[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1059

UNITED STATES,

Appellee,

v.

RUBEN JOSEPH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael Ponsor, U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Boudin, Circuit Judges.

Jennifer Appleyard on brief for appellant. Donald K. Stern, United States Attorney, and C. Jeffrey Kinder, Assistant United States Attorney, on brief for appellee.

July 28, 1998

Per Curiam. Upon careful review of the briefs and record, we perceive no plain error in the government's closing remarks. Even assuming that such remarks were not proper, given the weight of the evidence against defendant, we cannot say that they affected the outcome of the trial. See United States v. Tajeddini,

(1st Cir. 1993). On the record before us, we see no basis for an ineffective assistance of counsel claim regarding counsel's failure to challenge the admission of the affidavit, as defendant has not suggested any viable challenge to it. To the extent, if any, the claim of ineffective assistance of counsel depends upon facts not appearing in the record, such a claim must be presented to the district court in the first instance. See United States v. Mala,

(1st Cir. 1993). Affirmed. See 1st Cir. Loc. R. 27.1.