30 F.

3d 127

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
Juan Consoro FAMILIA, Defendant, Appellant.
No. 92-1685

United States Court of Appeals,

First Circuit.
July 11, 1994

Appeal from the United States District Court for the District of Rhode
Island [Hon. Francis J. Boyle, Senior U.S. District Judge ]
Juan Consoro Familia on brief pro se.
Edwin J. Gale, United States Attorney, Margaret E. Curran and Kenneth
P. Madden, Assistant United States Attorneys, on brief for appellee.
D.R.I.
AFFIRMED.
Before Torruella, Boudin and Stahl, Circuit Judges.
Per Curiam.

After a jury trial, appellant Juan Consoro Familia and his live-in girlfriend,
Priscilla Jackson, were convicted of conspiring to possess and possession with
intent to distribute cocaine in violation of 21 U.S.C. Secs. 846, 841(a)(1), and
841(b)(1)(C).1 Familia was sentenced to 85 months' imprisonment and 5 years
of supervised release. He is subject to deportation upon his release from prison.

We affirmed codefendant Jackson's sentence in United States v. Jackson, 3 F.3d

506 (1st Cir. 1993). Familia, who is proceeding pro se, now appeals his
conviction. He raises one argument-i.e.-that his defense attorney rendered him

constitutionally ineffective assistance due to a conflict of interest. Familia

specifically charges that his defense attorney's fee was paid by the true owner
of the cocaine: his brother, Bonifacio Consoro Familia (Bonifacio). Familia
contends that his counsel failed to mount a proper defense because his loyalty
to Familia was compromised by his desire to protect Bonifacio so that he could
receive payments from him. Familia also charges that his defense attorney
deliberately failed to introduce evidence that would have proven that he and
Jackson were innocent and that Bonifacio and Bonifacio's girlfriend ("Kris")
were the real drug dealers. Having thoroughly reviewed the record and the
parties' briefs on appeal, we affirm Familia's conviction without prejudice to his
raising his ineffective assistance of counsel claim in a 28 U.S.C. Sec. 2255
proceeding.
I.
3

Familia and Jackson were arrested after certain members of the Providence
Police Department executed a search warrant at their apartment on November
11, 1991. The underlying facts are described in United States v. Jackson, 3 F.3d
at 508, which states as follows:

On November 11, 1991, police officers from Providence, Rhode Island went to
execute a search warrant at the second floor apartment of 142 Bowdoin Street,
Providence. At approximately 7:00 p.m., Familia departed from the apartment
and drove away in a Dodge minivan. The officers stopped the vehicle and
returned with Familia to his apartment.

They entered the kitchen through the rear door using Familia's keys. The
kitchen leads directly to the master bedroom, which contained a bed, a crib, an
upright dresser, a bureau and a television table. Jackson was on the bed with the
couple's child.

Upon entering the apartment, Familia declared: "All I have is a gun. It's under
the mattress." The police proceeded to search the apartment. They found the
pistol under the mattress. A bottle of inositol, a chemical used to cut or dilute
cocaine, sat on top of the bureau. The bottom drawer of the dresser was nailed
shut. The officers discovered that the drawer itself had been removed and only
the facade remained. On the floor behind the false drawer front, they found a
paper bag and a metal box. The paper bag held three plastic bags that contained
299.22 grams of cocaine. The metal box contained $3866 in United States
currency and two Rhode Island state lottery receipts, which indicated that
Familia had received a total of $2085 in winnings on August 28, 1991. The
police also found a small plastic bag containing ten rounds of .38 caliber

ammunition in plain view on the floor in front of the bedroom closet.

7

At trial, t he foregoing facts were established through the testimony of the five
Providence police officers who participated in the search of the apartment.
There was also evidence that shortly after the arrest, Familia told the police,
"She had nothing to do with it. I'm responsible for everything you found."

The defendants were represented by separate counsel. They argued that the
evidence did not prove that they knowingly possessed the cocaine with the
intent to distribute it. Familia, who had no criminal record, testified in his
defense. He maintained that his post-arrest statement referred only to the gun
and that he did not own the cocaine. He testified that his brother Bonifacio also
resided in the apartment.2 On cross-examination, Familia implied that the
cocaine might have belonged to Bonifacio, although his testimony was not firm
on this point.3 While he acknowledged that the strongbox and gun were his, he
testified that most of the money in the strongbox had been given to him by his
sister to purchase his van and ship it to Puerto Rico.

The trial record suggests that Familia's trial counsel made a faint-hearted
attempt to imply that Bonifacio was the drug dealer. On cross-examining one of
the police officers (Drohan), counsel established that Bonifacio had been
arrested on 9/4/90 for selling cocaine to an undercover police officer. He also
established that the police had received many complaints that Bonifacio was
selling drugs from a barricaded Providence address (65 Laura Street) around
that time. But he did not elicit further evidence to that effect from Familia. The
little evidence that Familia gave impugning his brother was brought out by the
government on cross-examination. In any event, neither the jury nor the
sentencing judge were persuaded by Familia's story.

II.
10

On appeal, Familia argues that his attorney deprived him of the effective
assistance of counsel by failing to use evidence that would have shown that
Bonifacio was the real owner of the cocaine. Familia claims that Bonifacio was
in the United States illegally after previously being deported for a drug offense.
He alleges that Bonifacio paid his attorney in cash and that his attorney had an
interest in not turning Bonifacio in so that he could continue receiving payments
and avoid implicating himself in the crime of failing to report an illegal alien. 4
Familia contends that his counsel's ineffectiveness is shown by the following
acts and omissions:
(1) failing to file a motion to suppress, a motion to quash the indictment, and a

11

(1) failing to file a motion to suppress, a motion to quash the indictment, and a
motion for an acquittal;

12

(2) failing to file a motion to compel a confidential informant, who participated

in three drug buys before

13

Familia's arrest and provided the Providence police with information which
lead them to suspect that persons occupying Familia's apartment were selling
cocaine, to testify and identify the real drug pushers (i.e.,

14

Bonifacio and Kris);

15

(3) failing to use documents and things that the government provided in pretrial
discovery. In support of this particular claim, Familia argues that:

16

(a) his counsel could have used the affidavit that the police submitted in
support of the application for the search warrant to prove that he and Jackson
do not satisfy the physical descriptions of the Hispanic male and black female
who allegedly sold cocaine as described in the affidavit;

17

(b) counsel also could have used the defendants' passports and a picture of
Jackson to prove that he and Jackson were in Puerto Rico when the informant
purchased cocaine and that his sister gave him the money that was found in the
strongbox;5

18

(c) counsel failed to secure copies of the defendants' airline tickets, which
would have corroborated his story that they were in Puerto Rico when the
informant made the drug buys; and

19

(d) counsel failed to introduce a photograph of

20

Bonifacio and documentary evidence that would have established that

Bonifacio had previously been convicted of selling drugs and deported.6

21

(4) failing to call Familia's sister as a witness at his trial, although she would
have corroborated Familia's testimony that most of the money found in the
strongbox represented the proceeds of Familia's sale of the van to her, as her
testimony at his sentencing demonstrates;

22

(5) suborning perjury by instructing Familia to lie about how much money was
found in the strongbox to protect a Providence police officer who stole some of

that money;7
23

(6) failing to show that Detective Lennon lied to the grand jury about Jackson's
involvement in drug sales.8

24

Familia asks that we set aside both his and Jackson's conviction based on the
foregoing allegations. The government urges us to deny Familia's claim on the
ground that he has failed to show an actual conflict of interest. Alternatively,
the government says that we should decline to address this issue on direct
appeal.

25

At the outset we note that significant portions of Familia's brief raise arguments
on behalf of his co-defendant, Jackson. But as Familia has no standing to
challenge Jackson's conviction, the arguments he asserts on her behalf have no
merit. Familia's conflict of interest claim requires further attention.

III.
26

"In order to establish a violation of ... [a defendant's] Sixth Amendment [right

to the effective assistance of counsel], a defendant who raised no objection at
trial must demonstrate that an actual conflict of interest adversely affected his
lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). See also
United States v. Rodriguez, 929 F.2d 747, 749 (1st Cir. 1991)(per curiam).
And, "in order to show an actual conflict of interest, a defendant must show that
(1) the lawyer could have pursued a plausible alternative defense strategy or
tactic and (2) the alternative strategy or tactic was inherently in conflict with or
not undertaken due to the attorney's other interests or loyalties." United States
v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994). While the defendant
"need not show that the alternative strategy would have been successful" he
must establish that "it possessed 'sufficient substance' to be a viable alternative."
United States v. Garcia-Rosa, 876 F.2d 209, 231 (1st Cir. 1989), cert. denied,
493 U.S. 1030 (1990)(quoting Brien v. United States, 695 F.2d 10, 15 (1st Cir.
1982)). "[A] defendant who shows that a conflict of interest actually affected
the adequacy of his representation need not demonstrate prejudice in order to
obtain relief." Cuyler v. Sullivan, 446 U.S. at 349-50.

27

Familia primarily faults defense counsel for failing to use evidence generated
by the police surveillance of his apartment before the search that lead to his
arrest. He claims that counsel could have proven that he and Jackson were
away in Puerto Rico when the informant purchased cocaine from Bonifacio and
his girlfriend "Kris," and that this in turn would have persuaded the jury that he

and Jackson were innocent. It is not clear that this was a plausible alternative
strategy. Even if counsel had pursued it, the evidence could have shown that
Jackson and Familia had allowed their home and their respective motor
vehicles to be used by others to sell cocaine.9 The jury could easily have
construed this evidence as further supporting the government's claim that
Familia and Jackson were involved in a conspiracy to possess and distribute
cocaine, particularly in light of the other evidence that was adduced at trial.
Counsel's decision to refrain from introducing this evidence thus may well have
been a reasonable tactical decision, not necessarily an effort to protect
Bonifacio at Familia's expense. Familia also offers no sound reasons to believe
that Bonifacio would have confessed to being the true owner of the cocaine had
defense counsel turned him in. Compare United States v. Garcia-Rosa, 876
F.2d at 231 (rejecting ineffective assistance claim based on failure to call a
witness).10
28

We also fail to see how Familia was prejudiced by counsel's other alleged
shortcomings. While the record verifies Familia's claim that counsel failed to
file a motion to suppress, a motion to quash the indictment, and a motion for an
acquittal, we discern no basis upon which any of these motions could have been
allowed. Counsel's failure to call Familia's sister as a witness at his trial also
appears to have had a negligible impact on the verdict given the weaknesses in
her testimony. See United States v. Jackson, 3 F.3d at 511.11

29

Nevertheless, "[i]t is well established in this circuit that a claim of ineffective

assistance of counsel will not be resolved on direct appeal where the claim was
not raised in the district court, unless the critical facts are not in dispute and a
sufficiently developed record exists." United States v. Daniels, 3 F.3d 25, 26-27
(1st Cir. 1993). This is because "[a] claim of ineffective assistance of counsel
which involves matters not fully developed in the trial record, but necessary for
determination of the claim, is not ripe for decision on direct appeal." United
States v. Georgacarakos, 988 F.2d 1289, 1297 (1st Cir. 1993)(declining to reach
claim that defense counsel rendered ineffective assistance by failing to raise
entrapment defense where record did not enable reviewing court to determine
whether counsel made a tactical decision not to pursue the defense and
likelihood of prejudice resulting from the failure to raise it). Moreover, the trial
judge is in the best position to evaluate defense counsel's performance in the
first instance. See, e.g., United States v. McGill, 952 F.2d 16, 19 (1st Cir.
1991).

30

Resolution of Familia's ineffective assistance claim requires a factual inquiry to

determine whether Bonifacio actually paid defense counsel's fee, whether
defense counsel knew Bonifacio to be a drug dealer as Familia alleges, and

whether defense counsel failed to pursue any viable defenses as a result of his
alleged relationship with Bonifacio. Therefore, we decline to resolve this
ineffective assistance claim on direct appeal. Rather, we leave Familia to
develop this claim in a 28 U.S.C. Sec. 2255 proceeding.
31

Accordingly, Familia's conviction and sentence are affirmed without prejudice

to Familia's right to pursue relief under 28 U.S.C. Sec. 2255. Familia's motion
for a polygraph examination is denied.

32

drugs was my brother. I knew he was involved in that before. I didn't know that
he was still

33

involved in that.

Familia was acquitted of using a firearm in relation to a drug trafficking crime

in violation of 18 U.S.C. Sec. 924(c)

His landlady also testified that Bonifacio frequently stayed at Familia's

apartment

The testimony went as follows:

Assistant U.S. Attorney: Who do you claim is the owner of the cocaine?
Familia: The only one related who had anything to do with

Familia contends that had Bonifacio been arrested, he would have confessed to
owning the cocaine and further shown that the police were lying when they
testified that the cocaine was found in the bedroom occupied by Familia and
Jackson. Familia says that his brother would make a deal with the government
to disclose the truth about the cocaine to avoid a stiff prison sentence for being
in the United States illegally

We note that the transcript of the probable cause hearing indicates that Jackson
did not have a passport. The trial record indicates that two passports in
Familia's name were confiscated during the apartment search

The documentary evidence Familia relies upon is attached to his appellate brief.
It consists of the police reports and search warrant that pertained to Bonifacio's
1990 arrest and a copy of an Immigration and Naturalization Service (INS)
detainer on Bonifacio. These documents are not part of the district court's

record. Familia asks that we conduct a "de novo review" of this and other
evidence that is in the record in assessing his ineffective assistance claim
7

Familia claims that there was $5007 in the strongbox, not the $3866 identified
at trial. He says that the officer in charge of the investigation (Providence
Detective Lennon) pocketed the difference and that his attorney covered it up
by refusing to let Familia testify to the true amount

Familia also argues that his attorney failed to ask certain questions that were
asked at his probable cause hearing. The questions, which are recorded on pp.
19-26 of the transcript, concern the information that the police had before they
secured the search warrant for Familia's apartment. Familia suggests that
counsel could have established that the police had no direct evidence that either
he or Jackson sold drugs

The affidavit which Detective Lennon used to obtain the search warrant for
Familia's apartment indicates that the informant purchased cocaine from the
suspects on three occasions, two of which occurred in November 1991. On the
first occasion, the date of which is not specified, the informant purchased
cocaine from the Hispanic male suspect at Familia's apartment. On the second
occasion, the informant purchased cocaine from the same man while he was in
a car that was registered to Jackson. On the third occasion, the informant
purchased cocaine from the black female suspect while she was in the van that
was registered to Familia. Familia claims that this affidavit proves that he and
Jackson do not meet the physical descriptions of the suspects who sold the
cocaine. But even assuming that is true, the jury could still have concluded that
Familia and Jackson were involved in the conspiracy because they allowed
their home and vehicles to be used for the drug transactions

10

Familia posits that Bonifacio would have confessed in a "deal" with the
government. We see no reason why the government should be inclined to offer
a "deal" to Bonifacio, nor to assume that Bonifacio would have given testimony
that would otherwise have cleared Familia and Jackson

11

Familia's claim that his counsel suborned perjury obviously makes a very
serious charge. However, he does not explain how this particular act prejudiced
his defense, thus it is not clear that this alleged misconduct rendered counsel's
representation constitutionally ineffective