

                      [NOT FOR PUBLICATION] 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.

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     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

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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.                       

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