Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Gary Stephen Trivoli-Johnson was convicted of committing wire and bank fraud, in violation of 18 U.S.C. §§ 1343-1344 (1982 & Supp. IV 1986), while director of various religious organizations. He appeals his convictions, claiming ineffective assistance of counsel. Because appellant has failed to demonstrate actual prejudice, we affirm.

An appellant alleging ineffective counsel must prove both ineffectiveness and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Complaints of ineffective counsel traditionally have been made collaterally, pursuant to 28 U.S.C. § 2255 (1982). United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985); United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943 (1984). When appealing directly, appellants may raise only those issues formally included in the trial record. United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir. 1985). In this appeal, appellant has raised only two issues which the trial record provides us an opportunity to review.

Appellant claims that his counsel agreed to jury instructions without personal review. As counsel objected to one instruction, this claim appears to be without merit. In any event, appellant does not dispute the propriety of the instructions and thus cannot show actual prejudice.

Appellant also claims that his counsel failed to impeach aggressively the independently corroborated testimony of a government witness. This claim is too speculative to show ineffectiveness, let alone actual prejudice.

AFFIRMED.