                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 99-1119
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of North Dakota.
Brice Earl Christians,                   *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 21, 1999

                                   Filed: December 29, 1999
                                    ___________

Before WOLLMAN, Chief Judge, ROSS and LOKEN, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

       Brice Earl Christians appeals from his conviction for possession of firearms and
ammunition by a convicted felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2), possession of
firearms and ammunition by a fugitive from justice, 18 U.S.C. §§ 922(g)(2) and
924(a)(2), possession of stolen firearms, 18 U.S.C. §§ 922(j) and 924(a)(2), and
unlawful making of a firearm, 26 U.S.C. §§ 5861(f) and 5871. We affirm.
                                          I.

       In October of 1997, law enforcement officials in North Dakota caught Christians,
a previously convicted felon, while he was a fugitive from justice wanted by South
Dakota authorities on a charge of escape from custody. After receiving notification that
Christians was staying at the farmstead of his brother, Faron Christians, police officers
entered the property and found that Brice Christians had fled. Faron Christians
consented to a search of the residence, during which the officers discovered three
firearms and a quantity of ammunition, which Faron identified as belonging to his
brother Brice.

       Christians was located and apprehended the next day, and was interviewed by
state and federal law enforcement officials. During the course of two separate
interrogations, Christians confessed to possessing several firearms and some
ammunition, to sawing off the barrel and butt stock of a shotgun, and to details of many
other criminal activities in which he had participated. Christians described firearms
matching those that had been found on his brother’s farm, and he informed the officers
of the location of another firearm that he had hidden in a “slough.” This information
was corroborated when the officers found the firearm where Christians had told them
it would be.

       Christians was indicted on four federal firearm-related offenses and was found
guilty by a jury on all counts. The district court1 sentenced Christians to a prison term
of 144 months, and this appeal followed.




      1
       The Honorable Rodney S. Webb, Chief Judge, United States District Court for
the District of North Dakota.

                                          -2-
                                            II.
                                            A.

       For the first time on appeal, Christians argues that he was denied his Sixth
Amendment right to effective assistance of counsel. We generally do not consider
ineffective assistance claims that have not first been presented to the district court
because such claims, which are best evaluated on the basis of facts developed outside
the original record, are more properly raised in a habeas corpus petition brought under
28 U.S.C. § 2255. See United States v. Santana, 150 F.3d 860, 863 (8th Cir. 1998).

       Christians contends that he raised the ineffectiveness issue before the district
court when he submitted a post-conviction letter expressing his dissatisfaction with
counsel. However, the district court construed this letter as a motion for substitution
of counsel, not as an ineffective assistance claim. We have distinguished between these
two types of claims in the past, see United States v. Klein, 13 F.3d 1182, 1185 (8th Cir.
1994), and now find that Christians did not raise his Sixth Amendment claim before the
district court.

       Christians also argues that his is one of those rare cases “where the district court
has fully developed a record on the ineffective counsel issue.” United States v. Reddix,
106 F.3d 236, 238 (8th Cir. 1997). In such situations, we have on occasion considered
ineffective assistance claims that were not technically raised before the district court.
See id.; United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994). We do not find
this to be such a case, however, because Christians’s trial counsel has never had an
opportunity to explain his actions. Compare United States v. Williams, 897 F.2d 1430,
1434-35 (8th Cir. 1990) (recognizing exception where district court had held post-trial
evidentiary hearing probing circumstances surrounding counsel’s alleged failure to call
critical witness). Thus, Christians’s ineffective assistance of counsel claim is barred
and must be brought, if at all, in a subsequent habeas petition. See Santana, 150 F.3d
at 863.

                                           -3-
                                           B.

        Christians next argues that the district court should have excluded certain
testimony because of its unfairly prejudicial content. At trial, the government presented
evidence of Christians’s interview with state law enforcement officials in which he
confessed to the predicate factual elements of most of the crimes of which he was
accused. On both direct and cross examination, several of the government’s witnesses
testified that this interview had been recorded on two videotapes.

      Prior to trial, however, it had been discovered that in fact the videotapes were
almost entirely blank. The government proposed to call two witnesses who would
explain why the videotapes could not be produced at trial by recounting a sequence of
events that might be interpreted to imply that Christians had erased them. Christians
objected, claiming that this evidence should be excluded under Rule 403 of the Federal
Rules of Evidence because, by leading the jury to believe that he had destroyed
evidence, it would be unfairly prejudicial to him.

       The proposed testimony revealed that approximately one week before trial the
videotapes were provided to Christians for review with his counsel. The videotapes
had not been viewed by the government prior to giving them to Christians, and no
duplicate copies had been made. Christians’s attorney never arrived, and Christians
was left alone for more than two hours in a jailhouse video room with a VCR and the
original videotapes. A guard who had been seated just outside the room testified that
Christians never indicated to him that the videotapes were blank, that at various times
he “heard audio” coming from the monitor, and that on the one occasion when he was
able to view the monitor briefly, he glimpsed what appeared to be an image of
Christians’s interrogation interview. Upon the return of the videotapes, however, the
government discovered that each videotape contained only a momentary image of the
interview scene and that the remainder was blank.


                                          -4-
       In urging the district court to admit this testimony, the government argued that
it was necessary to explain the unavailability of the videotapes to the jury because
during cross-examination Christians’s counsel had challenged the interviewing officers’
testimony that they had issued a proper Miranda warning and that Christians had
voluntarily waived his rights before confessing. Because Christians’s counsel had also
repeatedly alluded to the fact that the confession had been videotaped, the government
wished to rebut defense counsel’s insinuation that the Miranda issue could be resolved
by simply showing the videotapes to the jury. The district court acknowledged the
potential for unfair prejudice, but determined that on balance the testimony about
Christians in the jailhouse video room should be allowed.

       Rule 403 of the Federal Rules of Evidence permits district courts to exclude
relevant evidence if its probative value is substantially outweighed by the danger of
unfair prejudice or confusion of the issues. See Fed. R. Evid. 403. Unfair prejudice
“speaks to the capacity of some concededly relevant evidence to lure the fact-finder
into declaring guilt on a ground different from proof specific to the offense charged.”
Old Chief v. United States, 519 U.S. 172, 180 (1997). “The critical issue is the degree
of unfairness of the prejudicial evidence and whether it tends to support a decision on
an improper basis.” United States v. Payne, 119 F.3d 637, 645 (8th Cir.), cert. denied,
118 S.Ct. 454 (1997). “The district court has broad discretion when weighing
probative value against unfair prejudice, and we will reverse only for abuse of
discretion.” United States v. Sparks, 949 F.2d 1023, 1026 (8th Cir. 1991).

       We conclude that the danger of unfair prejudice from the testimony about
Christians in the jailhouse video room did not substantially outweigh its probative
value. In the context of the trial as it had developed up to that point, the evidence was
necessary to clarify the reason for the government’s failure to present the videotapes
to the jury. The district court appropriately admonished the government to limit the




                                          -5-
testimony to the uncontested facts and not to attempt to convince the jury that
Christians had erased the tapes.2

       Moreover, the government itself was in danger of being unfairly prejudiced if it
was not permitted to introduce the testimony about the videotapes being blank. In the
absence of this testimony, there was a substantial risk that the prosecution’s failure to
produce the videotapes at trial would give rise to a jury inference that the government
had something to hide. Accordingly, we find no abuse of discretion in the decision to
allow the challenged testimony. See Sparks, 949 F.2d at 1026.

                                           C.

       Finally, Christians argues that the government made an improper comment on
his failure to testify, in violation of his Fifth Amendment right against self-
incrimination. During summation, the prosecutor summarized information from
Christians’s confession and stated, “There is no contradictory evidence to those facts.”
Because Christians did not object at trial to the prosecutor’s closing statement, we
review this claim for plain error only. See Fed. R. Crim. P. 52(b); United States v.
Hale, 1 F.3d 691, 694 (8th Cir. 1993).

       “We reverse for prosecutorial misconduct only when the defendant can show
that the prosecutor’s remarks were improper and that the remarks prejudicially affected
the defendant’s substantial rights so as to deprive him of a fair trial.” United States v.
Malone, 49 F.3d 393, 398 (8th Cir. 1995) (internal citation and quotation marks
omitted). “Indirect comments on a defendant’s failure to testify constitute error when
the comments show the prosecutor intended to call attention to the defendant’s failure


      2
         At sentencing, the district court found the evidence that Christians had erased
the videotapes to be insufficient to support a two-point enhancement for obstruction of
justice.

                                           -6-
to testify or if the jury would naturally and necessarily understand the comments as
highlighting the defendant’s failure to testify.” United States v. Moore, 129 F.3d 989,
993 (8th Cir. 1997), cert. denied, 118 S.Ct. 1402 (1998). In order to determine
whether a prosecutorial comment is improper, we must consider it “within the context
of the entire trial.” United States v. Eldridge, 984 F.2d 943, 946 (8th Cir. 1993).

       The comment to which Christians objects occurred in the following context:

       We heard that the Defendant admitted possession of all four of these
       firearms. That he indicated that he left the house with a .357. Indicated
       that he did stop at the slough and told them exactly where it was. There
       was no contradictory evidence to those facts. He admitted the buying of
       the .357, .220. He admitted dealings with the shotgun or .22.

Tr. vol. II at 129 (emphasis added).

       This statement, although it was made during a description of Christians’s
confession, does not refer specifically to the fact that he did not testify at trial. Rather,
it appears to be a general observation “simply in reference to the strength and clarity
of the government’s evidence presented at trial.”3 Moore, 129 F.3d at 993. The jury
was already aware that numerous details of Christians’s confession had been
corroborated by other evidence, and under these circumstances it was not improper for
the prosecutor to characterize those details as uncontradicted. See id.

       The judgment of conviction is affirmed.




       3
         Even if the comment had been improper, Christians has done nothing to show
that it was prejudicial, as is his burden under plain error review. See United States v.
Olano, 507 U.S. 725, 734-35 (1993).

                                            -7-
A true copy.

      Attest:

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




                           -8-
