United States v. Jones

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
APR 2, 2010
No. 08-16999 JOHN LEY
________________________ CLERK

D. C. Docket No. 06-00038-CR-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEON MONROE JONES,
a.k.a. Johnny Lee Jones,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________

(April 2, 2010)

Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:
 Deon Monroe Jones (“Mr. Jones”) appeals his convictions and sentences on

four counts: (1) knowing possession of a firearm and ammunition by a convicted

felon on June 1, 2004, in violation of 18 U.S.C. § 922(g)(1); (2) knowing

possession of a firearm and ammunition by a controlled substances user on June 1,

2004, in violation of 18 U.S.C. § 922(g)(3); (3) knowing possession of ammunition

by a convicted felon on June 18, 2004, in violation of 18 U.S.C. § 922(g)(1); and

(4) knowing possession of ammunition by a controlled substances user on June 18,

2004, in violation of 18 U.S.C. § 922(g)(3). Mr. Jones raises seven issues on

appeal. We will discuss all but one here.1 After review and oral argument, we

affirm in part, reverse in part, vacate in part, and remand for further proceedings.

I.

In the early morning of June 1, 2004, David Buskirk (“Mr. Buskirk”) was

shot with a .38 caliber bullet outside his home in Savannah, Georgia. Detective

Robert Von Lowenfeldt (“Detective Von Lowenfeldt”) led the investigation into

Mr. Buskirk’s shooting, and, over the course of his investigation, identified Mr.

Jones as a prime suspect. On June 18, 2004, Detective Von Lowenfeldt helped

execute a warrant for Mr. Jones’s arrest, for violation of his parole. During a

search of Mr. Jones’s bedroom at his mother’s house, the police found twelve .38

1
Because we reverse two of the four counts of conviction, and remand for resentencing,
we need not address Mr. Jones’s challenges to his current sentence.
caliber rounds and four .44 caliber rounds.

On June 23, 2004, Detective Von Lowenfeldt conducted a videotaped

interview of sixteen-year-old Kelly Bigham (“Ms. Bigham”). In their conversation,

Ms. Bigham informed the detective that she had sold a .38 revolver to Mr. Jones.

She described how she and Mr. Jones drove to a nice area of town, where Mr.

Jones shot a white man. After the interview, Ms. Bigham directed Detective Von

Lowenfeldt to the street on which Mr. Buskirk lived, and she demonstrated how

Mr. Jones got out of the car, fired at the man, and got back into the car.

On February 8, 2006, Mr. Jones was indicted on two counts: possession of

twelve rounds of .38 special ammunition and four rounds of .44 caliber

ammunition, on June 18, 2004, (1) as a convicted felon and (2) as a user of

controlled substances. A jury found him guilty on both counts, but Mr. Jones

successfully appealed these convictions. On Mr. Jones’s first appeal, we concluded

that the district court’s instructions to the jury were unduly coercive. United States

v. Jones, 504 F.3d 1218, 1219 (11th Cir. 2007). For that reason, we reversed Mr.

Jones’s convictions and remanded for a new trial. Id. at 1220.

In late November 2007, shortly after the mandate was issued, the government

received a letter from Gregory Seabrook (“Mr. Seabrook”), who was incarcerated

with Mr. Jones. Mr. Seabrook offered to provide information divulged by Mr.

3
Jones about his role in the Buskirk assault and about Mr. Jones’s subsequent arrest.

Over the following months, the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”), investigated these matters. ATF agents interviewed Mr.

Seabrook and other inmates, who said Mr. Jones had confided in them.

Armed with this freshly acquired evidence, the government brought new

charges against Mr. Jones. On December 13, 2007, a federal grand jury returned a

Superseding Indictment, adding Counts One and Two and reindicting as Counts

Three and Four the two crimes charged in the original indictment. After a second

trial, a jury convicted on all four counts. At sentencing, the district court merged

Count One with Two and Count Three with Four. Evaluating the 18 U.S.C.

§ 3553(a) factors, the district court noted the seriousness of the offense, Mr.

Jones’s “sinister nature” and criminal history, the need to provide just punishment

for the offense, his lack of remorse, and the great risk he posed to society. Having

stated these reasons, the district court varied from the Sentencing Guidelines’

applicable sentencing range of 130 to 162 months and sentenced Mr. Jones to 200

months imprisonment. Mr. Jones timely appealed.

4
 II.

Mr. Jones makes the following arguments on appeal: (1) that the delay in

bringing him to trial violated the Speedy Trial Act; (2) that the counts of the

Superseding Indictment are multiplicitous; (3) that the counts added by the

Superseding Indictment are the product of prosecutorial vindictiveness; (4) that the

district court erred when it admitted a videotaped interview of Ms. Bigham as past

recollection recorded; (5) that the government’s nondisclosure of certain

documents violated the Jencks Act and Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194 (1963); and (6) that there was insufficient evidence to support a conviction on

any of the counts.

A.

We are first required to determine whether the delay in bringing Mr. Jones to

trial amounts to a violation of the Speedy Trial Act of 1974, 18 U.S.C.

§§ 3161–3174 (the “Act”). This Court reviews de novo the denial of a motion to

dismiss for violation of the Speedy Trial Act. United States v. Harris, 376 F.3d

1282, 1286 (11th Cir. 2004).

When a defendant successfully appeals his conviction, the Speedy Trial Act

allows only seventy days between the date that the district court receives the

5
mandate and the date the defendant’s retrial begins. United States v. Lasteed, 832

F.2d 1240, 1243 (11th Cir. 1987); see also 18 U.S.C. § 3161(e). New charges

added by a superseding indictment do not reset the speedy-trial timetable for

offenses either charged in the original indictment or required under double

jeopardy principles to be joined with such charges. United States v. Young, 528

F.3d 1294, 1296 (11th Cir. 2008).

The Act “excludes from the 70-day period days lost to certain types of

delay.” Bloate v. United States, No. 08-728, --- S. Ct. ----, 2010 WL 757660, at *5

(Mar. 8, 2010). Specifically, “[t]he eight subparagraphs in subsection (h)(1)

address the automatic excludability of delay generated for certain enumerated

purposes. Thus, we first consider whether the delay at issue in this case is

governed by one of these subparagraphs.” Id. at *6.

When conducting the speedy-trial calculus, a court should not include “delay

resulting from any pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such motion.” 18

U.S.C. § 3161(h)(1)(D). Also relevant to this case, subsection 3161(h)(1)(H)

provides for exclusion of “delay reasonably attributable to any period, not to

exceed thirty days, during which any proceeding concerning the defendant is

actually under advisement by the court.” Id. § 3161(h)(1)(H). “In calculating

6
includable time, both the date on which an event occurs or a motion is filed and the

date on which the court disposes of a motion are excluded.” United States v.

Yunis, 723 F.2d 795, 797 (11th Cir. 1984).

The district court must promptly dispose of pretrial motions for which no

hearing is required. 18 U.S.C. § 3161(h)(1)(D). “Prompt disposition” “depends

upon when the court takes the motion ‘under advisement’ for purposes of

§ 3161(h)(1)[(H)].” United States v. Davenport, 935 F.2d 1223, 1228 (11th Cir.

1991). A motion is “under advisement” once the parties have filed the last piece of

necessary information, at which point the court has thirty days to act before the

speedy-trial clock restarts. Id.

On November 21, 2007, the district court received this Court’s mandate,

reversing Mr. Jones’s convictions and remanding for a new trial. From that date,

the government had seventy days to bring Mr. Jones to trial. See Lasteed, 832 F.2d

at 1243. On December 13, the government filed its superseding indictment, which

did not cause the clock to reset on the original charges. See Young, 528 F.3d at

1296.

On December 21, twenty-nine nonexcludable days after receipt of the

mandate, Mr. Jones filed two motions, one to dismiss multiplicitous counts and one

to dismiss the superseding indictment. These tolled the speedy-trial clock until the

7
government responded and an additional thirty days elapsed. On January 9, 2009,

before that period expired, Mr. Jones filed a slew of new motions. Both parties

agree that these motions required a hearing before a magistrate judge.

Accordingly, the speedy-trial clock remained stopped at twenty-nine days and

would not restart until the magistrate judge held a hearing, received all necessary

documents, and either resolved the pending motions or allowed an additional thirty

days to pass. See Dunn, 345 F.3d at 1292.

After the March 26, 2008 hearing, the magistrate judge referred two motions

to the district court and requested further briefing on two others. The magistrate

judge issued his findings orally at the hearing, and entered a written minute order

on March 28, 2008. Also on March 28, Mr. Jones filed a Motion for In Camera

Hearing, challenging the magistrate judge’s ruling on his Motion for Discovery of

Exculpatory Evidence. Mr. Jones argued that because there was a “strong

suggestion that Brady material exists, the trial court should hold an in camera

review to determine if the suppression of such material is proper.” The government

filed its response on April 9, 2008. On June 23, 2008, the district court denied the

motion without holding or even scheduling a hearing.

In deciding Mr. Jones’s Renewed Motion to Dismiss the Super[s]eding

Indictment for Speedy Trial Violation, the district court excluded the time period

8
from May 10—thirty days after the government’s filing—to June 23—the date on

which it denied Mr. Jones’s Motion for In Camera Hearing. We must therefore

decide whether a motion that requests a hearing necessarily tolls the speedy trial

clock until the district court disposes of the motion, even when the district court

disposes of the motion without either scheduling or holding a hearing. We

conclude that it does not.

In United States v. Stafford, 697 F.2d 1368 (11th Cir. 1983), this Court set

out the basic framework for applying the Speedy Trial Act’s time exclusions. Id. at

1373–74. In instances, like this case, where no hearing is required,

the period of exclusion begins at the filing of the motion and ends at
the point of its ‘prompt disposition.’ The inclusion of the promptness
requirement was ‘intended to provide a point at which time will cease
to be excluded, where motions are decided on the papers filed without
hearing.’

Id. at 1373 (quoting S. Rep. No. 96-212, at 34 (1979)) (emphasis added). The

words “prompt disposition” were intended to “‘exclud[e] time between filing and

disposition on the papers,’” and thereby prevent “‘circumvention of the 30-days,

“under advisement” provision contained in Subsection (h)(1)[(H)].’” Id. at 1374

(quoting S. Rep. No. 96-212, at 34); see also Henderson v. United States, 476 U.S.

321, 329, 106 S. Ct. 1871, 1876 (1986) (“‘[I]f motions are so simple or routine that

they do not require a hearing, necessary advisement time should be considerably

9
less than 30 days.’” (quoting S. Rep. No. 96-212, at 34)); United States v. Scott,

270 F.3d 30, 57 (1st Cir. 2001) (“Congress plainly wanted even more complicated

motions than the one here to be decided within 30 days of a hearing, and less

complicated motions, decided without a hearing, to be decided ‘promptly,’ within

that 30-day period.”). In Stafford we made no distinction between instances in

which no hearing was requested, and instances in which a hearing was requested

but not held. See Stafford, 697 F.2d at 1373–74. The relevant consideration is

whether the district court expressed its belief that a hearing was necessary by either

scheduling or actually holding a hearing to resolve the motion.2

In this case, the district court neither scheduled nor held a hearing to resolve

Mr. Jones’s Motion for In Camera Hearing. Because no hearing was required, the

motion was under advisement of the district court as of the date the government

filed its response on April 9, 2008. The district court then had thirty days in which

to rule on the motion. When the thirty days of excludable time elapsed on May 10,

2
At oral argument, the government attempted to analogize this case to United States v.
Mers, 701 F.2d 1321 (11th Cir. 1983). However, the motions addressed in Mers were motions to
suppress, for which the magistrate judge set a hearing date. Id. at 1335. A motion to suppress
evidence is precisely the type of pretrial motion for which a well-reasoned ruling typically is not
possible without a hearing. See United States v. Garcia, 778 F.2d 1558, 1562 (11th Cir. 1985)
(“A James motion and a fourth amendment suppression motion are procedurally alike. Both call
for a hearing.”). Mr. Jones filed a decidedly different Motion for In Camera Hearing. Here, in
contrast with Mers, the district court gave no indication that it needed additional information
from the parties, that any evidence was missing, or that a hearing would facilitate resolution of
Mr. Jones’s Motion. Also unlike Mers, no date for a hearing was ever set.

10
the speedy-trial clock began to run. Mr. Jones was brought to trial seventy-five

nonexcludable days after the district court received this Court’s mandate—a

violation of the Speedy Trial Act.

The Speedy Trial Act has been violated and the original counts, now

numbered Counts Three and Four, must be dismissed. 18 U.S.C. § 3162(a)(2). In

light of the violation, we must decide whether these charges are to be dismissed

with or without prejudice.

B.

The Act sets out certain factors to guide courts as they decide whether to

dismiss with or without prejudice:

[T]he court shall consider, among others, each of the following
factors: [1] the seriousness of the offense; [2] the facts and
circumstances of the case which led to the dismissal; and [3] the
impact of a reprosecution on the administration of this chapter and on
the administration of justice.

18 U.S.C. § 3162(a)(2). Where the defendant is charged with a serious crime, the

delay was minor, the defendant suffered no prejudice from the delay, and the

government did not actively seek delay, dismissal should be without prejudice. See

United States v. Carreon, 626 F.2d 528, 533 (7th Cir. 1980); see also United States

v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984) (“Where the crime charged is

serious, the court should dismiss only for a correspondingly severe delay.”).

11
 When the result of this balancing test is so clear that remand constitutes an

unnecessary expenditure of judicial resources, a court of appeals ought to engage

the § 3162(a)(2) factors rather than remand on the issue of prejudice. See United

States v. Miranda, 835 F.2d 830, 834–35 (11th Cir. 1988). Here, an additional

hearing is unlikely to uncover facts not revealed after two trials and two appeals.

“‘We would not serve the purposes of the Speedy Trial Act by precipitating a

needless hearing with the risk of a further appeal . . . .’” Id. at 835 (quoting United

States v. Tunnessen, 763 F.2d 74, 80 (2d Cir. 1985)).

Applying these principles to the facts of this case, we conclude that dismissal

without prejudice is required by the Act. As to the first factor, possession of

ammunition by a convicted felon and drug user are clearly serious crimes. Mr.

Jones has a lengthy criminal past and has exhibited recidivist tendencies. Both of

these considerations weigh heavily in favor of dismissing without prejudice to

allow for reprosecution. See United States v. Johnson, 29 F.3d 940, 946 (5th Cir.

1994). In light of the seriousness of the crimes charged, only serious delay would

justify dismissal with prejudice. However, in this case, the Act’s seventy-day limit

was exceeded by only five days.

Second, under the facts and circumstances of this case, the government’s

delay is excusable. We refrain from “penaliz[ing] the government for its conduct”

12
where, as here, “the particular violation [was] unique.” United States v. Godoy,

821 F.2d 1498, 1505 (11th Cir. 1987). Dismissal without prejudice is warranted

where “[t]he error that occurred is non-compliance with a procedural requirement

clarified for this circuit by today’s decision.’” Tunnessen, 763 F.2d at 79. In the

absence of guiding case law, the government’s interpretation of the Act was

colorable.

Finally,“[t]he length of delay, a measure of the seriousness of the speedy trial

violation, in some ways is closely related to the issue of the prejudice to the

defendant.” United States v. Taylor, 487 U.S. 326, 340, 108 S. Ct. 2413, 2421

(1988). Prejudice to Mr. Jones does not tip the scales in favor of dismissal with

prejudice. The delay in prosecution was brief—five days—and did not impair Mr.

Jones’s ability to present his defense.

For these reasons, we conclude that Counts Three and Four must be

dismissed without prejudice for violation of the Speedy Trial Act.

C.

Having found a violation of the Speedy Trial Act as to Counts Three and

Four, we turn to whether delay also warrants dismissal of Counts One and

Two—the new counts added in the Superseding Indictment. Mr. Jones argues that

double jeopardy principles require the joining of all four counts. He contends that

13
the seventy-day speedy-trial clock ran from the date of his arraignment on the

charges in the original indictment, not from the date of the superseding indictment.

Therefore, by Mr. Jones’s calculation, well over 600 nonexcludable days elapsed

between arraignment and trial, a clear violation of 18 U.S.C. § 3161(c)(1).

However, double jeopardy principles do not require the joining of Counts

One and Two with Counts Three and Four. As will be discussed in Part III, the

charged acts of possession do not constitute a continuing course of conduct. When

a defendant possesses different weapons at different times or places, the

government may treat them as separate units of prosecution. See United States v.

Bonavia, 927 F.2d 565, 568–69 (11th Cir. 1991). Therefore, Counts One and Two

charge separate offenses from those charged in Counts Three and Four, and Mr.

Jones’s Speedy Trial Act claims fail as to these new charges. As such, the

violation of the Speedy Trial Act dispenses only with Counts Three and Four and it

is necessary to evaluate Mr. Jones’s alternative grounds for appeal as they relate to

Counts One and Two.

III.

Mr. Jones argues that the government charged him multiple times for the

exact same behavior, thereby arbitrarily carving one continuing act of possession

14
into separate counts. He asserts that the Superseding Indictment is multiplicitous,

and that the district court erred by allowing him to be tried on the separate counts.

“Although we [have] stated . . . that we would review the multiplicity

holding for abuse of discretion, we [have] actually conducted a legal analysis of the

appellants’ double jeopardy arguments which was essentially de novo.” United

States v. Sirang, 70 F.3d 588, 595 (11th Cir. 1995); compare United States v.

Howard, 918 F.2d 1529, 1532 (11th Cir. 1991) (“We review the district court’s

decision [to deny a motion to compel consolidation and/or election of

multiplicitous charges] for abuse of discretion.”), with United States v. Smith, 231

F.3d 800, 807 (11th Cir. 2000) (“We review whether counts in an indictment are

multiplicitous de novo.”). “An indictment is multiplicitous if it charges a single

offense in more than one count.” United States v. Williams, 527 F.3d 1235, 1241

(11th Cir. 2008). Under this analysis, a multiplicitous indictment violates double

jeopardy principles by giving the jury more than one opportunity to convict the

defendant for the same offense. Id. “We analyze issues of double jeopardy under

the test set forth by the Supreme Court in Blockburger v. United States.” Id. at

1240 (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182

(1932)). We note that this Court uses the same Blockburger test “to determine

15
whether an indictment is multiplicitous, verifying that each count requires an

element of proof that the other counts do not require.” Id. at 1241.

Double jeopardy principles have a particular application for crimes of

possession. “[G]enerally, possession is a course of conduct; by prohibiting

possession Congress intended to punish as one offense all of the acts of dominion

which demonstrate a continuing possessory interest in a firearm.” United States v.

Rivera, 77 F.3d 1348, 1351 (11th Cir. 1996) (citation and internal quotation marks

omitted). “Where there is no proof that possession of the same weapon is

interrupted, the [g]overnment may not arbitrarily carve a possession into separate

offenses.” Id. Double jeopardy protects against government attempts to charge

separate dates in separate counts where possession was a continuous course of

conduct. Id. at 1352. “[S]imultaneous possession of a firearm and ammunition

should be punished as one offense.” United States v. Hall, 77 F.3d 398, 402 (11th

Cir. 1996), abrogation on other grounds recognized by United States v. Archer, 531

F.3d 1347, 1352 (11th Cir. 2008). However, where a defendant has possessed

different weapons at different times or places, the government may treat them as

separate units of prosecution and charge multiple counts. Bonavia, 927 F.2d at

568–69.

16
 The crux of Mr. Jones’s argument on appeal is that the government presented

insufficient evidence at trial to demonstrate anything more than continuing

possession. He challenges the credibility of the government’s witnesses and argues

that the government failed to present “uncontroverted evidence . . . at trial, that [he]

had acquired the ammunition separately from the firearm, or that [he] had

possessed the ammunition and firearm separately.”

The district court used a verdict form that required the jury to make special

findings. The jury specifically found that Mr. Jones knowingly possessed a firearm

on June 1, 2004, and that he possessed .38 caliber ammunition on that same date. It

also specifically found both that Mr. Jones possessed .38 caliber ammunition on

June 18, 2004, and that he possessed .44 caliber ammunition on June 18. Because

the jury found that Mr. Jones possessed a firearm on a separate date from the

ammunition, the possession charged is not a continuing course of conduct. Counts

One and Two did not duplicate Counts Three and Four. See Bonavia, 927 F.2d at

568–69. Additionally, while Mr. Jones was found to be in possession of .44 caliber

ammunition on June 18, 2004, he was not charged in Counts One and Two with

possession of the same. That being the case, possession of .44 caliber ammunition

on June 18, as specifically found by the jury, is a separate element of the crime for

which Mr. Jones was convicted in Counts Three and Four. The inverse is true for

17
possession of the firearm—it is an element of Counts One and Two, but not Counts

Three and Four.

The government presented sufficient evidence to support the jury’s findings.

Through the testimony of several witness, the government linked Mr. Jones to the

shooting of Mr. Buskirk with a .38 revolver on June 1 in downtown Savannah. For

instance, at the second trial, Mr. Seabrook testified that while he and Mr. Jones

were incarcerated together, the defendant told Mr. Seabrook about his role in the

Buskirk shooting. Mr. Seabrook explained that Mr. Jones acquired the gun, a .38

caliber firearm, from a girl named “Kelly.” Mr. Seabrook also informed the jury

that Mr. Jones claimed to have purchased the ammunition from a drug addict in

exchange for money and drugs. Meanwhile, when on June 18 the police searched

Mr. Jones’s home in Thunderbolt, Georgia, they found only .38 and .44 caliber

ammunition, but no firearm. Mr. Seabrook also testified that Mr. Jones disposed of

the firearm two days after the shooting by throwing it into a sewage drain.

Therefore, even if the .38 caliber ammunition found in Thunderbolt on June 18 (as

charged in Counts Three and Four) was the same as that Mr. Jones possessed on

June 1 (as charged in Counts One and Two), Mr. Jones separated these rounds from

the .38 revolver. Because Mr. Jones separated the gun from the ammunition, the

government is permitted to treat each as a separate unit of prosecution. Bonavia,

18
927 F.2d at 569; cf. United States v. Grinkiewicz, 873 F.2d 253, 255 (11th Cir.

1989) (concluding possession was singular conduct where multiple weapons were

seized in “different, although closely proximate, areas in the same building at the

same time”). Based on the evidence presented, a reasonable jury could have found

that Mr. Jones retained the .38 caliber rounds for approximately two weeks after

disposing of the revolver, transported them to his mother’s home in Thunderbolt,

and stored them in his bedroom where they were found on June 18.3

The district court did not err by denying Mr. Jones’s Motion to Dismiss the

Multiplicitous Indictment. Counts One and Two charge separate offenses from

Counts Three and Four, and the indictment does not violate double jeopardy

principles.

IV.

Mr. Jones argues that Counts One and Two are the product of prosecutorial

vindictiveness and that the district court erred when it denied his pretrial motion to

dismiss the superseding indictment for prosecutorial misconduct.

3
Our conclusion that possession in this case was not a continuing course of conduct is
also supported by trial evidence that Mr. Jones separately acquired the .38 revolver and the .38
caliber ammunition. Both Ms. Bigham, in her interview, and Mr. Seabrook, in his trial
testimony, indicated that Ms. Bigham provided Mr. Jones with the weapon. Meanwhile, Mr.
Seabrook testified that Mr. Jones acquired the ammunition from a “crack head” in exchange for
drugs and money.

19
 We review a district court’s decision on whether to dismiss an indictment on

grounds of prosecutorial misconduct for abuse of discretion. United States v.

Barner, 441 F.3d 1310, 1315 (11th Cir. 2006). This Court reviews de novo the

legal question of whether a presumption of vindictiveness arises from the facts of

the case. Id.

“As a general rule, as long as the prosecutor has probable cause to believe

the accused has committed a crime, the courts have no authority to interfere with a

prosecutor’s decision to prosecute.” Id. However, the government may not,

“without explanation, increase the number of or severity of those charges in

circumstances which suggest that the increase is retaliation for the defendant’s

assertion of statutory or constitutional rights.” Hardwick v. Doolittle, 558 F.2d

292, 301 (5th Cir. 1977).4 Adding charges after a defendant’s successful appeal

gives rise to a presumption of vindictive prosecution. Barner, 441 F.3d at

1315–16. The government may rebut this presumption “by establishing [its]

reasons for adding the two new charges were other than to punish a pesky

defendant for exercising his legal rights.” Hardwick, 558 F.2d at 301. “[O]bjective

evidence justifying the prosecutor’s action,” such as a showing “that it was

4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

20
impossible to proceed on the more serious charge at the outset,” rebuts the

presumption. United States v. Goodwin, 457 U.S. 368, 376 n.8, 102 S. Ct. 2485,

2490 n.8 (1982) (citation and internal quotation marks omitted). Once rebutted, the

defendant’s vindictive prosecution defense will survive if he can affirmatively

demonstrate actual prosecutorial vindictiveness. See Barner, 441 F.3d at 1322. In

other words, he must show that the government’s justification is pretextual. See

United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987).

The district court did not abuse its discretion by denying Mr. Jones’s motion

to dismiss for prosecutorial vindictiveness. Assuming without deciding that the

added charges of Counts One and Two give rise to a presumption of

vindictiveness,5 the government has rebutted this presumption. The government

received Mr. Seabrook’s letter after this Court issued the mandate from the first

appeal. It was only then that the government had sufficient evidence to confidently

bring the additional possession charges. Because the government has provided an

objective explanation for the new charges, it is incumbent on Mr. Jones to

5
This Court distinguishes instances in which the prosecutor substitutes a more serious
charge for the original charge and those in which new charges are based on independent acts.
Where the latter is the case, adding charges does not give rise to a presumption of prosecutorial
vindictiveness. Humphrey v. United States, 888 F.2d 1546, 1549 (11th Cir. 1989). This
principle holds true even where the separate acts that prompted the new charges occurred in “the
same spree of activity.” United States v. Taylor, 749 F.2d 1511, 1513 (11th Cir. 1985) (citation
and internal quotation marks omitted). Under these circumstances, relief is only available if the
defendant can prove actual vindictiveness. Id.

21
demonstrate actual vindictiveness—a burden he has not carried. See Hardwick,

558 F.2d at 301; Barner, 441 F.3d at 1322. The district court did not abuse its

discretion when it denied Mr. Jones’s motion to dismiss on grounds of

prosecutorial vindictiveness.

V.

Mr. Jones argues that the district court erred when it admitted a videotaped

interview of Ms. Bigham as past recollection recorded. Prior to trial, the

government informed Mr. Jones and the district court of its intent to offer the video

as evidence, pursuant to Rules 804(b)(1) (former testimony) and 804(b)(3)

(statement against interest) of the Federal Rules of Evidence.

At trial, the district court permitted the jury to view the full video of Ms.

Bigham’s custodial interrogation as part of the government’s case-in-chief. The

district court admitted the video not under the government’s original theory that the

hearsay exceptions for unavailable declarants applied, but rather as past

recollection recorded, pursuant to Rule 803(5). During deliberation, the jury sent

the court a note, requesting a second viewing of the video. Over Mr. Jones’s

objection, the district court allowed the video to be played for the jury a second

time.

22
 Mr. Jones argues that by admitting the video as past recollection recorded,

the district court erred in its application of the Federal Rules of Evidence. He next

contends that, regardless of whether the evidentiary ruling was correct, the district

court’s decision also violated the Confrontation Clause. Finally, Mr. Jones asserts

that the district court erred when it played the video for the jury a second time. We

address each of these arguments in turn.

A.

“This Court reviews a district court’s evidentiary rulings for a clear abuse of

discretion. A district court’s evidentiary rulings will only be reversed if the

resulting error affected the defendant’s substantial rights.” United States v.

Delgado, 321 F.3d 1338, 1347 (11th Cir. 2003) (citations and internal quotation

marks omitted).

Federal Rule of Evidence 803(5) sets out the predicates for admission of past

recollections recorded. For one thing, the Rule requires the proponent to

demonstrate that the witness-declarant’s memory has faded so that he is no longer

able “to testify fully and accurately.” Fed. R. Evid. 803(5).

At trial, the government elicited a handful of responses from Ms. Bigham

that indicated she lacked “clear and distinct recollection in [her] response to the

question[s]” regarding the subject matter of her interview with Detective Von

23
Lowenfeldt. NLRB v. Hudson Pulp & Paper Corp., 273 F.2d 660, 665 (5th Cir.

1960). She could not remember that she sold Mr. Jones the .38 revolver “in the end

of April of 2004.” She also could not recall Mr. Jones making any statements

about the gun. After showing Ms. Bigham the video, outside the presence of the

jury, the government inquired into whether Ms. Bigham’s memory had been

refreshed. In response to a question about whether she remembered “more about

the things you did with Deon Jones than you did before we watched the video,” she

responded, “I remember what was just said.” When pressed further, she responded

that she could recall “some” of the relevant events. Before the court showed Ms.

Bigham the video, Mr. Jones conceded to its use for the purpose of refreshing

recollection. Based on this record, we do not find that the district court clearly

abused its discretion in concluding that Ms. Bigham lacked sufficient memory to

testify to the subject matter of the video.

Rule 803(5) also requires that the witness verify the contents of the past

statement. “The witness must be able now to assert that the record accurately

represented his knowledge and recollection at the time. The usual phrase requires

the witness to affirm that he knew it to be true at the time.” Lopez v. United States,

24
373 U.S. 427, 448 n.1, 83 S. Ct. 1381, 1393 n.1 (1963) (citation and internal

quotation marks omitted).

Here, Ms. Bigham arguably verified the contents of the video through her

testimony at trial. First, she testified that it was easier to remember the events

described in the videotape at the time of the interrogation than on the date of the

trial. When the government asked whether the things said were true and accurate

to the best of her knowledge, Ms. Bigham responded, “If that was what was said

then, that’s what I remember then, what was just in the video.” Further, Ms.

Bigham also testified that she repeated the contents of her interview in juvenile

court, and she agreed that “the things that [she] [said] to the detective at that time

[were] true and accurate to the best of [her] knowledge.” Finally, as to whether the

video was an accurate record of her statements to Detective Von Lowenfeldt, Ms.

Bigham acknowledged, at a minimum, “that’s me talking” on the video.6

6
Mr. Jones maintains that the district court also committed error in admitting the video
despite the presence of statements about which Ms. Bigham had no personal knowledge. Mr.
Jones points to four instances when either Ms. Bigham or Detective Von Lowenfeldt made
statements that themselves constituted an additional layer of hearsay or were based upon the
speculation of the declarant. Having reviewed the trial transcript, we conclude that in each case,
either another hearsay exemption applied or the substance of the statement duplicates other
evidence and testimony presented at trial. This being the case, failure to purge the video of these
four statements was unlikely to have had a substantial impact on the verdict of the jury and was,
therefore, harmless. See United States v. Docampo, 573 F.3d 1091, 1097 (11th Cir. 2009) (“The
admission of hearsay alone does not mandate a reversal of conviction: to require a new trial a
significant possibility must exist that, considering the other evidence presented by both the
prosecution and the defense, the statement had a substantial impact upon the verdict of the jury.”

25
 The government’s efforts to demonstrate compliance with the Rule 803(5)’s

prerequisites were lackluster, at best. However, we review application of the

Federal Rules of Evidence for abuse of discretion. “In applying this standard, we

will affirm a district court’s evidentiary ruling unless the district court has made a

clear error of judgment or has applied an incorrect legal standard.” Conroy v.

Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004) (citation

and internal quotation marks omitted). We conclude that on the facts presented

here, admission of the video as past recollection recorded was not a clear error of

judgment on the part of the district judge.

B.

Mr. Jones contends that admission of Ms. Bigham’s videotaped statement

violated his rights under the Confrontation Clause. However, this argument does

not withstand scrutiny. The Supreme Court has emphasized that “a primary interest

secured by [the Confrontation Clause] is the right of cross-examination.” Douglas

v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965). However, the Sixth

Amendment “guarantees only an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to whatever extent, the

(citation, internal quotation marks, and internal alterations omitted)).

26
defense might wish.” Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658,

2664 (1987) (citation and internal quotation marks omitted). “Ordinarily a witness

is regarded as ‘subject to cross-examination’ when he is placed on the stand, under

oath, and responds willingly to questions.” United States v. Owens, 484 U.S. 554,

556, 561, 108 S. Ct. 838, 841, 844 (1988) (holding that a victim-witness was

subject to cross-examination even where he had been beaten so badly that he could

not remember seeing his assailant; the identity of numerous guests he had received

while in the hospital; or if any of the guests had suggested that he identify the

defendant as his assailant).

In this case, Ms. Bigham was present at trial and subject to unrestricted

cross-examination. Ms. Bigham answered Mr. Jones’s questions while under oath

and before a jury. The jury was able to evaluate the credibility of her testimony as

well as her statements on the video. Therefore, admitting the video did not violate

Mr. Jones’s Sixth Amendment right to confront witnesses against him. See id. at

560, 108 S. Ct. at 843 (noting that neither indicia of reliability nor particularized

guarantees of trustworthiness are called for “when a hearsay declarant is present at

trial and subject to unrestricted cross-examination. . . [because] the traditional

27
protections of the oath, cross-examination, and opportunity for the jury to observe

the witness’ demeanor satisfy the constitutional requirements.” (citations omitted)).

C.

Finally, allowing the video of Ms. Bigham’s statement to be played a second

time for the jury does not warrant reversal. Rule 803(5) explicitly states that “[i]f

admitted, the memorandum or record may be read into evidence but may not itself

be received as an exhibit unless offered by an adverse party.” Fed. R. Evid. 803(5).

On the first day of deliberation, the jury submitted a note asking to again watch Ms.

Bigham’s interrogation video. The following day, the district court permitted a

second viewing. The district court denied Mr. Jones’s request that Ms. Bigham’s

cross-examination be read to the jury as well.

Mr. Jones argues that by watching the video for a second time during

deliberation, the jury essentially received the video as an evidentiary exhibit, in

direct contravention of Rule 803(5). Furthermore, he maintains that because no

cross examination testimony was heard, the district court also deprived him of his

Sixth Amendment rights.

We will assume, for the purposes of this discussion, that the district court

committed both constitutional and non-constitutional errors in playing the video to

28
the jury again during their deliberation. Even assuming these errors, however, they

are harmless.

Insofar as Mr. Jones alleges that the second showing of the video deprived

him of protections afforded by the Sixth Amendment, these “violations are subject

to the harmless error standard.” United States v. Edwards, 211 F.3d 1355, 1359

(11th Cir. 2000). Under this standard, the “inquiry is whether, assuming that the

damaging potential of the cross-examination were fully realized, a reviewing court

might nonetheless say that the error was harmless beyond a reasonable doubt.”

Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986). This

test is more demanding than that applied to non-constitutional violations. As we

have noted:

non-constitutional error is harmless if, viewing the proceedings in
their entirety, a court determines that the error did not affect the
verdict, or had but very slight effect. If one can say with fair
assurance that the judgment was not substantially swayed by the error,
judgment is due to be affirmed even though there was error.

United States v. Hornaday, 392 F.3d 1306, 1315–16 (11th Cir. 2004) (citations,

internal quotation marks, and alterations omitted).

Though Ms. Bigham’s testimony was important to the government’s case,

the second presentation of the video provided only cumulative evidence. The jury

29
watched the entire filmed interview during trial. Also, while Mr. Seabrook’s

testimony may have been contradictory, he did corroborate Ms. Bigham’s interview

as to the key elements of Counts One and Two—that Mr. Jones possessed a .38

revolver and shot a man with .38 caliber ammunition. Given this additional

evidence, even absent a second viewing of the video, the government’s case against

Mr. Jones was strong. The record also demonstrates that the district court’s refusal

to read Ms. Bigham’s cross-examination testimony did not affect the outcome of

the case. Forty minutes after the second viewing, the jury sent the judge a note

stating that “[t]he video did not change any positions.”

For these reasons, even assuming a Confrontation Clause violation, we

conclude that any error that did occur was harmless beyond a reasonable doubt.

Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438. Insofar as playing the video

during jury deliberation violated the terms of Rule 803(5), this non-constitutional

error was similarly harmless. In light of all the evidence available to the jury, “we

can ‘say, with fair assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was not substantially

swayed by [a second playing of the video],’ and therefore ‘substantial rights were

30
not affected.’” Hornaday, 392 F.3d at 1316 (quoting Kotteakos v. United States,

328 U.S. 750, 765, 66 S. Ct. 1239, 1248 (1946)).

Neither the district court’s admission of Ms. Bigham’s videotaped interview

nor the second playing of the video during jury deliberation warrants reversal of

Mr. Jones’s convictions for Counts One and Two.

VI.

Mr. Jones also argues that because the government failed to comply with the

requirements of the Jencks Act and Brady, he is entitled to a new trial, in which

Mr. Seabrook would be barred from testifying.7

Shortly before trial, the government filed an “Ex Parte Notice (Filed Under

Seal) of Nondisclosure of Certain Witness Statements.” The government sought

not to disclose certain letters and other information provided by cooperating

witnesses—fellow prison inmates—who were afraid of Mr. Jones because they

believed him to be a member of a gang active in prison. The district court granted

the government’s request to file the statements and materials ex parte and under

seal.

7
Mr. Jones makes two passing references to the Confrontation Clause but offers no
argument on that issue. For that reason, we need not address whether in this case nondisclosure
of certain evidence violates the Confrontation Clause. See Doe v. Moore, 410 F.3d 1337, 1349
n.10 (11th Cir. 2005).

31
 Among the documents attached to the government’s ex parte notice were

descriptions of witness interviews and letters—written by Mr. Seabrook and other

inmates—offering testimony against Mr. Jones. Included among these was a

handwritten letter dated December 25, 2007, and signed by Mr. Seabrook (the

“December 25 letter”). In it, Mr. Seabrook offered “valuable information that [he]

believe[d] could help [the government’s] case tremendously.” The letter provided

no detail about this information, except that Mr. Jones told Mr. Seabrook and four

other inmates “what [Mr. Jones] [did] with the gun.” The letter also indicated that

“each [of the four] was familiar with . . . [R]ule 35.” At the bottom of the page, Mr.

Seabrook listed the names and register numbers of the four other inmates, one of

which was Eddie F. Jackson (“Mr. Jackson”).

Another handwritten letter, dated December 26, 2007 (the “December 26

letter”), was substantively identical to the December 25 letter. Minor discrepancies

between the two included spelling and punctuation errors; use of the word

“inmates” instead of “individuals” or “guys”; and use of “papers” instead of “mail.”

Additionally, the December 25 letter had no address blocks, but the December 26

letter featured the prosecutor’s address and Mr. Seabrook’s return address at the top

of the page. The two letters were written in very different handwriting, and

32
whereas the December 25 letter closed with Mr. Seabrook’s signature and the

names of the four other inmates, the December 26 letter was unsigned and listed

only Mr. Jackson’s name at the bottom of the page. Review of the record also

reveals an envelope written in the same handwriting as the December 26 letter and

bearing Mr. Jackson’s return address as well as a December 26 postmark.

On September 16, 2008, two months after the conclusion of the trial, the

government unsealed documents not yet disclosed to Mr. Jones. The government

concedes that it never disclosed the December 26 letter, but the parties hotly

contest whether the December 25 letter was among those documents handed over

to Mr. Jones at the beginning of Mr. Seabrook’s trial testimony. On December 2,

2008, Mr. Jones filed a Motion for a New Trial.

The district court denied Mr. Jones’s motion, finding no violation of the

Jencks Act. The district court noted that the parties disputed certain information

related to the December 26 letter. Mr. Jones contended that Mr. Seabrook wrote

the letter. The government argued that the December 26 letter was actually

authored by an inmate other than Mr. Seabrook and, in any event, was a mere copy

of the December 25 letter. The district court adopted the government’s position,

finding that Mr. Seabrook wrote the December 25 letter and that the December 26

33
letter was a mere copy. The district court also found that the government produced

the December 25 letter to Mr. Jones in advance of the trial, on July 1, 2008. For

these reasons, the district court held that the government had not violated the

Jencks Act.

A.

Findings of fact are reviewed for clear error. See United States v. Williams,

875 F.2d 846, 853 (11th Cir. 1989). When it denied Mr. Jones’s Motion for a New

Trial, the district court found that the government had disclosed the December 25

letter approximately one week before trial. However, the government concedes on

appeal that on July 1 it disclosed this letter only to the district court and not Mr.

Jones. Thus, the district court clearly erred in finding that the December 25 letter

had been timely disclosed to Mr. Jones. Therefore, we will evaluate Mr. Jones’s

Brady and Jencks Act objections as though the December 25 letter was not

produced at the time Mr. Seabrook took the stand.

B.

We review a district court’s Jencks Act findings for clear error. Williams,

875 F.2d at 853. “The harmless error doctrine is applicable to Jencks Act

violations, but it must be strictly applied.” United States v. Beasley, 2 F.3d 1551,

34
1557 (11th Cir. 1993). Nondisclosure of inculpatory statements that are wholly

consistent with the witnesses’ testimony amounts to harmless error. Id. at 1557 &

n.10.

We review de novo alleged Brady violations. United States v. Schlei, 122

F.3d 944, 989 (11th Cir. 1997). In order to establish a Brady violation, the

defendant must demonstrate, among other things, “that had the evidence been

revealed to the defense, there is a reasonable probability that the outcome of the

proceedings would have been different.” United States v. Newton, 44 F.3d 913,

918 (11th Cir. 1995).

Nondisclosure of the letters was harmless for both Jencks Act and Brady

purposes. Because the letters were inculpatory, the only purpose they could serve

for Mr. Jones was for impeaching Mr. Seabrook. Mr. Jones argues that the letter

might have helped demonstrate that Mr. Seabrook learned of the facts of the case

not through a jailhouse confession, but by going through Mr. Jones’s legal

documents. On cross-examination, Mr. Jones explored this theory. Mr. Seabrook

testified that Mr. Jones kept all his legal documents in a locked locker and that Mr.

Seabrook only saw those that Mr. Jones voluntarily showed him. This testimony is

wholly consistent with the letters’ contents.

35
 Neither would the letters have provided additional leverage for Mr. Jones

when addressing Mr. Seabrook’s motivations for testifying. At trial, Mr. Seabrook

suggested that he cooperated with the government, at least in part, because his plea

agreement obligated him to do so. However, even without the letters, Mr. Jones

impeached Mr. Seabrook by eliciting testimony that he was also motivated by a

potential sentence reduction. Indeed, Mr. Jones’s very first question to Mr.

Seabrook inquired into his motive for testifying, and Mr. Seabrook conceded that

he cooperated with the prosecutors in the hopes that the government would reduce

his sentence. Because there is no contradiction between Mr. Seabrook’s testimony

and the letters, they were of minimal impeachment value and their nondisclosure

was harmless.

The jury knew that Mr. Seabrook was in jail at the time he testified and that

he was a government informant. He admitted that he was testifying against Mr.

Jones in the hopes that the government would reduce his sentence. We conclude

that any additional impeachment value that Mr. Jones might have derived from the

letters would have been minimal. Nondisclosure was, therefore, harmless.

36
 VII.

On appeal, Mr. Jones challenges the sufficiency of the evidence against him.

This Court reviews a defendant’s challenge to the sufficiency of the evidence de

novo. United States v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998). “[W]e must

decide whether the evidence, examined in a light most favorable to the

Government, was sufficient to support the jury’s conclusion that the defendant was

guilty beyond a reasonable doubt. All credibility choices must be made in support

of the jury’s verdict.” United States v. Williams, 390 F.3d 1319, 1323 (11th Cir.

2004) (citations and internal quotation marks omitted).

We conclude that there is ample evidence to support convictions on Counts

One and Two. Ms. Bigham described Mr. Jones’s participation in the June 1

assault on Mr. Buskirk. Under the test adopted by this circuit, her description of

the incident was not incredible as a matter of law: the physical evidence does not

directly contravene Ms. Bigham’s description. See United States v. Calderon, 127

F.3d 1314, 1325 (11th Cir. 1997). At trial, a forensic expert testified that he

observed three damaged vehicles several blocks behind the spot where Ms. Bigham

said Mr. Jones stood on June 1. However, the expert did not know if the damage

was related to the Buskirk assault, nor did he find bullets near the vehicles.

37
Furthermore, Ms. Bigham’s story was corroborated by the testimony of Mr.

Seabrook. The jury also heard Detective Von Lowenfeldt detail how Ms. Bigham

led him to Mr. Buskirk’s residence and accurately described it as the scene of the

assault.

Credibility decisions are the exclusive province of the jury. Calderon, 127

F.3d at 1325. Taking the evidence in the light most favorable to the prosecution, a

panel of reasonable jurors could have found that Mr. Jones knowingly possessed a

.38 revolver and .38 special ammunition on June 1, 2004. There is, therefore,

sufficient evidence to support convictions on Counts One and Two, which we

affirm.

The district court considered Mr. Jones’s convictions together for the

purposes of sentencing. Because we reverse Mr. Jones’s convictions on Counts

Three and Four, we now vacate his sentences and remand for resentencing on

Counts One and Two.

VIII.

For the reasons stated, we AFFIRM Mr. Jones’s convictions on Counts One

and Two and REVERSE his convictions on Counts Three and Four. Mr. Jones’s

sentence on all counts is VACATED. We REMAND the case to the district court

38
with instructions to DISMISS Counts Three and Four WITHOUT PREJUDICE

and to resentence Mr. Jones on Counts One and Two.

39