United States v. Johnson ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit

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          No. 96-1261



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  QUINCY D. JOHNSON,

                                A/K/A QUINCY D. HAMEL,



                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
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                                        Before



                                 Cyr, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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               Theodore L. Craft, by Appointment  of the Court, and  Quincy
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          D. Johnson, on brief pro se.
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               Helen  Kazanjian,  Assistant  U.S.   Attorney,  and  Jay  P.
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          McCloskey, United States Attorney, on brief for appellee.
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                                    March 18, 1997

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               Per Curiam.  In this appeal from a conviction for conspiring
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          to possess with intent to  distribute cocaine base and possession



          with intent to distribute, we  have both a brief from counsel  on



          appeal  and a  pro se  brief from appellant.   We  have carefully



          considered them,  as well  as the  record, and  deem this  a case



          where, regardless of the strength of defendant's arguments below,



          there  remain  no issues  worthy  of  extensive consideration  on



          appeal.   We accordingly, without rehearsing the facts, which are



          well  known  to the  parties, proceed  briefly  to deal  with the



          arguments of appellant and his counsel.



               The first challenge  is to the sufficiency  of the evidence.



          The government, inexplicably, asserts in its brief (p.  18) that,



          after the government  finally rested, the  defense did not  renew



          its  motion for judgment of acquittal.  And appellant himself (p.



          13) has made  the same assertion.  But our  reading of the record



          indicates that, after the government rested, the court said:



                    I will  treat the defendant as  having renewed his

               motion  at the close of  the entire case,  and the same

               ruling applies,  that the motion for  acquittal on each

               of  Counts One and Two are denied.  There is sufficient

               evidence to go to the jury.



          (Transcript p. 449).   It also appears that after  this statement



          there was  no  new  evidence  submitted.   The  only  evidentiary



          discussion concerned  the mechanics of redacting  a record, which



          was to be done while the jury was being instructed.



               Therefore, we review for  error, not "plain error."   But we



          find no error.









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               Pullum,  the major  prosecution witness,  was fair  game for



          impeachment at  trial, but  the jury  having found  his testimony



          credible,  it  satisfies the  sufficiency requirement  under both



          counts.   Moreover,  Pullum's testimony  was corroborated  by two



          other witnesses,  and  the finding  of  a substantial  amount  of



          cocaine base and paraphernalia  used in drug packaging in  places



          and equipment associated with appellant.



               A generalized  challenge was  made to interruptions  made by



          the prosecution to defendant's closing argument.  But no specific



          interruptions have been  identified by appellant.   Nor were  any



          objections made.   And  from the  government's references  to the



          interruptions in  its brief, we  see no  possible prejudice,  let



          alone plain error.



               Another  issue, again to be judged on a "plain error" basis,



          is that the court  failed to give, in haec  verba, an instruction



          to treat an accomplice's testimony "with great care and caution."



          But instructions were given, spotlighting  the vulnerabilities of



          witnesses Pullum and Motil.  There was no plain error. See United
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          States v. Newton, 891 F.2d 944, 949-50 (1st Cir. 1989).
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               Two defects  were alleged  in the  sentencing process.   The



          first,  an alleged failure to discount the weight of cocaine base



          previously  purchased, was  a matter  clearly within  the court's



          discretion.    It  committed  no clear  error  in  observing that



          different sources  were involved and that the discount applied to



          the  seized  drugs should  not  be extended  to  those previously



          purchased.   A variation of  this issue, in  which it was  argued





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          that only the  seized drugs  should be considered,  made for  the



          first time on appeal, is not before us.  As for the argument that



          the court improperly refused to assign a minor role to appellant,



          we see no clear error.  This was  clearly a judgment call for the



          district court, with sufficient supporting evidence.



               The  final  issue,  made  by  appellant,  pro  se,  is  that



          appellant's counsel,  both below and on  appeal, gave ineffective



          assistance.   We do not ordinarily hear ineffective assistance of



          counsel claims on  direct appeal  and have no  reason to  deviate



          from  this rule  here. None  of the  allegations relating  to the



          trial  are  before  us,  for  lack  of  a  developed  record  and



          "extraordinary  circumstances."   See  United  States   v.  Diaz-
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          Martinez, 71 F.3d 946, 953 (1st Cir. 1995).
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               As  for  appellant's  pro  se  challenge  to  his  counsel's



          effectiveness on appeal, we merely note that the only issue which



          counsel  chose  not to  brief was  that  of the  effectiveness of



          assistance at trial,  which, as  we have just  explained, is  not



          properly before us on direct appeal.



               Affirmed.
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