for 478 pounds examined as testified by the

expert witness at trial. (Tr. 2-5-96, pp. 1359-1361). Other witness’

testimony also made reference to the 625 kilos arranged to be

imported into Puerto Rico and part thereof was transported to New

York (Tr. 2-5-96 pp. 1427-1466, 1472-1476), as well as

participation in other substantial importations (Id. pp. 1504-

1515). See also reference to transportation of 69 kilos of cocaine

and of 20 kilos of cocaine (Tr. 1-24-96, p. 399; Tr. 1-25-96, p.

438).

7 Transcript 2-14-96, pp. 2371-2382, 2384, 2386.

8 Apprendi v. New Jersey, 530 U.S. 466 (2000).

Supp. App. 5

guideline range of his conviction and same became

final back in 1998 with denial of the certiorari filed

before the Supreme Court subsequent to the direct

appeal decision of February 5, 1998.° Furthermore,

the arguments raised under Apprendi fail to present a

challenge to the conviction nor to the question of guilt

or innocence in this post-conviction motion.

Claim of use of highlighted portions of transcripts

by the prosecution:

Petitioner’s claim, that the witness was allowed

to interpret and misconstrue the recorded

conversations, fails to address the coded nature of the

language used by the participants.'© Counsel for

petitioner argued that there was no specific drug talk

in the tape recordings, except for the explanations

provided by the government’s witness that interpreted

the coded talk as drug talk.!! The jury would not

have fully comprehended the nature of the

conversation without the witness’ explanations. The

trial court discussed the issue and determined,

without finding, there was no discrepancy pointed out

between the transcripts and the _ recorded

conversations nor of what was played in the monitors.

Defendant was given an opportunity to play, in

addition, any tape he wanted to present into evidence

or all of them. Thus, a review of the record belies the

péetitioner’s allegation that the jury was provided with

9 As this Court has held on numerous occasions, “[n]o

Apprendi violation occurs when the district court sentences a

defendant below the default statutory maximum’. United States v.

Barnes, 244 F.3d 115, 119 (1* Cir. 2001). United States v.

Campbell, slip op. No. 00-2493 (1% Cir. October 11, 2001), 2001

WL 1181100.

10 Transcript 1-29-96, p. 907; Tri. 1-30-96, p. 1017; Tr. 1-

31-96, p. 1060; id. p. 1063; Tr. 1-30-96, p. 959; Id. p. 962; Tr. 2-

1-96, pp. 1218-1223; Tr. 2-2-96, pp. 1258-1259, 1268.

11 Transcript 2-14-01, p. 2419.

Supp. App. 6

highlighted transcript and in fact defendant

addressed the Court indicating the transcripts were

exactly a copy of what was said on the tapes. As to

redacted portion of three pages considered irrelevant

to the matter being tried, the Court made then a

ruling and defendant, who also had the tapes, could

have played same to the jury as part of his defense

strategy.!?

Court Rulings:

Petitioner raises that the Court failed to allow

him pro-se representation as he initially requested.

The record shows defendant requested the Court for

his participation in certain parts of the case but not

for the resignation of his counsel. Prior to trial, at the

Carbone hearing held after a trial date was already

scheduled, defendant indicated he would not

appreciate any further continuances to be granted. At

that time, no mention of a request for pro-se

representations was then made. To the contrary,

defendant indicated Attorney Moskowitz would still

represent him and he wanted that, if possible, legal

representation be one between counsel and

defendant, that is, so he would take part in his own

defense.!3 The Court considered and discussed the

defendant’s petition at trial and indicated to

defendant he not only lacked legal training but had

also to protect the rights of other defendants in the

case, who opposed the defendant’s participation since

he could prejudice their clients.14 Still, the record

does not show the defendant requested full pro-se

representation nor made any petition to waive

counsel, but rather to extend his participation. On

the first day of trial, the record further shows that, if

12 Transcript 2-9-96, pp. 1983-1989; Id. 1991.

13 Transcript 12-7-95, pp. 4-7.

14 Transcript 1-22-96, pp. 4-10; Tr. 2-23-96, pp. 4-11.

Supp. App. 7

anything, defendant first considered he have had

hybrid representation and complained about not

meeting with his local, not his state counsel, and that

because of the limitations imposed by his

incarceration he was not personally able to help his

attorney with the facts. It was on the same day of

trial and after considering the Court had denied his

petition to actively participate, with the opposition of

other defendants, that defendant again indicated he

would like to proceed pro-se, but still with the aid of

counsel.

Other issues raised by petitioner:

Defendant has additionally raised ineffective

assistance by appellate counsel. The government

submitted an affidavit of Attorney Besser stating not

having seen merit as to issues except for the ones

ultimately raised on appeal, as it was his professional

opinion, upon consultation with defendant.

Notwithstanding, petitioner has raised those and

numerous other issues through his subsequent

motions for new trial and the appeal thereof, all found

finally without merit.15 The ineffectiveness of counsel

on appeal claim should be subject to summary

dismissal.

Evidence as to money laundering was objected

by counsel and denied by the presiding court since

the evidence of money laundering was related to the

drug conspiracy charges.** A similar evidentiary

ruling was made by the trial court as to the defendant

not being a tax payer and that he owned cattle, which

was also consequence of his defense as to sources of

1S The Court of Appeals for the First Circuit had in

addition a Petition for Rehearing and Permission to File

Supplemental Brief presenting the issues of appellant not raised

by his counsel which was subsequently denied. See Order of

February 26, 1998, No. 96-2280.

16 Transcript 1-25-96, p. 566; Tr. 2-1-96, pp. 1195-1196.

Supp. App. 8

income and as relevant to the conspiracy.!7 Still, even

an erroneous evidentiary ruling, which is not the

above discussed; would require jury verdict to be

vacated only if such ruling excluded evidence and the

exclusion resulted in actual prejudice. On appeal,

review would have been under abuse of discretion

standards and petitioner has not presented grounds

for ineffectiveness of counsel for not presenting those

issues to the Court of Appeals.

As to those issues previously raised by

petitioner’s through his direct appeal and/or the

motions for new trial, these need not be reviewed

again by way of a motion for post-conviction relief.'®

Dirring v. United States, 370 F.2d 862, 864 (1% Cir.

1967) cited in Barrett _v. United States, 965 F.2d

1184, 1190 n.11 (1* Cir. 1992). See also Singleton v.

United States, 26 F.3d 233 (1st Cir. 1994).

In light of the above discussed, this magistrate

is of the opinion and recommends that the plethora of

claims raised in petitioner’s motions for post-

conviction relief requested BE DENIED.

IT IS SO RECOMMENDED.

The parties have ten (10) days to file any

objections to this report and recommendation.

Failure to file same within the specified time waives

the right to appeal this order. Henley Drilling Co. v.

McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United

States v. Valencia, 792 F.2d 4 (1st Cir. 1986).

17 Transcript 2-9-96, pp. 2010-2011.

18 United States v. Manuel Gonzalez-Gonzalez, slip op. No.

00-2014, (1% Cir. July 19, 2001); United States v. Gonzalez-

Gonzalez, 106 F.Supp.2d 269 (1% Cir. 2000); United States v.

Gonzalez-Gonzalez, 136 F.3d 6 (1% Cir. 1998). See also Manuel

Gonzalez Gonzalez v. United States, slip op. No. 00-1564 (1% Cir.

July 23, 2001).

Supp. App. 9

In San Juan, Puerto Rico, this 30th day of

October, 2001.

J. ANTONIO CASTELLANOS

UNITED STATES MAGISTRATE JUDGE