            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 99-60868
                                         _______________



                                 UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                              VERSUS

                                      MORRIS S. GRIFFITH,

                                                             Defendant-Appellant.


                                   _________________________

                            Appeal from the United States District Court
                              for the Southern District of Mississippi
                                           (3:99-CR-48)
                                  _________________________
                                         March 16, 2001


Before REAVLEY, SMITH, and DeMOSS,                   violation of 18 U.S.C. § 1951(b)(2) and (3).
  Circuit Judges.                                    He argues two instances of ineffective
                                                     assistance of counsel: first, that pretrial
PER CURIAM:*                                         counsel Harry Rosenthal, who was Griffith’s
                                                     counsel in an unrelated divorce matter, labored
   Morris Griffith was convicted of attempting       under a conflict of interest in that he also
and conspiring to commit extortion, in               represented Jon Adams, the government
                                                     informant in the extortion investigation; and
                                                     second, that his trial counsel, J.B. Goodsell,
   *
                                                     was ineffective because he failed to call Adams
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                     to testify, elicited damaging testimony from
determined that this opinion should not be
                                                     Artie Armstrong on cross-examination,
published and is not precedent except under the
limited circumstances set forth in 5TH CIR.          mishandled Griffith’s entrapment defense, and
R. 47.5.4.                                           introduced into evidence a “memorandum of
understanding” that admitted guilt. Finding no                                     II.
error, we affirm.                                             Griffith fails to establish that Goodsell was
                                                           ineffective. He does not show that Adams’s
                       I.                                  testimony would have been beneficial had
    Griffith argues that Rosenthal was                     counsel called him to testify. United States v.
constitutionally ineffective under the Sixth               Abner, 825 F.2d 835, 844 (5th Cir. 1987);
Amendment because he failed to fulfill a duty              Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th
to inform Griffith of an FBI investigation or to           Cir. 1983). Griffith also fails to explain how
advise him not to engage in criminal activity              counsel’s cross-examination of co-conspirator
that was the subject of the FBI’s sting                    Artie Armstrong was deficient or how the tes-
operation.1 At the time of the sting operation,            timony elicited had an adverse effect on his
a formal adversary criminal proceeding had not             defense.
been initiated against Griffith. Thus, his right
to constitutionally effective assistance of                   Goodsell was not ineffective for arguing
counsel had not attached. Kirby v. Illinois,               simultaneously that Griffith did not commit the
406 U.S. 682, 689 (1972).                                  underlying crime and that, if he did, it was only
                                                           the result of entrapment. A defendant may
   Further, Griffith admits that none of Rosen-            argue that he did not commit all the elements
thal’s actions during the brief time after                 of the underlying crime and also pursue an
Griffith was indicted and before Rosenthal                 entrapment defense. Mathews v. United
withdrew affected the outcome of the trial.                States, 485 U.S. 58, 63-66 (1988); United
Therefore, any conflict of interest produced no            States v. Ivey, 949 F.2d 759, 768 (5th Cir.
adverse effect after Griffith’s Sixth Amend-               1991); United States v. Jones, 839 F.2d 1041,
ment rights had attached.                                  1053 (5th Cir. 1988). Although Griffith com-
                                                           plains that Goodsell failed to pursue a
                                                           vigorous entrapment defense, Goodsell argued
                                                           entrapment in his opening statement, elicited
                                                           testimony in an attempt to demonstrate
                                                           entrapment, and argued entrapment during
   1
     We generally decline to consider ineffective          closing argument. At Goodsell’s request, the
assistance claims on direct appeal, United States v.       jury instructions included an entrapment
Gibson, 55 F.3d 173, 179 (5th Cir. 1995), and in-          defense.
stead dismiss them without prejudice so the de-
fendant can develop the record through a motion               Nor was Goodsell ineffective for
under 28 U.S.C. § 2255. United States V. Chavez-           introducing a “memorandum of
Valencia, 116 F.3d 127, 133-34 (5th Cir. 1997).            understanding” into evidence.             The
We resolve ineffective assistance claims only in
                                                           memorandum was negotiated by Rosenthal on
those rare circumstances where the record allows
us to evaluate fairly the merits of the claim.
                                                           Griffith’s behalf. Counsel made a conscious
United States v. Higdon, 832 F.2d 312, 314 (5th            effort to use the memorandum as part of an
Cir. 1987). Both sides here agree that the record is       entrapment theory and to allege that Rosenthal
sufficiently developed for us to resolve these             was a government agent by virtue of his
claims.                                                    representation of Adams in negotiating a deal
                                                           with the FBI. Strickland v. Washington, 466


                                                       2
U.S. 668, 689 (1983) (holding that review of
counsel’s performance is highly deferential);
Green v. Johnson, 116 F.3d 1115, 1122 (5th
Cir. 1997) (stating that conscious and
informed decision on trial tactics and strategy
cannot be the basis of ineffective-assistance
claim unless it is so ill- chosen that it
permeates the entire trial with obvious
unfairness).

   AFFIRMED.




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