USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 95-2086

JOSEPH ARGENCOURT,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________

____________________

Before

Boudin, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Gary E. Blais for appellant.

_____________

James H. Leavey, Assistant United States Attorney, with whom

_______________

Sheldon Whitehouse, United States Attorney, was on brief, for the

__________________
United States.

____________________

March 18, 1996

____________________

LYNCH, Circuit Judge.

_____________

In

his second

trip to

this

court, Joseph Argencourt argues

that he was denied effective

assistance of counsel during his

criminal trial and that the

district

court erred

in denying his

Motion to

Aside or Correct Sentence under 28 U.S.C.

was

convicted of

conspiring

with

Andreoni to distribute cocaine.

on direct appeal.

Vacate, Set

2255.

Argencourt

his co-defendant

Rodney

His conviction was affirmed

United States v. Argencourt, 996 F.2d 1300

_____________
__________

(1st Cir. 1993), cert. denied, 114 S. Ct. 731 (1994).

_____ ______

affirm the denial of his motion under 28 U.S.C.

The

Suffice

it

facts

to

say

are

set

that

undercover investigation

forth

the

FBI,

in

our

in

2255.

prior

the course

of insurance fraud in

We now

opinion.

of

an

Rhode Island

and Massachusetts, learned that a target of the investigation

-- Andreoni -- was willing to sell substantial

cocaine.

to

quantities of

Recorded conversations revealed that Argencourt was

be the supplier of

the cocaine.

Argencourt, having had

prior experience with informants wearing wires, was skittish,

became spooked, and failed

on the designated day.

to appear to consummate

the deal

The government thus had no cocaine to

-22

show, but proved

its case

1302.
Petitioner's Burden
___________________

through the recordings.

Id.
__

at

-33

The

arguments

properly before

their

merits.1

Those arguments

heavy

burden of

proof

demonstrate

the law

court

are evaluated

imposes.

fail on

against the

Argencourt

must

both that trial counsel's performance fell below

an objective standard of

counsel's

this

reasonable effectiveness, and

deficient performance

undermine confidence

Strickland v.
__________

the relevant

the

so

outcome of

Washington, 466 U.S. 668,

__________

v. United States,
______________

determining

in

was

987 F.2d

whether trial

objective

48,

51 (1st

prejudicial as

the

trial.

that

to

See
___

688-89 (1984); Lema

____

Cir. 1993).

counsel's performance

benchmark, "[j]udicial

In

fell below

scrutiny

of

counsel's performance must be highly deferential," and "every

effort [should]

be made to eliminate

the distorting effects

of hindsight."

Strickland, 466 U.S. at 689.

__________

The court "must

____________________

1.

Many of

were not
heard

the arguments Argencourt presents

raised in the

here.

district court

Among others,

and so

he has waived

counsel erred in not requesting

to this court
will not

be

his argument that

an instruction on aiding and

abetting liability (which, in any event, was not even charged

in the count
concerning
raised

of conviction).
the examination

and decided

against

Another of
of Special
him on

grounds of lack of prejudice to

996 F.2d at
issue.

1304.

his arguments

Agent Brotan

his

-- was

direct appeal,

Argencourt.

--

on

See Argencourt,
___ __________

Argencourt is not free to relitigate this

See United States v. Michaud, 901 F.2d 5, 6 (1st Cir.

___ _____________
_______

1990) (per curiam).

It

is unclear

whether Argencourt

received ineffective assistance of

phase, as the
brief.
Zannino,
_______
a

issue is

Thus, we do

also

argues that

he

counsel at the sentencing

mentioned but not

not address it.

developed in

his

See United States v.

___ ______________

895 F.2d 1, 17 (1st Cir.) ("[I]ssues adverted to in

perfunctory

manner,

unaccompanied

developed argumentation, are

by

some

effort

at

deemed waived."), cert. denied,

_____ ______
494 U.S.

1082 (1990).

The

sentence was,

in any

event,

plainly proper under the Guidelines.

-44

indulge

strong presumption

that counsel's

within the wide range of reasonable

that is,

under

the

the defendant

professional assistance;

must overcome the

circumstances, the

conduct falls

challenged

presumption that,

action 'might

be

considered sound

trial strategy.'"

Id. (quoting
___

Michel v.
______

Louisiana, 350 U.S. 91, 101 (1955)); Lema, 987 F.2d at 51.
_________
____

The

"prejudice" element of an ineffective assistance

claim also presents

a high

hurdle.

"An

error by

counsel,

even if professionally unreasonable, does not warrant setting

aside

the judgment of a criminal proceeding if the error had

no effect on

The

requisite

postulating

effect

Rather,

showing

that

on the

of

counsel's

outcome

Argencourt must

probability

the

the judgment."

that, but

Strickland, 466
__________

prejudice

"errors

of the

for counsel's

result of the proceeding

requires

had

some

proceeding."

affirmatively

U.S. at

more

691.

than

conceivable

Id.
___

prove "a

at

693.

reasonable

unprofessional errors,

would have been

different.

reasonable

undermine

probability

confidence

is

in

Argencourt has demonstrated

the

probability

outcome."

sufficient

Id.
___

neither objectively

at

to

694.

ineffective

assistance nor prejudice.

Conspiracy Indictment
_____________________

Argencourt

dismiss

argues

the conspiracy

failed to charge

counsel

indictment

should

on the

possession with intent to

-55

have

moved

to

grounds that

it

distribute.

The

argument is based on the mistaken

premise that possession is

an

essential element of a conspiracy to distribute.

it

is not.

The

statute that

distribution makes it

or

dispense,

distribute, or

or
__

with

intent

to

distinct,

essential

and

distribute,

manufacture,

dispense" a controlled substance.

841(a) (emphasis added).

be

criminalizes possession

unlawful to "manufacture,

possess

Indeed,

21 U.S.C.

Possession has not been found to

element

of

the

distribution, let alone conspiracy to distribute.

crime

of

See United
___ ______

States v. Polan, 970

______
_____

F.2d 1280, 1282 (3d Cir.

offense of

illegal drug

essential

elements: the

distribution

cert.
_____

denied, 507
______

U.S.

. . . contains

[defendant] must

intentionally (2) distribute

1991) ("[T]he

(1)

(3) a controlled

953 (1993).

three

knowingly or

substance."),

To the

extent

that

Argencourt is asserting that trial counsel should have argued

that

the government needed to

prove possession as an "overt

act" in furtherance of the charged conspiracy,

wrong.

(1994)

See United States v. Shabani,

___ ______________
_______

(holding that proof of

for conviction under 21 U.S.C.

Tapes
_____

115 S. Ct.

an overt act

846).

he is clearly

382, 386

is not required

Argencourt is bound by the prior ruling of this court

concerning

tape to the

See
___

his challenge

to the

replaying of

jury, at its request, during

Argencourt,
__________

996 F.2d

at 1305

n.6.

a particular

its deliberations.

Variants

of this

-66

claim, which Argencourt

did not argue

on direct appeal

but

argues

now,

fare no

conversation between

FBI

agent, and

tape

asserted

being

than a

listeners had

counsel

inaudible.

inaudible,

problem.

He

The

however,

The

stated

that he

any problem in

of a

Andreoni, an

contends that

of the tape

asserted problem of

appears

trial

defective earphone

explicitly

a tape

have objected to admission

recorded conversations; and there

jury of

on

himself, his co-defendant

grounds that it was

the

He focuses

an undercover informant.

trial counsel should

on

better.

to

be

judge alone

(which

was

was

able

of

more

the

replaced);

to hear

the

was no indication from the

hearing the tape,

in the face

of a

prior instruction from the court to raise their hands if they

could

not hear.

Moreover,

the jurors were

provided with a

transcript of the tape.

The choice by defense counsel not to

have the tape highlighted by questioning jurors about whether

they

heard it was a classic strategy choice, not amenable to

attack under

the guise of ineffective assistance.

See Lema,
___ ____

987 F.2d at 55-56.

Argencourt makes the additional argument that defense

counsel should have insisted that the entire tape recordings,

not

just

redacted versions,

certainly, trial

tapes

be

played

strategic choice

be played

counsel's decision

in their

entirety

to try to limit

-77

to

the jury.

not to demand

was,

on

But

that the

its face,

what the jury heard.

See
___

Lema,
____

show

987 F.2d at 55-56.

any prejudice.

He

Further, defendant

has had

access to

has failed to

the unredacted

tapes since before trial.

It

tapes contained unplayed

exculpatory material

or otherwise

undermined

the

trial.

confidence in

Strickland, 466 U.S. at 694.

__________

is his burden to show that the

outcome of

the

That he has not done.

See
___

"Newly Discovered" Evidence

___________________________

Argencourt

evidentiary

argues

hearing

in

that

the

he

district

was

entitled

court

to

to

an

determine

whether certain "newly discovered evidence," which he asserts

should have

been discovered by trial

counsel, requires that

his

be granted.

that counsel

motion

failing

be

"Phone Connection," from which a

erred in

call to

was purportedly made on the date the cocaine deal was to

consummated.

He claims he first learned, while in prison

for this offense, from

fellow prisoner) that

had

argues

to adduce proof that phone lines were not working at

a place called the

him

He

been stopped.

the "CEO of the Phone

the Phone

Connection" (a

Connection's phone

service

From this he argues that his co-defendant

Andreoni could not

have made a

call to him

from the

Phone

Connection in furtherance of the drug deal, as the government

asserted

at trial.

"discovered"

motion.

after

He

the

The government

asserts

that

district court

this

evidence

was

his

2255

denied

says there is nothing new

Phone Connection evidence, that it

-88

about the

was well known to defense

counsel

before

evidence

trial,

before it.

In

and

that

the jury

even

all events, Argencourt

had

such

did not ask

the district court to consider this evidence or to give him a

hearing, and so has waived the argument.

Even if the

evidence truly

short.

claim had been properly

"newly discovered,"

Even should

the phone call

raised, and the

it would still

not have

fall far

been made

to

Argencourt from his co-defendant from the listed lines at the

Phone

Connection

transaction,

The

no

on

the

scheduled

resulting prejudice

date

could

of

the

drug

be established.

jury could have credited the testimony before it that an

illegal

line was rigged and used for the call.

suggestion

that

phone

company

records

(which

Argencourt's

Argencourt

asserts trial counsel should

that telephone service had

To

the extent

that the

have obtained) would have shown

been cancelled amounts to naught.

phone call

testimony at

trial was

relevant to establish that Argencourt, on the scheduled date,

was in the

vicinity of

the location where

the parties

agreed the drug transaction

would be completed,

evidence that

his

seen

undercuts the

utility of

Furthermore,

if

car was

the

in the

this "newly

phone

call

had

independent

area at

the

time

discovered evidence."

testimony

was

somewhat

relevant to the government's case in support of the charge of

attempting

acquitted),

to

distribute

it

had

drugs

little

(of

which

apparent

Argencourt was

bearing

on

the

-99

government's case in support of the

case,

which

was based

conversations between

would

have

been

Connection's

prejudice from

primarily

conspiracy charge.

on

the earlier

Argencourt, Andreoni, and

unaffected

telephones.

by

Thus,

any failure by

the

status

Argencourt

trial counsel

That

recorded

FBI agents,

of

has

the Phone

shown

to obtain

no

the

Phone Connection evidence.

Affirmed.
________

-1010