
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                             United States Court of Appeals                                For the First Circuit                                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.                                         -2-               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                                         -3-          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.               ________                                         -4-
