Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

MEMORANDUM^** 

The district court's judgment is affirmed.

Following a jury trial, Moreno-Piceno was found guilty of importing cocaine in violation of 21 U.S.C. § 952 and possession of cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a) (1). On appeal, he urges two grounds of reversal: first, Moreno-Piceno contends the prosecutor's improper remarks in his rebuttal closing argument amounted to plain error; second, he claims his trial counsel's assistance was constitutionally ineffective in violation of the Sixth Amendment.

Guided by the Supreme Court's analysis in Young v. United States, 470 U.S. 1 (1985), we have reviewed the prosecutor's rebuttal comments in light of the defense counsel's conduct and in context of the entire record. See id. at 11-12. We are satisfied that the prosecutor's comments, though improper, do not rise to the level of plain error: taken in context, the comments did not undermine the fundamental fairness of the proceedings. See id. at 20. The prosecutor's comments, in particular his explanation to the jury why he did not bring to their attention the defendant's post-arrest statements, were made to "right the scale", id. at 13, and were surely understood by the jury as a response to the defense counsel's allegation that the prosecutor, behaving as would only "a Russian", "censored" the evidence to deceive them. See id. at 17. And, as in Young, we do not agree that the prosecutor suggested to the jury his belief in the defendant's guilt based on any evidence outside the record. See id. at 19. The prosecutor simply exhorted the jury to set aside whatever personal feelings they may have had against him and to apply the law to the facts as the judge would instruct them.¹ 

Turning now to defendant's second ground for reversal, we are equally clear that it provides insufficient justification for overturning the conviction. As the high court said in Strickland v. Washington, 466 U.S. 668 (1984):

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Id. at 686. In light of our analysis above, we conclude that counsel's failure to object to the prosecutor's comments, and his failure to move for a mistrial, did not render his assistance constitutionally deficient. These omissions did not cause counsel's assistance to fall below the "wide range" of competent assistance, nor did they cause the requisite prejudice to disturb the conviction. After the prosecutor's comments balanced the scales, so to speak, the jury was surely able to marshal the facts and render a verdict solely on the evidence presented.² 

Counsel's alleged failure to investigate Moreno-Piceno's alibi by locating Rosario also does not constitute ineffective assistance. First, counsel sought to elicit testimony of his client's alibi through Agent Cons so he would not have to put the defendant on the stand. And second, the Rosario counsel's search would have produced, given Moreno-Piceno's directions that the Rosario he knew was Rosario of the Madera Bar, was a Rosario whose testimony refuted, not corroborated, Moreno-Piceno's alibi. Thus, Moreno-Piceno suffered no prejudice by counsel's alleged failure to investigate the "alibi" witness. It is no answer that had counsel known that the alibi was false that he would have suggested to his client to plead guilty to a lesser charge. There is no indication that the government would have accepted a lesser plea. And, in any event, counsel's failure to pursue the strategic course of a lesser plea does not undermine the confidence in the correctness or justness of the result.

AFFIRMED.