Professional Documents
Culture Documents
United States v. Gerogarakos, 1st Cir. (1993)
United States v. Gerogarakos, 1st Cir. (1993)
No. 92-1890
UNITED STATES,
Appellee,
v.
PETER N. GEORGACARAKOS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Seth M. Kalberg, Jr. for appellant.
____________________
Margaret D. McGaughey, Assistant United
_______________________
States Attorney,
intent
to
distribute and
erroneous,
and that
ineffective assistance
the defendant's
distribution
which
of
cocaine on
the
defense
of counsel.
was flawed
We decline
ineffective assistance
by
to consider
claim which
was not
defendant-appellant now
the
objects, were
on
not
objected
30.
We find
constitute plain
I.
I.
BACKGROUND
BACKGROUND
__________
During October, 1991,
agreed
as an
defendant, whom
dealers.
In
contacted the
on
and asked
-22
After
cocaine.
and
supervised
provided
The
Porcaro
in
with
all
Porcaro
the
undercover
necessary
operation, and
equipment
including
defendant
and
Porcaro
trips
to
on
November
cocaine.
made
two
On
and
defendant
money
journey.
the
Porcaro drove
defendant
admits that
and then
the
only
he purchased
Porcaro in
the contrary
was
borrowed cars
passenger.
cocaine with
to him.
He
that he purchased
Massachusetts.
that on both
on both
Porcaro's
testified at
and gave
Porcaro
until they
Porcaro
handed Porcaro
Maine.
a napkin.
As
to the
in
destinations
kept the
cocaine
their
the
testified to
reached
The
Porcaro
-33
back to Maine
and that he
prearranged
meeting
place, a
motel
Portland.
and police
agents
testified
surrounded the
that they
glove
The agents
compartment
of
lot in
saw
the
parking
car.
South
of the car,
Two
of the
defendant moving
and
the
car
after
the
defendant
was
arrested.
Venue
Defense
was
the
counsel objected
primary
to
focus
the district
of
the
defense.
court's proposed
to the
jury retired,
defense counsel raised other issues, but did not object again
to the instructions
proper in
counts.
Maine,
on venue.
and found
II.
defendant guilty
on
both
II.
ANALYSIS
ANALYSIS
________
The defendant
raises two
issues on appeal:
(1)
-44
A.
A.
gave
instructions on
contrary to the
the defendant
claims are
impermissibly
broad
view
venue.
Proper venue
of conduct
in a
relevant
to
proving
criminal prosecution
constitutional right:
the Framers wrote into the Constitution
that "The Trial of all Crimes . . . shall
be held in the State where the said
is a
Crim. P.
18.
If
of
determined
location
v.
the
from
crime for
the nature
venue,
of
the
location
the crime
alleged
defining the
"must be
and the
United States
_____________
-55
United
______
The
counts
with
defendant
violation
in this
of
21
case
was
U.S.C.
charged in
841(a)(1)
841(b)(1)(C):
Count One
distribute and
distribution of cocaine on
two
and
intent to
15, 1991.
determining
committed in
U.S.C.
The
venue.
more
than one
3237(a).1
crimes,
district,
Distribution and
indicate a method
i.e.,
are governed
crimes
by
18
United States v.
_____________
Uribe, 890 F.2d 554, 558-59 (1st Cir. 1989); United States v.
_____
_____________
Kiser, 948 F.2d 418,
_____
S.
Ct.
1666
prosecuted
(1992).
Therefore,
venue
denied, 112
______
for
the
crimes
to decide
determine what
charged.
220-21 (1956).
acts by
Johnston v.
________
occurred, we
constituted the
351 U.S. 215,
____________________
1
18 U.S.C.
(a) Except
as otherwise expressly
provided by enactment of Congress, any
offense against the United States begun
in one district and completed in another,
or committed in more than one district,
in the statute
scope of
criminal offense"
relevant conduct.
F.2d 902,
(1981);
defining the
United States
_____________
cert.
_____
to find
the
v. Tedesco,
_______
635
denied, 452
______
U.S. 962
(1st Cir.
charged
1987).
in
The
this case
intent to distribute."
key verbs
are
relevant
"distribute"
to the
crimes
and "possess
with
(2d
States,
______
Cir.), cert.
_____
intent
to
v. United
______
distribute
Lavery
______
F.2d 1181,
cocaine
those offenses.
are
probative
Griffin,
in
814 F.2d at
_______
810; United States v. Davis, 666 F.2d 195, 200 (5th Cir. Unit
_____________
_____
B
1982).
Jury
instructions
on
venue must
restrict the
jury
instructions
which
the
-77
defendant
The
emphasized
for a
conspiracy charge or
for aiding
and
F.2d 298,
conspiracy
prosecution may
which some
overt act
committed
by
any
of
the
United States v.
_____________
Cir.
(discussing
establish
venue for
brought in
in furtherance
omitted));
1989)
be
any district
of the conspiracy
co-conspirators,'"
Long, 866 F.2d
____
similarity of
conspiracy
and
proof
in
was
(citation
aiding and
to
abetting).
have
a broad
scope
of conduct
multiple participants
crimes.
and
In individual
relevant
to venue
the participatory
crimes,
such
due
to
nature of
the
as distribution
and
conduct
cocaine
We
agree with
court's
other
could be interpreted by a
than
the defendant,
instructions on
possessing
and
distributing
therefore, that
venue
jury to
were overly
the district
broad and
were
erroneous.
Because the
instructions
on
venue
required by Fed. R.
under the
Santana,
_______
defendant
failed
after
the charge
to
plain error
standard.2
to
to
the
the
jury
as
the instructions
United States
_____________
v. Mendoza-Acevedo,
_______________
object
v. Arias______
United States
_____________
"Plain
they
were
not brought
to
the
attention
of the
____________________
2
court."
Fed.
R.
Crim. P.
52(b).
To
cause reversal
of
fairness of
miscarriage of justice."
16 (1985).
we
the trial
and contribute
to a
examine the
instructions
in the
context of
the entire
they
trial.
Id. at
___
undermined
the
fundamental fairness
determine
of
the
Weston,
______
960 F.2d
claims of
212, 216
plain error,
(1st Cir.
we
United States v.
_____________
1992) ("In
consider the
assessing
instructions as
whole,
taking into
account whether
the putative
errors so
skewed
the
trial
defendant's
conviction
offends
entire
due
erroneous
that the
process.").
The
instructions allowed
question
the
jury to
is
whether
the
find venue
in
urges us
jury on alternative
(quoting Leary v.
_____
when a case
his conviction
is submitted to the
to reverse
any
Rodriguez, 465
_________
F.2d 5, 10
-1010
(2d Cir.
U.S. 6, 31-32
1972)
(1969))
(footnotes omitted).
the
constitutionality of a
the
basis
for one
of
statutory presumption
two
alternative theories
presented
to
statutory
conviction.
on
uttering a
two
was
Supreme
a "continuing
forged
check
was
not
submitted to
guilt:
the crime of
uttering a
to 18
offense,
the
aiding and
a continuing
that the
offense" pursuant
3237.
guilt
theories of
or that
of
Court held
alternative
The
the crime of
jury
the jury.
which was
forged
U.S.C.
uttering a
one
of
the
therefore, is inapposite
which
guilt.
to this case.
An analogous
rule,
general
have rested
exclusively
on the
insufficient
881 (1983).
ground."
An exception to
____
________
-1111
the
rule exists
if uncertainty
as to
the grounds
for the
F.2d 515,
Based on
trial
520 (1st
Cir. 1988).
record, there
can be no
a review
uncertainty that
of the
the jury's
were two
versions
informant,
testified
of events
of the
testimony at trial.
that
during
both
trips
Porcaro,
trips
to
arrived back
there
sustainably
is
have found
no
in Maine.
question
that
the
Based on
that
the
defendant
Porcaro's
jury
possessed
the cocaine
The defendant
first trip to
in Maine
during the
could
and
trip,
November 15
during their
to
the
package under
his seat.
The defendant
testified that
during
Porcaro
the glove
compartment.
not possess
The
or distribute
of cocaine to
put it into
cocaine in
Maine on
he did
either
trip.
proper
in Massachusetts.
-1212
The
possession
defendant
with
courts found
relies
intent to
on
three
distribute
cases
drugs
involving
in which
the
constructive possession
States v.
______
of the
contraband.
the defendant
In United
______
Cir. 1990),
Dakota for
intent to
distribute cocaine
cocaine
ever
because
neither the
entered North
Dakota.
defendant
In
nor
the
United States v.
______________
the court
found that venue was improper in New Mexico where the cocaine
travelled without
train in
the defendants
California because
possession, the
possession,
locus of
to him." Id.
___
"the locus of
from the
the constructive
a crime committed
cannot be a place
been, personally or by a
by constructive
attributable
constructively possessed
Georgia.
the
drugs while
they were
in
defendant's
reasoning
ignores
his
-1313
close
to Maine,
The defendant
rode
back
to
Maine
with
United States v.
______________
1991).
possesses
Although
drugs
is
the
in Maine.
exists
in
or joint
Illegal
1393, 1397
association
insufficient
car,
constructive, sole or
show
(1st
428 (1st
with someone
to
if the
who
possession,
defendant knows
the
joint constructive
in
in
mere
constructive possession
drugs
the cocaine
cocaine
possession of
possession of
joint."
the
the bedroom
(Feb. 4, 1993,
possession of a package
closet of
of cocaine found
two defendants).
"The typical
object are in
but
the defendant does not have the object in hand and indeed may
try to disclaim ownership
or possession."
Medina-Ramos, 834
____________
F.2d at 876.
and
person
another
dominion and
share
control over
power
and
contraband.
intent
to
Wight, 968
_____
exercise
F.2d at
a passenger in
charge of the
-1414
being packaged).
Constructive
others where
possession may be
United States
_____________
district
and
joint
court
instructed
possession,
the
without
jury
on
objection.3
copy of the
and intent to
distribute.
____________________
3
The law
recognizes also different
kinds of possession.
A person may have
actual
possession
or
constructive
possession.
And possession may be sole
or possession may be joint.
Neither
After
proof of physical
proximity to
the
cocaine, nor the mere association with
someone who does control it is alone
enough
to
establish
actual
or
constructive possession.
A person who has
direct physical
control of something on or around his
person is then in actual possession of
it.
A person who is not in actual
possession, but who has both the power
and the intention to take control over
something
later
is in
constructive
possession of it.
If one person alone has actual or
constructive possession, possession is
sole, sole possession.
If two or more persons share actual or
constructive possession, possession is
joint. Joint possession.
Whenever
I
have
used the
word
possession in these instructions, I mean
actual as well as constructive, and joint
as well as sole possession.
Record at 463.
-1515
discussion with counsel, the trial judge sent the jury copies
of the
indictment
previously
read to
intent to distribute
and of
them,
and
instructions, which
on possession,
the
constructive
he
had
distribution
and
constructive possession.
addition
includes
to
actual
possession.
The
always intended to
crimes
continued
accessible to the
where it
into
crimes there.
constructive possession
the first trip, when
Maine based on
defendant's version
trips,
the
possession of
The
knew
of
of
his own
events,
occurred, on
The
any time.
joint possession
even based
to
cocaine remained
have retrieved it at
We disagree.
the
in constructive
Accepting
give it
Maine because
bought
dispute that he
defendant's
defendant's
version of
continued
-1616
Therefore,
events for
joint
both
constructive
to Porcaro in
Maine, on
was sufficient
to
could
have
found
instruction on venue is
States
______
v.
Martinez,
________
otherwise,
an
F.2d
374,
erroneous
See,
___
376
jury
e.g., United
____ ______
(4th Cir.
1990)
of venue existed);
1985), cert.
_____
relevant for
determining venue,
the error
did not
cocaine in Maine.
the
at
cocaine
trial
to
Porcaro
established
If
in
testimony, that he
Massachusetts,
constructive
and/or
the
joint
possession
of events,
the jury
grounds to
venue.
result
We hold
in
had sufficient
that
the erroneous
miscarriage
of
justice
find proper
instructions
in
this
did not
case,
and
-1717
B.
B.
additional
counsel
defendant
ground that
due
to his
During
defense.
of the
entrapment
counsel
notified
the
an entrapment
defendant,
an entrapment
as a
on
assistance of
could be
defense unless
otherwise.
that he
the assumption
Defense
of ineffective
defense.
the prosecutor
was relying on
proceeded
court
of
pursue an
be used
the
support
of the
to
then
would not
case
on
assistance
counsel's failure
Defense counsel,
conviction
lacked effective
defense counsel
The court
his
The defendant
cross-examination
asked whether
sure.
he
trial
entrapment defense.
circumstances
appeals
counsel was
that
defense
counsel
again.
The
not raised
ineffective assistance
time on direct
appeal.
785
of counsel
raised for
United States v.
_____________
Cir.
Roccio, 981
______
United States v.
_____________
1991)
("In
a claim
the first
Cir. 1991);
(1st
952 F.2d
Austin, 948
______
the
vast
F.2d
majority
F.2d
of
completion of a trial on
the merits,
no record
the appellate
examine
in
claim
of
exists
for
court
to
-1818
assessing
the
validity
of
the
claim.").
developed
determination
direct appeal.
of
in
the
trial record,
the claim,
United States
_____________
is
but
not ripe
matters not
necessary
for
v. Sutherland, 929
__________
for
decision on
F.2d 765,
774 (1st Cir.), cert. denied sub nom., Fini v. United States,
_____ ______ ___ ____ ____
_____________
112 S. Ct. 83 (1991);
302,
(finding an exception
to the rule
record [was]
consideration
of
sufficiently
the
developed to
ineffective
allow reasoned
assistance
of
counsel
A fact-specific
appraise
better
perspective
representation in
"to
defense
counsel's
proceedings."
United
______
States v. Sanchez, 917 F.2d 607, 612-13 (1st Cir. 1990), cert
______
_______
____
denied, 111 S. Ct. 1625 (1991).
______
The Sixth Amendment right
prosecution
includes
assistance of
counsel.
counsel
the
To
right
to counsel in a criminal
to
reasonably
Strickland v. Washington,
__________
__________
prevail on a
claim of
effective
short
of
-1919
the
466 U.S.
ineffective
applicable
performance
When applying
we examine
what
of the
test,
a defendant
Id.
___
"must
only
that
is
reliable.'"
Sutherland, 929
__________
trial
F.2d at
774
evaluate effectiveness
States
______
v.
Because the
Tabares, 951
_______
F.2d
405,
409
the government
We cannot
decision not to
of representation.
indicated that
it
to focus
Cir.
1991).
would present
additional
of prejudice
of
acknowledges
ineffective
agree,
resulting from
entrapment.
that
Defendant's
factual
assistance of
and decline
development
counsel might
to decide
this issue
failure to
brief
of
the
use the
on
appeal
claim
be necessary.
leaving it
of
We
to be
-2020
addressed,
if defendant
pursuant to 28 U.S.C.
chooses, through
2255.
Affirmed.
Affirmed.
_________
Dubitante follows.
Dubitante follows.
_________
collateral attack
-2121
(dubitante).
Although
concurring
(dubitante).
serious
reservations
all.
decides that
at 20.
pursuit
which,
as
to
whether
of
Be that
plain nor
as it may, the
Given that
would
because I have
district judge's
whole, constituted
court, after finding
prejudicial, see
___
the defendant's
my point
the
of venue, taken as a
was neither
ante
____
I write separately
ante at 16-17,
____
unexceptionable outcome,
be a
purely
and
See
___
further
academic exercise
After all, as
the Roman maxim has it, si finis bonus est, totum bonum exit.
____________________________________
-2222