583 F.

2d 1179

UNITED STATES of America, Plaintiff, Appellee,

v.
John Carlyle RITCH, Defendant, Appellant.
No. 77-1348.

United States Court of Appeals,

First Circuit.
Submitted Sept. 7, 1978.
Decided Sept. 22, 1978.
Certiorari Denied Nov. 13, 1978. See 99 S.Ct. 463.

James B. Krasnoo, Boston, Mass., by appointment of the court, and

Norris, Kozodoy & Krasnoo, Boston, Mass., on brief for appellant.
Julio Morales Sanchez, U. S. Atty., and Jose A. Quiles, Asst. U. S. Atty.,
San Juan, P. R., on brief for appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit
Judges.
COFFIN, Chief Judge.

I.

Defendant-appellant was indicted for possession and importation of cocaine in

violation of 21 U.S.C. 841(a)(1) and 952(a), following his arrest at the San
Juan International Airport on April 28, 1976. When appellant failed to appear
for trial of the drug charges on August 23, 1976, his bail was forfeited and an
indictment was returned charging him with violation of 18 U.S.C. 3150. After
he was apprehended and returned to Puerto Rico in January, 1977, the district
court, over appellant's objection, ordered that the drug and bail jumping charges
be consolidated for trial. Appellant was found guilty after a jury trial on all
three counts. He appeals from his convictions, arguing (1) that joinder of the
drug and bail jumping charges was improper; and (2) that he was not afforded
effective assistance of counsel in violation of his rights under the Sixth
Amendment. Finding no merit in either claim, we affirm.

Under Rule 13, Fed.R.Crim.P., the court may order that two or more
indictments be tried together if the offenses could have been joined in a single
indictment. Rule 8(a) sets forth the test for joinder. It provides that "(t) wo or
more offenses may be charged in the same indictment . . . if the offenses
charged . . . are of the same or similar character or are based on the same act or
transaction or On two or more acts or transactions connected together or
constituting parts of a common scheme or plan." (Emphasis added.)

Appellant first argues that a consolidated trial of the cocaine and bail jumping
charges was improper under Rule 8 since those offenses are not of a similar
character. The simple answer to this claim is that the scope of Rule 8 is
broader. It also permits joinder where the offenses are "connected together". It
is well established that a charge of bail jumping or escape may be deemed
sufficiently "connected" with a substantive offense to permit a single trial, at
least where the charges are related in time, the motive for flight was avoidance
of prosecution, and appellant's custody stemmed directly from the substantive
charges. See, e. g., United States v. Quinones,516 F.2d 1309, 1312 (1st Cir.),
Cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76 (1975); United States v.
Bourassa, 411 F.2d 69, 74 (10th Cir.), Cert. denied, 396 U.S. 915, 90 S.Ct. 235,
24 L.Ed.2d 192 (1969); Bayless v. United States, 381 F.2d 67, 71-72 (9th Cir.
1967); See also United States v. Elliot, 418 F.2d 219 (9th Cir. 1969).

Even though consolidation of offenses for trial is proper under Rules 8(a) and
13, a defendant nonetheless may seek severance of the offenses pursuant to
Rule 14. Motions for severance, however, are addressed to the discretion of the
trial court, See, e. g., United States v. Luna, 585 F.2d 1 at 4 (1st Cir. 1978), and
a defendant bears a heavy burden to establish abuse. United States v. Somers,
496 F.2d 723, 730 (3rd Cir.), Cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42
L.Ed.2d 58 (1974); United States v. Abshire, 471 F.2d 116, 118 (5th Cir. 1972).
To prevail, a defendant "must make a 'strong showing of prejudice' likely to
result from a joint trial." United States v. Luna, Supra, Quoting Sagansky v.
United States, 358 F.2d 195, 199 (1st Cir.), Cert. denied, 385 U.S. 816, 87 S.Ct.
36, 17 L.Ed.2d 55 (1966). Moreover, the prejudice that must be shown is
something "more than just a better chance of acquittal" at separate trials. United
States v. Martinez,479 F.2d 824, 828 (1st Cir. 1973).

Against these principles, appellant's claim must fail. He first asserts prejudice
stemming from the fact that the jury at his consolidated trial was exposed to
evidence of both offenses and may have used evidence of guilt as to one to infer
guilt as to the other. Concededly, the law recognizes that the prejudicial impact
of evidence of a defendant's other crimes often outweighs its probative value
and therefore that such evidence should not be admissible to prove criminal

disposition. See, E. g., Fed.R.Evid. 404(b). Accordingly, courts often have

found joinder of unrelated offenses for trial improper, when it would result in
the jury's exposure to evidence of the defendant's other misdeeds. See, e. g.,
King v. United States, 355 F.2d 700, 704 (1st Cir. 1966); Drew v. United
States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). Yet, there is a well
established qualification to this rule in cases where one of the joined offenses
involves escape or flight from prosecution. The courts consistently have held
that evidence of flight is admissible, from which the jury may draw an
inference of the defendant's consciousness of guilt. See, E. g., United States v.
Schwartz, 535 F.2d 160, 165 (2d Cir. 1976), Cert. denied, 430 U.S. 906, 97
S.Ct. 1175, 51 L.Ed.2d 581 (1977); United States v. Rowan, 518 F.2d 685, 691
(6th Cir.), Cert. denied, 423 U.S. 949, 96 S.Ct. 368, 46 L.Ed.2d 284 (1975);
United States v. Bourassa, Supra ; Hanks v. United States, 388 F.2d 171, 175
(10th Cir.), Cert. denied, 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131 (1968);
United States v. Accardi, 342 F.2d 697, 700 (2d Cir.), Cert. denied, 382 U.S.
954, 86 S.Ct. 426, 15 L.Ed.2d 359 (1965). Thus, since the facts concerning
appellant's failure to appear for trial would have been admissible at trial of the
drug charges in any event, no prejudice arose from joinder of the offenses.
United States v. Bourassa, Supra.
6

Appellant concedes that the evidence at trial was not complicated and that it is
clear that the jury was in no way confused by consolidation. See United States
v. Luna, Supra. He argues, however, that consolidation deterred him from
presenting fully his defense. We see little in fact or reason to support this claim.
Appellant did not testify at trial. He concedes that he had no viable defense to
the bail jumping charge and then maintains that joinder inhibited him from
taking the stand in support of his defense to the drug charges. At trial, defense
counsel did attempt to establish that appellant had been on a hunting trip in
Colombia prior to his arrest at San Juan Airport and argued that the drugs
found in his luggage had been placed there without his knowledge. Even
assuming that appellant would have been subject to some damaging crossexamination concerning his failure to appear for trial, we fail to see how that
constituted any substantial deterrent to his testifying in support of his drug
defense if he and his counsel genuinely thought it advisable. Appellant does not
and cannot claim that his defenses to the separate charges were logically or
factually inconsistent. His flight, while damaging, does not require the
conclusion that he was guilty of the substantive counts. While he may have
fared better on the drug charges had the jury not known of his flight, something
more than simply a better chance of acquittal is required to show undue
prejudice. United States v. Martinez, Supra. We conclude that appellant
suffered no impermissible prejudice in the consolidated trial.

II.
7

Appellant next contends that the ineffectiveness of his court appointed counsel
deprived him of his rights under the Sixth Amendment. In support, he points to
numerous alleged errors and omissions by counsel which, it is claimed,
singularly or cumulatively amount to a constitutional violation. We note only
the most significant. Appellant complains that his counsel failed to seek
suppression of the drugs seized after search of his luggage; that as a result of
the short time between the appointment of counsel and trial, counsel failed to
interview potential defense witnesses; that counsel failed to object to certain
hearsay testimony and unresponsive answers by government witnesses; and
finally, that counsel did not cross-examine effectively.

In this circuit, ineffective assistance of counsel "means representation such as to

make a mockery, a sham or a farce of the trial." United States v. Wright, 573
F.2d 681, 683-84 (1st Cir. 1978), Quoting United States v. Madrid Ramirez,
535 F.2d 125, 129 (1st Cir. 1976). While we have left open the possibility of
adopting the more lenient "reasonably competent assistance" standard, See id.
at 129-30, we need not reach that question here, because we are convinced that
appellant's representation was constitutionally adequate under either test.

Appellant's first allegation that counsel failed to seek suppression of the fruits
of the customs search is factually incorrect and legally insufficient. The record
reveals that trial counsel did move to suppress the evidence and to have the
drug charges dismissed at the close of the government's case. Denying the
motion, the district court held that the evidence had been properly admitted.
Even if we assume, however, that suppression motions generally should be
made before the commencement of trial, appellant's claim must fail.

10

The decision whether or not to make various pretrial motions is a matter of trial
tactics generally not reviewable under a claim of ineffective assistance. See
Moran v. Hogan, 494 F.2d 1220, 1223 (1st Cir. 1974); Cottman v. Donnelly,
398 F.Supp. 1086, 1092 (D.Mass.1975). Moreover, counsel is not required to
make futile or frivolous motions. United States v. Wright, Supra, 573 F.2d at
684. From the record it seems clear, as the district court found, that the search
was not improper. The arresting customs inspector testified that appellant, after
deplaning from a flight from Colombia, entered his aisle for inspection. While
appearing normal at first, appellant became nervous, his hands trembling, when
the inspector asked him what he had been doing in Colombia. The inspector
also testified that his suspicions were further aroused when appellant, in
response, stated that he had been hunting, but was carrying no weapons. The
inspector then began to inspect a briefcase which appellant had been holding in

his hand while his other luggage was examined. The inspector stated that he
knew from prior experience that the make of appellant's briefcase was one
which was frequently equipped with a false bottom for smuggling purposes.
Upon opening the case, the inspector first observed an abnormality in the
bottom and then noticed a plastic bag sealed to the bottom. Appellant was then
asked to step into an office where the plastic bag was opened. It revealed a
white powder which a field test indicated was cocaine.
11

As we have recently noted, the standard by which the constitutionality of a

search at an international border is tested is "considerably more relaxed than
those applicable to ordinary searches." United States v. Wardlaw, 576 F.2d
932, 934 (1st Cir. 1978). In light of that relaxed standard, appellant suffered no
prejudice from any failure of counsel to seek suppression, since it seems clear
that the customs inspector had the requisite "reasonable suspicion" to justify the
search. See id. at 934-35.

12

Appellant's next attack on trial counsel is based on the fact that after his
original attorney withdrew from the case as a result of appellant's failure to
appear for trial, his trial counsel was appointed some six days prior to the
commencement of trial. Apparently trial counsel initially believed that the
matter would be disposed of without trial, and after that assumption proved
false, had to prepare for trial essentially over the space of a three day weekend.
Appellant concedes that the government's case was a simple one and makes no
claim that counsel lacked trial experience. See Rastrom v. Robbins, 440 F.2d
1251 (1st Cir.), Cert. denied, 404 U.S. 863, 92 S.Ct. 53, 30 L.Ed.2d 107 (1971).
He however argues that as a result of the shortness of this period, counsel failed
to interview potential defense witnesses.

13

In Rastrom, this court, noting that the amount of time required to prepare a
constitutionally adequate defense can vary widely from case to case, refused to
adopt a rule that impermissible prejudice would be presumed merely from a
showing of shortness of preparation time. 440 F.2d at 1253-54. Thus, defendant
bears the burden of establishing actual prejudice, a burden which has not been
met here.

14

Appellant requested the presence of three individuals, believed to be living in

Florida, who allegedly would testify that appellant had been hunting with them
in Colombia prior to his arrest. On the first day of trial, counsel informed the
court of his inability as of that day to contact these individuals and requested a
continuance. While permitting the government's case to proceed, the court
ordered the U.S. Attorney's office to help defense counsel try to contact them.
When these initial attempts failed, the court granted a one day continuance,

during which the U.S. Attorney and defense counsel renewed their efforts to
track down the witnesses. Compare Rastrom v. Robbins, Supra. On the
following day, after efforts to contact two of the witnesses were apparently still
unavailing and it had been learned that the third witness was out of the country
and had refused to come to Puerto Rico to testify, the government agreed to a
stipulation as to the content of their testimony. As read to the jury, this
stipulation stated that the witnesses would testify that appellant had been on a
hunting trip in Colombia with them; that while there he had spent some of his
time in their company; and that to the best of their knowledge, he had done
nothing illegal.
15

Given the fact that the substance of the testimony of these witnesses, who in
fact proved to be unavailable, was presented to the jury, we believe that
appellant was not prejudiced by any failure of counsel to contact them before
trial.1 Based on this stipulated testimony, defense counsel, as noted, argued that
appellant had been in Colombia for recreational purposes and that the drugs
found in his luggage could have been placed there without his knowledge.
Judging from the jury's verdict, this defense was not a winning one.2 While
appellant perhaps cannot be faulted for wishing that counsel had been more
vigorous in his defense, from the record it is clear that counsel's preparation
and presentation of the defense far exceeded the dismal performances
condemned in the cases upon which he seeks to rely. See Twiford v. Peyton,
372 F.2d 670 (4th Cir. 1967); Brubaker v. Dickson, 310 F.2d 30 (9th Cir.
1962), Cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963).

16

The last group of alleged failures to make certain evidentiary objections may be
disposed of quickly. Certain of the objections which appellant claims counsel
should have made, quite clearly would have been frivolous. Although other
objections might have been technically sustainable, their omission was not
prejudicial because the prosecutor could properly have asked the questions to
which counsel allegedly should have objected simply by rephrasing them. 3
Finally, with reference to appellant's general complaint that trial counsel failed
to cross-examine as effectively as he might have, we note again that the
government's evidence was quite simple and its case strong. We are satisfied
that appellant's representation adequately exceeded the constitutional minimum.

17

Affirmed.

We note in this regard that while the stipulated testimony confirmed appellant's
claim that he had been hunting, it in no way negated the possibility, supported

by other evidence, that he had had ample time while in Colombia to procure the
cocaine
2

Appellant's additional contention that trial counsel should have challenged the
government's proof as to the chemical composition of the cocaine is clearly
frivolous in light of the strength of the testimony of the government's chemist
and the fact that appellant does not actually challenge the sufficiency of the
evidence on this or any other element of the government's case

As to the claim that an objection should have been made to the adequacy of the
foundation for the testimony of Mr. Schreiber, a chemist with the Drug
Enforcement Administration, concerning the number of dosages which could
be obtained from the amount of cocaine seized from appellant, it appears that
Mr. Schreiber's educational background and experience established his
competence to make the estimate. However, even assuming this to be debatable,
we find little chance of prejudice. The sole purpose of this testimony was to
establish that the large quantity of cocaine found in appellant's luggage was
intended for distribution, not personal use. We think that that quantity, some
765.4 grams, could speak for itself on this point