United States v. Williams

• Court: Court of Appeals for the First Circuit
• Decided: January 14, 1994
• Docket: 93-1118
• Status: Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 93-1118

UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  MELVIN WILLIAMS, 

                                Defendant, Appellant.

                              _________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U. S. District Judge]
                                            ____________________

                              _________________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________

                            Bownes, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
                                        _____________

                              _________________________

               Kenneth I. Singer on brief for appellant.
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               A. John  Pappalardo, United States Attorney,  and Michael J.
               ___________________                               __________
          Tuteur, Assistant United States Attorney, on brief for appellee.
          ______

__________________________

                                   January 13, 1994

                             __________________________ 

Per  Curiam.    In  this  criminal  appeal,  defendant-
                    Per  Curiam.
                    ___________

          appellant  Melvin Williams,  having been  convicted after  a jury

          trial  of  armed  bank robbery,  see  18  U.S.C.    2113  (1990),
                                           ___

          advances two arguments.  Neither argument is persuasive.

                    1.   Williams challenges  his conviction on  the ground

          that  the prosecutor engaged in improper argument.  We agree that

          the  statement   to  which   appellant's  counsel  objected   was

          inaccurate,  and  the  objection   thereto  ought  to  have  been

          sustained.  We have, however,  carefully reviewed the record, and

          we have found overwhelming evidence of guilt.  We are, therefore,

          confident that the error did not affect the outcome of the trial.

          Because the error was harmless, we  are not at liberty to order a

          new  trial on this basis.  See,  e.g., United States v. Hastings,
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          461 U.S. 499, 510-12 (1983) (holding that harmless error analysis

          is applicable to improper closing argument by prosecutor); United
                                                                     ______

          States v. Sepulveda,  ___ F.3d ___, ___ (1st Cir.  1993) [No. 92-
          ______    _________

          1362, slip op. at  48] (finding "misguided rhetoric" not  to call

          for reversal "given  the weight of the  evidence"); United States
                                                              _____________

          v.  Brown, 938  F.2d  1482,  1489  (1st Cir.)  (holding  improper
              _____

          argument  not  to  necessitate  retrial  where  record  contained

          substantial  evidence of  guilt),  cert. denied,  112 S.  Ct. 611
                                             _____ ______

          (1991); United States v.  Rodriguez-Estrada, 877 F.2d 153, 158-59
                  _____________     _________________

          (1st  Cir.  1989)  (similar; prosecutor  improperly  vouched  for

          witness's credibility).

                    2.    Appellant also  presses a  claim under  the Sixth

          Amendment,  contending that  his  trial attorney  performed below

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acceptable standards of proficiency.   We do not think  that this

          contention  is ripe for our consideration.   "We have held with a

          regularity bordering on the monotonous  that fact-specific claims

          of  ineffective  assistance cannot  make  their  debut on  direct

          review of  criminal convictions, but, rather,  must originally be

          presented to, and acted upon by, the trial court."  United States
                                                              _____________

          v. Mala, ___ F.3d ___, ___ (1st Cir. 1993) [No. 91-2229, slip op.
             ____

          at  9-10]  (footnote omitted);  accord,  e.g.,  United States  v.
                                          ______   ____   _____________

          McGill,  952  F.2d  16, 19  (1st  Cir.  1991);  United States  v.
          ______                                          _____________

          Natanel, 938 F.2d  302, 309 (1st Cir. 1991), cert. denied, 112 S.
          _______                                      _____ ______

          Ct. 986 (1992);  United States  v. Hunnewell, 891  F.2d 955,  956
                           _____________     _________

          (1st Cir. 1989);  United States  v. Costa, 890  F.2d 480,  482-83
                            _____________     _____

          (1st Cir. 1989); United  States v. Hoyas-Medina, 878 F.2d  21, 22
                           ______________    ____________

          (1st Cir. 1989); United States v. Carter, 815  F.2d 827, 829 (1st
                           _____________    ______

          Cir. 1987); United  States v.  Kobrosky, 711 F.2d  449, 457  (1st
                      ______________     ________

          Cir. 1983).

                    The rule  has  a salutary  purpose:   since  claims  of

          ineffective assistance involve  a binary, fact-dominated analysis

            the defendant must show, first, that counsel's performance  was

          constitutionally  deficient  and,  second,  that   the  deficient

          performance prejudiced the defense, see Strickland v. Washington,
                                              ___ __________    __________

          466 U.S. 668,  687 (1984)   such  claims typically should not  be

          addressed  in the first instance  by an appellate  tribunal.  See
                                                                        ___

          Mala, ___ F.3d  at ___ [slip op. at 10]; Costa,  890 F.2d at 483;
          ____                                     _____

          Hoyas-Medina,  878 F.2d at 22.  Moreover, because the trial judge
          ____________

          is  intimately familiar with the case and is "usually in the best

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position to  assess both the quality of  the legal representation

          afforded to the defendant in the district court and the impact of

          any  shortfall in  that  representation," Mala,  ___ F.3d  at ___
                                                    ____

          [slip  op. at 10], his insights are often invaluable in assessing

          ineffective  assistance  claims.    For  these  reasons  we  have

          undertaken  "first  instance"  review of  ineffective  assistance

          claims on direct appeal only  when the critical facts are  not in

          dispute  and  the  record  is  sufficiently  developed  to  allow

          reasoned consideration  of the  arguments presented.   See, e.g.,
                                                                 ___  ____

          Natanel, 938 F.2d at 309.
          _______

                    This case fits within the  general rule, not within the

          narrow exception to  it.   On the record  presently compiled,  we

          cannot  satisfactorily  address either  prong  of the  Strickland
                                                                 __________

          inquiry.  In particular, we cannot tell whether counsel's failure

          to claim  "surprise" or  to seek  a  voir dire  when an  in-court
                                               ____ ____

          identification loomed may (or may not) have served some strategic

          purpose,  or, if not, whether  the failure to  follow a different

          course can  fairly be regarded  as prejudicial in  the Strickland
                                                                 __________

          sense.  Hence, the issue of ineffective assistance is prematurely

          before us.

                    We  need  go  no  further.    We  summarily affirm  the

          judgment below, see 1st Cir. R. 27.1, without prejudice, however,
                          ___

          to appellant's right to raise his claim of ineffective assistance

          in a proceeding brought pursuant to 28 U.S.C.   2255.  We express

          no opinion as to the merit (or lack of merit) of any such claim.

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It is so ordered.
                    It is so ordered.
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