                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 31 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30337

              Plaintiff - Appellee,              D.C. No. 2:08-cr-02097-LRS-1

  v.
                                                 MEMORANDUM *
ALBERT ZUNIGA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Eastern District of Washington
                  Lonny R. Suko, Chief District Judge, Presiding

                             Submitted July 13, 2010 **
                               Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and WALTER, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
         Albert Zuniga (“Zuniga”) appeals his conviction pursuant to 18 U.S.C. § 371

for conspiring with others to commit robbery of a United States postal truck. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

         Zuniga’s first basis for appeal is that the government improperly vouched

for the credibility of Raymond Pedroza (“Pedroza”), a confidential informant who

testified in this case. Because Zuniga’s defense counsel did not object to the

alleged vouching, this Court must review for plain error. United States v. Rivera,

43 F.3d 1291, 1295 (9th Cir. 1995). Reversal due to plain error is proper “only if,

viewed in the context of the entire trial, the impropriety seriously affected the

fairness, integrity, or public reputation of the judicial proceedings, or where failing

to reverse a conviction would result in a miscarriage of justice.” United States v.

Combs, 379 F.3d 564, 568 (9th Cir. 2004) (internal quotation marks and citation

omitted).

         Vouching occurs when the prosecutor “plac[es] the prestige of the

government behind a witness through personal assurances of the witness’s

veracity, or suggesting that information not presented to the jury supports the

witness’s testimony.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.

1993).

         The only improper vouching by the government alleged by Zuniga occurred

during the direct examination of Postal Inspector Henney. Inspector Henney was
asked the following question: “Concerning the information Raymond Pedroza

provided to you, how many of the facts have been determined to be false?”

Inspector Henney replied, “None of the statements that Pedroza gave us have been

proven false.” This single statement does not constitute vouching because Henney

did not provide personal assurance of Pedroza’s veracity, his response does not

suggest that there is additional information not presented to the jury, and there was

no inference the judge was monitoring Pedroza’s veracity.

      Zuniga also asserts a related and novel argument that his own trial attorney

improperly vouched for Pedroza. During the cross-examination of Inspector

Henney, Zuniga’s trial attorney asked the following question: “You believe that

Raymond Pedroza’s statements are credible, and that his stories add up, is that

correct?” Inspector Henney answered, “Yes, ma’am.” Shortly thereafter, she

asked: “So everything that Mr. Pedroza has said thus far you believe is accurate?”

Inspector Henney answered, “We have not proven anything he said to be

inaccurate.” When viewed in context, it becomes apparent that Zuniga’s trial

counsel asked the questions as part of her strategy to call doubt upon Pedroza’s

credibility. Thus, none of the challenged statements constitute improper vouching.

      Even if vouching had occurred it is not sufficient to constitute plain error,

which requires prejudice to such an extent that it would have affected the verdict.

The jury in this case heard undercover recordings of Zuniga himself discussing the
robbery with Pedroza and indicating his involvement. Based on a review of the

evidence presented in this case, we cannot find that the alleged errors would have

affected the verdict.

      Zuniga also asserts a direct appeal of his conviction based on alleged

ineffective assistance of counsel. As a general rule, this Court does not review

claims of ineffective assistance of counsel on direct appeal. United States v.

Benford, 574 F.3d 1228, 1231 (9th Cir. 2009) (citations omitted). The reasoning

behind the rule is that “ineffective assistance of counsel claims usually cannot be

advanced without the development of facts outside the original record.” Id.

(internal quotation and citation omitted). A habeas proceeding allows the court to

take testimony from witnesses of the defendant, prosecution, and from the counsel

alleged to have rendered the deficient performance. Massaro v. United States, 538

U.S. 500, 505 (2003).

      There are two “extraordinary exceptions” to the general rule where this

Court has proceeded with a review on direct appeal: “(1) where the record on

appeal is sufficiently developed to permit determination of the issue, or (2) where

the legal representation was so inadequate that it obviously denies a defendant his

Sixth Amendment right to counsel.” Benford, 574 F.3d at 1231 (internal quotation

and citation omitted).
      Zuniga cites the alleged acts of vouching by his trial attorney as evidence of

her ineffective representation. Zuniga also argues that his trial attorney asked

questions of Inspectors Rogers and Henney during cross-examination which

allowed them to provide their opinion as to his guilt or innocence. A review of the

transcript shows that the exchanges occurred while Zuniga’s trial attorney was

questioning the inspectors as to whether Pedroza had ever been considered the

primary suspect in the robbery, which calls into question Pedroza’s credibility.

      All of the alleged incidents of ineffective assistance of counsel cited by

Zuniga might amount to trial tactics employed by his attorney. Whether the tactics

fall below an objective standard of reasonableness within the range of competence

required of attorneys in criminal cases should be determined within the context of a

habeas proceeding.

      Zuniga’s final argument on appeal is that there was cumulative error

requiring reversal. Because we find that no error has occurred in this case, it

follows that there can be no cumulative error which would require reversal.

      AFFIRMED.
