United States v. Griffith

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-60868
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MORRIS S. GRIFFITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
(3:99-CR-48)
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March 16, 2001
Before REAVLEY, SMITH, and DeMOSS,
Circuit Judges.
PER CURIAM:*
Morris Griffith was convicted of attempting
and conspiring to commit extortion, in
violation of 18 U.S.C. § 1951(b)(2) and (3).
He argues two instances of ineffective
assistance of counsel: first, that pretrial
counsel Harry Rosenthal, who was Griffith’s
counsel in an unrelated divorce matter, labored
under a conflict of interest in that he also
represented Jon Adams, the government
informant in the extortion investigation; and
second, that his trial counsel, J.B. Goodsell,
was ineffective because he failed to call Adams
to testify, elicited damaging testimony from
Artie Armstrong on cross-examination,
mishandled Griffith’s entrapment defense, and
introduced into evidence a “memorandum of
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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understanding” that admitted guilt. Finding no
error, we affirm.
I.
Griffith argues that Rosenthal was
constitutionally ineffective under the Sixth
Amendment because he failed to fulfill a duty
to inform Griffith of an FBI investigation or to
advise him not to engage in criminal activity
that was the subject of the FBI’s sting
operation.1 At the time of the sting operation,
a formal adversary criminal proceeding had not
been initiated against Griffith. Thus, his right
to constitutionally effective assistance of
counsel had not attached. Kirby v. Illinois,
406 U.S. 682, 689 (1972).
Further, Griffith admits that none of Rosen-
thal’s actions during the brief time after
Griffith was indicted and before Rosenthal
withdrew affected the outcome of the trial.
Therefore, any conflict of interest produced no
adverse effect after Griffith’s Sixth Amend-
ment rights had attached.
II.
Griffith fails to establish that Goodsell was
ineffective. He does not show that Adams’s
testimony would have been beneficial had
counsel called him to testify. United States v.
Abner, 825 F.2d 835, 844 (5th Cir. 1987);
Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th
Cir. 1983). Griffith also fails to explain how
counsel’s cross-examination of co-conspirator
Artie Armstrong was deficient or how the tes-
timony elicited had an adverse effect on his
defense.
Goodsell was not ineffective for arguing
simultaneously that Griffith did not commit the
underlying crime and that, if he did, it was only
the result of entrapment. A defendant may
argue that he did not commit all the elements
of the underlying crime and also pursue an
entrapment defense. Mathews v. United
States, 485 U.S. 58, 63-66 (1988); United
States v. Ivey, 949 F.2d 759, 768 (5th Cir.
1991); United States v. Jones, 839 F.2d 1041,
1053 (5th Cir. 1988). Although Griffith com-
plains that Goodsell failed to pursue a
vigorous entrapment defense, Goodsell argued
entrapment in his opening statement, elicited
testimony in an attempt to demonstrate
entrapment, and argued entrapment during
closing argument. At Goodsell’s request, the
jury instructions included an entrapment
defense.
Nor was Goodsell ineffective for
i n t r o d u c i n g a “ m e m o r a n d u m o f
understanding” into evidence. The
memorandum was negotiated by Rosenthal on
Griffith’s behalf. Counsel made a conscious
effort to use the memorandum as part of an
entrapment theory and to allege that Rosenthal
was a government agent by virtue of his
representation of Adams in negotiating a deal
with the FBI. Strickland v. Washington, 466
1 We generally decline to consider ineffective
assistance claims on direct appeal, United States v.
Gibson, 55 F.3d 173, 179 (5th Cir. 1995), and in-
stead dismiss them without prejudice so the de-
fendant can develop the record through a motion
under 28 U.S.C. § 2255. United States V. Chavez-
Valencia, 116 F.3d 127, 133-34 (5th Cir. 1997).
We resolve ineffective assistance claims only in
those rare circumstances where the record allows
us to evaluate fairly the merits of the claim.
United States v. Higdon, 832 F.2d 312, 314 (5th
Cir. 1987). Both sides here agree that the record is
sufficiently developed for us to resolve these
claims.

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U.S. 668, 689 (1983) (holding that review of
counsel’s performance is highly deferential);
Green v. Johnson, 116 F.3d 1115, 1122 (5th
Cir. 1997) (stating that conscious and
informed decision on trial tactics and strategy
cannot be the basis of ineffective-assistance
claim unless it is so ill- chosen that it
permeates the entire trial with obvious
unfairness).
AFFIRMED.

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