USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1118
UNITED STATES OF AMERICA,
Appellee,
v.
MELVIN WILLIAMS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U. S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Kenneth I. Singer on brief for appellant.
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A. John Pappalardo, United States Attorney, and Michael J.
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Tuteur, Assistant United States Attorney, on brief for appellee.
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January 13, 1994
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Per Curiam. In this criminal appeal, defendant-
Per Curiam.
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appellant Melvin Williams, having been convicted after a jury
trial of armed bank robbery, see 18 U.S.C. 2113 (1990),
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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,
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461 U.S. 499, 510-12 (1983) (holding that harmless error analysis
is applicable to improper closing argument by prosecutor); United
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States v. Sepulveda, ___ F.3d ___, ___ (1st Cir. 1993) [No. 92-
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1362, slip op. at 48] (finding "misguided rhetoric" not to call
for reversal "given the weight of the evidence"); United States
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v. Brown, 938 F.2d 1482, 1489 (1st Cir.) (holding improper
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argument not to necessitate retrial where record contained
substantial evidence of guilt), cert. denied, 112 S. Ct. 611
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(1991); United States v. Rodriguez-Estrada, 877 F.2d 153, 158-59
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(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
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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
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v. Mala, ___ F.3d ___, ___ (1st Cir. 1993) [No. 91-2229, slip op.
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at 9-10] (footnote omitted); accord, e.g., United States v.
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McGill, 952 F.2d 16, 19 (1st Cir. 1991); United States v.
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Natanel, 938 F.2d 302, 309 (1st Cir. 1991), cert. denied, 112 S.
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Ct. 986 (1992); United States v. Hunnewell, 891 F.2d 955, 956
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(1st Cir. 1989); United States v. Costa, 890 F.2d 480, 482-83
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(1st Cir. 1989); United States v. Hoyas-Medina, 878 F.2d 21, 22
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(1st Cir. 1989); United States v. Carter, 815 F.2d 827, 829 (1st
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Cir. 1987); United States v. Kobrosky, 711 F.2d 449, 457 (1st
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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,
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466 U.S. 668, 687 (1984) such claims typically should not be
addressed in the first instance by an appellate tribunal. See
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Mala, ___ F.3d at ___ [slip op. at 10]; Costa, 890 F.2d at 483;
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Hoyas-Medina, 878 F.2d at 22. Moreover, because the trial judge
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is intimately familiar with the case and is "usually in the best
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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 ___
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[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.,
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Natanel, 938 F.2d at 309.
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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
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inquiry. In particular, we cannot tell whether counsel's failure
to claim "surprise" or to seek a voir dire when an in-court
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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
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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,
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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.
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It is so ordered.
It is so ordered.
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