UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

JUAN BAUTISTA ALOMIA-TORRES, a/k/a
                                                                        No. 99-4387
John, a/k/a Luis Antonio Torres,
a/k/a Edward Martinez, a/k/a Luis
Alfredo Martinez, a/k/a John the
Jamaican,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Samuel G. Wilson, Chief District Judge.
(CR-97-40)

Submitted: April 28, 2000

Decided: June 5, 2000

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mark P. Foster, Jr., Charlotte, North Carolina, for Appellant. Robert
J. Higdon, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

A jury convicted Juan Bautista Alomia-Torres of various drug and
drug-related offenses. On appeal, he alleges that the district court
erred by denying his motion for a continuance and that his trial coun-
sel rendered ineffective assistance. Finding no reversible error, we
affirm.

The record shows that Alomia-Torres was the leader of a major
drug conspiracy that was based primarily in Charlotte and Winston-
Salem, North Carolina, from 1989-1996. Most of the co-conspirators
were from the same neighborhood in Colombia. The conspirators
imported the cocaine from Colombia and Ecuador and distributed it
in North Carolina, Georgia, Texas, and New York. The conspiracy
involved over twenty people, and Alomia-Torres was held responsible
at sentencing for distributing in excess of 300 kilograms of cocaine.

We review the district court's denial of Alomia-Torres' motion for
a continuance for an abuse of discretion. See United States v. Hoyte,
51 F.3d 1239, 1245 (4th Cir. 1995). To prevail, Alomia-Torres must
show that the denial prejudiced his case. See id. We find that he has
failed to meet this burden.

Alomia-Torres' trial counsel was appointed to represent him
approximately six weeks prior to trial.1 Counsel filed a motion for
continuance based on limited preparation time. Specifically, counsel
stated that he had other pending trials and briefs, that the record was
extremely voluminous, and that he needed time to transcribe the
_________________________________________________________________
1 This attorney was the fourth to represent Alomia-Torres; the others
having withdrawn for various reasons, most notably disagreements with
Alomia-Torres over trial strategy. The record further shows that the trial
was continued several times over the preceding 18 months.

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record into Spanish for Alomia-Torres. The district court denied the
motion and counsel's subsequent motion for reconsideration.

We find that the district court did not abuse its discretion by deny-
ing an additional continuance. Counsel had access to and reviewed
the Government's discovery file from the beginning of his representa-
tion. While counsel did not receive photocopies of the file until
approximately two weeks prior to trial, he had access to the informa-
tion needed to prepare his case long before that. Our conclusion is
supported by counsel's ability to file several pre-trial motions, most
of which were resolved in Alomia-Torres' favor, and his responses to
Government requests. Moreover, Alomia-Torres' prior attorneys had
access to most of the same information for over a year-and-a-half.2
Finally, the evidence against Alomia-Torres was overwhelming. Sev-
eral co-conspirators testified concerning the extent of his involvement
in the drug business. As a result, we find that Alomia-Torres fails to
show how he was prejudiced by the denial.

Alomia-Torres also alleges that counsel was ineffective because he
was unprepared for trial and that this lack of preparation manifested
itself in counsel's weak cross-examination of Government witnesses,
failure to object to inadmissible evidence, and failure to present a
coherent theory of innocence during closing argument. We review
claims of ineffective assistance of counsel on direct appeal only when
the ineffectiveness "conclusively appears" on the record. See United
States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). Otherwise, such
claims should be raised in the district court in a habeas corpus pro-
ceeding rather than in this court by direct appeal. See id.

Our review of the record shows that Alomia-Torres' claims fall
into the latter category. There are numerous tactical reasons for an
attorney to limit his cross-examination, and we decline to speculate
as to which were present here. We further find that none of the com-
plained of testimony was clearly inadmissible. Contrary to Alomia-
Torres' allegations, the witnesses testified from first-hand experience;
no further foundation was needed. Finally, although counsel's strat-
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2 There is nothing in the record to suggest that Alomia-Torres was
unable to assist trial counsel based on this prior access.

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egy of making a short closing argument was ultimately unsuccessful,
we do not find it glaringly deficient.

Accordingly, we affirm Alomia-Torres' conviction and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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