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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13096
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-00522-SCJ-JFK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY BERNARD CANTRELL,
a.k.a. Greg Palmer,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 15, 2013)
Before HULL, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
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Gregory Bernard Cantrell appeals his convictions for possession with intent
to distribute heroin, in violation of 21 U.S.C. §§ 841(a), (b)(1)(C). Two types of
evidence introduced at trial are relevant to this appeal. The first was Special Agent
Jeff Gunter’s trial testimony that four individuals mentioned by Cantrell during a
drug deal were known heroin traffickers in Cantrell’s neighborhood. Cantrell
moved for a mistrial on the basis that this evidence was character evidence that
attempted to prove his guilt by association. The district court denied Cantrell’s
motion and admitted the testimony, but on two independent occasions, the court
instructed the jury that it could not consider any mention of those four individuals
being involved in drug trafficking.
The second piece of evidence involved Cantrell’s two prior heroin-related
convictions, which the district court allowed the government to introduce over the
defendant’s objections. The district court twice gave the jury a limiting instruction
that it could not use this evidence to determine whether Cantrell was guilty of the
charged conduct; it could only use the evidence for the limited purposes of
determining whether Cantrell had the requisite intent to commit the offense or
whether the acts were committed by accident or mistake.
On appeal, Cantrell argues that: (1) Special Agent Gunter’s testimony about
the heroin traffickers associated with Cantrell was impermissibly used to suggest
that Cantrell was guilty because of his association with them; (2) the evidence of
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his prior convictions was impermissibly admitted because it was unfairly
prejudicial and unnecessary to the government’s case; and (3) he received
ineffective assistance of counsel when his former attorneys advised him that he
would not be considered a career offender, and he rejected a government plea
agreement based on that understanding. After thorough review, we affirm.
We review the denial of a motion for a mistrial for abuse of discretion.
United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir.), cert. denied, 133 S.Ct.
378 (2012). Ordinarily, we review a district court’s evidentiary rulings for clear
abuse of discretion. United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003).
We will not reverse a district court’s erroneous evidentiary ruling if the error was
harmless. United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007). An
error is harmless unless there is a reasonable likelihood that it affected the
defendant’s substantial rights, and we will not reverse if there is sufficient,
independent evidence that supports the verdict. Id. When a district court gives a
curative instruction, we may reverse only if the evidence was so highly prejudicial
that it was incurable by the instruction. United States v. Bender, 290 F.3d 1279,
1284 (11th Cir. 2002).
First, we are unpersuaded by Cantrell’s claim that the district court abused
its discretion in denying Cantrell’s motion for a mistrial based on Special Agent
Gunter’s testimony about the heroin traffickers associated with Cantrell. Rule
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404(a) of the Federal Rules of Evidence prohibits the admission of evidence of a
person’s character to prove that he acted in accordance with that character for the
purpose of proving guilt of the charged conduct. Fed.R.Evid. 404(a)(1). Rule 403
provides that relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403.
In this case, although the testimony of Cantrell being associated with known
heroin traffickers was highly prejudicial, the district court gave a limiting
instruction that the jury could not consider any mention of the individuals being
involved in heroin trafficking. Because the district court gave a curative
instruction that specifically addressed any potential prejudice, any evidentiary error
in admitting the challenged testimony does not constitute reversible error. See
Bender, 290 F.3d at 1284. Further, the government presented audio recordings,
video recordings, and the testimony of two witnesses involved in the transactions
that was independently sufficient to sustain Cantrell’s convictions. See Khanani,
502 F.3d at 1292. Accordingly, the district court did not abuse its discretion in
denying Cantrell’s motion for a mistrial.
We also reject Cantrell’s claim that the district court abused its discretion by
admitting evidence of Cantrell’s prior heroin-related convictions. Rule 404(b)
prohibits the introduction of evidence of a crime, wrong, or other past act to prove
a person’s character for the purpose of showing that he acted in accordance with
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that character in order to establish guilt of the charged conduct. Fed.R.Evid.
404(b)(1). However, with proper pretrial notice, this evidence may be admissible
for the purpose of proving intent, absence of mistake, or other non-character
reasons. Fed.R.Evid. 404(b)(2).
Here, the government filed a pretrial notice of its intent to present evidence
of Cantrell’s prior heroin-related convictions for the purpose of proving intent and
absence of mistake. Because the government introduced the evidence for
permissible purposes, the district court did not abuse its discretion in admitting the
evidence under Rule 404(b)(2). Regardless, the district court gave a limiting
instruction to the jury specifying that the evidence could only be used for the
limited purpose of establishing intent or the lack of a mistake, and independent
evidence supported the guilty verdict. See Bender, 290 F.3d at 1284; Khanani, 502
F.3d at 1292. Thus, the district court did not abuse its considerable discretion by
admitting the evidence of Cantrell’s prior convictions.
Finally, we decline to review Cantrell’s ineffective-assistance-of-counsel
claims at this stage of the proceedings. We generally do not consider claims of
ineffective assistance of counsel raised on direct appeal “where the district court
did not entertain the claim nor develop a factual record.” Bender, 290 F.3d at
1284. An appellate court generally cannot adequately decide an ineffective-
assistance-of-counsel claim raised for the first time on direct appeal because the
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focus at trial was not whether defense counsel’s actions were prejudicial or
supported by reasonable strategy. Massaro v. United States, 538 U.S. 500, 504
(2003). The preferable means for deciding a claim of ineffective assistance of
counsel is through a habeas corpus petition, “even if the record contains some
indication of deficiencies in counsel’s performance.” Id.
As the record shows here, the district court did not address the issue of
ineffective assistance of counsel, nor is the record sufficiently developed for us to
review whether Cantrell’s former trial attorneys were ineffective. Id. at 504-05.
Moreover, any possible claim regarding Cantrell’s attorneys’ performance may
require us to consider strategic decisions, which the record does not contain.
Because a factual record has not been sufficiently developed for an ineffective-
assistance claim against Cantrell’s prior attorneys, this claim is not ready for
review on direct appeal. Accordingly, we dismiss Cantrell’s claim of ineffective
assistance of counsel and affirm his convictions.
AFFIRMED.
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