IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-60868

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MORRIS S. GRIFFITH,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Mississippi

(3:99-CR-48)

_________________________

March 16, 2001

Before REAVLEY, SMITH, and DeMOSS,

Circuit Judges. 

PER CURIAM:*

MorrisGriffithwas 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

counselin an unrelated divorcematter, 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,

wasineffective because he failed to callAdams

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.
2

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 formaladversarycriminalproceeding 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 admitsthat none ofRosenthal’s actions during the brief time after

Griffith was indicted and before Rosenthal

withdrew affected the outcome of the trial.

Therefore, any conflict ofinterest produced no

adverse effect after Griffith’s Sixth Amendment 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 testimony elicited had an adverse effect on his

defense. 

Goodsell was not ineffective for arguing

simultaneouslythat 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 complains that Goodsell failed to pursue a

vigorous entrapment defense, Goodsellargued

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

introducing a “memorandum of

understanding” into evidence. The

memorandum was negotiated byRosenthal 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 instead dismiss them without prejudice so the defendant can develop the record through a motion

under 28 U.S.C. § 2255. United States V. ChavezValencia, 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.
3

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.