UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN BAUTISTA ALOMIA-TORRES, a/k/a

No. 99-4387

John, a/k/a Luis Antonio Torres,

a/k/a Edward Martinez, a/k/a Luis

Alfredo Martinez, a/k/a John the

Jamaican,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Samuel G. Wilson, Chief District Judge.

(CR-97-40)

Submitted: April 28, 2000

Decided: June 5, 2000

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mark P. Foster, Jr., Charlotte, North Carolina, for Appellant. Robert

J. Higdon, Jr., OFFICE OF THE UNITED STATES ATTORNEY,

Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A jury convicted Juan Bautista Alomia-Torres of various drug and

drug-related offenses. On appeal, he alleges that the district court

erred by denying his motion for a continuance and that his trial counsel rendered ineffective assistance. Finding no reversible error, we

affirm.

The record shows that Alomia-Torres was the leader of a major

drug conspiracy that was based primarily in Charlotte and WinstonSalem, North Carolina, from 1989-1996. Most of the co-conspirators

were from the same neighborhood in Colombia. The conspirators

imported the cocaine from Colombia and Ecuador and distributed it

in North Carolina, Georgia, Texas, and New York. The conspiracy

involved over twenty people, and Alomia-Torres was held responsible

at sentencing for distributing in excess of 300 kilograms of cocaine.

We review the district court's denial of Alomia-Torres' motion for

a continuance for an abuse of discretion. See United States v. Hoyte,

51 F.3d 1239, 1245 (4th Cir. 1995). To prevail, Alomia-Torres must

show that the denial prejudiced his case. See id. We find that he has

failed to meet this burden.

Alomia-Torres' trial counsel was appointed to represent him

approximately six weeks prior to trial.1 Counsel filed a motion for

continuance based on limited preparation time. Specifically, counsel

stated that he had other pending trials and briefs, that the record was

extremely voluminous, and that he needed time to transcribe the

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1 This attorney was the fourth to represent Alomia-Torres; the others

having withdrawn for various reasons, most notably disagreements with

Alomia-Torres over trial strategy. The record further shows that the trial

was continued several times over the preceding 18 months.

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record into Spanish for Alomia-Torres. The district court denied the

motion and counsel's subsequent motion for reconsideration.

We find that the district court did not abuse its discretion by denying an additional continuance. Counsel had access to and reviewed

the Government's discovery file from the beginning of his representation. While counsel did not receive photocopies of the file until

approximately two weeks prior to trial, he had access to the information needed to prepare his case long before that. Our conclusion is

supported by counsel's ability to file several pre-trial motions, most

of which were resolved in Alomia-Torres' favor, and his responses to

Government requests. Moreover, Alomia-Torres' prior attorneys had

access to most of the same information for over a year-and-a-half.2

Finally, the evidence against Alomia-Torres was overwhelming. Several co-conspirators testified concerning the extent of his involvement

in the drug business. As a result, we find that Alomia-Torres fails to

show how he was prejudiced by the denial.

Alomia-Torres also alleges that counsel was ineffective because he

was unprepared for trial and that this lack of preparation manifested

itself in counsel's weak cross-examination of Government witnesses,

failure to object to inadmissible evidence, and failure to present a

coherent theory of innocence during closing argument. We review

claims of ineffective assistance of counsel on direct appeal only when

the ineffectiveness "conclusively appears" on the record. See United

States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). Otherwise, such

claims should be raised in the district court in a habeas corpus proceeding rather than in this court by direct appeal. See id.

Our review of the record shows that Alomia-Torres' claims fall

into the latter category. There are numerous tactical reasons for an

attorney to limit his cross-examination, and we decline to speculate

as to which were present here. We further find that none of the complained of testimony was clearly inadmissible. Contrary to AlomiaTorres' allegations, the witnesses testified from first-hand experience;

no further foundation was needed. Finally, although counsel's strat-

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2 There is nothing in the record to suggest that Alomia-Torres was

unable to assist trial counsel based on this prior access.

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egy of making a short closing argument was ultimately unsuccessful,

we do not find it glaringly deficient.

Accordingly, we affirm Alomia-Torres' conviction and sentence.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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