                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                   PUBLISH
                                                                        DEC 16 1997
                    UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT




 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

             v.                                        No. 97-2122

 ISRAEL CARTER, JR.,

       Defendant-Appellant.




                  Appeal from the United States District Court
                        for the District of New Mexico
                           (D.C. No. CR-96-248-JC)


Stephen P. McCue, Assistant Federal Public Defender, Albuquerque, New
Mexico, for the appellant.

David N. Williams, Assistant United States Attorney (John J. Kelly, United States
Attorney, and Charles L. Barth, Assistant United States Attorney, with him on the
brief), Albuquerque, New Mexico, for the appellee.


Before PORFILIO, McKAY, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge.
      Defendant Israel Carter, Jr., appeals his convictions for conspiracy to

possess with intent to distribute cocaine, 21 U.S.C. §§ 846 and 841(a)(1), and

possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B),

claiming (1) the district court erred in denying his requested instructions on

venue; (2) the evidence presented at trial was insufficient to support his

convictions; (3) he was denied effective assistance of counsel during plea

negotiations; and (4) the government was presumptively vindictive in refusing to

renew a plea offer extended to him prior to his first trial. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291, and affirm the conspiracy conviction, reverse the

possession with intent to distribute conviction, and remand with directions to

vacate that conviction and resentence.

                                          I.

      On May 31, 1995, Michael Pelligrini and Tony Savilla, two DEA task force

officers, were looking for possible drug couriers at a Greyhound bus station in

Albuquerque. A bus en route from Los Angeles to New York arrived at the

station at approximately 3:15 p.m., and all of the passengers got off the bus so

that the bus could be cleaned and serviced. The officers boarded the bus to look

at baggage being transported by the passengers and noticed a new bag with plastic

wrapping material on the handles. Because drug couriers typically use new bags

to transport drugs, Savilla touched the bag and felt two brick-type objects. When


                                         -2-
the passengers reboarded the bus, the officers inquired about each passenger’s

baggage and discovered the bag belonged to a passenger whose bus ticket

identified her as Anthlia Jackson, but whose real name is Anthlia Craft. Her bus

ticket indicated she was traveling from Los Angeles to Tulsa. The officers

searched the bag, along with another bag being transported by Craft, and

discovered two kilograms of cocaine in the new bag and clothing in both bags.

Craft was arrested, and a controlled delivery of the cocaine to Craft’s connection

in Tulsa was arranged.

      Pelligrini, Savilla, Craft, and Mark Barela, another task force agent,

traveled by air to Tulsa on June 1, 1995. The officers arranged for a state trooper

to stop the bus approximately ten to fifteen miles from the Tulsa bus station.

Pelligrini, Savilla, and Craft reboarded the bus, carrying Craft’s two bags. When

the bus arrived at the Tulsa station between 6:00 and 6:15 a.m., Craft got off the

bus with her two bags and walked to a pay phone. She placed a call to a pager

number. Approximately five minutes later, Craft placed a second call to a pager

number. The task force agents located outside the station observed Carter arrive

at the station in a red Mustang automobile. Carter entered the bus station a few

minutes after the second call to the pager number, approached Craft, and began

talking to her. Carter and Craft then left the station with Carter carrying the new

bag containing the cocaine and Craft carrying the other bag. As Carter neared the


                                         -3-
driver-side door of his Mustang, a local sheriff’s officer drove a vehicle with

official markings and flashing lights up to the Mustang and blocked its

movement. Other officers also approached Carter. Barela, who was wearing a

DEA raid jacket, pointed his handgun at Carter and yelled, “Police officer. Halt.

Freeze.” R. II at 128. Carter, who was approximately fifteen to twenty feet from

Barela, looked at Barela, placed the bag containing the cocaine on the ground, and

began walking at a fast pace toward the bus station and toward Barela. Barela

continued to command Carter to halt, but Carter did not heed the commands.

Barela began walking toward Carter to prevent him from reaching the street and

as they neared each other, Carter walked between Barela and the building. With

the assistance of other officers, Barela knocked Carter to the ground and arrested

him.

       After Carter was taken to the Tulsa DEA task force office, he was searched

and a pager and approximately $1,948 in cash were recovered. Two messages

from the pay phone at the bus station, which corresponded to the two calls placed

by Craft, were still on the pager. Carter agreed to waive his rights and be

interviewed. He told the officers Craft’s sister had asked him to pick up Craft at

the bus station. Although he acknowledged knowing Craft for approximately five

years, he could not remember the name of Craft’s sister or her telephone number.

As for the cash, Carter told the officers he had received approximately $3,000


                                         -4-
from his mother as a portion of an insurance settlement she had received. He told

the officers he mowed lawns for a living and had earned approximately $100 each

for three lawns in the week prior to the incident. Finally, Carter told the officers

he lived in Okmulgee, approximately thirty-eight miles from the bus station. An

officer subsequently drove from Okmulgee to the bus station and testified at trial

that the trip took forty-two minutes, indicating Carter could not have driven from

his home to the station after receiving the pages from Craft.

      Carter was originally indicted in Oklahoma federal court on June 7, 1995,

on one count of possession with intent to distribute cocaine, but the case was

dismissed. He was reindicted with Craft on July 7, 1995, in federal district court

in New Mexico on one count of conspiracy to possess cocaine with intent to

distribute and possession of cocaine with intent to distribute. His court-appointed

counsel, Edward Bustamante, moved to withdraw as Carter’s counsel. The court

denied the motion. On March 19, 1996, the government faxed Bustamante a letter

with a proposed plea agreement for a 57-month sentence in exchange for a guilty

plea. Carter rejected the proposed plea agreement. The indictment was

subsequently dismissed without prejudice for violation of the Speedy Trial Act.

      Carter was indicted for the third time on May 9, 1996, for conspiracy and

possession with intent to distribute. On July 7, 1996, a superseding indictment

was filed charging Carter and Craft with the same counts charged in the May 9


                                          -5-
indictment. Carter was represented by Bustamante at trial and was convicted by a

jury of both counts on July 23, 1996. Bustamante again moved to withdraw and

the motion was granted. The district court appointed Jacquelyn Robins to

represent Carter. Robins filed a motion for judgment of acquittal and a motion

for new trial. The court granted the motion for new trial with no detailed

explanation. However, at Carter’s second trial, the district court explained to the

jury why the motion for new trial had been granted:

             This case has several wrinkles to it, ladies and gentlemen. It’s the
      second time I’ve tried it. The first time I tried it, the government in their
      opening statement and throughout the trial was of the opinion that the
      codefendant [Craft] was going to testify, and at the last minute she did not
      testify.
             Well, the government had told the jury everything she was going to
      say in their opening statement, so I had to grant--I granted a new trial,
      based on the misunderstanding that the government had that she was going
      to testify.
             She told the government, I think, the day or two before the trial that
      her house had been broken in to and that she had been threatened. And I
      think she had a child or something, and the child was threatened.
             So Mr. Carter got a new attorney, Ms. Robins. Based on--I made a
      finding of ineffective assistance of counsel on behalf of his other attorney,
      so we got him a new attorney.

R. IV at 262-63.

      Prior to his second trial, Carter tried unsuccessfully to persuade the

government to renew the original plea offer. The case proceeded to trial and

Carter was convicted a second time on both counts. His motions for judgment of

acquittal were denied. Carter then filed a motion to require the government to


                                         -6-
renew its original plea offer. He argued the original plea offer was denied due to

a lack of attorney/client relationship between Carter and his counsel, Bustamante.

This motion was also denied. At sentencing, the court asked Carter why he had

turned down the original plea offer. Carter stated that Bustamante did not

initially advise him to take the 57-month offer, but instead told him he could

likely get a similar or better bargain if his motion to dismiss on speedy trial

grounds was granted. In response to these representations by Carter, the

government requested that sentencing be rescheduled to allow Bustamante to

testify.

       At the rescheduled sentencing hearing, Bustamante testified he was

involved in plea negotiations with the government and had received the

government’s March 19 letter offering Carter a 57-month term of imprisonment in

return for his plea of guilty. Bustamante testified he discussed the government’s

March 19 letter with Carter and specifically told Carter he would likely face a

sentence of thirty years to life if he went to trial and was convicted because he

was a career criminal. Bustamante further testified that he urged Carter to take

the government’s plea offer. During their discussion, Carter asked him what

would happen if the court granted his motion to dismiss on speedy trial grounds.

According to Bustamante, he told Carter the government would likely reindict

him. Bustamante stated, “I told him if he won the motion, it was possible he


                                          -7-
would get another offer, but it never went farther than that.” R. VI at 16. Carter

testified at the rescheduled sentencing hearing as well. He testified Bustamante

told him if he was successful on the motion to dismiss, he would go to the

prosecutor and ask for a sentence of three or four years. At the conclusion of the

testimony, the district court found Bustamante had unequivocally advised Carter

to take the original plea offer, but that Carter had decided not to take the offer.

Based on these findings, the court rejected Carter’s request for downward

departure on the basis of ineffective assistance of counsel at the time of the

original plea offer and sentenced Carter to 262 months’ imprisonment.

                                          II.

                                 Venue instruction

      Carter contends the district court erred in failing to instruct the jury on

venue. Carter submitted two proposed instructions concerning venue, one for

each count. The court refused to give the instructions, concluding venue existed

as a matter of law.

      Venue is a question of fact that ordinarily must be decided by the jury.

United States v. Miller, 111 F.3d 747, 749 (10th Cir. 1997). More specifically, it

is an element of the prosecution’s case that must be proved by a preponderance of

the evidence. Id. at 749-50 (citing United States v. Record, 873 F.2d 1363, 1366

(10th Cir. 1989)). In this circuit, “venue is [deemed to be] in issue not only when


                                          -8-
there is a question about where the crime occurred, ‘but also . . . when defendants

can be convicted of the offenses charged without an implicit finding that the acts

used to establish venue have been proven.’” Id. at 751 (quoting United States v.

Moeckly, 769 F.d. 453, 461 (8th Cir. 1986)). “[F]ailure to instruct on venue,

when requested, is reversible error unless it is beyond a reasonable doubt that the

jury’s guilty verdict on the charged offense necessarily incorporates a finding of

proper venue.” Id. More specifically, “[t]he question . . . is not whether the

evidence, if believed by the jury, is sufficient to establish venue, but whether the

jury as a matter of logical necessity made a finding on the omitted element in

order to reach the verdict actually rendered.” Id. at 753.

      Because Carter timely requested a venue instruction with respect to both

counts of the indictment, the district court’s refusal to give the instructions is

reversible error unless we can conclude the jury’s guilty verdict on each count

necessarily incorporated a finding of proper venue.



The conspiracy conviction

      The indictment in this case alleged a conspiracy “[o]n or about the 31st day

of May and 1st day of June, 1995, in Bernalillo County, in the State and District

of New Mexico, and elsewhere.” R. I, doc. 82, instr. 7b. Although the jury was

not instructed it must find either an agreement or an overt act in furtherance of


                                          -9-
the conspiracy in New Mexico, its guilty verdict on this count necessarily

incorporated a finding that an overt act was committed in New Mexico. More

specifically, by finding Carter and Craft conspired to possess with intent to

distribute cocaine, the jury necessarily had to find the agreement existed at the

time Craft was arrested in New Mexico when she committed the uncontroverted

overt act of transporting cocaine. It is inconceivable that Craft boarded the bus in

Los Angeles carrying a large quantity of high purity cocaine without a plan to

distribute it once she arrived in Tulsa. Likewise, it is inconceivable the jury

found the agreement between Carter and Craft was reached on the morning of her

arrival at the Tulsa bus station. All of the circumstantial evidence suggests Carter

and Craft had prearranged for Carter to pick up Craft when she arrived at the bus

station, and that Carter was well aware Craft was carrying the cocaine with her.

Thus, the jury’s verdict on the conspiracy count necessarily includes a finding

that the conspiracy existed at the time Craft was transporting the cocaine through

New Mexico (as well as in Oklahoma and other states through which Craft

traveled), and venue is satisfied. See Record, 873 F.2d at 1366 (in a conspiracy

case, venue is proper in any district in which either conspiratorial agreement is

reached or an overt act in furtherance of conspiracy is committed by any of the

conspirators).




                                         -10-
The possession conviction

      Count II of the indictment charged that “[o]n or about the 31st day of May

and 1st day of June, 1995, in Bernalillo County, in the State and District of New

Mexico, and elsewhere, the defendant, ISRAEL CARTER, JR., and Anthlia Leona

Craft, a/k/a Angie Johnson, a/k/a Archalia Leona Jackson, did unlawfully,

willfully, knowingly and intentionally possess with intent to distribute 500 grams

and more of a mixture and substance containing a detectable amount of Cocaine, a

Schedule II controlled substance.” R. I, doc. 82, instr. 7b. At trial, the jury was

instructed on both actual and constructive possession, and was told: “You may

find that the element of possession, as that term is used in these instructions, is

present if you find beyond a reasonable doubt that the defendant had actual or

constructive possession, either alone or jointly with others.” Id., instr. 7h.

Although the government argued Carter constructively possessed cocaine in

Albuquerque through Craft’s possession of the drug in that locale, it is

conceivable the jury could have based its guilty verdict in Count II on Carter’s

actual possession of the cocaine in Tulsa. Moreover, although it was

uncontroverted that Craft was in possession of cocaine in New Mexico, it is at

least theoretically possible the jury concluded Carter did not have sufficient

control over her to have constructive possession of the cocaine in New Mexico.

Thus, we conclude the jury’s verdict on Count II does not necessarily incorporate


                                          -11-
a finding of proper venue and we reverse Carter’s conviction for possession with

intent to distribute.

                                        III.

                            Sufficiency of the evidence

       Carter contends the evidence presented at trial was insufficient to support

his convictions. Sufficiency of the evidence is a question of law subject to de

novo review. United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997).

Evidence is sufficient to support a conviction if the evidence and reasonable

inferences drawn therefrom, viewed in the light most favorable to the

government, would allow a reasonable jury to find the defendant guilty beyond a

reasonable doubt. Id. In examining the evidence, “we evaluate the sufficiency of

the evidence by ‘consider[ing] the collective inferences to be drawn from the

evidence as a whole.’” Id. (quoting United States v. Hooks, 780 F.2d 1526, 1532

(10th Cir. 1986)). We will not overturn a jury’s finding unless no reasonable

juror could have reached the disputed verdict. See, e.g., United States v. Chavez-

Palacios, 30 F.3d 1290, 1294 (10th Cir. 1994); United States v. Hoenscheidt, 7

F.3d 1528, 1530 (10th Cir. 1993).




                                        -12-
The conspiracy conviction

      To find a defendant guilty of conspiracy in violation of 21 U.S.C. §§

841(a)(1) and 846, the jury must find, beyond a reasonable doubt, (1) an

agreement with another person to violate the law, (2) knowledge of the essential

objectives of the conspiracy, (3) knowing and voluntary involvement, and (4)

interdependence among the alleged conspirators. United States v. Lopez, 100

F.3d 113, 118 (10th Cir. 1996). As outlined below, the record in this case

contains sufficient evidence for a rational trier of fact to find each of the essential

elements of conspiracy beyond a reasonable doubt.

      It is permissible for the jury to infer an agreement constituting a conspiracy

“from the acts of the parties and other circumstantial evidence indicating concert

of action for the accomplishment of a common purpose.” United States v.

Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994). Here, there was no direct evidence

of an agreement between Carter and Craft to violate the law. However, based

upon their uncontroverted actions, as well as other circumstantial evidence, the

jury could have reasonably inferred that Carter and Craft had agreed to distribute

cocaine in Tulsa. The jury knew Craft was traveling from Los Angeles to Tulsa

with two kilos of cocaine, an amount far greater than normally found for purposes

of personal use. Further, a chemist testified the purity level of one package of

cocaine was 86 percent and the other was 87 percent, and that “street level”


                                          -13-
cocaine typically has a purity level of approximately 20 percent. Based on this

evidence, the jury reasonably could have concluded Craft was transporting the

cocaine to Tulsa for distribution. The jury also heard uncontroverted evidence

concerning the controlled delivery of the cocaine to Carter. It is uncontroverted

that Craft arrived at the bus station and paged Carter, and that Carter arrived at

the station a few minutes later. Carter was apparently waiting for Craft’s page

and knew where to go when he was paged because he did not return Craft’s pages

before arriving at the bus station. It is further uncontroverted that Carter and

Craft left the bus station together and walked toward Carter’s car with Carter

carrying the bag containing the cocaine. It is also uncontroverted that Carter

acted in an evasive manner when confronted by DEA agents. He ignored

directions to stop, dropped the bag, attempted to walk quickly past one of the

officers, and could only be stopped by the officers wrestling him to the ground.

Finally, it is uncontroverted that Carter was carrying a pager and a large amount

of cash when he was arrested. We conclude this evidence, considered together, is

more than sufficient to allow a reasonable jury to infer that Carter was involved

with Craft in the scheme to distribute cocaine.

      For reasons outlined above, we conclude the evidence presented at trial was

also sufficient to allow a reasonable jury to infer that Carter had “a general

awareness of both the scope and the objective” of the conspiracy. United States


                                         -14-
v. Evans, 970 F.2d 663, 670 (10th Cir. 1992); see also United States v. Christian,

786 F.2d 203, 211 (6th Cir. 1986) (“defendant’s guilty knowledge and voluntary

participation may be inferred from surrounding circumstances”). In particular,

Carter’s guilty knowledge could be inferred from his actions at the bus station

after he was confronted and by his lies to DEA officers after he was arrested.

This guilty knowledge, coupled with his actions in picking up Craft and carrying

the bag containing the cocaine, is sufficient to demonstrate his awareness of the

essential objective of the conspiracy (i.e., possess cocaine with intent to

distribute).

      A jury may presume a defendant is a knowing participant in the conspiracy

when he or she acts in furtherance of the objective of the conspiracy. United

States v. Brown, 995 F.2d 1493, 1502 (10th Cir. 1993). For reasons outlined

above, we conclude there was sufficient evidence to satisfy this element.

      Interdependence exists where each coconspirator’s activities constitute

essential and integral steps toward the realization of a common, illicit goal.

United States v. Edwards, 69 F.3d 419, 432 (10th Cir. 1995). Here, the jury

reasonably could have inferred that Craft was the courier for the cocaine and that

Carter picked up Craft at the bus station to assist her in distributing the cocaine.

Thus, the jury reasonably could have inferred that Carter was dependent on Craft

to smuggle the cocaine to Tulsa, and Craft was dependent on Carter to assist her


                                          -15-
in the distribution process once she arrived in Tulsa.



The possession conviction

      To support a conviction of possession with intent to distribute, “the

evidence must prove beyond a reasonable doubt the following elements: ‘(1) the

defendant knowingly possessed the illegal drug; and (2) the defendant possessed

the drug with the specific intent to distribute it.’” United States v. Reece, 86 F.3d

994, 996 (10th Cir. 1996) (quoting United States v. Gonzales, 65 F.3d 814, 818

(10th Cir. 1995), cert. denied 116 S. Ct. 2522 (1996)). 1 Possession may be actual

or constructive. Reece, 86 F.3d at 996. As noted by Carter, the possession

charge in this case centered around Craft’s possession of the cocaine in New

Mexico (where Carter was charged and tried) rather than on Carter’s actual

possession of the cocaine in and outside the Tulsa bus station. Thus, to support

Carter’s conviction on this charge, there must be evidence he constructively

possessed the cocaine Craft was carrying in New Mexico. An individual



      1
         Although we have determined Carter’s conviction for possession with intent to
distribute must be reversed because the jury’s verdict does not necessarily incorporate a
finding of proper venue, we must still determine whether the evidence was otherwise
sufficient to support his conviction on that charge. See United States v. Johnson, 120
F.3d 1107, 1108 n.1 (10th Cir. 1997). If, as Carter contends, the evidence was not
otherwise sufficient to support the charge, the government would be preluded from
retrying Carter on that charge under the Double Jeopardy Clause of the Fifth Amendment.
Id.

                                          -16-
constructively possesses property when he knowingly holds the power and ability

to exercise dominion and control over the property. United States v. Ruiz-Castro,

92 F.3d 1519, 1531 (10th Cir. 1996). Constructive possession has been

alternatively defined by this court as “‘an appreciable ability to guide the destiny

of the drug.’” Id. (quoting United States v. Massey, 687 F.2d 1348, 1354 (10th

Cir. 1982)). “In order to establish constructive possession, the government must

establish that there was a sufficient nexus between the accused and the drug.” Id.

“Constructive possession may be established by circumstantial evidence and may

be joint among several individuals.” Id.

      After reviewing the record on appeal, we conclude there is sufficient

evidence to demonstrate Carter’s constructive possession of the cocaine in New

Mexico. “As possession with intent to distribute was the contemplated crime of

the conspiracy, [defendant] is deemed to possess the [controlled substance]

through his co-conspirators’ possession.” United States v. Medina, 887 F.2d 528,

532 (5th Cir. 1989); see also United States v. Gallo, 927 F.2d 815, 823 (5th Cir.

1991). In light of Carter’s agreement with Craft to transport the cocaine to Tulsa

for distribution, it is reasonable to infer Carter had the ability to guide the

destination of the cocaine and was thus constructively in possession of the

cocaine as it passed through New Mexico. 2 In any event, Carter was also charged

      2
          In reviewing the venue issue raised by Carter, we concluded the jury’s verdict on
                                                                               (continued...)

                                            -17-
with aiding and abetting Craft’s possession of the cocaine in violation of 18

U.S.C. § 2, and the jury was specifically instructed on aiding and abetting. “The

evidence that supports a conviction for conspiracy can also be used to support a

conviction for aiding and abetting in the possession of illegal narcotics with intent

to distribute.” Gallo, 927 F.2d at 822. Thus, in light of the evidence outlined

above in the discussion of the conspiracy charge, we conclude there is sufficient

evidence to support a conviction for aiding and abetting in Craft’s possession of

the cocaine.

                                            IV.

                           Ineffective assistance of counsel

       Carter contends he was denied effective assistance of counsel in deciding

whether to accept the government’s 57-month plea offer prior to the first trial. He

argues he would have accepted the plea offer if he had been counseled

effectively. Carter argues deprivation of this constitutional right entitles him to

an opportunity to accept the original plea offer and be sentenced accordingly.




       (...continued)
       2

the possession charge did not necessarily incorporate a finding that Carter had sufficient
control over Craft to have constructive possession of the cocaine in New Mexico. In
reviewing the sufficiency of the evidence issue raised by Carter on this same charge, we
apply a different standard of review, one that requires us to view the evidence in the light
most favorable to the government. Under this standard, we conclude sufficient evidence
was presented by the government to have allowed the jury to determine Carter had control
over Craft, and thus had constructive possession of the cocaine in New Mexico.

                                            -18-
      The general rule in this circuit is that ineffective assistance of counsel

claims should be brought in collateral proceedings rather than on direct appeal.

United States v. Gallegos, 108 F.3d 1272, 1279 (10th Cir. 1997). The reason for

this rule is straightforward:

      A factual record must be developed in and addressed by the district court in
      the first instance for effective review. Even if evidence is not necessary, at
      the very least counsel accused of deficient performance can explain their
      reasoning and actions, and the district court can render its opinion on the
      merits of the claim.

United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). An

exception to the general rule exists in rare circumstances where the ineffective

assistance claim has been adequately developed by the district court prior to

appeal. In such circumstances we can agree to consider the claim on direct

appeal. Gallegos, 108 F.3d at 1280.

      Having reviewed the record on appeal, we conclude this is one of the rare

instances where a claim of ineffective assistance has been sufficiently developed

by the district court to allow review of the claim on direct appeal. Carter raised

the ineffective assistance claim in a post-trial motion (after the first trial) entitled

“Motion to Require Renewal of Plea Proposal,” as well as in a subsequent motion

entitled “Pre-sentence Request for Downward Departure.” At the sentencing

hearing, the court heard testimony from both Carter and Bustamante concerning

their discussions about the government’s plea offer. At the conclusion of that


                                           -19-
testimony, the court found Bustamante was not ineffective and that Carter “rolled

the dice and lost.” R. VI at 23. In light of this record, we will proceed to review

Carter’s claim rather than requiring him to pursue it through a § 2255 motion.

      The district court’s finding that Bustamante was not ineffective is a mixed

question of fact and law which we review de novo. United States v. Blackwell,

127 F.3d 947, 1997 WL 631434 at *7 (10th Cir. 1997). However, the factual

findings that underlie the ultimate finding are reviewed only for clear error. Id.

      To prevail on this claim, Carter must demonstrate Bustamante’s

performance “fell below an objective standard of reasonableness,” and that

Bustamante’s deficient performance was so prejudicial there is a reasonable

probability that, but for his unprofessional errors, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 688 (1984).

With respect to the first part, effective assistance of counsel includes counsel’s

informed opinion as to what pleas should be entered. Boria v. Keane, 83 F.3d 48,

53 (2d Cir. 1996). As for the prejudice prong, there must be a reasonable

probability that but for incompetent counsel a defendant would have accepted the

plea offer and pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      Carter cannot demonstrate that Bustamante’s performance was deficient or

that he would have accepted the government’s plea offer if he had been given

additional information by Bustamante. The record on appeal clearly indicates


                                         -20-
Bustamante advised Carter of the risk he would face if he went to trial (i.e., a

possible thirty-year to life sentence because of his career criminal status) and

urged Carter to accept the plea offer. In response to questions from Carter,

Bustamante did advise him the government might extend a similar plea offer if the

motion to dismiss on speedy trial grounds was granted. However, Bustamante

made no promises concerning whether such an offer would be extended and,

indeed, urged Carter to accept the existing plea offer. Although Carter alleges

Bustamante told him he might receive a more favorable offer, Bustamante’s

testimony does not support this allegation and the court clearly chose to believe

Bustamante on this point. Finally, the record reflects Carter himself, armed with

full knowledge of the ramifications of his decision, decided to reject the 57-

month plea offer. We therefore reject Carter’s claim of ineffective assistance of

counsel.

                                          V.

                    Government’s refusal to renew plea offer

      Carter contends the government was presumptively vindictive when it

refused to renew the offer of its original 57-month plea agreement prior to the

second trial. Carter sought renewal of the original plea offer after the district

court had granted his motion for new trial.




                                         -21-
      Because the very purpose of instituting criminal proceedings against an

individual is to punish, the mere presence of a punitive motivation behind

prosecutorial action does not render such action unconstitutional. United States

v. Contreras, 108 F.3d 1255, 1262 (10th Cir.), cert. denied 118 S. Ct. 116 (1997).

However, while it is perfectly acceptable for a prosecutor to “penalize a defendant

for violating the law, a prosecutor may not punish a defendant for ‘exercising a

protected statutory or constitutional right.’” Id. (quoting United States v.

Goodwin, 457 U.S. 368, 372 (1982)). Accordingly, in analyzing a claim of

prosecutorial vindictiveness, a court must focus on whether “‘as a practical

matter, there is a realistic or reasonable likelihood of prosecutorial conduct that

would not have occurred but for hostility or punitive animus toward the defendant

because he exercised his specific legal right.’” Id. (quoting United States v.

Raymer, 941 F.2d 1031, 1042 (10th Cir. 1991)). To establish a claim of

prosecutorial vindictiveness, “the defendant must prove either (1) actual

vindictiveness, or (2) a reasonable likelihood of vindictiveness which then raises

a presumption of vindictiveness.” Id. If defendant can meet this burden, the

prosecution must justify its decision with legitimate, articulable, objective

reasons. Id. However, if defendant cannot meet this burden, a reviewing court

need not reach the issue of the government’s justification. Id. at 1263.




                                         -22-
      Here, Carter has not asserted actual vindictiveness on the part of the

government. Rather, he contends a reasonable likelihood of vindictiveness exists

because of the government’s refusal to renew its original plea offer after the

district court granted his motion for new trial following his original conviction.

In support of his contention, Carter relies on Turner v. State, 940 F.2d 1000 (6th

Cir. 1992).

      In Turner, defendant was indicted on two counts of aggravated kidnaping

and one count of felony murder in Tennessee. Prior to trial, the prosecutor

offered defendant a two-year prison term in return for a guilty plea to lesser

charges, but defendant rejected the offer on the advice of counsel. Defendant was

subsequently convicted on all counts and sentenced to life imprisonment for the

murder conviction and to forty years for each kidnaping conviction. He was

subsequently granted a new trial on the grounds of ineffective assistance of

counsel in rejecting the two-year plea offer. Although plea negotiations were

reopened, the prosecutor refused to offer less than twenty years’ imprisonment.

Defendant exhausted his state remedies and then filed a habeas petition in federal

court. The court concluded the appropriate remedy for violation of defendant’s

Sixth Amendment rights would be a new plea hearing during which a rebuttable

presumption of prosecutorial vindictiveness would attach to any plea offer in

excess of the original two-year offer. The Sixth Circuit affirmed the district


                                         -23-
court, concluding there was a realistic likelihood of vindictiveness that demanded

application of a rebuttable presumption of vindictiveness to any plea offer in

excess of the original two-year offer. In partial support, the majority noted: “The

prosecution is unlikely to gain any new insight as to the moral character of the

defendant, the nature and extent of the crime, or the defendant’s suitability for

rehabilitation at the conclusion of trial that it did not already possess from its

extended investigation.” Id. at 1002.

       We conclude the holding in Turner must be confined to its clearly narrow

circumstances. Here, unlike in Turner, Carter was not granted a new trial because

of ineffective assistance of counsel during plea negotiations. As the granting of a

new trial had nothing to do with the plea negotiations, the government was under

no obligation to renew its original plea offer (indeed, that offer expired well prior

to the beginning of the first trial). Moreover, contrary to the findings in Turner,

we conclude the government here was in a different position prior to the second

trial than it was prior to the first trial. Specifically, as a result of the convictions

in the first trial, the government was well aware it could obtain convictions on

both counts of the indictment without Craft’s testimony. Thus, there was little

reason to offer Carter a “sweetheart” deal. In addition, there was some indication

that Carter may have been responsible for the threat on Craft prior to the first

trial. Under such circumstances, the government could have realistically changed


                                           -24-
its opinion about Carter’s character and/or suitability for rehabilitation and

decided it was not appropriate to renew its original plea offer. We conclude no

presumption of prosecutorial vindictiveness should attach under the circumstances

of this case.




                                         VI.

       We AFFIRM Carter’s conviction for conspiracy to possess with intent to

distribute cocaine. We REVERSE Carter’s conviction for possession with intent

to distribute cocaine and REMAND to the district court with directions to vacate

the possession with intent to distribute cocaine conviction and for resentencing.




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