United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 96-1370/1371EMSL United States of America, * * Appellee, * * Appeals from the United States vs. * District Court for the * Eastern District of Missouri Steven Triplett, * * Appellant. * No. 96-1621EMSL United States of America, * * Appellee, * * vs. * * Joseph Lee Triplett, * * Appellant. *
Appellant's motion for technical correction and petition for rehearing have been considered by the Court and are granted. The opinionand judgment of this court entered on December 24, 1996 , are vacated.
Th e attached opinion is substituted for the opinion file d December 24, 1996.

January 17, 1997

Order Entered at the Direction of the Court:Clerk, U.S. Court of Appeals, Eighth Circuit.___________ Nos. 96-1370/1371

___________ United States of America, * * Appellee, * * Appeals from the United States v. * District Court for the * Eastern District of Missouri. Steven Triplett, * * Appellant. *

___________ No. 96-1621

___________ United States of America, * * Appellee, * * v. * * Joseph Lee Triplett, * * Appellant. *

___________ Submitted: September 11, 1996 Filed: January 17, 1997

___________ Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

___________ BOWMAN, Circuit Judge.
On May 18, 1995, two armed, ma sked men robbed a United States Post Office in St. Louis. At approximately 4:00 p.m., the men , brandishing weapons, accosted a postal employee on a loading dock and f orced their way into the back room of the postal facility

. Once inside, the gunmen threatened two other postal employees and-2-

compelled them to turn over a large amount of currency, chec ks, and postal money orders. These money orders were imprinted with serial-3-

numbers that were recorded by postal officials and could be traced in the event of a theft. Duri ng the course of the robbery, a shot was fired by one of the gunmen . The bullet lodged in the wall and later was recovered by police. Once the gunmen were satisfi ed that there was no additional money on the premises, they forced al l three postal employees into an adjoining bathroom, bound two i n duct tape, and buried all three under a pile of mail bags, boxes, and tr ansportation carts. The gunmen then secured the bathroo m door with another pile of boxes and carts, removed the videotap e from the surveillance camera, and fled the post office.
Investigation of the robbery l ed to the arrest and indictment of Steven Triplett and Joseph L. Triplett. Both were charged with armed robbery of a United States Post Office in violation of 1 8 U.S.C. § 2114(a) (1994) and us e of a firearm during the robbery in violationof 18 U.S.C. § 924(c)(1) (1994). In addition, Steve n Triplett w as charged as a felon in possession of a firearm i n violation of 18 U.S.C. § 922(g)(1) (1994).

Ajury found both Steven and Joseph Triplett guilty on th e armed robbery and § 924(c) charges. Steven waived trial by jury on the § 922(g) charge and that p art of the case was submitted to the District Court based on the te stimony elicited during his trial on the other charges. The District Court found Steven guilty on the § 922(g) charge, and the court entered judgment against both men in accordance with the jury's andthe court's findings on the various charges. The court sentenced Steven Triplett to 180 months o f impr isonment and Joseph Triplett to 360 months of imprisonment

. Bot hmen appeal their armed robbery and § 924(c) convictions

. Steven does not appeal the § 9 22(g) conviction, but challenges the District Court's sentence, the computation of which took thi s conviction into account. Joseph does not appeal his sentence.-4-

StevenTriplett first challenges the District Court' s admission into evidence testimony by Walter Ivery regarding Ivery'sFederal Rule of Evidence 404(b) states: 1
Ev idence of other crimes, wrongs, or acts is no t admissible to prove the character of a person in order t o show action in conformity therewith. It may, however, b e admissible for other purposes, such as proof of motive, op portunity, intent, preparation, plan, knowledge , identity, or absence of mistake or accident . . . .
-5- attem pt to cash a number of the stolen postal money orders fou r days after the post-office robbery. Steven contends that thi s testimony was improperly admit ted evidence of "other crimes" under Federal Rule of Ev idence 404(b) meant only to sully his character 1 or prove his propensity to commit the charged crimes.
Our review of the evidentiary rulings of a district court is for abuse of discretion, see United States v. Ballew , 40 F.3d 936, 941 (8th Cir. 1994), cert. denied , 115 S. Ct. 1813 (1995); United States v. Whitfield , 31 F.3d 747, 749 (8th Cir. 1994), and w e "will
revers e only when an improper evidentiary ruling affects th e substantial rights of the defendant or when we believe that th e
error has had more than a slight influence on the verdict. " Ballew , 40 F.3d at 941.
Walter Ivery testified that St even Triplett telephoned him on May22, 1995, four days after the robbery, and requested hi s assist ance in "moving" some money orders that Steven purportedl y acquir edfrom a man who took them from a woman's purse. Iver y furth er testified that he met with Steven on May 22, 1995, tha t Steven handed him an envelope containing the stolen money orders, and that Steven was present when Ivery eventually attempted to cash the stolen money orders at another post office.

Unde rlying Steven Triplett's objection to the admission o f Ivery's testimony is his mischaracterization of these statem ents as-6-

evidence of "other crimes, wrongs, or acts" under Rule 404(b)

. This evidence is more accurately characterized as direct evidence-7-

of the crime charged. See Ballew , 40 F.3d at 941; United St ates v. Jones , 880 F.2d 55, 59 (8th Cir. 1989). Contrary to Steven' s
ass ertions, this evidence was not admitted merely to tarnish hi s reputation or to demonstrate his propensity to commit the charged crimes; it was admitted as direct evidence that he was i n possessionof the postal money orders that were stolen from th e post office only days before. A reasonable inference from suc h possession was that Steven par ticipated in the robbery of the post office.

The po ssession of property recently stolen "is ordinarily a cir cumstance from which a jury may reasonably draw the inferenc e andfind, in the light of surrounding circumstances shown by th e evidence in the case, that the person in possession not only knew it was s tolen property, but also participated in some way in th e theft of the property." United States v. Nabors , 762 F.2d 6 42, 653 (8t hCir. 1985) (citation to quoted case omitted); cf. Unite d States v. Clark , 45 F.3d 1247, 1250 (8th Cir. 1995) ("posses sion of recently stolen property is evidence of participation in a t heft"). We find no abuse of discretionby the District Court in overruling Steven's objections to the admission of this evidence.
Steven Triplett advances simil ar arguments to demonstrate the impropriety of admitting into evidence still photographs prepared of him from a post-office surveillance videotape that was mad e dur ing Walter Ivery's failed attempt to cash the stolen mone y orders. Like Ivery's testimony, these photographs were admi tted as relevant evidence of the crimes charged and not as evidence o f unch arged crimes nor as evidence intended to disparage Steven' s reputa tionor merely to illustrate his propensity to commit th e chargedcrimes. Steven's involvement in the scheme to cash th e stolen money orders is relevan t and admissible evidence concerning his involvement in the robbery that was executed to procure those money orders. See Clark , 45 F.3d at 1250 (upholding jury-8-

instruction that permitted an inference of involvement in robbery from possession of recently stolen property).

Inthe alternative, Steven Triplett argues that thes e photog raphs are cumulative since defense counsel stipulated a t trial to Steven's presence in the post office during Ivery' s attempt to cash the stolen money orders. Even if, as Steve n argues, this evidence was cumu lative given Walter Ivery's in-court testimony and defense counsel's stipulation regarding the ev ents of May22, 1995, the prejudicial effect of its admission i s negligible. "Improper admission of evidence which is cumula tive of matters shown by admissible ev idence is harmless error." Smith v. Fires tone Tire & Rubber Co. , 755 F.2d 129, 132 (8th Cir. 1985)

. Because Ivery's testimony regarding Steven's presence at the post of fice was admissible, the still photographs confirming Steven' s pres ence, even if cumulative, are likewise admissible. Th e Dis trict Court did not abuse its discretion in admitting thi s evidence.
Steven Triplett next asserts t hat the District Court erred in refusing to allow cross-examin ation of Walter Ivery concerning the discov eryby police of an alleged controlled substance during a search of Ivery's home after h is arrest for attempting to cash the stolen money orders. This refusal, according to Steven, den ied him the opportunity to demonstrate Ivery's motive for testifyin g fa lsely, namely, Steven's theory that prosecutors promised Iver y clemencyon future drug possession charges in exchange for hi s testimony against Steven.
"The Confrontation Clause of the Sixth Amendment guarantees to
a defe ndant the opportunity for effective cross-examination o f wit nesses against him, including inquiry into the witnesses ' motivation and bias." United States v. Willis , 997 F.2d 407, 415-9-

(8thCir. 1993), cert. denied , 510 U.S. 1050 (1994). Thi s guarantee, however, is not without limitation. "[We] have long-10-

recognized that the trial judge must retain discretion to li mit the scope of cross-examination." United States v. Wood , 834 F.2 d 1382, 1384 (8th Cir. 1987) (citations omitted); accord United States v. Juvenile NB , 59 F.3d 771, 778 (8th Cir. 1995). Reversal of a district court's decision to l imit cross-examination is warranted, the refore, "only where there has been clear abuse of discretion , and a showing of prejudice to the defendant." Wood , 834 F.2d a t 1384.
The District Court allowed defense counsel to question Ivery about the results of this sear ch outside the presence of the jury, and concluded that the inquiry was an improper attempt to impeach Iveryfor bias. The confiscated material was never tested o r positively identified as a controlled substance and Ivery wa s never charged with possession of a controlled substance. Ivery te stified that he entered into no agreem ent with the government conditioning his testimony in this trial on favorable treatment on any futur e charges made in connection with the alleged drug possession. The office rs who came in contact with Ivery likewise testified tha t they made no promises of leniency in return for Ivery's coop eration withtheir investigation of the post-office robbery. Defens e
counse l was provided ample opportunity to cross-examine Ivery i n the presence of the jury regar ding his numerous prior convictions, and we find no abuse of discre tion in the District Court's refusal to allow i nquiry into an incident as to which Ivery was neve r charged an d as to which he testified that he was not promise d favorable treatment by the government.
Both Steven Triplett and Josep h Triplett claim that they were
su bjected to unduly suggestive line-up procedures and that th e resulting identifications were improperly admitted into evidence. "To sustain a challenge to an out-of-court line-up, the defendant must first show that the procedure employed was impermissibl y-11-

suggestive. If it was, the court must then determine whether , under the totality of the circ umstances, the suggestive proceduresSteven Trip lett argues that his "brightly colored, loud, but 2 surprisingly tasteful, Hawaiia n-type print shirt" drew unwarranted attentio nto him "in the midst of a sea of solid white tops an d dark g reen bottoms." Brief for Appellant at 22. We find thi s arg ument unpersuasive. Though Steven's shirt may have been eye

catching, wearing it in the li ne-up was his choice; the police did not select his attire for him.
-12- createda very substantial likelihood of irreparabl e miside ntification." United States v. Ramsey , 999 F.2d 348, 34 9 (8th Cir. 1993); see also Manson v. Brathwaite , 432 U.S. 98 (1977).
Steven Triplett challenges the District Court's admission of testimony by a witness, Robert Trogler, who selected Steven from a police line-up on May 25, 1995--one week after the robbery

. Trogler identified Steven as one of two men he observed loitering in an alley behind the post of fice, in close proximity to the door used by the robbers, shortly before the robbery occurred. Whe n Trogler was transported to the police station to view the line-up, he was told that the individuals included in the line-up may have beeninvolved in the robbery and that he should alert th e detectives if he recognized either person he had seen in the alley. The detectives did not suggest that any particular individual i n the line-up was implicated in the robbery, or that Trogler should identify any specific person. The line-up itself consisted of five African-American males, all of the same general description given byTrogler to police immediately after the robbery, and all o f subst antiallythe same age, height, weight, complexion, an d featur es as Steven Triplett. After viewing the line-up, an d 2 wi thout any improper suggestion from detectives, Trogler pointe d out Steven as one of the individuals he observed standing outside the post office on the day of the robbery. We find nothing in this procedure that is unduly sugge stive. Because Steven has failed to make a threshold demonstration that the line-up procedure wa s imperm issiblysuggestive, we need go no further in our inquiry

.-13-

See Ramsey , 999 F.2d at 349. The District Court did not abuse its discretion in admitting this evidence.-14-

Robert Trogler also identified Joseph Triplett as one of the
men he saw behind the post office after examining a series o f photographs presented to him by police officers approximately one
mon thafter the robbery. The photographic spread contained a photog raphof Joseph Triplett and individual photographs of fiv e ot her persons. All the persons depicted were African-America n males of approximately the same age, complexion, weight, an d physical characteristics. The photographs were handed to Trogler in a stack, and he was instructed to examine each photograph and to advise the detectives if he recognized either of the individ uals he had seen in the alley. The de tectives did not indicate to Trogler that any of the individuals depicted was involved in the robbery or that any particular photograph should be selected. The stack o f photographs was in random order and nothing in its arrangement or compositionleads us to believe that it somehow suggested tha t Tro gler should select Joseph's photograph. We conclude that th e identi ficationprocedure was not unduly suggestive, and that th e District Court did not abuse i ts discretion in admitting Trogler's testimony regarding his identification of Joseph Triplett.

We t urn now to Steven Triplett's and Joseph Triplett' s allegations that the evidence elicited at trial was insuffic ient to
su pport the jury's finding that they committed the post-offic e rob bery. "This court will reverse a conviction for insufficien t evidence only when we conclude that no reasonable trier of fac t could fi nd guilt beyond a reasonable doubt." Ballew , 40 F.3d a t 942; a ccord United States v. Bascope-Zurita , 68 F.3d 1057, 106 0 (8th Cir. 1995), cert. denied , 116 S. Ct. 741 (1996); UnitedStates
v. Beh r , 33 F.3d 1033, 1035 (8th Cir. 1994). "[W]e view th e evidence in the light most favorable to the guilty verdict , granting the government every reasonable inference therefrom. " UnitedStates v. McCarthy , 97 F.3d 1562, 1568 (8th Cir. 1996) ; accord United States v. Swinto n , 75 F.3d 374, 380 (8th Cir. 1996).-15-

Moreover, "it is not our function to pass upon the credibility of witnesses or to attempt to weigh the evidence and substitute our-16-

judgme nt for that of the jury." Ballew , 40 F.3d at 942 (quotin g UnitedStates v. Prionas , 438 F.2d 1049, 1052 (8th Cir.), cert
. denied , 402 U.S. 977 (1971)). Having viewed the record under the foregoing standards of review, we conclude that sufficient e vidence was presented for a reasonable jury to conclude beyond a rea sonable doubt that Steven Triplett andJoseph Triplett committed the postoffice robbery in question.

Robert Trogler testified that he observed Steven and Josep h Trip lett outside the post office moments before the robber y occurred. Trogler was able to identify Steven after viewing a police line-up and Joseph after inspecting a series of photo graphs. VernonJordan testified that he accompanied Steven and Josep h Triplett on a "dry run" of the robbery only days before the actual crime. Jordan visited Steven' s apartment late in the afternoon on the day the robbery occurred, observed cash, guns, masks andgloves strewn on the bed, and listened while Steven and Joseph recounted minute details of the robbery. Jordan also testified that he saw JosephTriplett dispose of a plastic bag containing what h e believ edto be the surveillance videotape removed from the pos t office during the robbery. Walter Ivery testified that Steve n Triplett requested his assistance in cashing money orders th at were ultimately identified as those stolen from the post office during the May 18, 1995, robbery. St even Triplett, during questioning by detectives, admitted that he w as in possession of the stolen money
or ders only four days after the robbery. A search of Steven' s apar tment after his arrest uncovered the weapon that ballistic s tests established was discharged during the robbery, and furthe r tests revealed that the finger print left on this gun was Steven's. Despite the fact that none of the three postal employees presen t during the robbery could identify their masked assailants, w e believe this is ample evidence for a reasonable trier of fact t o find guilt beyond a reasonable doubt.-17-

StevenTriplett next contends that the District Cour t improperlycalculated his sentence under the United State s Sentencing Guidelines Manual. "The applicability of a section of the Sentencing Guidelines to a particular case is a questionof law wh ichwe review de novo ." United States v. McFarlane , 64 F.3 d 1235, 1237 (8th Cir. 1995).

Because Steven's sentence unde r the Guidelines for violations of both §§ 2114(a) and 924(c) might have been less severe than had he been convicted of violating only § 2114(a) with an enhancement for using a firearm, the District Court was required to calculate Steven 's prison term by comparing the results achieved from tw o
me thods of computation. See U.S. Sentencing Guidelines Manua l § 2K2.4, commentary (n.2) (199 5). The District Court was required to (1) determine the base offe nse level and sentencing range under § 2B3.1 for the robbery, excluding only those specific offens e characteristics listed under subsections (b)(2)(A)-(F) related to the possession, use, or discharge of a firearm, and then addto the maximum sentence under that computation the sixty-month mandatory sentence under § 2K2.4(a) and 18 U.S.C. § 924(c) for the use of a firearm; and (2) determine the base offense level under § 2B3.1 , taking into account all specific offense characteristics, in cluding anyapplicable characteristic under subsections (b)(2)(A)-(F ) related to the possession, use, or discharge of a firearm, b ut then disregard the sixty-month mandatory sentence under § 2K2.4(a) and 18 U.S.C. § 924(c). After com paring the sentence range calculated under these two approaches, the District Court was permitted t o dep art upward if the calculation under the first method woul d "result in a decrease in the total punishment." U.S. Sentencin g Guidelines Manual § 2K2.4, commentary (n.2) (1995). In any case, the upward departure could not "exceed the maximum of the gu ideline range t hat would have resulted had there not been a count o f conviction under . . . § 924(c )," id. , that is, the maximum of the range under the second calculation.-18--19-

Pursuant to the first method d escribed by the Guidelines, the District Court computed Steven's base offense level under § 2B3.1 for the robbery, including a two-level enhancement unde r § 2B3.1(b)(2)(F) for an expres s threat of death, while also adding the sixty-month mandatory sentence imposed under 18 U.S.C. § 924(c) and § 2K2.4 for the use of a firearm in relation to a robbery

. Steven argues that this enhancement amounts to double-counting in vio lationof the Guidelines provisions. If, as Steven contends , the District Court added the two-level enhancement under sub section (F) based on the "possession, use, or discharge of a firearm ," this increase was erroneous because it, indeed, amounts to double

cou nting. "Where a sentence under this section [U.S. Sentencin g Guidelines Manual § 2K2.4] is imposed in conjunction with a sent ence for an underlying offense, any specific offens e ch aracteristic for the possession, use, or discharge of a n explosive or firearm ( e.g. , § 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied in respect to the guideline for the underlyin g offens e." U.S. Sentencing Guidelines Manual § 2K2.4, commentar y (n.2). Commentary to the Guid elines is binding on the courts when it interprets or explains a guideline, "unless it violates th e Constitutionor a federal statute, or is inconsistent with, or a pla inlyerroneous reading of, that guideline." United States v

. Jackson , 67 F.3d 1359, 1370 (8th Cir. 1995) (quoting Stinson v

. United S tates , 508 U.S. 36, 38 (1993)), cert. denied , 116 S. Ct

. 1684 (1996). If, however, the District Court added the two-level enhancement under § 2B3.1(b)(2)(F) for an express threat of death unrelated to the "possession, use, or discharge of a firearm," the enhancement was proper in conjunction with § 924(c) as expla ined in Appli cationNote 2 to § 2K2.4 of the Sentencing Guidelines. O n remand , the District Court, if it elects to enhance Steven' s sentence based on subsection (F), should clarify that the conduct on which it bases this enhancement is not firearm-related.-20-

Pursuant to the second method described by the Guidelines, t he District Court calculated Steven's base offense level for robbery-21-

unde r § 2B3.1, including enhancement under the specific offens e characteristics of subsections (b)(2)(A) and (F), and disregarded the sixty-month sentence required by § 2K2.4. The District Court increasedSteven's base offense level by two levels unde r § 2B3.1(b)(2)(F) for an express threat of death and furthe r incr eased Steven's base offense level by seven levels unde r § 2B3.1(b)(2)(A) for the discharge of a firearm. Steven cha llenges the Court's use of both sections to enhance his sentence.
Section 2B3.1(b)(2) provides:

(A) If a firearm was discharged, increase by 7 levels ; (B) if a firearm was otherwise used, increase by 6 levels ; (C) if a firearm was brandished, displayed, o r possessed, increase by 5 levels; (D) if a dangerou s weapon was otherwise used, increase by 4 levels; (E) if a dangerous weapon was brandished, displayed, o r posses sed, increase by 3 levels; or (F) if an expres s threat of death was made, increase by 2 levels.

U.S. S entencing Guidelines Manual § 2B3.1(b)(2) (1995). Th e government concedes that the disjunctive "or" before the las t clause of this section precludes an enhancement for both th e discharge of a firearm under subsection (A) and for the expres s threat of death under subsection (F). We conclude that th e const ructionof this Guidelines provision suggests that th e pa rticular subsections are to be applied alternatively and no t collectively. Use of the disjunctive indicates that only one o f the enumerated offense characteristics under subsectio n § 2B3.1(b)(2) is to be applied, rather than a combination of more than o ne such offense characteristics. This subsection is als o struct ured such that conduct under subsection (A), discharging a fire arm, would likely encompass the conduct involved under, fo r example, subsection (C), brandishing, displaying, or possessing a firearm. If the firearm was discharged, it was necessaril y-22-

possessed. Under these circumstances, it is unlikely that th e drafters of the Guidelines int ended that the base offense level be-23-

increased by seven levels for discharging a firearm and by another five levels for brandishing, displaying, or possessing a firearm. Se e United States v. "LNU" Omar , 16 F.3d 1168, 1171 (11th Cir

. 199 4) (holding § 2B3.1 "offers a set of alternative increases") ; UnitedStates v. Farrier , 948 F.2d 1125, 1127 (9th Cir. 1991 ) ("Only one of the increases in offense levels may be appliedto the same offense . . . ."). In making the calculation required under the Guidelines' second method, the District Court, on remand, may enhance Steven's base offense level under either subsection (A) or subsection (F), but not under both.
Steven argues that the Distric t Court inadvertently neglected to grant him a downward depart ure for acceptance of responsibility in light of his guilty plea to the § 922(g) charge. During th e change of plea hearing before the District Court, Steven agreed to waive a jury trial on this charge and stipulated that th e govern ment could establish beyond a reasonable doubt that h e violated § 922(g). The government suggested at that time, and the District Court appears to have agreed, that Steven was entitled to the two-level departure for acceptance of responsibility, but the sentence imposed does not refl ect that the downward adjustment was made. We have no way of knowing whether the omission wa s deli berate or inadvertent. On remand for resentencing, th e Di strict Court should explicitly exercise its discretion as t o whethe r a downward departure for acceptance of responsibility i s warranted under the standards of U.S. Sentencing Guidelines Manual § 3E1.1 (1995).
Steven Triplett contends that the evidence is insufficient to support an enhancement under s ubsection (A) for the discharge of a firearm since it is unclear wh ether he or Joseph Triplett actually fired the weapon. We find thi s argument to be without merit. The seven-level enhancement under § 2B3.1(b)(2)(A) is applicable "[i]f-24-

a firearm was discharged" during the robbery. The Guidelines d o not require that the defendant, as opposed to an accomplice or-25-

co-conspirator, have fired the weapon. Rather, there merely must be evidence, as there is in this case, that a weapon was dis charged during the robbery.
Moreover, the evidence present ed was sufficient to permit the District Court to find that Steven discharged the weapon. Th e evi dence elicited at trial establishes that one of the gunme n disc harged a firearm during the post-office robbery, the polic e
re trieved the bullet from the post-office wall, the polic e conducted ballistics tests con firming that the bullet removed from the post-office wall was fired from the gun found in Steven' s apartment, and Steven's fingerprint was found on the gun.
Finally, Steven Triplett asser ts that he was denied his Sixth Amendment right to effective assistance of counsel when his defense counsel failed to object to th e District Court's miscalculation of his sentence under the United States Sentencing Guidelines Manual and fail ed to present an alibi defense. Because we have alread y add ressed the sentencing error by remanding Steven's case to th e District Court for correction, Steven has failed to establish the pr ejudice necessary to prevail on an ineffective assistance o f counsel claim. See Strickland v. Washington , 466 U.S. 668, 68 7 (1984). Steven will receive t he relief to which he is entitled at resentencing, and we need not reconsider this error under a claim of ineffective assistance of counsel.
The challenge to counsel's failure to raise an alibi defense is not ripe for review. Generally, an appellant's claims o f ineffective assistance "are not cognizable on direct appeal. " UnitedStates v. Jennings , 12 F.3d 836, 840 (8th Cir. 1994 ) (quoting United States v. Sanchez , 927 F.2d 376, 378 (8th Cir

. 1991)). Rather, "such claims properly are raised in a proceeding under 28 U.S.C. § 2255 or in a habeas corpus proceeding." I d. ; see-26-

Jennings , 12 F.3d at 840. An exception to this rule arises only on the rare occasion when the district court has developed a re cord on-27-

the ineffectiveness issue. See United States v. Williams , 8 97 F.2d 1430, 1434 (8th Cir. 1990). Because no record was made in th e District Court concerning counsel's failure to raise an alib i defense, we are unable to review the merits of this ineffectiv e assistance claim, and we decline to address it further.
For the reasons stated above, we (1) affirm the convictions of both a ppellants, and (2) vacate Steven Triplett's sentence an d remand to the District Court for resentencing.

A true copy.

Attest:

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