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United States v. Santiago-Gonzalez

United States Court of Appeals, First Circuit

June 6, 2016



          Jedrick H. Burgos-Amador, on brief for appellant.

          Mainon A. Schwartz, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

          Before Howard, Chief Judge, Torruella and Stahl, Circuit Judges.

          TORRUELLA, Circuit Judge

         Defendant-Appellant Héctor Santiago-González ("Santiago") was charged in a two-count criminal indictment alleging bank robbery in violation of 18 U.S.C. § 2113 (a), (d) ("Count One"), and use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) ("Count Two"). Following trial, the jury returned a guilty verdict against Santiago on both counts. The district court sentenced Santiago to 120 months' imprisonment as to Count One and eighty-four months' imprisonment as to Count Two, to be served consecutively for a total of 204 months. Santiago now appeals, claiming ineffective assistance of counsel. He also challenges the sufficiency of the evidence to convict him as well as the reasonableness of the district court's imposed sentence as to Count One.

         For the reasons that follow, we affirm the judgment below, without prejudice, however, to appellant's right to raise his claim of ineffective assistance of counsel in a post-conviction relief proceeding brought pursuant to 28 U.S.C. § 2255.


         On August 15, 2011, an armed assailant entered the Banco Popular branch in Morovis, Puerto Rico. Upon entering the bank, the assailant covered his face with a mask and told bank teller Lilia López-Rodríguez ("López-Rodríguez"), at gunpoint, to fill a white plastic bag with money. López-Rodríguez complied with the assailant's instructions, but she also placed two red security dye packs[1] inside the plastic bag. The bank robbery was captured by the bank's video surveillance equipment.

         After the assailant left the bank, Agent Orlando Guzmán-Vélez ("Agent Guzmán"), an off-duty Puerto Rico Police Department ("PRPD") officer who was at the bank at the time of the robbery, ran after Santiago and unsuccessfully attempted to detain the assailant. At trial, Agent Guzmán testified that he observed the assailant remove his mask as he exited the bank and get in the driver's side of a dark brown Nissan Pathfinder.

         On August 24, 2011, Officer Carlos González-Sotomayor ("Officer González"), an investigating agent and crime scene technician with the PRPD Bank Robbery Division, received an anonymous tip concerning a different bank robbery at CitiFinancial in Orocovis, Puerto Rico. The record is not developed as to the precise nature of the information provided by the anonymous tipster. However, Officer González testified that the tipster told him about a man known as "Bartolo, " who owned a "dark burgundy or brown colored" Nissan Pathfinder and a "white Honda Accord." Officer González also testified that he confirmed that Santiago was known as Bartolo.

         The next day, Officers González and Joel Rodríguez-Cruz ("Officer Rodríguez") went to Santiago's address to corroborate the information provided by the tipster. After remaining in the area for several hours, the officers observed Santiago arrive in a white Honda Accord. At this juncture, the officers decided to request assistance from a patrol car so that Officer Rodríguez could approach the residence under the pretext of investigating a domestic disturbance call.[2]

         When he arrived at the residence, Officer Rodríguez was met by Julio Santiago-González ("Julio Santiago"), Santiago's brother, and Gladys González-Fragosa ("González-Fragosa"), Santiago's mother, who told the officer that her other son was taking a bath.

         Officer Rodríguez requested that Santiago come out of the home when he was finished. When Santiago came outside, he provided Officer Rodríguez with identification and was placed under arrest for bank robbery. Officer Rodríguez advised Santiago of his rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966). After reading Santiago his rights, Officer Rodríguez asked Santiago if he had the weapon or money connected to the bank robbery. Santiago stated that he had disposed of the gun, but reported that he had money inside the house. Santiago added that the money was damaged because it was stained red.

         Santiago, Julio Santiago, and González-Fragosa signed a consent form authorizing a search of the residence. Santiago then led Officer González to his bedroom and showed him where he had stored money obtained during the robbery, which exhibited red stains and exuded a strong pepper gas odor. Santiago told Officer González that he also stored money from the robbery inside the Honda Accord.[3] Further, he told Officer González that he had utilized the Nissan Pathfinder to commit the bank robbery.

         González-Fragosa, the owner of the Nissan Pathfinder, signed a second consent form authorizing the search of her Nissan Pathfinder, which revealed that the passenger seat was stained red. Similarly, Santiago signed a consent form authorizing the search of the Honda Accord, yielding additional money that was stained red.

          Subsequently, Officers Rodríguez and González transported Santiago to the police station. As they were driving, Santiago, without prompting, told the officers that he was repentant. The next day, Santiago, who was still under arrest, told Officer Rodríguez that he wanted to apologize for the bank robbery. Officer Rodríguez provided Santiago with additional Miranda warnings, after which he provided Santiago with a pen and a piece of paper. Santiago then wrote a note asking forgiveness for committing the Banco Popular robbery in Morovis. That same day, Agent Guzmán identified Santiago as the person who robbed the Banco Popular in Morovis on August 15, 2011, during an in-person lineup.[4]


         Appellate courts are usually "ill-equipped to handle the fact-specific inquiry" required by ineffective assistance of counsel claims. United States v. Rodríguez, 675 F.3d 48, 55 (1st Cir. 2012) (quoting United States v. Ofray–Campos, 534 F.3d 1, 34 (1st Cir. 2008)). As a result, "'[w]e have held with a regularity bordering on the monotonous' that ineffective assistance of counsel claims, which require a showing of deficient attorney performance and prejudice to the defendant, 'must originally be presented to, and acted upon by, the trial court.'" Id. (quoting United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)). Further, "the insights of the trier, who has seen and heard the witnesses at first hand and watched the dynamics of the trial unfold, are often of great assistance." Id. at 56 (quoting United States v. Moran, 393 F.3d 1, 10 (1st Cir. 2004)). Accordingly, only in exceptional cases where there are no critical facts in dispute and the record is sufficiently developed will we entertain an ineffective assistance of counsel claim on direct appeal. Ofray–Campos, 534 F.3d at 34 (citing United States v. Torres– Rosario, 447 F.3d 61, 64 (1st Cir. 2006)).

         Santiago contends that his trial counsel provided ineffective assistance of counsel because she failed to seek suppression of the evidence against him. Santiago's principal contention is that there was no probable cause to arrest him, which tainted the evidence introduced against him.[5] Santiago further claims that his mother and brother lacked any authority to consent to a search of his bedroom. Alternatively, Santiago posits that Agent Guzmán's lineup identification was suppressible because the lineup was suggestive.

         Here, the record is not sufficiently developed for us to assay Santiago's claims of ineffective assistance. The record is unclear as to what probable cause existed for Santiago's arrest. Moreover, the record is not sufficiently developed as to whether Santiago's mother and brother could consent to a search of Santiago's bedroom. The record is also devoid of any guidance as to why Santiago's trial counsel ...

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