Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1990)

No. 88-5329.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and POOLE, Circuit Judges, and THOMPSON, District Judge.** 


Jose Vincente Franco Lozano (Mr. Franco) appeals his conviction for attempting to transport, without reporting, more than $10,000 in United States currency out of the United States, and for false statements made to United States Customs officials about the attempted transfer, in violation of 31 U.S.C. §§ 5316(a) (1) (A) & 5322(a) and 18 U.S.C. § 1001. We affirm.

Mr. Franco contends that his conviction should be reversed because he was prejudiced by ineffective assistance of counsel. An appellant claiming ineffective assistance of counsel must prove two distinct elements in order to prevail: "(1) specific acts and omissions of counsel that fall below a standard of professional reasonableness" and (2) "that these acts 'prejudiced' defendant because there is a reasonable probability that absent the errors the factfinder would have had a reasonable doubt respecting guilt." United States v. Catabran, 836 F.2d 453, 461 (9th Cir. 1988), citing Smith v. Ylst, 826 F.2d 872, 875 (9th Cir. 1987) in turn citing Strickland v. Washington, 466 U.S. 668, 694 (1984).

Mr. Franco asserts that his counsel's representation fell below standards of professional reasonableness, and therefore prejudiced him, in five ways: (1) counsel's handling of the jury selection was not entirely competent; (2) counsel's failure to rise to address the court on two occasions prejudiced the jury against Mr. Franco; (3) counsel failed to file a suppression motion alleging violations of defendant's Miranda rights; (4) counsel's cross-examination was inadequate; and (5) counsel did not clear up confusing testimony, including incorrectly-translated Spanish words.

Mr. Franco claims prejudice from counsel's failure to object when the trial court allowed the parties to offer challenges for cause after only six of twelve prospective jurors had been fully questioned. However, as the Government correctly notes, the court discovered and rectified its error before either side had used any peremptory challenges. Defense counsel had the opportunity to challenge every juror for cause after full questioning had been conducted, because the court allowed each side a second opportunity for such challenges after all twelve jurors had been interrogated. Given the quick correction of the error, and the professionally reasonable conduct of Mr. Franco's attorney, this argument is without merit.

Mr. Franco next claims that his counsel's failure on two occasions to stand when addressing the court amounted to ineffective assistance of counsel. Such laxness toward the niceties of professional protocol hardly amounts to a breach of professional standards to the extent necessary to find ineffective assistance of counsel. Defendant's argument that this laxness had any impact on the jury's view of the evidence is sheer speculation.

Mr. Franco's third assertion is that his counsel did not file a timely motion to suppress his pre-arrest statements on the grounds that they were obtained in violation of Mr. Franco's rights under Miranda v. Arizona, 384 U.S. 436 (1966). In fact, as the trial court explicitly found, Mr. Franco was not in custody at the time of his initial questioning on the jetway as he was about to board a flight to Columbia, and he had signed a waiver of rights before his subsequent questioning by a detective of the Culver City Police Department.

Mr. Franco next asserts that counsel's cross-examination at trial was inadequate in failing to press more forcefully for an answer to a particular question.1  Whether the handling of this question was an oversight, an error or a tactical decision on the part of Mr. Franco's counsel is not relevant here, since counsel's conduct does not even approach the standard of "falling below professional reasonableness" necessary for a finding of ineffective assistance of counsel.

Finally, Mr. Franco claims that his counsel's handling of evidentiary matters was inadequate, in that counsel did not clarify confusing testimony, did not call to the court's attention the incorrect translation of the Spanish words "otras cosas" and did not pursue a particular question put to a Government witness. Taking all the claimed errors in the light most favorable to the defendant, none of these errors of counsel pertained to any core issue of the trial, and none appears likely to have altered the jury's perception of the evidence and the resulting verdict.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4


The Honorable Gordon Thompson, Chief United States District Judge for the Southern District of California, sitting by designation


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


The question, "So you didn't give him every opportunity?" was asked of the Customs official who initially questioned Mr. Franco, and was not answered. It appears from the transcript of this cross-examination that counsel was nevertheless able effectively to make the underlying point--that the Inspector being questioned was perhaps over-eager to arrest