United States v. Hai Schaffer , 582 F. App'x 468 ( 2014 )


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  •      Case: 13-40322      Document: 00512782290         Page: 1    Date Filed: 09/25/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT    United States Court of Appeals
    Fifth Circuit
    FILED
    September 25, 2014
    No. 13-40322
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    HAI VAN SCHAFFER; ADOLPH GAMEZ, JR.,
    Defendants - Appellants
    Appeals from the United States District Court
    for the Eastern District of Texas
    No. 4:10-CR-134-3
    Before KING, GRAVES, and HIGGINSON, Circuit Judges.
    PER CURIAM: *
    Hai Van Schaffer 1 and Adolph Gamez, Jr. appeal their convictions on one
    count of conspiring to possess five kilograms or more of cocaine with the intent
    to distribute it, in violation of 21 U.S.C. § 846 and § 841(a)(1). For the following
    reasons, we AFFIRM both Schaffer’s and Gamez’s convictions.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    1 Schaffer’s last name is spelled “Schaeffer;” however, we will use the spelling
    “Schaffer,” which has been used throughout the proceedings.
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    I.   FACTUAL AND PROCEDURAL BACKGROUND
    This case centers around an undercover investigation of a conspiracy to
    illegally distribute drugs in Plano, Texas. Without reciting the entire course
    of the undercover investigation, it is important to detail how Schaffer and
    Gamez were implicated in the conspiracy at issue here. In the months before
    April 2010, Christopher Frosch, a detective with the Rowlett Police
    Department, was working on an investigation into the distribution of ecstasy
    in Plano. On May 5, 2010, Frosch, who was acting in an undercover capacity,
    first met James Wood, who was identified as someone willing to engage in a
    drug transaction. Wood indicated to Frosch that his drug supplier was Hai
    Van Schaffer. Subsequently, it was decided that on June 2, 2010, Frosch would
    purchase cocaine from Wood. Frosch also spoke with Schaffer over the phone
    to plan the details of the transaction. Ultimately, the June 2, 2010 transaction
    did not take place; however, Frosch and Wood did meet.
    On the evening of June 2, 2010, Frosch and Schaffer discussed a second
    transaction over the phone. Schaffer explained how he and “[his] people”
    handle transactions, and how his “guys” prefer to count their money and “stuff”
    (cocaine) to “make sure that everything’s there and everything’s in check.”
    Frosch expressed hesitation about whether he wanted to conduct a second
    transaction: “I don’t know if there’s gonna be a next time man.” Schaffer stated
    that he had a location for transactions “where we do it very privately, in a very
    private neighborhood,” where “we’ve been doing it for a couple years.” He
    further explained that “everybody knows our routine.” Schaffer explained to
    Frosch how the next transaction would take place. He also assured Frosch that
    “these guys are consistent with their stuff all the time,” and that the cocaine
    was “legit.” Next, Schaffer reiterated that he should have “taken the reins in
    my hand like I normally do, and . . . mad[e] [the previously attempted
    transaction] work right.” Schaffer explained that he was not looking for “the
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    short term gain,” but rather “a long term relationship.” He also stated that
    “there’s a lot of money to be made for everybody.”          Schaffer and Frosch
    eventually agreed that Frosch would purchase 15 kilograms of cocaine.
    On June 10, 2010, Wood and Daryl Preston, another co-conspirator, gave
    a bag filled with five kilograms of cocaine to Frosch. Wood and Preston were
    subsequently arrested. Upon being stopped by the police, Wood called Schaffer
    to let him know that the deal was a set-up. As this was happening, Matt
    Quillen, an officer with the Plano Police Department (“PPD”) who was involved
    in the investigation and surveillance of Wood and Schaffer, followed Schaffer’s
    car from Schaffer’s residence. Quillen contacted a marked patrol unit, which
    conducted a traffic stop of the vehicle. Schaffer was ultimately arrested near
    a McDonald’s. Adolph Gamez was arrested around the same time as Schaffer,
    after he was observed bringing the cocaine to Schaffer’s residence earlier in the
    day.
    On June 11, 2010, the United States Attorney filed a criminal complaint
    against Gamez, Schaffer, and four others. On July 7, 2010, all six defendants
    were indicted in a one-count indictment charging that
    from sometime in or about January 2009, and continuously
    thereafter up to and including May 12, 2010, in the Eastern
    District of Texas and elsewhere . . . defendants[] did knowingly and
    intentionally combine, conspire, and agree with each other, and
    with other persons known and unknown to the United States
    Grand Jury, to knowingly and intentionally possess with the
    intent to distribute 5 kilograms or more of a mixture or substance
    containing a detectable amount of cocaine, a violation of 21 U.S.C.
    § 841(a)(1)[, and] [i]n violation of 21 U.S.C. § 846.
    Schaffer and Gamez were tried together by jury in June 2011.
    At the trial, the Government offered evidence that an off-duty police
    officer with the PPD, Sergeant Terry Holway, arrested Schaffer at a dance club
    on March 14, 2010 (“March 14 arrest”) on an outstanding warrant. After
    3
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    Schaffer was arrested, Holway’s partner performed a search of Schaffer and
    found “a small baggy of cocaine” in his pocket, as well as three and a half pills
    that Holway believed “were hydrocodone and alprazolam, which is Xanax.”
    Holway asked Schaffer if the baggy contained “cocaine or methamphetamine,”
    to which Schaffer responded, “[y]eah.”      The substance tested positive for
    cocaine in a field test. Holway testified that, based on her experience and the
    packaging of the cocaine, she believed Schaffer “was going in to sell [the
    cocaine] or give it to somebody.” When Holway asked Schaffer where he was
    taking it, he responded, “[t]o a business partner.” Holway testified that the
    amount of cocaine that Schaffer had on him, approximately 1.9 grams, was “too
    much to do in one night,” and that it was a “distributable amount.”
    The Government filed a pre-trial notice that it intended to offer evidence
    of Schaffer’s March 14 arrest under Federal Rule of Evidence 404(b). The
    Government alternatively argued that the evidence was intrinsic to the offense
    because it showed that Schaffer “had the intent to distribute,” and the incident
    “falls squarely within that time frame of when he’s distributing cocaine,” as
    outlined in the indictment. The district court conducted a United States v.
    Beechum, 
    582 F.2d 898
    (5th Cir. 1978) (en banc), analysis and described the
    evidence regarding the March 14 arrest as “404(b) [e]vidence.” The court did
    not formally rule that the evidence was admissible under Rule 404(b), but
    instead rested its admissibility determination on the conclusion that the
    evidence was intrinsic to the charged offense. Specifically, the district court
    found that the arrest was “within the time frame of the indictment and involves
    cocaine and possessing it and it involves his admission that he was going to
    distribute it.”
    During the trial, Officer Quillen testified that he “just briefly” had an
    opportunity to question Schaffer immediately following the June 10 arrest, and
    he “asked him where he was going to.” Schaffer “told [Quillen] he was going to
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    the McDonald’s” that was in the vicinity of the traffic stop. Quillen also asked
    Schaffer his name. Drug Enforcement Administration (“DEA”) special agent
    Tahariiq Gray testified that he arrived at the traffic stop shortly after Quillen
    spoke with Schaffer. The following exchange took place at trial, during Gray’s
    direct examination:
    Q. Okay. And was Mr. [Schaffer] inside the vehicle?
    A. When I got there, he was not inside the vehicle, he was out of
    the vehicle. And when I got there, the Plano Police Department
    detectives advised that they had spoken to Mr. [Schaffer] and he
    wasn’t being cooperative at the time.
    Schaffer did not make a contemporaneous objection to the testimony. The
    Government did not refer to Gray’s statement in its closing argument. The
    record does not indicate when Schaffer received a Miranda warning, or
    whether he received the warning before speaking with the officers.
    On the fourth day of the trial, outside the presence of the jury, the court
    conducted a hearing on evidence that the government intended to submit
    under Federal Rule of Evidence 404(b), including evidence that Schaffer “had
    asked another inmate to contact . . . Schaffer’s parents, his father specifically,
    to try to bribe [the Assistant United States Attorney] to dismiss th[e] case.”
    The Government had previously placed the inmate, Juan Rios, on its witness
    list, and had informed the court that Rios would testify to the conversation he
    had with Schaffer. The Government informed the court that it would not
    pursue the testimony about the attempted bribery during the guilt phase of
    the trial, but would present it at sentencing. The Government also indicated
    that it might cross-examine Schaffer’s father (“Mr. Schaeffer”) about the
    attempted bribery, if he took the stand. Schaffer’s counsel did not object or
    respond in any way.
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    After the Government rested its case, Schaffer moved for a directed
    verdict on the basis that the activities for which he was arrested took place
    after May 2010 (the ending date of the conspiracy designated in the
    indictment).    Gamez joined Schaffer’s motion.          Gamez argued that the
    language in the indictment was a “fatal defect,” and that it was “substantially
    prejudicial . . . that all of the conduct that they’ve alleged . . . is outside of the
    date period in the indictment.”       The district court denied the defendants’
    motions for a directed verdict.
    On the fifth and final day of the trial, Mr. Schaeffer testified for the
    defense. The defense asked Mr. Schaeffer whether Schaffer’s criminal charge
    was “in keeping with the child that [Mr. Schaeffer] raised,” and Mr. Schaeffer
    responded “No.” Mr. Schaeffer also responded negatively when asked whether
    there was anything “from [his] knowledge and background of Hai [Schaffer], to
    prepare [Mr. Schaeffer] for this kind of charge.”            Lastly, Mr. Schaeffer
    responded affirmatively when asked whether Schaffer “appear[ed] to be
    having . . . a normal lifestyle.”
    On cross-examination, the Government asked Mr. Schaeffer several
    questions about his knowledge of specific examples of Schaffer’s conduct,
    including Schaffer’s March 2010 arrest and his admission to “being in the drug-
    distribution business for at least two years.” The Government also asked the
    following question:
    Q. Mr. Schaeffer, were you aware that your son was trying to have
    another inmate contact you to pay Mr. Gonzalez 30 to 50 thousand
    dollars to make the case go away?
    Schaffer’s counsel objected to the question, and the court recessed the jury.
    Schaffer’s counsel contended that the government was “getting into hearsay”
    with its question. The court expressed concern about “throw[ing] out” the
    bribery question for the jury with “no definitive answer,” given that the
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    Government had already rested its case and had not called Rios to testify about
    the attempted bribery. The Government indicated that it would withdraw the
    question; the court stated that it would “instruct the jury to disregard the
    question, not consider it for any purpose.”         Accordingly, when the jury
    returned, the court stated: “Ladies and gentlemen, before we resume, I need to
    instruct you to disregard the last question. Do not consider it for any purpose.”
    Schaffer did not object to the instruction or move for a mistrial.
    Once the evidence was submitted to the jury, the district court conducted
    a lengthy hearing regarding whether to give the jury an instruction regarding
    the entrapment defense. After giving both the Government and the defense an
    opportunity to address the question, the district court ruled that it would not
    instruct the jury on entrapment. Subsequently, the jury found both defendants
    guilty. The district court sentenced the defendants-appellants, and they timely
    appealed their convictions.
    II.   SCHAFFER’S CHALLENGES
    Schaffer argues that the district court erred at trial by declining to
    instruct the jury on his proposed entrapment defense; by admitting evidence
    of the March 14 arrest as intrinsic evidence; and by admitting testimony that
    he was “uncooperative” following his arrest. Schaffer further argues that the
    government committed prosecutorial misconduct during his trial; that he
    received ineffective assistance of counsel; and that the cumulative effect of the
    alleged errors at trial entitles him to a new trial. We address these claims in
    order.
    A. Entrapment Instruction
    “We review the district court’s decision not to grant an entrapment
    instruction de novo, looking at the evidence in the light most favorable to the
    defendant.”      United States v. Nelson, 
    732 F.3d 504
    , 513 (5th Cir. 2013).
    Although entrapment is a question for the jury and not the court, in order “for
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    an entrapment instruction to be put to the jury, a defendant must make a
    prima facie showing of two elements: (1) lack of predisposition to commit the
    offense and (2) some governmental involvement and inducement more
    substantial than simply providing an opportunity or facilities to commit the
    offense.” 
    Id. at 514
    (internal quotation marks omitted). Both elements assist
    the court in making the “critical determination” of “whether criminal intent
    originated with the defendant or with the government agents.” United States
    v. Bradfield, 
    113 F.3d 515
    , 521 (5th Cir. 1997).
    In order to determine “whether the defendant lacked predisposition, we
    consider whether he ‘intended, was predisposed, or was willing to commit the
    offense before first being approached by government agents.’” 
    Nelson, 732 F.3d at 514
    (emphasis in original) (quoting United States v. Theagene, 
    565 F.3d 911
    ,
    919 (5th Cir. 2009)).     “[A] defendant’s eager willingness to participate in
    government-solicited criminal activity is sufficient to prove predisposition.”
    United States v. Reyes, 
    239 F.3d 722
    , 741 (5th Cir. 2001). We have found that
    “[a] defendant lacks predisposition where he had no prior interest or
    experience related to the crime, displayed ‘significant hesitation or
    unwillingness, or attempt[ed] to return discussion to lawful conduct.’” 
    Nelson, 732 F.3d at 514
    (quoting 
    Theagene, 565 F.3d at 920
    ). It may be taken as
    evidence of predisposition that the defendant was an “active, enthusiastic
    participa[nt] or demonstrated expertise in the criminal endeavor.” 
    Id. at 515
    (internal quotation marks omitted).
    “Government inducement consists of the creative activity of law
    enforcement officials in spurring an individual to crime.” 
    Theagene, 565 F.3d at 922
    (internal quotation marks omitted). “Evidence that government agents
    merely afforded the defendant an opportunity . . . for the commission of the
    crime is insufficient to warrant the entrapment instruction.” United States v.
    Bradfield, 
    113 F.3d 515
    , 522 (5th Cir. 1997).
    8
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    Schaffer argues that the drug transaction with Frosch was at a standstill
    and that it was the Government’s prodding that made it come to fruition. He
    further argues that he was a reluctant participant in the drug conspiracy and
    that, but for the Government’s efforts, the conspiracy would not have begun.
    In support of these arguments, Schaffer highlights the testimony of his father
    who stated that the charges against Schaffer were not “in keeping with the
    child that [I] raised.” Although Schaffer acknowledges that the jury could have
    concluded that he was a willing participant, he argues that they jury should
    have been instructed on entrapment to allow it to evaluate the merits of the
    defense.
    After a review of the record, with the evidence viewed in Schaffer’s favor,
    he does not show that his entrapment defense was “plausible enough that the
    jury deserved a chance to evaluate it.” 
    Theagene, 565 F.3d at 922
    . As to
    Schaffer’s predisposition, he “demonstrated expertise in the criminal
    endeavor,” 
    Nelson, 732 F.3d at 514
    , when he described to Frosch, in depth, how
    he usually conducted drug transactions, when he indicated that “there’s a lot
    of money to be made for everybody” from such drug transactions, and when he
    described how the drugs would be packaged to deter detection. Schaffer did
    not express “significant hesitation or unwillingness” when presented with the
    opportunity to make a second attempt to transact with the undercover officer.
    
    Theagene, 565 F.3d at 920
    . In fact, he was an eager participant, which he
    demonstrated by encouraging the hesitant officer to make a second attempt at
    the drug transaction.     Mr. Schaeffer’s vague testimony concerning his
    impression of Schaffer’s character cannot rebut the evidence that Schaffer was
    an “active, enthusiastic participant in the crime.” 
    Nelson, 732 F.3d at 515
    (internal quotation marks and brackets omitted). As to inducement, Schaffer
    fails to assert how the June 10 transaction amounted to anything more “than
    simply providing an opportunity or facilities to commit the offense.” Theagene,
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    13-40322 565 F.3d at 922
    . In short, the district court did not err when it declined to
    provide the jury with an entrapment defense instruction.
    B. Admission of Other Act Evidence
    The court reviews a district court’s evidentiary rulings for abuse of
    discretion, subject to harmless-error analysis. See United States v. Girod, 
    646 F.3d 304
    , 318 (5th Cir. 2011).      “For any of the evidentiary rulings to be
    reversible error, the admission of the evidence in question must have
    substantially prejudiced the defendant’s rights.” 
    Id. at 318
    (internal quotation
    marks and brackets omitted).
    The district court referred to the evidence relating to the March 14 arrest
    as both “404(b) evidence” and “intrinsic” evidence.         Although the court
    performed a Beechum analysis, its ruling on admissibility rested on its
    conclusion that the evidence was intrinsic. We need not decide whether the
    district court was correct when it held the March 14 arrest evidence to be
    intrinsic, because that evidence was properly admitted pursuant to Rule 404(b)
    of the Federal Rules of Civil Procedure.
    Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is
    not admissible to prove a person’s character in order to show that on a
    particular occasion the person acted in accordance with the character.”
    However, “[t]his evidence may be admissible for another purpose, such as
    proving motive, opportunity, intent, preparation, plan, knowledge, identity,
    absence of mistake, or lack of accident.” 
    Id. This court
    held in United States
    v. Beechum, 
    582 F.2d 898
    (5th Cir. 1978), that Rule 404(b) requires a two-step
    analysis: “[f]irst, it must be determined that the extrinsic offense evidence is
    relevant to an issue other than the defendant’s character,” and “[s]econd, the
    evidence must possess probative value that is not substantially outweighed by
    its undue prejudice and must meet the other requirements of rule 403.” 
    Id. at 911.
                                            10
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    “We have previously held that in a conspiracy case, the defendant puts
    his intent into issue when he pleads not guilty.” United States v. Heard, 
    709 F.3d 413
    , 430 (5th Cir. 2013).        Accordingly, Schaffer’s possession of a
    “distributable amount” of cocaine and other drugs on March 14 and the fact
    that he admitted that he was taking it “to a business partner” are clearly
    relevant to establishing Schaffer’s intent to participate in the conspiracy at
    issue here. As for the second prong of the Beechum analysis, “we must take
    care not to infringe upon the broad discretion of the trial court regarding the
    relevance, probative value, and prejudicial effect of evidence.” United States v.
    Bermea, 
    30 F.3d 1539
    , 1562 (5th Cir. 1994) (internal quotation marks and
    citation omitted). Given that the evidence regarding the March 14 arrest was
    within the time frame alleged by the indictment and involved possession by
    Schaffer of a “distributable amount” of cocaine, we conclude that the probative
    value of the evidence was not substantially outweighed by any undue
    prejudice. Therefore, the evidence was properly admitted.
    C. Evidence that Schaffer was “uncooperative”
    The Supreme Court has established that “use of [a] defendant’s post-
    arrest silence” to impeach a defendant is a violation of due process. Doyle v.
    Ohio, 
    426 U.S. 610
    , 611 (1976).       “Ordinarily, we review a constitutional
    question de novo.” United States v. Potts, 
    644 F.3d 233
    , 236 (5th Cir. 2011).
    However, where, as is the case here, an appellant “did not properly preserve
    his claim of error regarding the prosecutor’s comments on his post-arrest
    silence in the district court, we review this claim only for plain error.” United
    States v. Salinas, 
    480 F.3d 750
    , 755 (5th Cir. 2007). In order to establish plain
    error, “the defendant must show that (1) there is an error, (2) the error is clear
    or obvious, and (3) the error affects his substantial rights.” 
    Id. at 756
    (internal
    quotation marks omitted). For the error to be considered plain, it must have
    been clear under existing law. See 
    id. “If those
    three conditions are satisfied,
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    this court may grant relief if ‘the error seriously affects the fairness, integrity,
    or public reputation of judicial proceedings.’” 
    Id. (quoting United
    States v.
    Ibarra-Zelaya, 
    465 F.3d 596
    , 606 (5th Cir. 2006)).
    Schaffer argues that it was a violation of his Fifth Amendment right to
    remain silent when DEA Agent Gray testified that the “Plano Police
    Department Detective advised that they had spoken to Mr. Schaffer and he
    wasn’t being cooperative.” However, Gray’s statement that Schaffer was not
    “being cooperative” was likely not a comment on Schaffer’s supposed post-
    arrest silence, 2 but a spontaneous comment suggesting that Schaffer’s
    explanation for where he was going when the police pulled him over—he stated
    he was en route to McDonald’s—rang hollow under the circumstances. As
    such, it is likely that Gray’s statement was not a comment on Schaffer’s silence
    and did not implicate Schaffer’s Fifth Amendment rights. See 
    Salinas, 480 F.3d at 756
    (“[T]he Supreme Court has established that due process prevents
    the prosecution from commenting at trial on a criminal defendant’s
    silence. . . .”).
    Given that the test for a Doyle violation is “whether the manifest intent
    of the remarks was to comment on the defendant’s silence, or (stated another
    way) whether the character of the remark was such that the jury would
    naturally and necessarily construe it as a comment on the defendant’s silence,”
    United States v. Pennington, 
    20 F.3d 593
    , 599 (5th Cir. 1994) (internal
    quotation marks omitted), it is difficult to see how the jury could consider the
    vague remark, “wasn’t being cooperative,” as a comment on Schaffer’s silence.
    Moreover, the remark was “a spontaneous comment by the witness,” not “a
    comment prompted by the prosecutor.” United States v. Andaverde-Tiñoco, 741
    2The record does not establish whether Schaffer’s discussion with the police officers
    occurred before or after he received a Miranda warning.
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    F.3d 509, 521 (5th Cir. 2013) (quoting United States v. Moreno, 
    185 F.3d 465
    ,
    472 (5th Cir. 1999)). This analysis leads us to reject Schaffer’s argument,
    regardless of whether he received a Miranda warning before his short
    discussion with the police officers. See 
    Doyle, 426 U.S. at 619
    (addressing post-
    arrest, post-Miranda silence); 
    Salinas, 480 F.3d at 758
    (addressing post-arrest,
    pre-Miranda silence).
    D. Prosecutorial Misconduct
    This court applies a “two-step analysis to claims of prosecutorial
    misconduct.” United States v. Davis, 
    609 F.3d 663
    , 677 (5th Cir. 2010). “First,
    we assess whether ‘the prosecutor made an improper remark.’” 
    Id. (quoting United
    States v. Fields, 
    483 F.3d 313
    , 358 (5th Cir. 2007)). If so, we then ask
    if the defendant was prejudiced because of the prosecutor’s remark. 
    Id. “The determinative
    question is whether the prosecutor’s remarks cast serious doubt
    on the correctness of the jury’s verdict.” United States v. Fields, 
    483 F.3d 313
    ,
    358 (5th Cir. 2007) (internal quotation marks omitted). We determine whether
    the prosecutor’s remark cast serious doubt on the correctness of the jury’s
    verdict by considering three factors: “(1) the magnitude of the prejudicial effect
    of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by
    the judge, and (3) the strength of the evidence supporting the conviction.”
    
    Davis, 609 F.3d at 677
    (internal quotation marks omitted). While we review
    “the propriety of the prosecution’s arguments de novo, we review the question
    of whether or not the defendant’s substantial rights were affected under the
    abuse of discretion standard.” United States v. McCann, 
    613 F.3d 486
    , 494 (5th
    Cir. 2010).
    Schaffer argues that his substantial rights were affected when the
    prosecutor, on cross-examination of Schaffer’s father, asked, “Mr. Schaeffer,
    were you aware that your son was trying to have another inmate contact you
    to pay [the Assistant United States Attorney] 30 to 50 thousand dollars to
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    make this case go away?” We disagree because we find that this question was
    proper. Under Federal Rule of Evidence 405(a),
    [w]hen evidence of a person’s character or character trait is
    admissible, it may be proved by testimony about the person’s
    reputation or by testimony in the form of an opinion. On cross-
    examination of the character witness, the court may allow an
    inquiry into relevant specific instances of the person’s conduct.
    We have “explained that ‘[o]nce a witness has testified concerning a
    defendant’s good character, it is permissible during cross-examination to
    attempt to undermine his credibility by asking him whether he has heard of
    prior misconduct of the defendant which is inconsistent with the witness’ direct
    testimony.’”   United States v. Skelton, 
    514 F.3d 433
    , 444 (5th Cir. 2008)
    (quoting United States v. Wells, 
    525 F.2d 974
    , 976 (5th Cir. 1976)).
    Schaffer’s father had testified on direct examination to Schaffer’s good
    character. He was asked whether there was anything in Schaffer’s background
    to prepare him for the news of the drug conspiracy charge, whether Schaffer
    was employed since graduating from college, and whether he had a “normal
    lifestyle.” These questions were clearly asked by the defense as a means to
    establish Schaffer’s good character and to attempt to show that he was not
    predisposed, for entrapment purposes, to commit the offense. As such, the
    prosecution’s question on cross-examination about Schaffer’s attempted
    bribery was proper under the Federal Rules of Evidence, given that the record
    shows that the prosecutor had a good faith basis to ask the question.
    Accordingly, the prosecutor did not make an improper remark and there was
    no prosecutorial misconduct. 
    Davis, 609 F.3d at 677
    (prosecutorial misconduct
    is assessed by asking whether prosecutor made improper remark).
    E. Ineffective assistance of trial counsel
    Schaffer argues that we should, on direct appeal, consider his ineffective
    assistance of counsel claim. He highlights a number of points in the trial where
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    No. 13-40322
    he believes his lawyer made errors sufficient to establish an ineffective
    assistance of counsel claim. However, we decline to reach this claim “because
    it is premature.” United States v. Montes, 
    602 F.3d 381
    , 387 (5th Cir. 2010).
    In this circuit, the “general rule . . . is that a claim of ineffective assistance of
    counsel cannot be resolved on direct appeal when the claim has not been raised
    before the district court since no opportunity existed to develop the record on
    the merits of the allegations.” 
    Id. (quoting United
    States v. Gulley, 
    526 F.3d 809
    , 821 (5th Cir. 2008)). We will only consider a claim of ineffective assistance
    of counsel on direct appeal “in those rare occasions where the record is
    sufficiently developed.” 
    Gulley, 526 F.3d at 821
    . If the record does not allow
    us to “fairly evaluate the claim . . . we must decline to consider the issue
    without prejudice to a defendant’s right to raise it in a subsequent proceeding.”
    
    Id. Schaffer’s ineffective
    assistance claim was not raised before the district
    court. As a result, the record is not sufficiently developed for the court to fairly
    evaluate the claim that Schaffer’s attorney was ineffective. As in Montes, this
    case “falls within th[e] general rule because the record reveals neither the
    reasons for [Schaffer’s] attorney’s decisions nor the availability of alternative
    
    strategies.” 602 F.3d at 387
    . Schaffer makes no persuasive argument for why
    this is one of the “rare occasions” in which the court should evaluate his claim
    on direct appeal. Accordingly, we decline to reach his ineffective assistance of
    counsel claim.
    F. Cumulative effect
    Schaffer next argues that the “cumulative effect” of the errors he has
    identified was to deprive him of a fair trial. The cumulative error doctrine
    “provides that an aggregation of non-reversible errors (i.e., plain errors failing
    to necessitate reversal and harmless errors) can yield a denial of the
    constitutional right to a fair trial, which calls for reversal.” United States v.
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    No. 13-40322
    Delgado, 
    672 F.3d 320
    , 343–44 (5th Cir. 2012) (en banc) (internal quotation
    marks and citation omitted).           There being no error, the cumulative error
    doctrine has no application.
    III.    GAMEZ’S CHALLENGE
    Gamez raises one issue on appeal: the adequacy of the indictment. He
    asserts that it was impermissibly vague, and that it “failed to allege the correct
    time period in which most of the criminal conduct occurred.” Gamez argues
    that since the “majority of testimony centered around a ‘buy bust’ on June 10,
    2010 that resulted in [his] arrest,” and the indictment alleges conduct from
    “sometime in or about January 2009, and continuously thereafter up to and
    including May 12, 2010,” most of the evidence at trial concerned events outside
    of the dates alleged in the indictment. As a result of this alleged deficiency,
    Gamez argues that he was unable to properly prepare a defense, and that he
    was unable to ensure that his prosecution was based on facts previously
    presented to the grand jury.
    Gamez waived his challenge to the indictment by failing to raise it before
    trial. See Fed. R. Crim. P. 12(e); United States v. Whitfield, 
    590 F.3d 325
    , 359
    (5th Cir. 2009) (“Failure to comply with this rule generally constitutes
    waiver.”). 3 Nevertheless, we will review the alleged errors relating to the
    adequacy of the indictment here for plain error. See United States v. Hoover,
    
    467 F.3d 496
    , 498 n.2 (5th Cir. 2006) (citing United States v. Rodriguez, 360
    3 On December 1, 2014, absent congressional action, revisions to Federal Rule of
    Criminal Procedure 12 will take effect. These revisions will alter the rule’s “waiver” provision
    by making it a “timeliness” provision: “Consequences of Not Making a Timely Motion Under
    Rule 12(b)(3). If a party does not meet the deadline for making a Rule 12(b)(3) motion, the
    motion is untimely. But a court may consider the defense, objection, or request if the party
    shows good cause.” Gamez has never attempted to show “good cause” for why he failed to
    make a timely motion challenging the indictment.
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    No. 13-40322
    F.3d 949, 958 (9th Cir. 2004) (reviewing alleged insufficient indictment for
    plain error when raised for first time in a Rule 34 motion)). 4
    This court has held that in the conspiracy context “[a]n allegation as to
    the time of the offense is not an essential element of the offense charged in the
    indictment, and, within reasonable limits, the offense need only occur before
    the return of the indictment and within the statute of limitations.” United
    States v. Valdez, 
    453 F.3d 252
    , 259–60 (5th Cir. 2006) (internal quotation
    marks and citation omitted). We have previously found that “[a] five-month
    variance between the date alleged and the date proved is not unreasonable as
    a matter of law as long as the date proven falls within the statute of limitations
    and before the return of the indictment.” 
    Girod, 646 F.3d at 316
    –17 (5th Cir.
    2011) (internal quotation marks omitted); see also Russell v. United States, 
    429 F.2d 237
    , 238 (5th Cir. 1970) (finding that in the conspiracy context “within
    reasonable limits, proof of any date before the return of the indictment and
    within the statute of limitations is sufficient.”).
    Given that the “buy bust” and Gamez’s arrest occurred on June 10, 2010,
    there is no question that the offense conduct occurred both before the return of
    the indictment, which was on July 7, 2010, and within the statute of
    limitations. See 18 U.S.C. § 3282 (establishing five year statute of limitations).
    The facts here are well within the five-month discrepancy we concluded in
    Girod was not an unreasonable variance between the evidence presented at
    trial and the 
    indictment, 646 F.3d at 316
    , since the “buy bust” took place on
    4Rodriguez dealt with a situation where the defendant brought his challenge to the
    indictment for the first time in a Rule 34 motion, after he had pled guilty and judgment had
    been 
    entered. 360 F.3d at 958
    . The defendant argued that he was entitled to de novo review,
    whereas the government argued that the review should be for plain error because the “post-
    judgment Rule 34 motion does not constitute pre-trial review.” 
    Id. The Ninth
    Circuit sided
    with the Government and conducted a plain error review. 
    Id. Here, Gamez
    brought his
    challenge for the first time after the Government rested its case-in-chief.
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    June 10, 2010, and the indictment listed May 12, 2010 as the end date of the
    conspiracy. Moreover, Gamez fails to explain how the indictment failed to
    provide him with “the substantial safeguards . . . an indictment is designed to
    provide.” Russell v. United States, 
    369 U.S. 749
    , 763 (1962) (internal quotation
    marks omitted). He was fully aware of the charges against him, and the
    criminal complaint, issued the day after his arrest, indicated that the criminal
    conduct ran “up until the present.” Given these circumstances, Gamez cannot
    establish that he is entitled to relief. 5
    IV.     CONCLUSION
    For the foregoing reasons, we AFFIRM the Defendants’ convictions.
    5 Gamez’s reliance on United States v. Cecil, 
    608 F.2d 1294
    (9th Cir. 1979) is
    misplaced. Cecil is distinguishable because the temporal language of the indictment there
    was “open-ended in both directions,” 
    id. at 1297,
    which is not the case here. In Cecil, the
    indictment alleged that the conspiracy had “beg[un] on or before July, 1975, and continu[ed]
    thereafter until on or after October, 1975.” 
    Id. (emphasis added).
    The Ninth Circuit held
    that “the indictment fail[ed] to allege sufficient facts to facilitate the proper preparation of a
    defense and to ensure that the defendants were prosecuted on facts presented to the Grand
    Jury,” because of the open-ended nature of the indictment’s time frame. 
    Id. The indictment
    here has an end date of “up to and including May 12, 2010,” which is definitive; accordingly,
    the concerns recognized by the Ninth Circuit in Cecil do not apply here.
    18