Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

MEMORANDUM^*** 

Levi Samuel LaBuff was involved in a shooting at his mother's house. He was tried by a jury and convicted of: 1) illegally possessing or receiving a weapon in violation of 18 U.S.C. § 922(g); 2) using a handgun during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (1); and 3) resisting arrest in violation of 18 U.S.C. § 111. Finding no merit in LaBuff's appeal, we affirm.

LaBuff first contends that a new trial is required because he was denied the effective assistance of counsel at trial. LaBuff contends that trial counsel made numerous errors during trial (e.g., failing to call LaBuff or his wife to testify at trial, failing to object to hearsay testimony, failing to introduce allegedly exculpatory evidence, etc.). In the absence of a developed factual record, we generally do not consider ineffectiveness claims on direct appeal. United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987). We have recognized that the inadequacy of a defendant's legal representation might rise to the level of plain error for the district court not to have taken notice, sua sponte, of the problem during trial. Id. at 1482-83. LaBuff's allegations of ineffectiveness, if any, are not so patent as to meet this strict standard. A factual record is needed to evaluate the ineffectiveness claim and we decline to address it on direct appeal. This claim may be raised in a Sec. 2255 petition. Id.¹ 

Closely related to LaBuff's ineffectiveness claim is his argument that the district court erred in failing to consider his motion for a new trial filed pursuant to Fed.R.Crim.Pro. 33. LaBuff filed a motion for a new trial more than seven days after entry of the verdict. Rule 33 requires that motions for a new trial not based on newly-discovered evidence must be brought within seven days of verdict. The time period is a jurisdictional requirement. United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir. 1978). LaBuff's counsel styled her new trial motion as one based on newly-discovered evidence. The district court concluded that the motion raised no newly-discovered evidence but was instead based upon facts known to the accused at the time of trial. The district court concluded that the newly-discovered "evidence" was a claim of ineffective assistance of counsel. We agree. Such claims do not constitute newly-discovered evidence. Id.; United States v. Ellison, 557 F.2d 128, 133 (7th Cir. 1977). Because the Rule 33 motion did not raise newly-discovered evidence as the basis for the motion, the motion was untimely under Rule 33. Accordingly, the district court correctly dismissed the motion. Lara-Hernandez, 588 F.2d at 275.² 

LaBuff contends that the convictions must be reversed because LaBuff was never identified at trial. LaBuff's brief states: "Mr. Racine identified the defendant." Appellant's Brief at 22. LaBuff then asserts that:

An essential jurisdictional element of each of the offenses charged in the indictment against the defendant himself is the one who did the act complained of. In this particular case, that person was never identified to the jury

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Id. (emphasis added). Having conceded that LaBuff was identified at trial, this argument is frivolous.

LaBuff next contends that the district court erred in permitting Special Agent Andrew Johnson to testify concerning a statement made by LaBuff. Johnson testified that on the day of the crime LaBuff told him that his family members would not testify against him.

LaBuff contends that the Johnson testimony was impeachment evidence which impeached government witnesses--the family members--before the witnesses testified. Counsel offers no authority for the claim of error, merely stating that the impeachment evidence was not relevant until the witnesses actually testified. Counsel further contends that the order of testimony unfairly "set" the jury's mind before the inculpatory evidence was introduced. The evidence was admissible under Fed.R.Evid. 801(d) (2) (A) as an admission by a party opponent. The jury could have inferred from LaBuff's statement an awareness of some guilt and the district court properly admitted the statement. United States v. Brown, 575 F.2d 746, 748 (9th Cir. 1978); United States v. Pistante, 453 F.2d 412, 412-113 (9th Cir. 1971) (per curiam) (pre-Rules case cited with approval in Brown) . We reject LaBuff's claim that the order in which the statement was admitted constitutes reversible error. Fed.R.Evid. 611 permits the trial judge to control the mode and order of presenting evidence and testimony. There is no merit to LaBuff's argument that the trial court abused its discretion in permitting the testimony to unfold as it did.³  See United States v. Taylor, 716 F.2d 701, 710 (9th Cir. 1983) (alleged Rule 611 error reviewed for abuse of discretion).

LaBuff lastly contends that the district court erred in denying his motion for an acquittal on counts II and III. Denial of a motion for acquittal made pursuant to Fed.R.Crim.Pro. 29 is reviewed under the same test used to determine whether the evidence is sufficient to convict. United States v. Talbert, 710 F.2d 528, 530 (9th Cir. 1983). The evidence is sufficient to convict if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Because trial counsel failed to renew the motion at the close of the trial, we review this claim for plain error. United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir. 1988).

Count II charges LaBuff with using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. 924(c) (1). The indictment states that the predicate crime of violence is assault with a dangerous weapon with intent to do bodily harm. 18 U.S.C. § 113(c). LaBuff argues that there was insufficient evidence to support the mens rea element of 18 U.S.C. § 113(c).⁴  LaBuff also contends that the evidence was insufficient to convict on Count III, charging LaBuff with resisting arrest. We have reviewed the entire trial transcript and conclude that there was sufficient evidence to support the convictions. The district court correctly denied the motion for acquittal.

LaBuff raises no claims meriting reversal. Accordingly, the judgment is

AFFIRMED.