                                                         [DO NOT PUBLISH]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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