## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 16 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ISRAEL CARTER, JR., Defendant-Appellant. No. 97-2122

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-96-248-JC)

Stephen P. McCue, Assistant Federal Public Defender , Albuquerque, New Mexico, for the appellant. David N. Williams, Assistant United States Attorney(John J. Kelly, United States Attorney, and Charles L. Barth, Assistant United St ates Attorney, with him on the brief), Albuquerque, New Mexico, for the appellee.

Before PORFILIO, McKAY, and BRISCOE, Circuit Judges

. BRISCOE, Circuit Judge.-2-

Defendant Israel Carter, Jr., appeals his convictio ns for conspiracy to possess with intent to distribute cocaine, 21 U.S.C . §§ 846 and 841(a)(1), and possession with intent to distribute cocaine, 21 U. S.C. §§ 841(a)(1), (b)(1)(B), claiming (1) the district court erred in denying hi s requested instructions on venue; (2) the evidence presented at trial was insu fficient to support his convictions; (3) he was denied effective assistance of counsel during plea negotiations; and (4) the government was presumptiv ely vindictive in refusing to renew a plea offer extended to him prior to his fir st trial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the conspi racy conviction, reverse the possession with intent to distribute conviction, an d remand with directions to vacate that conviction and resentence.
I. On May 31, 1995, Michael Pelligrini and Tony Savill a, two DEA task force officers, were looking for possible drug couriers at a Greyhound bus station in Albuquerque. A bus en route from Los Angeles to Ne w York arrived at the station at approximately 3:15 p.m., and all of the passengers got off the bus so that the bus could be cleaned and serviced. The of ficers boarded the bus to look at baggage being transported by the passengers and noticed a new bag with plastic wrapping material on the handles. Because drug cou riers typically use new bags to transport drugs, Savilla touched the bag and fel t two brick-type objects. When-3-

the passengers reboarded the bus, the officers inqu ired about each passenger’s baggage and discovered the bag belonged to a passen ger whose bus ticket identified her as Anthlia Jackson, but whose real n ame is Anthlia Craft. Her bus ticket indicated she was traveling from Los Angeles to Tulsa. The officers searched the bag, along with another bag being tran sported by Craft, and discovered two kilograms of cocaine in the new bag and clothing in both bags. Craft was arrested, and a controlled delivery of th e cocaine to Craft’s connection in Tulsa was arranged. Pelligrini, Savilla, Craft, and Mark Barela, anothe r task force agent, traveled by air to Tulsa on June 1, 1995. The offi cers arranged for a state trooper to stop the bus approximately ten to fifteen miles from the Tulsa bus station. Pelligrini, Savilla, and Craft reboarded the bus, c arrying Craft’s two bags. When the bus arrived at the Tulsa station between 6:00 a nd 6:15 a.m., Craft got off the bus with her two bags and walked to a pay phone. S he placed a call to a pager number. Approximately five minutes later, Craft pl aced a second call to a pager number. The task force agents located outside the station observed Carter arrive at the station in a red Mustang automobile. Carterentered the bus station a few minutes after the second call to the pager number, approached Craft, and began talking to her. Carter and Craft then left the station with Carter carrying the new bag containing the cocaine and Craft carrying the o ther bag. As Carter neared the-4-

driver-side door of his Mustang, a local sheriff’s officer drove a vehicle with official markings and flashing lights up to the Mus tang and blocked its movement. Other officers also approached Carter. Barela, who was wearing a DEA raid jacket, pointed his handgun at Carter and yelled, “Police officer. Halt. Freeze.” R. II at 128. Carter, who was approximat ely fifteen to twenty feet from Barela, looked at Barela, placed the bag containing the cocaine on the ground, and began walking at a fast pace toward the bus station and toward Barela. Barela continued to command Carter to halt, but Carter did not heed the commands. Barela began walking toward Carter to prevent him f rom reaching the street and as they neared each other, Carter walked between Ba rela and the building. With the assistance of other officers, Barela knocked Ca rter to the ground and arrested him. After Carter was taken to the Tulsa DEA task force office, he was searched and a pager and approximately $1,948 in cash were r ecovered. Two messages from the pay phone at the bus station, which corres ponded to the two calls placed by Craft, were still on the pager. Carter agreed t o waive his rights and be interviewed. He told the officers Craft’s sister h ad asked him to pick up Craft at the bus station. Although he acknowledged knowing Craft for approximately five years, he could not remember the name of Craft’s si ster or her telephone number. As for the cash, Carter told the officers he had re ceived approximately $3,000-5-

from his mother as a portion of an insurance settle ment she had received. He told the officers he mowed lawns for a living and had ea rned approximately $100 each for three lawns in the week prior to the incident. Finally, Carter told the officers he lived in Okmulgee, approximately thirty-eight mi les from the bus station. An officer subsequently drove from Okmulgee to the bus station and testified at trial that the trip took forty-two minutes, indicating Ca rter could not have driven from his home to the station after receiving the pages f rom Craft. Carter was originally indicted in Oklahoma federal court on June 7, 1995, on one count of possession with intent to distribut e cocaine, but the case was dismissed. He was reindicted with Craft on July 7, 1995, in federal district court in New Mexico on one count of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. His court-appointed counsel, Edward Bustamante, moved to withdraw as Carter’s counsel. The court denied the motion. On March 19, 1996, the governme nt faxed Bustamante a letter with a proposed plea agreement for a 57-month sente nce in exchange for a guilty plea. Carter rejected the proposed plea agreement. The indictment was subsequently dismissed without prejudice for violat ion of the Speedy Trial Act. Carter was indicted for the third time on May 9, 19 96, for conspiracy and possession with intent to distribute. On July 7, 1 996, a superseding indictment was filed charging Carter and Craft with the same c ounts charged in the May 9-6-

indictment. Carter was represented by Bustamante at trial and was convicted by a jury of both counts on July 23, 1996. Bustamante a gain moved to withdraw and the motion was granted. The district court appoint ed Jacquelyn Robins to represent Carter. Robins filed a motion for judgme nt of acquittal and a motion for new trial. The court granted the motion for ne w trial with no detailed explanation. However, at Carter’s second trial, th e district court explained to the jury why the motion for new trial had been granted:

This case has several wrinkles to it, ladies and ge ntlemen. It’s the second time I’ve tried it. The first time I tried it, the government in their opening statement and throughout the trial was of the opinion that the codefendant [Craft] was going to testify, and at th e last minute she did not testify. Well, the government had told the jury everything s he was going to say in their opening statement, so I had to grant-- I granted a new trial, based on the misunderstanding that the government h ad that she was going to testify. She told the government, I think, the day or two be fore the trial that her house had been broken in to and that she had be en threatened. And I think she had a child or something, and the child w as threatened. So Mr. Carter got a new attorney, Ms. Robins. Base d on--I made a finding of ineffective assistance of counsel on beh alf of his other attorney, so we got him a new attorney.
R. IV at 262-63. Prior to his second trial, Carter tried unsuccessfu lly to persuade the government to renew the original plea offer. The c ase proceeded to trial and Carter was convicted a second time on both counts. His motions for judgment of acquittal were denied. Carter then filed a motion to require the government to-7-

renew its original plea offer. He argued the origi nal plea offer was denied due to a lack of attorney/client relationship between Cart er and his counsel, Bustamante. This motion was also denied. At sentencing, the co urt asked Carter why he had turned down the original plea offer. Carter stated that Bustamante did not initially advise him to take the 57-month offer, bu t instead told him he could likely get a similar or better bargain if his motio n to dismiss on speedy trial grounds was granted. In response to these representations by Carter, the government requested that sentencing be rescheduledto allow Bustamante to testify. At the rescheduled sentencing hearing, Bustamante t estified he was involved in plea negotiations with the government and had received the government’s March 19 letter offering Carter a 57-m onth term of imprisonment in return for his plea of guilty. Bustamante testifie d he discussed the government’s March 19 letter with Carter and specifically told C arter he would likely face a sentence of thirty years to life if he went to tria l and was convicted because he was a career criminal. Bustamante further testifie d that he urged Carter to take the government’s plea offer. During their discussi on, Carter asked him what would happen if the court granted his motion to dis miss on speedy trial grounds. According to Bustamante, he told Carter the governm ent would likely reindict him. Bustamante stated, “I told him if he won the motion, it was possible he-8-

would get another offer, but it never went farther than that.” R. VI at 16. Carter testified at the rescheduled sentencing hearing as well. He testified Bustamante told him if he was successful on the motion to dism iss, he would go to the prosecutor and ask for a sentence of three or four years. At the conclusion of the testimony, the district court found Bustamante had unequivocally advised Carter to take the original plea offer, but that Carter ha d decided not to take the offer. Based on these findings, the court rejected Carter’ s request for downward departure on the basis of ineffective assistance of counsel at the time of the original plea offer and sentenced Carter to 262 mon ths’ imprisonment.
II.
Venue instruction Carter contends the district court erred in failing to instruct the jury on venue. Carter submitted two proposed instructions concerning venue, one for each count. The court refused to give the instruct ions, concluding venue existed as a matter of law. Venue is a question of fact that ordinarily must be decided by the jury. United States v. Miller , 111 F.3d 747, 749 (10th Cir. 1997). More specifi cally, it is an element of the prosecution’s case that must b e proved by a preponderance of the evidence. Id. at 749-50 (citing United States v. Record , 873 F.2d 1363, 1366 (10th Cir. 1989)). In this circuit, “venue is [dee med to be] in issue not only when-9-

there is a question about where the crime occurred, ‘but also . . . when defendants can be convicted of the offenses charged without an implicit finding that the acts used to establish venue have been proven.’” Id. at 751 (quoting United States v. Moeckly , 769 F.d. 453, 461 (8th Cir. 1986)). “[F]ailure t o instruct on venue, when requested, is reversible error unless it is be yond a reasonable doubt that the jury’s guilty verdict on the charged offense necess arily incorporates a finding of proper venue.” Id. More specifically, “[t]he question . . . is not w hether the evidence, if believed by the jury, is sufficient to establish venue, but whether the jury as a matter of logical necessity made a findin g on the omitted element in order to reach the verdict actually rendered.” Id. at 753. Because Carter timely requested a venue instructionwith respect to both counts of the indictment, the district court’s refu sal to give the instructions is reversible error unless we can conclude the jury’s guilty verdict on each count necessarily incorporated a finding of proper venue.

The conspiracy conviction The indictment in this case alleged a conspiracy “[ o]n or about the 31st day of May and 1st day of June, 1995, in Bernalillo Cou nty, in the State and District of New Mexico, and elsewhere.” R. I, doc. 82, inst r. 7b. Although the jury was not instructed it must find either an agreement or an overt act in furtherance of-10-

the conspiracy in New Mexico, its guilty verdict onthis count necessarily incorporated a finding that an overt act was committed in New Mexico. More specifically, by finding Carter and Craft conspired to possess with intent to distribute cocaine, the jury necessarily had to fin d the agreement existed at the time Craft was arrested in New Mexico when she comm itted the uncontroverted overt act of transporting cocaine. It is inconceiv able that Craft boarded the bus in Los Angeles carrying a large quantity of high purity cocaine without a plan to distribute it once she arrived in Tulsa. Likewise, it is inconceivable the jury found the agreement between Carter and Craft was re ached on the morning of her arrival at the Tulsa bus station. All of the circu mstantial evidence suggests Carter and Craft had prearranged for Carter to pick up Cra ft when she arrived at the bus station, and that Carter was well aware Craft was c arrying the cocaine with her. Thus, the jury’s verdict on the conspiracy count ne cessarily includes a finding that the conspiracy existed at the time Craft was t ransporting the cocaine through New Mexico (as well as in Oklahoma and other states through which Craft traveled), and venue is satisfied. See Record , 873 F.2d at 1366 (in a conspiracy case, venue is proper in any district in which eith er conspiratorial agreement is reached or an overt act in furtherance of conspirac y is committed by any of the conspirators).-11-

The possession conviction Count II of the indictment charged that “[o]n or ab out the 31st day of May and 1st day of June, 1995, in Bernalillo County, in the State and District of New Mexico, and elsewhere, the defendant, ISRAEL CARTER , JR., and Anthlia Leona Craft, a/k/a Angie Johnson, a/k/a Archalia Leona Ja ckson, did unlawfully, willfully, knowingly and intentionally possess withintent to distribute 500 grams and more of a mixture and substance containing a de tectable amount of Cocaine, a Schedule II controlled substance.” R. I, doc. 82, instr. 7b. At trial, the jury was instructed on both actual and constructive possessi on, and was told: “You may find that the element of possession, as that term i s used in these instructions, is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession, either alone or jointly wi th others.” Id. , instr. 7h. Although the government argued Carter constructivel y possessed cocaine in Albuquerque through Craft’s possession of the drug in that locale, it is conceivable the jury could have based its guilty ve rdict in Count II on Carter’s actual possession of the cocaine in Tulsa. Moreove r, although it was uncontroverted that Craft was in possession of coca ine in New Mexico, it is at least theoretically possible the jury concluded Carter did not have sufficient control over her to have constructive possession of the cocaine in New Mexico. Thus, we conclude the jury’s verdict on Count II do es not necessarily incorporate-12-

a finding of proper venue and we reverse Carter’s c onviction for possession with intent to distribute.
III. Sufficiency of the evidence Carter contends the evidence presented at trial was insufficient to support his convictions. Sufficiency of the evidence is a question of law subject to de novo review. United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). Evidence is sufficient to support a conviction if t he evidence and reasonable inferences drawn therefrom, viewed in the light mos t favorable to the government, would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. Id. In examining the evidence, “we evaluate the suffi ciency of the evidence by ‘consider[ing] the collective infer ences to be drawn from the evidence as a whole.’” Id. (quoting United States v. Hooks , 780 F.2d 1526, 1532 (10th Cir. 1986)). We will not overturn a jury’s f inding unless no reasonable juror could have reached the disputed verdict. See , e.g. , United States v. ChavezPalacios , 30 F.3d 1290, 1294 (10th Cir. 1994); United State s v. Hoenscheidt , 7 F.3d 1528, 1530 (10th Cir. 1993).-13-

The conspiracy conviction To find a defendant guilty of conspiracy in violati on of 21 U.S.C. §§ 841(a)(1) and 846, the jury must find, beyond a rea sonable doubt, (1) an agreement with another person to violate the law, ( 2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary involvement, and (4) interdependence among the alleged conspirators. Un ited States v. Lopez , 100 F.3d 113, 118 (10th Cir. 1996). As outlined below, the record in this case contains sufficient evidence for a rational trier o f fact to find each of the essential elements of conspiracy beyond a reasonable doubt. It is permissible for the jury to infer an agreemen t constituting a conspiracy “from the acts of the parties and other circumstant ial evidence indicating concert of action for the accomplishment of a common purpos e.” United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994). Here, there was no direct evidence of an agreement between Carter and Craft to violate the law. However, based upon their uncontroverted actions, as well as othercircumstantial evidence, the jury could have reasonably inferred that Carter andCraft had agreed to distribute cocaine in Tulsa. The jury knew Craft was travelin g from Los Angeles to Tulsa with two kilos of cocaine, an amount far greater th an normally found for purposes of personal use. Further, a chemist testified the purity level of one package of cocaine was 86 percent and the other was 87 percent , and that “street level”-14-

cocaine typically has a purity level of approximate ly 20 percent. Based on this evidence, the jury reasonably could have concluded Craft was transporting the cocaine to Tulsa for distribution. The jury also h eard uncontroverted evidence concerning the controlled delivery of the cocaine t o Carter. It is uncontroverted that Craft arrived at the bus station and paged Carter, and that Carter arrived at the station a few minutes later. Carter was appare ntly waiting for Craft’s page and knew where to go when he was paged because he d id not return Craft’s pages before arriving at the bus station. It is further uncontroverted that Carter and Craft left the bus station together and walked towa rd Carter’s car with Carter carrying the bag containing the cocaine. It is als o uncontroverted that Carter acted in an evasive manner when confronted by DEA a gents. He ignored directions to stop, dropped the bag, attempted to w alk quickly past one of the officers, and could only be stopped by the officers wrestling him to the ground. Finally, it is uncontroverted that Carter was carry ing a pager and a large amount of cash when he was arrested. We conclude this evi dence, considered together, is more than sufficient to allow a reasonable jury to infer that Carter was involved with Craft in the scheme to distribute cocaine. For reasons outlined above, we conclude the evidenc e presented at trial was also sufficient to allow a reasonable jury to inferthat Carter had “a general awareness of both the scope and the objective” of t he conspiracy. United States-15-

v. Evans , 970 F.2d 663, 670 (10th Cir. 1992); see also United States v. Christian , 786 F.2d 203, 211 (6th Cir. 1986) (“defendant’s gui lty knowledge and voluntary participation may be inferred from surrounding circ umstances”). In particular, Carter’s guilty knowledge could be inferred from hi s actions at the bus station after he was confronted and by his lies to DEA offi cers after he was arrested. This guilty knowledge, coupled with his actions in picking up Craft and carrying the bag containing the cocaine, is sufficient to de monstrate his awareness of the essential objective of the conspiracy (i.e., posses s cocaine with intent to distribute). A jury may presume a defendant is a knowing partici pant in the conspiracy when he or she acts in furtherance of the objective of the conspiracy. United
States v. Brown , 995 F.2d 1493, 1502 (10th Cir. 1993). For reason s outlined above, we conclude there was sufficient evidence to satisfy this element. Interdependence exists where each coconspirator’s a ctivities constitute essential and integral steps toward the realizationof a common, illicit goal. United States v. Edwards , 69 F.3d 419, 432 (10th Cir. 1995). Here, the jury reasonably could have inferred that Craft was the c ourier for the cocaine and that Carter picked up Craft at the bus station to assisther in distributing the cocaine. Thus, the jury reasonably could have inferred that Carter was dependent on Craft to smuggle the cocaine to Tulsa, and Craft was depe ndent on Carter to assist her1 Although we have determined Carter’s conviction for possession with intent to

distribute must be reversed because the jury’s verdict does not necessarily incorporate a finding of proper venue, we must still determine whether the evidence was otherwise sufficient to support his conviction on that charge. SeeUnited States v. Johnson , 120 F.3d 1107, 1108 n.1 (10th Cir. 1997). If, as Carter contends, the evidence was not otherwise sufficient to support the charge, the government would be preluded from retrying Carter on that charge under the Double Jeopardy Clause of the Fifth Amendment. Id. -16- in the distribution process once she arrived in Tul sa.

The possession conviction To support a conviction of possession with intent t o distribute, “the evidence must prove beyond a reasonable doubt the f ollowing elements: ‘(1) the defendant knowingly possessed the illegal drug; and(2) the defendant possessed the drug with the specific intent to distribute it. ’” United States v. Reece , 86 F.3d 994, 996 (10th Cir. 1996) (quoting United States v. Gonzales , 65 F.3d 814, 818 (10th Cir. 1995), cert. denied116 S. Ct. 2522 (1996)). 1 Possession may be actual or constructive. Reece , 86 F.3d at 996. As noted by Carter, the possessi on charge in this case centered around Craft’s possess ion of the cocaine in New Mexico (where Carter was charged and tried) rather than on Carter’s actual possession of the cocaine in and outside the Tulsa bus station. Thus, to support Carter’s conviction on this charge, there must be e vidence he constructively possessed the cocaine Craft was carrying in New Mex ico. An individual2In reviewing the venue issue raised by Carter, we concluded the jury’s verdict on (continued...) -17- constructively possesses property when he knowinglyholds the power and ability to exercise dominion and control over the property. United States v. Ruiz-Castro , 92 F.3d 1519, 1531 (10th Cir. 1996). Constructive possession has been alternatively defined by this court as “‘an appreci able ability to guide the destiny of the drug.’” Id. (quoting United States v. Massey , 687 F.2d 1348, 1354 (10th Cir. 1982)). “In order to establish constructive p ossession, the government must establish that there was a sufficient nexus betweenthe accused and the drug.” Id. “Constructive possession may be established by circ umstantial evidence and may be joint among several individuals.” Id. After reviewing the record on appeal, we conclude t here is sufficient evidence to demonstrate Carter’s constructive posse ssion of the cocaine in New Mexico. “As possession with intent to distribute w as the contemplated crime of the conspiracy, [defendant] is deemed to possess th e [controlled substance] through his co-conspirators’ possession.” United S tates v. Medina , 887 F.2d 528, 532 (5th Cir. 1989); see also United States v. Gallo , 927 F.2d 815, 823 (5th Cir. 1991). In light of Carter’s agreement with Craft t o transport the cocaine to Tulsa for distribution, it is reasonable to infer Carter had the ability to guide the destination of the cocaine and was thus constructiv ely in possession of the cocaine as it passed through New Mexico. 2 In any event, Carter was also charged2 (...continued)

the possession charge did not necessarily incorporate a finding that Carter had sufficient control over Craft to have constructive possession of the cocaine in New Mexico. In reviewing the sufficiency of the evidence issue raised by Carter on this same charge, we apply a different standard of review, one that requires us to view the evidence in the light most favorable to the government. Under this standard, we conclude sufficient evidence was presented by the government to have allowed the jury to determine Carter had control over Craft, and thus had constructive possession of the cocaine in New Mexico. -18- with aiding and abetting Craft’s possession of the cocaine in violation of 18 U.S.C. § 2, and the jury was specifically instructe d on aiding and abetting. “The evidence that supports a conviction for conspiracy can also be used to support a conviction for aiding and abetting in the possessio n of illegal narcotics with intent to distribute.” Gallo , 927 F.2d at 822. Thus, in light of the evidence outlined above in the discussion of the conspiracy charge, w e conclude there is sufficient evidence to support a conviction for aiding and abe tting in Craft’s possession of the cocaine.
IV.
Ineffective assistance of counsel Carter contends he was denied effective assistance of counsel in deciding whether to accept the government’s 57-month plea of fer prior to the first trial. He argues he would have accepted the plea offer if he had been counseled effectively. Carter argues deprivation of this con stitutional right entitles him to an opportunity to accept the original plea offer an d be sentenced accordingly.-19-

The general rule in this circuit is that ineffectiv e assistance of counsel claims should be brought in collateral proceedings rather than on direct appeal. United States v. Gallegos , 108 F.3d 1272, 1279 (10th Cir. 1997). The reasonfor this rule is straightforward: A factual record must be developed in and addressedby the district court in the first instance for effective review. Even if e vidence is not necessary, at the very least counsel accused of deficient perform ance can explain their reasoning and actions, and the district court can r ender its opinion on the merits of the claim. United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). A n exception to the general rule exists in rare circum stances where the ineffective assistance claim has been adequately developed by t he district court prior to appeal. In such circumstances we can agree to cons ider the claim on direct appeal. Gallegos , 108 F.3d at 1280. Having reviewed the record on appeal, we conclude t his is one of the rare instances where a claim of ineffective assistance h as been sufficiently developed by the district court to allow review of the claim on direct appeal. Carter raised the ineffective assistance claim in a post-trial mo tion (after the first trial) entitled “Motion to Require Renewal of Plea Proposal,” as we ll as in a subsequent motion entitled “Pre-sentence Request for Downward Departu re.” At the sentencing hearing, the court heard testimony from both Carterand Bustamante concerning their discussions about the government’s plea offer . At the conclusion of that-20-

testimony, the court found Bustamante was not ineff ective and that Carter “rolled the dice and lost.” R. VI at 23. In light of this record, we will proceed to review Carter’s claim rather than requiring him to pursue it through a § 2255 motion. The district court’s finding that Bustamante was no t ineffective is a mixed question of fact and law which we review de novo. United States v. Blackwell , 127 F.3d 947, 1997 WL 631434 at *7 (10th Cir. 1997) . However, the factual findings that underlie the ultimate finding are rev iewed only for clear error. Id. To prevail on this claim, Carter must demonstrate B ustamante’s performance “fell below an objective standard of re asonableness,” and that Bustamante’s deficient performance was so prejudici al there is a reasonable probability that, but for his unprofessional errors , the result of the proceeding would have been different. Strickland v. Washingto n , 466 U.S. 668, 688 (1984). With respect to the first part, effective assistanc e of counsel includes counsel’s informed opinion as to what pleas should be entered . Boria v. Keane , 83 F.3d 48, 53 (2d Cir. 1996). As for the prejudice prong, the re must be a reasonable probability that but for incompetent counsel a defe ndant would have accepted the plea offer and pleaded guilty. Hill v. Lockhart , 474 U.S. 52, 59 (1985). Carter cannot demonstrate that Bustamante’s perform ance was deficient or that he would have accepted the government’s plea o ffer if he had been given additional information by Bustamante. The record o n appeal clearly indicates-21-

Bustamante advised Carter of the risk he would face if he went to trial (i.e., a possible thirty-year to life sentence because of hi s career criminal status) and urged Carter to accept the plea offer. In response to questions from Carter, Bustamante did advise him the government mightextend a similar plea offer if the motion to dismiss on speedy trial grounds was grant ed. However, Bustamante made no promises concerning whether such an offer w ould be extended and, indeed, urged Carter to accept the existing plea of fer. Although Carter alleges Bustamante told him he might receive a more favorab le offer, Bustamante’s testimony does not support this allegation and the court clearly chose to believe Bustamante on this point. Finally, the record refl ects Carter himself, armed with full knowledge of the ramifications of his decision , decided to reject the 57- month plea offer. We therefore reject Carter’s cla im of ineffective assistance of counsel.
V.

Government’s refusal to renew plea offer Carter contends the government was presumptively vi ndictive when it refused to renew the offer of its original 57-monthplea agreement prior to the second trial. Carter sought renewal of the origina l plea offer after the district court had granted his motion for new trial.-22-

Because the very purpose of instituting criminal pr oceedings against an individual is to punish, the mere presence of a pun itive motivation behind prosecutorial action does not render such action un constitutional. United States
v. Contreras , 108 F.3d 1255, 1262 (10th Cir.), cert. denied118 S. Ct. 116 (1997). However, while it is perfectly acceptable for a pro secutor to “penalize a defendant for violating the law, a prosecutor may not punish a defendant for ‘exercising a protected statutory or constitutional right.’” Id. (quoting United States v. Goodwin , 457 U.S. 368, 372 (1982)). Accordingly, in analy zing a claim of prosecutorial vindictiveness, a court must focus onwhether “‘as a practical matter, there is a realistic or reasonable likeliho od of prosecutorial conduct that would not have occurred but for hostility or puniti ve animus toward the defendant because he exercised his specific legal right.’” I d. (quoting United States v. Raymer , 941 F.2d 1031, 1042 (10th Cir. 1991)). To establ ish a claim of prosecutorial vindictiveness, “the defendant must p rove either (1) actual vindictiveness, or (2) a reasonable likelihood of v indictiveness which then raises a presumption of vindictiveness.” Id. If defendant can meet this burden, the prosecution must justify its decision with legitimate, articulable, objective reasons. Id. However, if defendant cannot meet this burden, a reviewing court need not reach the issue of the government’s justif ication. Id. at 1263.-23-

Here, Carter has not asserted actual vindictiveness on the part of the government. Rather, he contends a reasonable likel ihood of vindictiveness exists because of the government’s refusal to renew its or iginal plea offer after the district court granted his motion for new trial fol lowing his original conviction. In support of his contention, Carter relies on Turn er v. State , 940 F.2d 1000 (6th Cir. 1992).
In Turner , defendant was indicted on two counts of aggravate d kidnaping and one count of felony murder in Tennessee. Priorto trial, the prosecutor offered defendant a two-year prison term in return for a guilty plea to lesser charges, but defendant rejected the offer on the ad vice of counsel. Defendant was subsequently convicted on all counts and sentenced to life imprisonment for the murder conviction and to forty years for each kidnaping conviction. He was subsequently granted a new trial on the grounds of ineffective assistance of counsel in rejecting the two-year plea offer. Alth ough plea negotiations were reopened, the prosecutor refused to offer less thantwenty years’ imprisonment. Defendant exhausted his state remedies and then fil ed a habeas petition in federal court. The court concluded the appropriate remedy for violation of defendant’s Sixth Amendment rights would be a new plea hearing during which a rebuttable presumption of prosecutorial vindictiveness would attach to any plea offer in excess of the original two-year offer. The Sixth C ircuit affirmed the district-24-

court, concluding there was a realistic likelihood of vindictiveness that demanded application of a rebuttable presumption of vindicti veness to any plea offer in excess of the original two-year offer. In partial support, the majority noted: “The prosecution is unlikely to gain any new insight as to the moral character of the defendant, the nature and extent of the crime, or t he defendant’s suitability for rehabilitation at the conclusion of trial that it d id not already possess from its extended investigation.” Id. at 1002. We conclude the holding in Turnermust be confined to its clearly narrow circumstances. Here, unlike in Turner , Carter was not granted a new trial because of ineffective assistance of counsel during plea ne gotiations. As the granting of a new trial had nothing to do with the plea negotiati ons, the government was under no obligation to renew its original plea offer (ind eed, that offer expired well prior to the beginning of the first trial). Moreover, co ntrary to the findings in Turner , we conclude the government here was in a different position prior to the second trial than it was prior to the first trial. Specif ically, as a result of the convictions in the first trial, the government was well aware i t could obtain convictions on both counts of the indictment without Craft’s testi mony. Thus, there was little reason to offer Carter a “sweetheart” deal. In add ition, there was some indication that Carter may have been responsible for the threat on Craft prior to the first trial. Under such circumstances, the government co uld have realistically changed-25-

its opinion about Carter’s character and/or suitabi lity for rehabilitation and decided it was not appropriate to renew its origina l plea offer. We conclude no presumption of prosecutorial vindictiveness should attach under the circumstances of this case.

VI. We AFFIRM Carter’s conviction for conspiracy to pos sess with intent to distribute cocaine. We REVERSE Carter’s convictionfor possession with intent to distribute cocaine and REMAND to the district co urt with directions to vacate the possession with intent to distribute cocaine co nviction and for resentencing.