IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40096

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

March 14, 2012

Lyle W. Cayce

Clerk

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.

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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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(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 coconspirators 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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