
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
