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USCA1 Opinion

March 30, 1993

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 92-1890
UNITED STATES,
Appellee,
v.
PETER N. GEORGACARAKOS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Seth M. Kalberg, Jr. for appellant.
____________________
Margaret D. McGaughey, Assistant United
_______________________

States Attorney,

with whom Richard S. Cohen, United States Attorney and Jonathan


_________________
________
Chapman, Assistant United States Attorney were on brief, for
_______
appellee.
____________________
March 30, 1993
____________________

BOWNES, Senior Circuit Judge.


BOWNES, Senior Circuit Judge
____________________
N.

Georgacarakos, appeals his

intent

to

distribute and

grounds that the district


were

erroneous,

and that

ineffective assistance
the defendant's

conviction of possession with

distribution

which

of

cocaine on

the

court's jury instructions on venue


his

defense

of counsel.

was flawed

We decline

ineffective assistance

raised before the district court.


venue, to

The defendant, Peter

by

to consider

claim which

was not

The jury instructions

defendant-appellant now

the

objects, were

on
not

objected
30.

to after the charge as required by Fed. R. Crim. P.

We find

that the instructions did not

constitute plain

error and affirm the conviction.

I.
I.
BACKGROUND
BACKGROUND
__________
During October, 1991,

Frank "Tony" Porcaro

agreed

to cooperate with the Drug Enforcement Administration ("DEA")


office and the South
supervised undercover
his role

as an

defendant, whom

Portland Police Department in Maine


drug purchases from drug

undercover informant, Porcaro


he had known

dealers.

In

contacted the

for several months,

the defendant to help him purchase cocaine.

on

and asked

Porcaro told the

defendant that he owed money to dangerous people, that he had


resorted to desperate methods to get money for repayment, and
that he had

to get cocaine in order to pay them back.

-22

After

several calls from Porcaro, the defendant


buy

cocaine.

and

supervised

provided

The

DEA and South

Porcaro

in

with

all

Porcaro

Portland police instructed

the

undercover

necessary

substantial amounts of money for

agreed to help him

operation, and

equipment

including

the cocaine purchases and a

"body wire" recording device to record his conversations with


the defendant.
The

defendant

and

Porcaro

trips

to

Lawrence, Massachusetts, one on

October 25 and the other

on

November

cocaine.

15, 1991, to purchase

made

two

On

both days, the

defendant called his source in Lawrence before he and Porcaro


began their
trips

and

defendant
money

journey.
the

Porcaro drove

defendant

admits that

and then

trial and argues


cocaine to

the

only

he purchased

gave the cocaine


on appeal

Porcaro in

the contrary

was

borrowed cars
passenger.

cocaine with

to him.

He

that he purchased

Massachusetts.

that on both

on both

Porcaro's

testified at
and gave

Porcaro

until they

Porcaro

testified that on October 25, the defendant kept the

handed Porcaro

Maine.

a napkin.

As

to the

testified that the defendant again

cocaine during the trip

never saw the cocaine.

in

they reached Scarborough where he

the cocaine wrapped in

November 15 trip, Porcaro


kept the

destinations

kept the

cocaine

cocaine in his pants until

their

the

testified to

occasions the defendant

reached

The

Porcaro

-33

back to Maine

and that he

testified that he drove to a

prearranged

meeting

place, a

motel

Portland.

In the parking lot,

and police

and DEA agents

agents

testified

surrounded the

that they

glove

The agents

compartment

of

lot in

Porcaro got out

saw

the

leaning forward toward the dashboard


up as ordered.

parking

car.

South

of the car,
Two

of the

defendant moving

and

before he put his hands

found a package of cocaine in the

the

car

after

the

defendant

was

arrested.
Venue
Defense

was

the

counsel objected

primary
to

focus

the district

of

the

defense.

court's proposed

jury instructions on venue before counsels' closing arguments


to the jury and before the court gave the charge to the jury.
When the court gave
instructions after

counsel an opportunity to object


the charge

and before the

to the

jury retired,

defense counsel raised other issues, but did not object again
to the instructions
proper in
counts.

Maine,

on venue.
and found

The jury found that venue was


the

This appeal followed.

II.

defendant guilty

on

both

II.
ANALYSIS
ANALYSIS
________
The defendant

raises two

issues on appeal:

(1)

error in the district court's jury instructions on venue, and


(2) ineffective assistance of

counsel due to trial counsel's

failure to pursue the defense of entrapment.

-44

A.
A.

Jury Instructions on Venue


Jury Instructions on Venue
__________________________
During the

gave

instructions on

contrary to the

charge to the jury,


venue which

the district court

the defendant

claims are

law because they allowed the jury to take an

impermissibly

broad

view

venue.

Proper venue

of conduct
in a

relevant

to

proving

criminal prosecution

constitutional right:
the Framers wrote into the Constitution
that "The Trial of all Crimes . . . shall
be held in the State where the said

is a

Crimes shall have been committed. . ."


Article III,
2, cl. 3.
As though to
underscore
the
importance
of
this
safeguard, it was reinforced
by the
provision of the Bill of Rights requiring
trial "by an impartial jury of the State
and district wherein the crime shall have
been committed." Sixth Amendment.
United States v. Johnson, 323 U.S. 273, 275 (1944); see also
______________
_______
___ ____
Fed. R.

Crim. P.

18.

If

the federal statute

crime charged does not indicate a method


location

of

determined
location
v.

the
from

crime for
the nature

venue,
of

for determining the

the

location

the crime

alleged

of the act or acts constituting it."

Anderson, 328 U.S. 699, 703 (1946).


________

defining the

"must be
and the

United States
_____________

Because venue is not

an element of the offense, the government bears the burden of


proving venue by a preponderance
by the

higher standard, beyond

of the evidence rather than


a reasonable doubt.

States v. Hall, 691 F.2d 48, 50 (1st Cir. 1982).


______
____

-55

United
______

The
counts

with

defendant
violation

in this
of

21

case

was

U.S.C.

charged in
841(a)(1)

841(b)(1)(C):

Count One

charged possession with

distribute and

distribution of cocaine on

two

and

intent to

October 25, 1991,

and Count Two charged possession with intent to distribute on


November
for

15, 1991.

determining

committed in
U.S.C.

The

venue.

more

statute does not


Continuing

than one

3237(a).1

crimes,

district,

Distribution and

indicate a method
i.e.,

are governed

crimes
by

18

possession with intent

to distribute drugs are continuing crimes.

United States v.
_____________

Uribe, 890 F.2d 554, 558-59 (1st Cir. 1989); United States v.
_____
_____________
Kiser, 948 F.2d 418,
_____
S.

Ct.

1666

prosecuted

425 (8th Cir. 1991), cert.


_____

(1992).

Therefore,

venue

denied, 112
______

for

the

crimes

in this case was proper in any district where the

crimes began, continued or were completed.


In order
must
crimes

to decide

determine what
charged.

220-21 (1956).

acts by

Johnston v.
________

where the crimes


the defendant
United States,
_____________

occurred, we

constituted the
351 U.S. 215,

To determine venue, we examine "the key verbs

____________________
1

18 U.S.C.

3237(a) provides in pertinent part:

(a) Except
as otherwise expressly
provided by enactment of Congress, any
offense against the United States begun
in one district and completed in another,
or committed in more than one district,

may be inquired of and prosecuted in any


district in which such offense was begun,
continued, or completed.
-66

in the statute
scope of

criminal offense"

relevant conduct.

F.2d 902,
(1981);

defining the

United States
_____________

905 (1st Cir. 1980),

cert.
_____

to find

the

v. Tedesco,
_______

635

denied, 452
______

U.S. 962

see also United States v. Griffin, 814 F.2d 806, 810


___ ____ _____________
_______

(1st Cir.
charged

1987).
in

The

this case

intent to distribute."

key verbs
are

relevant

"distribute"

to the

crimes

and "possess

with

Actions which are merely preparatory

or prior to the crime are not probative in determining venue.


United States
_____________
1190

(2d

States,
______

v. Beech-nut Nutrition Corp., 871


__________________________

Cir.), cert.
_____

denied sub nom.,


___________ ____

493 U.S. 933 (1989).

defendant which constitute


with

intent

to

v. United
______

Therefore, only actions by the

either distributing or possessing

distribute

determining venue for

Lavery
______

F.2d 1181,

cocaine

those offenses.

are

probative

Griffin,

in

814 F.2d at

_______
810; United States v. Davis, 666 F.2d 195, 200 (5th Cir. Unit
_____________
_____
B

1982).

Jury

instructions

on

venue must

restrict the

jury's focus to the defendant's conduct which constituted the


crimes charged.
The

jury

instructions

which

the

challenges were as follows:


Now both counts charge that the crimes
occurred in the district of Maine and
elsewhere.
It is sufficient if the
government proves by a preponderance of
the evidence, in other words, that it is
more likely than not, that any act in
___________
furtherance
of
the
crimes
charged
_________________________________________
occurred in Maine. Offenses beginning in
_________________
one district and completed in another or

-77

committed in more than one district may


be prosecuted in either such district.
. . .
Let me summarize this for you. If you
are convinced beyond a reasonable doubt
that the defendant distributed cocaine
and possessed cocaine with the intent to

defendant

distribute it, on a date reasonably near


October 25, 1991, and you are convinced
that it is more likely than not that the
defendant did
any act in
Maine in
_________________________________________
furtherance of this crime, then you must
_________________________
convict him on Count One. Otherwise, you
must acquit him on Count One.
If [you] are
convinced beyond
a
reasonable
doubt that
the defendant
possessed cocaine with the intent to
distribute it on a date reasonably near
November 15, 1991, and you are convinced
that it is more likely than not that the
defendant
did any act
in Maine in
_________________________________________
furtherance of this crime, then you must
__________________________
convict him on Count Two. Otherwise, you
must acquit him on Count Two.
Record at 461, 464 (emphasis added).

The

emphasized

language, which is challenged by the defendant, appropriately


describes venue

for a

conspiracy charge or

abetting others in commission of a crime.

for aiding

Uribe, 890 F.2d at


_____

558; see also United States v. Lam Kwong-Wah, 924


___ ____ ______________
_____________
301

and

F.2d 298,

(D.C. Cir. 1991) ("It is a well-established rule that 'a

conspiracy

prosecution may

which some

overt act

committed

by

any

of

the

United States v.
_____________

Cir.

(discussing

establish

venue for

brought in

in furtherance

omitted));
1989)

be

any district

of the conspiracy

co-conspirators,'"
Long, 866 F.2d
____

similarity of

conspiracy

and

proof

in
was

(citation

402, 407 (11th


necessary

aiding and

to

abetting).

Group crimes, such as conspiracy and aiding and abetting, may


-88

have

a broad

scope

of conduct

multiple participants
crimes.

and

In individual

relevant

to venue

the participatory
crimes,

such

due

to

nature of

the

as distribution

and

possession with the intent to distribute cocaine, "actions in


furtherance of the crime"
include

conduct

cocaine

which is merely preparatory

We

agree with

court's

other

could be interpreted by a
than

the defendant,

instructions on

possessing

and

distributing

or prior to the crimes.

therefore, that

venue

jury to

were overly

the district

broad and

were

erroneous.
Because the
instructions

on

venue

required by Fed. R.
under the
Santana,
_______

defendant

failed

after

the charge

to

Crim. P. 30, we review

plain error

standard.2

to

to

the

the

jury

as

the instructions

United States
_____________

964 F.2d 1262, 1268 (1st Cir. 1992);

v. Mendoza-Acevedo,
_______________

object

v. Arias______

United States
_____________

950 F.2d 1, 4-5 (1st Cir. 1991).

"Plain

errors or defects affecting substantial rights may be noticed


although

they

were

not brought

to

the

attention

of the

____________________
2

Fed. R. Crim. P. 30 provides in pertinent part:


No party may assign as error any portion
of the charge or
omission therefrom
unless that party objects thereto before
the jury retires to consider its verdict,
stating distinctly the matter to which
that party objects and the grounds of the
objection. Opportunity shall be given to
make the objection out of the hearing of
the jury and, on request of any party,
out of the presence of the jury.
-99

court."

Fed.

R.

Crim. P.

52(b).

To

cause reversal

of

conviction, plain error must be so egregious as to "undermine


the fundamental

fairness of

miscarriage of justice."
16 (1985).
we

the trial

and contribute

to a

United States v. Young, 470 U.S. 1,


_____________
_____

When reviewing jury instructions for plain error,

examine the

instructions

in the

context of

the entire

charge, and as part of the record of the trial, to


whether

they

trial.

Id. at
___

undermined

the

fundamental fairness

15-16; United States v.


_____________

determine
of

the

Park, 421 U.S. 658,


____

674 (1974) (challenged jury instructions are to be "viewed as


a whole

and in the context of the trial");

Weston,
______

960 F.2d

claims of

212, 216

plain error,

(1st Cir.

we

United States v.
_____________

1992) ("In

consider the

assessing

instructions as

whole,

taking into

account whether

the putative

errors so

skewed

the

trial

defendant's

conviction

offends

entire

due

erroneous

that the

process.").

The

instructions allowed

question
the

jury to

is

whether

the

find venue

in

Maine in violation of the defendant's constitutional right to


venue in the district where the crimes were committed.
The defendant
based

urges us

upon the rule "'that

jury on alternative

(quoting Leary v.
_____

when a case

his conviction

is submitted to the

theories the unconstitutionality of

of the theories requires that


United States v.
_____________

to reverse

any

the conviction be set aside.'"

Rodriguez, 465
_________

F.2d 5, 10

United States, 395


_____________

-1010

(2d Cir.

U.S. 6, 31-32

1972)
(1969))

(footnotes omitted).

In Leary, id., the defendant challenged


_____ ___

the

constitutionality of a

the

basis

for one

of

statutory presumption

two

alternative theories

presented

to

statutory

presumption was unconstitutional

conviction.

on

uttering a

two

was

Supreme

a "continuing

The court held that

forged

check

was

not

submitted to

guilt:

the crime of

uttering a

theories was incorrect, and

to 18

offense,

the

aiding and

because the crime of

a continuing

that the

and reversed the

offense" pursuant

3237.

guilt

the issue of venue of

theories of

or that

of

Court held

forged check was

alternative

abetting the crime


check

The

In Rodriguez, 465 F.2d 5,


_________

the crime of
jury

the jury.

which was

forged
U.S.C.

uttering a
one

of

the

reversed the conviction based on

the Leary rule.


_____
In this case, the jury instructions did not present
two alternative theories of
impermissibly broadened
might have

Rather, the instructions

the scope of conduct

considered in determining venue.

therefore, is inapposite
which

guilt.

to this case.

which the jury


The Leary rule,
_____

An analogous

rule,

is more closely related to this case, provides "that a

general

verdict must be set aside if the jury was instructed

that it could rely on any of two or more independent grounds,


and one of those grounds is insufficient, because the verdict
may

have rested

exclusively

Zant v. Stephens, 462 U.S. 862,

on the

insufficient

881 (1983).

ground."

An exception to

____

________

-1111

the

rule exists

if uncertainty

as to

the grounds

for the

jury's verdict can be eliminated.

United States v. Ochs, 842


_____________
____

F.2d 515,

Based on

trial

520 (1st

Cir. 1988).

record, there

can be no

a review

uncertainty that

of the

the jury's

verdict on venue was based on sufficient grounds.


There
presented
the

were two

versions

to the jury through

informant,

testified

of events

of the

testimony at trial.
that

during

both

trips

Porcaro,
trips

to

Massachusetts, the defendant kept the package of cocaine with


him until they
testimony,

arrived back

there

sustainably

is

have found

no

in Maine.
question

that

the

Based on

that

the

defendant

Porcaro's
jury

possessed

distributed the cocaine in Maine during the October 25


and possessed
trip.

the cocaine

The defendant

first trip to

in Maine

during the

testified, however, that

could
and
trip,

November 15
during their

Massachusetts he handed the package of cocaine

to

Porcaro while they were still in Lawrence and Porcaro put

the

package under

his seat.

The defendant

testified that

during

the second trip he

handed the package

Porcaro

before they left

Lawrence, and Porcaro

the glove

compartment.

not possess

The

or distribute

of cocaine to
put it into

defendant contends that


the

cocaine in

Maine on

he did
either

trip.

He argues that if the jury believed him, there was no

proper

basis for venue in Maine

because the crimes occurred

in Massachusetts.

-1212

The
possession

defendant

with

courts found

relies

intent to

on

three

distribute

that venue was improper

cases

drugs

involving

in which

the

because the defendants

were prosecuted in districts in which they had neither actual


nor

constructive possession

States v.
______

Delgado, 914 F.2d


_______

the court found that


prosecution of

of the

contraband.

1062, 1064-65 (8th

venue was improper in North

the defendant

for possession with

In United
______
Cir. 1990),
Dakota for
intent to

distribute cocaine
cocaine

ever

because

neither the

entered North

Medina-Ramos, 834 F.2d


____________

Dakota.

defendant
In

nor

the

United States v.
______________

874, 877 (10th Cir. 1987),

the court

found that venue was improper in New Mexico where the cocaine
travelled without
train in

the defendants

California because

possession, the
possession,

locus of

to him." Id.
___

"the locus of

from the

the constructive

a crime committed

cannot be a place

been, personally or by a

who were removed

by constructive

where the defendant has never

person whose acts are

attributable

In United States v. Davis, 666 F.2d at 200, the


_____________
_____

court found that venue,

for a substantive possession charge,

was improper in Georgia because the defendants never actually


or

constructively possessed

Georgia.

the

drugs while

they were

in

None of these cases are apposite.


The

defendant's

reasoning

ignores

his

connection with the cocaine during both trips back


even according to his

own version of events.

-1313

close

to Maine,

The defendant

rode

back

to

Maine

with

circumstances which show


constructive

United States v.
______________

1991).

possesses

Although

drugs

is

the

in Maine.

exists

in

or joint
Illegal

1393, 1397

association

insufficient

car,

constructive, sole or

v. Vargas, 945 F.2d 426,


______

show

(1st

428 (1st

with someone

to

if the

who

possession,

defendant knows

the

are available and has the power and intent to exercise

dominion and control over them.


92-1427,

slip op. at 6-7

joint constructive
in

in

Wight, 968 F.2d


_____

mere

constructive possession
drugs

the cocaine

drugs "can be actual or

Cir. 1992); United States


_____________
Cir.

cocaine

that he had either actual

possession of

possession of
joint."

the

the bedroom

United States v. Garcia, No.


_____________
______

(Feb. 4, 1993,

1st Cir.) (finding

possession of a package

closet of

of cocaine found

two defendants).

"The typical

constructive possession case in the criminal law is where the


defendant and the

object are in

the same jurisdiction,

but

the defendant does not have the object in hand and indeed may
try to disclaim ownership

or possession."

Medina-Ramos, 834
____________

F.2d at 876.

Joint possession occurs when both the defendant

and

person

another

dominion and

share

control over

power

and

contraband.

intent

to

Wight, 968
_____

exercise
F.2d at

1398 (finding joint constructive possession of a weapon where


defendant was

a passenger in

the van, was in

charge of the

drug transaction, and the


in

weapon was accessible to defendant

the van); United States


_____________

v. Batista-Polanco, 927 F.2d 14,


_______________

-1414

18-19 (1st Cir. 1991) (finding


of heroin by defendant
heroin was
proven by

joint constructive possession

sitting at a table with

being packaged).

Constructive

others where

possession may be

direct or circumstantial evidence.

United States
_____________

v. Martinez, 922 F.2d 914, 923-24 (1st Cir. 1991).


________
The
constructive

district
and

joint

court

instructed

possession,

the

without

During their deliberations, the jury requested a

jury

on

objection.3
copy of the

indictment and a written clarification of the instructions on


possession, distribution,

and intent to

distribute.

____________________
3

The law
recognizes also different
kinds of possession.
A person may have
actual
possession
or
constructive
possession.
And possession may be sole
or possession may be joint.
Neither

After

proof of physical
proximity to
the
cocaine, nor the mere association with
someone who does control it is alone
enough
to
establish
actual
or
constructive possession.
A person who has
direct physical
control of something on or around his
person is then in actual possession of
it.
A person who is not in actual
possession, but who has both the power
and the intention to take control over
something
later
is in
constructive
possession of it.
If one person alone has actual or
constructive possession, possession is
sole, sole possession.
If two or more persons share actual or
constructive possession, possession is
joint. Joint possession.
Whenever
I
have
used the
word
possession in these instructions, I mean
actual as well as constructive, and joint
as well as sole possession.
Record at 463.
-1515

discussion with counsel, the trial judge sent the jury copies
of the

indictment

previously

read to

intent to distribute

and of
them,

and

instructions, which

on possession,

and joint and

The jury was thoroughly


joint

the

constructive

he

had

distribution

and

constructive possession.

instructed that possession


possession in

addition

includes
to

actual

possession.

The

the cocaine for

defendant does not


Porcaro and

him. Intent to distribute,

always intended to

crimes

continued

accessible to the
where it

into

the cocaine during


testimony.

crimes there.

defendant who had

The defendant remained

constructive possession
the first trip, when

purchased it, who

Maine based on

defendant's version

ended and distribution

trips,

the

possession of

The

knew

of

of

his own
events,

occurred, on

Porcaro dropped him off in Maine and he


The defendant was

not charged with distribution on the second trip.


on the

The

any time.

joint possession

left the cocaine in the car with Porcaro.

even based

to

cocaine remained

have retrieved it at

the trip back to


the

We disagree.

the

in constructive

Accepting

give it

of the cocaine to Porcaro

Maine because

was, and who could

bought

therefore, is not disputed.

defendant argues that distribution


in Massachusetts ended the

dispute that he

defendant's

defendant's

version of

continued

the cocaine with Porcaro

-1616

Therefore,

events for

joint

both

constructive

and his distribution

to Porcaro in

Maine, on

the first trip,

was sufficient

to

establish venue in Maine.


When proof of venue is
juror

could

have

found

instruction on venue is
States
______

v.

Martinez,
________

so clear that no reasonable

otherwise,

an

not plain error.


901

F.2d

374,

erroneous
See,
___

376

jury

e.g., United
____ ______

(4th Cir.

1990)

(holding that failure to instruct on venue was not reversible


error

where clear proof

States v. Moeckly, 769


______
_______

of venue existed);

see also United


___ ____ ______

F.2d 453, 461 (8th Cir.

denied, 476 U.S. 1104 (1986).


______

1985), cert.
_____

Although the district court's

instructions on venue included an overly broad description of


conduct

relevant for

determining venue,

the error

did not

result in a violation of the defendant's constitutional right


to venue in the district where the crimes were committed.
the jury believed Porcaro's testimony,
actual possession

the government proved

and distribution of the

cocaine in Maine.

Even if the jury believed the defendant's


delivered
evidence

the
at

cocaine
trial

to

Porcaro

established

If

in

testimony, that he
Massachusetts,

constructive

and/or

the
joint

possession

of the cocaine in Maine.

Based on either version

of events,

the jury

grounds to

venue.
result

We hold
in

had sufficient

that

the erroneous

miscarriage

of

justice

find proper

instructions
in

this

did not

case,

and

therefore, did not constitute plain error.

-1717

B.
B.

Ineffective Assistance of Counsel


Ineffective Assistance of Counsel
_________________________________
The

additional
counsel

defendant

ground that

due

to his

During

defense.

of the

entrapment
counsel

notified

the

an entrapment

defendant,

an entrapment

as a

on

assistance of

could be

defense unless

otherwise.

that he

the assumption

Defense

raise the entrapment defense

of ineffective

defense.

the prosecutor

was relying on

proceeded

court

of

pursue an

when pressed, responded

be used

the

argues that the facts and

support
of the

to

with the defendant before he

then

would not

apparently did not


issue

case

on

assistance

counsel's failure

Defense counsel,

would have to consult

conviction

lacked effective

defense counsel

The court

his

The defendant

cross-examination

asked whether

sure.

he

trial

entrapment defense.
circumstances

appeals

counsel was

that

defense
counsel

again.

The

not raised

before the trial court.


The general rule is
of

ineffective assistance

time on direct

appeal.

587, 590 (1st Cir.


16, 19 (1st
783,

785

of counsel

raised for

United States v.
_____________

Cir.

Roccio, 981
______

United States v.
_____________
1991)

("In

a claim
the first

1992); United States v. McGill,


_____________
______

Cir. 1991);
(1st

that we will not hear

952 F.2d

Austin, 948
______

the

vast

F.2d

majority

F.2d
of

ineffective assistance of counsel claims sought to be brought


on direct appeal after

completion of a trial on

the merits,

no record

the appellate

examine

in

claim

of

exists

for

court

to

-1818

assessing

the

validity

of

the

claim.").

ineffective assistance of counsel which involves


fully

developed

determination
direct appeal.

of

in

the

trial record,

the claim,
United States
_____________

is

but

not ripe

matters not

necessary
for

v. Sutherland, 929
__________

for

decision on
F.2d 765,

774 (1st Cir.), cert. denied sub nom., Fini v. United States,
_____ ______ ___ ____ ____
_____________
112 S. Ct. 83 (1991);
302,

cf. United States v. Natanel, 938 F.2d


___ _____________
_______

309 (1st Cir. 1991)

(finding an exception

to the rule

"where the critical facts [were] not genuinely in dispute and


the

record [was]

consideration

of

sufficiently
the

developed to

ineffective

allow reasoned

assistance

claim"), cert denied, 112 S. Ct. 986 (1992).


____ ______

of

counsel

A fact-specific

claim of ineffective assistance of counsel is not appropriate


for review on direct appeal.

United States v. Hunnewell, 891


_____________
_________

F.2d 955, 956 (1st Cir. 1989).

Moreover, the trial judge has

appraise

better

perspective

representation in

"to

the district court

defense

counsel's

proceedings."

United
______

States v. Sanchez, 917 F.2d 607, 612-13 (1st Cir. 1990), cert
______
_______
____
denied, 111 S. Ct. 1625 (1991).
______
The Sixth Amendment right
prosecution

includes

assistance of

counsel.

668, 686-87 (1984).


assistance of
that

counsel

the

To

right

to counsel in a criminal
to

reasonably

Strickland v. Washington,
__________
__________
prevail on a

claim of

counsel, "a criminal defendant


fell

effective

short

of

-1919

the

466 U.S.

ineffective

must show both

applicable

performance

standard and that prejudice resulted."


309.

When applying

Natanel, 938 F.2d at


_______

the performance test,

we examine

what

counsel "knew, or should have known, at the time his tactical


choices were made and implemented."
part

of the

test,

a defendant

Id.
___

"must

To prove the second


show not

only

that

counsel was deficient but also that 'counsel's errors were so


serious as to deprive the defendant of a fair trial, a
whose result

is

reliable.'"

Sutherland, 929
__________

trial

F.2d at

774

(quoting Strickland, 466 U.S. at 687).


__________
Defense

counsel's failure to pursue the entrapment

defense is not sufficiently developed in the trial record for


us to

evaluate effectiveness

determine from the record,


a tactical
the

States
______

v.

Because the

Tabares, 951
_______

pursue entrapment, and


issue instead.

F.2d

405,

409

entrapment defense was not

the government

We cannot

for example, whether counsel made

decision not to

defense on the venue

of representation.

indicated that

it

to focus

See, e.g., United


___ ____ ______
(1st

Cir.

1991).

fully developed, and

would present

additional

evidence to counter the defense, we also cannot determine the


likelihood
defense

of prejudice

of

acknowledges
ineffective
agree,

resulting from

entrapment.
that

Defendant's

factual

assistance of

and decline

development
counsel might

to decide

this issue

failure to
brief
of

the

use the

on

appeal

claim

be necessary.
leaving it

of
We

to be

-2020

addressed,

if defendant

pursuant to 28 U.S.C.

chooses, through
2255.

Affirmed.
Affirmed.
_________
Dubitante follows.
Dubitante follows.
_________

collateral attack

-2121

SELYA, Circuit Judge

(dubitante).

Although

concurring

SELYA, Circuit Judge


_____________
in

(dubitante).

the court's judgment,

serious

reservations

charge on the issue


error at
what

all.

decides that
at 20.

pursuit
which,

as

to

whether

of

Be that

plain nor

as it may, the

Given that
would

because I have
district judge's

whole, constituted
court, after finding

that the perceived error

prejudicial, see
___

the defendant's

my point

the

of venue, taken as a

it thinks is error, concludes

was neither

ante
____

I write separately

ante at 16-17,
____

conviction should stand.

unexceptionable outcome,
be a

purely

and
See
___

further

academic exercise

on balance, is probably best foregone.

After all, as

the Roman maxim has it, si finis bonus est, totum bonum exit.
____________________________________

-2222