
USCA1 Opinion

	




       [NOT FOR PUBLICATIONNOT TO BE CITED AS PRECEDENT]                 United States Court of Appeals                     For the First CircuitNo. 99-1607                          UNITED STATES,                            Appellee,                                v.                          CESAR CABRERA,                      Defendant, Appellant.           APPEAL FROM THE UNITED STATES DISTRICT COURT                 FOR THE DISTRICT OF RHODE ISLAND             [Hon. Mary M. Lisi, U.S. District Judge]                              Before                      Selya, Circuit Judge,                Campbell, Senior Circuit Judge,                   and Lipez, Circuit Judge.                                                                                                                                          John F. Sullivan on brief for appellant.     Margaret E. Curran, United States Attorney, Donald C. Lockhartand Stephanie S. Browne, Assistant United States Attorneys, onbrief for appellee.February 18, 2000                                                                            Per Curiam.   After a careful review of the record  and the submissions of the parties, we affirm.            Appellant Cesar Cabrera ("Cabrera") contends his  attorney below should have argued that Cabrera was subjected to  a de facto arrest unsupported by probable cause, so the  evidence subsequently seized from his car should have been  suppressed (the record shows Cabrera's attorney did in fact  advance this argument, so we will assume he means his attorney  should have more fully developed the argument).  He also  contends that his attorney should have argued that a statement  Cabrera made during a consensual search of his car, in which he  admitted to ownership of the bag containing heroin, should have  been suppressed because he had not yet been advised of his  rights under Miranda v. Arizona, 384 U.S. 436 (1966).  Since  the district court held an evidentiary hearing, the factual  record is fully developed and the only question presented is  whether counsel should have presented (or better developed)  these alternative legal theories.  In such a case, we may  consider ineffective assistance of counsel claims on direct  appeal.  United States v. Natanel, 938 F.2d 302, 309 (1st Cir.  1991) (appellate court may elect to consider ineffective  assistance of counsel claim on direct appeal "where the  critical facts are not genuinely in dispute and the record is  sufficiently developed to allow reasoned consideration of an  effective assistance claim").            Cabrera's first ineffective assistance of counsel  claim fails because the substantive argument clearly would not  have succeeded.  See Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir.  1999) ("Obviously, counsel's performance was not deficient if  he declined to pursue a futile tactic.").  At the point when  the officer removed Cabrera's keys from the ignition, he was,  according to the lower court's supportable factual findings,  conducting a search to which Cabrera had consented.  Cabrera  does not directly challenge those factual findings, but even if  he were to do so, we cannot see how he could establish clear  error.  See United States v. Jones, 187 F.3d 210, 214 (1st Cir.  1999) ("Where evaluations of witnesses' credibility are  concerned, we are especially deferential to the district  court's judgment . . . .").  Further, even if Cabrera had not  consented to a search at that point, the officer would have  been entitled to continue detaining Cabrera under Terry v.  Ohio, 392 U.S. 1 (1968), given Cabrera's evasive and  inconsistent answers to the officer's questions and his  excessively disproportionate nervous response.            Cabrera's contention that his attorney should have  argued for suppression of the statement made during the search  also fails.  Cabrera was not in custody at the time, so the  argument would have been futile.  See Jones, 187 F.3d at 217-  18.            Cabrera makes other vague allegations that his  counsel failed to communicate effectively, failed to brief  fully the suppression motion, and failed to investigate.  To  the extent these claims are understandable, the factual record  does not support any of them to the extent necessary to show  ineffective assistance.            Affirmed.  See 1st Cir. Loc. R. 27(c).
