United States v. Daniel B. Fitzgerald

70 F.3d 121 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Daniel B. FITZGERALD, Defendant-Appellant. No. 94-10475. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 17, 1995. Decided Nov. 6, 1995. Before: SKOPIL, PREGERSON, and FERNANDEZ, Circuit Judges. 1 MEMORANDUM * 2 Appellant Daniel B. Fitzgerald appeals his jury conviction and sentence imposed under the Sentencing Guidelines for conspiracy to distribute and possess and attempt to distribute cocaine in violation of 21 U.S.C. Sec. 846 . We have jurisdiction under 28 U.S.C. Sec. 1291 . We affirm. 3 Defense counsel's reference to Fitzgerald as a "minnow" in the conspiracy when his theory of defense was that he was "merely present" was not ineffective assistance of counsel. The "minnow" reference was obviously a legitimate attempt by counsel to rebuke the government's theory. We can therefore reasonably infer that the remark was part of a trial…