United States v. Villafana

81 F. App'x 752

• Court: Court of Appeals for the Second Circuit
• Decided: December 2, 2003
• Docket: No. 02-1107
• Status: Published

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Defendant-appellant Tomas Louis appeals from his conviction by a jury in the United States District Court for the Southern District of New York (Kimba M. Wood, Judge) of conspiracy to distribute and to possess with intent to distribute cocaine and heroin, in violation of 21 U.S.C. § 846. On appeal, Louis argues that: (1) his trial counsel labored under a conflict of interest and otherwise failed to provide effective assistance; and (2) the district court erred in allowing a co-defendant to testify about his understanding of certain conversations between himself and Louis. We affirm.

With respect to Louis’s claims of ineffective assistance of counsel, this court has expressed a “baseline aversion to resolving ineffectiveness claims on direct review.” United States v. Williams, 205 F.3d 23, 35 (2d Cir.), cert. denied, 531 U.S. 885, 121 S.Ct. 203, 148 L.Ed.2d 142 (2000). As the Supreme Court recently explained, “in most eases a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective-assistance,” because the district court is the forum best suited to develop the facts necessary to evaluate such claims. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003). Following Massaro, we recently observed that ineffectiveness claims should only be resolved on direct appeal “when their resolution is beyond any doubt or to do so would be in the interest of justice.” United States v. Khedr, 343 F.3d 96, 100 (2d Cir.2003) (internal quotation marks omitted). Because we believe that Louis’s claims of ineffective assistance would benefit from further development of the record, we decline to review them on direct appeal and dismiss them without prejudice to Louis’s right to pursue them in a collateral proceeding.

Turning to Louis’s second ground for appeal, we find that he has not met the heavy burden of showing that admission of the impugned testimony constituted plain error — a showing that must be made where, as here, the appellant failed to object to admission of the evidence at trial. See United States v. Dukagjini, 326 F.3d 45, 61 (2d Cir.2003). At the very least, the testimony of Louis’s co-defendant concerning certain taped conversations was not plainly inadmissible. See United States v. Urlacher, 979 F.2d 935, 939 (2d Cir.1992) (holding that witness’s interpretation of comments made by defendant during taped conversations was admissible).

For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.