Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.united States, Appellee, v. Juan Consoro Familia, Defendant, Appellant, 30 F.3d 127 (1st Cir. 1994)

After a jury trial, appellant Juan Consoro Familia and his live-in girlfriend, Priscilla Jackson, were convicted of conspiring to possess and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a) (1), and 841(b) (1) (C).¹  Familia was sentenced to 85 months' imprisonment and 5 years of supervised release. He is subject to deportation upon his release from prison.

We affirmed codefendant Jackson's sentence in United States v. Jackson, 3 F.3d 506 (1st Cir. 1993). Familia, who is proceeding pro se, now appeals his conviction. He raises one argument-i.e.-that his defense attorney rendered him constitutionally ineffective assistance due to a conflict of interest. Familia specifically charges that his defense attorney's fee was paid by the true owner of the cocaine: his brother, Bonifacio Consoro Familia (Bonifacio). Familia contends that his counsel failed to mount a proper defense because his loyalty to Familia was compromised by his desire to protect Bonifacio so that he could receive payments from him. Familia also charges that his defense attorney deliberately failed to introduce evidence that would have proven that he and Jackson were innocent and that Bonifacio and Bonifacio's girlfriend ("Kris") were the real drug dealers. Having thoroughly reviewed the record and the parties' briefs on appeal, we affirm Familia's conviction without prejudice to his raising his ineffective assistance of counsel claim in a 28 U.S.C. § 2255 proceeding.

Familia and Jackson were arrested after certain members of the Providence Police Department executed a search warrant at their apartment on November 11, 1991. The underlying facts are described in United States v. Jackson, 3 F.3d at 508, which states as follows:

On November 11, 1991, police officers from Providence, Rhode Island went to execute a search warrant at the second floor apartment of 142 Bowdoin Street, Providence. At approximately 7:00 p.m., Familia departed from the apartment and drove away in a Dodge minivan. The officers stopped the vehicle and returned with Familia to his apartment.

They entered the kitchen through the rear door using Familia's keys. The kitchen leads directly to the master bedroom, which contained a bed, a crib, an upright dresser, a bureau and a television table. Jackson was on the bed with the couple's child.

Upon entering the apartment, Familia declared: "All I have is a gun. It's under the mattress." The police proceeded to search the apartment. They found the pistol under the mattress. A bottle of inositol, a chemical used to cut or dilute cocaine, sat on top of the bureau. The bottom drawer of the dresser was nailed shut. The officers discovered that the drawer itself had been removed and only the facade remained. On the floor behind the false drawer front, they found a paper bag and a metal box. The paper bag held three plastic bags that contained 299.22 grams of cocaine. The metal box contained $3866 in United States currency and two Rhode Island state lottery receipts, which indicated that Familia had received a total of $2085 in winnings on August 28, 1991. The police also found a small plastic bag containing ten rounds of .38 caliber ammunition in plain view on the floor in front of the bedroom closet.

At trial, t he foregoing facts were established through the testimony of the five Providence police officers who participated in the search of the apartment. There was also evidence that shortly after the arrest, Familia told the police, "She had nothing to do with it. I'm responsible for everything you found."

The defendants were represented by separate counsel. They argued that the evidence did not prove that they knowingly possessed the cocaine with the intent to distribute it. Familia, who had no criminal record, testified in his defense. He maintained that his post-arrest statement referred only to the gun and that he did not own the cocaine. He testified that his brother Bonifacio also resided in the apartment.²  On cross-examination, Familia implied that the cocaine might have belonged to Bonifacio, although his testimony was not firm on this point.³  While he acknowledged that the strongbox and gun were his, he testified that most of the money in the strongbox had been given to him by his sister to purchase his van and ship it to Puerto Rico.

The trial record suggests that Familia's trial counsel made a faint-hearted attempt to imply that Bonifacio was the drug dealer. On cross-examining one of the police officers (Drohan), counsel established that Bonifacio had been arrested on 9/4/90 for selling cocaine to an undercover police officer. He also established that the police had received many complaints that Bonifacio was selling drugs from a barricaded Providence address (65 Laura Street) around that time. But he did not elicit further evidence to that effect from Familia. The little evidence that Familia gave impugning his brother was brought out by the government on cross-examination. In any event, neither the jury nor the sentencing judge were persuaded by Familia's story.

On appeal, Familia argues that his attorney deprived him of the effective assistance of counsel by failing to use evidence that would have shown that Bonifacio was the real owner of the cocaine. Familia claims that Bonifacio was in the United States illegally after previously being deported for a drug offense. He alleges that Bonifacio paid his attorney in cash and that his attorney had an interest in not turning Bonifacio in so that he could continue receiving payments and avoid implicating himself in the crime of failing to report an illegal alien.⁴  Familia contends that his counsel's ineffectiveness is shown by the following acts and omissions:

(1) failing to file a motion to suppress, a motion to quash the indictment, and a motion for an acquittal;

(2) failing to file a motion to compel a confidential informant, who participated in three drug buys before

Familia's arrest and provided the Providence police with information which lead them to suspect that persons occupying Familia's apartment were selling cocaine, to testify and identify the real drug pushers (i.e.,

Bonifacio and Kris);

(3) failing to use documents and things that the government provided in pretrial discovery. In support of this particular claim, Familia argues that:

(a) his counsel could have used the affidavit that the police submitted in support of the application for the search warrant to prove that he and Jackson do not satisfy the physical descriptions of the Hispanic male and black female who allegedly sold cocaine as described in the affidavit;

(b) counsel also could have used the defendants' passports and a picture of Jackson to prove that he and Jackson were in Puerto Rico when the informant purchased cocaine and that his sister gave him the money that was found in the strongbox;⁵ 

(c) counsel failed to secure copies of the defendants' airline tickets, which would have corroborated his story that they were in Puerto Rico when the informant made the drug buys; and

(d) counsel failed to introduce a photograph of

Bonifacio and documentary evidence that would have established that Bonifacio had previously been convicted of selling drugs and deported.⁶ 

(4) failing to call Familia's sister as a witness at his trial, although she would have corroborated Familia's testimony that most of the money found in the strongbox represented the proceeds of Familia's sale of the van to her, as her testimony at his sentencing demonstrates;

(5) suborning perjury by instructing Familia to lie about how much money was found in the strongbox to protect a Providence police officer who stole some of that money;⁷ 

(6) failing to show that Detective Lennon lied to the grand jury about Jackson's involvement in drug sales.⁸ 

Familia asks that we set aside both his and Jackson's conviction based on the foregoing allegations. The government urges us to deny Familia's claim on the ground that he has failed to show an actual conflict of interest. Alternatively, the government says that we should decline to address this issue on direct appeal.

At the outset we note that significant portions of Familia's brief raise arguments on behalf of his co-defendant, Jackson. But as Familia has no standing to challenge Jackson's conviction, the arguments he asserts on her behalf have no merit. Familia's conflict of interest claim requires further attention.

"In order to establish a violation of ... [a defendant's] Sixth Amendment [right to the effective assistance of counsel], a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). See also United States v. Rodriguez, 929 F.2d 747, 749 (1st Cir. 1991) (per curiam). And, "in order to show an actual conflict of interest, a defendant must show that (1) the lawyer could have pursued a plausible alternative defense strategy or tactic and (2) the alternative strategy or tactic was inherently in conflict with or not undertaken due to the attorney's other interests or loyalties." United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994). While the defendant "need not show that the alternative strategy would have been successful" he must establish that "it possessed 'sufficient substance' to be a viable alternative." United States v. Garcia-Rosa, 876 F.2d 209, 231 (1st Cir. 1989), cert. denied, 493 U.S. 1030 (1990) (quoting Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982)). "[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Cuyler v. Sullivan, 446 U.S. at 349-50.

Familia primarily faults defense counsel for failing to use evidence generated by the police surveillance of his apartment before the search that lead to his arrest. He claims that counsel could have proven that he and Jackson were away in Puerto Rico when the informant purchased cocaine from Bonifacio and his girlfriend "Kris," and that this in turn would have persuaded the jury that he and Jackson were innocent. It is not clear that this was a plausible alternative strategy. Even if counsel had pursued it, the evidence could have shown that Jackson and Familia had allowed their home and their respective motor vehicles to be used by others to sell cocaine.⁹  The jury could easily have construed this evidence as further supporting the government's claim that Familia and Jackson were involved in a conspiracy to possess and distribute cocaine, particularly in light of the other evidence that was adduced at trial. Counsel's decision to refrain from introducing this evidence thus may well have been a reasonable tactical decision, not necessarily an effort to protect Bonifacio at Familia's expense. Familia also offers no sound reasons to believe that Bonifacio would have confessed to being the true owner of the cocaine had defense counsel turned him in. Compare United States v. Garcia-Rosa, 876 F.2d at 231 (rejecting ineffective assistance claim based on failure to call a witness).¹⁰ 

We also fail to see how Familia was prejudiced by counsel's other alleged shortcomings. While the record verifies Familia's claim that counsel failed to file a motion to suppress, a motion to quash the indictment, and a motion for an acquittal, we discern no basis upon which any of these motions could have been allowed. Counsel's failure to call Familia's sister as a witness at his trial also appears to have had a negligible impact on the verdict given the weaknesses in her testimony. See United States v. Jackson, 3 F.3d at 511.¹¹ 

Nevertheless, "[i]t is well established in this circuit that a claim of ineffective assistance of counsel will not be resolved on direct appeal where the claim was not raised in the district court, unless the critical facts are not in dispute and a sufficiently developed record exists." United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir. 1993). This is because "[a] claim of ineffective assistance of counsel which involves matters not fully developed in the trial record, but necessary for determination of the claim, is not ripe for decision on direct appeal." United States v. Georgacarakos, 988 F.2d 1289, 1297 (1st Cir. 1993) (declining to reach claim that defense counsel rendered ineffective assistance by failing to raise entrapment defense where record did not enable reviewing court to determine whether counsel made a tactical decision not to pursue the defense and likelihood of prejudice resulting from the failure to raise it). Moreover, the trial judge is in the best position to evaluate defense counsel's performance in the first instance. See, e.g., United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991).

Resolution of Familia's ineffective assistance claim requires a factual inquiry to determine whether Bonifacio actually paid defense counsel's fee, whether defense counsel knew Bonifacio to be a drug dealer as Familia alleges, and whether defense counsel failed to pursue any viable defenses as a result of his alleged relationship with Bonifacio. Therefore, we decline to resolve this ineffective assistance claim on direct appeal. Rather, we leave Familia to develop this claim in a 28 U.S.C. § 2255 proceeding.

Accordingly, Familia's conviction and sentence are affirmed without prejudice to Familia's right to pursue relief under 28 U.S.C. § 2255. Familia's motion for a polygraph examination is denied.

drugs was my brother. I knew he was involved in that before. I didn't know that he was still

involved in that.