USCA1 Opinion

March 22, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 93-1809
RAMON A. ABREU,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
____________________
Ramon Alfredo Abreu on brief pro se.
___________________

Edwin J. Gale, United States Attorney, and Kenneth P. Madd

______________
________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
___________
convicted

on July

firearms offenses,
imprisonment.

On

Abreu's

conviction,

vacated

his

Defendant-appellant Ramon

5, 1990

of thirteen

and was sentenced

January
with

conviction

distribute cocaine.

3, 1992,
the

on

counts of

this

count

United States v.
_____________

drug and

to twenty-eight

exception
one

Abreu was

court
that

of

years

affirmed

this

court

conspiracy

Abreu, 952 F.2d

_____

to
1458

(1st Cir.), cert. denied, 112 S. Ct. 1695 (1992).

____________
On April 12, 1993,
vacate sentence under 28
grounds.

On

May 24,

Abreu filed a pro se

U.S.C.
1993, he

2255, raising a
filed an

motion to
number of

amendment to

his

motion,

raising additional

grounds.

The

denied Abreu's motion on June 7, 1993.

district

court

We affirm.

Prosecutorial misconduct in the grand jury

__________________________________________

Abreu

alleges

that

Drug

Enforcement

Administration agent, Robert Botelho, gave perjured testimony

to the grand jury that indicted Abreu.
testified
had ten

Specifically, Botelho

to the grand jury that Abreu had stated that Abreu

people working for

him.

Botelho

further testified

that in searching an apartment in Woonsocket, R.I. from which

a

handgun and $ 26,000 in U.S. currency were seized, federal

agents

also

Abreu's name.

trial
working

seized

utility

bills

correspondence

in

In contrast, other federal agents testified at

that Abreu had stated that

for

and

him; that

video

he had six or seven people

card,

insurance cards,

receipt for an insurance payment, and money transfer receipts

in

Abreu's name were seized from the apartment; and that the

money

transfer receipts

listed

the

apartment

as

Abreu's

address.
We
Botelho's

agree

with

misstatements to

prejudiced Abreu.

The

Abreu was relevant

continuing criminal
848.

the

That section

district

the

court

grand jury

that

Agent

could not

have

precise number of people working

only to his

for

conviction for conducting

enterprise in

violation of 21

requires acting "in concert with

more other persons with respect to whom such person

____

U.S.C.
five or
_______
occupies

a position of organizer, a supervisory position, or any other

position of management."
added).

It

21 U.S.C.

was therefore

supervised six people or

of no

848(c)(2)(A) (emphasis
importance

ten, as long as he

whether Abreu
supervised five

or more.
Similarly,
were

seized at the

the documents bearing Abreu's name that

apartment were relevant

Abreu to that apartment, where

offenses had been found.

only to connect

evidence of drug and firearms

The particular documents testified

to at trial -- especially the money transfer receipts listing

the

apartment

as

Abreu's

address

-3-

--

established

that

connection at least as

strongly as Agent Botelho's erroneous

testimony had.
Abreu
Botelho's
Indeed,

has

said

misstatements
given

the

misstatements and

nothing
were

to

suggest

intentional

relative

that

and

perjurious.

insignificance

the lack of resulting

Agent

of

these

prejudice to Abreu,

Abreu's allegation of perjury strains credulity.

A

showing

necessary before

of

prejudice

an indictment

the

506, 511 (1st Cir. 1991).

already has been convicted,

be

only

misconduct.
1088
there

on account

of

because of

Where, as here,
an indictment may

egregious

prosecutorial

United States v. Rivera-Santiago, 872 F.2d 1073,

_____________
_______________

(1st Cir.), cert. denied,

____________
was

is

United States v. Valencia_____________

_________

the defendant
dismissed

defendant

may be dismissed

errors in grand jury proceedings.

Lucena, 925 F.2d
______

to

no

prosecutorial

prejudice
misconduct

492 U.S. 910

here,
at

all,

and

no

(1989).

evidence

there was

no

Since
of

any

basis

to

dismiss the indictment, in whole or in part.

Sufficiency of the evidence of firearms offenses

________________________________________________

In his May 24, 1993 amendment to his

Abreu argued
him

that the

on Counts

2255 motion,

evidence was insufficient

XIII and XIV

to convict

of the indictment.

charged him with using a firearm

Count XIII

during and in relation to a

-4-

drug trafficking crime; Count XIV charged him with possession

of

an unregistered shotgun.

objects

that

the district

In his brief
court

failed

on appeal, Abreu
to address

these

claims in its dismissal order.

Both of these sufficiency-of-the-evidence arguments
were raised by Abreu

and squarely rejected by this

Abreu's direct appeal from his conviction.

F.2d

at 1466 (Count XIII),

relitigate them

Abreu, supra, 952

_____ _____

1469 (Count XIV).

collaterally in

court in

2255

Abreu cannot

motion.

United
______

States v. Michaud, 901 F.2d 5, 6 (1st Cir. 1990).

______
_______
In

light

of our

rulings

on

direct appeal,

any

failure by

the district court

inconsequential.

We

court

in its

did state

consider

to consider these

note, in any

claims already

claims was

event, that the

dismissal order
rejected

that it

by this

district
would not

court on

direct

appeal.
Abreu also
Counts XIII
serial

and XIV with

number

statement

objects that whereas he

145266,

was charged in

offenses involving a
the government

of a police officer

shotgun with

submitted

to the effect

a written

that a shotgun

bearing serial number 48084 had been test fired and was found
to

be in

operating

condition.

government

should

have

been

additional

shotgun,

and

that

Abreu contends
required
the

to

that

explain

discrepancy

in

the
this

serial

-5-

numbers

requires

that his

conviction

on

those counts

be

vacated.
We agree

with the government that

in essence this

is merely another, precluded attack on the sufficiency of the

evidence

to

convict on

officer's statement,
operability.
did

not

Counts XIII

and

XIV.

moreover, only concerned

Any discrepancy

detract from

the

The police
the shotgun's

as to serial numbers therefore

government's

evidence regarding

Abreu's possession or use of the shotgun numbered 145266.

any event, the government
that before
with

trial the

corrected

points out in its brief

government

statement

on appeal

provided Abreu's

by the

same

In

police

counsel
officer,

testifying to the operability of shotgun number 145266.

Ineffective assistance of counsel

_________________________________

Abreu's final challenge is to the district

dismissal of
at

trial.

was

his claim of ineffective

In his

ineffective

failing to

2255
for

court's

assistance of counsel

motion, Abreu claimed that counsel

opposing Abreu's

desire

pursue an evidentiary hearing;

testify;

failing to inform

Abreu

of the

Abreu

with copies of documents, such as grand jury notes and

transcripts

evidence against him;

to

and

exculpatory

and failing

materials the

-6-

to provide

government

was

required to provide to

the defense under Brady

_____

v. Maryland,
________

373 U.S. 83 (1963).

To succeed on an ineffective assistance of
claim, a
was

defendant must show (1)

deficient,

falling

reasonableness, and (2)

counsel

that counsel's performance

below

an

objective

standard

of

that counsel's deficient performance

prejudiced the defense because, but for counsel's errors, the

result of the trial would have been different.
Washington,
__________

466 U.S.

States, 926 F.2d 50,

______

668, 687-88

Strickland v.
__________

(1984); Murchu
______

v. United
______

58 (1st Cir.), cert. denied,

____________

112 S.Ct.

99 (1991).
With regard to counsel's failure to permit Abreu to
testify

--

emphasis

the point

--

Abreu has

upon

which Abreu

said

nothing

puts

the greatest

to suggest

that

failure to testify prejudiced his defense in any way.

never

specified what

he would

have said

would have turned the tide in his favor.

district court
when

Abreu

and the

asked

his

counsel

about

He has

he believes

Indeed, as both the

government note, Abreu

responded, "What are you going to say?"

not

that

his

alleged that

testifying,

counsel

Apparently Abreu did

inform counsel then, and he has shed no further light on

the question since.

In addition,

Abreu

has offered

nothing

to

cast

doubt on the district court's finding that Abreu's failure to

testify

was

a tactical

decision.

"[T]actical

decisions,

-7-

whether wise or
ordinarily

unwise, successful

form

assistance."

the

basis

of

or unsuccessful,
a

claim

of

cannot

ineffective

United States v. Ortiz Oliveras, 717 F.2d 1, 3

_____________
______________

(1st Cir. 1983).

Furthermore, given the apparent strength of

the government's

evidence, we

have no

reason to

doubt the

district court's judgment that, whatever the eventual outcome

of the trial, this tactical decision was a wise one.
With regard to the other allegations of ineffective
assistance raised
counsel

failed to

including
materials;

grand

briefly in Abreu's
provide Abreu
jury

failed to

failed to inform Abreu

notes
pursue

and
an

2255 motion

with copies

of documents,

transcripts
evidentiary

and
hearing;

of the evidence against him

similarly does not explain how

-- that

Brady
_____
and

-- Abreu

these alleged errors, if they

occurred,

prejudiced his defense.

errors prevented
later --

him from

the matters

testimony before

He

raising at

does argue that these

trial -- rather

of Agent Botelho's

the grand jury

than

allegedly perjured

and the discrepancy

in the

shotgun's serial number on the original

report of the police

operability test.

ruled, however,

As

we have already

any

such challenges would have been meritless.

In his brief
additional
not

allegations of

contained in

thereto.

on appeal, Abreu

He

his

raises a number

ineffective assistance
2255

alleges that

motion

or in

counsel failed to

the

of

that were
amendment

object to

the

examination

of

-8-

district

court's

witnesses;

failed

participation
to object

cocaine evidence; failed to

to

in
the

the

admission of

certain

object to jury instructions; and

failed to object to the prosecutor's closing argument.

Having failed
context

to present these allegations, in the

of a claim of ineffective

the district court

assistance of counsel, to

in the first instance, Abreu is precluded

from raising them for

the first time on appeal.

Dziurgot v.
________

Luther, 897 F.2d 1222, 1224 (1st Cir. 1990).

______
In
Abreu's

any

of the

this court affirmed

Abreu, supra, 952

_____ _____

make clear in

practices

to

discussion

the district court

F.2d at 1470-72.

Abreu that, in the

_____

objections, our

issues.

each

which

counsel failed to object was cited in Abreu's direct

appeal, and
point.

event,

on each

Although

we did

absence of contemporaneous

review was only

for plain

there suggested that

error, id.,
__

these were

our

not troublesome

In light of that discussion, Abreu has said nothing

to suggest that counsel's

failure to object on any

of these

points may have affected

the outcome of either his

trial or

his appeal.

Conclusion
__________

We

have

considered

each

arguments and find them meritless.

-9-

of

Abreu's

remaining

The district court's dismissal of Abreu's motion to

vacate sentence under 28 U.S.C.

2255 is affirmed.
________

-10-