Unpublished Dispositionunited States of America, Plaintiff-appellee, v. George E. Spagnuolo, Defendant-appellant, 815 F.2d 81 (6th Cir. 1987)

Defendant appeals his conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846(1), rendered by jury verdict in the United States District Court for the Eastern District of Michigan. Defendant alleges that he was denied the effective assistance of counsel, and that the district court erred both in admitting similar acts evidence under Fed.R.Evid. 404(b) and in allowing testimony of prior consistent acts pursuant to Fed.R.Evid. 801(d) (1) (B).

On April 15, 1985, defendant filed a motion in this court to remand to the district court for an evidentiary hearing to substantiate his claim of ineffective assistance of counsel. On October 31, 1985, this court denied the motion to remand for failure to conform with the procedural requirements of First National Bank of Salem v. Hirsch, 535 F.2d 343 (6th Cir. 1976), and on December 2, 1985, it held briefing in abeyance pending a decision by the district court on defendant's motion for a new trial. The district judge denied that motion on April 16, 1986. While the record on appeal has been supplemented, there is no appeal before us from the denial of defendant's motion for a new trial.

The record before us does not support the existence of a claim of denial of the effective assistance of counsel. Defendant is not precluded, however, from raising this issue in further proceedings under Worthington v. United States, 726 F.2d 1089 (6th Cir. 1984). We also find the defendant's other alleged error contentions to be without merit. Accordingly, the judgment of the district court is AFFIRMED.