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.  The defendant, Peter
          BOWNES, Senior Circuit Judge
                                      

N.  Georgacarakos, appeals his  conviction of possession with

intent  to  distribute and  distribution  of  cocaine on  the

grounds that the district  court's jury instructions on venue

were  erroneous,  and that  his  defense  was flawed  by  the

ineffective assistance  of counsel.   We decline  to consider

the defendant's  ineffective assistance  claim which  was not

raised before the district court.   The jury instructions  on

venue, to  which  defendant-appellant now  objects, were  not

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

30.  We find  that the instructions did not  constitute plain

error and affirm the conviction.

                              I.

                          BACKGROUND
                                    

          During October, 1991,  Frank "Tony" Porcaro  agreed

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

office and the South  Portland Police Department in Maine  on

supervised undercover  drug purchases from drug  dealers.  In

his role  as an  undercover informant, Porcaro  contacted the

defendant, whom  he had known  for several months,  and asked

the defendant to help him purchase cocaine.  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.  After

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                              2

several calls from Porcaro, the defendant  agreed to help him

buy  cocaine.  The  DEA and South  Portland police instructed

and  supervised  Porcaro  in  the  undercover  operation, and

provided  Porcaro  with  all  necessary  equipment  including

substantial amounts of money for  the cocaine purchases and a

"body wire" recording device to record his conversations with

the defendant.  

          The  defendant  and  Porcaro  made   two  trips  to

Lawrence, Massachusetts, one on  October 25 and the other  on

November  15, 1991, to purchase  cocaine.  On  both days, the

defendant called his source in Lawrence before he and Porcaro

began their  journey.   Porcaro drove  borrowed cars  on both

trips  and  the  defendant  was  the  only  passenger.    The

defendant  admits that  he purchased  cocaine with  Porcaro's

money  and then  gave the cocaine  to him.   He  testified at

trial and argues  on appeal  that he purchased  and gave  the

cocaine to  Porcaro in  Massachusetts.  Porcaro  testified to

the contrary  that on both  occasions the defendant  kept the

cocaine  until they  reached  their  destinations  in  Maine.

Porcaro  testified that on October 25, the defendant kept the

cocaine in his pants until  they reached Scarborough where he

handed Porcaro  the cocaine wrapped in  a napkin.  As  to the

November 15 trip, Porcaro  testified that the defendant again

kept the  cocaine during the trip  back to Maine  and that he

never saw the cocaine.  Porcaro  testified that he drove to a

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                              3

prearranged  meeting  place, a  motel  parking  lot in  South

Portland.   In the parking lot,  Porcaro got out  of the car,

and police  and DEA agents  surrounded the  car.  Two  of the

agents  testified  that they  saw  the  defendant moving  and

leaning forward toward the dashboard  before he put his hands

up as ordered.  The agents  found a package of cocaine in the

glove  compartment  of  the   car  after  the  defendant  was

arrested.  

          Venue  was  the  primary  focus  of   the  defense.

Defense  counsel objected  to  the district  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  counsel an opportunity to object  to the

instructions after  the charge  and before the  jury retired,

defense counsel raised other issues, but did not object again

to the instructions  on venue.  The jury found that venue was

proper in  Maine,  and found  the  defendant guilty  on  both

counts.  This appeal followed.

                             II.

                           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.  

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                              4

A.  Jury Instructions on Venue
                              

          During the  charge to the jury,  the district court

gave  instructions on  venue which  the defendant  claims are

contrary to the  law because they allowed the jury to take an

impermissibly  broad  view  of conduct  relevant  to  proving

venue.         Proper venue  in a  criminal prosecution  is a

constitutional right:  

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

crime charged does not indicate a method  for determining the

location  of  the  crime for  venue,  the  location  "must be

determined  from  the nature  of  the crime  alleged  and the

location  of the act or acts constituting it."  United States
                                                             

v.  Anderson, 328 U.S. 699, 703 (1946).  Because venue is not
            

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

proving venue by a preponderance  of the evidence rather than

by the  higher standard, beyond  a reasonable doubt.   United
                                                             

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

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                              5

          The  defendant  in this  case  was  charged in  two

counts  with  violation  of  21  U.S.C.     841(a)(1)  and   

841(b)(1)(C):   Count One  charged possession with  intent to

distribute and  distribution of cocaine on  October 25, 1991,

and Count Two charged possession with intent to distribute on

November  15, 1991.  The  statute does not  indicate a method

for  determining  venue.   Continuing  crimes,  i.e.,  crimes

committed in  more  than one  district,  are governed  by  18

U.S.C.    3237(a).1  Distribution and  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,  425 (8th Cir. 1991), cert.  denied, 112
                                                        

S.  Ct.  1666  (1992).    Therefore,  venue  for  the  crimes

prosecuted  in this case was proper in any district where the

crimes began, continued or were completed.   

          In order  to decide  where the crimes  occurred, we

must  determine what  acts by  the defendant  constituted the

crimes  charged.  Johnston v.   United States,  351 U.S. 215,
                                             

220-21 (1956).  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.

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                              6

in the statute  defining the  criminal offense"  to find  the

scope of  relevant conduct.   United States  v. Tedesco,  635
                                                       

F.2d 902,  905 (1st Cir. 1980),  cert.  denied, 452  U.S. 962
                                              

(1981);  see also United States v. Griffin, 814 F.2d 806, 810
                                          

(1st Cir.  1987).    The  key verbs  relevant  to the  crimes

charged  in  this case  are  "distribute"  and "possess  with

intent to distribute."   Actions which are merely preparatory

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

United States  v. Beech-nut  Nutrition Corp., 871  F.2d 1181,
                                            

1190  (2d  Cir.), cert.  denied  sub nom.,  Lavery  v. United
                                                             

States,  493 U.S. 933 (1989).  Therefore, only actions by the
      

defendant which constitute  either distributing or possessing

with   intent  to   distribute  cocaine   are  probative   in

determining venue for  those offenses.  Griffin,  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   defendant

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

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                              7

          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
          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  for aiding  and

abetting others in commission of a crime.  Uribe, 890 F.2d at
                                                

558; see also United  States v. Lam Kwong-Wah, 924  F.2d 298,
                                             

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

conspiracy  prosecution may  be  brought in  any district  in

which some  overt act  in furtherance  of the conspiracy  was

committed   by  any   of  the   co-conspirators,'"  (citation

omitted));   United States v.  Long, 866 F.2d  402, 407 (11th
                                   

Cir.  1989)  (discussing  similarity of  proof  necessary  to

establish  venue for  conspiracy  and  aiding and  abetting).

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

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                              8

have  a broad  scope  of conduct  relevant  to venue  due  to

multiple participants  and  the participatory  nature of  the

crimes.    In individual  crimes,  such  as distribution  and

possession with the intent to distribute cocaine, "actions in

furtherance of the crime"  could be interpreted by a  jury to

include  conduct  other   than  possessing  and  distributing

cocaine  which is merely preparatory  or prior to the crimes.

We  agree with  the defendant,  therefore, that  the district

court's  instructions on  venue  were overly  broad and  were

erroneous.  

          Because the  defendant  failed  to  object  to  the

instructions  on  venue  after  the charge  to  the  jury  as

required by Fed. R.  Crim. P. 30, we review  the instructions

under the  plain error  standard.2   United States  v. Arias-
                                                             

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

v. Mendoza-Acevedo,  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.

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                              9

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  the trial  and contribute  to a

miscarriage of justice."  United States v. Young, 470 U.S. 1,
                                                

16 (1985).  When reviewing jury instructions for plain error,

we  examine the  instructions  in the  context of  the entire

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

whether  they  undermined  the  fundamental fairness  of  the

trial.   Id. at  15-16; United States v.  Park, 421 U.S. 658,
                                              

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

a whole  and in the context of the trial");  United States v.
                                                          

Weston,  960 F.2d  212, 216  (1st Cir.  1992) ("In  assessing
      

claims of  plain error,  we  consider the  instructions as  a

whole,  taking into  account whether  the putative  errors so

skewed  the  entire  trial  that the  defendant's  conviction

offends  due  process.").     The  question  is  whether  the

erroneous  instructions allowed  the  jury to  find venue  in

Maine in violation of the defendant's constitutional right to

venue in the district where the crimes were committed.

          The defendant  urges us  to reverse  his conviction

based  upon the rule "'that  when a case  is submitted to the

jury on alternative  theories the unconstitutionality of  any

of the theories requires that  the conviction be set aside.'"

United States v.  Rodriguez, 465  F.2d 5, 10  (2d Cir.  1972)
                           

(quoting Leary v.  United States, 395  U.S. 6, 31-32  (1969))
                                

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                              10

(footnotes omitted).  In Leary, id., the defendant challenged
                                   

the  constitutionality of a  statutory presumption  which was

the  basis  for one  of  two  alternative theories  of  guilt

presented  to  the jury.   The  Supreme  Court held  that the

statutory  presumption was unconstitutional  and reversed the

conviction.  In Rodriguez, 465 F.2d 5,  the issue of venue of
                         

the crime of  uttering a  forged check was  submitted to  the

jury  on  two  alternative  theories of  guilt:    aiding and

abetting the crime  or that  the crime of  uttering a  forged

check  was  a "continuing  offense" pursuant  to 18  U.S.C.  

3237.   The court held that  because the crime of  uttering a

forged  check  was  not  a continuing  offense,  one  of  the

theories was incorrect, and  reversed the conviction based on

the Leary rule.
         

          In this case, the jury instructions did not present

two alternative theories of  guilt.  Rather, the instructions

impermissibly broadened  the scope of conduct  which the jury

might have  considered in determining venue.  The Leary rule,
                                                       

therefore, is inapposite  to this case.   An analogous  rule,

which  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  on the  insufficient  ground."

Zant v. Stephens, 462 U.S. 862,  881 (1983).  An exception to
                

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                              11

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,  520 (1st  Cir. 1988).   Based on  a review  of the

trial  record, there  can be no  uncertainty that  the jury's

verdict on venue was based on sufficient grounds. 

          There  were two  versions  of events  of the  trips

presented  to the jury through  testimony at trial.  Porcaro,

the   informant,   testified  that   during  both   trips  to

Massachusetts, the defendant kept the package of cocaine with

him until they  arrived back  in Maine.   Based on  Porcaro's

testimony,  there   is  no  question  that   the  jury  could

sustainably  have found  that  the  defendant  possessed  and

distributed the cocaine in Maine during the October 25  trip,

and possessed  the cocaine  in Maine  during the  November 15

trip.   The defendant  testified, however, that  during their

first trip to  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  of cocaine to

Porcaro  before they left  Lawrence, and Porcaro  put it into

the glove  compartment.  The  defendant contends that  he did

not possess  or distribute  the  cocaine in  Maine on  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.

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                              12

          The  defendant  relies  on  three  cases  involving

possession  with  intent to  distribute  drugs  in which  the

courts found  that venue was improper  because the defendants

were prosecuted in districts in which they had neither actual

nor  constructive possession  of the  contraband.   In United
                                                             

States v.  Delgado, 914 F.2d  1062, 1064-65 (8th  Cir. 1990),
                  

the court found that  venue was improper in North  Dakota for

prosecution of  the defendant  for possession with  intent to

distribute cocaine  because  neither the  defendant  nor  the

cocaine  ever  entered North  Dakota.   In  United  States v.
                                                          

Medina-Ramos, 834 F.2d  874, 877 (10th Cir. 1987),  the court
            

found that venue was improper in New Mexico where the cocaine

travelled without  the defendants  who were removed  from the

train in  California because  "the locus of  the constructive

possession, the  locus of  a crime committed  by constructive

possession,  cannot be a place  where the defendant has never

been, personally or by a  person whose acts are  attributable

to him." Id.  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  the  drugs while  they were  in

Georgia.  None of these cases are apposite.  

          The   defendant's   reasoning  ignores   his  close

connection with the cocaine during both trips back  to Maine,

even according to his  own version of events.   The defendant

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                              13

rode   back  to  Maine  with  the  cocaine  in  the  car,  in

circumstances which show  that he had either actual  or joint

constructive  possession of  the cocaine  in Maine.   Illegal

possession of  drugs "can be actual or  constructive, sole or

joint."  United  States v.  Wight, 968 F.2d  1393, 1397  (1st
                                 

Cir. 1992); United States  v. Vargas, 945 F.2d 426,  428 (1st
                                    

Cir.  1991).   Although  mere  association  with someone  who

possesses  drugs   is   insufficient  to   show   possession,

constructive possession  exists  if the  defendant knows  the

drugs  are available and has the power and intent to exercise

dominion and control over them.  United States v. Garcia, No.
                                                        

92-1427,  slip op. at 6-7  (Feb. 4, 1993,  1st Cir.) (finding

joint constructive  possession of a package  of cocaine found

in  the bedroom  closet of  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  another  person  share  power  and  intent  to  exercise

dominion and  control over  contraband.   Wight, 968  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  weapon was accessible to defendant

in  the van); United States  v. Batista-Polanco, 927 F.2d 14,
                                               

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                              14

18-19 (1st Cir. 1991) (finding  joint constructive possession

of heroin by defendant  sitting at a table with  others where

heroin was  being packaged).  Constructive  possession may be

proven by  direct or circumstantial evidence.   United States
                                                             

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

          The   district  court   instructed   the  jury   on

constructive  and  joint   possession,  without   objection.3

During their deliberations, the jury requested a  copy of the

indictment and a written clarification of the instructions on

possession, distribution,  and intent to  distribute.   After

                    

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
          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.

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                              15

discussion with counsel, the trial judge sent the jury copies

of the  indictment  and of  the  instructions, which  he  had

previously  read to  them,  on possession,  distribution  and

intent to distribute  and joint and  constructive possession.

The jury was thoroughly  instructed that possession  includes

joint  and  constructive  possession in  addition  to  actual

possession.  The  defendant does not  dispute that he  bought

the cocaine for  Porcaro and  always intended to  give it  to

him. Intent to distribute,  therefore, is not disputed.   The

defendant argues that distribution  of the cocaine to Porcaro

in Massachusetts ended the  crimes there.  We disagree.   The

crimes  continued  into  Maine because  the  cocaine remained

accessible to the  defendant who had  purchased it, who  knew

where it  was, and who could  have retrieved it at  any time.

The defendant remained  in constructive  joint possession  of

the cocaine during  the trip back to  Maine based on  his own

testimony.   Accepting  the  defendant's version  of  events,

constructive possession  ended and distribution  occurred, on

the first trip, when  Porcaro dropped him off in Maine and he

left the cocaine in the car with Porcaro.   The defendant was

not charged with distribution on the second trip.  Therefore,

even based  on the  defendant's  version of  events for  both

trips,   the   defendant's   continued   joint   constructive

possession of  the cocaine with Porcaro  and his distribution

                             -16-
                              16

to Porcaro in  Maine, on  the first trip,  was sufficient  to

establish venue in Maine. 

          When proof of venue is  so clear that no reasonable

juror   could  have   found  otherwise,  an   erroneous  jury

instruction on venue is  not plain error.  See,  e.g., United
                                                             

States  v.  Martinez,  901  F.2d  374,  376  (4th Cir.  1990)
                    

(holding that failure to instruct on venue was not reversible

error  where clear proof  of venue existed);  see also United
                                                             

States v. Moeckly, 769  F.2d 453, 461 (8th Cir.  1985), cert.
                                                             

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

the jury believed Porcaro's testimony,  the government proved

actual possession  and distribution of the  cocaine in Maine.

Even if the jury believed the defendant's  testimony, that he

delivered  the  cocaine  to  Porcaro  in  Massachusetts,  the

evidence  at  trial  established  constructive  and/or  joint

possession  of the cocaine in Maine.  Based on either version

of events,  the jury  had sufficient  grounds to  find proper

venue.    We hold  that  the erroneous  instructions  did not

result  in  a  miscarriage  of  justice  in  this  case,  and

therefore, did not constitute plain error.

                             -17-
                              17

B.  Ineffective Assistance of Counsel
                                     

          The   defendant  appeals  his   conviction  on  the

additional  ground that  he  lacked effective  assistance  of

counsel  due  to his  trial  counsel's failure  to  pursue an

entrapment defense.  The defendant  argues that the facts and

circumstances  of the  case  support  an entrapment  defense.

During  cross-examination  of the  defendant,  the prosecutor

asked whether  defense counsel  was relying on  an entrapment

defense.   Defense counsel,  when pressed, responded  that he

would have to consult  with the defendant before he  could be

sure.    The court  then  proceeded  on  the assumption  that

entrapment  would not  be used  as a  defense unless  defense

counsel  notified  the  court  otherwise.    Defense  counsel

apparently did not  raise the entrapment defense  again.  The

issue  of ineffective  assistance of  counsel was  not raised

before the trial court.  

          The general rule is  that we will not hear  a claim

of  ineffective assistance  of counsel  raised for  the first

time on direct  appeal.   United States v.  Roccio, 981  F.2d
                                                  

587, 590 (1st Cir.  1992); United States v. McGill,  952 F.2d
                                                  

16, 19 (1st  Cir. 1991);  United States v.  Austin, 948  F.2d
                                                  

783,  785   (1st  Cir.  1991)  ("In  the   vast  majority  of

ineffective assistance of counsel claims sought to be brought

on direct appeal after  completion of a trial on  the merits,

no record  exists  for  the appellate  court  to  examine  in

                             -18-
                              18

assessing  the  validity  of  the  claim.").     A  claim  of

ineffective assistance of counsel which involves  matters not

fully  developed  in  the  trial record,  but  necessary  for

determination  of  the claim,  is  not ripe  for  decision on

direct appeal.   United States  v. Sutherland, 929  F.2d 765,
                                             

774 (1st Cir.), cert. denied sub nom., Fini v. United States,
                                                            

112 S. Ct. 83 (1991);  cf. United States v. Natanel, 938 F.2d
                                                   

302,  309 (1st Cir. 1991)  (finding an exception  to the rule

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

the  record [was]  sufficiently  developed to  allow reasoned

consideration  of  the  ineffective  assistance   of  counsel

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

a   better   perspective  "to   appraise   defense  counsel's

representation in  the district court  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  to counsel in a criminal

prosecution  includes  the   right  to  reasonably  effective

assistance of  counsel.   Strickland v. Washington,  466 U.S.
                                                  

668, 686-87 (1984).   To  prevail on a  claim of  ineffective

assistance of  counsel, "a criminal defendant  must show both

that   counsel  fell  short  of  the  applicable  performance

                             -19-
                              19

standard and that prejudice resulted."   Natanel, 938 F.2d at
                                                

309.   When applying  the performance test,  we examine  what

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

choices were made and implemented."  Id.  To prove the second
                                        

part  of the  test,  a defendant  "must  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  trial

whose result  is  reliable.'"   Sutherland, 929  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  of representation.   We cannot

determine from the record,  for example, whether counsel made

a tactical  decision not to  pursue entrapment, and  to focus

the  defense on the venue  issue instead.   See, e.g., United
                                                             

States  v.  Tabares, 951  F.2d  405,  409  (1st  Cir.  1991).
                   

Because the  entrapment defense was not  fully developed, and

the government  indicated that  it  would present  additional

evidence to counter the defense, we also cannot determine the

likelihood  of prejudice  resulting from  failure to  use the

defense  of   entrapment.     Defendant's  brief   on  appeal

acknowledges  that  factual  development  of   the  claim  of

ineffective  assistance of  counsel might  be necessary.   We

agree,  and decline  to decide  this issue  leaving it  to be

                             -20-
                              20

addressed,  if defendant  chooses, through  collateral attack

pursuant to 28 U.S.C.   2255. 

          Affirmed.
                   

          Dubitante follows.
                   

                             -21-
                              21

     SELYA, Circuit Judge  (dubitante).  Although  concurring
     SELYA, Circuit Judge  (dubitante).
                         

in  the court's judgment,  I write separately  because I have

serious  reservations  as  to  whether  the  district judge's

charge on the issue  of venue, taken as a  whole, constituted

error at  all.  Be that  as it may, the  court, after finding

what  it thinks is error, concludes  that the perceived error

was neither  plain nor  prejudicial, see  ante at 16-17,  and
                                              

decides that  the defendant's  conviction should stand.   See
                                                             

ante  at 20.    Given that  unexceptionable outcome,  further
    

pursuit  of  my point  would  be a  purely  academic exercise

which,  on balance, is probably best foregone.  After all, as

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

                             -22-
                              22
