Unpublished Disposition, 881 F.2d 1085 (9th Cir. 1988)

MEMORANDUM^* 

Defendant Sterling Lee Land appeals from the district court's December 1, 1987 denial of his motion for a new trial and the May 9, 1988 denial of his motion for reconsideration. The district court denied Land's motion for a new trial on the basis of newly discovered evidence, ineffective assistance of counsel, denial of due process, and plain error. We affirm.

Background

On February 10, 1986, appellant Sterling Lee Land was arrested for transporting illegal aliens after police officers discovered a cache of undocumented aliens in the back of Land's trailer. Land was indicted for transporting illegal aliens Juan Herrera-Sanchez (Count I) and Antonio Gomez-Estrada (Count II). Herrera-Sanchez and Gomez-Estrada remained in the United States in order to serve as material witnesses at trial, while the remaining illegal aliens discovered in the trailer were deported back to Mexico.

Land was convicted on both counts and sentenced on August 4, 1986. On August 8, 1986 Land filed his first notice of appeal. While that appeal was pending, Land filed a motion for new trial based on newly discovered evidence, ineffective assistance of counsel, denial of due process, and plain error.

The district court denied the motion on the ground that the pending appeal deprived the district court of all jurisdiction over the case. On June 16, 1987, the Ninth Circuit held that the district court retained jurisdiction to consider the motion for new trial and remanded the case to the district court for an evidentiary hearing.

On remand, the district court granted the government's motion to dismiss Count I of the indictment against Land. Then, the district court conducted an evidentiary hearing on Land's motion for new trial. At trial, the prosecution had demonstrated Herrera-Sanchez's status as an illegal alien solely through hearsay evidence. Although Herrera-Sanchez was called to testify at the trial, he invoked his fifth amendment right to remain silent. At the hearing on the motion for new trial, however, Herrera-Sanchez testified that he was actually a naturalized United States citizen.

Land's attorney then called his former attorney, William Burnell, to the witness stand to explain Burnell's failure to elicit this exculpatory testimony from Herrera-Sanchez during the trial. Land's former attorney testified that he had made a tactical decision to offer the defense theory that Land had no knowledge that the aliens were in his trailer. Burnell explained that he did not seek to introduce Herrera-Sanchez's testimony that he was not an alien because Burnell did not want to confuse the jury with two inconsistent defense theories.

On December 1, 1987, the district court denied appellant's motion for a new trial. On May 9, 1988 appellant filed a motion for reconsideration of the district court's ruling on the motion for new trial, which was denied on May 23, 1988. Judgment was entered on August 23, 1988 and the next day Land filed this notice of appeal.¹ 

Denial of the Motion for New Trial

Land claims that the district court erred when it denied his motion for new trial on the basis of newly discovered evidence, ineffective assistance of counsel, denial of due process, and plain error. We review the district court's denial of a motion for new trial for abuse of discretion. See e.g., United States v. Kenny, 645 F.2d 1323, 1343 (9th Cir.), cert. denied, 452 U.S. 920 (1981).

In United States v. Krasny, 607 F.2d 840 (9th Cir. 1979), cert. denied, 445 U.S. 942 (1980), the Ninth Circuit set forth a five part test to determine when the discovery of new evidence warrants a new trial:

(1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal.

Id. at 843 (emphasis in original).

Land contends that the belated testimony of Herrera-Sanchez satisfies the Krasny test. This contention has not merit. "When a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not 'newly discovered.' " United States v. Diggs, 649 F.2d 731, 740 (9th Cir.), cert. denied, 454 U.S. 970 (1981). All parties have indicated some pre-trial knowledge of Herrera-Sanchez's incarceration in the Vista Jail. Defense counsel himself had an investigator interview the witness to determine whether he should be called at trial. Under these circumstances, Herrera-Sanchez's testimony does not constitute "newly discovered" evidence under prong one of the Krasny test.

Land also claims that the district court should have granted his motion for a new trial on the basis that his trial counsel, William Burnell, was incompetent and thus denied Land his sixth amendment right to effective assistance of counsel.

The Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) set forth a two-part test for a successful claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

In addition to this strict standard, the courts have recognized a broad range of tactical discretion that is afforded attorneys. Thus, there is no sixth amendment violation if an attorney merely uses ineffective strategy or makes an error. See United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.), cert. denied, 474 U.S. 979 (1985). Moreover, a showing of prejudice requires a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.

The bulk of Land's claim that Burnell was incompetent is based on Burnell's failure to elicit Herrera-Sanchez's testimony that Herrera-Sanchez was actually a naturalized United States citizen. In particular, Land argues that Burnell should have 1) made a continuing objection to the introduction of Herrera-Sanchez's hearsay statement that he was an illegal alien; 2) requested immunity for Herrera-Sanchez to induce him to testify; and 3) called his own investigator, Joseph Max, to testify that Herrera-Sanchez had told Max that he was a United States citizen.

None of these claims constitutes ineffective assistance of counsel. Burnell's decision to register an objection, rather than a continuing objection, to the introduction of Herrera-Sanchez's hearsay statements does not rise to the level of a constitutional violation under Strickland. Moreover, Burnell's failure to introduce the testimony of Herrera-Sanchez and Joseph Max was consistent with Burnell's tactical decision to introduce only one defense theory that emphasized Land's lack of knowledge that the aliens were in the trailer. Although Burnell's strategy may have been unwise, it falls within the broad range of tactical decisions afforded to attorneys.²  See Murray, 751 F.2d at 1528; see also United States v. Harden, 846 F.2d 1229, 1231, cert. denied, 109 S. Ct. 264 (1988) (holding that failure to call a relevant witness does not demonstrate ineffective assistance of counsel); Harris v. Pulley, 852 F.2d 1546, 1560 (9th Cir. 1988) (finding no counsel incompetency because counsel's failure to introduce evidence contained the possibility of being a "thoughtful tactical decision") (emphasis added).

Moreover, Land cannot demonstrate any serious prejudice stemming from Burnell's failure to elicit Herrera-Sanchez's testimony that he was a naturalized citizen because the government of its own accord subsequently dismissed the charge involving transportation of Herrera-Sanchez. Herrera-Sanchez's testimony concerning his United States citizenship would not have been relevant to the remaining charge of transporting Antonio Gomez-Estrada.

Land also claims that Burnell should have objected to the testimony of Border Patrol Agent McClatchie. McClatchie testified regarding a conversation he had with Land wherein Land made incriminating statements about his involvement in and knowledge of the alien smuggling incident.

Land was not prejudiced by Burnell's failure to object to McClatchie's testimony because objection would not have been successful. First, Land claims the government violated Fed. R. Crim. P. 16 when it did not disclose this statement pre-trial under the parties' "open discovery" policy. However, there is sufficient evidence that the government did not find out about the McClatchie statements until the trial recessed for a day following the close of the government's case-in-chief. Also, Burnell indicated he knew something of the statements before trial but chose not to pursue them. When the government became aware of the statements, it provided a correct summary of them to Burnell. This is all that is required under Rule 16.

Second, Land claims the statments were obtained in violation of Massiah v. United States, 377 U.S. 201 (1964). This is not a case, however, where the government deliberately set up and elicited incriminating statements. Agent McClatchie did not have any role in this case at the time of the conversation. Land approached McClatchie first and spoke freely with him. This does not meet the standard of a Massiah violation.

Land then claims that Burnell should have objected to various "partisan" remarks made by the trial judge. Land points to three instances in which the trial judge 1) completed Herrera-Sanchez's counsel's statement for her in a humorous way, 2) posed a question to a witness in order to clarify an answer, and 3) interrupted repetitive questioning and summarized what he felt had been stated by the witness. These three isolated incidents, however, do not rise to the level of prohibited partisanship. See Webb v. Texas, 409 U.S. 95 (1972); see also United States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986) ("It is entirely proper for [a trial judge] to participate in the examination of witnesses for the purpose of clarifying the evidence, confining counsel to evidentiary rulings, controlling the orderly presentation of the evidence, and preventing undue repetition of testimony."). Thus, Land suffered no prejudice from Burnell's failure to object to the trial judge's remarks.

Land also contests Burnell's failure to move for dismissal on the ground that the government's deportation of the other aliens discovered in the trailer rendered them unavailable to testify on Land's behalf. See United States v. Valenzuela-Bernal, 458 U.S. 858 (1982). In Valenzuela-Bernal the court held that a defendant establishes a fifth and sixth amendment violation if he makes "a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." Id. at 873. Land has not offered any factual basis for his claim that the aliens would have corroborated his defense that he lacked knowledge. Thus any motion for dismissal by Burnell would have been unsuccessful.

Finally, Land claims that Burnell should have moved for dismissal due to a violation of the Speedy Trial Act. Burnell substituted for Kulkey as Land's counsel, however, only a few days before the 70-day period had passed. Burnell needed time to prepare for trial, so he did not object when trial did not begin on time. This failure to move for dismissal is a tactical decision entitled to great deference under Strickland. Furthermore, Land was not prejudiced by Burnell's failure to file a motion to dismiss, since the trial judge has indicated that a dismissal on these grounds would have been without prejudice, and Land simply would have been reindicted on the same charges.

In sum, these seven instances of alleged incompetency fall well within the broad range of tactical discretion that is afforded to attorneys under Strickland and have not resulted in any serious prejudice to Land. Accordingly, the alleged incompetence of Land's counsel did not warrant a new trial.

Land claimed that the district court should have granted his motion for a new trial due to the government's introduction of false evidence. Because the hearsay statement of Herrera-Sanchez that he was a Mexican citizen was later contradicted by Herrera-Sanchez's claim that he was a United States citizen, Land contends that the hearsay statement was false and that his due process rights were violated.

Successful due process claims, however, require conclusive evidence that the prosecutor knew the evidence was false when he introduced it. See Miller v. Pate, 386 U.S. 1, 6 (1967) (finding that the "prosecution deliberately misrepresented the truth"); Alcorta v. Texas, 355 U.S. 28 (1957) (finding that the prosecutor had instructed the witness to testify falsely); Mooney v. Holohan, 294 U.S. 103 (1935) (holding that due process cannot tolerate a criminal conviction obtained by the knowing use of false evidence).

Herrera-Sanchez's whereabouts were discovered after the prosecution received a tip that Herrera-Sanchez was serving time for another offense under the alias of Javier Ramirez de la Cruz. Although Herrera-Sanchez currently asserts that he is not a Mexican citizen, his true identity remains uncertain. Under these circumstances, any claim that the prosecution knowingly introduced false testimony concerning Herrera-Sanchez's citizenship must fail.

Lastly, Land claims that the district court should have granted his motion for a new trial under the plain error rule. The plain error rule is applicable when counsel for defendant fails to make proper objections below. Fed. R. Crim. P. 52(b). Pursuant to United States v. Rogers, 769 F.2d 1418 (9th Cir. 1985), " [w]e do not review evidentiary rulings, in the absence of a timely objection, unless admission of the evidence affected substantial rights of the accused." Id. at 1425.

Land's alleged plain errors are the admission of hearsay, the Massiah violation, the court's improper statements, and the Speedy Trial Act violation. We have already held that the hearsay statement did not prejudice Land as to Count II, that there was no Massiah violation, that the court's statements were not improper, and that the Speedy Trial Act violation was waived in the interest of counsel's adequate trial preparation. Thus, no plain error occurred and the district court's denial of Land's motion for new trial is affirmed.

Denial of the Motion for Reconsideration

Land also appeals from the district court's denial of his motion for reconsideration of his motion for a new trial. The motion for reconsideration simply reiterated the arguments previously raised in land's motion for a new trial. Accordingly, we affirm the district court's denial of the May 9, 1988 motion for reconsideration.

AFFIRMED.