     Case: 11-40096     Document: 00511788419         Page: 1     Date Filed: 03/14/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 14, 2012
                                     No. 11-40096
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOEL LINARES-SOBERANIS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:10-CR-331-1


Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Joel Linares-Soberanis (Linares) appeals his jury trial conviction and
sentence for conspiracy to possess one kilogram or more of heroin with intent to
distribute and conspiracy to import into the United States one kilogram or more
of heroin and his guilty plea conviction and sentence for possession of a firearm
by an alien in the United States on a non-immigrant visa. For the first time on
appeal, Linares argues that the Government committed prosecutorial
misconduct amounting to plain error by impermissibly bolstering witness

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40096   Document: 00511788419     Page: 2   Date Filed: 03/14/2012

                                 No. 11-40096

testimony during its examination of witnesses and jury argument. He maintains
that counsel for the Government improperly imputed the existence of a drug
conspiracy during the questioning of witnesses when the existence of a
conspiracy was an issue for the jury to determine. He asserts that counsel for
the Government improperly bolstered the credibility of witnesses by personally
vouching that witnesses would testify truthfully during opening arguments, by
asking a witness why he truthfully spoke to law enforcement officers and why
he testified truthfully, and by introducing evidence that prosecutors and law
enforcement officers stressed to witnesses that they must testify truthfully.
Linares maintains that the bolstering was improper because it implied that the
Government had superior knowledge regarding whether witnesses were
testifying truthfully. He contends that the prosecutorial misconduct affected his
substantial rights and adversely affected the fairness, integrity, and public
reputation of judicial proceedings.
      Because Linares did not raise an objection in the district court, we review
for plain error only. United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir.
2008). To show plain error, Linares must show an error that is clear or obvious
and that affects his substantial rights. See id. at 600. If he makes such a
showing, we have the discretion to correct the error but will do so only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      While questioning Government witnesses, the prosecutors imputed the
existence of a drug conspiracy. All of the questions imputing a drug conspiracy,
however, were asked after the Government had presented testimony and other
evidence that there was a drug conspiracy. Thus, the questions were based upon
the prosecutors’ fair appraisal of the testimony already given and were not
impermissible imputations that Linares was guilty based upon extrinsic
evidence not presented at trial. Cf. United States v. Tomblin, 46 F.3d 1369, 1389



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                                  No. 11-40096

(5th Cir. 1995) (holding that a prosecutor may give “a fair appraisal” of evidence
presented at trial during closing arguments).
      Linares’s challenge to the statements made by a prosecutor during opening
arguments is not supported by the record.         While Linares asserts that a
prosecutor declared that two cooperating co-conspirators would testify truthfully
during opening arguments, the record shows that the prosecutor stated that the
co-conspirators had entered into plea agreements requiring them to provide
truthful testimony and that the Government would recommend sentence
reductions for them after they testified truthfully. As the evidence presented at
trial showed that these were the terms of the plea agreements, the statements
made by the prosecutor during opening arguments were permissible. See United
States v. Casel, 995 F.2d 1299, 1309 (5th Cir.1993), vacated on other grounds as
to one defendant sub nom. Reed v. United States, 510 U.S. 1188 (1994).
      The record shows that a prosecutor elicited testimony that she had
emphasized to a co-conspirator that he should tell the truth and testimony from
the co-conspirator that he had told the truth. A prosecutor asked one of the co-
conspirators if he was concerned about how Linares and his brothers would react
if they knew he had told the truth to law enforcement officers. Prosecutors also
elicited testimony that the plea agreements of the co-conspirators required them
to testify truthfully and that law enforcement officers had stressed to them that
they should tell the truth. While eliciting this type of testimony may sometimes
be inappropriate, it was not improper in the present case because Linares’s
defense strategy involved challenging the credibility of the co-conspirators who
testified against him. See United States v. Aguilar, 645 F.3d 319, 323 (5th Cir.
2011); United States v. Setser, 568 F.3d 482, 494 (5th Cir. 2009). Linares has not
shown that counsel for the Government committed prosecutorial misconduct,
whether constituting plain error or otherwise, by asking improper questions or
making improper arguments.



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                                  No. 11-40096

      Linares argues that his counsel provided ineffective assistance at trial.
Linares, however, did not raise his ineffective assistance of counsel claims in the
district court, and the district court did not hear any evidence regarding the trial
strategy of Linares’s counsel or any other matter related to Linares’s ineffective
assistance of counsel claims. Accordingly, the record is not sufficiently developed
for us to consider Linares’s ineffective assistance of counsel claims, and the
claims are denied without prejudice to Linares’s right to raise them in a motion
to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. See United
States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006); United States v. Kizzee,
150 F.3d 497, 502-03 (5th Cir. 1998).
      AFFIRMED.




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