United States v. Cabrera ( 2000 )

USCA1 Opinion

       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 99-1607



                          UNITED STATES,



                            Appellee,



                                v.



                          CESAR CABRERA,



                      Defendant, Appellant.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



             [Hon. Mary M. Lisi, U.S. District Judge]







                              Before



                      Selya, Circuit Judge,

                Campbell, Senior Circuit Judge,

                   and Lipez, Circuit Judge.











     John F. Sullivan on brief for appellant.

     Margaret E. Curran, United States Attorney, Donald C. Lockhart

and Stephanie S. Browne, Assistant United States Attorneys, on

brief for appellee.











February 18, 2000











            Per Curiam.   After a careful review of the record

  and the submissions of the parties, we affirm.

            Appellant Cesar Cabrera ("Cabrera") contends his

  attorney below should have argued that Cabrera was subjected to

  a de facto arrest unsupported by probable cause, so the

  evidence subsequently seized from his car should have been

  suppressed (the record shows Cabrera's attorney did in fact

  advance this argument, so we will assume he means his attorney

  should have more fully developed the argument).  He also

  contends that his attorney should have argued that a statement

  Cabrera made during a consensual search of his car, in which he

  admitted to ownership of the bag containing heroin, should have

  been suppressed because he had not yet been advised of his

  rights under Miranda v. Arizona, 384 U.S. 436 (1966).  Since

  the district court held an evidentiary hearing, the factual

  record is fully developed and the only question presented is

  whether counsel should have presented (or better developed)

  these alternative legal theories.  In such a case, we may

  consider ineffective assistance of counsel claims on direct

  appeal.  United States v. Natanel, 938 F.2d 302, 309 (1st Cir.

  1991) (appellate court may elect to consider ineffective

  assistance of counsel claim on direct appeal "where the

  critical facts are not genuinely in dispute and the record is

  sufficiently developed to allow reasoned consideration of an

  effective assistance claim").

            Cabrera's first ineffective assistance of counsel

  claim fails because the substantive argument clearly would not

  have succeeded.  See Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir.

  1999) ("Obviously, counsel's performance was not deficient if

  he declined to pursue a futile tactic.").  At the point when

  the officer removed Cabrera's keys from the ignition, he was,

  according to the lower court's supportable factual findings,

  conducting a search to which Cabrera had consented.  Cabrera

  does not directly challenge those factual findings, but even if

  he were to do so, we cannot see how he could establish clear

  error.  See United States v. Jones, 187 F.3d 210, 214 (1st Cir.

  1999) ("Where evaluations of witnesses' credibility are

  concerned, we are especially deferential to the district

  court's judgment . . . .").  Further, even if Cabrera had not

  consented to a search at that point, the officer would have

  been entitled to continue detaining Cabrera under Terry v.

  Ohio, 392 U.S. 1 (1968), given Cabrera's evasive and

  inconsistent answers to the officer's questions and his

  excessively disproportionate nervous response.

            Cabrera's contention that his attorney should have

  argued for suppression of the statement made during the search

  also fails.  Cabrera was not in custody at the time, so the

  argument would have been futile.  See Jones, 187 F.3d at 217-

  18.

            Cabrera makes other vague allegations that his

  counsel failed to communicate effectively, failed to brief

  fully the suppression motion, and failed to investigate.  To

  the extent these claims are understandable, the factual record

  does not support any of them to the extent necessary to show

  ineffective assistance.

            Affirmed.  See 1st Cir. Loc. R. 27(c).