                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 1 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

               v.                                      No. 98-2203
                                                 (D.C. No. CR-97-117-JC)
 RUBY PRADO MANRIQUEZ-                                  (D. N.M.)
 RODRIGUEZ, also known as Ruby
 Rodriguez,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before PORFILIO, HENRY, and BRISCOE, Circuit Judges.


      Defendant Ruby Prado Manriquez-Rodriguez was convicted of one count of

possession with intent to distribute more than one kilogram of heroin, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of importing more than

one kilogram of heroin, in violation of 21 U.S.C. § 952(a), 21 U.S.C. § 960(a)(1),

and 18 U.S.C. § 2. She appeals the district court’s denial of her motion to vacate



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
her conviction based on ineffective assistance of counsel and prosecutorial

misconduct. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                          I.

      On January 22, 1997, defendant entered the United States from Mexico at

the Columbus, New Mexico, port of entry, driving a Toyota pickup truck

registered and licensed in her name. Defendant exhibited significant nervousness

in response to questioning by a federal immigration inspector and was directed to

drive her pickup to a secondary inspection area. A dog trained in narcotics

detection alerted near the driver’s side front tire of the pickup. When the pickup

hood was raised, customs agents noticed a strong odor of vinegar, suggesting to

them the presence of heroin. An examination of the engine compartment revealed

the bolts that held the air intake manifold in place had been scratched and there

was new glue on the engine. Agents dismantled the engine and found a fiberglass

container holding approximately ten pounds of heroin. A subsequent search of

the passenger compartment of the pickup disclosed,   inter alia , (1) an airline ticket

stub for travel from San Francisco, California, to Morelia, Michoacan, Mexico, on

January 18, 1997; (2) a Mexican immigration document dated January 19, 1997,

reflecting defendant’s entry into Mexico via airplane at the Morelia airport; (3) a

road map with a blue line drawn along the route from Morelia to Columbus, New

Mexico; and (4) title and registration papers for the pickup in defendant’s name.


                                          -2-
      At trial, defendant was the sole defense witness. She testified she was

unaware drugs were hidden in the engine compartment of her pickup. She

acknowledged two prior convictions for drug possession, but insisted she was

essentially an innocent bystander to her husband’s drug transactions. She claimed

the pickup was registered to her merely as a convenience to her husband’s

nephew, Antonio Rodriguez, because he did not have a social security card.

Defendant stated she had not driven the pickup except on the day of her arrest.

      Defendant claimed she had flown to Morelia from her home in California

on January 18, 1997, to pick up the young son of an unidentified female relative

of her husband and enroll him in school in California. Defendant stated she

picked up the child on January 19 and they drove to California with the child’s

stepfather and her husband’s niece, arriving in California on January 21. As soon

as defendant arrived in California, Antonio Rodriguez asked her to drive with him

to Palomas, Chihuahua, Mexico, and then drive “his” truck back to California.

She agreed and they left immediately. They spent the night in a motel and

defendant started home the next morning. She claimed she was nervous at the

port of entry because her California driver’s license had been suspended and she

was on probation.

      In closing arguments, the prosecutor underscored the untrustworthiness of

defendant’s testimony and emphasized defendant had offered no evidence that her


                                        -3-
license was actually suspended. Countering defense counsel’s suggestion that no

proof had been presented as to when defendant first crossed the border into

Mexico with Antonio Rodriguez, the prosecutor pointed out:

      [Defense counsel] says if the truck had entered Mexico at an earlier
      time there would be a record of it. Well, he didn’t ask a single
      question of any of these agents about that, and he’s got the subpoena
      power just like I do. If he wanted you to see the full record of that
      truck, you’re mighty right he would have had it here for you.

Record IV at 249. After thirty minutes of deliberation, the jury convicted

defendant of both counts.

      Defendant was initially represented by appointed counsel, but later retained

Gary Hill as lead trial counsel. At her sentencing hearing, defendant argued

inadequate legal representation by Hill. The court postponed the hearing and

afforded defendant the opportunity to secure new counsel. Defendant retained

Ramon Acosta, and Hill and local counsel were permitted to withdraw.

      Almost six months after the jury’s verdict, defendant, through Acosta, filed

a “Motion to Vacate Jury Verdict” on the sole ground of ineffective assistance of

counsel. At the evidentiary hearing, defendant called four witnesses: (1) Hill; (2)

Hill’s investigator; (3) defendant’s father; and (4) defendant. At the conclusion

of the hearing, the court held Hill’s representation was not ineffective and denied

defendant’s motion. Acosta later moved to withdraw based on “irreconcilable

differences” with defendant. The court granted the motion and ordered that a new


                                         -4-
attorney be appointed under the Criminal Justice Act. Defendant was

subsequently sentenced to 240 months’ imprisonment.

                                             II.

       Defendant argues on appeal her right to a fair trial was violated as a result

of her trial counsel’s ineffective assistance and prosecutorial misconduct during

closing arguments. We address the issues in turn, but first highlight a

jurisdictional twist to the ineffective assistance of counsel claim.

                Jurisdiction-ineffective assistance of counsel claim

       Ineffective assistance of counsel claims generally must be brought in a

collateral proceeding rather than on direct appeal.     United States v. Gallegos , 108

F.3d 1272, 1279 (10th Cir. 1997). This rule encourages the development of a

factual record, thereby illuminating the extent of trial counsel’s alleged

deficiencies and the possible prejudicial impact to defendant flowing therefrom.

Id. at 1280. By allowing such claims to be addressed in the first instance by the

district court, which is familiar with the proceedings and has observed counsel’s

performance firsthand, the rule also facilitates the isolation of relevant issues and

heightens the effectiveness of appellate review.      See United States v. Galloway ,

56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). This rule, however, is not

absolute. If the factual underpinnings have been adequately developed in the

district court, we will entertain ineffective assistance of counsel issues on direct


                                            -5-
appeal. United States v. Carter , 130 F.3d 1432, 1442 (10th Cir. 1997).

      Defendant attacked the effectiveness of her trial counsel’s assistance in her

“Motion to Vacate Jury Verdict” nearly six months after the jury had returned its

guilty verdicts. Notwithstanding the title of the motion, defendant was requesting

a new trial. Because the motion was filed more than seven days after the verdict

and no extension had been granted, the court had no jurisdiction to entertain the

motion. See United States v. Miller , 869 F.2d 1418, 1420 (10th Cir. 1989) (“The

seven-day period for filing a motion for a new trial, based upon any ground other

than newly discovered evidence, is a jurisdictional limit on the district court’s

power to act.”). The court, nevertheless, conducted an evidentiary hearing, made

factual findings, and denied the motion on the merits.

      Ordinarily, the fact that the district court conducted a hearing and invited

defendant to offer evidence in support of her theory would suggest the record is

sufficient for us to address the ineffective assistance of counsel claim on direct

appeal. See United States v. Kramer , 168 F.3d 1196, 1200 n.2 (10th Cir. 1999);

Carter , 130 F.3d at 1442 . The problem here is that, at the time the court heard

defendant’s motion, it had no jurisdiction to grant the requested relief. Although

neither side raised this issue, we conclude as a preliminary matter that we can rely

on the court’s findings and evaluate defendant’s ineffective assistance of counsel

claim on direct appeal.


                                         -6-
       It is critical to note we are not reviewing the court’s denial of defendant’s

motion. Rather, we are examining the ineffective assistance of counsel claim as

if it were presented to us in the first instance. Our task is to determine if the

factual predicates for the claim have been sufficiently developed in the district

court. Although the court had no power to grant defendant relief, it had inherent

authority to conduct a hearing and make findings on the issue. Indeed, in

evaluating such claims in the past, we have relied on factual findings made in

conjunction with hearings for which ineffective assistance of counsel represents

an inadequate basis for relief.    See Carter , 130 F.3d at 1442 (testimony on issue at

defendant’s sentencing hearing). We conclude we can rely on the district court’s

findings following the evidentiary hearing inquiring into defendant’s ineffective

assistance of counsel claims.

                           Ineffective assistance of counsel

       “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.”    Strickland v.

Washington , 466 U.S. 668, 686 (1984). To prevail on this claim, defendant must

demonstrate (1) counsel’s performance was deficient, i.e., it fell below an

objective standard of reasonableness, and (2) the deficient performance

prejudiced defendant’s defense, i.e., there is a reasonable probability that, but for


                                             -7-
counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. at 687-88, 694.

       Lack of communication.     Defendant contends Hill failed to adequately

communicate with her prior to and during trial. At the evidentiary hearing on her

motion, defendant testified Hill met with her for a total of twenty minutes

between the time his representation began and her trial commenced. This

allegation was directly refuted, however, by the testimony of Hill and his

investigator. Hill insisted that prior to trial he spent approximately ten hours in

multiple visits with defendant, and that local counsel Thomas Wright met

separately with defendant on two other occasions. The investigator testified he

met with defendant for four hours over the course of three visits. The court found

defendant’s testimony untrustworthy and concluded Hill and his associates had

sufficient communication with defendant prior to trial.   1
                                                              Such credibility

determinations must be treated with great deference and we see no clear error in

the court’s findings.   See Anderson v. City of Bessemer City     , 470 U.S. 564, 575

(1985) (trial court’s decision to credit testimony of one individual over another is

“virtually never” clear error).



       1
         We decline to consider defendant’s suggestion, raised for the first time at
oral argument, that counsel has a duty to maintain time sheets of all time spent
with clients. See United States v. Dewitt , 946 F.2d 1497, 1499 (10th Cir. 1991)
(issues not raised in district court will not be heard on appeal).

                                            -8-
      Lack of investigation . Defendant also contends Hill failed to investigate

possible sources of evidence corroborating her testimony. In assessing this

matter, we must

      keep in mind that counsel’s function, as elaborated in prevailing
      professional norms, is to make the adversarial testing process work in
      the particular case. Because that testing process generally will not
      function properly unless defense counsel has done some investigation
      into the prosecution’s case and into various defense strategies, [the
      Supreme Court has] noted that counsel has a duty to make reasonable
      investigations or to make a reasonable decision that makes particular
      investigations unnecessary. But, [the Court has] observed, a
      particular decision not to investigate must be directly assessed for
      reasonableness in all the circumstances, applying a heavy measure of
      deference to counsel’s judgments.

Kimmelman v. Morrison , 477 U.S. 365, 384 (1986) (internal quotations and

citations omitted). Defendant’s claim is plagued by several problems. She was

largely uncooperative with Hill and his associates during visits and provided them

with little assistance. For example, Hill solicited information as to the

whereabouts of Antonio Rodriguez, but defendant stated he was in Mexico and

could not be reached. Defendant also failed to give Hill the names of any

relatives who could verify her story. She refused to speak to the investigator on

his visits to the detention center. Finally, she acknowledged she did not provide

Hill and his associates with all pertinent information.

            The reasonableness of counsel’s actions may be determined or
      substantially influenced by the defendant’s own statements or
      actions. Counsel’s actions are usually based, quite properly, on
      informed strategic choices made by the defendant and on information

                                         -9-
      supplied by the defendant. In particular, what investigation decisions
      are reasonable depends critically on such information.

Strickland , 466 U.S. at 691. Defendant cannot deprive her counsel of the tools

necessary to carry out a reasonable investigation and later claim prejudice when

she is convicted.

      Moreover, with the exception of the two matters discussed below,

defendant has not identified any exculpatory or impeaching evidence that further

investigation would have yielded. To satisfy the prejudice prong of the      Strickland

test for ineffective assistance of counsel, a defendant must specifically show what

beneficial evidence an “adequate” investigation would have produced.       Hendricks

v. Calderon , 70 F.3d 1032, 1042 (9th Cir. 1995);    United States v. Ashimi , 932

F.2d 643, 649 (7th Cir. 1991). Simply speculating that investigation might have

resulted in something useful will not suffice.

      Defendant suggests the California Department of Motor Vehicles could

have supported her suspended license theory, and her father could have verified

her travel plans. She maintains Hill’s failure to contact the motor vehicle

department or her father amounts to ineffective assistance of counsel. We

disagree. Other than the self-serving statements of defendant and her father, there

is no evidence in the record that defendant’s license was in fact suspended at the

time she was stopped. Even if her license was suspended, disclosure of that fact

to the jury would have had little or no effect on the outcome of the case.

                                          -10-
Defendant’s testimony regarding her itinerary was nothing short of bizarre and it

would have taken more than a suspended license to convince a reasonable jury

that defendant was unaware of the heroin hidden in the engine compartment of

her pickup. See United States v. Prows , 118 F.3d 686, 693 (10th Cir. 1997)

(overwhelming evidence of defendant’s guilt rendered attorney’s failure to

investigate potentially impeaching materials on government witness

nonprejudicial).

      Defendant’s father’s proposed testimony was that defendant went to

Mexico to “pick up her car.” Evidentiary Hearing Tr. at 26-27. Such testimony

would have been consistent with, and could have bolstered, the government’s

theory that defendant flew to Morelia on January 18, 1997, to retrieve her pickup,

which then had heroin hidden inside its engine compartment. Moreover, as the

government correctly notes, nowhere in his proposed testimony does defendant’s

father indicate defendant invited family members to accompany her to Palomas.

Indeed, she would have had no time to extend such invitations inasmuch as she

claims to have departed for Palomas immediately upon her purported return to

California on January 21. It is far more likely that, if travel invitations were

extended to relatives, defendant did so in conjunction with her initial trip to

Morelia on January 18. Defendant has failed to show how Hill’s alleged failure

to investigate prejudiced her case.


                                         -11-
       Declining to interview government witnesses        . In a closely related

argument, defendant maintains Hill failed to adequately prepare for cross-

examination of government witnesses by declining to interview them prior to trial.

This contention has no merit. Hill testified he had the witnesses’ statements and

they were all very basic in nature. Further, not only did the witnesses have no

obligation to speak with Hill, but tipping them off as to his likely lines of cross-

examination would have been counterproductive. Defendant also challenges

Hill’s failure to discredit government witnesses by emphasizing the frequent

employment of innocent “mules” by drug traffickers. We evaluate ineffective

assistance of counsel claims from an attorney’s perspective         at the time of trial and

not from the vantage point provided by hindsight.        Strickland , 466 U.S. at 689. In

any event, Hill did elicit testimony regarding drug “mules” from a customs agent

and focused on that testimony in closing arguments.

               Prosecutorial misconduct during closing arguments

       Defendant argues the prosecutor improperly commented during closing

arguments on defendant’s failure to call certain witnesses at trial. As defendant

did not object to these statements at trial, we review only for plain error.        United

States v. Herndon , 982 F.2d 1411, 1414-15 (10th Cir. 1992). “Plain error is

fundamental error, something so basic, so prejudicial, so lacking in its elements

that justice cannot have been done.”       United States v. Sides , 944 F.2d 1554, 1561


                                             -12-
(10th Cir. 1991) (citations and internal quotations omitted). The plain error

doctrine is to be invoked “only sparingly,”      United States v. Denogean , 79 F.3d

1010, 1013 (10th Cir. 1996), and only if “the error seriously affect[ed] the

fairness, integrity, or public reputation of judicial proceedings.”      Johnson v.

United States , 520 U.S. 461, 466-67 (1997).

       In closing arguments, the prosecutor opined that defendant’s claim she was

nervous at the port of entry because her license was suspended had not been

corroborated with any evidence of the license suspension. Responding to Hill’s

suggestion that the government had presented no evidence of when defendant had

crossed the border into Mexico, the prosecutor further argued defendant could

have subpoenaed relevant records and would have done so if she thought the

information would be beneficial to her. The prosecutor’s arguments were not

improper. Although a prosecutor may not comment on a defendant’s decision to

refrain from testifying, he is otherwise free to comment on the defendant’s failure

to call certain witnesses or present certain testimony.     2
                                                                United States v. Gomez-

Olivas , 897 F.2d 500, 503 (10th Cir. 1990)      . Moreover, we accord prosecutors

“considerable latitude in responding to defense arguments, commenting on the



       2
          If the government knows a witness would invoke the Fifth Amendment
privilege if called to testify, the government cannot remark upon the defendant’s
failure to call such a witness.   United States v. Miller , 460 F.2d 582, 588 (10th
Cir. 1972). Such a scenario is not present here.

                                              -13-
evidence, and arguing inferences therefrom.”         Id. Lack of corroboration, in

particular, is a permissible inference to argue.      Id. Nor did the prosecutor’s

comments shift the burden of proof. The court clearly instructed the jury that the

arguments of counsel are not evidence, that the prosecution bears the burden of

proof, and that defendant has no obligation to offer any evidence or prove her

innocence. The prosecutor’s closing arguments did not deprive defendant of a

fair trial.

       AFFIRMED.

                                                    Entered for the Court

                                                    Mary Beck Briscoe
                                                    Circuit Judge




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