FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Daniel R. Domínguez, U.S. District
Jedrick H. Burgos-Amador, on brief for appellant.
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.
Howard, Chief Judge, Torruella and Stahl, Circuit Judges.
TORRUELLA, Circuit Judge
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.
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.
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
("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 inside the plastic bag. The bank robbery
was captured by the bank's video surveillance equipment.
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
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
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
arrived at the residence, Officer Rodríguez was met by
Julio Santiago-González ("Julio
Santiago"), Santiago's brother, and
("González-Fragosa"), Santiago's mother,
who told the officer that her other son was taking a bath.
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.
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. Further, he told
Officer González that he had utilized the Nissan
Pathfinder to commit the bank robbery.
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.
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)).
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
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
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 ...