
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1234                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                      HECTOR GUZMAN, a/k/a HECTOR GUZMAN RIVERA,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED SATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                [Hon. Gilberto Gierbolini, Senior U.S. District Judge]                                           __________________________                              _________________________                                        Before                         Selya and Cummings,* Circuit Judges,                                              ______________                          and Coffin, Senior Circuit Judge.                                      ____________________                              _________________________               Gabriel Hernandez Rivera on brief, and Hector Guzman Rivera,               ________________________               ____________________          pro se ipso, on supplemental brief, for appellant.          ___ __ ____               John C. Keeney,  Acting Assistant Attorney General,  Theresa               ______________                                       _______          M.B. Van Vliet and Philip Urofsky, Criminal Division,  U.S. Dept.          ______________     ______________          of Justice, and  Guillermo Gil, United States Attorney,  on brief                           _____________          for appellee.                              _________________________                                     June 7, 1996                              _________________________          ____________          *Of the Seventh Circuit, sitting by designation.                    SELYA, Circuit Judge.   This appeal raises, inter alia,                    SELYA, Circuit Judge.                           _____________                        _____ ____          the question  whether  defendant-appellant Hector  Guzman  Rivera          (Guzman) was twice  put in  jeopardy for the  same offense,  thus          violating  his  Fifth Amendment  rights.    Discerning neither  a          constitutional flaw  nor any  other significant error,  we affirm          the judgment below.          I.  BACKGROUND          I.  BACKGROUND                    The  indictment in this  case arises out  of an aborted          drug smuggle  that took the appellant by  sea from Puerto Rico to          the  island   of  St.  Maarten  in   the  Netherlands  Antilles.1          According  to the appellant's  uncontradicted allegations, Victor          Ayala,   an  agent   of  the   United  States   Drug  Enforcement          Administration  (DEA), followed  the LEE  MARY (captained  by the          appellant)  to St. Maarten in August 1990, and then surveilled it          for two days.   At  this juncture Dutch  authorities boarded  the          ship, searched  her, seized  seventy-three kilograms  of cocaine,          and detained several  persons.  The appellant alleges  that Ayala          joined in the  search, but  the United States  maintains that  he          merely observed it  from his surveillance post.  At  any rate, it          is  undisputed that after the search had begun Ayala informed the          Dutch  authorities of  Guzman's  involvement.   Local police  ran          Guzman to ground nearby and arrested him.                    The  Dutch  government  charged  Guzman  with  a  crime          involving possession  of the  cocaine stashed  on  board the  LEE                                        ____________________               1Further details of the  failed drug-smuggling operation can          be  found in our opinion  in United States  v. LaBoy-Delgado, ___                                       _____________     _____________          F.3d ___ (1st Cir. 1996) [No. 95-1863].                                          2          MARY.  He was tried, convicted, and sentenced to a ten-year  term          of  immurement  in  St. Maarten.    He  escaped in  May  of 1992.          Approximately  seven months later the DEA  arrested him in Puerto          Rico when he  attempted to  sell heroin to  an undercover  agent.          After being  found guilty of that  crime he was sentenced  to 147          months' imprisonment.                    The appellant's troubles were  not yet behind him:   in          November  of 1993,  federal authorities  in Puerto  Rico indicted          several individuals (including Guzman)  for the attempted smuggle          that had occurred in the summer of 1990.  The charges against the          appellant   included  conspiring  to   possess,  with  intent  to          distribute, in excess of five kilograms of cocaine, see 21 U.S.C.                                                              ___              841(a)(1) & 846; attempting to import cocaine into the United          States, see id.    952,  960, & 963; and aiding and  abetting the                  ___ ___          commission of certain charged offenses, see 18 U.S.C.   2.                                                  ___                    In  due season  the  district court  denied motions  to          dismiss  the  indictment  which  posited, inter  alia,  that  the                                                    _____  ____          bringing  of charges  violated the  Double Jeopardy  Clause, U.S.          Const.  amend. V,  cl.2,  and that  the  delay in  procuring  the          indictment countervailed the Speedy Trial Act, 18 U.S.C.    3161-          3174.   Rather  than entrust  his fate  to a jury,  the appellant          entered into  a plea  agreement with  the government pursuant  to          which he pleaded guilty  to possession of cocaine with  intent to          distribute.  All  other charges  against him were  dropped.   The          district court imposed  a sentence of  seventy months in  prison,          directing that the term run consecutive to the previously imposed                                          3          heroin-trafficking sentence.  This appeal ensued.          II.  ANALYSIS          II.  ANALYSIS                    In addition  to the double  jeopardy claim    which has          been extensively  briefed by Guzman's appellate  counsel   Guzman          himself   advances  four   other  assignments   of  error   in  a          supplemental pro se brief.  We address all five claims.                                 A.  Double Jeopardy.                                 A.  Double Jeopardy.                                     _______________                    The appellant  contends that the offense  of conviction          in this  case and the offense  for which he was  convicted in St.          Maarten  are one  and the same,  thus triggering  double jeopardy          concerns.    Even  though  both  cases  involve  the  appellant's          possession  of  the  identical  seventy-three  kilos  of cocaine,          destined for importation  into the United States via St. Maarten,          a towering obstacle looms:  the two sets  of charges were brought          by  different  governments.     The  black-letter  rule  is  that          prosecutions  undertaken  by separate  sovereign  governments, no          matter how  similar they may  be in character,  do not  raise the          specter  of double  jeopardy as  that constitutional  doctrine is          commonly  understood.   See  Heath v.  Alabama,  474 U.S.  82, 88                                  ___  _____     _______          (1985); United States v.  Lopez Andino, 831 F.2d 1164,  1167 (1st                  _____________     ____________          Cir.  1987), cert.  denied,  486 U.S.  1034  (1988).   This  rule                       _____  ______          derives from the  tenet that when  "a defendant  in a single  act          violates  the `peace and  dignity' of two  sovereigns by breaking          the laws of each,  he has committed two distinct  `offences'" and          can be prosecuted and punished for both.  Heath, 474 U.S. at 88.                                                    _____                    The  appellant concedes  the  general validity  of this                                          4          "dual sovereign" rule, and recognizes that, if applicable in this          instance,  it  shields  the  United States  from  the  successive          prosecution  prong of  the  Double Jeopardy  Clause.   He  argues          nonetheless  that  the shield  is  unavailable  here because  the          United   States   government   orchestrated   the   St.   Maarten          investigation  and superintended  the  ensuing prosecution,  thus          effectively  merging  the  two  sovereigns into  one  for  double          jeopardy purposes.                    The argument is not entirely without basis.  In Bartkus                                                                    _______          v.  Illinois,  359 U.S.  121,  131-33 (1959),  the  Supreme Court              ________          upheld the second of two convictions of  a defendant who had been          prosecuted by two sovereigns   the federal government and a state            for the same conduct.  The Court indicated, however, that under          very  limited circumstances  successive prosecutions  by separate          sovereigns might  transgress the Double Jeopardy Clause.  See id.                                                                    ___ ___          at  123-24.   Bartkus was  not such  a case  because, there,  the                        _______          record did                    not  support  the  claim  that  the State  of                    Illinois  in  bringing  its  prosecution  was                    merely a tool of the federal authorities, who                    thereby avoided the  prohibition of the Fifth                    Amendment  against  a  retrial  of  a federal                    prosecution after an acquittal.   It does not                    sustain   a   conclusion   that   the   state                    prosecution  was a  sham  and a  cover for  a                    federal prosecution, and thereby in essential                    fact another federal prosecution.          Id.          ___                    This   language   strongly  suggests   that  defendants          prosecuted by two sovereign governments for the same  conduct may          on  occasion be able to invoke double jeopardy protection.  While                                          5          some courts have brushed aside this language as dictum and hinted          that the Bartkus  exception to  the dual sovereign  rule may  not                   _______          exist at all, see United States v. Paiz, 905 F.2d 1014, 1024 n.13                        ___ _____________    ____          (7th Cir. 1990), cert. denied, 499 U.S. 924 (1991); United States                           _____ ______                       _____________          v. Patterson, 809 F.2d 244, 247  n.2 (5th Cir. 1987), most courts             _________          have  treated the  Bartkus intimation  as good  law.   See, e.g.,                             _______                             ___  ____          United States v. Certain  Real Property and Premises Known  as 38          _____________    ________________________________________________          Whalers Cove Dr.,  954 F.2d 29, 38 (2d Cir.  1992), cert. denied,          ________________                                    _____ ______          506 U.S. 815 (1992); United States v. Raymer, 941 F.2d 1031, 1037                               _____________    ______          (10th Cir. 1991); United States v. Louisville Edible Oil  Prods.,                            _____________    ______________________________          Inc., 926 F.2d 584,  587-88 (6th Cir. 1991); In re  Kunstler, 914          ____                                         _______________          F.2d 505, 517 (4th Cir. 1990), cert. denied, 499 U.S. 969 (1991);                                         _____ ______          United States v. Bernhardt, 831 F.2d 181, 182-83 (9th Cir. 1987);          _____________    _________          United States v. Lane, 891  F. Supp. 8, 10 (D. Me.  1995); United          _____________    ____                                      ______          States v. Bouthot, 685 F. Supp. 286, 294 (D. Mass. 1988).          ______    _______                    We find the gravitational pull of Bartkus irresistible.                                                      _______          Indeed, we think that  the exception is compelled by  the bedrock          principles  of dual sovereignty.  See United States v. Liddy, 542                                            ___ _____________    _____          F.2d 76, 79 (D.C. Cir. 1976) ("Bartkus, as we view it, stands for                                         _______          the  proposition  that federal  authorities  are proscribed  from          manipulating state processes to accomplish that which they cannot          constitutionally  do themselves.    To hold  otherwise would,  of          course,  result in a mockery of the dual sovereignty concept that          underlies our system of criminal justice.").                    We emphasize that the Bartkus exception  is narrow.  It                                          _______          is limited  to situations  in which one  sovereign so  thoroughly                                          6          dominates or  manipulates the prosecutorial machinery  of another          that  the latter  retains  little  or  no  volition  in  its  own          proceedings.  See, e.g.,  United States v. Baptista-Rodriguez, 17                        ___  ____   _____________    __________________          F.3d 1354, 1361 (11th  Cir. 1994); Whalers Cove, 954  F.2d at 38;                                             ____________          Raymer, 941 F.2d  at 1037; Kunstler, 914 F.2d at  517; Liddy, 542          ______                     ________                    _____          F.2d at 79.                    Some courts  have suggested that a  defendant who seeks          shelter under the  Bartkus exception bears the burden  of proving                             _______          that  one  sovereign dominated  the  other's  acts.   See,  e.g.,                                                                ___   ____          Raymer, 941 F.2d at 1037; Liddy,  542 F.2d at 79.   Nevertheless,          ______                    _____          this  court has  erected  a framework  that  dictates a  somewhat          different  allocation of  the  burden.   Under  this matrix,  the          defendant must  proffer evidence sufficient to  establish a prima          facie case that the  two prosecutions were for the  same offense.          If  the  defendant  meets his  entry-level  burden  by  making an          adequate  evidentiary  showing  to  that effect,  the  devoir  of          persuasion  shifts to the  government to prove  that the offenses          are not identical.2   See United States v. Garcia-Rosa,  876 F.2d                                ___ _____________    ___________          209, 229 (1st  Cir. 1989),  cert. denied, 493  U.S. 1030  (1990);                                      _____ ______          United  States v.  Booth, 673  F.2d 27,  30-31 (1st  Cir.), cert.          ______________     _____                                    _____                                        ____________________               2Although   a  double  jeopardy   claim  of  the  successive          prosection type  is admittedly  in the  nature of an  affirmative          defense  to  an indictment,  there  is  nothing unorthodox  about          requiring  the government to  bear the  ultimate burden  of proof          vis-a-vis  the existence  of an alleged  constitutional violation          once  sufficient   evidence  is  adduced  to   put  the  question          legitimately into issue.  See,  e.g., United States v. Rodriguez,                                    ___   ____  _____________    _________          858 F.2d 809, 813-15 (1st Cir. 1988) (holding that if a defendant          identifies record evidence from which a jury could  conclude that          the  defendant was entrapped, the government must bear the burden          of proving that no entrapment occurred).                                          7          denied, 456 U.S. 978 (1982); see also United States v. Schinnell,          ______                       ___ ____ _____________    _________          80 F.3d  1064, 1066  (5th Cir.  1996) (employing  same paradigm);          United  States  v. Inmon,  568 F.2d  326,  331-32 (3d  Cir. 1977)          ______________     _____          (same); United States v. Mallah, 503 F.2d 971, 986 (2d Cir. 1974)                  _____________    ______          (same), cert. denied, 420 U.S. 995 (1975).                  _____ ______                    In  the  Bartkus   context,  the  question   whether  a                             _______          defendant is being twice prosecuted for the same offense turns in          part on the applicability of the dual sovereign rule.  See Heath,                                                                 ___ _____          474 U.S.  at 88.  Thus, the  defendant must produce some evidence          tending  to  prove that  the rule  should  not apply  because one          sovereign  was  a pawn  of the  other, with  the result  that the          notion  of two  supposedly independent  prosecutions is  merely a          sham.   If the defendant  proffers evidence sufficient to support          such a finding   in  effect, a prima facie case    the government          must  shoulder the burden of  proving that one  sovereign did not          orchestrate  both prosecutions,  or,  put another  way, that  one          sovereign was  not a tool of the other.  See, e.g., United States                                                   ___  ____  _____________          v.  Harrison, 918 F.2d 469, 475 (5th Cir. 1990) (applying burden-              ________          shifting matrix in the Bartkus context).3                                 _______                                        ____________________               3There is some controversy in the circuits over whether this          procedural  matrix  applies  unreservedly both  to  interlocutory          review  of double jeopardy claims and to direct appeals following          convictions.  Compare United States v. Dortch, 5 F.3d 1056, 1060-                        _______ _____________    ______          61 (7th Cir. 1993)  (holding that the defendant bears  the burden          of proof  on  posttrial review),  cert.  denied, 114  S.Ct.  1077                                            _____  ______          (1994) and United States v.  Bendis, 681 F.2d 561, 564  (9th Cir.                 ___ _____________     ______          1981)  (same), cert.  denied,  459 U.S.  973  (1982) with  United                         _____  ______                         ____  ______          States  v. Loyd, 743 F.2d  1555, 1563 (11th  Cir. 1984) (applying          ______     ____          standard burden-shifting framework  to posttrial review);  United                                                                     ______          States v. Adamo,  742 F.2d  927, 946-47 (6th  Cir. 1984)  (same),          ______    _____          cert.  denied, 469 U.S. 1193 (1985); United States v. Kalish, 690          _____  ______                        _____________    ______          F.2d  1144, 1147 (5th Cir.  1982) (same), cert.  denied, 459 U.S.                                                    _____  ______                                          8                    In this case,  it is crystal  clear that the  appellant          did not  offer enough evidence  to carry his  entry-level burden.          Factually, his claim comes down  to this:  he asserts that  Agent          Ayala  traveled to St. Maarten,  surveilled the LEE MARY, alerted          the St. Maarten police  to the appellant's presence, participated          in the shipboard search (a fact that the United States contests),          and testified at the  ensuing trial.  Nothing in  the appellant's          proffer remotely suggests that  the Dutch authorities were merely          handmaidens  of  the DEA  or that  the  Dutch prosecution  was in          reality a prosecution  undertaken sub rosa  by the United  States                                            ___ ____          government.  Even  if all  the appellant's facts    stripped,  of          course, of opprobrious epithets and unsupported conclusions   are          taken  at  face value,  those facts  show  nothing more  than the          rendering  of routine intergovernmental  assistance.  Cooperative          law  enforcement  efforts   between  independent  sovereigns  are          commendable, and, without more,  such efforts will not  furnish a          legally  adequate basis for invoking the Bartkus exception to the                                                   _______          dual sovereign rule.  See Whalers Cove, 954 F.2d at 38; Paiz, 905                                ___ ____________                  ____          F.2d at 1024.                    Viewed against  this legal  and factual mise  en sc ne,          the  indictment  in  this  case  did  not  constitute   a  second          prosecution  for the same offense within the purview of the Fifth          Amendment.   Consequently,  the district  court  did not  err  in                                        ____________________          1108  (1983); Mallah, 503  F.2d at 986 (same).   See also Garcia-                        ______                             ___ ____ _______          Rosa, 876 F.2d  at 229 n.17  (noting the uncertainty).   Since we          ____          hold that the  appellant did not satisfy his  entry-level burden,          we need not take sides on this controversial issue today.                                          9          denying the  motion to dismiss the indictment  on double jeopardy          grounds.                                B.  Speedy Trial Act.                                B.  Speedy Trial Act.                                    ________________                    The baseline  premise of  the Speedy  Trial Act is  the          requirement that a  defendant has  a right to  be tried  promptly          following his indictment or  initial appearance before a judicial          officer (whichever first occurs).   See United States  v. Staula,                                              ___ _____________     ______          80  F.3d  596,  600  (1st  Cir.  1996).    Juxtaposed  with  this          requirement  is the  requirement that,  once arrested,  a suspect          must be indicted or otherwise formally charged within thirty days          of his  arrest.  See 18 U.S.C.   3161(b).  The appellant suggests                           ___          two reasons why the  government's actions in this case  run afoul          of this latter proscription.  Neither reason is persuasive.                    1.  The first iteration of the appellant's speedy trial                    1.          claim embodies  a repullulation of his  double jeopardy analysis.          He  asseverates that  since  the United  States orchestrated  his          arrest  in St. Maarten, 18  U.S.C.   3161(b)  required the United          States  to indict  him within thirty  days of that  arrest.  This          asseveration elevates hope  over reason, and  we need not  linger          long in dispatching it.                    The Speedy  Trial Act, in  terms, applies  only to  the          conduct of the United States.  Because  we already have held that          the  United States did  not control, dominate,  or manipulate the          actions of  the Dutch authorities  in respect to  Guzman's arrest          and prosecution in St.  Maarten, see supra Part II(A),  the claim                                           ___ _____          that  the date of that arrest affected the movement of the speedy                                          10          trial  clock in  this  case is  without  foundation.   Arrest  or          indictment  by  one  sovereign  does  not  engage  the  statutory          guarantee of a speedy trial in respect to a subsequent indictment          by  a different sovereign.   See United States  v. MacDonald, 456                                       ___ _____________     _________          U.S. 1, 10 n.11 (1982).                    2.   The  second  iteration of  the appellant's  speedy                    2.          trial claim takes a  somewhat divergent slant.  He  asserts that,          when he was arrested  in Puerto Rico for heroin  trafficking, the          United States  knew of  his 1990  involvement with  the ill-fated          cocaine smuggle and, hence, the government was obliged to  charge          him within thirty days  of that arrest, see 18 U.S.C.    3161(b),                                                  ___          or in  the alternative,  to seek a  detainer from  the Bureau  of          Prisons  (which  had  custody of  him  at  the time),  see  id.                                                                   ___  ___          3161(j)(1).  This assertion is equally devoid of merit.                    In the  first place, the Speedy Trial Act requires that          a person  arrested for a crime  must be charged by  indictment or          information  within thirty days of his arrest "in connection with          such charges."   Id.   3161(b).   In this  situation, the heroin-                           ___          trafficking incident  that led  to the appellant's  December 1992          arrest  had no connection with  his activity in  St. Maarten two-          and-one-half years  earlier.   It follows, therefore,  that since          the authorities did not arrest the appellant  in 1992 for a crime          related to his St. Maarten conduct, the Speedy Trial Act did  not          require  that  he be  charged  with  the cocaine-smuggling  crime          within thirty days of that arrest.  See  United States v. Orbino,                                              ___  _____________    ______          981  F.2d 1035, 1036-37 (9th Cir. 1992), cert. denied, 114 S. Ct.                                                   _____ ______                                          11          256  (1993); United States v.  Savage, 863 F.2d  595, 597-98 (8th                       _____________     ______          Cir. 1988), cert. denied, 490 U.S. 1082 (1989).                      _____ ______                    In  the second  place, 18  U.S.C.    3161(j)(1) applies          only to a person who has been "charged with an offense."  In this          instance, the  appellant  was not  charged with  the offenses  of          conspiracy  to possess  with intent  to distribute  and attempted          importation  until the  end of  1993.   Until  it brought  such a          charge,  the government had no obligation to file a detainer with          the Bureau of Prisons.4                                 C.  Plea Agreement.                                 C.  Plea Agreement.                                     ______________                    The appellant contends that the government breached the          plea  agreement.   He tells  us that  the U.S.  Attorney's office          promised it would  not oppose a  recommendation for a  concurrent          sentence, but  the prosecutor  instead argued successfully  for a          consecutive sentence.                    This  contention  is  baseless.5   The  plea  agreement          signed   by   the   appellant   specifically,   explicitly,   and          unambiguously states:  "The United States and the defendant agree                                        ____________________               4To cinch matters, the law is pellucid that the dismissal of          an  indictment is  not a suitable  remedy for  a violation  of 18          U.S.C.   3161(j)(1).  See United States v. Wickham, 30 F.3d 1252,                                ___ _____________    _______          1255 (9th Cir. 1994); United States v. Dawn, 900 F.2d 1132, 1135-                                _____________    ____          36 (7th Cir.), cert.  denied, 498 U.S. 949 (1990);  United States                         _____  ______                        _____________          v. Anderton, 752 F.2d 1005, 1008 (5th Cir. 1985).             ________               5As  an initial matter, we  note that the  appellant did not          raise  the issue  of the government's  alleged breach  before the          district  court.   The question  of procedural  default vis-a-vis          claims involving breached plea  agreements has divided the courts          of  appeals.  See United States v. Gonzalez-Perdomo, 980 F.2d 13,                        ___ _____________    ________________          15-16 (1st Cir. 1992) (collecting cases).  We need not enter this          thicket  today because we find the appellant's claim of breach to          be without basis.                                          12          that   the  sentence  to  be  imposed  in  this  case  shall  run          consecutive  to  any  other  sentence of  imprisonment  that  the          defendant  is  currently  serving."    The  plea  agreement  also          contains  an integration  clause  that provides:   "This  written          agreement  constitutes the  complete  plea agreement  between the          United States, the defendant,  and the defendant's counsel.   The          United States has made  no promises or representations  except as          set  forth in writing in this plea agreement."  The questionnaire          that  the appellant  completed in  advance of  the change-of-plea          colloquy  is  consistent   with  these   understandings.6     The          appellant has made no allegation that he was coerced into signing          the  plea agreement, that  he was misled  as to its  contents, or          that the questionnaire is bogus.                    In short, the appellant  identifies nothing that  would          justify  an  objectively  reasonable expectation  that  the  plea          agreement  meant anything other than what it plainly says.  Since          the  government  abided faithfully  by  the  clear  terms of  its          written agreement, we have  no warrant to set aside  the sentence          imposed by the  district court.  See United States  v. Hogan, 862                                           ___ _____________     _____          F.2d 386, 388 (1st Cir. 1988).                        D.  Ineffective Assistance of Counsel.                        D.  Ineffective Assistance of Counsel.                            _________________________________                    The appellant  claims that  his trial  counsel provided                                        ____________________               6The record does not contain a transcript of the  change-of-          plea hearing.   We must  assume, therefore, that  the appellant's          answers  to the judge's questions did not differ from the written          questionnaire.  See, e.g., Moore v. Murphy, 47 F.3d 8, 10-11 (1st                          ___  ____  _____    ______          Cir. 1995) (explaining that  the appellant must bear the  onus of          an incomplete record on  appeal); Real v. Hogan, 828  F.2d 58, 60                                            ____    _____          (1st Cir. 1987) (similar).                                          13          him  with   ineffective  assistance   by  failing  to   (1)  file          appropriate pretrial motions, (2)  notify the sentencing court of          health  problems afflicting  his  family, and  (3) make  a proper          request for the return  of property.  The rule  is firmly settled          in  this  circuit  that  "fact-specific  claims  of   ineffective          assistance cannot make their  debut on direct review of  criminal          convictions."  United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.                         _____________    ____          1993) (explaining  the rule and collecting  cases), cert. denied,                                                              _____ ______          114 S. Ct. 1839 (1994).  While we have made occasional exceptions          to the  rule in  certain idiosyncratic circumstances,  see, e.g.,                                                                 ___  ____          United  States v.  Natanel, 938  F.2d 302,  309 (1st  Cir. 1991),          ______________     _______          cert.  denied,  502 U.S.  1079 (1992),  this  case does  not fall          _____  ______          within   the  isthmian  confines  of  any  recognized  exception.          Because the appellant did not  present this claim of  ineffective          assistance to the lower court, we decline to consider it.7                               E.  Seizure of Property.                               E.  Seizure of Property.                                   ___________________                    Under the Criminal Rules, a person deprived of property          "may  move the  district  court for  the  district in  which  the          property was seized for the return  of the property on the ground          that  such  person  is  entitled  to  lawful  possession  of  the          property."  Fed.  R. Crim. P. 41(e).  Acting  pro se, Guzman made          such a motion  below; in  it, he claimed  entitlement to  certain          items allegedly seized from him at the time of his initial arrest                                        ____________________               7Of   course,  our  disposition   does  not   prejudice  the          appellant's  right to raise a claim  of ineffective assistance of          counsel in a petition for postconviction relief under 28 U.S.C.            2255.  See Mala, 7 F.3d at 1064.                 ___ ____                                          14          in  St. Maarten.   He  also  claimed entitlement  to a  tool box,          together with its contents, alleging that the tool box was inside          a  car, belonging to his sister,  that federal authorities seized          in  Puerto  Rico.   The district  court  found that  the property          seized in St. Maarten was  taken not by the United States  but by          the Netherlands  Antilles, and that, therefore,  the court lacked          jurisdiction to order its  return.8  However, the  district court          did not rule on the appellant's motion insofar as it pertained to          the  tool  box's confiscation.   The  appellant  did not  ask for          reconsideration  based  on  this  oversight.     He  nevertheless          attempts  to appeal from the  court's failure to  direct that the          tool box be returned.                    The  government's brief  misses the  appellant's point.          It  contends,  correctly,  that  Guzman  never  made a  claim  of          ownership referable to the  car, and thus does not  have standing          to contest its seizure.  Cf. United States v. One  Parcel of Real                                   ___ _____________    ___________________          Property  . . . Known as  Plat 20, Lot 17, 960  F.2d 200, 206 n.3          _________________________________________          (1st  Cir. 1992)  (noting  that  a  person  who  does  not  claim          ownership  cannot  contest  the  civil  forfeiture  of property);          United States  v. One Parcel of Real Property .  . . Known as 116          _____________     _______________________________________________          Emerson Street, 942 F.2d 74, 78 (1st Cir. 1991) (same).  But this          ______________          observation does not  in any way trump the appellant's insistence          that he owns,  and is entitled to the return of, the tool box and          its contents.                                        ____________________               8On appeal,  the appellant  does not challenge  this ruling,          and we do not address it.                                          15                    Although  the  appellant's  point is  arguable,  it  is          separable  from,   and  has  no  effect   upon,  the  appellant's          conviction and  sentence.  A  defendant may bring  an independent          civil  action for the return  of property even  if the underlying          criminal case has  been closed.  See United States  v. Garcia, 65                                           ___ _____________     ______          F.3d 17, 19-20 (4th Cir. 1995); United States v. Giraldo, 45 F.3d                                          _____________    _______          509, 511 (1st Cir.  1995); United States v. Giovanelli,  998 F.2d                                     _____________    __________          116, 118-19 (2d Cir. 1993).  Since such a complaint serves as the          functional equivalent of a Rule 41(e) motion, we perceive no need          to prolong this  case in order to pursue the point (especially in          view of the  fact that  the district  court made  no findings  in          regard to the tool box).  We therefore deny Guzman's request  for          relief  vis-a-vis the tool box, without prejudice to his right to          bring a separate civil action  to compel its return.  See  United                                                                ___  ______          States v. $8,850, 461 U.S. 555, 569 (1983).          ______    ______          III.  CONCLUSION          III.  CONCLUSION                    We  need go no further.  For aught that appears, Guzman          was  lawfully  prosecuted,  justly convicted,  and  appropriately          sentenced.  His conviction and sentence must therefore be          Affirmed.          Affirmed.          ________                                          16
