                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-2679
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                   EDWIN GARCIA,
                                       Appellant
                                    _____________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                        (D.C. Criminal No. 3-05-cr-00004-001)
                       District Judge: Honorable Edwin M. Kosik
                                     _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 4, 2013

             Before: RENDELL, AMBRO and VANASKIE, Circuit Judges

                            (Opinion Filed: March 19, 2013)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

RENDELL, Circuit Judge.

      On April 28, 2011, Appellant Edwin Garcia was convicted after a bench trial of

Mail Fraud, in violation of 18 U.S.C. § 1341, False Statements Generally, in violation of

18 U.S.C. § 1001, and False Statements in Order to Obtain Federal Employees’

Compensation, in violation of 18 U.S.C. § 1920. On appeal, Garcia argues that: (1) he
had ineffective assistance of counsel; (2) the District Court abused its discretion by

denying his motion for a new trial; and (3) the District Court erred in finding him guilty,

as the evidence was insufficient to support his convictions. For the reasons stated below,

this Court will not review Garcia’s ineffective assistance of counsel claim and will affirm

the District Court’s denial of the motion for a new trial and judgment of conviction.

                                             I.

       We write principally for the benefit of the parties and therefore recount only those

facts essential to our review.

       On May 28, 2008, a grand jury returned an eight-count indictment against Garcia,

a former employee of the United States Postal Service, charging him with numerous

counts of mail fraud and false statements in connection with a fraudulent scheme to

collect federal workers’ compensation benefits. Garcia, represented by a court-appointed

attorney, waived his right to a jury trial and proceeded to a non-jury trial before Senior

District Court Judge Edwin M. Kosik. After a two-day trial, the District Court found

Garcia guilty of Mail Fraud, False Statements Generally, and False Statements in Order

to Obtain Federal Employees’ Compensation. The District Court found Garcia not guilty

on the remaining counts. It subsequently sentenced Garcia to two years of probation on

all three counts of conviction to run concurrently, to be followed by a three-year term of

supervised release. Additionally, Garcia was ordered to pay $36,399.13 in restitution and

a $300 special assessment fee.

       Following the trial, Garcia’s court-appointed attorney withdrew as counsel and a

new attorney entered an appearance on his behalf. Garcia’s new attorney filed a motion

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for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The

District Court dismissed the motion as untimely because Garcia offered no reason for the

delay. Thereafter, Garcia’s second counsel withdrew and current counsel for Garcia

entered his appearance, again filing a motion for a new trial, which was denied. This

appeal followed.

       Garcia argues that the District Court erred in denying his motion for a new trial

based upon ineffective assistance of counsel; that this Court should review his ineffective

assistance of counsel claim; that his constitutional rights were violated due to his

ineffective counsel; and that the government did not provide sufficient evidence at trial to

meet its burden of proof beyond a reasonable doubt. Garcia seeks a new trial, or

alternatively, that this Court review the merits of his motion.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

                                             II.

a. Ineffective Assistance of Counsel

       Garcia first argues that his court-appointed attorney provided ineffective

assistance of counsel, which violated his Sixth Amendment rights, when counsel failed to

prepare a proper defense for Garcia and failed to file Garcia’s post-trial motions.

       It is well-settled that this Court ordinarily does not review claims of ineffective

assistance of counsel on direct appeal. United States v. Thornton, 327 F.3d 268, 271 (3d

Cir. 2003). The proper avenue for ineffective assistance claims is through a collateral

proceeding pursuant to 28 U.S.C. § 2255, where the record for such claims may be

                                              3
properly developed. Massaro v. United States, 538 U.S. 500, 504 (2003); United States v.

Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). There is a narrow exception to the rule

“[w]here the record is sufficient to allow determination of ineffective assistance of

counsel.” Headley, 923 F.2d at 1083. However, “[w]here a claim of ineffective

assistance of counsel is based on attorney incompetence, the lack of a fully developed

record often precludes a comprehensive inquiry into the elements of strategy or tactics

that may have entered into defense counsel’s challenged decision.” United States v.

McLaughlin, 386 F.3d 547, 555 (3d Cir. 2004). As such, the “proper avenue for pursuing

such a claim is through a collateral proceeding.” United States v. Theodoropoulos, 866

F.2d 587, 598 (3d Cir. 1989).

       Garcia claims that counsel was ineffective because he failed to protect Garcia’s

interests, conduct discovery, prepare for trial, and timely file his motion for a new trial or

seek additional time to file the motion. However, the record currently before the Court is

insufficient for us to review the reasons for counsel’s actions or inaction. The record

indicates that the government provided discovery to Garcia’s trial counsel and that both

Garcia and his trial counsel appeared at the United States Attorney’s Office on multiple

occasions to review the records. Furthermore, we do note that Garcia was acquitted on

five of the eight charges against him. Similarly, Garcia’s claims of ineffectiveness

regarding post-trial counsel are incapable of resolution based on the present record before

this Court.

       Because the record is silent as to why Garcia’s trial counsel defended the case as

he did, we have “no way of knowing whether a seemingly unusual or misguided action

                                              4
by counsel had a sound strategic motive or was taken because the counsel’s alternatives

were even worse.” Massaro, 538 U.S. at 5005. Thus, because the record cannot justify

an exception to this Court’s general rule that claims of ineffective assistance of counsel

should be pursued in a collateral proceeding, we will deny Garcia’s claim of ineffective

assistance of counsel.

b. Rule 33 Motion

       Garcia additionally argues that the District Court erred in denying his Rule 33

motion for a new trial as untimely and not reaching the merits of the motion. FED. R.

CRIM. P. 33. We review a district court’s denial of a new trial for abuse of discretion.

Government of Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3d Cir. 1985). Garcia does

not contest the untimeliness of the motion, but rather argues that the District Court should

have used its discretion to grant, or at a minimum address, the merits of the motion

because the filing was untimely due to ineffective assistance of counsel. While Garcia

may be able to demonstrate counsel’s ineffectiveness in a collateral proceeding, that does

not provide a basis for us to find that the District Court abused its discretion in denying a

new trial. See United States v. Chorin, 322 F.3d 274, 282 n.4 (3d Cir. 2003) (citing

United States v. DeRewal, 10 F.3d 100, 104-05 (3d Cir. 1993)) (“[T]his Court has

expressed a preference that ineffective assistance of trial counsel claims be brought as

collateral challenges under 28 U.S.C. § 2255, rather than as [Rule 33] motions for new

trials or on direct appeal.”).

       Garcia offers no explanation other than ineffective assistance of counsel for the

untimeliness of the motion. As noted above, if Garcia was prejudiced by ineffective

                                              5
assistance of counsel he has a “ready remedy,” whereby he “may mount a collateral

challenge by a federal habeas petition as allowed by 28 U.S.C. § 2255. That mechanism,

rather than a new trial, seems best to accommodate the interests in finality and fairness

with respect to ineffective assistance of counsel claims.” United States v. Ugalde, 861

F.2d 802, 809 (5th Cir. 1988).

       In any event, we do not find that the District Court abused its discretion in denying

Garcia’s motion for a new trial, and therefore will affirm the District Court’s denial of

Garcia’s motion.

c. Constitutional Rights

       Garcia next argues that his Sixth Amendment rights were violated when his

attorneys failed to properly represent him and preserve his rights. Garcia’s Sixth

Amendment claims essentially assert ineffective assistance of counsel and, as discussed

above, the “proper avenue for pursuing such a claim is through a collateral proceeding.”

Theodoropoulos, 866 F.2d at 598. We will therefore deny his Sixth Amendment claims.

d. Due Process

       Garcia also asserts a violation of his due process rights due to the ineffectiveness

of his attorney. Again, Garcia’s procedural argument merely disguises an ineffective

assistance of counsel claim. For the reasons stated above, we will deny appellant’s claim

as he has a “ready remedy,” which is to “mount a collateral challenge” instead of

bringing his claim on direct appeal. Ugalde, 861 F.2d at 809.

e. Sufficiency of the Evidence



                                             6
       Finally, Garcia argues that the evidence offered by the government was

insufficient to convict him. When exercising review of the sufficiency of the evidence at

trial, “we must examine the totality of the evidence, both direct and circumstantial,”

United States v. Miller, 527 F.3d 54, 62 (3d Cir. 2008) (quoting United States v.

Gambone, 314 F.3d 163, 170 (3d Cir. 2003)), and “interpret the evidence in the light

most favorable to the government as the verdict winner.” Id. at 60 (quoting United States

v. Taftsiou, 144 F.3d 287, 290 (3d Cir. 1998)). “The burden on a defendant who raises a

challenge to the sufficiency of the evidence is extremely high.” United States v. Iglesias,

535 F.3d 150, 155 (3d Cir. 2008) (quoting United States v. Lore, 430 F.3d 190, 203 (3d

Cir. 2005)). “We will overturn a jury verdict ‘only when the record contains no evidence,

regardless of how it is weighted, from which the jury could find guilt beyond a

reasonable doubt . . . .’” United States v. Thayer, 201 F.3d 214, 218-19 (3d Cir. 1999)

(quoting United States v. Anderson, 108 F.3d 478, 481 (3d Cir.1997)).

       Garcia’s main contention is that the government failed to bring forth sufficient

evidence to support the requisite mens rea of “knowingly and willfully” under §

1001(a), 1 and therefore, the District Court erred in finding him guilty on all three counts.

The government admitted into evidence the Form CA-1032, “Annual Disability

Questionnaire,” that Garcia submitted by mail to the Department of Labor’s Office of

Workers’ Compensation Programs (OWCP) in connection with his collection of


1
 Appellant does not specifically discuss how the evidence is insufficient as to his
convictions under § 1341 or § 1920; however, as explained below, appellant’s claim still
fails even if we apply his § 1001 argument to the convictions under § 1341 and § 1920.

                                              7
disability benefits. The Form CA-1032 required Garcia to report any work he had

performed within the preceding 15-month period 2 and contained a warning in bold letters

alerting claimants that “[a] false or evasive answer to any question, or the omission of an

answer, may be grounds for forfeiting your compensation benefits and . . . . may result in

criminal prosecution.” App. 198a. In addition, the form required claimant to report any

improvement in his disability status or medical condition, and contained a certification at

the end of the form, just above claimant’s signature, whereby claimant acknowledged that

he understood that:

              anyone who fraudulently conceals or fails to report income or
              other information which would have an effect on benefits, or
              who makes a false statement or misrepresentation of a
              material fact in claiming a payment or benefit . . . may be
              subject to criminal prosecution . . . . [and] must immediately
              report to OWCP any improvement in my medical condition.
              App. 204a-205a.

The government presented ample testimony establishing that Garcia failed to report any

of his employment or business activities on his Form CA-1032, and presented other

evidence showing that Garcia failed to report any improvements in his medical

conditions. Appellee Br. 29-33.

       As mens rea can be proven entirely with circumstantial evidence, United States v.

Torres, 862 F.2d 1025, 1027 (3d Cir. 1988), it is clear that the record contains sufficient

evidence by which a rational trier of fact could find Garcia guilty beyond a reasonable

doubt. United States v. Introcaso, 506 F.3d 260, 264 n.2 (3d Cir. 2007) (citing Jackson v.

2
 The CA-1032 requires the claimant to report any self-employment, any employment
enterprise, including a family business, and any ownership in any business enterprise,
even if such activity is part-time or intermittent. App. 200a.
                                             8
Virginia, 443 U.S. 307, 318-19 (1979)). The District Court did not err in finding that

Garcia acted willfully and knowingly. Accordingly, we will deny Garcia’s challenge to

his conviction.

                                         III. Conclusion

       For all of these reasons, we will affirm the order of the District Court.




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