IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 99-60868 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MORRIS S. GRIFFITH,

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, violation of

(b)(2) and (3). Circuit Judges. He argues two instances of ineffective assistance of counsel: first, that pretrial PER CURIAM:* counsel Harry Rosenthal, who was Griffith’s counsel in an unrelated divorce matter, labored Morris Griffith was convicted of attempting under a conflict of interest in that he also and conspiring to commit extortion, in represented Jon Adams, the government informant in the extortion investigation; and second, that his trial counsel, J.B. Goodsell, * was ineffective because he failed to call Adams Pursuant to 5TH CIR. R. 47.5, the court has to testify, elicited damaging testimony from determined that this opinion should not be Artie Armstrong on cross-examination, published and is not precedent except under the limited circumstances set forth in 5TH CIR. mishandled Griffith’s entrapment defense, and R. 47.5.4. introduced into evidence a “memorandum of understanding” that admitted guilt. Finding no II. error, we affirm. Griffith fails to establish that Goodsell was ineffective. He does not show that Adams’s I. testimony would have been beneficial had Griffith argues that Rosenthal was counsel called him to testify. United States v. constitutionally ineffective under the Sixth Abner,

(5th Cir. 1987); Amendment because he failed to fulfill a duty Ross v. Estelle,

(5th to inform Griffith of an FBI investigation or to Cir. 1983). Griffith also fails to explain how advise him not to engage in criminal activity counsel’s cross-examination of co-conspirator that was the subject of the FBI’s sting Artie Armstrong was deficient or how the tes- operation.1 At the time of the sting operation, timony elicited had an adverse effect on his a formal adversary criminal proceeding had not defense. been initiated against Griffith. Thus, his right to constitutionally effective assistance of Goodsell was not ineffective for arguing counsel had not attached. Kirby v. Illinois, simultaneously that Griffith did not commit the

(1972). underlying crime and that, if he did, it was only the result of entrapment. A defendant may Further, Griffith admits that none of Rosen- argue that he did not commit all the elements thal’s actions during the brief time after of the underlying crime and also pursue an Griffith was indicted and before Rosenthal entrapment defense. Mathews v. United withdrew affected the outcome of the trial. States,

(1988); United Therefore, any conflict of interest produced no States v. Ivey,

(5th Cir. adverse effect after Griffith’s Sixth Amend- 1991); United States v. Jones,

, ment rights had attached. 1053 (5th Cir. 1988). Although Griffith com- plains that Goodsell failed to pursue a vigorous entrapment defense, Goodsell argued entrapment in his opening statement, elicited testimony in an attempt to demonstrate entrapment, and argued entrapment during 1 We generally decline to consider ineffective closing argument. At Goodsell’s request, the assistance claims on direct appeal, United States v. jury instructions included an entrapment Gibson,

(5th Cir. 1995), and in- defense. stead dismiss them without prejudice so the de- fendant can develop the record through a motion Nor was Goodsell ineffective for under

. United States V. Chavez- introducing a “memorandum of Valencia,

(5th Cir. 1997). understanding” into evidence. The We resolve ineffective assistance claims only in memorandum was negotiated by Rosenthal on those rare circumstances where the record allows us to evaluate fairly the merits of the claim. Griffith’s behalf. Counsel made a conscious United States v. Higdon,

(5th effort to use the memorandum as part of an Cir. 1987). Both sides here agree that the record is entrapment theory and to allege that Rosenthal sufficiently developed for us to resolve these was a government agent by virtue of his claims. representation of Adams in negotiating a deal with the FBI. Strickland v. Washington, 466

, 689 (1983) (holding that review of counsel’s performance is highly deferential); Green v. Johnson,

(5th Cir. 1997) (stating that conscious and informed decision on trial tactics and strategy cannot be the basis of ineffective-assistance claim unless it is so ill- chosen that it permeates the entire trial with obvious unfairness).

AFFIRMED.

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