USCA1 Opinion

November 3, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 93-1074

MARIA ELVIRA MORENO,

Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
*[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
___________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
______________
___________________

Maria Elvira Moreno on brief pro se.

___________________
Jay P. McCloskey, United States Attorney, and F. Mark
_________________
________
Terison, Assistant U.S. Attorney, on brief for appellee.
_______

__________________
__________________
______________________________
*Of the District of Puerto Rico, sitting by designation.

Per Curiam.
__________
one

convicted of

with Andres Gonzalez

to distribute

count of conspiring

and to
grams

Maria Elvira Moreno was

possess with
of cocaine.

States v.
______

intent to distribute
We affirmed

Moreno, 947 F.2d

______

her

in excess

of 500

conviction in

United
______

7 (1st Cir. 1991).

Moreno brought a motion under 28 U.S.C.

sentence,
had

Thereafter,

2255

to vacate her

alleging that both her trial and appellate counsel

rendered her

ineffective assistance

district court denied

her petition.

has not met her burden of

of

counsel.

Concluding

The

that Moreno

proving by a preponderance of

the

evidence

that

objective

her

counsel's

performance

fell

below

an

standard of reasonableness and that such deficient

performance

had prejudiced

her defense,

see
___

Strickland v.
__________

Washington, 466 U.S. 668, 687 (1984), we now affirm.

__________
I.

Ineffective Assistance by Trial Counsel

_______________________________________

Moreno

alleges

that

her

trial

counsel

was

ineffective for several reasons, which we discuss in turn.

Rule 29 Motions.
_________________

Moreno claims that

her counsel

moved ineffectively for a judgment of acquittal under Fed. R.

Crim.

P. 29.

submitted

because the
counsel's
convict

Moreno
written

says that
memorandum in

court would

have been

arguments that
Moreno

meritless.

her

beyond a

counsel should

support

of

better able

insufficient
reasonable

Not only is it the general

her motion
to evaluate

evidence existed
doubt.

have

Her

to

claim is

practice to make Rule

-2-

29

motions orally, without

written support, but

we have no

doubt

that the

instruction

on

reasonable

doubt

complete

court did
how to

evaluate

standard.

familiarity

denial of

not require

evidence in

Moreover,

with the

the Rule 29

any special

evidence

motion.

Thus,

the

written

light

of the

court

showed

in explaining

Moreno has

its

not shown

that her attorney's failure to submit a written memorandum in

support of
of

her Rule 29 motion fell below objective standards

reasonableness,

or that

reviewing a

written memorandum

would have altered the court's view of the evidence.

Moreno also
her Rule

faults her attorney

29 motion after

was discharged.

for not

the jury rendered its

renewing

verdict and

As it was, Moreno's attorney moved twice for

acquittal, first after the government had presented its casein-chief and
both times

then after the

close of all the

she was unsuccessful.

evidence, and

Moreno has not

said what

further arguments her attorney could have presented after the

jury

was

discharged that

would

reconsider

its prior

rulings.

shown that

she was prejudiced

have caused

the

Consequently,

court to

she has

by her attorney's

not

failure to

renew the motion a third time.

Severance/Co-Conspirator
Statements.
______________________________________
appears

to argue

because

she

Gonzalez's

that her

did not
trial,

or

move

counsel
to

because

-3-

Moreno

was ineffective

sever
she did

Moreno's
not

trial

object

either
from
to the

admission

of

testimony

by Laura

Moreno

co-conspirator
Speer that

had gift-wrapped

deliver to
derive

her

F.2d 20

(1st Cir.

section

2255

to

request

that

motion.

ruling

arguments appear

the

district

to

court's

The

raised in

magistrate

her original

interpreted

her

under

Petrozziello
____________

(although

both

and final Petrozziello findings were made by the

____________

identify a

her claim as

single

conclusory since she

co-conspirator

should have objected.

statement

The district

to

did
which

court believed

Moreno's claim essentially alleged that her counsel was

ineffective

for

Gonzalez's trial.

not

moving to

Because of

original claim, the precise

is

was to

see United States v. Petrozziello, 548

___ _____________
____________

1977), which she

court), and rejected

counsel

that

to suggest that counsel was ineffective in failing

preliminary

not

to

the

told her

cocaine Speer

Moreno's

challenge

Petrozziello finding,
____________

specifically

Gonzalez had

a package of

John Carmichael.

from

challenge

statements,

also somewhat

sever

Moreno's

the obvious ambiguity

claim to be addressed

uncertain.1

trial from

Based on

of her

on appeal

our review

of the

____________________
1. For example, strictly speaking Moreno did not complain to
the district court that her trial counsel had not moved to
sever her trial from Gonzalez's, and so, by virtue of the
"bedrock" principle in this circuit that we do not review
claims not "squarely" presented to the court below, see
___
United States v. Ocasio-Rivera, 991 F.2d 1, 3 (1st Cir.
______
_____________
1993), we normally would not consider her claim now.
Yet,
the district court analyzed her claim as if she had presented
that argument.
Because the district court discussed the
severance issue even though Moreno did not raise it, an
argument could be made that we should consider that issue on
-4-

record,

and putting

to

the

interpret Moreno's original

side the
claim, we

question

of how

conclude that

to

Moreno

has not shown ineffective assistance of counsel.

First, the trial
counsel

had moved,

transcript suggests that Moreno's

unsuccessfully, for severance,

and also

indicates that she essentially moved for severance again when

the

government

Gonzalez had
of

proffered

Laura

Speer's

testimony

that

told her that Moreno had gift-wrapped a package

cocaine intended

Moreno's attorney

for delivery

objected

by

Speer to

vigorously to

Carmichael.

the admission

of

Speer's testimony under Bruton v. United States, 391 U.S. 123

______
_____________
(1968), and Fed.
Speer's

R. Evid. 403, but the

court concluded that

testimony was

admissible

against

hearsay co-conspirator

statements

and

value

outweighed its

Moreno

that

prejudicial effect.

its

as

non-

probative

The court

also

concluded that severance was not warranted.

Second,
knew

nothing

impairing
it.

Gonzalez testified

about his

the

trial that

cocaine dealing,

Moreno's defense,

Therefore,

at

Gonzalez's testimony

district

court's

severance was not warranted was justified.

P. 14

and so,

(permitting severance where

Moreno
far from

bolstered

conclusion

that

See Fed. R. Crim.

___

a joint trial with

a co-

defendant would result in undue prejudice to a defendant).

____________________
appeal.
-5-

Third,

the

district court's

determination

under

Petrozziello that sufficient evidence of a conspiracy existed

____________
to permit co-conspirator statements to be
Moreno was not
Gonzalez and
together.
with

clearly erroneous.
Moreno

were

Although

Gonzalez

in

to effect the sale.

evidence showed that

long-time

companions

who

Carmichael most

frequently

dealt only

buying

"fetched" Carmichael,

The

introduced against

cocaine,

occasionally

bringing him to where

lived

Moreno

Gonzalez waited

Carmichael said that Moreno never spoke

to him about cocaine when he met her, but he did testify that
occasionally Moreno would hand him
look like a

gift.

Subsequently,

Carmichael to Gonzalez and had

doing

so

from

the cocaine wrapped up to

Gonzalez's

Speer, who had

introduced

received a "finder's fee" for

subsequent

Carmichael, testified about Gonzalez's

cocaine

sales

to

statement that Moreno

had gift-wrapped the package of cocaine Speer

was to deliver

to

present

Carmichael.

Furthermore,

controlled buy in New York where

Moreno

was

at

Carmichael, now helping the

government, used marked Drug Enforcement Administration funds

to

buy cocaine

from

Gonzalez;

on

that

occasion,

Moreno

arrived first to greet Carmichael, told him that he was late,

and waited

with him

for Gonzalez;

although Carmichael

Gonzalez apparently discussed the sale of cocaine out

earshot, after their

conversation was done, she

Carmichael for another half hour

-6-

and

of her

waited with

while Gonzalez went to

get

the

cocaine.

The next

countersurveillance
negotiations

day

before

with

she was

observed engaging

Carmichael

undercover

and

government

Gonzalez

in

began

agents posing

as

prospective cocaine purchasers.

She also actively urged that

Carmichael

stay

the

government

agents

involved

evidence that she

suggested

that

he

leave.

carried

significant

when

the

There

was

to Maine, where

undercover agents took place,

not just gone there on the spur

lobster dinner and

she

negotiation

had prepared for the trip

the negotiation with

she had

in

a boat ride, as

when she

was

and that

of the moment for a

she claimed.

arrested

in Maine

The purse
contained

portion of the marked money which Carmichael had

given to Gonzalez

during the controlled buy in

New York the

preceding day.
Since the evidence sufficed to show a conspiracy to
distribute
court's

cocaine

admission

statements
Therefore,
Petrozziello
____________

among Gonzalez,
of

against
counsel's
finding

Carmichael's
Moreno

was

failure
was

Moreno, and
testimony
not

to

clearly

object

not prejudicial

ineffective assistance of counsel.

Speer, the
and

Speer's

erroneous.

to

the

court's

and

so

was not

Failure to Request Special Instructions.

__________________________________________
contends

that

her

defense was

"unique"

and

Moreno

that counsel

rendered ineffective assistance by failing to request special

jury

instructions.

Moreno's

defense was

essentially that

-7-

insufficient evidence
reasonable doubt
conspiracy to

had been

that she was

distribute

vigorously to the

presented to

show beyond

a knowing participant

cocaine, and

her

counsel

jury that convicting Moreno

in the
argued

of conspiracy

would be tantamount to finding her guilty by mere association

with Gonzalez.

This defense

one, and our review of

the

strikes us as a

fairly common

the record shows that the

court gave

jury correct instructions on the elements the government

was required to prove to

Moreno

and Gonzalez

had willfully

distribute cocaine and

cocaine
conspired

and

that

convict Moreno of conspiracy:

an agreement

to possess with intent

they

knowing the

formed

had

intentionally

unlawful purpose

of

that
to

to distribute
and

willfully

the conspiracy.

The court also instructed the jury that it could not find the
defendants

guilty merely by virtue of their association with

one another or by their mere presence at the scene of a crime

knowing that a crime was being committed.
Moreno
have asked
that

alleges

further that

for an instruction

a conspiracy existed

intended

to

frustrate

her

attorney should

that the jury could

where a government

the conspiracy

is

not find

informant who

the

alleged co-

conspirator.

The conspiracy was not alleged to exist between

Carmichael,

who acted as a government informant, and Moreno,

but among Moreno, Gonzalez, and

government agents

others, and so the rule that

cannot be co-conspirators

did not

apply,

-8-

and there was

States v. Giry,
______
____

no need for such an

instruction.2

818 F.2d 120, 126 (1st

See United
___ ______

Cir.), cert. denied,

____________

484 U.S. 855 (1987).

Moreno's
alleged

other claims

need to give

of

error relating

special jury instructions

to

the

are equally

meritless.
II.

Ineffective Assistance by Appellate Counsel

___________________________________________

Moreno alleges
appeal

was ineffective

sentence.

that the lawyer who

because

he

failed

prosecuted her
to

appeal

her

According to Moreno, the district court's decision

not to decrease her base offense level by four levels for her
allegedly

minimal role

in the

conspiracy,

see U.S.S.G.
___

3B1.2, was erroneous because the evidence showed that she was
the

least culpable

court's

decision

sentencing.
Moreno

of

the

conspirators

conflicted

We cannot say
requested

erroneous, and we
court made

the

with

its

and
own

because

the

findings

at

that the court's refusal to grant

four-level

see no conflict

at sentencing and

reduction

was

clearly

between the findings

its decision not to

the

grant the

downward adjustment.
____________________
2. At the request of defense counsel, the court did instruct
the jury that it had to evaluate with particular care the
testimony of both Speer, who had violated certain conditions
of her parole and then testified at trial under a grant of
immunity, and Carmichael, who was arrested on drug charges
and testified at trial pursuant to an agreement with the
government, because both might be inclined to give false
testimony
in order to
secure certain
advantages for
themselves in view of their own violations of law.
-9-

Although section

3B1.2 indicates that

a reduction

in base

offense level is

warranted for defendants

plainly

among

culpable"

criminal

activity, guideline

defendant's
and

the least

is

the enterprise

indicative

U.S.S.G.
commentary

commentary

group

engaged in

also says

that

"lack of knowledge or understanding of the scope

structure of

others

of a

"who are

3B1.2(a),
says

of a

and of

role

comment.

further

that

as

activities of

minimal participant."

(n.1)
a

the

(Nov.

downward

1990).

The

adjustment

for

minimal participation is to be used "infrequently," and gives

as an

example of

a minimal

participant someone

whose only

role is to offload part of a single marijuana shipment or

be

courier for

a single

smuggling transaction

amount of drugs.

Id. (n.2).
___

that Moreno knew

"what was going on,"

testimony

that

Moreno

conspiracy, and concluded

was

was

At

on

of a

to

small

sentencing, the court found

the

discounted Gonzalez's
"periphery"

that the evidence showed

of

the

that she

not a minimal participant in the conspiracy, conclusions

which were

not clearly

erroneous in light

of the

evidence

presented at trial.

We note as well that the evidence showed

that the conspiracy

to which Moreno was a

and contemplated multiple

quantities of

cocaine.

party was ongoing

transactions involving significant

Accordingly, we

conclude that

the

court's

determination

that

participant was justified.

Moreno

was

not

minimal

Consequently, appellate counsel's

-10-

failure to appeal

the court's refusal to make

downward adjustment did

the requested

not prejudice Moreno and

so was not

ineffective assistance of counsel.

The judgment of the district court is affirmed.
________

-11-