## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-60868

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### M ORRIS 

### S. G RIFFITH



### ,

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: *

Morris Griffith was convicted of attempting

and consp iring 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 in t erest in that he also

represented Jon Adams, t h e government

informan t in the extortion investigation; and

second, that his trial counsel, J.B. Goodsell,

was ineffective because he failed to call Adams

to testif y, elicited damaging testimony from

Artie Armstrong on cros s-examination,

mishandled Griffith’s entrapment defense, and

introduced into e v idence a “memorandum of * Pursuan t to 5 T H C IR

. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited c i rcumstances set forth in 5 TH C IR

. R. 47.5.4.2

understanding” that admitted guilt. Finding no

error, we affirm.

I.

G riffit h argues that Rosenthal wa s

constitutionally i neffective under the Sixth

Amendment because he failed to fulfill a duty

to inform Griffith of an FBI investigation or to

a dvise him not to engage in criminal ac tivity

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 assistan c e of

counsel had not attached. Kirby v. Illinois

, 406 U.S. 682, 689 (1972).

Further, Griffith admits that none of Rosenthal’s actions during the bri ef t ime after

Grif f ith was indicted and before Rosenthal

withdrew affected the o utcome of the trial.

Therefore, any conflict of interest produced no

adverse e ffect after Griffith’s Sixth Amendment rights had attached. II.

Griffith fails to establish that Goodsell was

ineffecti v e. He does not show that Adams’s

testimony would have been benefici a l had

counsel called him to testify. United States v.

Abner

, 825 F.2d 835, 844 (5th Ci r. 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 test imony elicited had an adverse effect on his

defense.

Goodsell was not ineffec t ive 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 a lso pursue an

entrap m ent defense. M athews v. United

States

, 485 U.S. 58, 63-66 (1988); U nited

States v. Iv ey , 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

vigo r ous entrapment defense, Goodsell argued

entrapment in his opening statement, elicited

testimony in an attemp t to dem onstrate

entrapment, and argued entrap ment during

closing argument. At Goodsell’s request, the

jury instructions included an entrapment

defense.

Nor was Goodsell ineffective for

introducing a “memorandum of

understandi ng” i

nto evidence. The

memorandum was negotiated by Rosenthal on

Griffith ’ s behalf. Counsel made a conscious

effort to use the memorandum as p art of an

entrapment theory and to allege that Rosenthal

w as a government agent by virtue of his

representation of Adams in negotiating a deal

with the FBI. Strickland v. Washington

, 466 1 We generall y 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 prejud ice so the defendant can develop the record through a motion

under 28 U.S.C. § 2255. U nited States V. ChavezValencia

, 116 F.3d 127, 133-34 (5th Cir. 1997).

We resol ve 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 c o nscious and

informed decision on trial tactics and strategy

cannot be the basis of ineffective-assistance

claim unless it i s so ill- chosen that it

permeates the entire trial with obvious

unfairness).

AFFIRMED.