USCA1 Opinion
December 13, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1751
UNITED STATES OF AMERICA,
Appellee,
v.
ALBERT L. GIOVANELLA, III,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U. S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Gerard J. Boyle and Boyle Law Office, P.C. on brief for
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appellant.
Peter E. Papps, United States Attorney, Arnold H. Huftalen,
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Assistant United States Attorney and Terry L. Ollila, Special
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Assistant United States Attorney, on brief for the United States.
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Per Curiam. In this criminal appeal, defendant-
Per Curiam.
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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
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Count X was, therefore, properly laid under section
1956(a)(1)(A)(1). See United States v. Alford, 999 F.2d 818,
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822-23 (5th Cir. 1993); United States v. Paramo, 998 F.2d 1212,
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1217-18 (3d Cir. 1993); United States v. Taylor, 984 F.2d 298,
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301 (9th Cir. 1993); United States v. Montoya, 945 F.2d 1068,
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1076-77 (9th Cir. 1991).
II
II
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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
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States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993); United
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States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,
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113 S. Ct. 1005 (1993). The government can satisfy its burden of
proof by either direct or circumstantial evidence. See
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Echeverri, 982 F.2d at 679; United States v. Rivera-Santiago, 872
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F.2d 1073, 1079 (1st Cir.), cert. denied, 492 U.S. 910 (1989).
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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;
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Ortiz, 966 F.2d at 711.
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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,
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940 F.2d 722, 730 (1st Cir. 1991), cert. denied, 112 S. Ct. 2301,
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(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
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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
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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.
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at 9-10 (1st Cir. Oct. 27, 1993) (footnote omitted); accord,
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e.g., United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991);
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United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991),
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cert. denied, 112 S. Ct. 986 (1992); United States v. Hunnewell,
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891 F.2d 955, 956 (1st Cir. 1989); United States v. Costa, 890
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F.2d 480, 482-83 (1st Cir. 1989); United States v. Hoyas-Medina,
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878 F.2d 21, 22 (1st Cir. 1989); United States v. Carter, 815
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F.2d 827, 829 (1st Cir. 1987); United States v. Kobrosky, 711
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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
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5
Strickland v. Washington, 466 U.S. 668, 687 (1984) such claims
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typically should not be addressed in the first instance by an
appellate tribunal. See Mala, slip op. at 10; Costa, 890 F.2d at
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483; Hoyas-Medina, 878 F.2d at 22. Moreover, because the trial
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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,
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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
long-odds exception to it. On the record presently compiled, we
cannot satisfactorily address either prong of the Strickland
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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.
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It is so ordered.
It is so ordered.
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