                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-1102
                                  ___________


United States of America,              *
                                       *
                   Appellee,           *
                                       *   Appeal from the United States
      v.                               *   District Court for the
                                       *   Southern District of Iowa.
Kenneth Ray Martin,                    *
                                       *
                 Appellant.            *

                                  ___________

                             Submitted: September 11, 2001

                                 Filed: December 12, 2001
                                  ___________

Before BOWMAN, HEANEY and BYE, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.


     Kenneth Ray Martin appeals his jury convictions for conspiracy to distribute
methamphetamine and possession of methamphetamine with intent to distribute. He
argues that the district court1 erred when it provided supplemental instructions to the
jury, and that he received ineffective assistance of counsel. We affirm.



I.    BACKGROUND

       On August 3, 1999, narcotics agents entered a hotel room occupied by three
individuals, including Martin. After the individuals gave the agents permission to
search the hotel room, the agents discovered a cooler containing methamphetamine
and cocaine. Martin admitted that he was transporting the cooler, but denied knowing
that drugs were inside. Although Martin admitted he was paid several thousand
dollars to transport the cooler, he informed the agents that he believed he was
transporting money to the Mexican relatives of farm workers living in the United
States.

       On August 25, 1999, Martin was indicted on one count of conspiracy to
distribute methamphetamine in violation of Title 21 U.S.C. § 841(a), and on one
count of possession of methamphetamine with the intent to distribute, in violation of
Title 21 U.S.C. § 841(b). At trial, Martin stipulated that only methamphetamine was
found in the cooler, and the district court ordered that no reference be made to any
controlled substance other than methamphetamine. Later, during the jury
deliberations, the jury posed the following question to the court:

      Did Ken Martin have to know that it was specifically methamphetamine
      in the cooler? In other words, for a guilty verdict to be passed, does Ken
      Martin have to know that the material in the cooler was
      methamphetamine, or simply that it was drugs (controlled substances)?



      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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In response to this question, the district court answered as follows:

      [T]he answer is no. However, you are . . . instructed that in considering
      this issue, you must remember that the Government must prove all
      elements of both Count 1 and Count 2 to establish the Defendant guilty
      of one or both counts.

       After receiving these instructions, the jury returned a verdict of guilty. The
district court sentenced Martin to two concurrent 121-month sentences, and this
appeal followed.

II.   DISCUSSION

       Martin first argues that the district court erred when it supplemented the jury
instructions. Although he offers no legal support for his position, he contends that
because methamphetamine was the only controlled substance referenced in the
government’s indictment, the district court should have instructed the jury that it was
required to find that Martin specifically knew methamphetamine was in the cooler.
Martin also contends that such an instruction should have been made because no
evidence of other controlled substances was presented to the jury.

      “The trial court has discretion about how to respond to a request by the jury for
supplemental instructions.” Gasper v. Wal-Mart Stores, Inc., -- F.3d --, 2001 WL
1388849, *4 (8th Cir. Nov. 9, 2001); U.S. v. Beckman, 222 F.3d 512, 521 (8th Cir.
2000). A trial judge must be impartial any time he communicates with the jury during
deliberation. U.S. v. Behler, 14 F.3d 1264, 1270 (8th Cir. 1994). “When a jury
explicitly requests supplemental instruction, a trial court must take great care to
insure that any supplemental instructions are accurate, clear, neutral, and
non-prejudicial.” U.S. v. Beckman, 222 F.3d at 521; United States v. Suppenbach,
1 F.3d 679, 683 (8th Cir. 1993). “Further, the trial judge should answer ‘with



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concrete accuracy,’ and ‘within the specific limits of the question presented.’” United
States v. Behler, 14 F.3d at 1270 (citations omitted).

      We find that the district court’s supplemental instruction was accurate and
appropriate. The court properly instructed the jury that Martin did not need to know
the exact nature of the substance in his possession, only that it was a controlled
substance of some kind. This is a correct statement of the law. See EIGHTH CIRCUIT
MANUAL OF MODEL JURY INSTRUCTIONS § 6.21.841A, n.2 (West 2000); see also
United States v. Noibi, 780 F.2d 1419, 1421 (8th Cir. 1986) (“The ‘knowingly’
element of this offense refers to a general criminal intent, i.e., awareness that the
substance possessed was a controlled substance of some kind.”)(citation omitted).
The district court properly exercised its discretion when it answered the jury’s
question.

       Martin also argues for the first time that his conviction should be reversed
because he did not receive effective assistance of counsel. Generally, we do not
consider ineffective assistance claims that have not first been presented to the district
court because such claims “are best evaluated on the basis of facts developed outside
the original record,” and are therefore “more properly raised in a habeas corpus
petition brought under 28 U.S.C. § 2255.” U.S. v. Christians, 200 F.3d 1124, 1126
(8th Cir. 1999) (citation omitted); United States v. Hawkins, 78 F.3d 348, 351-52 (8th
Cir. 1996). On direct appeal, we will only consider such claims in exceptional cases
where: (1) the district court has developed a record on the ineffectiveness issue, or (2)
the result would otherwise be a “plain miscarriage of justice.” U.S. v. Santana, 150
F.3d 860, 863 (8th Cir. 1998). Neither extraordinary circumstance is present in this
case, and thus we decline to address the ineffective assistance claim in this
proceeding.

      Accordingly, we affirm.



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A true copy.

      Attest:

         CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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