
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                             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,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Kenneth I. Singer on brief for appellant.               _________________               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,                                     ___   ____  _____________    ________          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                                          2          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                                          3          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.                                          4                    It is so ordered.                    It is so ordered.                    ________________                                          5
