United States Court of Appeals For the First Circuit

No. 14-2246

UNITED STATES OF AMERICA,

Appellee,

v.

RENÉ MÁRQUEZ-PÉREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Lipez, Circuit Judges.

Lydia J. Lizarríbar-Masini, with whom Camille Lizarríbar-Buxó and Lizarríbar Law Office were on brief, for appellant. Thomas F. Klumper, Assistant United States Attorney, with whom Nelson Pérez Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.

August 30, 2016 HOWARD, Chief Judge. A fair proceeding before a fair

tribunal is a basic requirement of due process. See In re

Murchison,

(1955). Claiming that judicial

misconduct, inadequate preparation time, and attorney

ineffectiveness denied him a fair proceeding, René Márquez-Pérez

asks us to vacate his conviction and sentence. We hold that the

judge's conduct of the trial, though in one instance unfortunate,

did not prejudice Márquez; and that the judge did not deny him

adequate preparation time. We are less sanguine about counsel's

performance; because we find sufficient signs of ineffectiveness,

we remand this case to the district court for further proceedings.

I.

A federal jury convicted Márquez of possessing drugs

with intent to distribute, see

(a)(1), and

possessing a firearm in furtherance of a drug trafficking crime,

see

(c). See generally United States v. Márquez-

Perez,

(D.P.R. 2014). The district court

sentenced Márquez to fifty-three months for the drug convictions

and sixty months for the firearm conviction, totaling 113 months,

or roughly nine-and-a-half years. Márquez timely appealed his

conviction and sentence.

II.

Márquez first contends that the district judge's

courtroom behavior denied him a fair trial. Although the judge's

- 2 - comportment was flawless in most respects throughout the trial, he

overreacted once, when, in response to counsel's attempt to object,

he commanded the courtroom security officer to forcibly seat

counsel down. Nevertheless, we sustain Márquez's conviction for

lack of prejudice.

A.

Due process guarantees a fair trial, not a perfect one.

See United States v. Ayala-Vazquez,

(1st Cir.

2014). To prevail on a judicial misconduct claim, a party must

show that (1) the judge acted improperly, (2) thereby causing him

prejudice. See United States v. Lanza-Vazquez,

(1st Cir. 2015). We consider both elements in light of the whole

record. See Ayala-Vazquez,

. We may address the

elements in either order, and need not reach both if a party fails

on one. See

.

Our cases have generally confronted two types of

judicial misconduct during a trial. The first occurs when judges

commit errors of law, as by performing acts categorically beyond

their authority. For example, judges exceed their authority when

they testify as witnesses, or add to or distort the evidence. See

Quercia v. United States,

(1933); United

States v. Rivera-Rodríguez,

(1st Cir. 2014);

United States v. Paiva,

(1st Cir. 1989). They

also exceed their authority by opining to the jury on the

- 3 - credibility of witnesses, the character of the defendant, or the

ultimate issue. See Quercia,

; Ayala-Vazquez,

. Such acts are per se misconduct, although the judgment

may still be sustained for lack of prejudice. See Ayala-Vazquez,

; Paiva,

.

The second type of misconduct occurs when judges abuse

their discretion. See Ayala-Vazquez,

. The judge

is the governor of the trial, and has broad discretion to

participate in it. See Lanza-Vazquez,

. A judge

may "question witnesses"; "analyze, dissect, explain, summarize,

and comment on the evidence"; and otherwise elicit facts that he

deems necessary to a clear presentation of the case. Ayala-

Vazquez,

. Judges may also maintain the pace of the

trial and ensure its proper conduct. See Lanza-Vazquez,

. They may criticize counsel, and express "impatience,

dissatisfaction, annoyance, and even anger": "a stern and short-

tempered judge's ordinary efforts at courtroom administration" are

not error. Liteky v. United States,

(1994).

Where one party's conduct warrants a relatively heavier hand, the

judge may intervene with proportional vigor and frequency. See

Lanza-Vazquez,

; United States v. Rodríguez-

Rivera,

(1st Cir. 2007); United States v. Gomes,

(1st. Cir 1999).

- 4 - Nonetheless, judges may not misemploy these powers, as

by favoring one party or appearing partial. See Rivera-Rodríguez,

; Ayala-Vazquez,

. They should be

most cautious in front of the jury, which may be vulnerable to

judges' "lightest word or intimation." Ayala-Vazquez,

.

Márquez claims that the judge denied him a fair trial by

repeatedly rebuking his counsel. These reproaches ranged from

characterizing counsel's questions as "misleading," to chiding him

to do his "homework," to directing the security officer to forcibly

seat him. Excepting this last event, they were no more than "a

stern . . . judge's ordinary efforts at courtroom administration."

Liteky,

. And although the judge rebuked counsel

more often than he did the prosecutor, counsel's behavior warranted

the added criticism.

For example, Márquez complains that the judge repeatedly

interrupted counsel's cross-examination of a police officer and

characterized counsel's questions as "misleading." Here, the

court permissibly exercised its authority over the examination of

witnesses to avoid juror confusion. See United States v. Ofray-

Campos,

(1st Cir. 2008); Rodríguez-Rivera,

. In one instance, counsel asked the officer whether "these

are the pills you are referring to, correct?" The court

characterized this as "misleading" because "[t]hat wasn't [the

- 5 - officer's] testimony." Subsequently, counsel rephrased his

question, and the court allowed it. Although the court could have

spoken more mildly, it permissibly intervened to deter jury

confusion.

Márquez also complains that the judge told counsel, at

sidebar, that he needed to "do [his] homework." Here, the court

permissibly exercised its discretion to rebuke counsel. See

Liteky,

; Ofray-Campos,

. Counsel

had asked the government's expert whether marijuana could be used

as medicine, implying a permissible reason for Márquez's

possession. The court called for sidebar, stated that marijuana

is illegal in the jurisdiction, and admonished counsel to stop

this line of questioning. Perplexingly, counsel responded that

marijuana is legal in Colorado. The court retorted, "That's State.

Do your homework." This assessment was supportable: marijuana's

legality under Colorado state law was irrelevant to this federal

prosecution for drug trafficking in Puerto Rico. Despite its

gratuitous cheek, the court acted within its discretion in

criticizing counsel.

In one instance, however, the judge overstepped his

authority: in response to counsel's attempt to object, he ordered

the security officer to force counsel to sit down. This took place

during counsel's cross-examination of a police officer. The

prosecutor had objected to a question, and midway through the

- 6 - objection, counsel objected to the objection, igniting a judicial

flareup:

THE COURT: Wait a minute. You are objecting to an objection?

MR. BURGOS: Yes, sir.

THE COURT: No, you are not. [Government, c]ontinue with your objection.

MR. WALSH: Our understanding is, in his testimony he mentions -- he said he did not - -

MR. BURGOS: Objection.

THE COURT: Sit down and shut up. Sit down and shut up while he makes his objection. Mr. Burgos, sit down.

MR. BURGOS: Your Honor --

THE COURT: Sit down.

MR. BURGOS: We prefer --

THE COURT: Sit down.

MR. BURGOS: We prefer to go to the record.

THE COURT: Sit down. Sit down, Mr. Burgos. Marshal, have him sit down.

MR. BURGOS: We would like the jury to be --

THE COURT: Sit down, Mr. Burgos. Have a seat, Mr. Burgos. Have a seat, Mr. Burgos.

MR. BURGOS: Let the record show --

THE COURT: Have a seat, Mr. Burgos.

MR. BURGOS: -- the marshals are forcing me to my seat.

- 7 - (emphasis added).

Subsequently, the back-and-forth continued, with counsel

continuing to interrupt; and the judge threatening to find counsel

in contempt, again ordering the courtroom security officer to seat

him, and eventually removing the jury. Upon the jury's return,

the judge gave curative instructions.

Counsel's actions were plainly contumacious. Initially,

counsel had the right to press his claim, "even if it appear[ed]

farfetched and untenable." Sacher v. United States,

(1952). "But if the ruling is adverse, it is not counsel's right

to resist it or to insult the judge -- his right is only

respectfully to preserve his point for appeal."

Counsel's

repeated interruption of the court transgressed this basic

precept.

Confronted with this transgression, the trial judge had

broad discretion to restore "dignity, order, and decorum"

"essential to the proper administration of criminal justice."

Illinois v. Allen,

(1970). A judge is entitled

to verbally rebuke counsel. See Ofray-Campos,

.

And the judge may remove the jury and, as proper, threaten to or

actually sanction counsel, find counsel in contempt, or report

counsel for violating professional ethics rules. See Logue v.

Dore,

(1st Cir. 1997); United States v. Polito,

(1st Cir. 1988).

- 8 - A judge may even command physical force when "justified

by an essential state interest -- such as the interest in courtroom

security -- specific to the defendant on trial." Deck v. Missouri,

(2005). Absent an imminent physical threat,

this generally means that judges may use force only "as a last

resort."

at 628 (quoting Allen,

). From these

principles, it follows that a judge should not use physical force

to subdue counsel's verbal arguments, while in the jury's presence,

except in the most extraordinary circumstances. See United States

v. Elder,

(9th Cir. 2002); Johnson v. Maryland,

(Md. 1999) (collecting cases).

Here, for aught that appears, the trial judge did not

command force to counter a physical threat or else as a last

resort.1 Rather, he directed the security officer to forcibly seat

counsel to resolve a verbal dispute that had erupted just moments

earlier. The judge did so in the presence of the jury, and without

first exhausting other options, such as removing the jury and

1 We need not decide whether a merely verbal rebuke of "sit down" and "shut up" in the jury's presence would have been misconduct. See generally Ofray-Campos,

(holding that similar rebuke made at sidebar was not judicial misconduct). Nor do we address whether a judge's threat to find contempt in the jury's presence would be error. Compare Sacher,

("To summon a lawyer before the bench and pronounce him guilty of contempt is not unlikely to prejudice his client."), with Polito,

(holding that threat, made in the jury's presence, to report counsel for violating professional ethics rules was not prejudicial).

- 9 - pronouncing a stern warning of sanction or contempt. Under these

circumstances, the judge used force not as a last resort, but

nearly as a first one. We are not indifferent to the difficult

task that a trial judge sometimes faces in maintaining control of

a courtroom, nor to the reality that a judge's demeanor while

exercising that control will not always project unruffled

serenity. On this record, however, we conclude that the judge's

speedy resort to use of force was not consistent with "the very

purpose of a court system to adjudicate controversies . . . in the

calmness and solemnity of the courtroom according to legal

procedures." Sheppard v. Maxwell,

(1966)

(internal formatting omitted).

B.

Nonetheless, we sustain Márquez's conviction for lack of

prejudice. Our prior decisions have consistently required proof

of "serious prejudice," which we recently defined as "requiring 'a

reasonable probability that, but for the claimed error, the result

of the proceeding would have been different.'" Lanza-Vazquez,

(quoting Rivera–Rodríguez,

); see also

Logue,

("An inquiry into the judge's conduct of

the trial necessarily turns on the question of whether the

complaining party can show serious prejudice."). A reasonable

probability is a probability "sufficient to undermine confidence

in the outcome." United States v. Dominguez Benitez,

,

- 10 - 83 (2004) (citing Strickland v. Washington,

(1984)).

In analyzing prejudice, our cases regularly weigh three

factors: (1) the nature and context of the error, (2) the presence

of curative instructions, and (3) the strength of the evidence in

support of the judgment. First, error is more likely to be

prejudicial when a judge expresses or implies his own view of the

case: of the relevant evidence, a witness's credibility, the

defendant's character, or the ultimate issue. See Quercia,

; Lanza-Vazquez,

; Rivera-Rodríguez,

; Ayala-Vazquez,

. By contrast, a

judge's mere displeasure at an attorney's litigation conduct is

unlikely to prejudice a party. See Liteky,

;

Ayala-Vazquez,

n.16; Gomes,

.

The context of the error also matters. Misconduct in

the jury's presence is more likely to prejudice than that at

sidebar. See Lanza-Vazquez,

. Further, misconduct

during the presentation of critical evidence is more likely to

prejudice than that during testimony irrelevant to the defendant.

Compare Rivera-Rodríguez,

, with Ofray-Campos,

. And a cumulative pattern of misconduct may cause

prejudice where isolated misconduct would not. See Glasser v.

United States,

(1942); Rivera-Rodríguez,

.

- 11 - Second, subsequent instructions may cure the taint.

Curative instructions should remind the jury that it is the trier

of fact, and that the conduct of neither counsel nor the judge is

evidence or any indication of how to weigh the evidence or decide

the case. See Ayala-Vazquez,

. The court should

give instructions promptly after a potential error, or in the final

jury charge, or -- ideally -- at both times. See

Some severe

errors, however, cannot be cured. See Quercia,

;

Rivera-Rodríguez,

n.19.

Lastly, the stronger the evidence supporting the

judgment, the lesser the risk of prejudice. See Lanza-Vazquez,

; Rivera-Rodríguez,

; Ayala-Vazquez,

.

Márquez has arguably waived his claim for lack of

adequate argument. See Lanza-Vazquez,

. In any

event, we find no prejudice.

First, the judge's ire "was directed solely to counsel's

courtroom conduct and carried no suggestion that the defense case

was weak or that the judge sided with the prosecutor." Gomes,

. True, the error did take place in the jury's presence;

this is the sole factor that weighs in favor of prejudice. But

the error did not affect critical evidence, or otherwise deter

Márquez from presenting his case; indeed, the judge eventually

overruled the government's objection in favor of Márquez. And

- 12 - Márquez has not shown cumulative error, but only this single

instance.

Second, the judge gave curative instructions both

promptly after the error, and at the final jury charge. Each time,

the court admonished the jury to disregard the court's rebukes.

Finally, the evidence against Márquez -- video,

testimonial, and physical evidence -- was overwhelming. The

government introduced, among other evidence, surveillance videos

showing Márquez testing a firearm immediately before furtively

selling small items hidden in handkerchiefs; physical evidence,

seized from Márquez's car and his mother's house, including three

guns, large amounts of drugs packaged in baggies, and drug

paraphernalia (scales, empty baggies, a sieve, and weights); and

police officer testimony that Márquez confessed to owning the drugs

and guns, and to being a drug dealer. See Márquez-Perez,

.

Weighing these factors, we find no prejudice, so we deny

Márquez's judicial misconduct claim.

III.

Next, Márquez claims that the district court abused its

discretion in denying his motion to continue the trial date. He

argues that he needed a one-day continuance to watch the

government's video evidence, and that but for the denial of his

motion, he would have seen the videos and pled guilty, resulting

- 13 - in a lesser sentence. Finding no abuse of discretion, we reject

Márquez's claim.

Having adequate time to prepare a defense is implicit in

due process and the right to counsel. See Ungar v. Sarafite,

(1964). Nevertheless, "[t]rial judges necessarily

require a great deal of latitude in scheduling trials." Morris v.

Slappy,

(1983). To prevail on appeal, a party must

show that the denial was an "unreasoning and arbitrary insistence

upon expeditiousness in the face of a justifiable request for

delay," such that "no reasonable person could agree with the

judge's ruling." See United States v. Robinson,

(1st Cir. 2014) (citing Morris,

). We first

consider the reasons presented to the district court in support of

the continuance request. See Ungar,

; United States

v. Delgado-Marrero,

(1st Cir. 2014). We may

also weigh other relevant factors such as the moving party's

diligence in light of the complexity of the case, the time

available for preparation, the timeliness of his motion, and other

available assistance; the party's contribution to his perceived

predicament; and the extent of inconvenience to others, including

the court, the other party, and witnesses. See Delgado-Marrero,

. In addition, the moving party must show a

reasonable probability of specific prejudice, see

,

whether through evidence presented contemporaneously to the

- 14 - district judge or later-developed evidence consistent with the

original request, see United States v. Rodríguez-Dúran,

(1st Cir. 2007).

Beginning with the reasons presented to the district

court, Márquez alleged that he needed one extra day to watch the

government's videos with defense counsel. He had been unable to

watch the videos earlier due to software issues at the detention

facility, despite repeated attempts to resolve these issues with

the government. He allegedly needed to watch the videos to decide

whether to change his plea. Moreover, he did not benefit from

counsel's advice about the videos because counsel had not watched

them either: although counsel could have watched the videos by

himself, he admitted to the district judge that he "decided not to

see them, for the record."

Márquez's desire to review the videos with defense

counsel is understandable, as is his frustration with the perceived

delay in the government's repair of its technology. Nonetheless,

counsel's admission that he simply "decided not to see" the videos

practically concedes that Márquez's (or more precisely, his

counsel's) lack of diligence contributed significantly to his

predicament. Due process does not demand a continuance when

- 15 - "counsel knowingly put himself in this situation." United States

v. Flecha-Maldonado,

(1st Cir. 2004).2

Counsel's dilemma was exacerbated by his tardiness in

filing the motion. He filed the motion to continue at 5:40 p.m.

on the last working day before the start of trial -- an untimely

filing. See United States v. Maldonado,

, 43 & n.2

(1st Cir. 2013); United States v. DeCologero,

, 79 n.27

(1st Cir. 2008); United States v. Rodríguez-Marrero,

,

22 (1st Cir. 2004). And he offered no explanation for his belated

motion; nor was the reason for the delay in filing evident, for

the perceived predicament "would have been apparent long before."

United States v. Rosario-Otero,

(1st Cir. 2013).

Indeed, he had received the bulk of the videos two months before

trial and knew of the software issues three weeks before trial.

Cf. United States v. Orlando-Figueroa,

(1st Cir.

2000) (finding no abuse of discretion where defendants had received

government tapes two months before trial).

Nor were the videos so complex or lengthy as to

objectively warrant a longer preparation period. See Rodríguez-

Dúran,

. Márquez contends that some of the videos

2 Although seemingly unfair to Márquez in this instance, "[u]nder our system of representative litigation, 'each party is deemed bound by the acts of his lawyer-agent.'" Maples v. Thomas,

(2012) (quoting Irwin v. Dep't of Veterans Affairs,

(1990)).

- 16 - were produced just over a week before trial and that they totaled

"hours" in length. In fact, thirty of the thirty-four videos were

produced two months prior to trial;3 and the government had

notified Márquez of the specific clips, just "several minutes"

long, that it intended to use at trial. In analogous

circumstances, we have affirmed a district court's judgment that

a month was sufficient to review hours of calls and 700 pages of

documents. See United States v. Williams,

(1st

Cir. 2010).

Márquez has also failed to show that he was prejudiced

in deciding whether or not to plead guilty.4 Even if we assume

that prejudice to a defendant's plea decision is cognizable in

3 The thirty videos comprise all of the surveillance and firearm test videos. The four subsequently produced videos show the police executing search warrants. 4 The government argues that Márquez has waived this argument because he failed to raise it below, relying on United States v. Desir,

(1st Cir. 2001). We are not convinced that Márquez failed to raise this claim below, and even if we were, we would review for plain error. See United States v. Lopez-Lopez,

(1st Cir. 2002). In any event, even applying the more defendant-friendly standard for preserved claims, we find no error in the district court's denial. Relatedly, however, we do deem waived any argument that Márquez was prejudiced in his preparation for trial or motions to suppress. Márquez addresses these in one sentence of his opening brief, so they are waived for lack of adequate development. See United States v. Zannino,

(1st Cir. 1990). To the extent that Márquez asks us to consider arguments raised in his district court filing by merely citing the filing in his brief, those arguments are also waived. See United States v. Burgos- Montes,

(1st Cir. 2015).

- 17 - this context, see Rodríguez-Dúran,

, a defendant

must show that, but for the denial, there was a reasonable

probability that (1) the plea offer would have been consummated by

the defendant, the government, and the court; and (2) the plea

would have been to a lesser conviction or sentence than that

actually imposed, see Lafler v. Cooper,

(2012).

Márquez makes two arguments. First, during his

presentence interview after his conviction, he told the probation

officer that, had he seen the videos before trial, he "may have

considered the option of pleading guilty." Second, although the

government offered Márquez a plea deal of thirteen years (or 156

months, which is more than his actual sentence of 113 months),

Márquez may have been able to negotiate the proposed sentence

downward. Notably, he contends that the government's offer

comprised three years for the drug offenses and a mandatory minimum

of ten years for the firearm count, see

(c)(1)(B)(i). But as the government realized before trial, the

relevant ten-year mandatory minimum provision expired in 2004, so

Márquez was subject only to a five-year mandatory minimum. See

United States v. Laureano-Velez,

, 40 n.1 (1st Cir.

2005);

note, 924 note (citing Pub. L. No. 103-

322,

, § 110105(2) (1994)). Accounting for this

- 18 - discrepancy, Márquez could potentially have sought to negotiate a

lesser sentence of eight years, or 96 months.

Notwithstanding these considerations, "the possibility

that a plea bargain acceptable to all could have been reached

within a reasonable period of time is too speculative." Rodríguez-

Dúran,

. It is unclear whether Márquez would have

pled guilty at all.5 Further, the parties apparently had yet to

engage in plea negotiations after the government's initial offer,

and the government could have well refused to engage in them on

the first day of trial. See

. The government also

maintains that it would not have agreed to a sentence less than

what Márquez eventually received. Additionally, the court's

previously announced plea deadline had passed, and it may have

rejected any plea as untimely. See United States v. Gamboa,

, 1331 (11th Cir. 1999); United States v. Ellis,

(5th Cir. 1977). In short, Márquez has not shown a

reasonable probability that the parties would have reached an

agreement within a single day, that such an agreement would have

5 During the trial, a Deputy U.S. Marshal sua sponte informed the judge that Márquez would have pled guilty had he seen the videos prior to trial. The judge then asked Márquez whether he had said this to the marshal and whether he would have pled had he seen the videos. Márquez responded, "no." The government contends that this shows that Márquez would not have pled, while Márquez says that he meant "no, he did not tell this to the marshal." Regardless of which construction we adopt, Márquez has not affirmatively shown that he would have chosen to plead guilty.

- 19 - been to a lesser sentence, and that the district court would have

agreed to the untimely plea.

In these circumstances, the district court was not

obliged to rescue Márquez from his largely self-inflicted

quandary. We find no abuse of discretion.

IV.

Lastly, Márquez claims that his trial attorney denied

him effective assistance of counsel by neglecting to review the

government's video evidence before trial. Similar to his

continuance claim, Márquez argues that, but for counsel's failure

to watch these videos and advise Márquez accordingly, Márquez would

have pled guilty, resulting in a lesser sentence. Although Márquez

has not conclusively shown ineffectiveness on the record before

us, we find sufficient signs to remand for an evidentiary hearing.

The Sixth Amendment right to counsel entitles a

defendant to effective counsel during plea negotiations. See

Missouri v. Frye,

(2012); Lafler,

. We assess a claim of ineffectiveness in plea

negotiations under the two-part test of Strickland v. Washington,

(1984), under which a defendant must show deficient

performance and prejudice. Lafler,

. We measure

deficient performance against an "objective standard of

reasonableness" "under prevailing professional norms," considering

the totality of the circumstances and deferring heavily to

- 20 - counsel's judgments. Strickland,

. Prejudice

exists if there is a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome."

.

When faced with an ineffective assistance claim on

direct appeal, we typically deny the claim due to an insufficiently

developed record, leaving defendants to bring a collateral attack

under

. See United States v. Constant,

(1st Cir. 2016). In rare cases where the record is

sufficiently developed, we may resolve the claim on direct appeal.

See

Moreover, even on an inchoate record, we will sometimes

remand for an evidentiary hearing where the defendant has

identified in the record "sufficient indicia of ineffectiveness."

Id.; accord United States v. Colon-Torres,

(1st

Cir. 2004); United States v. Theodore,

(1st Cir.

2003).6

6 We at times have also remanded for an evidentiary hearing when the defendant affirmatively makes out a colorable claim of ineffectiveness, see United States v. De Alba Pagan,

(1st Cir. 1994); accord United States v. Bell,

(D.C. Cir. 2013); United States v. Meacham,

(10th Cir. 2009), or else demonstrates "special circumstances," United States v. Vega Molina,

(1st Cir. 2005). We have not addressed the relationship between these standards. Nor have we confronted whether our discretion to remand an action on direct appeal extends to every case in which

- 21 - Because Márquez has identified sufficient signs of

ineffectiveness, we remand for an evidentiary hearing. First,

counsel's neglecting to review the government's video evidence

indicates deficient performance. The Sixth Amendment requires

counsel to "make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary."

Strickland,

. The American Bar Association

Standards for Criminal Justice -- which are among those standards

that the Supreme Court has said may help guide our assessment of

what is reasonable, see Frye,

-- require counsel

to

conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities.

1 ABA Standards for Criminal Justice 4-4.1 (3d ed. 1993); accord

Rompilla v. Beard,

, 387 & n.6 (2005).

Under these principles, defense counsel generally must

review documents where (1) "counsel knows the prosecution will

an evidentiary hearing would be warranted on a post-conviction motion to vacate under

, see Owens v. United States,

(1st Cir. 2007); Rivera Alicea v. United States,

(1st Cir. 2005). The parties have not briefed these issues, and we need not decide them; regardless of which standard we apply, we would remand.

- 22 - probably rely" on the documents to present its case, and (2) the

documents are easily accessible. Rompilla,

, 389-

90. In Rompilla, the Supreme Court found ineffective assistance

where defense counsel neglected to examine a public court file of

the defendant's prior convictions, despite knowing that the state

would seek the death penalty based on the convictions. See

.

Here, counsel's failure to watch the videos appears to

fall below Rompilla's standard. First, counsel knew that the

government probably would rely on the videos because the government

formally designated the videos as evidence-intended-for-trial.

See Fed. R. Crim. P. 12(b)(4). Counsel's failure to watch the

videos was exacerbated by his own beliefs, as expressed in a motion

that he filed, that the videos contained exculpatory evidence.

Second, the videos were easily accessible because the government

produced them in discovery, presenting most of the videos to the

defense two months before trial.

We also find signs of prejudice. Similar to his

continuance challenge, Márquez argues that, but for his attorney's

deficient performance, he would have pled guilty and received a

lesser sentence. This prejudice argument is, however, stronger

than the other for two reasons.

First, the timing is different. In challenging the

denial of his motion for a continuance, Márquez asks us to

- 23 - speculate that the parties would have reached an agreement to a

lesser sentence in a single day, and that the district court would

have accepted the agreement notwithstanding the past plea

deadline. These tenuous inferences do not infect his

ineffectiveness challenge, for competent defense counsel could

have apprised Márquez of the videos' content at an earlier date.

Second, the burdens of proof differ. To ultimately

prevail on either a continuance or ineffective assistance claim,

a defendant must show a reasonable probability of a better outcome.

To secure a remand for a hearing on his ineffectiveness claim,

however, he need only show sufficient signs of ineffectiveness as

a whole. Márquez has met this lesser burden by setting forth clear

markers of deficient performance and potential markers of

prejudice. As explained above, there is evidence in the record

that Márquez would have considered pleading guilty had he seen the

videos before trial, and that the government had reason to offer

him a more favorable plea to reflect the lower mandatory minimum

on the firearm count.

V.

Accordingly, we AFFIRM Márquez's conviction, but we

REMAND the action to the district court for further proceedings

not inconsistent with this opinion. The district court should

conduct a hearing to assess whether counsel provided ineffective

- 24 - assistance, and, if so, grant the proper remedy. See Lafler,

.

- 25 -