Unpublished Disposition, 872 F.2d 431 (9th Cir. 1985)

MEMORANDUM^** 

Raymond Berryhill ("Berryhill") appeals his conviction for three counts of possession of stolen mail in violation of 18 U.S.C. § 1708 and one count of conspiracy in violation of 18 U.S.C. § 371. Berryhill charges ineffective assistance of counsel; that denial of his motion for a new trial for newly discovered evidence, was erroneous; and challenges that the evidence showed only a single offense and did not support the multiple convictions and sentences. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

We review ineffective counsel claims de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985). Denial of a new trial is reviewed for abuse of discretion. United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985). Because appellant did not attack the multiplicity of sentences in the district court, we review for plain error. United States v. Morris, 827 F.2d 1348, 1352 (9th Cir. 1987).

On May 8, 1985, Appellant's common law wife attempted to forge a check in a bank in Gilroy, California. She fled the bank and the teller called the police. A police officer saw the appellant and a woman fitting the description of the suspected forger driving away from the bank. The officer stopped the car six blocks from the bank. As appellant emerged from the car, the officer noted that he appeared to throw something under the vehicle. A paper bag was found, containing three pieces of mail without postmarks, not addressed to Berryhill. Also in the bag was a notebook with addresses of various post boxes in the Gilroy area and "practiced" forged signatures. A search of the vehicle revealed several maps, upon which post office locations in the Gilroy-Salinas areas, including the boxes in which stolen mail had been deposited, were "highlighted." Appellant was arrested and charged with the possession of stolen mail and conspiracy.

Counsel, appointed for appellant for trial, moved for acquittal at the close of the prosecutor's case, but presented no affirmative defense. The acquittal motion was denied. The jury found Berryhill guilty on all counts. The court sentenced Berryhill to serve four consecutive 5 year sentences, for a total of 20 years.

Following the verdict, new counsel for Berryhill moved for a new trial. The court denied that motion and Berryhill timely appealed.

Berryhill claims his trial counsel was ineffective. As this court explained in Weygandt,

To establish a claim of ineffective assistance of counsel, the petitioner must show that his attorney's errors reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent attorney, and that [he] suffered prejudice as a result of those errors.

Weygandt, 774 F.2d at 1493 (citations and quotations omitted). Additionally, in order to prove prejudice, Berryhill must show trial counsel's errors " [created] a reasonable probability that the result of the proceeding would have been different. [citation]." United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987). However, " [T]here is a strong presumption that counsel's performance fell within the wide range of reasonably effective assistance." Weygandt, 774 F.2d at 1493.

Berryhill contends his trial counsel was ineffective for failing to interview or call two witnesses, Mendel Berryhill and Andra Stokes. Although, interviews with witnesses is an "important" part of effective representation, [United States v. Tucker, 716 F.2d 576, 583 (9th Cir. 1983) ], the decision not to utilize the testimony of these two women was reasonable. Mendel Berryhill pleaded guilty to conspiracy and has obvious bias towards her husband. She admitted cocaine use and her own involvement in the crime. Her testimony was subject to impeachment and could have been damaging to Berryhill's case.

Use of testimony by Andra Stokes presents the same difficulty. She admitted cocaine use, prostitution and that she is currently an unsurrendered parole violator. She is also a friend of Berryhill and admitted complicity in the mail theft.

We find no merit with the charge that Berryhill's trial counsel performed in a deficient manner.

Berryhill's second contention is the district court erred in denying his motion for a new trial based on newly discovered evidence.¹  In order to receive a new trial on account of newly discovered evidence, Berryhill must satisfy the following conditions: (1) the evidence must surface after trial is completed; (2) the motion must allege facts which support due diligence on part of trial counsel; (3) the evidence may not be impeaching or cumulative; (4) the evidence must be material; and the evidence must be of a nature that would probably produce an acquittal. Steel, 759 F.2d at 713. Additionally, "appellant carries a significant burden to show that the district court abused its discretion." Id.

Berryhill offers two declarations of Ms. Lozell Jennings, which state Berryhill had no knowledge of the mail thefts and that Mendel Berryhill received the stolen mail found in the vehicle while in Los Angeles. However, like the declarations of Mrs. Berryhill and Ms. Stokes, Ms. Jennings admits cocaine use and criminal activities and was not a reliable witness. In addition, her declaration that Mrs. Berryhill received the stolen letters before they were actually mailed in Salinas is not credible. Therefore, the newly discovered evidence had little credibility and was unlikely to lead to acquittal of Berryhill. We find no abuse of discretion of discretion in denying the motion for a new trial.

Berryhill's final claim is that there should have been only one conviction and sentence because there was no direct evidence that he received the letters at different times. Each separate receipt of stolen mail is a distinct offense under 18 U.S.C. § 1708. United States v. Anderson, 709 F.2d 1305, 1306 (9th Cir. 1983). See also, McKee v. Johnston, 109 F.2d 273 (9th Cir. 1939).

There was sufficient circumstantial evidence to support the inference Berryhill received the letters at different times. He admitted ownership of the map, upon which the mail boxes where the stolen letters were posted had been "highlighted." Each letter had been posted in a different mail box the day before they were discovered in Berryhill's possession. A rational jury could have concluded beyond a reasonable doubt that Berryhill acquired the letters at different times. Cf. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Therefore, we find the sentences were proper.

Berryhill's reliance on United States v. Palafox, 764 F.2d 558 (9th Cir. 1985) (en banc), is without merit. Palafox dealt with the propriety of separate convictions for simultaneous possession of a controlled substance with intent to distribute and distribution of that controlled substance. Berryhill was convicted of multiple counts of possession, not theft and possession. Palafox is not applicable.

AFFIRMED.