                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 30 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 00-2051
                                                            (D. N.M.)
 MARQUETTE DONDRE WISEMAN,                          (D.Ct. No. CR-99-687-JP)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is

therefore ordered submitted without oral argument.



      Appellant Marquette Dondre Wiseman, a federal inmate, appeals his two


      *
          This order and judgment is not binding precedent except under the doctrines of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.
jury convictions. We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.



      United States Border Patrol agents arrested Mr. Wiseman, the driver of a

semi-truck, and his passenger, Juan Rendon-Matron, after discovering more than a

half-ton of marijuana contained in both the tractor and trailer. Mr. Rendon pled

guilty to the indictment of one count of conspiracy to possess with intent to

distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846,

and possession with intent to distribute more than 100 kilograms of marijuana in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. Mr. Wiseman

proceeded to trial where a jury convicted him of the same charges and the district

court sentenced him to concurrent seventy-eight-month sentences.



      Mr. Wiseman appeals his convictions raising two arguments in support

thereof. First, he claims the prosecutor presented an improper rebuttal closing

argument that shifted the burden of proof from the government to Mr. Wiseman,

and that the trial court’s failure to sua sponte provide a curative instruction

constituted plain error. Mr. Wiseman’s second argument raised on direct appeal

centers on an ineffective assistance of trial counsel claim, which his appellate




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counsel treated as an Anders argument. 1 Appellate counsel provided a summary

of Mr. Wiseman’s ineffective assistance of counsel argument, but informed the

court he “does not believe a good faith basis exists for [this] argument.” Mr.

Wiseman did not file an additional brief outlining his ineffective assistance of

counsel argument.



       We begin our review with Mr. Wiseman’s prosecution misconduct

argument and allegation the district court erred in not providing the jury with a

curative instruction. The record shows that prior to presentation of evidence at

trial, the district court instructed the jury:

             Certain things are not evidence and must not be considered by
       you as evidence. ...What the lawyers say is not evidence. The
       lawyers will make opening statements, closing arguments, ask
       questions, make objections, but that is not evidence in the case ....

       ...

              ... In a criminal jury case it’s the government’s burden of
       proving the guilt of the defendant. The defendant has no obligation
       to present any evidence or to testify. If a defendant does not testify
       you may not even take that into account in reaching your verdict.


       1
          See Anders v. California, 386 U.S. 738, 744 (1967) (requiring counsel who finds
an appeal to be wholly frivolous to advise the court, request permission to withdraw, and
provide an accompanying brief referring to anything in the record that might arguably
support the appeal.) Accordingly, Mr. Wiseman’s appellate attorney provided argument
on this claim and filed a motion to withdraw from arguing the ineffective assistance of
counsel claim raised by Mr. Wiseman.


                                            -3-
             The government’s standard of proof is beyond a reasonable
       doubt. I’ll define that for you further in written instructions. But
       simply keep in mind that the standard of proof before you can
       convict a defendant is proof beyond a reasonable doubt ....

              ...

              ... [T]he lawyers will make their closing arguments which,
       again, are not evidence ....


       Following the trial court’s preliminary instructions, both the prosecution

and defense presented evidence. As part of his defense, Mr. Wiseman testified on

his own behalf. The pertinent part of his testimony on appeal concerns his

statements that an employee of a wiring harness company allegedly witnessed Mr.

Wiseman “seal” the doors to the trailer at the warehouse loading yard, after the

wiring harnesses were loaded. 2 However, Mr. Wiseman was unable to name or

describe this employee. Mr. Wiseman’s co-defendant, Mr. Rendon, did not

testify.




       2
          The intimation of Mr. Wiseman’s testimony is that because he sealed the trailer,
he did not put the marijuana in it either at the loading yard or later. However, two border
agents testified Mr. Wiseman admitted he placed the marijuana in the trailer. One of
those agents also testified Mr. Wiseman told the agent he and Mr. Rendon left the loading
yard and later loaded the marijuana at another location. The same agent testified that the
government’s photographic exhibit shows the seal was intact on the back of the trailer.
Thus, the jury made a credibility determination as to whether Mr. Wiseman placed the
seal on the trailer after allegedly loading the marijuana or at the loading yard as he
contended.


                                            -4-
      At the close of the evidence stage of the trial, the district court read the

jury the written jury instructions. The instructions stated, in part, that Mr.

Wiseman was presumed innocent and not required to testify or produce any

evidence; instead, the government carried the burden of proving him guilty

beyond a reasonable doubt. The district court also cautioned the jury that the

statements and arguments of the attorneys did not constitute evidence.



      Following these instructions, the attorneys conducted closing argument. In

so doing, Mr. Wiseman’s defense counsel put forth a “missing witnesses”

argument, in which she argued:

             Let me go back to the seal for just a moment. Agent Claflin
      told you that he verified that the seal on the back of that truck was
      the same seal written on the back of the bill of lading .... And again,
      there is absolutely no evidence, and you would have to speculate to
      believe anything other than what Mr. Wiseman told you with regard
      to the seal. The government didn’t bring any witnesses to disprove
      what he told you.

            Where is Mr. Rendon? He certainly isn’t here to say that by
      words or acts he agreed together with Mr. Wiseman.


      In response, in the closing argument rebuttal, the prosecutor remarked:

      [T]he defense is absolutely right that the defendant does not have to
      prove he’s innocent, that’s absolutely right. However, when the
      defendant takes the stand you then, as jurors, get to determine the
      credibility of the testimony of the defendant. And when defense
      counsel comes here and says, “where is Mr. Rendon,” you know,
      “why isn’t he here,” you need to understand that the defense counsel

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      has the ability to subpoena witnesses to these proceedings if they
      wish.


      With regard to the government not calling the employee who allegedly saw

Mr. Wiseman place the seal on the trailer, the prosecutor said:

      Again, the defendant could have called the person who I tried to
      identify, “Who was the employee that saw you do this [put the seal
      on the truck]? “What was his name?” ... “I don’t know.” “How did
      he look?” “I don’t know.” Kind of tough to follow up on that.

At trial, defense counsel did not object to the prosecutor’s remarks nor ask for a

curative instruction from the district court.



      On appeal, Mr. Wiseman’s counsel contends the prosecutor’s remarks

shifted the burden of proof to the defendant, so that without a curative instruction,

“the fairness and integrity of the proceedings themselves were called into

question, thus amounting to plain error.” The specific remarks contested on

appeal include the prosecution’s statements to the jury: 1) “you need to

understand that the defense counsel has the ability to subpoena witnesses to these

proceedings if they wish”; and 2) “the defendant could have called the person

who I tried to identify, ‘Who was the employee that saw you do this? What was

his name?’ ... ‘I don’t know’ ... ‘I don’t know.’” Mr. Wiseman also contends

the district court’s failure to sua sponte issue a curative instruction constituted

plain error.

                                          -6-
      Because Mr. Wiseman’s defense counsel did not object to the prosecution’s

rebuttal remarks at trial, we review it for plain error. See United States v.

Gonzalez-Montoya, 161 F.3d 643, 650 (10th Cir. 1998), cert. denied, 526 U.S.

1033 (1999). In evaluating Mr. Wiseman’s prosecutorial misconduct claim, we

employ a two-step process:

            First, we determine whether the prosecutor’s behavior was
      improper; if so, we decide whether it mandates reversal. ... In
      evaluating such incidents for plain error, we will reverse only if after
      reviewing the entire record, we conclude that the error is obvious and
      one that would undermine the fairness of the trial and result in a
      miscarriage of justice.

Id. (quotation marks and citation omitted).


      In making these determinations, we recognize the prosecution may

comment on the defendant’s failure to call a witness so long as the statement

cannot be construed as a comment on the failure of the defendant to testify. See

United States v. Merryman, 630 F.2d 780, 788 (10th Cir. 1980) (citations

omitted). Moreover, “[i]t is well settled that the attorney prosecuting the case on

behalf of the government is authorized to respond to exculpatory arguments made

by [the] defendant[] during closing arguments.” Id. at 789 (citation omitted). In

order for us to make an appropriate assessment whether the prosecutor’s rebuttal

remarks in this case “exceeded permissible bounds,” we “must not only weigh the

impact of the prosecutor’s remarks, but must also take into account defense


                                          -7-
counsel’s opening salvo.” United States v. Dean, 76 F.3d 329, 334-35 (10th Cir.

1996) (quotation marks and citation omitted). In other words, if the prosecutor’s

remarks were “invited, and did no more than respond substantially in order to

right the scale, such comments would not warrant reversing a conviction.” Id. at

335 (quotation marks and citations omitted). We have concluded “[a] prosecutor

is afforded considerable latitude to reply to an argument raised by his opposing

advocate.” Id. (citation omitted).



      With these principles in mind and after reviewing the record, we conclude

the prosecutor’s rebuttal remarks during closing argument did not constitute plain

error. First, none of the prosecutor’s remarks can be construed to impermissibly

comment on the defendant’s failure to testify because Mr. Wiseman testified in

his own defense. See Merryman, 630 F.2d at 788. Second, defense counsel

clearly invited the prosecutor’s remarks when she made comments speculating

why the government failed to call certain witnesses to testify. The prosecutor’s

remarks on the defense’s ability to subpoena the same or other witnesses did

nothing more than “right the scale.” See Dean, 76 F.3d at 335. Under these

circumstances, we cannot say the prosecution’s remarks were improper, or

improperly shifted the burden of proof. This is especially true in light of the fact

the prosecutor prefaced his remarks with a statement Mr. Wiseman did not need to


                                         -8-
prove his innocence. Furthermore, the district court provided the jury with

burden of proof instructions which plainly placed the burden of proof on the

government.



       Nevertheless, Mr. Wiseman contends that under our ruling in United States

v. Coleman, 7 F.3d 1500 (10th Cir. 1993), the district court was required to sua

sponte give a curative instruction. In Coleman, we held the district court’s

curative instruction solved any problem created by the prosecutor’s closing

remarks. Specifically, the prosecutor remarked that the defense could have

subpoenaed the witnesses they complained the government failed to call. Id. at

1506. However, our ruling in Coleman is distinguishable. In that case, the

defendant did not testify, and we determined the prosecution’s remarks came

perilously close to commenting on the defendants’ failure to take the stand. 3 Id.

In this case, Mr. Wiseman did testify, so the prosecution’s remarks on the

defense’s ability to subpoena witnesses did not implicate Mr. Wiseman’s Fifth

Amendment right to remain silent. For these reasons, we conclude the district

court did not err in not giving a curative instruction.


       3
          Arguably, the prosecution’s remarks in Coleman were more prejudicial than
here. In pointing out the defense could subpoena witnesses to testify, the prosecutor
further stated “[i]f those witnesses had had something to say on behalf of their client,
those witnesses would have taken the stand.” Coleman, 7 F.3d at 1505.


                                             -9-
      As to Mr. Wiseman’s ineffective assistance of counsel argument, we have

held ineffective assistance of counsel claims should be brought in collateral

proceedings, and that those “brought on direct appeal are presumptively

dismissible, and virtually all will be dismissed.” United States v. Galloway, 56

F.3d 1239, 1240 (10th Cir. 1995) (en banc). This court will, however, consider

an ineffective assistance of counsel claim when the record on such a claim has

been adequately developed by the district court prior to appeal. See United States

v. Gallegos, 108 F.3d 1272, 1280 (10th Cir. 1997).



      In this case, Mr. Wiseman’s appellate counsel concedes “the record on

appeal before this Court does not reflect ineffectiveness, as additional facts would

be needed.” Given this statement, and our decision to dismiss, we decline to

address Mr. Wiseman’s ineffective assistance counsel on direct appeal.



      For the foregoing reasons, we AFFIRM Mr. Wiseman’s convictions. For

good cause shown, we grant appellate counsel’s “Motion to be Partially Relieved




                                        -10-
as Arguing Counsel” with respect to the ineffective assistance of counsel issue

presented.


                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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