FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 25, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10542

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D. C. Docket No. 08-00027-CR-T-26-TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHEDDIE LAMAR GRIFFIN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(May 25, 2010)

Before EDMONDSON, BARKETT and ROTH, Circuit Judges.

*

PER CURIAM:

Honorable Jane R. Roth, United States Circuit Judge for the Third Circuit, sitting by *

designation.
Cheddie Lamar Griffin appeals his convictions and sentences for carjacking,

in violation of 18 U.S.C. § 2119; four counts of brandishing a firearm in relation to

a crime of violence, in violation of 18 U.S.C. § 924(c); kidnapping, in violation of

18 U.S.C. § 1201; two counts of robbery, in violation of 18 U.S.C. § 1951; and

armed robbery, in violation of 18 U.S.C. § 2113(a), (d), and (e). He raises three

issues regarding his convictions and sentences on appeal, and, having reviewed the

record, considered the briefs of the parties and oral argument of counsel, we find

no reversible error. We will address each issue in turn.

I. Conviction

Griffin first argues that the district court abused its discretion in denying his

motion for a mistrial in which he contended that a government witness’s testimony

about Griffin’s alleged commission of a potentially criminal, yet uncharged act was

impermissible under Fed. R. Evid. 404(b). Griffin also asserts that the prosecutor’s

failure to disclose the information he knew about this statement was a discovery

violation and constituted prosecutorial misconduct.

We review a district court’s denial of a motion for a mistrial for an abuse of

discretion, United States v. Demarest, 570 F.3d 1232, 1239 (11th Cir. 2009), and

“review the evidentiary rulings of the trial court only for a clear abuse of

discretion,” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009). In

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this case the witness’s testimony to which Griffin objected was not introduced by

the government but came out in response to defense counsel’s cross-examination

questions. Thus, the government did not seek to introduce, and the district court

did not admit, the objectionable statement under Rule 404(b). Rather, the

statement was made by the witness in response to defense counsel’s repeated

questioning on cross-examination regarding the witness’s penchant for lying.

Although the witness’s testimony on cross-examination involved potentially

inadmissible evidence, this circuit has held “that where the injection of allegedly

inadmissible evidence is attributable to the action of the defense, its introduction

does not constitute reversible error.” United States v. Jernigan, 341 F.3d 1273,

1289 (11th Cir. 2003) (quotation marks and citation omitted). Moreover,

immediately after the questionable statement was uttered, the court held a sidebar

conference, and after denying Griffin’s motion for mistrial, expressly admonished

the jury that Griffin was on trial only “for the specific offenses alleged in the

Indictment.” Because defense counsel elicited the objectionable testimony, we

find no reversible error in the district court’s denial of a mistrial.

We likewise find no reversible error in the prosecutor’s failure to disclose

what he knew about the substance of the questionable statement. The government

explained that it never intended to offer the statement into evidence and that it only

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came out on cross-examination conducted by Griffin. Under these circumstances,

we find no error in the denial of Griffin’s motion for a mistrial.

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Second, Griffin challenges his conviction on the basis that the district court

violated his due process rights by allowing his trial attorney to testify at a post-trial

competency hearing because such testimony was derived from communications

protected by the attorney-client privilege. He also argues that the court abused its

discretion in finding that he was competent at the time of trial based on evidence of

competence generated after the trial had concluded. The government responds that

the waiver provision of Rule 59(a) of the Federal Rules of Criminal Procedure

precludes any further review of Griffin’s claims because a magistrate judge issued

both of the rulings and Griffin never sought review of the rulings with the district

court.

We agree with the government that Griffin waived any challenge to the

magistrate’s ruling as to competency because he never appealed this issue to the

district court. Rule 59(a) provides that failure to object to a magistrate’s ruling on

a dispositive matter “waives a party’s right to review.” The Advisory Committee

 Moreover, even if there was any error, it was harmless because there was overwhelming 1

evidence of Griffin’s guilt. United States v. Nilsen, 967 F.2d 539, 544 (11th Cir. 1992)

(“[P]rejudicial testimony will not mandate a mistrial when there is other significant evidence of

guilt which reduces the likelihood that the otherwise improper testimony had a substantial

impact upon the verdict of the jury.”) (quotation marks and citation omitted). 

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Note to this rule states that the “waiver provision is intended to establish the

requirements for objecting in a district court in order to preserve appellate review

of magistrate judges’ decisions.” Fed. R. Crim. P. 59 advisory committee’s note.

Indeed, this circuit’s precedent is well-settled that failure to comply with the

objection and review provisions of Rule 59(a) is jurisdictional. See United States

v. Brown, 441 F.3d 1330, 1352 (11th Cir. 2006) (“We lack jurisdiction to review

the magistrate judge’s order because [the defendant] never appealed the ruling to

the district court.”). Accordingly, we are without jurisdiction to consider Griffin’s

challenge to the magistrate’s rulings on his competency and related attorney-client

privilege objection.

II. Sentencing

Griffin finally argues that the district court erred in sentencing him to a

seven-year consecutive sentence on one count of brandishing a firearm in relation

to a crime of violence under § 924(c)(1)(A)(ii) because he faced a higher

mandatory-minimum sentence of twenty-five years imprisonment, pursuant to

§ 924(c)(1)(C)(i). Griffin’s arguments regarding the imposition of a consecutive

seven-year sentence under § 924(c)(1)(A)(ii) have recently been considered and

rejected by this circuit in United States v. Segarra, 582 F.3d 1269 (11th Cir. 2009)

and United States v. Tate, 586 F.3d 936 (11th Cir. 2009).

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For the foregoing reasons, we affirm Griffin’s convictions and sentences.

AFFIRMED.

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