                                    United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 92-5571.

                           UNITED STATES of America, Plaintiff-Appellee,

                                                    v.

                               Luis S. SANTIAGO, Defendant-Appellant.

                                             June 21, 1993.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, DUHÉ, Circuit Judge, and BELEW,* District Judge.

          POLITZ, Chief Judge:

          Asserting a Brady1 violation, a sentencing error and ineffective assistance of counsel, Luis S.

Santiago appeals pro se the denial of his motion to vacate sentence under 28 U.S.C. § 2255. For the

reasons assigned we affirm in part and vacate and remand in part.

                                            BACKGROUND

          DEA agents met with Francisco Altamirano at a Denny's restaurant in San Antonio where

Altamirano was to deliver 15 o unces of cocaine. Santiago was in a nearby booth, within earshot.

Altamirano told the agents he had seven ounces and after they paid for those, he could get the

remaining eight ounces from his source a few blocks away.

          An agent displayed the cash to Altamirano and then returned it to his auto; Santiago followed

him out of the restaurant and appeared to be co nducting counter-surveillance as he walked to the

parking lot of a restaurant located about two blocks distant. He there entered a blue Chevy Malibu

occupied by two other individuals. Altamirano then produced seven ounces of cocaine for the agents

and was immediately arrested. On signal, Santiago and the two individuals in the Malibu, Walter and

Sonia Albrecht, also were arrested. Santiago eventually admitted that he owned a nearby gold Ford

Thunderbird in the parking lot. The agents looked through the window of the Thunderbird and saw

   *
       District Judge of the Northern District of Texas, sitting by designation.
   1
       Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
a bag which Santiago had carried as he left Denny's. They obtained a search warrant, searched the

car, and found eight ounces of cocaine in two containers. Sonia Albrecht's fingerprints were on one

of the containers. Walter Albrecht's prints were found on the paper bag containing the first seven

ounces. In addition, the search revealed handwritten records of drug transactions, some of which

were identified at trial as being in Santiago's handwriting.

          Santiago was convicted by a jury of conspiracy to possess with intent to distribute cocaine

and possession with intent to distribute cocaine. At sentencing, Santiago's offense level was increased

for his leadership role in the offense. He was sentenced to concurrent terms of 84 months

incarceration and five years supervised released on the two counts. On appeal we affirmed his

conviction and sentence. Proceeding pro se he filed the instant section 2255 motion to vacate

sentence which was denied by the district court. From that order, he timely appeals.

                                              ANALYSIS

The Brady Violation

           Santiago claims that, in violation of Brady v. Maryland,2 the government failed to reveal the

existence of an immunity agreement with the Albrechts or otherwise failed to reveal that they could

testify that they owned the cocaine found in his car. The Albrechts were not called to testify at trial.

To establish a Brady violation, the defendant must establish: (1) evidence was suppressed, (2) the

evidence was favorable to the defense, and (3) the evidence was material to guilt or punishment.3

          The district court dismissed this claim finding that given his involvement with the Albrechts,

the fact that they were guilty of a crime and granted immunity would only inculpate Santiago. We

agree. He was indicted for conspiring with Altamirano and others; the Albrechts reasonably could

be considered those others. In addition, Santiago failed to subpoena the Albrechts despite the

opportunity to do so. Finally, Santiago has not established the exculpatory nature of the allegedly

suppressed evidence—his allegations are mere speculation and co njecture. He has failed to

demonstrate a Brady violation.

   2
       373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
   3
       United States v. Ellender, 947 F.2d 748 (5th Cir.1991).
Sentencing—Leadership Role

           Santiago challenges the increase in the computation of his guideline offense level for his

leadership role, advancing two grounds: (1) the increase was based upon an incorrect interpretation

of the requirements for such an adjustment, and (2) it was made on the basis of unreliable evidence.

His first challenge was raised and disposed of on direct appeal; we will not reconsider that issue on

a section 2255 motion.4 His second challenge invokes the due process requirement that a defendant

be sentenced on the basis of evidence having some minimal indicia of reliability and that the

information bear some rational relationship to the court's decision to impose a particular sentence.5

The burden is on the defendant to demonstrate that the information relied on at sentencing is

materially untrue.6

          Santiago alleges that his coconspirator, Altamirano, lied to the probation officer when stating

that Santiago was his cocaine source, and that this lie caused the increase in the offense level. The

record contains sufficient additional evidence, however, supporting the statement and the increase.

For example, we noted in reviewing Santiago's direct appeal:

          [E]ight ounces of cocaine were seized from Santiago's car—the exact amount that Altamirano
          had represented he would retrieve from his source and deliver to the undercover agents in
          order to consummate the two-part transaction. Moreover, the location of Santiago and his
          car were consistent with Altamirano's representations as to the location of his source.

Other evidence of his leadership role included the bag in his car containing records written in

Santiago's handwriting detailing substantial drug transactions.

Ineffective Assistance

Appellate Counsel

           Santiago also alleges that he received ineffective assistance of appellate counsel because on

the direct appeal his counsel refused to introduce certain affidavits as new evidence. These are the

   4
    United States v. Kalish, 780 F.2d 506 (5th Cir.), cert. denied, 476 U.S. 1118, 106 S.Ct.
1977, 90 L.Ed.2d 660 (1986). Santiago also contends that the trial court improperly relied on
Altamirano's hearsay statements and that he was deprived of his confrontation rights regarding
these statements. This issue was also raised on direct appeal and will not be considered.
   5
       United States v. Fulbright, 804 F.2d 847 (5th Cir.1986).
   6
       United States v. Flores, 875 F.2d 1110 (5th Cir.1989).
same affidavits which Santiago presented with his section 2255 motion, asserting that Altamirano lied

to the probation officer.       An ineffective assistance claim requires proof both that counsel's

representation was deficient and that the defendant was prejudiced by the deficient performance.7

          Santiago's counsel was not deficient; Santiago had no right to produce new evidence on

appeal. We have held, "[w]e will not consider on appeal, however, evidence not produced at the

sentencing hearing and arguments not raised in the trial court."8 In addition, Santiago cannot

demonstrate prejudice, i.e., that there is a reasonable probability that but for counsel's errors, the

result would have been different.9         As noted above, there was ample evidence, apart from

Altamirano's testimony, to support the offense level increase.

Trial Counsel's Conflict of Interest

           Santiago raises several deficiencies of trial counsel for the first time on appeal, one of which

gives us serious pause. Santiago avers that his trial counsel, without his knowledge, also represented

the Albrechts at all relevant times. He states that he learned of the conflict for the first time in June

1992, after the district court had dismissed his section 2255 motion and it was pending appeal. This

raises serious concerns, given the apparent plethora of evidence connecting the Albrechts with the

drugs and the fact that they were never prosecuted for this offense.

           "[W]hen a new factual or legal issue is raised for the first time on appeal, plain error occurs
                                                                             10
where our failure to consider the question result s in "manifest injustice.' " This claim alleging

conflict of interest is not sufficiently developed in the record before us to permit an adequate review

of its merits. We find that manifest injustice might result if we did not remand for an evidentiary

hearing on whether Santiago's trial counsel provided ineffective assistance of counsel because he was




   7
       Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
   8
       U.S. v. Bounds, 943 F.2d 541 (5th Cir.1991).
   9
       Strickland.
   10
    United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2032,
114 L.Ed.2d 117 (1991).
operating under a conflict of interest.11 The district court is urged to appoint counsel for Santiago

for the proceedings on remand.

        For the foregoing reasons, we AFFIRM IN PART and VACATE AND REMAND IN PART.




   11
     Trial counsel's other deficiencies alleged by Santiago include: (1) failure to object to and
request limiting instructions as to statements made by Altamirano; and (2) failure to conduct an
adequate investigation regarding the Albrechts, and failure to subpoena them. On remand these
claims need only be considered to the extent that they are relevant to the inquiry regarding the
conflict of interest.
