[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12527 AUG 26, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 6:09-mc-00029-ACC-GJK
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff–Appellee,
versus
DANIEL E. KOWALLEK,
lllllllllllllllllllll Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 26, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
After a trial before a magistrate judge, Daniel E. Kowallek was convicted of
engaging in disorderly conduct in a national park in violation of 36 C.F.R.
§ 2.34(a)(2). Kowallek appealed his conviction to the district court, which
affirmed. Kowallek, who represented himself at trial and is proceeding pro se on
appeal as well, appeals once more and asks that we overturn his conviction for
three separate reasons.1
First, Kowallek argues that the citation he was issued does not sufficiently
apprise him of the charges against him. Second, he argues that the government
violated Federal Rule of Criminal Procedure 26.2 by failing to disclose a pre-trial
statement made by the only witness against him. And last, Kowallek challenges
the sufficiency of the evidence used to obtain his conviction. Because we
conclude that Kowallek had sufficient notice of the charges against him, that any
violation of Rule 26.2 was harmless, and that the government presented sufficient
evidence to obtain a conviction, we affirm.
On November 8, 2008, Kowallek was cited for committing obscene acts and
engaging in disorderly conduct at Playalinda Beach at the Canaveral National
Seashore. The citation listed the date, time, and place of the offense, the
regulation that Kowallek allegedly violated, and also included a brief description
of the disorderly conduct that tracked the regulation’s language. In February
1
Because Kowallek is proceeding pro se, we read his briefs liberally. McBride v.
Sharpe, 25 F.3d 962, 971 (11th Cir. 1994).
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2009, Kowallek made his initial appearance before the magistrate judge and the
charges against him were explained in greater detail than they were in the citation.
Kowallek now argues that the citation deprived him of due process because its
generic information prevented him from preparing a defense.
Federal Rule of Criminal Procedure 58 allows for a petty offense, like the
one Kowallek was charged with, to proceed to trial based on a violation notice or
citation. Fed. R. Crim. P. 58(b)(1). Rule 58 contemplates that the charging
document for a petty offense need not be as formal or require as much as an
indictment or information would. But the rule also contains additional safeguards
to ensure that a defendant receives due process. Specifically, a defendant must be
informed of the charges against him at his initial appearance before a magistrate
judge. Id. (b)(2). In reviewing the sufficiency of an indictment, we have said
“even an inadequate indictment satisfies due process if the defendant has actual
notice [of the charges against him], such that [he] suffers no prejudice.” United
States v. Odom, 252 F.3d 1289, 1298 (11th Cir. 2001).
Here, we conclude that because Kowallek was informed of the charges
against him at his initial appearance, including the factual allegations against him,
he suffered no prejudice and thus due process was satisfied. And although
Kowallek argues that the citation should have contained a description of the exact
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location where the offense was alleged to have occurred, we conclude that the
citation was sufficient. We have held previously that an indictment that alleges
that an offense took place in a specific judicial district is sufficient to put a
defendant on notice of where a crime was committed. See United States v. Steele,
178 F.3d 1230, 1234 n.1 (11th Cir. 1999). The offense that Kowallek was charged
with required the offense to have taken place within a national park. 36 C.F.R. §
2.34(b). The citation alleged that Kowallek violated the regulation at Playalinda
Beach at the Canaveral National Seashore, somewhere north of mile marker 13.
Whether the offense took place somewhere to the north or the south of mile
marker 13 is immaterial, so long as it was committed at the Canaveral National
Seashore. No greater specificity was required.
Kowallek also argues that the government violated Rule 26.2 by not
producing the probable cause statement made by the only witness against him.
Rule 26.2 requires the government to produce a witness’s pre-trial statement
relevant to that witness’s testimony after that witness has testified on direct
examination upon motion by the defendant. Kowallek did not move for the
statement’s production immediately after the government’s witness testified on
direct examination. It was only after the government showed the statement to
Kowallek while it was cross-examining him, that he did. The magistrate judge
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said that Kowallek could have a copy of the statement. But the government did
not have an extra copy, and mistakenly responded that the document was on the
docket. Additionally, the district court did not grant a recess for Kowallek to
examine the statement but instead proceeded to closing arguments. But even
assuming that the government did not produce the statement, the error was
harmless. United States v. Jones, 601 F.3d 1247, 1266 (11th Cir. 2010). Although
Kowallek contends that the statement differs from the witness’s testimony, after
reviewing both, we are not persuaded that is so. The witness’s statement says that
he saw two men seated approximately 15 and 25 feet to the south of Kowallek. At
trial, the witness testified that he saw one man seated 25 feet to south, and then he
saw another man to his (the witness’s) left who was about 15 feet from the
defendant. Although it might be ambiguous, that statement does not contradict the
witness’s statement and thus it would not have had any impeachment value.
Because the statement and the testimony did not differ, any error from its non-
production was harmless.
We now address whether the government presented sufficient evidence to
obtain a conviction, which is a legal question that we review de novo. United
States v. Pruitt, 638 F.3d 763, 765 (11th Cir. 2011). We view the evidence in the
light most favorable to the government and ask whether it would permit the
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magistrate judge to have found the defendant guilty beyond a reasonable doubt.
United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). We do not
generally reevaluate credibility determinations or pass upon the weight of the
evidence. Id. Only if we have a definite and firm conviction that the magistrate
judge’s conclusions about a witness’s credibility were wrong, will we disturb
them. United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997). And
should a defendant testify in his own defense, a fact finder may disbelieve the
defendant’s statement and consider it as substantive evidence of guilt. United
States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004).
Although the government’s witness was unable to recall the conditions at
the beach or how many people were at the beach on November 8, 2008, he did
testify that he watched Kowallek engage in disorderly conduct on the beach that
day. And a witness’s capacity to remember events is only one factor in evaluating
testimony. United States v. Lopez, 985 F.2d 520, 524 (11th Cir. 1993). In
addition, the magistrate judge was free to disbelieve Kowallek’s own testimony
and take it as evidence of his guilt. Accordingly, we conclude that sufficient
evidence supports Kowallek’s conviction.
AFFIRMED.
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