[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 14, 2007
No. 06-15816 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00021-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GANGSTA' KO-LOF BISHOP GOSPIDON,
a.k.a. Derrick Johnson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 14, 2007)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Gangsta’ Ko-Lof Bishop Gospidon appeals his jury convictions for
conspiracy to distribute and possess with intent to distribute more than five grams
of cocaine base, in violation of 21 U.S.C. §§ 841 and 846, distribution of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), distribution of more
than five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(iii), knowing possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924, and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
Gospidon argues on appeal that the indictment was defective on its face
because it failed to specifically name his co-conspirators. He acknowledges that
we have held that the indictment need not provide the names of co-conspirators,
but he asserts that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), requires a different result, as it strengthened Sixth
Amendment and due process protections. However, we have reaffirmed our
position that the indictment need not provide the names of co-conspirators after
Apprendi. See United States v. Arbane, 446 F.3d 1223, 1228, n.8 (11th Cir. 2006).
He further argues that the government’s failure to list the names of the co-
conspirators in the indictment was unconstitutional because the government’s
practice was a fundamentally unfair ambush on him. Gospidon also appears to
argue that the government’s failure to identify the co-conspirators in the indictment
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amounted to a violation of his confrontation and cross-examination rights. These
arguments were first made on appeal.
Where a defendant fails to raise an objection to the indictment until the
appeal, we “must find the indictment sufficient unless it is so defective that it does
not, by any reasonable construction, charge an offense for which the defendant is
convicted.” United States v. Chilcote, 724 F.2d 1498, 1504-05 (11th Cir. 1984).
That is clearly not the case here and we conclude that the indictment was not
fundamentally defective for failing to specifically name Gospidon’s co-
conspirators. Gospidon’s other constitutional claims are waived, as he did not
provide any analysis, citations to the record, or citations to any legal authority in
his brief.
Gospidon also argues on appeal that the district court erred in denying his
motion for judgment of acquittal, asserting that the government’s evidence was
insufficient to support a conviction of conspiracy. He argues that although other
people sold drugs from his apartment, this evidence is circumstantial and
insufficient proof of a conspiracy. We review sufficiency of the evidence de novo
to determine whether a reasonable jury could have concluded that the evidence
established the defendant’s guilt beyond a reasonable doubt. United States v.
Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). In so doing, we view the evidence
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in the light most favorable to the government and make all reasonable inferences
and credibility choices in the government’s favor. Id. In this case, the evidence
presented at trial indicated that Gospidon began using his girlfriend’s apartment to
sell drugs, and soon thereafter invited other sellers to use the apartment as a drug
sales center. The evidence in this record clearly supported the jury’s finding that
Gospidon conspired with others to sell crack.
Finally, Gospidon argues that his trial counsel was ineffective for failing to
request a specific buyer-seller jury instruction, which would instruct the jury on the
difference between a conspiracy and a series of buyer-seller drug transactions. He
was entitled to have jury instructions presented for any theory of defense that has a
foundation in the evidence. He further contends that the failure could not have
been a judgment call because the instruction would have directly aided the defense
and would not have any negative consequences. Gospidon also argues that his trial
counsel was ineffective because the attorney failed to obtain the names of
Gospidon’s co-conspirators. He argues that if such a request had been made, it
would have been granted, and that knowledge of the identities of the co-
conspirators was essential to a meaningful defense.
We generally will not consider an ineffective-assistance-of-counsel claim
raised on direct appeal “because there usually has been insufficient opportunity to
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develop the record regarding the merits” of the claim. United States v. Mayes, 158
F.3d 1215, 1219 n.6 (11th Cir. 1998) (citation omitted). That is the case here and
we, thus, decline to reach the ineffective assistance claims because the record is
inadequate.
AFFIRMED.
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