United States v. Joseph

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]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