
USCA1 Opinion

	




          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.                                          I.                                      BACKGROUND                                      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                                         -2-                                          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                                         -3-                                          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.                                         II.                                       ANALYSIS                                       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.                                           -4-                                          4                        A.  Jury Instructions on Venue            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).               ______    ____                                         -5-                                          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.                                         -6-                                          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                                         -7-                                          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                                         -8-                                          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.                                         -9-                                          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))                     _____     _____________                                         -10-                                          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            ____    ________                                         -11-                                          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.                                         -12-                                          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                                         -13-                                          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,                          _____________     _______________                                         -14-                                          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.                                         -15-                                          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            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.                      Affirmed.                      _________                      Dubitante follows.                      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
