     Case: 13-10691      Document: 00512538368         Page: 1    Date Filed: 02/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals

                                    No. 13-10691
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                           February 20, 2014
                                                                               Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

DAVID JAMES WEST,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 2:12-CR-49-2




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *


       David West (“West”) appeals his jury conviction of the unlawful sale and



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-10691

disposition of a firearm to Donald West (“Donald”), who had been convicted of
a felony and who West knew or had reason to believe had been convicted of a
felony. West contends that his trial counsel rendered ineffective assistance on
various grounds; the record, however, is insufficiently developed to allow con-
sideration of West’s claims of ineffective assistance; such claims generally “can-
not be resolved on direct appeal when the claim[s have] not been raised before
the district court since no opportunity existed to develop the record on the mer-
its of the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir.
2006) (internal quotation marks and citation omitted). We thus decline to con-
sider those claims on direct appeal. See United States v. Gulley, 526 F.3d 809,
821 (5th Cir. 2008).
      West further contests the denial of his motion for severance under Fed-
eral Rule of Criminal Procedure 14. He maintains that he was prejudiced by
being jointly tried with Donald because the evidence of Donald’s guilt had a
“spillover effect” that prejudiced the jury’s ability to evaluate fairly the charges
against him. Severance was not needed, though, because this case did not
involve inflammatory facts or complex crimes that precluded the jury from
being able to assess the evidence against each defendant separately and indi-
vidually. See United States v. Rocha, 916 F.2d 219, 229 (5th Cir. 1990); United
States v. Bermea, 30 F.3d 1539, 1572-74 (5th Cir. 1994).
      Even if there was a “spillover effect,” West has not shown that the dis-
trict court failed to protect him from any prejudice by issuing instructions that
directed the jury to review the evidence against each defendant separately and
individually and to render an impartial verdict for each defendant. See United
States v. Posada-Rios, 158 F.3d 832, 863 (5th Cir. 1998); United States v.
Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993). Thus, West has not shown that




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                                  No. 13-10691

the court abused its discretion by denying severance on this basis. See United
States v. Erwin, 793 F.2d 656, 665-66 (5th Cir. 1986).
      West claims that he should have been granted a severance because he
and Donald had “mutually antagonistic defenses.” Because West failed to raise
this argument in the district court, the issue is subject to plain-error review
only. See United States v. Bernard, 299 F.3d 467, 475 (5th Cir. 2002); see also
Puckett v. United States, 556 U.S. 129, 135 (2009).
      The record reflects that the defenses offered by West and Donald, neither
of which the jury believed, were not inherently irreconcilable or contradictory
such that the jury, in order to believe the core of one defense, had to disbelieve
the other. See United States v. Rojas–Martinez, 968 F.2d 415, 419 (5th Cir.
1992). As noted, the court instructed the jury to consider the evidence as to
each defendant separately and individually and not to treat the comments
made by counsel, including Donald in his pro se capacity, as substantive evi-
dence. Those jury instructions adequately protected West against any preju-
dice, and he has not shown that the court plainly erred by denying his motion
to sever on this basis. See United States v. Mann, 161 F.3d 840, 863 (5th Cir.
1998); Bernard, 299 F.3d at 475.
      Finally, West argues that joinder was improper under Federal Rule of
Criminal Procedure 8(b) because he was not charged with being a conspirator
in, or an accomplice to, the bank robbery committed by Donald, and thus he
should not have been charged in the same indictment. Because West did not
raise in the district court an improper-joinder argument under Rule 8(b), he
has likely waived any argument on this basis. See Bermea, 30 F.3d at 1572.
      In any event, West’s claim of improper joinder is unavailing. West and
Donald did not need to be charged together in each count of the indictment or
to have engaged in all of the same act or acts. Rule 8(b); United States v.



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                                No. 13-10691

McRae, 702 F.3d 806, 821 (5th Cir. 2012). The record reflects that West and
Donald were alleged to have engaged in the same transaction or series of acts
―i.e., the transfer of a firearm―that constituted criminal offenses, so joinder
was proper. See Rule 8(b).
      AFFIRMED.




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