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United States v. Moises Otero

decided: June 15, 1988.

THE UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MOISES OTERO, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 CR 479 -- James F. Holderman, Judge.

William J. Bauer, Chief Judge, Richard D. Cudahy, and John L. Coffey, Circuit Judges.

Author: Bauer

WILLIAM J. BAUER, Chief Judge.

Moises Otero appeals from his conviction of knowingly distributing 24.58 grams of a mixture containing heroin in violation of 21 U.S.C. § 841(a)(1). He contends on appeal that his trial counsel rendered constitutionally ineffective assistance, and that the district court erred in denying his request for an evidentiary hearing to determine whether he was denied his sixth amendment right to a speedy trial. We reject both arguments and affirm Otero's conviction.

I.

During the morning of January 5, 1977, Drug Enforcement Administration (DEA) Agent George Faz received a telephone call in his office from a cooperating individual (CI) regarding a prospective purchase of drugs. Faz arranged a meeting with the CI and set up a surveillance team that included Chicago Police Detectives George Graham and Matthew Plovanich. Faz then picked up the CI in his unmarked government vehicle, and next picked up Max DeJesus, who directed Faz to a tavern on Montrose Avenue in Chicago, which the three men entered. Twenty minutes later, Plovanich and DEA Agent Frank Cruz, another member of the surveillance team, went into the "fairly well lit" tavern to observe Faz and the others.

Inside the tavern, Faz, the CI, and DeJesus sat down at a table, where they were joined by Victor Colon. During their ensuing conversation, DeJesus repeatedly assured Faz that a heroin supplier would be arriving shortly. After about a half-hour, Otero pulled up in front of the tavern in his red 1965 Ford Thunderbird two-door, Illinois license plate number ZN4428. Faz could see the car through a window facing the street. Colon and DeJesus went out to the car and, after a brief conversation, reentered the tavern with Otero. Faz, the CI, DeJesus, Colon, and Otero then discussed the heroin deal. Otero, accompanied in his car by Colon, then led Faz, the CI, and DeJesus (and members of the surveillance team) to a building at 3854-56 North Southport Avenue in Chicago, which Otero entered. Colon got out of Otero's car to tell Faz that Otero had gone to get the heroin. About ten minutes later, Otero came back out to his car. Faz then got into the passenger seat of Otero's car with Otero. Inside the car, Otero said he had the "stuff" and gave Faz a clear plastic bag containing brown powder which a laboratory analysis later revealed to be heroin. Faz put the bag in his sock and retrieved $900 in government funds from the trunk of his car, which he gave to Otero. Everyone then left the scene.

On August 18, 1977, Otero, DeJesus, Colon, and another codefendant, Juan Argon, were charged with knowingly distributing 24.58 grams of a mixture containing heroin in violation of 21 U.S.C. § 841(a)(1). The same day, a warrant was issued for Otero's arrest and Otero's arraignment was scheduled for August 20, 1977. Otero, however, was not arrested until April 8, 1987, when he surrendered to federal authorities in Ohio. From July 31, 1979 until that time, the government had placed Otero's case on fugitive status. On April 20, 1987, Otero pled not guilty to the drug charge. On May 18, 1987, United States District Judge James F. Holderman scheduled Otero's trial for June 1, 1987.

On the morning of his trial, Otero moved for the first time to dismiss the indictment, arguing that the delay between his indictment and trial had deprived him of his constitutional rights to a speedy trial and due process. The court denied the motion. Otero then orally amended his motion, arguing that the government was required to show that it actively attempted to locate him alter he was indicted and before it placed his case on fugitive status. The court also denied this amended motion, holding that it was legally insufficient to raise a constitutional question. Otero twice moved the court to reconsider whether a hearing on the issue of pretrial delay was appropriate, once during trial and, later, in a post-trial motion. The court denied these additional motions, however, and, upon conviction by the jury, sentenced Otero to two years imprisonment and a mandatory parole term of three years.

II.

Otero's first contention is that his privately retained counsel rendered constitutionally ineffective assistance at his trial. In his brief, he sets forth fifteen "professional errors" committed by his counsel that allegedly were so serious they caused a breakdown in the adversarial process. We disagree.

The sixth amendment right to counsel exists to protect the defendant's fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). As the Supreme Court has stated, "access to counsel's skill and knowledge is necessary to accord defendants the 'ample opportunity to meet the case of the prosecution' to which they are entitled." Id. at 685 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275-76, 87 L. Ed. 268, 63 S. Ct. 236 (1942)). For this reason, the defendant is entitled to more than just a warm body standing next to him during the criminal process; he or she is entitled to reasonably effective legal assistance. Id. at 687-88.

Under Strickland, defendants' ineffective assistance claims present a two-part inquiry. First, the defendant must show that counsel's performance fell below an objective standard of reasonableness. To do so, the defendant must identify "acts or omissions of counsel that are alleged not to have been the result of professional judgment." Id. at 690. This is not an easy task. The defendant must overcome a strong presumption that counsel rendered reasonably effective assistance, id. at 690, and convince the reviewing court that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. Moreover, challenges to strategic or tactical decisions made by trial counsel are off-limits. United States v. Dyer, 784 F.2d 812, 817 (7th Cir. 1986); United States v. Giangrosso, 779 F.2d 376, 380 (7th Cir. 1985), cert. denied, 475 U.S. 1031, 89 L. Ed. 2d 345, 106 S. Ct. 1237 (1986). Second, even if counsel performed in a professionally unreasonable manner, the defendant also must establish that counsel's error prejudiced his defense. Strickland, 466 U.S. at 691-92. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding," or "'impaired the presentation of the defense,'" id. at 693 rather, "the defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.

Otero asserts a plethora of "acts or omissions" committed by his trial counsel that he claims warrant reversal. We will first address his counsel's allegedly fatal omissions. In this category, Otero first argues that his counsel failed to investigate the ownership of the red Thunderbird, license plate ZN4428, which Detective Graham described at trial. The government introduced a certified record establishing that, in 1977, this license plate was registered to a 1965, two-door Ford Thunderbird owned by one Moises Otero. After Otero's counsel cross-examined Graham, the court granted counsel a one-day continuance to discuss the matter with his client and conduct an investigation. The record, however, does not reveal to what extent Otero's counsel conducted an investigation, if any. Nor does it reveal any other information concerning statements made by Otero to his counsel, which the Court in Strickland stated would influence substantially the reasonableness of counsel's decision whether to investigate. Strickland, 466 U.S. at 691. On the other hand, the record does reveal that a man matching the physical description of the defendant drove a vehicle on the date of the drug transaction that was registered to a man with the defendant's ...


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