* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

June 8, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20771

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TROY THANH NGUYEN,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-02-CR-740-2

--------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Troy Nguyen appeals following his jury conviction of

conspiracy to possess with intent to distribute Ecstacy and

aiding and abetting possession with intent to distribute Ecstacy. 

He asserts the following: (1) his attorney was ineffective for

not filing a pretrial motion to suppress Nguyen’s statement made

after a Houston narcotics officer approached Nguyen and

identified himself; (2) Nguyen’s statement followed an illegal

arrest and the district court should have granted the motion to
No. 03-20771

-2-

suppress the statement; (3) the district court erred in denying

Nguyen’s motion for judgment of acquittal because there was not

sufficient evidence to convict; (4) Nguyen’s attorney was not

present during Nguyen’s identification of a coconspirator in a

photographic lineup, which occurred after Nguyen had retained

counsel in violation of his Sixth Amendment right to counsel, and

his attorney was ineffective for not objecting to the

introduction of the lineup evidence at trial; (5) Nguyen’s

attorney was ineffective for not objecting to the introduction of

Nguyen’s identification of a coconspirator based upon a discovery

violation; and (6) Nguyen’s attorney’s cumulative errors

constituted ineffective assistance of counsel.

We generally do not review claims of ineffective assistance

of counsel on direct appeal when those claims have not been

presented before the district court, since no opportunity existed

to develop the record. United States v. Haese, 162 F.3d 359, 363

(5th Cir. 1998). We will review ineffective-assistance claims on

direct appeal only in rare cases where the record allows for a

fair evaluation of the merits. Id.; United States v. Rivas, 157

F.3d 364, 369 (5th Cir. 1998). The record is not sufficiently

developed with respect to any of Nguyen’s claims of ineffective

assistance of counsel, and we decline to review those claims on

direct appeal. 

Nguyen has not shown error with the district court’s denial

of the motion the suppress the evidence of Nguyen’s statement
No. 03-20771

-3-

made following Officer Daniel’s approach and identification of

himself to Nguyen. See United States v. Santiago, 310 F.3d 336,

340 (5th Cir. 2002); United States v. Cooper, 43 F.3d 140, 145-46

(5th Cir. 1995). Nguyen fails to adequately brief the denial of

the motion for a judgment of acquittal; accordingly, this issue

is waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993). Nguyen has not shown that his Sixth Amendment right to

counsel had attached at the time of his photo lineup

identifications of a coconspirator and has not shown plain error

with the admission of this evidence. See United States v.

Gouveia, 467 U.S. 180, 190 (1984); United States v. McClure, 786

F.2d 1286, 1290 (5th Cir. 1986); see also United States v. Olano,

507 U.S. 725, 732 (1993). 

AFFIRMED.