USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2435
LUIS GUILLERMO SANTIAGO-MARTINEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________
____________________
Luis Guillermo Santiago-Martinez on brief pro se.
________________________________
Lincoln C. Almond, United States Attorney, Margaret E. Curran
_________________
__________________
James H. Leavey, Assistant United States Attorneys, on brief
________________

appellee.
____________________
June 8, 1993
____________________

Per Curiam.
___________
Martinez was
with

intent

distribute

convicted, after
to

pursue a

under 28
raised
provided

was

direct appeal.

ground

2255, to

trial, of

cocaine

five years of

U.S.C.
one

He

Luis Guillermo

a jury

distribute

cocaine.

imprisonment and
not

Appellant

and

possession

conspiracy

sentenced

to

97

supervised release.
Instead,

he filed

set aside his

for relief

Santiago-

--

that

months
He did

a motion,

conviction.
his

to

He

trial counsel

ineffective assistance of counsel when he failed to

object to part of the prosecutor's closing argument.

I.
_

The

relevant facts, taken

parties, are these.

for

the Drug

purchase

from the briefs

On February 15, 1991,

Enforcement Administration

from

Rodrigo

Sostre,

one

a paid informant
(DEA) arranged

to

appellant's

co-

of

defendants, a kilogram of cocaine for $28,000.

their telephone
told

the

conversations (which

informant that

about to arrive
later, appellant

for the

at his (Sostre's) apartment.

to the

During one of

was recorded),

his "source"

drove up

of the

Sostre

cocaine was
A few minutes

apartment building,

went

inside and came back out with Sostre.

On February
the drug

19, 1991,

transaction took

phone call, Sostre told

to meet

his source

the final

place.

arrangements for

During another

recorded

the informant that he was on his way

to discuss where

the deal

would occur.

-2-

Shortly
apartment

thereafter,
building.

Sostre
Sostre

that the sale would take

was seen

entering

then instructed

appellant's
the informant

place at Sostre's apartment.

After

further negotiations at which the informant and his "business

partner,"

Anthony

present,

it

was

Roberto, an
agreed

undercover

that

Sostre

DEA agent,

would

were

activate

the

informant's beeper when the cocaine arrived.

During this

time,

surveillance

team

observed

Aguilino Jose Sanchez and Jose Hernandez (also co-defendants)

drive up to appellant's building.
with

Sanchez and

apartment.

Hernandez;
few

they

minutes

informant's beeper sounded.

arrived

at

appellant

Sostre's

Appellant got into the car

then

after

went

to

their

arrival,

When the informant

apartment,

were already inside.

Sanchez,

Sostre's
the

and Roberto

Hernandez

When questioned

and

by Roberto

why three people were necessary, Sostre replied that that was
the way he did business.

The arrest ensued.

Appellant testified at trial.

He claimed that when

Sostre visited him

on the 19th, they arranged

in

denied having

the

day.

He

Hernandez and Sanchez.

Sostre's apartment

gotten

into the

Rather, he stated, he

and had arrived

co-defendants, whom he did not know.

apart

from

the

others

-3-

while

car with

had walked to

at the same time

as his

He averred that he

there, as arranged, to have a beer with Sostre.

sat

to meet later

the

drug

was

He therefore
transaction

occurred.

He testified

that he was

cocaine, that he could not

unaware of the sale

of

hear the conversation between his

co-defendants, the informant

and Roberto, and that

he could

not see the contents of the bag that contained the cocaine.
II.
__
To
assistance

establish

successful

claim of

of counsel, appellant must show that "the alleged

deficiencies

in

professional

performance

unconstitutional

dimensions

States, 965 F.2d

______

1184, 1193 (1st Cir. 1992).

is

"whether

functioning

counsel's

. .

conduct

so

is a

Barrett
_______

v. United
______

The benchmark

undermined

as having produced a just

Washington, 466 U.S. 668, 686

__________

there

."

assumed

the

proper

of the adversarial process that the trial cannot

be relied on
v.

ineffective

two-pronged

test

for

result."

(1984).

Strickland
__________

Under Strickland,
__________

determining

whether

an

attorney's conduct was so defective as to require reversal of

a

conviction.

defendant must demonstrate

conduct fell below "an objective standard of

and

that

counsel's
different."

he was
errors,

prejudiced
the

See Murchu
___ ______

in

result

the

that counsel's
reasonableness"

sense that

below

v. United States,
_____________

would

"but
have

926 F.2d

for
been

50, 58

(1st Cir.) (per curiam), cert. denied, 112 S. Ct. 99 (1991).

____________
Further, "[t]he
defendant
rather,

Constitution does not

a letter-perfect defense
the

performance

guarantee a

or a successful defense;

standard

is

that

of

reasonably

-4-

effective assistance under the circumstances then obtaining."

United States
______________

v.

Natanel,
_______

938

F.2d

302,

309-10

Cir.1991), cert. denied, 112 S. Ct. 986 (1992).

____________
acceptable assistance is broad so
restricted in making
at 310.

(1st

The range of

that counsel is not unduly

strategic and tactical decisions.

Id.
___

"Judicial scrutiny of counsel's performance must be

highly deferential."
Turning

Strickland, 466 U.S. at 689.

__________

to the

merits of

appellant's claims,

he

contends that counsel's performance fell below the Strickland

__________
standard on the
following

ground that counsel failed to

comments made

by the

prosecutor

object to the
in his

closing

argument:
Now, one Defendant took the stand.
Mr.
Martinez took the stand and he gave you
what he says happened. How do you judge
whether or not a person is telling the
truth?
You do that every day.
The
politician who
says, "I'm
going to
improve police protection.
I'm going to
improve the schools. There's going to be
better fire service and I'm going to
lower your taxes."
You say okay, but
that person has a motive, a motive to
lie.
Who has a motive to lie in this
case? I would suggest to you that it's
the Defendant, Mr. Santiago-Martinez.
"[I]t is, of course, elementary that
counsel

as

to

personal belief

United States v.
_____________

from the

opinion

Cain, 544 F.2d 1113, 1116

____

Thus, a prosecutor
or her

or

evidence.

are improper."
(1st Cir. 1976).

may not include in closing

own opinions about

statements of

arguments his

what conclusions should

United States v. Cresta, 825

______________
______

be drawn
F.2d 538,

-5-

555 (1st Cir. 1987), cert. denied, 486 U.S. 1042 (1988).
____________
concerns

The

behind this rule are that a prosecutor's expression

of opinion

might imply that the prosecutor

information

that

is

not

before the

has knowledge of

jury

and

that

such

expression puts in issue the credibility of counsel, with the

government having the advantage.

Id.
___

However, there is nothing

by the

improper in a suggestion

prosecutor which inferences the jury should draw from

the evidence.

United States v. Smith, 982 F.2d 681, 683 (1st

_____________
_____

Cir. 1993);

United States v.
_____________

Cir. 1990).

Similarly, a prosecutor has the right to comment

on

the

plausibility of

Smith, 982
_____

F.2d at

136, 143 (1st

Mount, 896 F.2d 612,

_____

the

theory posed

683; United States

_____________

by

the defense.

v. Garcia,
______

Cir. 1987); United States v.

_____________

625 (1st

818 F.2d

Glantz, 810 F.2d

______

316, 321 (1st Cir.), cert. denied, 482 U.S. 929 (1987).
____________
right includes,
the

"motivations
___________

in appropriate circumstances,
and

biases
______

including [the defendant]."

_________________________

of

the

This

commentary on

defense

witnesses,

Smith, 982 F.2d at 683 (emphasis

_____

added).
Here,
facts that were
government's
central

appellant took

in contradiction to

witnesses.

issue,

concerning which

the stand

leaving
of two

these circumstances,

As such,
the jury

and

those proffered by
his
with

credibility
the

different stories

a reference

testified to

by the

the
was a

basic decision
to believe.

In

prosecutor to

the

-6-

veracity of

a defendant

suggestion of the

long as

there is

prosecutor's personal opinion.

Garcia, 818 F.2d at 143

______
substantially

is proper so

no

See e.g.,
___ ____

(where "defense theory . . .

rested

[defendant's] credibility

against

on pitting

that of the testifying police officers," prosecutor's comment

that "if you believe that

story, you believe in Santa Claus"

not improper); United States v.

_____________

Molina, 934 F.2d 1440,

______

1445

(9th Cir. 1991) (comments of prosecutor that someone is lying

and

that

the one

referring

who

lied is

to defendant --

where case is

the

one who

are within

is

guilty --

"reasonable latitude"

one that "essentially reduces to

which of two

conflicting stories is true").

Appellant argues that the
improperly bolstered

prosecutor in this

the believability

of the

case

government's

witnesses while at the same time urging the jury to determine

appellant's
of

credibility based on his interest in the outcome

the trial and his motivation to lie.

He urges us to find

that
as

the prosecutor's remarks amounted to "plain error" and,

such, "undermine[d] the fundamental fairness of the trial

and contribute[d] to

a miscarriage of justice."

States v. Young, 470 U.S. 1,

______
_____
143

(absent

timely

See United
___ ______

16 (1985); Garcia, 818 F.2d

______

objection, review

is

conducted

at

under

"plain error" standard).

Appellant
the prosecutor

likens his case

made the

to Cresta.
______

following contested

In Cresta,
______

comment:

"`I

-7-

suggest
.'"

Mr. Trundy [government

825

F.2d at

555.

We

witness] is believable.

characterized this as

vouching" and found the comment to be improper.

We nonetheless determined

doing,

we

viewed

circumstances.

In

the

"personal
Id. at 556.
___

that the offending remark

substantially prejudice the defendant.

comment

in

did not

Id. at 556-57.
___
light

addition to the length of

of

. .

all

In so
of

the

the trial, the

length of
of

closing arguments and the development of the issue

credibility of the government's witnesses, "there was the

key factor of the substantial evidence of appellants' guilt."

Id. at 556.
___
Appellant

argues that this "key factor" is missing

in his case because all of the evidence connecting him to the

crime

was

circumstantial.

counsel did not

by

first

he

claims,

See
___

the

credibility

Garcia, 818
______

F.2d

of
at

the
143

government's
(where defense

counsel suggested in closing that testifying police

had

lied,

defense

"open the door" to the prosecutor's comments

attacking

witnesses.

Moreover,

prosecutor, on

rebuttal,

prejudice defendant's case by

did not

officers

substantially

assailing the truthfulness

of

defendant's version of the facts).

Appellant misunderstands the
in this case.
to see
deciding

We

are not reviewing the prosecutor's comment

whether it constituted
whether

nature of our inquiry

plain error.

appellant's counsel

-8-

Rather,

provided

we are

ineffective

assistance

to appellant by failing to object to the comment.

_________________

This issue turns on whether

objective standard of
58.

counsel's conduct "fell below an

reasonableness."

Thus, considerations

made on rebuttal

such as

Murchu, 926
______

whether the

and whether the evidence

F.2d at

comment was

against appellant

was substantial are only part of the equation.

The cases discussed above persuade us that in these
circumstances, counsel's
range

of acceptable

object

during a

choice.
drawing

assistance.

closing

well within

The

argument

For instance, counsel

placed in

is

plainly

the stand and

may not have wanted

issue by

the wide

decision whether

attention to the conflicting stories.

credibility is
take

behavior was

tactical
to risk

Further, when

a defendant's

present his side of

to

choice to

the story, as here,

the law in our circuit permits a prosecutor to comment on the

motivation of the defendant.

See Smith, 982 F.2d at 683.

___ _____

Given the range and type of

we have allowed in such

prosecutorial argument

a situation, see, e.g., id. (comment

___ ____ ___

that witness and defendant had "concocted" their story proper

as it suggested
evidence)

inferences jury could draw

and Garcia,
______

that defendant

"is lying," though

proper "commentary on
story"),

we

818 F.2d at

cannot

from conflicting

143-44 &

n.7 (statement

not to be

encouraged, is

the implausibility of the

say

that

counsel's

defendant's
conduct

was

constitutionally deficient.

Indeed, counsel's

decision not

-9-

to

object

is

supported by

situation, as appellant
closing, made a

had

cases.

suggests, where

This

is

See United States v.

___ _____________

371, 373 (1st Cir. 1987)

illegally entered

not a

the prosecutor,

deliberate misrepresentation as to

evidence showed.
F.2d

these

in

what the

Santana-Camacho, 833
_______________

(where comment that defendant

country

unsupported

in

record

and

contrary to only evidence on the issue, plain error existed).

For

the foregoing

district court is affirmed.

________

reasons,

the

judgment of

the

-10-