Unpublished Disposition, 923 F.2d 863 (9th Cir. 1991)

MEMORANDUM^** 

Kambiz Daryaie appeals his conviction for attempt to possess cocaine with intent to distribute and for using a telephone to facilitate the attempted possession. We affirm.

Daryaie argues he was denied effective assistance of counsel because his trial counsel failed to present an entrapment defense due to improper pressure from the district judge. The government alleges defense counsel requested the entrapment instruction, but it was denied by the court. In any case, Daryaie's claim fails because it meets neither the "objective standard of reasonableness" nor the "prejudice" prongs of the test for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Daryaie's attorney decided not to pursue the entrapment defense apparently based on earlier statements defendant gave law enforcement officers where he admitted the crime without raising any such defense. Counsel therefore made a tactical decision not to rely on this defense and not to have defendant testify in light of the strong evidence against him. Such tactical decisions receive considerable deference. E.g., Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Moreover, there was nothing in the record to suggest such a defense would have changed the outcome, given the strong evidence that defendant was an experienced narcotics "broker" and was predisposed to negotiate the deal.

Daryaie next contends there was insufficient evidence to sustain his conviction for attempt because he had not moved beyond preparation and completed a "substantial step" toward completion of the crime. He would normally have failed to preserve the issue for appeal by not moving for acquittal at the end of trial; therefore, he also alleges the failure to move for acquittal on this ground was ineffective assistance of counsel. The two questions are related; if the motion would have been meritless, failure to make it could not constitute ineffective assistance. See United States v. Feldman, 853 F.2d 648, 665-66 (9th Cir. 1988).

There was more than sufficient evidence, viewed in the light most favorable to the government, for a rational trier of fact to have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Defendant argues that because he had not yet sampled the cocaine and could have chosen to walk away from the deal, he had not yet engaged in actual attempt even though he had given the DEA agent the money. He relies on United States v. Joyce, 693 F.2d 838 (8th Cir. 1982). However, the Joyce court found no attempt precisely because Joyce never produced any money and handed the cocaine back to the agent, id. at 842-43, thus taking some step to abandon his intent to carry through with the deal. See United States v. Runco, 873 F.2d 1230, 1232 (9th Cir. 1989). The mere fact that Daryaie never sampled the cocaine is not enough; we have held that merely arriving with the money after telephone negotiations is sufficient. United States v. Scott, 767 F.2d 1308, 1312 (9th Cir. 1985). Daryaie's sufficiency of the evidence claim fails; his ineffective assistance of counsel claim therefore is also meritless.

AFFIRMED.