
USCA1 Opinion

	




          December 13, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1751                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                             ALBERT L. GIOVANELLA, III,                                 Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U. S. District Judge]                                             ____________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Gerard  J. Boyle  and Boyle  Law Office,  P.C. on  brief for               ________________      ________________________          appellant.               Peter  E. Papps, United States Attorney, Arnold H. Huftalen,               _______________                          __________________          Assistant United  States Attorney  and Terry  L. Ollila,  Special                                                 ________________          Assistant United States Attorney, on brief for the United States.                              __________________________                             __________________________                     Per  Curiam.    In  this  criminal  appeal,  defendant-                    Per  Curiam.                    ___________          appellant Albert  L. Giovanella,  III, advances  three arguments.          We  address  each  of  them  briefly (albeit  not  in  the  order          presented).                                          I                                          I                    Appellant challenges his  conviction on Count X  of the          indictment on  the  ground that  the  statute of  conviction,  18          U.S.C.   1956(a)(1)  (1988), applies only to  persons who "hid[e]          proceeds of unlawful drug  sales."  Appellant's Brief at  48.  We          disagree.    The  language  of   the  statute  suggests  no  such          limitation, the legislative  history implies none, and  no court,          to date, has  given credence to  this argument.   Count X of  the          indictment  charged   appellant,  in  essence,   with  conducting          financial  transactions  involving  the  proceeds  of  wire-fraud          activities.    By its  terms, the  statute of  conviction reaches          knowing use of "the proceeds of specified unlawful activity."  18          U.S.C.   1956(a)(1)(A)(1).   At the time  of appellant's actions,          wire  fraud  affecting financial  institutions was  so specified.          See 18 U.S.C.   1956(c)(7)(1)(D) (1988).  The charge contained in          ___          Count   X   was,   therefore,   properly   laid   under   section          1956(a)(1)(A)(1).   See United  States v.  Alford, 999 F.2d  818,                              ___ ______________     ______          822-23 (5th Cir.  1993); United States v. Paramo,  998 F.2d 1212,                                   _____________    ______          1217-18 (3d  Cir. 1993); United  States v. Taylor, 984  F.2d 298,                                   ______________    ______          301 (9th  Cir. 1993);  United States v.  Montoya, 945  F.2d 1068,                                 _____________     _______          1076-77 (9th Cir. 1991).                                          II                                          II                                          3                    Appellant  also  challenges   the  sufficiency  of  the          evidence with regard  to Count X.  Following a  guilty verdict, a          reviewing  court   must  scrutinize   the  record,   drawing  all          reasonable inferences in favor of  the verdict, to ascertain if a          rational jury  could have found  that the government  proved each          element  of the  crime beyond  a  reasonable doubt.   See  United                                                                ___  ______          States v.  Echeverri, 982 F.2d  675, 677 (1st Cir.  1993); United          ______     _________                                       ______          States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,          ______    _____                                     _____ ______          113 S. Ct. 1005 (1993).  The government can satisfy its burden of          proof  by  either   direct  or  circumstantial  evidence.     See                                                                        ___          Echeverri, 982 F.2d at 679; United States v. Rivera-Santiago, 872          _________                   _____________    _______________          F.2d 1073,  1079 (1st Cir.),  cert. denied, 492 U.S.  910 (1989).                                        _____ ______          To sustain a conviction, a reviewing court need not conclude that          only  a guilty  verdict  could appropriately  be  reached; it  is          enough that the  jury's determination  draws its  essence from  a          plausible reading of the record.  See Echeverri, 982 F.2d at 677;                                            ___ _________          Ortiz, 966 F.2d at 711.            _____                    Using these guideposts, the quantum of evidence adduced          here  is more than  adequate.   If the  jury believed  either Dr.          Barbati or Mr. Kittredge    and credibility calls are, of course,          within the jury's exclusive province, see United States v. David,                                                ___ _____________    _____          940 F.2d 722, 730 (1st Cir. 1991), cert. denied, 112 S. Ct. 2301,                                             _____ ______          (1992)    either  man's  testimony was  sufficient  to show  that          appellant committed fraud,  and that  the fraud  came within  the          contours of  section  1956(a)(1)(A)(1).   That  the jury  was  at          liberty to  believe both  witnesses simply  adds frosting  to the                                          4          cake and highlights the futility of appellant's asseveration.                                         III                                         III                    The Sixth  Amendment provides  that persons  accused of          crime  shall receive the  benefit of  counsel for  their defense.          See  U.S.  Const. amend.  VI.   Appellant  says that  he  did not          ___          receive  this protection  because  his attorney  performed  below          acceptable standards of  proficiency.  We do not  think that this          suggestion 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, No.  91-2229, slip op.                              _____________    ____          at 9-10  (1st Cir.  Oct. 27,  1993)  (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                                                                        ___                                          5          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, 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  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,                                                                      ____          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          long-odds exception to it.   On the record presently compiled, we          cannot  satisfactorily  address either  prong  of  the Strickland                                                                 __________          inquiry.    Hence,   the  issue  of  ineffective   assistance  is          prematurely before us.                                          IV                                          IV                    We need go  no further.  We affirm  the judgment below,          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.                                          6                    It is so ordered.                    It is so ordered.                    ________________                                          7
