USCA1 Opinion

May 3, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2176
VICTOR VEGA-ENCARNACION,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Stahl,
Circuit Judges.
______________
____________________

Victor Vega-Encarnacion on brief pro se.

_______________________
Daniel F. Lopez-Romo, United States Attorney, Edwin O. Vazqu
_____________________
_______________
Assistant United States Attorney, and Jose A. Quiles-Espinosa, Sen
_______________________
Litigation Counsel, brief for appellee.
____________________
____________________

Per Curiam.
___________

Appellant,

Victor Vega-Encarnacion,

was convicted along with a co-defendant, Hector Orlando CruzRosario, of aiding

than

5,000

and abetting in the distribution

grams of

cocaine in

841(a)(1) and 18 U.S.C.

2.

violation

A third

guilty

witness to testify at

trial was an undercover agent

Andaluz Baez.

We

to

trial.

The

only

for the

affirmed the convictions

appellant and Cruz-Rosario on appeal.

Encarnacion, 914 F.2d 20
___________

U.S.C.

co-defendant, Roberto

Vazquez-Carrera, pled

DEA, Miguel

prior

of 21

of more

of

United States v. Vega_____________

_____

(1st Cir. 1990), cert. denied,

____________

111

S. Ct. 1626 (1991).

Appellant has filed
2255

seeking

to

set

a petition under

aside his

conviction.

28 U.S.C.
He

alleges

ineffective assistance

of counsel.

On the

form provided to

appellant, he specified that counsel (1) had failed to object

to part

of the prosecutor's
to

the

closing argument;

failed to

object

trial

regarding

appellant's failure

court's

and (2)

had

jury

instruction

third ground

to testify.

surfaced in the pleadings filed by appellant in the course of

the district court proceedings.
support of

the

First,

in his memorandum in

2255 motion, appellant

merely stated,

in

describing the nature of the defense presented at trial, that

he

"was not permitted to testify on

in his

objections to

magistrate

the report

his own behalf."

and recommendation

judge, appellant developed

Next,
of the

this point by arguing

that counsel's performance was inadequate on the ground

counsel

had told appellant

appellant to

take

the

that it

stand.

was "not

This,

a request

for an evidentiary hearing,

trial counsel

possible" for

appellant

violated his right to testify on his own behalf.

that

averred,

Finally, in

appellant stated that

"erroneously advised [appellant]

that it

was

impossible for him to testify. . . ."

I.
_
A full
opinion
those

account of the

presented in

our

conviction.

We repeat

only

an understanding

of the

affirming appellant's
facts necessary

raised in
Rico

facts is

the

2255

police

In

1989, the DEA

and Puerto

began

an

investigation

concerning

dealers.

Andaluz,

purchase five

from Vazquez-Carrera.
first meeting

claims

motion.

officers

suspected drug
arranged to

for

the

undercover

kilograms of cocaine

The cocaine was not

agent,

for $70,000

delivered at the

because Vazquez-Carrera did not

to the apartment where the drugs were stored.

have the keys

However, Cruz-

Rosario met with Andaluz to discuss further arrangements.

A few
Andaluz
shopping

and an

days

later, a

second meeting

informant drove

center, where

they

was set

to the designated

were met

place, a

by Cruz-Rosario

Vazquez-Carrera who arrived in the same automobile.

up.

and

Vazquez-

Carrera and the informant then left in the informant's car to

pick up the
rear

cocaine.

When they returned, they

parking lot of the shopping center.

by appellant

in a separate car.

the informant's car to look at

-3-

drove into a

They were followed

When Andaluz

went over to

the cocaine, he was joined by

appellant who had

parking lot.

been seated

next to

Andaluz that the

said that he was;

cocaine was in

they arrived

at

the

the back seat

the informant's

keys

they found

it

ignition.

According

to

appellant helped him to lock up the car.

affirmatively
As

the

Appellant

had come himself because

know how to do the deal

be done

differently.

car.

car,

Andaluz,

Carrera did not

the

of the

with

stated to Andaluz that he

in

appellant then told

unlocked

deals would

the

Andaluz asked appellant if he was with Vazquez-

Carrera and appellant

When

on the sidewalk

Vazquez-

and that any future

Appellant

also responded

when Andaluz asked him if the cocaine was his.

money

was

about to

change

hands,

appellant

was

arrested.
II.
__
To
assistance of
alleged

present

deficiencies

counsel's

claim

appellant must
in

professional

dimensions.

States, 965 F.2d 1184,

______
"whether

successful

counsel,

unconstitutional

is

."

of

establish that
performance
Barrett
_______

1193 (1st Cir. 1992).

conduct

functioning of the adversarial

so

ineffective

undermined

v.

"the

assumed
United
______

The benchmark
the

proper

process that the trial cannot

be relied on as

having produced a just result."

Strickland
__________

v.

466

Strickland
__________

Washington,
__________

established

U.S.

668,

686

two-prong

test

for

counsel's conduct was

(1984).

determining

whether

so defective as to require reversal of

-4-

conviction.

conduct
and

defendant must

fell below an

that

he

counsel's
different."
(1st

establish that

objective standard

was prejudiced

errors,

the

See
___

Murchu v.
______

in

result

the

of reasonableness

sense

below

counsel's

that "but

would

United States, 926

_____________

have

for
been

F.2d 50,

58

Cir.) (per curiam), cert. denied, 112 S. Ct. 99 (1991).

____________

Because we find that appellant has not established prejudice,

we

need

not

address

the

performance was ineffective.

(court
"[i]f it

need not

examine

is easier

question

whether

counsel's

See Strickland, 466 U.S. at 697

___ __________

adequacy of

to dispose

counsel's performance

of the

ground of lack of sufficient prejudice").

. .

. claim

on the

1.

The prosecutor's closing argument.

_________________________________

argues that counsel

erred in not objecting

Appellant

to the following

statements.
The
evidence
shows
that
the
informant's vehicle and the defendant
[Vega-Encarnacion] parked at the back
side of the shopping center parking lot.
And the evidence shows that he stayed,
you remember that he stayed during [the]
time that Roberto goes to the other side
to talk with Officer Andaluz.
And why
will he stay in that place, near the area
that the informant's car was and near the
area that [the] cocaine was.
You
remember that
the evidence
proves that the informant's
car was
unlocked, with a key in the ignition and
with the five kilos of the cocaine in the
back seat. Are you going to believe that
Roberto Vazquez Carrera will leave in
that area with five kilos of cocaine that
cost seventy thousand dollars, with a key
-5-

in the ignition and the door open.

Of
course not.
Drug traffickers don't work
in that way.
On appeal, appellant argues that these remarks were
improper

on

the

ground

that

they

constituted

personal

expressions of opinion

that appellant's role was

out during the transaction.

drug

dealers

work,

As for

appellant

concerning drug operations is

Appellant

relies

on

as a look-

the reference to the way

maintains

that

testimony

the subject of expert opinion.

cases

in

which

challenges

prosecutorial comments were attacked on direct appeal.

to
In so

doing, appellant misconstrues the nature of the inquiry.

test

is not

whether the

prosecutor's

The

comments constituted

plain error, but whether counsel's failure to object to

them

prejudiced appellant.
On
appellant.

this question, we fail to

The

direct

testimony

appellant, based on appellant's

player

appellant

for failing

to

Andaluz

object to

Thus, we

can hardly fault

the characterization

as a look-out -- a less involved role.

________

we cannot say that

but for counsel's failure to

result would have been

identified

own statements, as a primary

in the drug transaction.

counsel

of

see any prejudice to

of

Certainly,
object, the

different, i.e., that appellant would

____

not have been convicted.

2.
for relief is

Jury Instruction.
________________
based on

Appellant's second

counsel's failure to

-6-

ground

object to

the

trial

judge's

effect

"ambiguous" jury

of appellant's failure

instruction

concerning the

to testify.

The trial judge

charged as follows:
Now, the indictment or
form of
charges against a
defendant is
not
evidence of guilt. Indeed, the defendant
is presumed by the law to be innocent.
The law does not require a defendant to
prove his innocence
or produce
any
evidence at all and no inference may be
drawn by the [decision of] defendant not
to testify.
We first
on

note that appellant's only reference to this ground

appeal is in a description of

petition.
why

the contents of the

2255

Nowhere does appellant present any argument as to

the failure

of counsel

to object

to this

instruction

constitutes ineffective assistance of counsel.

In

any

event,

the

allegations

of

prejudice

presented below -- (1) that the instruction left the jury "in
the

dark" as to what weight to place on appellant's decision

not to testify; and

prevent the

jury

(2) that the instruction did

from

imagining

reasons

for

nothing to
appellant's

failure to testify in rebuttal to the statements of Andaluz - are

not persuasive.

argument

set

recommendation

out

in

of

the

This is
his

highlighted by

objections

magistrate

instruction should have stated that

to

judge

the
that

appellant's
report
the

and

proper

"under our constitution,

he has
no
obligation to testify or to present any
other
evidence
because
it is
the

-7-

prosecution's duty to prove the defendant

guilty beyond a reasonable doubt."
Perceiving

no

significant

difference

between

the

two

instructions, it also is difficult to perceive any prejudice.

3.

Right to testify.
________________

Appellant claims

that his

attorney deceived him by

leading him to believe that

legally

impossible

appellant

behalf.

He asserts that this claim cannot be resolved in the

absence

of an

for

to testify

evidentiary hearing.

on

it was
his

own

The district

court is

required to hold such a hearing "if the records and

files in

the case, or an
substantial

expanded record, cannot conclusively resolve

issues

allegations made,
States
______

v. Butt,
____

United

States

of

if true,
731 F.2d

v.

material

fact,

`and

when

would require relief.'"

75, 78

Fournier, 594

(1st Cir.
F.2d

276,

the

United
______

1984) (quoting
279 (1st

Cir.

______________

________

1979)).

We therefore

would be

entitled to

Only
court

if he

would, do

abused its

must first determine whether appellant

relief if
we then

he proved

his allegations.

decide whether

discretion in

not holding

the district
an evidentiary

hearing.
A criminal defendant has a constitutional right
testify on his
51-53 (1987).
trial

own behalf.

Rock
____

v. Arkansas, 483
________

to

U.S. 44,

This right is personal and cannot be waived by

counsel.

Nichols v. Butler, 953 F.2d 1550, 1552 (11th

_______
______

Cir. 1992).

-8-

[I]f defense counsel never informed the

defendant of the right to testify, and
that the ultimate decision belongs to the
defendant, counsel would have neglected
the vital professional responsibility of
ensuring that the defendant's right to
testify is protected and that any waiver
of that right is knowing and voluntary.
United States v.
_____________

Teague, 953
______

F.2d 1525,

1534 (11th

Cir.),

cert. denied,
____________
such

113 S. Ct.

circumstances,

counsel

effective assistance."
We

Teague held
______

has not

provided

that in

"reasonably

Id.
___

question, however, whether

that counsel
without

127 (1992).

would not let appellant

the bare allegation

testify is sufficient,

more, to satisfy the first prong of Strickland.

__________

Underwood v.
_________
(affidavit

Clark,
_____
of

939 F.2d

defendant

473, 475-76

stating

assertion" that "[m]y attorney

(7th Cir.

only

the

told me I could

See
___
1991)

"barebones
not testify"

insufficient to require an evidentiary hearing; some "greater

particularity
situation
induced

necessary").

in regard
by

evidentiary
when

is

attorney

granted to

were

We

similar
plea was

stated

that

defendants "only

highly specific

independent corroboration."

F.2d at 80 n.5, quoted in

_________

a guilty

misrepresentations.

hearings have been

by some

addressed

to allegations that

[such] allegations

accompanied

We

and

usually
Butt, 731
____

Siciliano v. Vose, 834 F.2d 29, 30

_________
____

(1st Cir. 1987).

Even

assuming that

his counsel's

constitutionally deficient, appellant

-9-

performance was

still must satisfy the

second

part

of

the

Strickland
__________

appellant points out that

Rosario

identified

distributor.

test.

Further, appellant

during

the

cocaine.

The only

out, was

the testimony

this

regard,

the government informant and Cruz-

Vazquez-Carrera

mentioned

In

as

the

primary

asserts, his name was never

negotiations

for

the

sale

of

the

evidence implicating appellant, he points

of Andaluz

as to the

incriminating

statements allegedly made by appellant to Andaluz.

Appellant
whether

argues

crime was

defendant

was the

testimony

takes on

that

committed

"`greater

the

but rather

individual who

Nichols for this proposition.

_______
a

where

issue
is

not

whether the

committed the

importance.'"

is

crime, his

He relies

on

However, in Nichols, there was

_______

real question as to whether the defendant actually was the

person

who perpetrated the crime.

robbery in Nichols
_______
second

witness to the

had glanced at the robber for less than a

and another witness

had testified

defendant, had committed the crime.

is no question here

The only

that he,

953 F.2d at 1551.

that appellant was on

not the
There

the scene and

he

does not deny that he spoke with Andaluz.

Nonetheless, he

asserts that he was

prejudiced in

this situation
position to

because "there

challenge

Encarnacion himself."
entitled to

was

only one

agent Andaluz's
As

such,

hear appellant's

person in

testimony

he urges,

version of

--

the

the
Vega-

jury

the facts so

was
that

-10-

they could

weigh his credibility against

Andaluz.

Thus,

established

appellant

and that

concludes

"the government

the credibility of
that

prejudice

is wrong

is

in claiming

that [his] testimony could not [have] changed the outcome

of

the trial."
Although appellant's
testify

which

cognizable
prejudice

under
resulting

representation
specific
at 77.

cannot

are

be
2255,
from

claim that he has

waived

by

his

nothing more

is

one

concerning

the

supposedly

than

and detailed supporting facts."

In this situation,

counsel

his allegations
counsel's

a right to

inadequate

"conclusions without
See Butt, 731 F.2d
___ ____

we need not treat

them as true.

See Porcaro v. United States, 784 F.2d 38, 40 (1st Cir.) (per
___ _______
_____________

curiam),

cert. denied,
____________

479 U.S.

appellant's argument regarding

916 (1986).

prejudice boils

In

essence,

down to

the

bare assertion that had appellant been allowed to testify, he

would have
made

by

adequately rebutted and

Andaluz.

What

indication of exactly what

been.

Indeed, there

appellant

could

district
absence

of this

lacking,

getting

supplied
he filed

kind of

determine that, but for

obviously,

is

appellant's testimony would

is no

have

court when

is

explained the statements

this
his

around the

have

fact that

information
2255 motion.

specificity, it

any

to

the

In

the

is impossible

to

counsel's alleged errors, the result

below would have been different.

-11-

We do not believe
movant can
testify,

just

that in this situation a

declare that

a hearing

should have

because

he was

been held.

2255

entitled
"Some

to

greater

particularity is necessary . . . to give the claim sufficient

credibility

to warrant

further

investment

of

judicial

resources in determining the truth of the claim."

939 F.2d at

476.

As appellant has

Underwood,
_________

not demonstrated that he

is entitled to relief by providing the requisite specificity,

the

district

court

did not

abuse

its

discretion

in not

holding an evidentiary hearing.

For

the

foregoing reasons,

district court is affirmed.

________

-12-

the

judgment of

the