USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2277

UNITED STATES,

Appellee,

v.

LUIS A. RODRIGUEZ-CARMONA,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

___________________

____________________

Before

Selya, Boudin and Lynch,

Circuit Judges.
______________

____________________

Luis A. Rodriguez-Carmona on brief pro se.

_________________________
Guillermo Gil,
_____________

United States Attorney,

Warren Vazquez, Assist

______________

United States Attorney, and Jose A. Quiles Espinosa, Senior Litigat

_______________________
Counsel, on brief for appellee.

____________________

March 26, 1997

____________________

Per Curiam.
___________

After

jury

trial,

appellant

Luis

Rodriguez-Carmona

was convicted of

importation

possession

and

distribute in violation of

U.S.C.

2.

He

imprisonment

and

Proceeding pro se
___ __

conviction

ineffective

due

heroin

21 U.S.C.

was

sentenced

five

years

to

of

abetting the

with

intent

to

841(a), 952,

and 18

sixty-three

months'

supervised

release.

on appeal, appellant seeks to overturn his

to

alleged

assistance of

conviction, but

of

aiding and

prosecutorial

misconduct

defense counsel.

we decline to

We

and

affirm the

reach appellant's ineffective

assistance of counsel claims.

I.

Because appellant does not

challenge the sufficiency of

the evidence, we provide a neutral summary of the evidence to

enable

us

to

determine

whether

the

events

about

which

appellant

See,
___

complains on appeal

e.g., United States

____ _____________

(1st Cir. 1996);

were harmless or prejudicial.

v. Morla-Trinidad,
______________

United States
_____________

v. Hardy, 37
_____

100 F.3d

1, 2

F.3d 753,

755

(1st Cir. 1994).

Acting in

Customs

response to

an intelligence alert,

inspectors identified

appellant

two U.S.

and Edward

Iba ez

Cosme (Iba ez), when they arrived at Puerto Rico's Luis Mu oz

Mar n

International

Venezuela.

Upon

Airport

inquiring

on

where

flight

from

he should

go

Caracas,

to

customs, Iba ez was taken for a secondary inspection.

-2-

clear

During

the course of this inspection a customs inspector performed a

pat-down

search

Iba ez's crotch.

stated, "me

containing

and

identified

When instructed

36

pellets

of

given

the

Miranda
_______

concealed

in

to lower his pants, Iba ez

mangaste, you caught me" and

swallowed by drug smugglers.

and

something

heroin similar

revealed a package

to

those

often

Iba ez was immediately arrested

warnings.

He

told

the

customs

inspectors

that he was

travelling alone and

that the drugs

belonged to him.

After

customs

the

heroin had

inspector took

area for questioning

been found

appellant to a

on Iba ez,

a senior

secondary inspection

and examination of his

luggage.

Seven

Western Union money transfer receipts bearing appellant's and

Iba ez's names were

found in appellant's bag,

had been signed by Iba ez.

stated that he was

he

Although appellant

five of which

had initially

travelling alone, when questioned further

said that Iba ez had

given him the

receipts.

Appellant

was also placed under arrest and taken with Iba ez to a local

hospital for x-rays, which proved negative.1

1

Appellant

and

trafficking charges.

Iba ez

Shortly

were

both

indicted

before trial,

on

drug

Iba ez entered

into a plea agreement.

star witness

He thereafter became the government's

at appellant's trial.

After acknowledging the

____________________

1At the
1

hospital, Iba ez encountered

a male acquaintance

and told him that he had been caught drug trafficking.

-3-

plea

agreement, which

fact that

was admitted

into evidence,

and the

he could be prosecuted for perjury if he failed to

tell the

truth, Iba ez

past criminal

exploits

testified at

without

some length

objection

from

about his

defense

counsel.2
2

Iba ez

claimed to

first

procure

then described

two smuggling

have undertaken

on appellant's

ventures that

behalf.

In

he

the

such venture, Iba ez and a friend went to Venezuela to

a heroin sample for appellant.

to Puerto Rico was

As the return flight

delayed, appellant wired Iba ez

money so

that he and his friend could

fly to Puerto Rico first class.

Iba ez identified one of the

Western Union receipts that had

been found

in appellant's

luggage

as the

receipt for

the

funds that had been used for the return plane tickets on that

occasion.

He claimed that he delivered 10 pellets of heroin

to appellant as a result of this trip.

the heroin that he

Iba ez testified that

delivered to appellant was supplied

by a

____________________

2The
2
which

prosecutor first elicited

included

convictions for

theft, and contempt.

impeachment

on

theft

In an effort

cross-examination,

required Iba ez to describe

not resulted in

Iba ez's criminal record,

of

to minimize the
the

and

escapade

which

ensuing
crash,

included

shoot-out,
after

he

next

his criminal activities that had

convictions.

that

auto

risk of

prosecutor

Iba ez then

testified that he

had transported drugs to Spain via Puerto

November

a toolbox,

had

Rico the preceding

participated

a hold-up

of

in
a

hit-and-run, carjacking,

an

gas

elaborate
station, an

and automobile

which Iba ez and his cohorts eluded the police

by escaping through a waterfall.

convened bench conferences to

While the trial judge twice

question the relevance of this

testimony, defense counsel raised no objection to it.

-4-

Colombian,

Cesar

Augusto Buendia,

and

that

the remaining

Western Union receipts found in appellant's luggage reflected

drug payments that appellant had made to Buendia.3

3

With regard

resulted

in

to

the

the arrests

second

of

smuggling

Iba ez

venture,

and appellant,

testified that he recruited his cousin Jose Iba ez

which

Iba ez

(Jose) to

assist

in carrying the

passport.

they could travel to

Puerto Rico.4
4

have a

three were

they

Connecticut to secure passports so

Venezuela and return carrying

Because

soon, the agency

that

Jose did not

As a result all three men - appellant, Iba ez, and

Jose - travelled to

that the

drugs but that

Iba ez informed the

scheduled to

issued the

applied for

travel to

The

drugs to

passport agency

Venezuela very

men passports on

them.

that

the very

three then

day

returned to

Puerto Rico and left for Venezuela on March 22, 1995.

Iba ez

the

in

related that after

staying in Venezuela briefly

three men travelled to Colombia and checked into a hotel

accordance

Buendia.

with

the

Eventually,

instructions

Buendia

caused

of

the

their

supplier,

heroin

to

be

delivered to appellant's hotel

pellets and

divided them

room, where Iba ez washed the

into two

packages.

According to

____________________

3Iba ez described how appellant

3

sent him to Western Union

on multiple occasions to wire money to Buendia.

4Iba ez
4

testified

that it

was

necessary

to travel

to

Connecticut, where Jose had been born, to secure Jose's birth

certificate for his passport application.

-5-

Iba ez, appellant

and while

he

was present when the

was

packaging

appellant had business at

it.

heroin was delivered

Iba ez

testified

his drug point in Puerto

Rico, so

he and Iba ez decided to return there with the heroin.

was

left behind

to return

later with

two pairs

that

Jose

of tennis

shoes that were being loaded with heroin.

Iba ez

one

testified

package

carried a

scared

with

thereafter.

pellets of

Iba ez body-carried

heroin,

similar package with 16 pellets.

after their

border, so

20

that, initially,

he

luggage was

instructed Iba ez

searched at

to

while

appellant

Appellant became

the Venezuelan

carry all

the

heroin

The two flew to Caracas and from there to Puerto

Rico

without

appellant

first.

incident.

Upon

instructed Iba ez

arriving

to go

in

up front

Puerto

to be

Iba ez testified that although he initially

Rico,

checked

told the

authorities that the drugs were his, in fact they belonged to

appellant.

Iba ez's

and

plane

admitted

testimony was

tickets

into

Herdmann, a

of

corroborated by

appellant

evidence,

senior customs

and

and

the

Iba ez,

testimony

supervisor.

the passports

which

of

were

Richard

Herdmann testified

that

after Iba ez had been found with the heroin, he noticed

that

the

defendants'

passports

and

plane

tickets

bore

-6-

sequential numbers

was responsible

were

involved

determine who

for

interrupted by

one digit.5
5

determining whether

in drug

trafficking,

he

had been issued the passport

with the intervening numbers.

As Herdmann

any other

persons

made inquiries

to

and plane ticket

Herdmann testified that these

items had been

issued to Jose, but

that he had not

boarded

the plane in Venezuela.6

6

Appellant

defense counsel

in appellant's

did

not

testify

at his

had announced that Jose

defense, the

trial.

Although

would be testifying

record indicates that

Jose was

arrested

at the outset of appellant's trial and charged with

the same

crime as appellant

(i.e., aiding and

abetting the

importation of heroin), and conspiring to import heroin. Jose

was

never called as a

excerpts

Iba ez

endeavor

from

witness.7
7

the testimony

to argue

that Iba ez

and that

____________________

appellant

of

Defense

the

customs officers

acted alone

was a

counsel relied on

in

legitimate

and

the smuggling

businessman

5Iba ez's
5

passport

bore

appellant's passport bore

had

the

number

140533715

number 140533717.

Both

been issued in Connecticut on March 3, 1995.

Iba ez's

plane ticket for

bore a number

his return flight

ending in 10,

while

passports
Similarly,

to Puerto Rico

while appellant's plane

ticket

ended in 12.

6Herdmann also ascertained

6
issued

that Jose's passport

at the same time and place

had been

as those of appellant and

Iba ez.

7It is undisputed that Jose was tried after

7
acquitted on all

charges. See United States v.

___ _____________

Maldonado, #95-CR-195(SEC).
_________

-7-

appellant and
Jose Iba ez____________

unaware of the drug venture.

Remaining facts

will

The jury rejected this defense.

be discussed

in

the context

of

the

arguments that appellant raises.

II.

On appeal, appellant asserts that the prosecutor pursued

"carefully

impermissibly

tailored"

bolster

strategy

that

the credibility

of

was

designed

to

the government's

chief

witness

appellant

(Iba ez),

of his

this general

while

own star

simultaneously

witness (Jose).

theme, appellant

Consistent with

contends that

should be reversed on three grounds.

depriving

his conviction

First, appellant argues

that certain remarks that the prosecutor made in his rebuttal

argument improperly vouched for the credibility of Iba ez and

expressed the

traffickers

prosecutor's personal opinion

work.

Second,

prosecutor violated his Sixth

process by arresting Jose

privilege

against

was

because

deprived

his trial

of

that

the

compulsory

solely to cause him to

invoke his

thereby

depriving

Finally, appellant contends that

the effective

counsel

contends

drug

Amendment right to

self-incrimination,

appellant of his testimony.

he

appellant

about how

failed to

assistance

move to

of

counsel

suppress the

evidence seized by the customs officers and further failed to

-8-

protect

appellant's

right to

compulsory process

by taking

steps to ameliorate the government's arrest of Jose.

We first examine the prosecutor's conduct, mindful

that

because defense counsel did not object to it below, we review

only for plain

85 F.3d

error. See, e.g., United States v. Sullivan,

___ ____ ______________
________

743, 751 (1st Cir.

view the prosecutor's

trial

1996).

conduct in the

and that we may reverse only

miscarriage of

justice would

This means

that we must

context of the

entire

if we conclude that, "'a

otherwise result,'" or

that a

plain error "'seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.'" United States v.

_____________

Olano, 507
_____

States
______

U.S. 725,

v. Josleyn,
_______

736 (1993)(citations omitted);

99

F.3d

1182,

1197 (1st

Cir.

United
______

1996).

Appellant has failed to meet this "hard-to-satisfy standard."

United States v. Taylor, 54 F.3d 967, 977 (1st Cir. 1995).

_____________
______

III.

The Prosecutor's Rebuttal

_________________________

In

the

cross-examining

Iba ez, defense

counsel emphasized

fact that Iba ez had first told the authorities that the

drugs

belonged

argument

implied

to him

alone.

that

Iba ez

Defense counsel's

had

changed

his

closing

story

to

incriminate appellant only after he executed the government's

_____

plea agreement.8
8

Appellant

now contends that the prosecutor

____________________

8Referring to Iba ez, defense counsel argued that, "it was

8
not until

the

government made

plea agreement

[that] he reverted (sic) his testimony."

-9-

with

him

engaged

in

improper witness-vouching

rebut defense counsel's insinuation

when he

attempted to

by referring to the plea

agreement as follows:

....

that piece

reflect

that

of

evidence

definitely Mr.

...

will

Iba ez was

fully debriefed and examined prior to the

signing

of the plea

agreement.

So the
______

government
already
heard,
knew,
_________________________________________
investigated,
and
corroborated
the
_________________________________________
information given by Iba ez prior to the
_________________________________________
signing of the plea agreement
______________________________

and prior

to bringing him here to

testify [to] the

facts to you.

Simply it did not become a

magic

presented by

act as

saying that after the plea

defendant in
agreement was

made then he changed his -- his

version.

No.

These things are investigated thoroughly

_________________________________________
first before even thinking of signing a
_________________________________________
plea
agreement, corroborated
by the
_________________________________________
agency and also investigated.
_______________________________
the totality

of the plea

agreement, and

you will see the terms of it.

take

a word

of mouth

read

the

evidence.

evidence.

So

So read

Just don't

explanation. Just
It's

you will

there

know

in

how this

takes place, and that will assist

you in

reaching the truth in your deliberations.

(emphasis supplied).

"[A] prosecutor

inculpatory

may not

information that

imply that the

is not

government has

in evidence."

United
______

States v. Manning, 23 F.3d 570, 573 (1st Cir. 1994)(citations

______
_______

omitted).

and

Comments like, "the government

corroborated the

remaining

understood

source of

language

to imply

information given

emphasized

that the

information from

above

... investigated,

by Iba ez"

could

government had

which it learned

-10-

and the

fairly

be

an additional

Iba ez's story

even

before he

remarks

agreed to

crossed the

line

government essentially

v.

Tajjedini, 996
_________

cooperate.

We agree

into improper

vouching, and

concedes as much.

F.2d 1278, 1284

that these

the

See United States

___ _____________

(1st Cir.

1993) (noting

that it is improper for a prosecutor to even "seem to rely on

matters not in evidence").

Appellant

next assails

the

prosecutor's rebuttal, which was

following

portion of

the

made in response to defense

counsel's suggestion that appellant's apparent involvement in

the crime was an accident:

Ladies
[that

and gentlemen ... I submit to you

there

are] too

for this to be a

many coincidences

mere accident.

This is
_______

how drug traffickers work.

_____________________________
smarter

than others

Some are

and will

tell you,

listen, they almost caught me.

You carry

the drugs.
going

Keep -- keep up

to stay

something
here:

in the

back ...

happens. That's
a

very

front.

I'm

in case

what happened

shrewd

trafficker,

Rodriguez, putting the other guy up front

so

if he

gets

caught he

gets the

...

problem. (emphasis supplied).

Appellant

contends that

traffickers work"

the

comment, "[t]his

was an improper statement

was not supported by the evidence.9

9

comment

We

evinces a poor choice of words.

is how

drug

of opinion that

agree

that

this

While the statement

may have been construed as a simple rhetorical invitation

to

____________________

9Appellant argues that whether or not drug traffickers use

9

"mules"

to

avoid apprehension

in

the

way the

prosecutor

claimed that Iba ez was used here was a subject that required
an expert opinion before the prosecutor could comment on it.

-11-

find

appellant

arguably

implied

guilty

that

based

appellant

alleged conduct, as described

the

on

prosecutor's experience

Iba ez's

was

guilty

testimony,

it

because

his

by Iba ez, was consistent with

with

other

drug

traffickers.

Such

an implication

is, of

Tajjedini,
_________

996 F.2d

at

prosecutor

to insert

course, improper.

1284 ("it

his own

is

See,
___

e.g.,
____

... improper

credibility or

for

opinions into

argument").

Nevertheless,

we

do

constitute plain error,

highly unlikely that

Olano,
_____

507 U.S.

normally required

not

him.

that

for the record

these

remarks

suggests that it

is

appellant was prejudiced by them.

at 735

(specific showing

appear to be instances of

is

To be sure,

upon the credibility of Iba ez,

the government could ill afford

Nevertheless, both

See
___

of prejudice

to establish plain error).10

10

the government's case hinged

and

think

of

the

to vouch improperly for

remarks challenged

here

accidental overkill rather than

deliberate attempt

to mislead the jury.

Iba ez's testimony

____________________

10The
10

"plain error"

prosecutor's

remarks

circumstances,"

test requires
in

including

light

of

"(1)

jury

against,

or

with

palliated,

F.3d

evidence
in this

at

the
to

"attendant
which

the

and/or deliberate, (2) the

the

particular regard

977 (citation

to

of

the

unfair

likelihood that

the jury's judgment."

omitted).

of guilt or innocence is
analysis. See
___

possibility

overall strength of the prosecution's

prejudice might have affected

54

extent

consider the

trial judge's instructions insulated the

prejudice, and (3) the

case,

all

the

prosecutor's conduct is recurrent

extent to which the

that we

The

any

Taylor,
______

weight of

the

the most important factor

Arrieta-Agressot v. United States, 3

________________
______________

F.3d 525, 528 (1st Cir. 1993).

-12-

was,

in

fact,

corroborated

by

the

plane

tickets,

the

passports, and the Western Union receipts that had been found

in

appellant's

evidence

prosecutor

agreement

was

luggage.

the

referred

We think

it

likely

outside

corroboration

in

remarks

his

to

concerning

and that the jury understood as much.

that

this

which

the

the

plea

Finally, we

note that the trial judge repeatedly instructed the jury that

the arguments of counsel do not constitute

its

decision was to

be based

on the

evidence and that

evidence alone.

The

record

indicates

before

reaching

that

its

not simply

value.11
11

jury

verdict,

carefully deliberated

did

the

returned

thus

indicating

over the elements of

accept

the prosecutor's

We think this

three questions

that

it

the offenses and

arguments at

face

sound evidence that the jury obeyed

the court's instructions to resolve the case on

the evidence

and was not seduced to convict on speculation prompted by the

prosecutor's rebuttal.

Accordingly, we

are confident

that

the prosecutor's improper remarks did not so poison the trial

as to require reversal for plain error.12

12

____________________

11The jury
11
and

requested a

the relevant statutes.

clearly

define the

term

copy of the

court's instructions

It also requested that the court

"possession" and

copy of

that

portion

of

Iba ez's

testimony

wherein

he

alleged

that

appellant had instructed him to carry all of the heroin.

12Appellant
12

also contends that

the prosecutor improperly

elicited evidence of Iba ez's prior bad

of

fulfilling

the

plea

testify truthfully and

admitted

agreement's

requirement

that the trial judge should

this testimony.

See
___

note 2, supra.
_____

-13-

The Arrest of Jose

__________________

acts under the guise

that

he

not have

We agree that

Appellant next contends that the prosecutor violated his

Sixth Amendment right to

compulsory process by arresting his

star

witness, Jose Iba ez, solely

from

testifying

for

the

appellant contends that

assistance

failed

defense.

order that granted

following

additional facts,

scope

the

record

related

vein,

object to Jose's arrest and

required that the government do so.

of

In

to prevent him

defense counsel rendered ineffective

because he failed to

to seek a court

as a ploy

but

some

are

Both

Jose immunity or

claims rely on the

of which

conceded

are beyond

as

true

by

the

the

government.13
13

It appears

after

that Jose arrived in Puerto

appellant and

Iba ez were

Rico three days

arrested and

that he

was

immediately

questioned

authorities, who found

approximately eleven

and

released

no drugs.

days

A few

by

the

customs

months later,

before appellant's

trial

and

began,

Iba ez agreed to plead guilty and testify for the government.

Shortly thereafter, defense counsel announced that Jose would

____________________

much

of this evidence might have been excluded.

counsel raised
relied on

no objection to

it as grounds for

its admission.

But defense
Instead, he

attacking Iba ez's credibility.

As Iba ez's criminal exploits were just as likely to make the

jury disbelieve

him as otherwise, we cannot say admission of

this evidence was plain error.

13These
13
claim
claims.

and

facts pertain
one

of

to appellant's

his ineffective

compulsory process

assistance

of

The latter is discussed in part IV, infra.

_____

-14-

counsel

be called

as a witness

for the defense.14

14

As noted above,

Jose was arrested on the first day of appellant's trial, when

he arrived at the courthouse to testify for appellant.

The record discloses that after announcing that Jose had

been arrested,

the Assistant

immediately agreed to make

to interview and call

United States Attorney

(AUSA)

Jose available to defense counsel

as a witness.

He also observed

that

Jose would

he wished

probably reevaluate with his

to testify.

objected to Jose's

(Tr. 9-11).

arrest.

Instead,

own counsel whether

Defense counsel

never

he proceeded with

the

trial and made no complaints about a violation of appellant's

right

to compulsory

scuffle created

process.

Appellant alleges

by" Jose's arrest prevented

from calling him as a witness.

that "the

defense counsel

He has submitted an affidavit

from his trial counsel to support this assertion.15

15

____________________

14This
14
continue

is
the

indicates that
who

apparent
trial

(original

defense counsel

could provide

exculpatory

i.e., five days after

June 2, 1995.

from

defense
paper

counsel's
#28).

motion
That

first interviewed
testimony on

to

motion

a witness

June 7,

1995,

Iba ez executed his plea agreement

We presume that the witness identified

on

in the

motion is Jose.

15Defense
15

counsel averred that

Jose could

have provided

material, exculpatory testimony to the effect that he did not

observe any
time

drug-related activities by

that they spent together

arrested,

counsel

prohibited

him

believed

from

in Venezuela.
that

contacting

properly represented by

appellant during the

counsel.

his

Once Jose was

ethical

Jose until

obligations

after

Counsel swore

he

was

that due to

the fact that he was "heavily engaged" in appellant's defense

during the course of the two-day trial, it was impossible for
him to ascertain the
with

Jose's

counsel

status of Jose's case or

to

address

-15-

Jose's

to coordinate

Fifth

Amendment

Appellant now complains

the timing

Jose to

of the arrest is

that the

only explanation

that it was

invoke his privilege

for

designed to compel

against self-incrimination and

thereby deprive appellant of his testimony.16

16

At the

we

was not raised

are compelled to observe

below.

A strong

waived.

Cf. United States v.

__ ______________

244, 246

(1st Cir.

compulsory

argument

that this claim

can be

made that

1990)(holding defendant waived

process when defense

benefit

make

this argument,

has been

Theresius Filippi, 918

_________________

counsel decided

with trial without material witness).

does not

it

outset

we

F.2d

right to

to proceed

But as the government

will give

appellant

the

of the doubt and assume the claim was forfeited, not

waived. See Olano, 507 U.S. at 733-34 (discussing distinction

___ _____

between

"waiver"

and "forfeiture").

This

benefit is

of

little moment, for the record, even as supplemented, does not

establish

that the

arrest of

Jose was

a plain

error that

violated appellant's right to compulsory process.

In

order

compulsory

contested

to

process,

act

sovereign and

make out

the

violation

appellant

or omission

(2) causes

(1)

can

the loss

must

be

of

show

the right

that

attributed to

or erosion

to

"some

the

of testimony

____________________

concerns.

Counsel's affidavit

concludes with

that "these circumstances prevented

...

as a witness despite

the assertion

me from calling ... Jose

the fact that

his testimony could

ha[ve] changed the outcome of the trial."

16Appellant says that this

conclusion is bolstered by the

16
fact that Jose was ultimately acquitted on all charges.

-16-

which

is both (3) material to

the case and (4) favorable to

the accused." United States v. Hoffman, 832 F.2d

______________
_______

(1st Cir. 1987).

in

1299, 1303

"[C]ausation is an essential building block

...[this] edifice,"

id.
___

It

is

on

this

block

that

appellant's claim stumbles.

government

is responsible

assume, for

the sake

would have

does

not

show that

Defense

even ascertain

invoke

for

Jose's arrest,

of argument

the

Consequently,

Fifth

it

the arrest

caused

Amendment

the loss

is not

at

Jose.

subpoenaed, Jose

and

decline

all clear

will

testimony

the record simply

counsel never subpoenaed

that, if

that the

and we

only, that his

been material and exculpatory,

testimony.

not

For while it is clear

that

actually rendered his testimony unavailable.

of Jose's

He

did

would indeed

to

testify.

Jose's arrest

Accordingly, we

cannot say that this arrest was a "plain error" that violated

appellant's right

v.

Arboleda,
________

929

to compulsory process.

F.2d

858, 868

(1st

Cf. United States

___ _____________

Cir.

1991)(holding

appellant failed to

of access to a

establish government violated

witness where defense counsel

his right

never formally

attempted to meet with witness).

IV.

Ineffective Assistance of Counsel Claims

________________________________________

Appellant

because he

argues that

defense counsel

was ineffective

failed to object to the arrest of Jose and failed

to seek a court

order that either granted Jose

-17-

use immunity

or

required

that

maintains that

motion

to

the government

defense counsel

do

so.

Appellant

erred by failing

suppress

the

evidence

general

rule,

this

seized

by

also

to file

the

customs

inspectors.

As

ineffective

assistance of

unless the critical facts

court

does

counsel claims

not

consider

on direct

are not in dispute and

appeal

the record

is sufficiently developed to permit reasoned consideration of

the claim.

See, e.g.,
___ ____

n. 1 (1st Cir.

United States v. Collins, 60 F.3d 4,

_____________
_______

1995); United States

_____________

v. Natanel, 938 F.2d

_______

302, 309 (1st Cir. 1991), cert. denied, 502 U.S. 1079 (1992).
_____ ______

We

do not

developed

think

to allow

Accordingly,

assistance

Appellant

we

present

us to dispose

decline

to

record is

of the

sufficiently

foregoing issues.

reach

appellant's ineffective

of counsel claims in the

context of this appeal.

remains free to raise these issues in a motion for

post-conviction

United States v.
_____________

cert.
_____

that the

denied,
______

relief under 28

Mala, 7
____

511

U.S.

U.S.C.

2255.

See, e.g.,
___ ____

F.3d 1058, 1063

(1st Cir.

1086

The

conviction is otherwise affirmed.

________

(1994).

1993),

judgment

of

-18-