* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-41204

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN HERNANDEZ LEON; ALBERTO LEON,

Defendants-Appellants.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-01-CR-154-1

--------------------

November 21, 2002

Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Juan Hernandez Leon and Alberto Leon appeal their

convictions after a jury trial for conspiracy to transport and

transporting certain aliens within the United States in violation

of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(I),

1324(a)(1)(A)(v)(II). Appellants contend that the evidence was

insufficient to support their convictions. Alberto Leon also

argues that the district court committed plain error when it
No. 01-41204

-2-

instructed the jury regarding witness credibility and that he

received ineffective assistance of counsel.

The Leons moved for a judgment of acquittal at the close of

the Government’s case but did not renew their motions at the

close of their case. Therefore, we review the evidence to

determine whether there was a manifest miscarriage of justice. 

United States v. Johnson, 87 F.3d 133, 136 (5th Cir. 1996).

The Government set forth testimony of four aliens who were

found within the Leon’s trailers. Each admitted that they swam

across the Rio Grande River to enter the country and that they

were here illegally. The Government also independently verified

that each alien was undocumented by checking their immigration

status in the central index computer system, and by analyzing

their fingerprints and photographs. Therefore, the Government

set forth sufficient evidence of the status of the aliens to

support the Leons’ 8 U.S.C. § 1324 convictions. See United

States v. Esparza, 882 F.2d 143, 145 (5th Cir. 1989); United

States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002).

Juan Leon also argues that the evidence was insufficient to

support his conspiracy conviction. The record shows that the

Leons traveled in an indirect route to San Benito, Texas; were in

frequent contact with each other; and left their trailers

unlocked and unattended at night, with the rear doors facing an

overgrown area known to be frequented by undocumented aliens. 

Upon returning, neither Leon inspected their trailer. This court
No. 01-41204

-3-

will not reverse the credibility determination of the jury, who

heard testimony from both appellants and from Government

witnesses and who concluded that Juan Leon engaged in a

conspiracy to transport undocumented aliens within the United

States. See Martin v. Thomas, 973 F.2d 449, 453 (5th Cir. 1992).

Since Alberto Leon did not object in the district court to

the witness credibility instruction, we review for plain error. 

See United States v. McClatchy, 249 F.3d 348, 357 (5th Cir.)

(citation omitted), cert. denied, 122 S. Ct. 217 (2001). The

credibility instruction conforms with this circuit’s pattern jury

instructions. See Fifth Circuit Pattern Jury Instructions

Criminal No. 1.08 (2001). Alberto Leon has not demonstrated that

this jury instruction incorrectly sets forth the law.

Alberto Leon also argues for the first time that trial

counsel rendered ineffective assistance. Claims of inadequate

representation on direct appeal are only reviewed in rare cases

where the record allows the court to fairly evaluate the merits. 

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

is not one of those rare cases, since the district court’s record

was not developed on this issue and an evaluation would require

speculation. See United States v. Bounds, 943 F.2d 541, 544 (5th

Cir. 1991); United States v. Valuck, 286 F.3d 221, 229 (5th Cir.

2002).

For the foregoing reasons, the district court’s judgment is

AFFIRMED.