USCA1 Opinion

March 15, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 92-2283
JORGE HERNANDO HOYOS-MEDINA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos

Antonio Fust , U.S. District Judge]

___________________
____________________
Before
Breyer, Chief Judge,
___________

Torruella and Selya, Circuit Judges.

______________
_____________________
Frank D. Inserni for appellant.
________________

Jos
A. Quiles-Espinosa, Senior Litigation Counsel, with
_________________________
whom Daniel F. L pez-Romo, United States Attorney, was on brief
____________________
for appellee.

____________________
____________________

Per Curiam.
___________
appeals the denial of
his

conviction.

violation

of

Constitution.

Appellant

Jorge

his 28 U.S.C.

For

sixth

amendment

the reasons

Hoyos-Medina

2255 petition to

He claims ineffective
the

Hernando

reverse

assistance of counsel in
of

the

stated below, we

United

States

find that

the

district court properly denied the petition.

BACKGROUND
BACKGROUND
__________
Appellant

was convicted

of

violations

of 21

U.S.C.

952(a), 841(a)(1), 955 for possession and importation into the

United

States,

of 10.4

kilograms

of cocaine.

Appellant was

arrested

while

traveling

from

Bogot ,

Switzerland on Iberia Airlines.

Colombia

to

The plane stopped in

Geneva,

San Juan,

Puerto Rico and

was searched by United States Customs officials.

The

isolated

inspectors

suitcase

what

was alleged

to

be

because it was heavy and had irregular stitching on the

outside

that

suggested the

bag had

secret compartment.

search of its contents revealed a stash of cocaine.

bore

baggage claim

ticket; a

appellant's handwriting and

Iberia

appellant's

plastic

Airlines control number.

The suitcase

name tag,

identifying the bag

written in

as his; and

an

The control number is placed on

the baggage, the airline ticket, and the boarding pass, to insure
that

the passenger who checked-in

boards

the aircraft.

passenger

or

it

Every

is removed

Because the control number

attached without

a particular piece of luggage

bag

must

be

accompanied

from

the

plane

before take-off.

is an antiterrorist safeguard,

the passenger's knowledge.

by

it is

Appellant's ticket

and boarding pass corresponded to

the control number attached to

the

officials

suspect

luggage.

Customs

arrested

appellant

primarily on the basis of this matching control number.

Appellant maintains that he was traveling to Madrid and

Geneva for pleasure, and to purchase dental equipment for the son
of a friend.
tag, he

While appellant admitted writing the identification

denies ownership

claims that when he

airport, he

of the

suspect

suitcase.

Appellant

approached the Iberia counter in

was asked

by the

female attendant

the Bogot

to fill

identification tag for his carry-on bag and to pay the

He

contends

that he

left his

unattended at the counter to

bag

and the

out an

exit tax.

identification tag

get exact change to pay the

the direction of the Iberia check-in official.

tax at

When he returned,

the female attendant had been replaced by another individual, who

instructed appellant
begun.
was

to

hurry to

Appellant argues that

out

of

his

sight,

the gate

since boarding

during the mix-up,

an

employee

must

had

while his bag

have

put

the

identification tag he filled out on someone else's baggage.

After a
trial

jury convicted appellant,

counsel moved

to withdraw

from the

court granted the motion, appointed

represent

appellant

at

his court-appointed
case.

The district

a federal public defender to

sentencing,

and

sentenced

appellant

according to the guidelines.

In United States v. Hoyos-Medina, 878 F.2d 21 (1st Cir.

_____________
____________
1989), we
the

affirmed the conviction but allowed appellant to raise

ineffective

assistance of

proceeding, since it

was not

counsel

claim

in a

properly before the

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collateral

court at

the

time

of the

this

ineffective assistance

court.

first appeal.

Appellant
of

unsuccessfully presented

counsel claim

in the

district

We now turn to the merits of his claim.

DISCUSSION
DISCUSSION
__________
In Strickland
__________

Supreme

Court

assistance

below

established

of

petitioners

v. Washington, 466 U.S.

__________

counsel

two-prong

claims.

to demonstrate

The

test

for

first

that "counsel's

668 (1984), the

prong

Id. at 688; see

___
___

also L pez-Nieves v. United States, 917 F.2d 645, 648

____ ____________
______________

the

This aspect of the test

court begins

with the

requires

representation fell

an objective standard of reasonableness."

1990).

ineffective

(1st Cir.

presents a formidable hurdle, as

presumption that

"counsel's conduct

falls within the wide rage of reasonable professional assistance;

that is, the defendant must overcome the
the

circumstances, the

sound

prong

prejudiced.
is

challenged action

trial strategy.'"

second

demands

presumption that, under

Id.
___
a

at 669

showing

'might be

(citation omitted).
that

defendant

More specifically, defendant must

reasonable

unprofessional errors,

probability
the result

considered

that,

but

has

The

been

show that "there

for

counsel's

of the proceeding

would have

been different."

Id. at 694; see also L pez-Nieves, 917 F.2d at

___
________ ____________

648.
Appellant alleges
counsel.

several errors on the

part of trial

He contends that counsel improperly (1) failed to seek

a continuance to secure
bolstered

witnesses and documents that

appellant's version

of

the facts;

would have

(2) attempted

to

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coerce

appellant

arrogance towards
We begin

by

into

pleading

appellant and

analyzing

the

guilty;

and

(3)

acted

indifference towards

specific pieces

of

appellant claims trial counsel negligently failed

with

his case.

evidence

that

to investigate

and introduce into evidence.

First,

appellant

maintains

sought a continuance, he would have

that, had

wife.

The

two were

cross-examination

of

We note, however,

decided not to call appellant's

separated at
the

counsel

presented testimony from his

wife and friends regarding his good character.

that counsel reasonably may have

trial

wife

compromising matters for defendant.

the time
might

of the

have

trial, and

ventured

into

Therefore, the decision not

to call her was

within "sound trial strategy."

Strickland, 466
__________

U.S. at 669.
With

respect to

other character

that if appellant wished to have

should have
offered no

called them.

witnesses, we

admit

such witnesses testify, counsel

At the

2255

explanation for failing to

hearing, trial counsel

call character witnesses.

But, assuming arguendo that such omission constitutes objectively

________
unreasonable professional
the

failure to

offer

probably would have

light

of the strong

conduct, we cannot say

testimony of

turned out

good

that 'but for'

character, the

differently.

Id. at
___

evidence linking appellant

694.

trial

In

to the luggage,

the omission of character witnesses was not prejudicial.

Second, appellant
letter

from

an

official

claims that he would

at

Iberia

Airlines,

have offered a
stating

that

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appellant checked one piece of luggage weighing 21 kilograms

which he did not have to pay an overweight charge.
the

for

Putting aside

question of admissibility,1 such a letter would be of little

assistance to appellant unless the disputed bag weighed in excess

of 21

kilos.

the weight
failure

Since the record shows no evidence with respect to

of the suitcase
to

introduce

unreasonable.

seized by the
the

government, counsel's

document

was

not

objectively

It is unhelpful to argue that trial counsel should

have attempted to get evidence that the disputed suitcase weighed

more than defendant's luggage.
require that

we reverse

unsupported allegation
evidence.
to

To grant such an

a conviction

based on

of the possible

In the context of a

succeed, appellant

must be

argument would

the defendant's

existence of exculpatory

2255 collateral attack, in order

able to

point to

some concrete

evidence that the trial counsel should have presented.

The defect
apparent.
appellant
of

At the

in appellant's line of
hearing on

appeal, counsel

said that

was not given the opportunity to show that his version

the story

was true.

identification

tag in

He maintained
front

of a

separated from his

bags at

counter,

be hustled

maintained

this

argument is readily

only
that

to

during

his

that he

female

check-in clerk;

her direction; and

off

to

absence

the
the

filled out the

returned to

gate.

He

was

the

further

identification

tag,

____________________

1 The district court opined that much of appellant's documentary

evidence would have been inadmissible without foundation or live
testimony.
Hoyos-Medina v. United States, No. 92-1373, slip op.
____________
_____________
at 4 n.3, 5 n.4 (D.P.R. July 22, 1992).
-6-

written in his hand-writing, had been attached to someone

suitcase

filled with cocaine.

counsel

could

produce

When asked by

witness

to

else's

the court whether

corroborate

appellant's

version, or whether the record showed whether such a witness ever

existed,
found

counsel replied

one.

Such a bald

only

that trial

counsel should

have

assertion cannot support a reversal for

ineffective assistance of counsel because we

do not know whether

there was a witness that trial counsel unprofessionally failed to

discover.

Third, appellant claims that counsel failed to obtain a

letter

or

testimony

from

the

son

of a

friend

(who

is

an

orthodontist) corroborating appellant's story that the purpose of

the trip was, in
behalf.

While

helpful

to him,

trip.
cannot

But,

part, to purchase dental equipment on the son's

corroboration of

this purpose

appellant testified

like the

failure to bring

say that 'but for'

the letter, there is a

as to

would have

the purpose

been

of his

character witnesses,

the failure to

we

solicit and introduce

reasonable probability -- one "sufficient

to undermine confidence in the outcome" -- that the verdict would

have been different.

Id. at 694.
___

Thus, appellant failed to make

the required showing of prejudice.

The overall object of

the inquiry at this stage

is to

ensure

that

support

some significant

appellant's claim

evidence because
this

late

of trial

date appellant

of

piece

of

evidence (which

innocence) was

would

not entered

into

counsel's unprofessional errors.

has failed

to

show any

At

evidence to

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undermine
suspect

the

critical piece

baggage:

of

evidence linking

him

to the

the control number 145 which connected the bag

with Hoyos-Medina's ticket and boarding pass.

We

now

turn

to

counsel attempted to coerce

indifferent towards the case.
Hoyos-Medina at

appellant's

allegations that

a guilty plea, and that

trial

counsel was

Trial counsel purportedly visited

the penitentiary

and falsely informed

the judge was "rip roaring mad" at him.

him that

In addition, he promised

that the judge would be lenient if appellant pled guilty and told
him

to

"go to

Evidence
vigorously

of

hell"

counsel's

when appellant
indifference

argue a Rule 29

protested
includes:

Motion for Judgment

his innocence.
(1) failure

to

of Acquittal at

the close of the government's case; and (2) voluntary suppression

of

document

from

the

Colombian

appellant's clean criminal record.

Government

attesting

to

At
"often

the

2255

times one

has to

helping them

hearing, trial

counsel admitted

prod [defendants]

for the

help themselves, so to speak."

he told Hoyos-Medina

purpose of

He also stated that

that "if the jury does not

if the judge believes that

that

believe you and

you have lied, the judge is

going to

screw you."
To

begin with,

defense counsel to plead

entirely

his

we do
guilty.

own.

Our

considerable pressure

to

not condone

any

pressure from

Defendant's choice of

criminal

justice

induce guilty

system

pleas without

plea is

exerts

improper

influence from court-appointed attorneys charged with the duty to

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defend accused.

Nonetheless, it is unnecessary to delve too deeply into

appellant's final allegations of ineffective assistance.
trial

counsel

appellant to
example of

was
plead

unsuccessful
guilty, the

counsel's alleged

towards his case.

We

outward indicia of trial

in

his

purported

negative

find these claims

attempt

to

coercion is

or indifferent
without merit

Because

pressure
but

an

attitude

because

counsel's effort suggests the contrary.

He

filed the

abreast

of

succeeded
argues

appropriate motions
appellant's

in a

case.

in excluding

For

a damaging

timely manner
example,

trial

document that

should have been admitted.

and kept

counsel

appellant now

Indeed, the document from the

Colombian government regarding appellant's criminal history would

have
he

shown no convictions, but it also would have indicated that

had been tried and

sound

trial

strategy to

ineffectiveness
reasonable

acquitted of extortion.
us.

Appellant's vague

and indifference

do not

professional misconduct, nor

necessary

prejudice.

In

This seems like

this

case,

assertions of

constitute objectively

do they demonstrate the

we

do

not

find

that

ineffective representation caused a break-down of the adversarial

process such that defendant did not receive a fair trial.
Finally, we
remand the
of his

consider appellant's

request to

case to the district court for a ruling on the merits

Motion Requesting Amendments and Further Findings of Fact

to the Judgment,
because

need not

submitted pursuant

the motion

to Fed. R.

offers substantially

Civ. P.

the same

52(b),

arguments as

-9-

appellant's

brief

on appeal.

We have

amply

canvassed these

arguments.
The district court's decision is affirmed.
Affirmed.
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