United States v. Joseph

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1059



                          UNITED STATES,



                            Appellee,



                                v.



                          RUBEN JOSEPH,



                      Defendant, Appellant.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



            [Hon. Michael Ponsor, U.S. District Judge]







                              Before



                     Torruella, Chief Judge,

               Selya and Boudin, Circuit Judges.









     Jennifer Appleyard on brief for appellant.

     Donald K. Stern, United States Attorney, and C. Jeffrey

Kinder, Assistant United States Attorney, on brief for appellee.









July 28, 1998



















            Per Curiam.  Upon careful review of the briefs and

record, we perceive no plain error in the government's closing

remarks.  Even assuming that such remarks were not proper, given

the weight of the evidence against defendant, we cannot say that

they affected the outcome of the trial.  See United States v.

Tajeddini, 996 F.2d 1278, 1282-86 (1st Cir. 1993).

            On the record before us, we see no basis for an

ineffective assistance of counsel claim regarding counsel's failure

to challenge the admission of the affidavit, as defendant has not

suggested any viable challenge to it.  To the extent, if any, the

claim of ineffective assistance of counsel depends upon facts not

appearing in the record, such a claim must be presented to the

district court in the first instance.  See United States v. Mala,

7 F.3d 1058, 1063 (1st Cir.1993).

            Affirmed.  See 1st Cir. Loc. R. 27.1.