[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 14, 2005
No. 04-15963 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00016-CR-DF-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OCTAVIUS DEMETRICE SAPP,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 14, 2005)
Before ANDERSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Octavius Demetrice Sapp appeals his convictions for possession with intent
to distribute more than 50 grams of crack cocaine, 21 U.S.C. § 841(a),
(b)(1)(A)(iii), 18 U.S.C. § 2, and possessing and carrying a firearm during and in
relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1). Sapp contends:
(1) trial counsel was ineffective in calling Demetrius Kendrick to the stand because
there was no question trial counsel knew Kendrick had lied in her earlier testimony
at the suppression hearing; and (2) the district court erred by not sua sponte
granting a mistrial after Kendrick admitted she had lied at the suppression hearing.
We affirm the district court.
I. DISCUSSION
A. Ineffective assistance of counsel
We generally will not consider on direct appeal claims of ineffective
assistance of counsel if the district court neither entertained this claim, nor
developed a factual record. United States v. Bender, 290 F.3d 1279, 1284 (11th
Cir. 2002) (citing United States v. Khoury, 901 F.2d 948, 969 (11th Cir. 1990)
modified on other grounds, 910 F.2d 713 (11th Cir. 1990)). If there is insufficient
evidence in the record to consider this claim on direct appeal, it should be resolved
in a 28 U.S.C. § 2255 collateral proceeding, where an evidentiary hearing may be
held. See United States v. Camacho, 40 F.3d 349, 355 (11th Cir. 1994) (“We will,
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however, consider an ineffective assistance of counsel claim on direct appeal if the
record is sufficiently developed.”).
The record is insufficiently developed to consider Sapp’s claim for
ineffective assistance of counsel in this direct appeal. Accordingly, we decline to
review Sapp’s claim of ineffective assistance of counsel and dismiss it without
prejudice. See Khoury, 901 F.2d at 974 (dismissing ineffective assistance of
counsel claim brought on direct appeal without prejudice to pursue on collateral
relief).
B. Mistrial
Sapp asserts the district court should have granted a mistrial “sua sponte in
spite of trial counsel’s failure to move for one.” Because this issue was raised for
the first time on appeal, our review is for plain error, reversing only if the error
affects the defendant’s substantial rights. See United States v. Olano, 113 S. Ct.
1770, 1776 (1993). “Plain error occurs where (1) there is an error; (2) that is plain
or obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial
and not harmless; and (4) that seriously affects the fairness, integrity or public
reputation of the judicial proceedings.” United States v. Hall, 314 F.3d 565, 566
(11th Cir. 2002).
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The district court did not plainly err by failing to sua sponte grant a mistrial.
Kendrick’s testimony at trial did not affect Sapp’s substantial rights because
Kendrick testified she had given Sapp a total of $1,000, regardless of the source
from which the money was derived. Kendrick testified the reason she had lied to
Sapp about the source of the money was “so he wouldn’t keep asking me for no
money because he knew I had got my taxes back.” The fact remains the jury heard
testimony Kendrick had given Sapp money, regardless of Kendrick’s source of the
money. That fact was before the jury and it was free to accept or reject it. Sapp
neither demonstrated it affected his substantial rights nor has he cited any binding
authority supporting his position. Accordingly, the district court did not commit
plain error. See United States v. Funt, 896 F.2d 1288, 1297 n.7 (11th Cir. 1990)
(noting it “would be a perversion of adversary process to permit a party to obtain a
mistrial based on his own evidence”); see also Johnson, 489 F.2d at 144 (affirming
conviction where trial judge failed to sua sponte grant mistrial, holding defendant
failed to show prejudice rose “to the level of plain error affecting substantial rights
of the appellant requiring reversal”).
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II. CONCLUSION
We decline to review Sapp’s claim of ineffective assistance of counsel and
dismiss it without prejudice. We further discern no plain error for the district
court’s failure to sua sponte grant a mistrial.
AFFIRMED IN PART; DISMISSED IN PART.
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