         09-3572-cr
         USA v. Morales (Tucker)


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 24 th day of September, two thousand and
 5       ten.
 6
 7       PRESENT: ROGER J. MINER,
 8                PIERRE N. LEVAL,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                       Appellee,
17
18                       -v.-                                                   09-3572-cr
19
20       VON TUCKER, also known as Face, also known as C.O. Miller,
21
22                                       Defendant-Appellant. *
23
24
25




                 *
              The Clerk of the Court is respectfully directed to
         amend the official caption to conform with the caption
         above.
 1   FOR APPELLANT:    LOUIS M. FREEMAN, Freeman Nooter &
 2                     Ginsberg, New York, NY.
 3
 4   FOR APPELLEE:     JESSE M. FURMAN, Assistant United States
 5                     Attorney, (Alexander J. Willscher,
 6                     Assistant United States Attorney, of
 7                     counsel) for Preet Bharara, United States
 8                     Attorney for the Southern District of New
 9                     York, New York, NY.
10
11        Appeal from the United States District Court for the
12   Southern District of New York (Scheindlin, J.).
13
14       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15   AND DECREED that the judgment of the district court be

16   AFFIRMED.

17       Defendant-appellant Von Tucker (“Appellant”) appeals

18   from a judgment of the United States District Court for the

19   Southern District of New York (Scheindlin, J.), entered on

20   August, 10, 2009, convicting him of conspiracy to distribute

21   and possession with intent to distribute, fifty grams or

22   more of cocaine base in violation of 21 U.S.C. §§ 846,

23   841(b)(1)(A); possession with intent to distribute five

24   grams or more of crack cocaine in violation of 21 U.S.C. §§

25   841(a)(1), 841(b)(1)(B); possession of a firearm in

26   furtherance of a drug trafficking crime in violation of 18

27   U.S.C. §§ 924(c)(1)(A), 2; and intentional murder in

28   furtherance of a continuing narcotics trafficking enterprise

29   in violation of 21 U.S.C. § 848(e)(1)(A), 18 U.S.C. § 2.     We

                                  2
1    assume the parties’ familiarity with the underlying facts,

2    the procedural history, and the issues presented for review.

3        Appellant’s sole argument on appeal is that he received

4    ineffective assistance of counsel at trial.     Appellant

5    alleges that his trial counsel abused drugs while

6    representing him, which resulted in, an actual conflict of

7    interest.     Appellant further alleges that his trial counsel

8    committed at least five separate errors that prejudiced the

9    outcome of his trial.     See Strickland v. Washington, 466

10   U.S. 668, 687—88, 693—94 (1984).

11       This Court has “expressed a baseline aversion to

12   resolving ineffectiveness claims on direct review.”     United

13   States v. Khedr, 343 F.3d 96, 99 (2d Cir. 2003)(internal

14   quotation marks and citations omitted).     The Supreme Court

15   has held that, “in most cases a motion brought under [28

16   U.S.C.] § 2255 is preferable to direct appeal for deciding

17   claims of ineffective assistance” because the district court

18   is “the forum best suited to developing the facts necessary

19   to determining the adequacy of representation during an

20   entire trial.”     Massaro v. United States, 538 U.S. 500, 504,

21   505 (2003).     Moreover, “the allegedly ineffective attorney

22   should generally be given the opportunity to explain the


                                     3
1    conduct at issue.”     Khedr, 343 F.3d at 100.     Consequently,

2    “few such claims will be capable of resolution on direct

3    appeal.”     Massaro, 538 U.S. at 507.

4          Although we may entertain an ineffective assistance

5    claim on direct review, United States v. Morris, 350 F.3d

6    32, 39 (2d Cir. 2003), we generally will only do so when the

7    “factual record is fully developed and resolution of the

8    Sixth Amendment claim on direct appeal is ‘beyond any doubt’

9    or ‘in the interest of justice.’”        United States v. Gaskin,

10   364 F.3d 438, 468 (2d Cir. 2004)(quoting Khedr, 343 F.3d at

11   100).     If the record is insufficiently developed, “a

12   collateral proceeding under 18 U.S.C. § 2255 is the

13   preferred method for such a challenge.”        United States v.

14   Yauri, 559 F.3d 130, 133 (2d Cir. 2009) (per curiam).

15         Here, Appellant’s claim that his trial counsel abused

16   drugs cannot properly be evaluated on the record before us;

17   all of Appellant’s factual allegations in support of this

18   claim are outside the record on appeal.        See Fed. R. App. P.

19   10.     Appellant’s additional claims, the majority of which

20   allege a failure by his trial counsel to interview and/or

21   call as defense witnesses certain persons identified by

22   Appellant in preparation of trial, are similarly incapable


                                     4
1    of resolution.    The trial record does not reflect these

2    alleged errors of omission, and their potential effect (or

3    lack thereof) on the trial outcome is speculative.     Thus, we

4    cannot say that resolution of Appellant’s ineffective

5    assistance claim is “beyond any doubt,” nor have the parties

6    persuaded us that review is required “in the interest of

7    justice.”    Gaskin, 364 F.3d at 468.   We therefore decline to

8    adjudicate Appellant’s ineffective assistance claim at this

9    time.   In addition, Appellant’s motion to expand the record

10   is denied.

11       For the foregoing reasons, the judgment of the district

12   court is hereby AFFIRMED.

13
14                                FOR THE COURT:
15                                Catherine O’Hagan Wolfe, Clerk
16
17




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