[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2435
LUIS GUILLERMO SANTIAGO-MARTINEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Luis Guillermo Santiago-Martinez on brief pro se.
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Lincoln C. Almond, United States Attorney, Margaret E. Curran and
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James H. Leavey, Assistant United States Attorneys, on brief for
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appellee.
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June 8, 1993
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Per Curiam. Appellant Luis Guillermo Santiago-
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Martinez was convicted, after a jury trial, of possession
with intent to distribute cocaine and conspiracy to
distribute cocaine. He was sentenced to 97 months
imprisonment and five years of supervised release. He did
not pursue a direct appeal. Instead, he filed a motion,
under 28 U.S.C. 2255, to set aside his conviction. He
raised one ground for relief -- that his trial counsel
provided ineffective assistance of counsel when he failed to
object to part of the prosecutor's closing argument.
I.
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The relevant facts, taken from the briefs of the
parties, are these. On February 15, 1991, a paid informant
for the Drug Enforcement Administration (DEA) arranged to
purchase from Rodrigo Sostre, one of appellant's co-
defendants, a kilogram of cocaine for $28,000. During one of
their telephone conversations (which was recorded), Sostre
told the informant that his "source" for the cocaine was
about to arrive at his (Sostre's) apartment. A few minutes
later, appellant drove up to the apartment building, went
inside and came back out with Sostre.
On February 19, 1991, the final arrangements for
the drug transaction took place. During another recorded
phone call, Sostre told the informant that he was on his way
to meet his source to discuss where the deal would occur.
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Shortly thereafter, Sostre was seen entering appellant's
apartment building. Sostre then instructed the informant
that the sale would take place at Sostre's apartment. After
further negotiations at which the informant and his "business
partner," Anthony Roberto, an undercover DEA agent, were
present, it was agreed that Sostre would activate the
informant's beeper when the cocaine arrived.
During this time, a surveillance team observed
Aguilino Jose Sanchez and Jose Hernandez (also co-defendants)
drive up to appellant's building. Appellant got into the car
with Sanchez and Hernandez; they then went to Sostre's
apartment. A few minutes after their arrival, the
informant's beeper sounded. When the informant and Roberto
arrived at Sostre's apartment, Sanchez, Hernandez and
appellant were already inside. When questioned 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 to meet later
in the day. He denied having gotten into the car with
Hernandez and Sanchez. Rather, he stated, he had walked to
Sostre's apartment and had arrived at the same time as his
co-defendants, whom he did not know. He averred that he was
there, as arranged, to have a beer with Sostre. He therefore
sat apart from the others while the drug transaction
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occurred. He testified that he was unaware of the sale of
cocaine, that he could not 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.
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To establish a successful claim of ineffective
assistance of counsel, appellant must show that "the alleged
deficiencies in professional performance assumed
unconstitutional dimensions . . . ." Barrett v. United
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States, 965 F.2d 1184, 1193 (1st Cir. 1992). The benchmark
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is "whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result." Strickland
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v. Washington, 466 U.S. 668, 686 (1984). Under Strickland,
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there is a two-pronged test for determining whether an
attorney's conduct was so defective as to require reversal of
a conviction. A defendant must demonstrate that counsel's
conduct fell below "an objective standard of reasonableness"
and that he was prejudiced in the sense that "but for
counsel's errors, the result below would have been
different." See Murchu v. United States, 926 F.2d 50, 58
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(1st Cir.) (per curiam), cert. denied, 112 S. Ct. 99 (1991).
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Further, "[t]he Constitution does not guarantee a
defendant a letter-perfect defense or a successful defense;
rather, the performance standard is that of reasonably
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effective assistance under the circumstances then obtaining."
United States v. Natanel, 938 F.2d 302, 309-10 (1st
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Cir.1991), cert. denied, 112 S. Ct. 986 (1992). The range of
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acceptable assistance is broad so that counsel is not unduly
restricted in making strategic and tactical decisions. Id.
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at 310. "Judicial scrutiny of counsel's performance must be
highly deferential." Strickland, 466 U.S. at 689.
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Turning to the merits of appellant's claims, he
contends that counsel's performance fell below the Strickland
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standard on the ground that counsel failed to object to the
following comments made by the prosecutor 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 statements of
counsel as to personal belief or opinion are improper."
United States v. Cain, 544 F.2d 1113, 1116 (1st Cir. 1976).
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Thus, a prosecutor may not include in closing arguments his
or her own opinions about what conclusions should be drawn
from the evidence. United States v. Cresta, 825 F.2d 538,
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555 (1st Cir. 1987), cert. denied, 486 U.S. 1042 (1988). The
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concerns behind this rule are that a prosecutor's expression
of opinion might imply that the prosecutor has knowledge of
information that is not before the jury and that such
expression puts in issue the credibility of counsel, with the
government having the advantage. Id.
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However, there is nothing improper in a suggestion
by the prosecutor which inferences the jury should draw from
the evidence. United States v. Smith, 982 F.2d 681, 683 (1st
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Cir. 1993); United States v. Mount, 896 F.2d 612, 625 (1st
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Cir. 1990). Similarly, a prosecutor has the right to comment
on the plausibility of the theory posed by the defense.
Smith, 982 F.2d at 683; United States v. Garcia, 818 F.2d
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136, 143 (1st Cir. 1987); United States v. Glantz, 810 F.2d
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316, 321 (1st Cir.), cert. denied, 482 U.S. 929 (1987). This
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right includes, in appropriate circumstances, commentary on
the "motivations and biases of the defense witnesses,
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including [the defendant]." Smith, 982 F.2d at 683 (emphasis
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added).
Here, appellant took the stand and testified to
facts that were in contradiction to those proffered by the
government's witnesses. As such, his credibility was a
central issue, leaving the jury with the basic decision
concerning which of two different stories to believe. In
these circumstances, a reference by the prosecutor to the
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veracity of a defendant is proper so long as there is no
suggestion of the prosecutor's personal opinion. See e.g.,
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Garcia, 818 F.2d at 143 (where "defense theory . . . rested
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substantially on pitting [defendant's] credibility against
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
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(9th Cir. 1991) (comments of prosecutor that someone is lying
and that the one who lied is the one who is guilty --
referring to defendant -- are within "reasonable latitude"
where case is one that "essentially reduces to which of two
conflicting stories is true").
Appellant argues that the prosecutor in this case
improperly bolstered the believability of the government's
witnesses while at the same time urging the jury to determine
appellant's credibility based on his interest in the outcome
of the trial and his motivation to lie. He urges us to find
that the prosecutor's remarks amounted to "plain error" and,
as such, "undermine[d] the fundamental fairness of the trial
and contribute[d] to a miscarriage of justice." See United
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States v. Young, 470 U.S. 1, 16 (1985); Garcia, 818 F.2d at
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143 (absent timely objection, review is conducted under
"plain error" standard).
Appellant likens his case to Cresta. In Cresta,
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the prosecutor made the following contested comment: "`I
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suggest Mr. Trundy [government witness] is believable. . .
.'" 825 F.2d at 555. We characterized this as "personal
vouching" and found the comment to be improper. Id. at 556.
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We nonetheless determined that the offending remark did not
substantially prejudice the defendant. Id. at 556-57. In so
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doing, we viewed the comment in light of all of the
circumstances. In addition to the length of the trial, the
length of closing arguments and the development of the issue
of credibility of the government's witnesses, "there was the
key factor of the substantial evidence of appellants' guilt."
Id. at 556.
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Appellant argues that this "key factor" is missing
in his case because all of the evidence connecting him to the
crime was circumstantial. Moreover, he claims, defense
counsel did not "open the door" to the prosecutor's comments
by first attacking the credibility of the government's
witnesses. See Garcia, 818 F.2d at 143 (where defense
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counsel suggested in closing that testifying police officers
had lied, prosecutor, on rebuttal, did not substantially
prejudice defendant's case by assailing the truthfulness of
defendant's version of the facts).
Appellant misunderstands the nature of our inquiry
in this case. We are not reviewing the prosecutor's comment
to see whether it constituted plain error. Rather, we are
deciding whether appellant's counsel provided ineffective
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assistance to appellant by failing to object to the comment.
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This issue turns on whether counsel's conduct "fell below an
objective standard of reasonableness." Murchu, 926 F.2d at
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58. Thus, considerations such as whether the comment was
made on rebuttal and whether the evidence against appellant
was substantial are only part of the equation.
The cases discussed above persuade us that in these
circumstances, counsel's behavior was well within the wide
range of acceptable assistance. The decision whether to
object during a closing argument is plainly a tactical
choice. For instance, counsel may not have wanted to risk
drawing attention to the conflicting stories. Further, when
credibility is placed in issue by a defendant's choice to
take the stand and present his side of 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.
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Given the range and type of prosecutorial argument
we have allowed in such a situation, see, e.g., id. (comment
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that witness and defendant had "concocted" their story proper
as it suggested inferences jury could draw from conflicting
evidence) and Garcia, 818 F.2d at 143-44 & n.7 (statement
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that defendant "is lying," though not to be encouraged, is
proper "commentary on the implausibility of the defendant's
story"), we cannot say that counsel's conduct was
constitutionally deficient. Indeed, counsel's decision not
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to object is supported by these cases. This is not a
situation, as appellant suggests, where the prosecutor, in
closing, made a deliberate misrepresentation as to what the
evidence showed. See United States v. Santana-Camacho, 833
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F.2d 371, 373 (1st Cir. 1987) (where comment that defendant
had illegally entered country unsupported in record and
contrary to only evidence on the issue, plain error existed).
For the foregoing reasons, the judgment of the
district court is affirmed.
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