[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
No. 96-1261
UNITED STATES OF AMERICA,
Appellee,
v.
QUINCY D. JOHNSON,
A/K/A QUINCY D. HAMEL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Cyr, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Theodore L. Craft, by Appointment of the Court, and Quincy
D. Johnson, on brief pro se.
Helen Kazanjian, Assistant U.S. Attorney, and Jay P.
McCloskey, United States Attorney, on brief for appellee.
March 18, 1997
Per Curiam. In this appeal from a conviction for conspiring
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
States v. Newton, 891 F.2d 944, 949-50 (1st Cir. 1989).
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-
Martinez, 71 F.3d 946, 953 (1st Cir. 1995).
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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