USCA1 Opinion

December 13, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________

No. 93-1751
UNITED STATES OF AMERICA,
Appellee,
v.
ALBERT L. GIOVANELLA, III,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U. S. District Judge]
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_________________________
Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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_________________________

Gerard J. Boyle and Boyle Law Office, P.C. on brief for

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appellant.
Peter E. Papps, United States Attorney, Arnold H. Huftalen,
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Assistant United States Attorney and Terry L. Ollila, Special
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Assistant United States Attorney, on brief for the United States.

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Per Curiam.
Per Curiam.
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appellant Albert
We

address

each

In

this

L. Giovanella,
of

them

criminal

appeal,

III, advances

briefly (albeit

not

defendant-

three arguments.
in

the

order

presented).
I
I
Appellant challenges his
indictment on
U.S.C.

the

ground that

1956(a)(1)

The

sales."

language

of

limitation, the legislative

to date, has
indictment

By its

involving

statute

suggests

terms, the

no

wire

1956(a)(1)(A)(1).
fraud

affecting financial

See 18 U.S.C.
___
Count

1956(a)(1)(A)(1).
822-23 (5th Cir.

301 (9th

therefore,

properly

See United States v.

___ ______________

of

wire-fraud

conviction reaches

so specified.

The charge contained in

laid

under

1076-77 (9th Cir. 1991).

II
II

section

Alford, 999 F.2d

______

818,

998 F.2d 1212,

Cir. 1993); United States v. Taylor, 984

______________
______
United States v.
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18

of appellant's actions,

1993); United States v. Paramo,

_____________
______

Cir. 1993);

the

conducting

institutions was

1956(c)(7)(1)(D) (1988).

was,

1217-18 (3d

At the time

such

no court,

knowing use of "the proceeds of specified unlawful activity."

U.S.C.

We

with

proceeds

statute of

48.

Count X of

essence,
the

18

persons who "hid[e]

this argument.
in

of the

conviction,

history implies none, and

appellant,

transactions

activities.

statute of

Appellant's Brief at

the

given credence to
charged

financial

the

(1988), applies only to

proceeds of unlawful drug

disagree.

conviction on Count X

Montoya, 945
_______

F.2d 298,

F.2d 1068,

Appellant

also

evidence with regard

reviewing

court

challenges

to Count X.

must

rational jury
element

could have found

of the

States v.
______

crime beyond

sufficiency

Following a

scrutinize

reasonable inferences in favor of

the

the

Echeverri, 982 F.2d

_________

the

guilty verdict, a

record,

drawing

all

the verdict, to ascertain if a

that the government

of

reasonable doubt.
675, 677 (1st Cir.

proved each
See
___

United
______

1993); United
______

States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,
______
_____
_____ ______
113 S. Ct. 1005 (1993).
proof

by

either

The government can satisfy its burden of

direct

or

circumstantial

evidence.

See
___

Echeverri, 982 F.2d at 679; United States v. Rivera-Santiago, 872

_________
_____________
_______________
F.2d 1073,

1079 (1st Cir.),

cert. denied, 492 U.S.

_____ ______

910 (1989).

To sustain a conviction, a reviewing court need not conclude that

only

a guilty

enough that the

verdict

could appropriately

jury's determination

plausible reading of the record.

be

draws its

reached; it

is

essence from

See Echeverri, 982 F.2d at 677;

___ _________

Ortiz, 966 F.2d at 711.

_____

Using these guideposts, the quantum of evidence adduced

here

is more than

adequate.

Barbati or Mr. Kittredge

If the

jury believed

either Dr.

and credibility calls are, of course,

within the jury's exclusive province, see United States v. David,

___ _____________
_____

940 F.2d 722, 730 (1st Cir. 1991), cert. denied, 112 S. Ct. 2301,
_____ ______
(1992)

either

man's

testimony was

appellant committed fraud,

contours of
liberty to

section

and that

sufficient
the fraud

1956(a)(1)(A)(1).

believe both

That

witnesses simply

to show

that

came within
the jury

adds frosting

the

was

at

to the

cake and highlights the futility of appellant's asseveration.

III
III
The Sixth
crime
See
___

Amendment provides

shall receive the

U.S.

receive

Const. amend.
this protection

acceptable standards of

benefit of
VI.

that persons

counsel for

Appellant

because

proficiency.

their defense.

says that

his attorney
We do not

accused of

he

performed

did not

below

think that this

suggestion is ripe for our consideration.

"We
monotonous

have held

with

that fact-specific

regularity

claims of

bordering

on

the

ineffective assistance

cannot make their debut on direct review of criminal convictions,

but, rather, must originally be

presented to, and acted upon by,

the trial court."

United States v. Mala, No.

_____________
____

at 9-10

Oct. 27,

(1st Cir.

1993)

e.g., United States v. McGill, 952

____ _____________
______
United States v.
______________

Natanel, 938
_______

cert. denied, 112 S. Ct.

_____ ______
891 F.2d 955, 956

accord,
______

F.2d 16, 19 (1st Cir.

1991);

F.2d 302,

309 (1st

Cir. 1991),

(1st Cir. 1989); United States v. Costa,

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_____

878 F.2d

21, 22 (1st

F.2d 827,

829 (1st

Cir. 1989); United States v. Carter,

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______
Cir. 1987); United States v.
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claims of ineffective
analysis

the

890

1989); United States v. Hoyas-Medina,

_____________
____________

F.2d 449, 457 (1st Cir. 1983).

dominated

(footnote omitted);

986 (1992); United States v. Hunnewell,

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F.2d 480, 482-83 (1st Cir.

since

91-2229, slip op.

The rule has a

must

Kobrosky, 711
________

salutary purpose:

assistance involve a
defendant

815

show,

binary, factfirst,

that

counsel's performance was constitutionally deficient and, second,

that

the

deficient

performance

prejudiced

the

defense,

see
___

Strickland v. Washington, 466 U.S.

__________
__________
typically should

not be

appellate tribunal.

668, 687 (1984)

addressed in the

such claims

first instance

by an

See Mala, slip op. at 10; Costa, 890 F.2d at

___ ____
_____

483; Hoyas-Medina, 878

____________

F.2d at 22.

Moreover,

because the trial

judge is intimately familiar with the case and is "usually in the

best

position

representation

to

assess

afforded to the

and the

impact of any

slip op.

at 10, his

ineffective

both

reasoned

and

the

of

defendant in the

claims.

instance"

record

For

review

of

the

legal

district court

representation," Mala,
____

insights are often invaluable

claims on direct appeal only

dispute

quality

shortfall in that

assistance

undertaken "first

the

these

in assessing

reasons

ineffective

we

assistance

when the critical facts are

is

sufficiently

consideration of the

developed

arguments presented.

have

to

not in

allow

See, e.g.,
___ ____

Natanel, 938 F.2d at 309.

_______
This

case fits within the general rule, not within the

long-odds exception to it.

cannot

satisfactorily

On the record presently compiled, we

address either

prong

of

the Strickland
__________

inquiry.

Hence,

the

issue

of

ineffective

assistance

is

prematurely before us.

IV
IV
We need go
without prejudice,
claim

no further.
however, to

We affirm

the judgment below,

appellant's right

to raise

his

of ineffective assistance in a proceeding brought pursuant

to 28 U.S.C.

2255.

We express no opinion as to

lack of merit) of any such claim.

6

It is so ordered.
It is so ordered.
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the merit (or