United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2004
Charles R. Fulbruge III
Clerk
No. 03-20771
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY THANH NGUYEN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-740-2
--------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Troy Nguyen appeals following his jury conviction of
conspiracy to possess with intent to distribute Ecstacy and
aiding and abetting possession with intent to distribute Ecstacy.
He asserts the following: (1) his attorney was ineffective for
not filing a pretrial motion to suppress Nguyen’s statement made
after a Houston narcotics officer approached Nguyen and
identified himself; (2) Nguyen’s statement followed an illegal
arrest and the district court should have granted the motion to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-20771
-2-
suppress the statement; (3) the district court erred in denying
Nguyen’s motion for judgment of acquittal because there was not
sufficient evidence to convict; (4) Nguyen’s attorney was not
present during Nguyen’s identification of a coconspirator in a
photographic lineup, which occurred after Nguyen had retained
counsel in violation of his Sixth Amendment right to counsel, and
his attorney was ineffective for not objecting to the
introduction of the lineup evidence at trial; (5) Nguyen’s
attorney was ineffective for not objecting to the introduction of
Nguyen’s identification of a coconspirator based upon a discovery
violation; and (6) Nguyen’s attorney’s cumulative errors
constituted ineffective assistance of counsel.
We generally do not review claims of ineffective assistance
of counsel on direct appeal when those claims have not been
presented before the district court, since no opportunity existed
to develop the record. United States v. Haese, 162 F.3d 359, 363
(5th Cir. 1998). We will review ineffective-assistance claims on
direct appeal only in rare cases where the record allows for a
fair evaluation of the merits. Id.; United States v. Rivas, 157
F.3d 364, 369 (5th Cir. 1998). The record is not sufficiently
developed with respect to any of Nguyen’s claims of ineffective
assistance of counsel, and we decline to review those claims on
direct appeal.
Nguyen has not shown error with the district court’s denial
of the motion the suppress the evidence of Nguyen’s statement
No. 03-20771
-3-
made following Officer Daniel’s approach and identification of
himself to Nguyen. See United States v. Santiago, 310 F.3d 336,
340 (5th Cir. 2002); United States v. Cooper, 43 F.3d 140, 145-46
(5th Cir. 1995). Nguyen fails to adequately brief the denial of
the motion for a judgment of acquittal; accordingly, this issue
is waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). Nguyen has not shown that his Sixth Amendment right to
counsel had attached at the time of his photo lineup
identifications of a coconspirator and has not shown plain error
with the admission of this evidence. See United States v.
Gouveia, 467 U.S. 180, 190 (1984); United States v. McClure, 786
F.2d 1286, 1290 (5th Cir. 1986); see also United States v. Olano,
507 U.S. 725, 732 (1993).
AFFIRMED.