United States v. Andrews

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 7, 1994
• Docket: 92-07625
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

______________

No. 92-7625 ______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CLAUDE HARRIS ANDREWS,

Defendant-Appellant.

__________________________________________________ Appeal from the United States District Court for the Southern District of Mississippi __________________________________________________ (June 7, 1994)

Before DUHÉ and EMILIO M. GARZA, Circuit Judges, and STAGG,* District Judge.

EMILIO M. GARZA, Circuit Judge.

Claude Harris Andrews appeals his conviction for possession of

marijuana with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1) (1988), and importation of marijuana, in violation of

21 U.S.C. §§ 952, 960. Andrews contends that he is entitled to a

new trial because (a) the district court erroneously admitted

evidence which was seized during an unregulated inventory search of

his car, in violation of the Fourth Amendment; (b) the district

court erroneously admitted into evidence statements which Andrews

made to law enforcement officers without knowingly and

intelligently waiving his rights under Miranda v. Arizona, 384 U.S.

* District Judge of the Western District of Louisiana, sitting by designation. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); (c) the prosecutor

made improper comments at trial; (d) the district court failed to

instruct the jury not to convict Andrews of importation unless he

knowingly brought marijuana into the United States; (e) Andrews

received ineffective assistance of counsel at trial; and (f) in the

alternative, the cumulative effect of all of the foregoing errors

rendered Andrews' trial fundamentally unfair. Finding no

reversible error, we affirm.

I

Our discussion of the issues raised on appeal requires only a

partial statement of the facts. The United States Drug Enforcement

Administration ("DEA") received a tip that the tugboat Concord was

bound for the port at Pascagoula, Mississippi, carrying a cargo of

either marijuana or cocaine from Panama. When the Concord arrived

at a small, secluded boatyard in Pascagoula, DEA and United States

Customs Service agents began covert surveillance of the boat.

Andrews was waiting at the dock when the Concord arrived, and

he told a Customs agent, who was posing as a uniformed Customs

inspector, that he was the front man for a tug boat operation which

would ferry barges from New Orleans to Puerto Rico. Andrews told

the agent that he was having some repairs done on the Concord at

Pascagoula, including draining and scraping the fuel tanks.

Thereafter, DEA and Customs agents maintained continual

surveillance of Andrews when he was away from the dock and the

Concord. Around 2:00 a.m. on the third day after the Concord

docked at Pascagoula, after following Andrews as he visited several

-2- local drinking establishments, federal agents noticed that Andrews

was driving erratically, and reported the situation to local

police. Officer Doug Adams of the Moss Point Police Department

("MPPD") arrived shortly and stopped Andrews. After Andrews failed

several field sobriety tests, Adams arrested him for driving under

the influence of alcohol ("DUI").

At the scene of the arrest, Adams conducted a routine

inventory search of Andrews' vehicle, finding among Andrews'

personal effects a red spiral notebook containing two diagrams and

several names.1 Adams also found a radio frequency detector))an

electronic device used to detect radio transmissions.2

At the Moss Point jail, approximately two hours after his

arrest, Andrews was interrogated by agents of the Customs Service

and DEA. Andrews stated that he had leased the Concord from Aldo

Gomez, whom he had met through Pedro Lopez, a Cuban from Miami.

Other statements which Andrews made during the interview were used

against him at trial, or were used by federal agents to obtain

evidence about Andrews, the Concord, and its cargo.

1 One of the diagrams included the names of, or abbreviations for the names of, the countries Colombia, Peru, Argentina, Venezuela, and Panama. These names and abbreviations were connected to each other, and to the names of locations in Georgia and Florida, by a series of lines and arrows. At trial the government argued that the diagram depicted a marijuana distribution and importation network. See infra part II.C.2. 2 Federal agents observed Andrews driving erratically, as if he was attempting to evade surveillance. Andrews could have used the radio frequency detector to detect the agents' nearby radio transmissions while they were following him.

-3- On the day after Andrews' arrest for DUI, fire fighters for

the Pascagoula Fire Department searched inside the fuel tanks of

the Concord and found a hidden, airtight compartment containing

over four thousand pounds of marijuana, with an estimated street

value of $3,600,000. One of the firefighters testified that a

diagram in Andrews' red spiral notebook depicted the Concord's fuel

tanks and the location of the marijuana in the hidden compartment.

An agent for the DEA interviewed Andrews again, and informed

him that marijuana had been discovered on the Concord. Andrews

then stated that "Aldo Gomez was the key to everything in Panama,"

and that the DEA could have "got" Gomez and "the big people" if

they had waited until Gomez arrived in Pascagoula in a few days.

Andrews was indicted for importing marijuana, in violation of

21 U.S.C. §§ 952, 960, and possessing marijuana with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). Before trial,

Andrews moved to suppress the notebook and radio frequency detector

seized from his car, on the grounds that the search of his vehicle

was an unreasonable search in violation of the Fourth Amendment.

Andrews also moved to suppress statements he made to federal

officers following his arrest for DUI, arguing that use of those

statements at trial would violate the Fifth Amendment. The

district court denied both motions to suppress. The jury convicted

Andrews on both counts, and the district court sentenced him to 136

months imprisonment.

-4- II

A

Andrews contends that the district court erred by admitting

into evidence a notebook which was seized during a warrantless

inventory search of Andrews' car after he was arrested for DUI.

While conducting an inventory of the contents of Andrews' vehicle,

MPPD Patrolman Doug Adams opened a red spiral notebook, and

observed a diagram which he thought might be of evidentiary value

to the DEA.3 Adams turned the notebook over to the DEA. Before

trial Andrews moved to suppress the notebook, and after conducting

an evidentiary hearing, the district court denied the motion to

suppress. Andrews contends that Adams' search of the notebook and

delivery of the notebook to the DEA violated his rights under the

Fourth Amendment, because Adams exercised discretion which was not

adequately constrained by standard MPPD regulations governing

inventory searches.

In reviewing the denial of a motion to suppress which alleges

a violation of the Fourth Amendment, "we must accept the district

court's purely factual findings unless they are clearly erroneous

or influenced by an incorrect view of the law." United States v.

Hahn, 922 F.2d 243, 245 (5th Cir. 1991); see also United States v.

Ramirez, 963 F.2d 693, 704-05 (5th Cir.), cert. denied, ___ U.S.

3 Adams' intuition was correct. Fire fighters from the Pascagoula Fire Department searched the tug boat Concord's fuel cells and discovered the marijuana storage compartment inside. One of the fire fighters testified that the diagram in Andrews' notebook depicted the fuel cells and the hidden storage compartment.

-5- ___, 113 S. Ct. 388, 121 L. Ed. 2d 296 (1992). However, "[t]he

ultimate determination of reasonableness of the search . . . is a

conclusion of law," which we review de novo. Hahn, 922 F.2d at

245; see also United States v. Capote-Capote, 946 F.2d 1100, 1102

(5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 2278, 119

L. Ed. 2d 204 (1992). We will not find a district court's factual

determination to be clearly erroneous unless we are left with the

definite and firm conviction that a mistake has been committed,

United States v. Mitchell, 964 F.2d 454, 457-58 (5th Cir. 1992),

and we view the evidence in the light most favorable to the party

that prevailed below. See Ramirez, 963 F.2d at 705; Capote-Capote,

946 F.2d at 1102.

"The fourth amendment proscribes . . . unreasonable searches

and seizures. To be reasonable a search must normally be conducted

pursuant to a warrant, but courts have long recognized an exception

to the warrant requirement for so-called `inventory searches' of

automobiles." United States v. Prescott, 599 F.2d 103, 105 (5th

Cir. 1979) (citations omitted); see South Dakota v. Opperman, 428

U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). "When a car is

impounded, the police generally inventory its contents to protect

the owner's property while it is in police custody, to protect the

police against claims of lost or stolen property, and to protect

the police and the public from potential danger." United States v.

Gallo, 927 F.2d 815, 819 (5th Cir. 1991) (citing Opperman, 428 U.S.

at 369, 96 S. Ct. at 3097). Inventory searches are excepted from

the warrant requirement because they serve these "caretaking"

-6- purposes, and because they are not designed to uncover evidence of

criminal activity. See Opperman, 428 U.S. at 370 & n.5, 96 S. Ct.

at 3097 & n.5 ("In view of the noncriminal context of inventory

searches . . . courts have held))and quite correctly))that search

warrants are not required. . . . With respect to noninvestigative

police inventories of automobiles . . . the policies underlying the

warrant requirement . . . are inapplicable.").

Cases dealing with inventory searches have required that such

searches be conducted according to standard regulations and

procedures, consistent with the proper purpose of a non-

investigative inventory search. In Opperman, the seminal case on

the subject, the Supreme Court stated that "inventories pursuant to

standard police procedures are reasonable," and noted that standard

procedures are "a factor tending to ensure that the intrusion

[represented by an inventory search] would be limited in scope to

the extent necessary to carry out the caretaking function." Id. at

372, 375; 96 S. Ct. at 3098-3100.

In Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L.

Ed. 2d 739 (1987), after the defendant was stopped for driving

under the influence of alcohol, an inventory of the contents of the

defendant's vehicle revealed cocaine in a closed backpack. See id.

at 368-69, 107 S. Ct. at 739. The Court held that the search was

not unreasonable, stating that "reasonable police regulations

relating to inventory procedures administered in good faith satisfy

the Fourth Amendment." Id. at 374, 107 S. Ct. at 742. The Court

"emphasize[d] that . . . the Police Department's procedures

-7- mandated the opening of closed containers and the listing of their

contents." Id. at 374 n.6; 107 S. Ct. at 742 n.6. The defendant

argued, nonetheless, that the inventory search was unconstitutional

because departmental regulations gave the police officers

discretion to decide whether to impound the defendant's vehicle.

See id. at 375, 107 S. Ct. at 743. The Court rejected that

argument because "[n]othing in Opperman or [Illinois v. Lafayette,

462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983)] prohibits

the exercise of police discretion so long as that discretion is

exercised according to standard criteria and on the basis of

something other than suspicion of evidence of criminal activity."

Id.

Most recently, in Florida v. Wells, 495 U.S. 1, 110 S. Ct.

1632, 109 L. Ed. 2d 1 (1990), the Supreme Court held that Florida

highway patrol officers violated the Fourth Amendment when, in the

course of an inventory search of the defendant's vehicle, they

opened a locked suitcase and discovered a large quantity of

marijuana. Id. at ___, 110 S. Ct. at 1634-35. "[T]he record

contained no evidence of any Highway Patrol policy on the opening

of closed containers found during inventory searches," and the

Court held that the inventory search "was not sufficiently

regulated to satisfy the Fourth Amendment." Id. at ___, 110 S. Ct.

at 1634-35. The Court explained:

Our view that standardized criteria must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory seaches should be designed to produce an

-8- inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into "a purposeful and general means of discovering evidence of crime."

Id. at ___, 110 S. Ct. at 1635 (citations omitted).

Based on Patrolman Adams' testimony at the suppression

hearing, the district court found that Adams had searched the

notebook according to "normal procedure . . . in Moss Point" and

according to "a standardized routine." That finding was not

clearly erroneous. Adams testified at the suppression hearing as

follows:

Q [By the prosecutor] What was your purpose of doing the inventory search; why did you do it?

A Policy of Moss Point Police Department, when you arrest someone out of their vehicle, you tow it and do an inventory search of their personal belongings and items left in the vehicle for the protection of the city.

Q All right. Is that standard operating procedures?

A Yes, ma'am.

Q Is it done in every case?

Q And is it the policy, whether written or unwritten, of the police department to do that in every case?

Q And obviously that includes traffic stops and DUIs?

Q All right. And you said it was to protect the City of Moss Point or the police department, what do you mean by that?

A Well, so the person that's arrested doesn't come back and say, well, I had a five thousand dollar stereo, or five hundred dollars and now it's missing.

-9- Record on Appeal, vol. 2, at 65-66. Adams testified again at

trial, regarding the MPPD's inventory policy:

Q [By defense counsel] Do you have an inventory policy established at Moss Point Police Department?

A Yes, sir. Everybody that's arrested, that's driving a vehicle, you tow their vehicle, you do an inventory.

Q Is that a written policy or it's in written form?

A I can't say that I've seen a written policy but that's what I was instructed by my captain the day I went to work there.

Q So it doesn't have any ritual as far as how it's conducted. There's nothing written down, step by step procedure?

A No, sir, you just fill in the form.

Id. vol. 3, at 214. Adams' testimony, which was not contradicted,

reveals that the Moss Point Police Department requires its officers

to conduct inventory searches, including the completion of

inventory forms, for the purpose of protecting the city from claims

of lost property. The district court's finding is not clearly

erroneous.

Andrews contends, however, that a Fourth Amendment violation

occurred because the "page-by-page search of [his] notebook was not

mandated or allowed by any policy of the Moss Point Police

Department."4 We disagree, because it appears that MPPD's policy

did allow Adams to open Andrews' notebook, in order to determine

whether it contained personal property which should have been

included on an MPPD inventory form. Opening a notebook, to

4 Andrews does not contend that Adams' inventory search was merely a pretense for a search for evidence of criminal activity.

-10- determine whether valuables might be found between its pages, is

consistent with the MPPD policy requiring an inventory search to

protect the city from claims of lost property. Cash, credit cards,

negotiable instruments, and any number of other items could be

hidden between the pages of a notebook, and could give rise to a

claim against the city if lost.5

Furthermore, MPPD's official procedures sufficiently regulate

the discretion of its officers to prevent them from turning

inventory searches into "`a purposeful and general means of

discovering evidence of crime.'" Wells, 495 U.S. at ___, 110 S.

Ct. at 1635. Adams testified that MPPD's policy requires officers

to conduct an inventory in order to protect the city from claims

for lost property. This policy does not allow MPPD officers

discretion to search a notebook in order to uncover evidence of

criminal wrongdoing. An officer who engages in "a general

rummaging in order to discover incriminating evidence," id. at ___,

110 S. Ct. at 1635, exceeds his authority under the MPPD inventory

search policy.

5 See Record on Appeal, vol. 2, at 70 (Adams' testimony at suppression hearing) ("Q [By the prosecutor] Would you scan something like a notebook that had individual pages in it, in case there might be something valuable stuck between the pages? A Yes, ma'am."); United States v. Khoury, 901 F.2d 948, 959 (11th Cir.) ("[The agent's] initial inspection of the notebook was necessary and proper to ensure that there was nothing of value hidden between the pages of the notebook."), modified on other grounds, 910 F.2d 713 (11th Cir. 1990); United States v. Pace, 898 F.2d 1218, 1243 (7th Cir.) (where police "leafed through the pages of . . . record books . . . to determine whether any items, such as credit cards, might be stuck between the pages"), cert. denied, 497 U.S. 1030, 110 S. Ct. 3286, 111 L. Ed. 2d 795 (1990) and 498 U.S. 878, 111 S. Ct. 210, 112 L. Ed. 2d 170 (1990).

-11- In Wells the majority observed that "it would be . . .

permissible . . . to allow the opening of closed containers whose

contents officers determine they are unable to ascertain from

examining the containers' exteriors. The allowance of the exercise

of judgment based on concerns related to the purposes of an

inventory search does not violate the Fourth Amendment." Id. at

___, 110 S. Ct. at 1635. From Adams' testimony, it appears that

the policy described by the Supreme Court in Wells is, for all

intents and purposes, the policy of the MPPD. MPPD officers are

instructed (1) to conduct an inventory of an arrestee's vehicle,

(2) to complete an inventory form, and (3) that the purpose of the

inventory is to protect the city from claims of lost or stolen

property. An officer following these instructions must decide

whether it is necessary to open a notebook in order to fulfill the

function of an inventory search, but these discretionary decisions

regarding the scope of the search will be made "based on concerns

related to the purposes of an inventory search," unless the

searching officer oversteps the bounds of her authority under the

MPPD policy.

In Wells, the Court pointed out that there was "no evidence of

any Highway Patrol policy on the opening of closed containers found

during inventory searches." Id. at ___, 110 S. Ct. at 1635. In

Bertine the Court "emphasize[d] that . . . the Police Department's

procedures mandated the opening of closed containers and the

listing of their contents." Id., 479 U.S. at 374 n.6; 107 S. Ct.

at 742 n.6. However, neither of those decisions requires a law

-12- enforcement agency's inventory policy to address specifically the

steps that an officer should take upon encountering a closed

container. Neither do we understand those cases to require the

Moss Point Police Department to promulgate policies which

specifically mention notebooks.6 The requirement to be distilled

from the line of cases culminating in Wells is that inventory

policies must be adopted which sufficiently limit the discretion of

law enforcement officers to prevent inventory searches from

becoming evidentiary searches. See United States v. Judge, 864

F.2d 1144, 1145 (5th Cir. 1989) (stating that Bertine "does not

condemn all forms of police discretion, but only `evidentiary'

discretion which is exercised on the basis of suspicion of criminal

activity"), cert. denied, 495 U.S. 918, 110 S. Ct. 1946, 109 L. Ed.

2d 309 (1990). Because that requirement is met by the MPPD

inventory search policy, Andrews has not shown that Adams violated

the Fourth Amendment by searching Andrews' notebook. See United

States v. Walker, 931 F.2d 1066, 1068-69 (5th Cir. 1991) (finding

no Fourth Amendment violation where "police department had an

established but unwritten inventory policy," the purpose of which

"was to protect the property of the owner and to reduce the

potential liability of the police department"); Gallo, 927 F.2d at

819 (holding that inventory search could not be condemned insofar

6 See United States v. Judge, 864 F.2d 1144, 1145 (5th Cir. 1989) (observing that "no manual can reasonably be expected to spell out in detail the correct action in light of the almost infinite array of objects an agent may encounter"), cert. denied, 495 U.S. 918, 110 S. Ct. 1946, 109 L. Ed. 2d 309 (1990).

-13- as department policy permitted opening box for the standard

purposes of inventory searches).

Andrews also argues, however, that no standardized policy

permitted Adams to turn the notebook over to the DEA and the United

States Customs Service. Andrews contends that when Adams turned

the notebook over to federal officials, "[w]hat began as an

inventory search . . . became an excuse for `investigatory

rummaging' on behalf of Customs and DEA." Andrews' argument is

without merit. "Once property has been seized with proper

justification and is in plain view of governmental officials, the

owner no longer has a reasonable expectation of privacy with

respect to that property, and it may be seized without a warrant."

United States v. Thompson, 837 F.2d 673, 675 (5th Cir.) (footnotes

omitted), cert. denied, 488 U.S. 832, 109 S. Ct. 89, 102 L. Ed. 2d

65 (1988). When Adams turned the notebook over to federal

officials and they reviewed it, it had already been seized with

proper justification, pursuant to a valid inventory search.

United States v. Khoury, 901 F.2d 948 (11th Cir. 1990), upon

which Andrews relies, is distinguishable. In Khoury a DEA agent

examined the defendant's notebook in the course of an inventory

search, but did not discover that the notebook had evidentiary

value. Id. at 959. The purposes of the inventory search being

fulfilled, the inventory exception to the warrant requirement was

no longer available; but the agent examined the notebook again,

this time determining that it had evidentiary value. Id. The

Eleventh Circuit held that the agent's second look at the notebook,

-14- without a warrant, violated the Fourth Amendment. Id. In the

course of his inventory search of Andrews' car, Adams determined

that the diagram and various names in the notebook had evidentiary

value pertinent to the federal agents' investigation. Khoury is

distinguishable, therefore, because Adams was aware of the

evidentiary value of the notebook before a second look was taken by

federal agents. See Thompson, 837 F.2d at 675 (noting that no

exception to the warrant requirement is available where a "second

inspection [of evidence in government custody is] undertaken to

look for something that had not been discovered at the time of the

inventory" (distinguishing Brett v. United States, 412 F.2d 401,

405 (5th Cir. 1969)). Andrews has not demonstrated that his rights

under the Fourth Amendment were violated, or that the district

court erred by denying his motion to suppress.

B

Andrews next contends that the district court erred by denying

his motion to suppress statements which he made to law enforcement

officers after being arrested for driving under the influence of

alcohol. Andrews contends that he did not knowingly and

intelligently waive his rights under Miranda v. Arizona, because he

was too drunk to understand those rights and the consequences of

relinquishing them.

Under Miranda, statements made by a defendant during custodial

interrogation may not be used against him at trial unless

procedural safeguards are employed to protect the defendant's Fifth

-15- Amendment privilege against self-incrimination. See id., 384 U.S.

at 478-79, 86 S. Ct. at 1630. This requirement is most commonly

satisfied by giving the defendant the customary Miranda warnings:

that he has the right to remain silent, that anything he says can

be used against him in a court of law, that he has the right to the

presence of an attorney, and that an attorney will be provided for

him if he cannot afford to hire one. See id., 384 U.S. at 479, 86

S. Ct. at 1630. "After such warnings have been given, and such

opportunity afforded him, the individual may knowingly and

intelligently waive these rights and agree to answer questions or

make a statement." Id.

The defendant "`may waive effectuation' of the rights conveyed

in the warnings `provided the waiver is made voluntarily, knowingly

and intelligently.'" Moran v. Burbine, 475 U.S. 412, 421, 106 S.

Ct. 1135, 1140-41, 89 L. Ed. 2d 410 (1986) (quoting Miranda, 384

U.S. at 444, 475, 86 S. Ct. at 1612, 1628). The inquiry whether a

valid waiver has occurred "has two distinct dimensions. First, the

relinquishment of the right must have been voluntary in the sense

that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the waiver must have

been made with a full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon

it." Id. at 421, 106 S. Ct. at 1141. When the prosecution offers

statements made by a defendant during custodial interrogation, "a

heavy burden rests on the government to demonstrate that the

defendant knowingly and intelligently waived his privilege against

-16- self-incrimination and his right to retained or appointed counsel."

Miranda, 384 U.S. at 475, 86 S. Ct. at 1628.

Initially, Andrews contends that the district court "erred in

deciding only the voluntariness of [his] Miranda waiver, without

determining whether [it] was knowing and intelligent." Andrews

argues that the district court should have made an express finding

as to the knowing and intelligent nature of his Miranda waiver.7

Plainly a defendant's motion to suppress should not be denied

on the basis of a Miranda waiver, absent a finding by the district

court that the waiver was knowing and intelligent.8 However, such

a finding may be inferred by an appellate court, given adequate

support in the record. Several other circuits have inferred that

the district court made factual findings reflecting a valid waiver,

even though such findings were not expressly stated in the record.

See United States v. Whitworth, 856 F.2d 1268, 1278 (9th Cir. 1988)

(holding that waiver of Miranda rights was valid where "`finding

. . . that [the defendant] initiated the conversation" was

"`implicit in the district judge's denial of the suppression

7 See Brief for Andrews at 22-23 ("The ruling [denying Andrews' motion to suppress] holds only that the statements were voluntarily given; there is no ruling as to whether Andrews' Miranda waiver occurred `knowingly' or `intelligently.' . . . In this, the trial court erred."); Reply Brief for Andrews at 16 (referring to "deficiency in the district court's findings"). 8 See Edwards v. Arizona, 451 U.S. 477, 483-84, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378 (1981) (holding that lower courts "misunderstood the requirement for finding a valid waiver of the right to counsel" where "neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it").

-17- motion'"), cert. denied, 489 U.S. 1084, 109 S. Ct. 1541, 103 L. Ed.

2d 846 (1989); United States v. Silva, 715 F.2d 43, 49 (2d Cir.

1983) ("[S]ince it is undisputed that the issue of waiver was

presented to the court below in both parties' memoranda of law in

connection with the suppression motion, we conclude that implicit

in the district court's decision to deny the motion to suppress is

the implied finding that Silva made a voluntary waiver of her right

to remain silent."); United States v. Chapman, 448 F.2d 1381, 1387

(3d Cir. 1971) (where a review of the record, including the

arguments of counsel, "ma[de] it clear . . . that the judge was

cognizant of the fact that he was ruling on the Miranda

requirements, and that he applied the correct standards"), cert.

denied, 405 U.S. 929, 92 S. Ct. 982, 30 L. Ed. 2d 803 (1972).

The Seventh and Eighth Circuits require that the findings of

fact predicate to a valid Miranda waiver be made on the record

"with unmistakable clarity." See United States v. Gardner, 516

F.2d 334 (7th Cir.), cert. denied, 423 U.S. 861, 96 S. Ct. 118, 46

L. Ed. 2d 89 (1975); Evans v. United States, 375 F.2d 355, 360 (8th

Cir. 1967), rev'd on other grounds sub nom. Bruton v. United

States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).9

However, in applying that standard those courts have inferred the

9 See also Sims v. Georgia, 385 U.S. 538, 544, 87 S. Ct. 639, 643, ___ L. Ed. 2d ___ (1967) ("Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity."); United States v. Gonzalez, 548 F.2d 1185, 1189 (5th Cir. 1977) (same) (citing Sims), cited in United States v. Hernandez, 574 F.2d 1362, 1371 n.19 (5th Cir. 1978); United States v. Goss, 484 F.2d 434, 436-37 (6th Cir. 1973) (citing Sims).

-18- predicate fact findings from district court rulings which were less

than explicit. In United States v. Danley, 564 F.2d 813 (8th Cir.

1977), the district court found "with unmistakable clarity" that

the defendant had made a knowing and intelligent waiver, by stating

that the defendant "knew what was going on" and "handled the

situation fairly carefully." See id. at 815. In United States v.

Shabazz, 446 F.2d 77 (8th Cir. 1971), cert. denied, 404 U.S. 1022,

92 S. Ct. 696, 30 L. Ed. 2d 671 (1972), the district court

expressly credited a police officer's testimony "that he did

properly advise [the defendant] of his right to remain silent [and]

his right to counsel, and [the defendant] responded that he knew

his rights." Id. at 79. The Eighth Circuit found that the

district court had made "a legal finding of `unmistakable clarity'"

on the facts predicate to a valid Miranda waiver. See id. (quoting

Evans). In Gardner the Seventh Circuit held that the district

court's findings reflected the facts with unmistakable clarity

where the district court simply stated, "The motion to suppress is

overruled." See Gardner, 516 F.2d at 340. The court explained:

"[W]e are not limited to looking only at the district court's one

sentence conclusion, and . . . we think the record clearly

discloses that the court was aware of the Miranda requirement [of

a knowing waiver] and that the court's ruling was the result of its

application." Id. The Seventh Circuit relied on the fact that

counsel's arguments "put the issue of whether [the defendant]

knowingly waived his right to remain silent squarely before the

court." Id.

-19- "While it would have been preferable for the trial judge to

have specifically stated whether or not there was a knowing and

intelligent waiver of rights by the defendant," Chapman, 448 F.2d

at 1387 n.8, guided by the foregoing decisions we conclude that the

district court's finding of a knowing and intelligent waiver is

sufficiently reflected in the record to obviate a remand for

further factual determination. At the suppression hearing, DEA

Special Agent Karl Winter described his interrogation of Andrews

approximately two hours after Andrews was arrested for DUI. Winter

testified that he read Andrews the Miranda warnings, and that

Andrews indicated that he understood them. Winter also responded

affirmatively when the prosecutor asked whether Andrews had

appeared to be "able to reason and understand what [they] were

discussing." In overruling Andrews' motion to suppress, the

district court stated, "I think as far as the statements were

concerned, I accept the testimony of the officers. I think that

[Andrews] was given his Miranda warnings. I think he freely gave

whatever statements . . . were given. I think those statements

were taken in appropriate fashion and the motion will be overruled

as to the statements." The district court apparently credited

Winter's statement that Andrews said he understood the Miranda

rights which were read to him. The record therefore reflects a

finding by the district court that Andrews knowingly and

intelligently waived his rights under Miranda. See Shabazz, 446

F.2d at 79 (where district court's statement crediting officer's

testimony amounted to a "legal finding of `unmistakable clarity'").

-20- The cases cited by Andrews on this issue, Edwards v. Arizona,

451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), and United

States v. Bradshaw, 935 F.2d 295 (D.C. Cir. 1991), are

distinguishable. In Edwards, the Supreme Court held that "neither

the trial court nor the Arizona Supreme Court undertook to focus on

whether Edwards understood his right to counsel and intelligently

and knowingly relinquished it." See id., 451 U.S. at 483-84, 101

S. Ct. at 1884. However, that conclusion was supported by the

Arizona Supreme Court's reliance on Schneckloth v. Bustamonte,10 in

which the Court "declined to impose the `intentional relinquishment

or abandonment of a known right or privilege' standard and required

only that . . . consent [to search] be voluntary . . . ." Id. at

483, 101 S. Ct. at 1884. Similarly in Bradshaw, where the D.C.

Circuit held that the district court "made no finding with respect

to Bradshaw's understanding of his rights," the record revealed

that the district court "considered only whether Bradshaw's waiver

was voluntary . . . ." Id., 935 F.2d at 298, 300.11 Because the

record does not contain similar affirmative indications that the

district court failed to decide whether Andrews made a knowing and

intelligent Miranda waiver, Edwards and Bradshaw are

distinguishable. The record adequately reflects the district

court's finding that Andrews' waiver was knowing and voluntary.

10 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). 11 At the suppression hearing in Bradshaw, the government argued that a non-knowing waiver of Miranda rights could not be found absent police coercion, and the district court apparently adopted that position. Id., 935 F.2d at 298.

-21- 3

Andrews contends, however, that his waiver was not knowing and

intelligent, because he was still drunk when he spoke to federal

agents following his arrest for DUI, and therefore the district

court erred by denying his motion to suppress. When reviewing a

district court's denial of a motion to suppress, premised on an

alleged violation of Miranda, we "must give credence to the

credibility choices and findings of fact of the district court

unless clearly erroneous." United States v. Raymer, 876 F.2d 383,

386 (5th Cir.), cert. denied, 493 U.S. 870, 110 S. Ct. 198, 107 L.

Ed. 2d 152 (1989). The determination that a defendant's Miranda

waiver was knowing and intelligent is a finding of fact which we

review for clear error.12 See United States v. Willis, 525 F.2d

657, 659 (5th Cir. 1976) (holding that district court's findings

"were not clearly erroneous" where "[t]here was . . . sufficient

evidence . . . that the defendant's waiver of his rights was

knowing and intelligent"). We will not find a district court's

factual determination to be clearly erroneous unless we are left

with the definite and firm conviction that a mistake has been

committed. Mitchell, 964 F.2d at 457-58.

Andrews emphasizes that approximately two hours before the

interrogation he was arrested for DUI and failed several roadside

sobriety tests. According to Patrolman Adams' testimony, Andrews

was unable to walk a straight line, and he "stumbled through"

12 "The ultimate issue of voluntariness is a legal issue, however, which requires the appellate court to make an independent determination." Raymer, 876 F.2d at 386.

-22- reciting the alphabet from the letter "O" and counting backwards

from 25 to 10. Andrews also failed a portable breathalyzer test,

and Adams testified that at the time of his arrest Andrews smelled

of alcohol and exhibited slurred speech. Andrews testified that at

the time of the interrogation he "was . . . rudely awakened by the

jailer . . . had drank that day and . . . had not slept good the

night before." Andrews testified, "I was, basically, I was not in

that good of shape." When asked whether he was "still feeling the

effects of alcohol" when interrogated, Andrews responded

affirmatively: "By reading the statements that they say I'd made,

most definitely, I would. I would not have made some of the

statements if I had not been feeling under the effects still."

Andrews further testified, "If I had been totally straight, I would

not have said a word to [the federal agents]. . . . . If I had not

been drinking, I would not have spoken to them without a lawyer

present."

The evidence of Andrews' intoxication pertains primarily to

the time of his arrest, roughly two hours before he waived his

Miranda rights, except for his testimony that he would not have

spoken to the agents if he hadn't been drunk. The latter testimony

tends to show that he was too intoxicated at the time of the

interrogation to understand his Miranda rights. However, Andrews'

testimony was contradicted by the testimony of two agents who

interrogated Andrews. Special Agent Raymond Parmer, of the United

States Customs Service, testified that he and other interrogating

agents "tried to make sure [Andrews] had enough time [to] recover

-23- from his inebriation before [they] interviewed him in any way."

Parmer further testified that at the time of the interrogation

Andrews did not appear inebriated. DEA Special Agent Karl Winter

testified that at the time of the interrogation it "appeared that

[Andrews] had been drinking, but . . . he seemed pretty reasonable"

and "aware of his surroundings and everything . . . ." Winter

also responded affirmatively when the prosecutor asked whether

Andrews appeared to be "able to reason and understand what [they]

were discussing." Finally, Winter testified that he read Andrews

the Miranda warnings, and that Andrews indicated he understood

them.

The district court was in the best position to judge the

weight and credibility of the conflicting evidence regarding

Andrews' condition, and could have concluded that Andrews was not

so drunk when interrogated that he did not understand his rights

and the consequences of relinquishing them. As a result, the

district court's finding that Andrews knowingly and intelligently

waived his rights under Miranda was not clearly erroneous, and

Andrews has not demonstrated that the district court erred by

denying his motion to suppress.

C

Andrews further contends that he is entitled to reversal

because of the prosecutor's improper comments at trial. "Improper

comments by a prosecutor may constitute reversible error where the

defendant's right to a fair trial is substantially affected."

United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir.

-24- 1990). "The pertinent factors to consider include: (1) the

magnitude of the prejudicial effect of the statements; (2) the

efficacy of any cautionary instruction; and (3) the strength of the

evidence of the defendant's guilt." Id. "A criminal conviction is

not to be lightly overturned on the basis of a prosecutor's

comments standing alone. The determinative question is whether the

prosecutor's remarks cast serious doubt on the correctness of the

jury's verdict." United States v. Iredia, 866 F.2d 114, 117 (5th

Cir.) (citation omitted), cert. denied, 492 U.S. 921, 109 S. Ct.

3250, 106 L. Ed. 2d 596 (1989), cited in Anchondo-Sandoval.

Because Andrews failed to object to any of the prosecutor's

comments, however, he bears an even greater burden: we will

reverse only if the prosecutor's conduct amounts to plain error.

See United States v. Wicker, 933 F.2d 284, 292 (5th Cir.) (applying

plain error standard where defendant's attorney failed to object to

prosecutor's comments), cert. denied, ___ U.S. ___, 112 S. Ct. 419,

116 L. Ed. 2d 439 (1991).

"Plain error may be recognized `only if the error is so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of judicial proceedings and result in a miscarriage of justice.' The burden of showing plain error is a heavy one, and this [C]ourt will notice plain error only in exceptional circumstances.

Id. at 291 (citations omitted). Andrews has not crossed that

threshold.

-25- 1

Andrews first argues that the prosecutor argued facts

unsupported by the evidence during closing argument, when she

questioned the profitability of Andrews' tug boat operation. At

trial the prosecutor asked Andrews, "The daily rent . . . under the

lease for that tugboat was eight hundred dollars a day; isn't that

correct, Mr. Andrews?" Andrews answered that that was correct. In

closing, the prosecutor argued:

They thought they were being smart, they thought they were being sneaky[,] and they thought they could fool the Government by having a sham front business. We'll have a lease that says we're going to pay eight hundred dollars a day rent. Now, if you believe that, I mean, really. What kind of profit are you going to make with expenses like that[?]

Record on Appeal, vol. 4, at 531. Andrews contends that the

prosecutor's argument was improper, because there was no evidence

in the record that a tug boat service would not be profitable with

rental expenses of $800 per day. See United States v. Morris, 568

F.2d 396, 401 (5th Cir. 1978) (stating that prosecutor generally

may not "inject into his argument any extrinsic or prejudicial

matter that has no basis in the evidence").

Assuming arguendo that the prosecutor's remarks were improper,

reversal is inappropriate because Andrews has not demonstrated

plain error. Andrews baldly asserts that the prosecutor's

misconduct was so obvious that our failure to notice it would

seriously affect the fairness, integrity, or public reputation of

judicial proceedings and result in a miscarriage of justice.

However, aside from asserting that "there is very little evidence

-26- of the defendant's guilty knowledge" in this case, Andrews fails to

present an argument, based on the record or the law, which would

justify a conclusion that the prosecutor's comment "cast[s] serious

doubt on the correctness of the jury's verdict," Iredia, 866 F.2d

at 117, or that this is an "exceptional" case which merits a

finding of plain error. Wicker, 933 F.2d at 291.13 It is not our

place to make such arguments on Andrews' behalf. As he has failed

to do so, he is not entitled to reversal.

Andrews also contends that the evidence did not support the

prosecutor's inference that the diagram in Andrews' red notebook

depicted a drug importation network. In the diagram, the word

"Peru" and the abbreviations "Col", "Ven", and "Arg." appear above

the word "Panama". Four lines connect "Panama" to the word and

three abbreviations appearing above it, more or less in the fashion

of spokes in a wagon wheel. The words and abbreviations "Central

Fla", "West Fla.", and "Ga. to Gina", as well as the names of

several roads in southern Florida, appear below the word "Panama",

and are connected to "Panama" by a vertical line and descending

13 We have reviewed the decisions cited by Andrews, and none of them supports the proposition that the prosecutor committed plain error. Wicker))which Andrews cites specifically for that proposition))is to the contrary. In Wicker the prosecutor did not commit plain error by saying, "What real estate broker have you ever heard of that pays $25,905 for his clients in a real estate transaction? I don't know of anybody that would do that . . . ." Id., 933 F.2d at 291-92. We explained that the prosecutor's "comments were primarily rhetorical," and that "[n]one could fairly be understood to express a personal belief by the prosecutor in Wicker's guilt." Id. at 292.

-27- arrows. Andrews testified that his daughter Gina lived in Georgia.

The prosecutor argued at closing:

[Andrews] had a diagram in his notebook that was in his car listing four major source countries of drugs, Peru, Colombia, Venezuela, Argentina and they're all converging on Panama where his dope boat is located. They could take the marijuana, whatever, from these countries put it on the boat in Panama and take it to the United States, central Florida, west Florida. This is a drug distribution network. That's plain and simply, all it is.

Record on Appeal, vol. 4, at 512.14 Andrews contends that no

evidence supported the prosecutor's inference that the diagram

depicted a drug distribution network, and that this "was an unfair

inference that was highly prejudicial to the defendant." We

disagree.

Although the evidence did not support the prosecutor's

statement that Venezuela and Argentina are major sources of illegal

drugs imported into the United States,15 Andrews admitted at trial

that Colombia and Peru are source countries. Because the evidence

supports the conclusion that Colombia and Peru are sources of

illegal drugs, it is reasonable to infer that Andrews' diagram

depicted the importation of drugs into the United States from those

countries via Panama. The prosecutor's ultimate conclusions))that

14 The prosecutor also argued, "Jimmy is the man in Colombia with the drugs, just like in the little drawing, the Colombia, Peru, Venezuela." 15 Andrews testified that he didn't think either Venezuela or Argentina was a source of illegal drugs, but he testified that he would not disagree with a DEA agent if the agent said Argentina was a source. The government does not contend that any evidence established that Argentina and Venezuela are major source countries.

-28- the diagram depicted the importation of drugs into the United

States, and Andrews therefore was aware of a scheme to import

marijuana))were reasonable inferences from the evidence. Andrews

fails to show plain error. See United States v. Morris, 568 F.2d

396, 401 (5th Cir. 1978) ("The purpose of summations is for the

attorneys to assist the jury in analyzing, evaluating and applying

the evidence. . . . The assistance permitted includes counsel's

right to state his contention as to the conclusions that the jury

should draw from the evidence." (emphasis omitted)).

Andrews further argues that the prosecutor engaged in

misconduct by inferring that Andrews docked the tug boat in

Pascagoula, rather than a larger port such as New Orleans or Miami,

in order to avoid detection by the United States Customs Service.

On cross-examination Andrews explained that he chose the Pascagoula

port because it was cheaper. However, in closing the prosecutor

argued that Andrews chose Pascagoula because it had "the lowest

level of law enforcement," whereas Miami and New Orleans had "a lot

of Customs enforcement." Andrews contends that the prosecutor's

argument was not supported by the evidence. We disagree. The

evidence showed that the boatyard where the Concord docked at

Pascagoula is small, isolated, and secluded, and is not a busy

docking area. The prosecutor reasonably inferred from those facts

that docking the Concord at Pascagoula exposed Andrews to less risk

of detection by law enforcement, and that was a factor in Andrews'

-29- decision to dock the tug boat there. Andrews has not demonstrated

plain error.16

Andrews also contends that the prosecutor engaged in

misconduct by expressing her personal opinion of his credibility.

See Anchondo-Sandoval, 910 F.2d at 1238 (stating that "it is

improper and highly inappropriate [for the prosecutor] to interject

his or her personal opinion of the defendant's veracity into the

decision-making process"). The record does not support Andrews'

argument.

It is undisputed that Andrews intended to have the fuel tanks

of the Concord drained in Pascagoula. Andrews testified that the

fuel had become contaminated:

Q [by defense counsel] And did you have any knowledge of any fuel problems . . . ?

A When)) the first crew stated to me, when they pulled the fuel out, there was a tanker sitting next to it and it was raining cats and dogs. Down south there, it rains about like it does here and that)) the fuel was contaminated.

Record on Appeal, vol. 3, at 374. In her closing argument, the

prosecutor contended that Andrews "made up" a story "that the fuel

tanks were going to be cleaned because it had been raining."

16 With respect to all of the foregoing claims of prosecutorial misconduct, we note that the district court gave the following jury instruction: "Remember that any statements, objections, or arguments made by the lawyers are not evidence. . . . In the final analysis . . . it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding on it." In Morris, we held that an improper statement by the prosecutor was harmless, in light of the district court's instruction that "the attorneys' statements are not evidence to be considered by the jury." Id., 568 F.2d at 402.

-30- Referring to photographic exhibits which depicted the fuel tanks of

the Concord, the prosecutor argued that it was impossible for the

fuel to be contaminated by rain because the manhole covers to the

fuel tanks were located indoors, and thus could not be reached by

rain. She argued that Andrews concocted the contamination-by-rain

scenario because he intended to drain the fuel tanks and unload the

marijuana hidden inside.

Andrews contends that (1) the prosecutor mischaracterized his

testimony, because he "never testified that rain entered the fuel

cells through the manhole covers;" and (2) the prosecutor's

statement that Andrews "made up" the story about contamination by

rain was therefore nothing more than the prosecutor's unfounded

personal opinion of his credibility. We disagree. Andrews'

testimony can reasonably be construed as a statement that rain

entered the fuel tanks of the Concord, and absent evidence of some

means of entry other than the manhole covers,17 it was reasonable

for the prosecutor to construe Andrews' testimony as a statement

that the rain entered the fuel tanks through the manhole covers.

The prosecutor did not err by arguing to the jury, based on the

evidence, that Andrews testified to an impossibility. Andrews has

not demonstrated plain error.

Andrews also contends that the prosecutor made an

impermissible "conscience of the community" argument, inciting the

17 Andrews does not argue that the record contains any such evidence.

-31- emotions and prejudices of the jury by emphasizing Andrews'

decision to import drugs at Pascagoula despite his lack of

connections to that community. This argument is without merit.

On cross-examination the prosecutor elicited information from

Andrews which demonstrated his lack of personal connections to

Pascagoula and to Mississippi: the fact that he had never lived in

Mississippi, had neither family nor long-time friends there, and

did not know the postal abbreviation for the name of the state. In

her summation the prosecutor stated that Andrews "is the man in

Miami with the crew to transport the dope and he picks out what he

thought was and what he hoped was an unsophisticated town on the

Mississippi Gulf Coast, Pascagoula, to sneak this marijuana into."

The prosecutor further argued that Andrews "planned from the very

beginning to use our harbors, our ports in this state to sneak in

two tons of marijuana. He didn't want to go to Miami, he didn't

want to go to New Orleans. He might have gotten caught. So he

decides to use Mississippi, to use our ports, our boat yards to

bring in his drugs."

Although the prosecutor emphasized Andrews' lack of

connections to Pascagoula, the record reveals that she did so to

show why Andrews docked the Concord there, and not to incite the

prejudices of the jury. The prosecutor argued that Andrews went

out of his way to dock the Concord at a small, inconspicuous

boatyard, where a shipment of marijuana might not be detected by

the United States Customs Service. See supra, part II.C.3. The

portion of the prosecutor's argument quoted in Andrews' brief

-32- reveals that the prosecutor's purpose was to show why Andrews chose

Pascagoula: "He didn't want to go to Miami, he didn't want to go

to New Orleans. He might have gotten caught. So he decides to use

Mississippi, to use our ports, our boat yards to bring in his

drugs." The record does not support Andrews' claim that "an `Us v.

Them' relationship between the jurors and the defendant" was

created, even inadvertently, by the prosecutor's argument. Plain

error is not shown.

Lastly, Andrews contends that the prosecutor improperly

commented on Andrews' failure to call a number of witnesses in his

own behalf.18 See Iredia, 866 F.2d at 118 ("The well-settled rule

is that drawing any inferences from a party's failure to call a

witness equally available to both sides is impermissible.").

Andrews contends that the prosecutor "effectively shifted the

burden of proof in this prosecution to the defendant." Assuming

arguendo that the prosecutor's remarks were improper, Andrews'

argument that the burden of proof was shifted is not supported by

the record, because the district court gave the following

instructions to the jury: "[T]he defendant is presumed by the law

to be innocent. The law does not require a defendant to prove his

innocence or to produce any evidence at all. The government has

the burden of proving the defendant guilty beyond a reasonable

doubt, and if it fails to do so, you must acquit the defendant."

18 The prosecutor referred to five potential witnesses: Andrews' mother, Lopez, Gomez, the captain of the first crew of the Concord, and Luis, a Costa Rican crew member.

-33- See Iredia, 866 F.2d at 117-18 (holding that prosecutor's

comment))"if there was . . . evidence available to defense lawyers

don't you think they would put it on"))did not require reversal,

because district court's instruction))that burden was on the

government))"should have sufficiently erased any doubts as to which

party had the burden of proof"). Plain error is not shown.19

D

Andrews contends that the district court's instruction

regarding the elements of importation of marijuana was inadequate

because it failed to require the jury to find that Andrews

knowingly brought marijuana into the United States. The district

court instructed the jury :

Title 21, United States Code, Sections 952(a) and 960(a)(1), make it a crime for anyone knowingly or intentionally to import a controlled substance.

* * *

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: That the defendant brought a quantity of marijuana into the United States from a place outside the United States; and, Second: That the defendant knew the substance he was bringing into the United States was a controlled substance.

Record on Appeal, vol. 4, at 548-49. Andrews asked for an

instruction that, in order to find him guilty, the jury must find

"First: That the defendant knowingly brought a quantity of

marijuana into the United States . . . ." The district court

19 Neither do we conclude that the prosecutor's actions, although not individually requiring reversal, by their cumulative effect add up to plain error.

-34- denied the request, and Andrews contends that the jury therefore

could have convicted him of importation without finding that he

knew the marijuana was on the Concord.

"[C]ourts are given wide latitude in framing jury

instructions." United States v. Ojebode, 957 F.2d 1218, 1227 (5th

Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1291, 122 L. Ed.

2d 683 (1993). We will reverse the district court's refusal to

submit a requested jury instruction if, but only if the requested

instruction "(1) is substantially correct; (2) was not

substantially covered in the charge actually delivered to the jury;

and (3) concerns an important point in the trial so that the

failure to give it seriously impaired the defendant's ability to

present a given defense." Id. (quoting United States v. Chambers,

922 F.2d 228, 241 (5th Cir. 1991)).

The district court did not commit reversible error, because

Andrews' requested instruction was substantially covered by the

charge actually delivered to the jury. The district court

instructed the jury not to convict Andrews unless he "knew the

substance he was bringing into the United States was a controlled

substance." The jury could not have found that Andrews knew a

substance he was bringing into the United States was a controlled

substance, without finding that Andrews knew he was bringing a

substance into the United States. The district court's charge

plainly did not permit the jury to convict Andrews without first

determining that he knew the marijuana was on board the tug boat.

E

-35- Andrews next contends that he was denied the effective

assistance of counsel guaranteed to him by the Sixth Amendment.

See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). "We `resolve claims of inadequate

representation on direct appeal only in rare cases where the record

allow[s] us to evaluate fairly the merits of the claim.'" United

States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992) (quoting

United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987), cert.

denied, 484 U.S. 1075, 108 S. Ct. 1051, 98 L. Ed. 2d 1013 (1988)).

Andrews contends that his trial counsel failed to call expert

witnesses who could have testified regarding (1) the legitimate

uses for a radio frequency detector such as the one found in

Andrews' car; and (2) the lack of correlation between the sketch

found in Andrews' notebook and the Concord's fuel cells. Andrews

also contends that counsel was ineffective for failing to object to

the prosecutor's improper closing argument, which now results in

review under the plain error standard.20

Andrews moved in the district court for dismissal of his trial

counsel, on the grounds that counsel was ineffective under the

standards announced in Strickland. However, the specific claims

now raised on appeal were not presented to the district court.

Andrews' pro se motion presented general allegations that counsel

failed to subpoena witnesses requested by Andrews, and the district

court denied the motion without a hearing, stating that Andrews had

20 See supra part II.C.

-36- "not provided sufficient evidence that his court-appointed counsel

[was] ineffective."

Because Andrews' claim of ineffective assistance was not

presented below with sufficient specificity to allow the district

court "to develop the record on the merits of the allegations," "we

can only speculate on the basis for defense counsel's actions."

Higdon, 832 F.2d at 314. We therefore "decline to address the

merits of [Andrews'] ineffective assistance claim, but we do so

without prejudice to [his] right to raise the issue in a proper

proceeding pursuant to 28 U.S.C. § 2255." Id.21

III

For the foregoing reasons, we AFFIRM.

21 Lastly Andrews contends, in the alternative, that even if none of the foregoing alleged errors warrants reversal, the cumulative effect of all of the errors requires a new trial. In support of that assertion, Andrews merely quotes our decision in United States v. Canales, 744 F.2d 413 (5th Cir. 1984), for the rule that "the cumulative effect of several incidents of improper argument or misconduct may require reversal, even though no single one of the incidents, considered alone, would warrant such a result." Id. at 430. We are not persuaded that Andrews is entitled to reversal on the basis of cumulative error. See United States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992) ("Because we find no merit to any of Moye's arguments of error, his claim of cumulative error must also fail."); cf. Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992) (en banc) (holding that claim of cumulative error does not entitle state prisoner to habeas corpus relief unless (1) claim of cumulative error refers to errors, rather than mere unfavorable rulings or events; (2) habeas review is not procedurally barred; and (3) the errors more likely than not caused a suspect verdict), cert. denied, ___ U.S. ___, 113 S. Ct. 2928, 124 L. Ed. 2d 679 (1993).

-37-