

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 95-2277

                        UNITED STATES,

                          Appellee,

                              v.

                  LUIS A. RODRIGUEZ-CARMONA,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Salvador E. Casellas, U.S. District Judge]                                                                  

                                         

                            Before

                   Selya, Boudin and Lynch,
                       Circuit Judges.                                                 

                                         

Luis A. Rodriguez-Carmona on brief pro se.                                     
Guillermo Gil,  United States Attorney,  Warren Vazquez, Assistant                                                                   
United States Attorney, and Jose A. Quiles Espinosa, Senior Litigation                                                           
Counsel, on brief for appellee.

                                         

                        March 26, 1997
                                         

     Per  Curiam.    After   a  jury  trial,  appellant  Luis                            

Rodriguez-Carmona  was convicted of  aiding and  abetting the

importation  and   possession  of  heroin   with  intent   to

distribute in violation of  21 U.S.C.    841(a), 952,  and 18

U.S.C.     2.    He  was  sentenced  to  sixty-three  months'

imprisonment   and   five   years  of   supervised   release.

Proceeding pro se  on appeal, appellant seeks to overturn his                             

conviction  due  to  alleged  prosecutorial   misconduct  and

ineffective  assistance of  defense counsel.   We  affirm the

conviction, but  we decline to  reach appellant's ineffective

assistance of counsel claims.

                              I.

     Because appellant does not  challenge the sufficiency of

the evidence, we provide a neutral summary of the evidence to

enable  us  to  determine  whether  the  events  about  which

appellant  complains on appeal  were harmless or prejudicial.

See,  e.g., United States  v. Morla-Trinidad,  100 F.3d  1, 2                                                        

(1st Cir. 1996);  United States  v. Hardy, 37  F.3d 753,  755                                                     

(1st Cir. 1994).  

     Acting in  response to  an intelligence alert,  two U.S.

Customs  inspectors identified  appellant  and Edward  Iba ez

Cosme (Iba ez), when they arrived at Puerto Rico's Luis Mu oz

Mar n  International  Airport  on  a  flight   from  Caracas,

Venezuela.   Upon  inquiring  where  he should  go  to  clear

customs, Iba ez was taken for a secondary inspection.  During

                             -2-

the course of this inspection a customs inspector performed a

pat-down   search  and  identified   something  concealed  in

Iba ez's crotch.  When instructed  to lower his pants, Iba ez

stated, "me  mangaste, you caught me" and  revealed a package

containing  36  pellets  of  heroin similar  to  those  often

swallowed by drug smugglers.  Iba ez was immediately arrested

and  given  the  Miranda  warnings.    He  told  the  customs                                    

inspectors  that he was  travelling alone and  that the drugs

belonged to him.  

     After  the  heroin had  been found  on Iba ez,  a senior

customs  inspector took  appellant to a  secondary inspection

area for questioning  and examination of his  luggage.  Seven

Western Union money transfer receipts bearing appellant's and

Iba ez's names were  found in appellant's bag,  five of which

had been signed by Iba ez.  Although appellant  had initially

stated that he was  travelling alone, when questioned further

he  said that Iba ez had  given him the  receipts.  Appellant

was also placed under arrest and taken with Iba ez to a local

hospital for x-rays, which proved negative.1                                                       1

     Appellant  and   Iba ez  were  both  indicted   on  drug

trafficking charges.   Shortly  before trial,  Iba ez entered

into a plea agreement.  He thereafter became the government's

star witness  at appellant's trial.   After acknowledging the

                                                    

   1At the  hospital, Iba ez encountered  a male acquaintance               1
and told him that he had been caught drug trafficking.

                             -3-

plea  agreement, which  was admitted  into evidence,  and the

fact that  he could be prosecuted for perjury if he failed to

tell the  truth, Iba ez  testified at  some length  about his

past criminal  exploits  -  without  objection  from  defense

counsel.2                      2

     Iba ez  then described  two smuggling  ventures that  he

claimed to  have undertaken  on appellant's  behalf.  In  the

first  such venture, Iba ez and a friend went to Venezuela to

procure  a heroin sample for appellant.  As the return flight

to Puerto Rico was  delayed, appellant wired Iba ez  money so

that he and his friend could  fly to Puerto Rico first class.

Iba ez identified one of the  Western Union receipts that had

been found  in appellant's  luggage  as the  receipt for  the

funds that had been used for the return plane tickets on that

occasion.   He claimed that he delivered 10 pellets of heroin

to appellant as a result of this trip.  Iba ez testified that

the heroin that he  delivered to appellant was supplied  by a

                                                    

   2The  prosecutor first elicited  Iba ez's criminal record,               2
which  included  convictions for  theft  of  a toolbox,  auto
theft, and contempt.   In an effort  to minimize the  risk of
impeachment   on   cross-examination,  the   prosecutor  next
required Iba ez to describe  his criminal activities that had
not resulted in  convictions.  Iba ez then  testified that he
had transported drugs to Spain via Puerto  Rico the preceding
November  and  that  he  had  participated  in  an  elaborate
escapade  which  included  a hold-up  of  a  gas  station, an
ensuing  shoot-out,  hit-and-run, carjacking,  and automobile
crash,  after  which Iba ez and his cohorts eluded the police
by escaping through a waterfall.  While the trial judge twice
convened bench conferences to  question the relevance of this
testimony, defense counsel raised no objection to it.     

                             -4-

Colombian,  Cesar  Augusto Buendia,  and  that  the remaining

Western Union receipts found in appellant's luggage reflected

drug payments that appellant had made to Buendia.3                                                               3

     With regard  to  the  second  smuggling  venture,  which

resulted  in  the arrests  of  Iba ez  and appellant,  Iba ez

testified that he recruited his cousin Jose Iba ez  (Jose) to

assist  in carrying the  drugs but that  Jose did not  have a

passport.  As a result all three men - appellant, Iba ez, and

Jose - travelled to  Connecticut to secure passports so  that

they could travel to  Venezuela and return carrying  drugs to

Puerto Rico.4   Because  Iba ez informed the  passport agency                        4

that the  three were  scheduled to  travel to  Venezuela very

soon, the agency  issued the  men passports on  the very  day

that  they  applied for  them.   The  three then  returned to

Puerto Rico and left for Venezuela on March 22, 1995.

     Iba ez  related that after  staying in Venezuela briefly

the  three men travelled to Colombia and checked into a hotel

in  accordance  with  the  instructions  of  their  supplier,

Buendia.    Eventually,  Buendia  caused  the  heroin  to  be

delivered to appellant's hotel  room, where Iba ez washed the

pellets and  divided them  into two  packages.   According to

                                                    

   3Iba ez described how appellant  sent him to Western Union               3
on multiple occasions to wire money to Buendia. 

   4Iba ez  testified  that it  was  necessary  to travel  to               4
Connecticut, where Jose had been born, to secure Jose's birth
certificate for his passport application.

                             -5-

Iba ez, appellant  was present when the  heroin was delivered

and while  he  was  packaging  it.    Iba ez  testified  that

appellant had business at  his drug point in Puerto  Rico, so

he and Iba ez decided to return there with the heroin.   Jose

was  left behind  to return  later with  two pairs  of tennis

shoes that were being loaded with heroin.  

     Iba ez  testified  that, initially,  Iba ez body-carried

one  package  with  20  pellets of  heroin,  while  appellant

carried a  similar package with 16 pellets.  Appellant became

scared  after their  luggage was  searched at  the Venezuelan

border, so  he  instructed Iba ez  to  carry all  the  heroin

thereafter.  The two flew to Caracas and from there to Puerto

Rico  without  incident.    Upon  arriving  in  Puerto  Rico,

appellant  instructed Iba ez  to go  up front  to be  checked

first.  Iba ez testified that although he initially  told the

authorities that the drugs were his, in fact they belonged to

appellant. 

      Iba ez's  testimony was  corroborated by  the passports

and  plane  tickets  of  appellant  and  Iba ez,  which  were

admitted  into   evidence,  and  the  testimony   of  Richard

Herdmann, a  senior customs  supervisor.   Herdmann testified

that  after Iba ez had been found with the heroin, he noticed

that  the  defendants'  passports  and  plane   tickets  bore

                             -6-

sequential numbers  interrupted by  one digit.5   As Herdmann                                                          5

was responsible  for  determining whether  any other  persons

were  involved  in drug  trafficking,  he  made inquiries  to

determine who  had been issued the passport  and plane ticket

with the intervening numbers.   Herdmann testified that these

items had been  issued to Jose, but  that he had not  boarded

the plane in Venezuela.6                                       6

     Appellant  did  not  testify  at his  trial.    Although

defense counsel  had announced that Jose  would be testifying

in appellant's  defense, the  record indicates that  Jose was

arrested  at the outset of appellant's trial and charged with

the same  crime as appellant  (i.e., aiding and  abetting the

importation of heroin), and conspiring to import heroin. Jose

was  never called as a  witness.7  Defense  counsel relied on                                            7

excerpts  from  the testimony  of  the  customs officers  and

Iba ez  to argue  that Iba ez  acted alone  in  the smuggling

endeavor  and that  appellant  was a  legitimate  businessman

                                                    

   5Iba ez's   passport  bore  the   number  140533715  while               5
appellant's passport bore  number 140533717.  Both  passports
had  been issued in Connecticut on March 3, 1995.  Similarly,
Iba ez's  plane ticket for  his return flight  to Puerto Rico
bore a number  ending in 10,  while appellant's plane  ticket
ended in 12.   

   6Herdmann also ascertained  that Jose's passport  had been               6
issued  at the same time and place  as those of appellant and
Iba ez. 

   7It is undisputed that Jose was tried after  appellant and               7
acquitted on all  charges. See United States v.  Jose Iba ez-                                                                         
Maldonado, #95-CR-195(SEC).                      

                             -7-

unaware of the drug venture.  The jury rejected this defense.

Remaining facts  will  be discussed  in  the context  of  the

arguments that appellant raises.      

                             II.

     On appeal, appellant asserts that the prosecutor pursued

a   "carefully  tailored"  strategy   that  was  designed  to

impermissibly  bolster  the credibility  of  the government's

chief  witness  (Iba ez),   while  simultaneously   depriving

appellant  of his  own star  witness (Jose).  Consistent with

this general  theme, appellant  contends that  his conviction

should be reversed on three grounds.  First, appellant argues

that certain remarks that the prosecutor made in his rebuttal

argument improperly vouched for the credibility of Iba ez and

expressed the  prosecutor's personal opinion  about how  drug

traffickers  work.    Second,  appellant  contends  that  the

prosecutor violated his Sixth  Amendment right to  compulsory

process by arresting Jose  solely to cause him to  invoke his

privilege   against  self-incrimination,   thereby  depriving

appellant of his testimony.  Finally, appellant contends that

he  was  deprived  of  the effective  assistance  of  counsel

because  his trial  counsel  failed to  move to  suppress the

evidence seized by the customs officers and further failed to

                             -8-

protect  appellant's  right to  compulsory process  by taking

steps to ameliorate the government's arrest of Jose.  

     We first examine the prosecutor's conduct, mindful  that

because defense counsel did not object to it below, we review

only for plain  error. See, e.g., United  States v. Sullivan,                                                                        

85 F.3d  743, 751 (1st Cir.  1996).  This means  that we must

view the prosecutor's  conduct in the  context of the  entire

trial  and that we may reverse only  if we conclude that, "'a

miscarriage of  justice would  otherwise result,'" or  that a

plain error "'seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.'" United States v.                                                                      

Olano, 507  U.S. 725,  736 (1993)(citations omitted);  United                                                                         

States  v. Josleyn,  99  F.3d  1182,  1197 (1st  Cir.  1996).                              

Appellant has failed to meet this "hard-to-satisfy standard."

United States v. Taylor, 54 F.3d 967, 977 (1st Cir. 1995).                                   

                             III.

The Prosecutor's Rebuttal                                     

     In  cross-examining  Iba ez, defense  counsel emphasized

the  fact that Iba ez had first told the authorities that the

drugs  belonged  to him  alone.    Defense counsel's  closing

argument  implied  that  Iba ez  had  changed  his  story  to

incriminate appellant only after he executed the government's                                            

plea agreement.8  Appellant  now contends that the prosecutor                           8

                                                    

   8Referring to Iba ez, defense counsel argued that, "it was               8
not until  the  government made  a  plea agreement  with  him
[that] he reverted (sic) his testimony."

                             -9-

engaged  in  improper witness-vouching  when he  attempted to

rebut defense counsel's insinuation  by referring to the plea

agreement as follows:

          ....  that piece  of  evidence  ...  will
          reflect  that  definitely Mr.  Iba ez was
          fully debriefed and examined prior to the
          signing  of the plea  agreement.   So the                                                               
          government    already     heard,    knew,                                                               
          investigated,   and    corroborated   the                                                               
          information  given by Iba ez prior to the                                                               
          signing of  the plea agreement  and prior                                                    
          to bringing him here to  testify [to] the
          facts to you.  Simply it did not become a
          magic  act as  presented by  defendant in
          saying that after the plea  agreement was
          made then he changed his -- his  version.
          No. 

          These things  are investigated thoroughly                                                               
          first before  even thinking of  signing a                                                               
          plea   agreement,  corroborated   by  the                                                               
          agency  and also  investigated.   So read                                                     
          the totality  of the plea  agreement, and
          you will see the terms of it.  Just don't
          take  a word  of mouth  explanation. Just
          read   the   evidence.   It's  there   in
          evidence.    So  you will  know  how this
          takes place, and that will assist  you in
          reaching the truth in your deliberations.
          (emphasis supplied). 

     "[A] prosecutor  may not  imply that the  government has

inculpatory  information that  is not  in evidence."   United                                                                         

States v. Manning, 23 F.3d 570, 573 (1st Cir. 1994)(citations                             

omitted).   Comments like, "the government  ... investigated,

and  corroborated the  information given  by Iba ez"  and the

remaining  language   emphasized   above  could   fairly   be

understood  to imply  that the  government had  an additional

source of  information from  which it learned  Iba ez's story

                             -10-

even  before he  agreed to  cooperate.   We agree  that these

remarks  crossed the  line  into improper  vouching, and  the

government essentially  concedes as much.   See United States                                                                         

v.  Tajjedini, 996  F.2d 1278, 1284  (1st Cir.  1993) (noting                         

that it is improper for a prosecutor to even "seem to rely on

matters not in evidence").

     Appellant  next assails  the  following  portion of  the

prosecutor's rebuttal, which was  made in response to defense

counsel's suggestion that appellant's apparent involvement in

the crime was an accident:

          Ladies  and gentlemen ... I submit to you
          [that  there  are] too  many coincidences
          for this to be a  mere accident.  This is                                                               
          how  drug  traffickers  work.    Some are                                                   
          smarter  than others  and will  tell you,
          listen, they almost caught me.  You carry
          the drugs.   Keep -- keep up  front.  I'm
          going  to stay  in the  back ...  in case
          something  happens. That's  what happened
          here:    a   very    shrewd   trafficker,
          Rodriguez, putting the other guy up front
          so  if he  gets  caught he  gets the  ...
          problem. (emphasis supplied).

Appellant  contends that  the  comment, "[t]his  is how  drug

traffickers work"  was an improper statement  of opinion that

was not supported by the evidence.9  We   agree   that   this                                              9

comment  evinces a poor choice of words.  While the statement

may have been construed as a simple rhetorical invitation  to

                                                    

   9Appellant argues that whether or not drug traffickers use               9
"mules"  to  avoid apprehension  in  the  way the  prosecutor
claimed that Iba ez was used here was a subject that required
an expert opinion before the prosecutor could comment on it.

                             -11-

find  appellant  guilty  based  on   Iba ez's  testimony,  it

arguably  implied  that  appellant  was  guilty  because  his

alleged conduct, as described  by Iba ez, was consistent with

the  prosecutor's experience  with  other  drug  traffickers.

Such  an implication  is, of  course, improper.   See,  e.g.,                                                                        

Tajjedini,  996 F.2d  at  1284 ("it  is  ... improper  for  a                     

prosecutor  to insert  his own  credibility or  opinions into

argument").   

     Nevertheless,  we  do  not  think  that   these  remarks

constitute plain error,  for the record  suggests that it  is

highly unlikely that  appellant was prejudiced by them.   See                                                                         

Olano,  507 U.S.  at 735  (specific showing  of prejudice  is                 

normally required  to establish plain error).10   To be sure,                                                         10

the government's case hinged  upon the credibility of Iba ez,

and  the government could ill afford  to vouch improperly for

him.    Nevertheless, both  of  the  remarks challenged  here

appear to be instances of  accidental overkill rather than  a

deliberate attempt  to mislead the jury.   Iba ez's testimony

                                                    

   10The  "plain error"  test requires  that we  consider the               10
prosecutor's  remarks   in  light   of  all  the   "attendant
circumstances,"  including  "(1)  the  extent  to  which  the
prosecutor's conduct is recurrent  and/or deliberate, (2) the
extent to which the  trial judge's instructions insulated the
jury  against,  or  palliated,   the  possibility  of  unfair
prejudice, and (3) the  overall strength of the prosecution's
case,  with  particular regard  to  the  likelihood that  any
prejudice might have affected  the jury's judgment."  Taylor,                                                                        
54  F.3d  at  977 (citation  omitted).    The  weight of  the
evidence  of guilt or innocence is  the most important factor
in this  analysis. See  Arrieta-Agressot v. United  States, 3                                                                      
F.3d 525, 528 (1st Cir. 1993).

                             -12-

was,  in  fact,  corroborated   by  the  plane  tickets,  the

passports, and the Western Union receipts that had been found

in  appellant's  luggage.    We think  it  likely  that  this

evidence   was  the   outside  corroboration  to   which  the

prosecutor  referred  in  his  remarks  concerning  the  plea

agreement  and that the jury understood as much.  Finally, we

note that the trial judge repeatedly instructed the jury that

the arguments of counsel do not constitute  evidence and that

its  decision was to  be based  on the  evidence alone.   The

record  indicates  that  the  jury  returned  three questions

before  reaching  its   verdict,  thus  indicating   that  it

carefully deliberated  over the elements of  the offenses and

did  not simply  accept  the prosecutor's  arguments at  face

value.11   We think this  sound evidence that the jury obeyed                  11

the court's instructions to resolve the case on  the evidence

and was not seduced to convict on speculation prompted by the

prosecutor's rebuttal.   Accordingly, we  are confident  that

the prosecutor's improper remarks did not so poison the trial

as to require reversal for plain error.12                                                   12

                                                    

   11The jury  requested a  copy of the  court's instructions               11
and  the relevant statutes.  It also requested that the court
clearly  define the  term  "possession" and  a  copy of  that
portion  of  Iba ez's  testimony   wherein  he  alleged  that
appellant had instructed him to carry all of the heroin. 

   12Appellant  also contends that  the prosecutor improperly               12
elicited evidence of Iba ez's prior bad  acts under the guise
of  fulfilling  the  plea  agreement's  requirement  that  he
testify truthfully and  that the trial judge should  not have
admitted  this testimony.  See  note 2, supra.  We agree that                                                         

                             -13-

The Arrest of Jose                                 

     Appellant next contends that the prosecutor violated his

Sixth Amendment right to  compulsory process by arresting his

star  witness, Jose Iba ez, solely  as a ploy  to prevent him

from  testifying  for  the  defense.    In  a  related  vein,

appellant contends that  defense counsel rendered ineffective

assistance  because he failed to  object to Jose's arrest and

failed  to seek a court  order that granted  Jose immunity or

required that the government do so.  Both  claims rely on the

following  additional facts,  some  of which  are beyond  the

scope  of  the  record  but  are  conceded  as  true  by  the

government.13                           13

     It appears  that Jose arrived in Puerto  Rico three days

after  appellant and  Iba ez were  arrested and  that he  was

immediately   questioned   and   released  by   the   customs

authorities, who found  no drugs.   A few  months later,  and

approximately eleven  days  before appellant's  trial  began,

Iba ez agreed to plead guilty and testify for the government.

Shortly thereafter, defense counsel announced that Jose would

                                                    

much  of this evidence might have been excluded.  But defense
counsel raised  no objection to  its admission.   Instead, he
relied on  it as grounds for  attacking Iba ez's credibility.
As Iba ez's criminal exploits were just as likely to make the
jury disbelieve  him as otherwise, we cannot say admission of
this evidence was plain error.

   13These  facts pertain  to appellant's  compulsory process               13
claim  and  one  of  his ineffective  assistance  of  counsel
claims.  The latter is discussed in part IV, infra.                                                              

                             -14-

be called  as a witness  for the defense.14   As noted above,                                                     14

Jose was arrested on the first day of appellant's trial, when

he arrived at the courthouse to testify for appellant.

     The record discloses that after announcing that Jose had

been arrested,  the Assistant  United States Attorney  (AUSA)

immediately agreed to make  Jose available to defense counsel

to interview and call  as a witness.   He also observed  that

Jose would  probably reevaluate with his  own counsel whether

he wished  to testify.  (Tr. 9-11).    Defense counsel  never

objected to Jose's  arrest.  Instead,  he proceeded with  the

trial and made no complaints about a violation of appellant's

right  to compulsory  process.   Appellant alleges  that "the

scuffle created  by" Jose's arrest prevented  defense counsel

from calling him as a witness.  He has submitted an affidavit

from his trial counsel to support this assertion.15                                                             15

                                                    

   14This  is  apparent  from  defense  counsel's  motion  to               14
continue  the  trial  (original  paper  #28).    That  motion
indicates that  defense counsel  first interviewed  a witness
who  could provide  exculpatory  testimony on  June 7,  1995,
i.e., five days after  Iba ez executed his plea agreement  on
June 2, 1995.  We presume that the witness identified  in the
motion is Jose.

   15Defense  counsel averred that  Jose could  have provided               15
material, exculpatory testimony to the effect that he did not
observe any  drug-related activities by  appellant during the
time  that they spent together  in Venezuela.   Once Jose was
arrested,  counsel  believed  that  his  ethical  obligations
prohibited  him  from  contacting  Jose until  after  he  was
properly represented by  counsel.  Counsel swore  that due to
the fact that he was "heavily engaged" in appellant's defense
during the course of the two-day trial, it was impossible for
him to ascertain the  status of Jose's case or  to coordinate
with  Jose's  counsel  to   address  Jose's  Fifth  Amendment

                             -15-

     Appellant now complains  that the  only explanation  for

the timing  of the arrest is  that it was  designed to compel

Jose to  invoke his privilege  against self-incrimination and

thereby deprive appellant of his testimony.16  At the  outset                                                       16

we  are compelled to observe  that this claim  was not raised

below.    A strong  argument  can be  made that  it  has been

waived.   Cf. United  States v.  Theresius Filippi, 918  F.2d                                                              

244, 246  (1st Cir.  1990)(holding defendant waived  right to

compulsory  process when defense  counsel decided  to proceed

with trial without material witness).   But as the government

does not  make  this argument,  we  will give  appellant  the

benefit  of the doubt and assume the claim was forfeited, not

waived. See Olano, 507 U.S. at 733-34 (discussing distinction                             

between  "waiver"  and "forfeiture").    This  benefit is  of

little moment, for the record, even as supplemented, does not

establish  that the  arrest of  Jose was  a plain  error that

violated appellant's right to compulsory process.    

     In  order  to  make out  a  violation  of  the right  to

compulsory  process,  the  appellant  must  show  that  "some

contested  act  or omission  (1)  can  be  attributed to  the

sovereign and  (2) causes  the loss  or erosion  of testimony

                                                    

concerns.  Counsel's affidavit  concludes with  the assertion
that "these circumstances prevented  me from calling ... Jose
...  as a witness despite  the fact that  his testimony could
ha[ve] changed the outcome of the trial." 

   16Appellant says that this  conclusion is bolstered by the               16
fact that Jose was ultimately acquitted on all charges. 

                             -16-

which  is both (3) material to  the case and (4) favorable to

the accused." United  States v. Hoffman, 832 F.2d  1299, 1303                                                   

(1st Cir. 1987).  "[C]ausation is an essential building block

in  ...[this] edifice,"  id.    It  is  on  this  block  that                                        

appellant's claim stumbles.   For while it is clear  that the

government  is responsible  for  Jose's arrest,  and we  will

assume, for  the sake  of argument  only, that his  testimony

would have  been material and exculpatory,  the record simply

does  not  show that  the arrest  caused  the loss  of Jose's

testimony.  Defense  counsel never subpoenaed  Jose.  He  did

not  even ascertain  that, if  subpoenaed, Jose  would indeed

invoke   the  Fifth   Amendment  and   decline   to  testify.

Consequently,  it  is not  at  all clear  that  Jose's arrest

actually rendered his testimony unavailable.  Accordingly, we

cannot say that this arrest was a "plain error" that violated

appellant's right  to compulsory process.   Cf. United States                                                                         

v.  Arboleda,  929  F.2d  858, 868  (1st  Cir.  1991)(holding                        

appellant failed to  establish government violated  his right

of access to a  witness where defense counsel  never formally

attempted to meet with witness).

                             IV.

Ineffective Assistance of Counsel Claims                                                    

     Appellant  argues that  defense counsel  was ineffective

because he  failed to object to the arrest of Jose and failed

to seek a court  order that either granted Jose  use immunity

                             -17-

or  required  that  the government  do  so.   Appellant  also

maintains that  defense counsel  erred by failing  to file  a

motion  to  suppress  the  evidence  seized  by  the  customs

inspectors. 

     As  a  general  rule,   this  court  does  not  consider

ineffective  assistance of  counsel claims  on direct  appeal

unless the critical facts  are not in dispute and  the record

is sufficiently developed to permit reasoned consideration of

the claim.  See, e.g.,   United States v. Collins, 60 F.3d 4,                                                             

7  n. 1 (1st Cir.  1995); United States  v. Natanel, 938 F.2d                                                               

302, 309 (1st Cir. 1991), cert. denied, 502 U.S. 1079 (1992).                                                  

We  do not  think  that the  present  record is  sufficiently

developed  to allow  us to dispose  of the  foregoing issues.

Accordingly,  we  decline  to  reach  appellant's ineffective

assistance  of counsel claims in the  context of this appeal.

Appellant  remains free to raise these issues in a motion for

post-conviction  relief under 28  U.S.C.   2255.   See, e.g.,                                                                        

United States v.  Mala, 7  F.3d 1058, 1063  (1st Cir.  1993),                                  

cert.  denied,  511  U.S.  1086  (1994).    The  judgment  of                         

conviction is otherwise affirmed.                                            

                             -18-
