Unpublished Disposition, 851 F.2d 361 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 361 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Sergio ARIAS-BEJAR, Defendant-Appellant.

No. 87-1089.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 1988.Decided June 23, 1988.

Before GOODWIN, SCHROEDER and POOLE, Circuit Judges.


MEMORANDUM* 

Sergio Arias-Bejar appeals his conviction on one count of importing 50 kilograms or more of marijuana in violation of 21 U.S.C. §§ 952(a), 960(a) (1) and 960(b) (2) (1982). This court has jurisdiction under 28 U.S.C. § 1291 (1982). We affirm.

In September 1986, Arias-Bejar was stopped at the border at Nogales, Arizona as he sought to enter the United States in a pickup truck. He appeared nervous. The agents placed Arias-Bejar in the lockup in order to further inspect the vehicle. The customs agents made a cursory inspection of the truck and found a space between the underside of the truck bed and the bed of the truck. Agents drilled into this space and found marijuana. The agents then arrested the defendant and read him his rights in English and Spanish. Arias-Bejar then agreed to give a written statement in which he fully confessed his attempt to bring the marijuana into the United States. When the agents had considerable trouble getting the marijuana out of the truck, Arias-Bejar explained how to do it simply. They eventually found 223 pounds of marijuana.

Despite the overwhelming evidence of guilt, Arias-Bejar elected to go to trial before a jury. His lawyer waived opening argument and presented no defense witnesses. Defense counsel did cross-examine three of the five government witnesses. Defense counsel ultimately waived closing argument.

The appeal challenges the fairness of the trial because of trial counsel's failure to argue on behalf of his client. Nothing in the record suggests that the defendant had a defense. He now says his counsel's failure was plain error affecting his substantial rights.

In Strickland v. Washington, 466 U.S. 668 (1984), the Court adopted a two-part test for assessing a claim of ineffective assistance of counsel. First, the defendant must show that counsel's performance was objectively deficient, and second, that the deficient performance prejudiced him or her. Id. at 687. However, the Court allowed that in some circumstances prejudice may be presumed, such as when there is actual or constructive denial of assistance of counsel. Id. at 692. See also United States v. Cronic, 466 U.S. 648, 658-59 (1984) ("if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable").

Arias-Bejar argues that defense counsel's total failure to present an alternative theory to the jury amounts to per se prejudice under this dicta in Strickland and Cronic. In support of his argument, he cites several similar cases in which the court presumed prejudice. See Green v. Arn, 809 F.2d 1257, 1262-64 (6th Cir. 1987) (where defense counsel waived his presence over the defendant's objection during a portion of a witness' testimony, prejudice presumed even though a codefendant's counsel had conducted a vigorous cross-examination of the witness), vacated, 108 S. Ct. 52 (1987), on remand, 839 F.2d 300, 301-02 (6th Cir. 1988) (reinstating judgment because not moot); Martin v. Rose, 744 F.2d 1245, 1249-51 (6th Cir. 1984) (where defense counsel, although present at trial, totally failed to participate in defendant's trial, prejudice was presumed); Javor v. United States, 724 F.2d 831, 833-35 (9th Cir. 1984) (prejudice inherent where defense counsel dozed off and slept during portions of the trial). Cf. Warner v. Ford, 752 F.2d 622, 624-26 (11th Cir. 1985) (no presumption of prejudice where counsel's silence at trial was a reasonable strategy).

In Nutall v. Greer, 764 F.2d 462 (7th Cir. 1985), however, the court upheld the defendant's conviction despite the fact that defense counsel did not make a closing argument. The court, although troubled by this failure, held that it did not amount to per se ineffective assistance of counsel. Id. at 466. Yet, in that case, as the defendant points out, the defense counsel had made an opening statement that put an alternative theory (accidental death) before the jury, and had presented character witnesses and the defendant as a witness. Id. at 466-67. Here, by contrast, defense counsel did not present any alternative theory.

On balance, however, we find the cases cited by Arias-Bejar distinguishable. Defense counsel did not stand mute during trial, he did not fall asleep during trial, and he did not absent himself from any part of the proceedings. Although there seems to be no strategic reason for not making a closing argument in this case, counsel was by no means completely passive in his representation of Arias-Bejar. Counsel made numerous objections throughout the trial regarding hearsay and the admission of evidence, cross-examined various witnesses, conducted a voir dire examination of another witness, and moved for a directed verdict at the close of the government's case.

Despite defense counsel's failure to present an alternative theory, we find Nutall more on point. We decline to presume prejudice when there is nothing in the record to support such a presumption.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

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