Unpublished Disposition, 923 F.2d 864 (9th Cir. 1983)

MEMORANDUM^** 

On October 17, 1983, Appellant Moreno pleaded guilty to two counts of aiding and abetting bank robbery in violation of 18 U.S.C. § 2113(a) set forth in two separate indictments. Although the indictments also charged Moreno with aiding and abetting the use of a handgun during the robberies, the government agreed to drop those counts prior to Moreno's guilty plea.

At the sentencing hearing on November 21, 1983, Moreno moved to withdraw his guilty plea. The district court denied the motion, and we affirmed in a prior action. See United States v. Moreno, C.A. No. 83-1292.

Moreno then filed a motion to set aside his guilty plea pursuant to 28 U.S.C. § 2255. Moreno argued that he was denied effective assistance of counsel for various reasons, that he was the victim of selective prosecution, and that the district court did not follow Rule 11 of the Federal Rules of Criminal Procedure in accepting his guilty plea. The district court reviewed each of Moreno's claims and denied the motion. Moreno timely appeals. We have jurisdiction under 28 U.S.C. § 2255, and we now affirm.

A claim of ineffective assistance of counsel is a mixed question of fact and law which we review de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986).

The Supreme Court's two-tiered test for evaluating claims of ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984) applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Moreno must therefore show:

(1) That his defense counsel's performance fell below an objective standard of reasonableness and outside the wide range of professionally competent assistance.

(2) That he was prejudiced thereby--specifically, that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on proceeding to trial.

Strickland at 689-90; Hill at 59.

Moreno advances several theories to support his claim of ineffective assistance. First, Moreno asserts that counsel was ineffective because he did not challenge two purported deficiencies in the indictment. However, neither of these alleged deficiencies would support dismissal of the indictment.

The indictment for aiding and abetting bank robbery was not defective for failing to charge a principal. A defendant may be charged as an aider and abettor to an unindicted principal. United States v. Valenzuela, 596 F.2d 1361, 1363 n. 2 (9th Cir.), cert. denied, 444 U.S. 865 (1979); Feldstein v. United States, 429 F.2d 1092, 1095 (9th Cir.), cert. denied, 400 U.S. 920 (1970), reh'g denied, 400 U.S. 1002 (1971).

Nor was the indictment defective for failing to properly allege that Moreno aided and abetted the use of a dangerous weapon during the course of the robbery. The indictment clearly charged Moreno with aiding and abetting such use of a weapon. It also set forth a plain, concise and definite written statement of the essential facts constituting the offense charged. The indictment thus satisfied the requirements of Fed. R. Crim. P. 7. See United States v. Fitzgerald, 882 F.2d 397, 399 (9th Cir. 1988).

Moreover, the transcript of the proceedings below clearly establish that the portions of the indictment charging Moreno with aiding and abetting the use of a weapon during the robbery were dropped from both indictments before Moreno entered his guilty plea. Thus, Moreno is unable to establish, as Strickland requires, that he was prejudiced by counsel's failure to challenge the indictment.

Because the indictment could not have been dismissed on the grounds advanced by Moreno, and because he has failed to show prejudice by counsel's inaction, Moreno has failed to establish that counsel's failure to object to the indictment amounted to ineffective assistance of counsel.

Second, Moreno contends that he was denied ineffective assistance when the prosecutor knowingly used perjured testimony before the grand jury and defense counsel failed to move to dismiss the indictment for prosecutorial misconduct. Moreno maintains that the prosecutor knowingly used perjured testimony by two witnesses, Manuel John Canales and Dennis Gilbert Ebeling.

Moreno's claim that Canales perjured himself when he testified to his prior guilty plea is simply wrong. The record clearly demonstrates that Canales was indicted and pleaded guilty to bank robbery prior to his grand jury appearance.

There is also no support for Moreno's argument that Ebeling perjured himself by offering inconsistent testimony regarding the dates Ebeling became involved in the bank robbery scheme and had various conversations with FBI agents. Although Ebeling's testimony was inconsistent, it is not clear whether the version he presented to the grand jury was untrue. More importantly, even if Ebeling's testimony was false, there is no evidence the prosecutor knew that it was false.

Finally, an indictment will not be dismissed on the grounds of perjury where the alleged perjury is not material to the defendant's indictment, and affects only the witness' credibility. United States v. Spillone, 879 F.2d 514, 524 (9th Cir. 1989), cert. denied, 111 S. Ct. 210 (1990). Here, Ebeling's inconsistent testimony implicated only his credibility, and was not material to Moreno's indictment. See United States v. Claiborne, 765 F.2d 784, 791-92 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986). Because a motion to dismiss the indictment on these grounds would have been denied, Moreno was not denied effective assistance of counsel when his attorney failed to bring such a motion.

II. The Failure to Grant A Hearing on the Vindictive and Selective Prosecution Claims

Under 28 U.S.C. § 2255, the district court shall grant a hearing to determine the issues and make findings of fact and conclusions of law unless the record conclusively shows that the prisoner is not entitled to relief. See 28 U.S.C. § 2255 (1982); Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988).

In this case, however, it was apparent from the record that Moreno's claims regarding prosecutorial misconduct and selective and vindictive prosecution have no merit, and that Moreno was not entitled to relief under Sec. 2255.

First, as discussed above, Moreno has made no showing that the prosecutor knowingly offered perjured testimony to the grand jury, or that the testimony was material to Moreno's indictment.

Second, the district court properly determined from the record that Moreno had failed to establish a prima facie case of selective prosecution on the basis of his Mexican ancestry, or on the grounds that he was a suspected drug dealer. See United States v. Buffington, 815 F.2d 1292, 1305 (9th Cir. 1987). The record itself establishes that individuals who did not share Moreno's ancestry, and are not suspected drug dealers, are being prosecuted for the committing the same offense.

Third, Moreno's contention that he was subjected to vindictive prosecution rests on the fact that the prosecutor sought a separate indictment after Moreno chose to plead not guilty to the original indictment. However, prosecutorial vindictiveness cannot be inferred simply because the prosecutor's actions followed the exercise of a right. See United States v. Gallegos-Curiel, 681 F.2d 1164 (9th Cir. 1982).

Moreover, a presumption of vindictiveness may not be deemed to arise merely from charges filed by a prosecutor before trial. See United States v. Goodwin, 457 U.S. 368, 379-82 (1982). A prosecutor may properly file additional charges without giving rise to a presumption of vindictiveness if her initial expectation that a defendant would plead guilty to lesser charges proves unfounded. Id. at 380.

In any case, Moreno waived his due process claims when he entered his guilty plea. Constitutional claims do not survive the defendant's entering of a guilty plea unless the court could determine from the face of the indictment or record at that time that the government lacked power to bring the indictment. See United States v. Broce, 488 U.S. 563, 575-76 (1989); United States v. Montilla, 870 F.2d 549, 552-53 (9th Cir. 1989). No such determination could be made here.

Moreno did not raise the argument that his guilty plea was involuntary or that the district court did not comply with Rule 11 procedures in his motion to withdraw his plea, or in his direct appeal. As a result, Moreno must show both cause for his failure to raise these issues in his direct appeal, as well as actual prejudice. See United States v. Frady, 456 U.S. 152, reh'g denied, 456 U.S. 1001 (1982); United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985). He has not established either.

Moreover, the transcript of the hearing at which Moreno entered his plea demonstrates that the district court followed proper procedure and that Moreno entered his plea voluntarily and knowingly.

AFFIRMED.