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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14802
Non-Argument Calendar
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D.C. Docket No. 3:19-cr-00034-RV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAYSTON DARNELL FAILS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(September 16, 2020)
Before WILSON, JILL PRYOR, and BRASHER, Circuit Judges.
PER CURIAM:
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Jayston Fails appeals his convictions for possession of a firearm and
ammunition by a felon, possession of five grams or more of methamphetamine
with intent to distribute, and possession of a firearm in furtherance of a drug-
trafficking crime. Fails argues that the district court abused its discretion by
admitting evidence of his prior possession of a gun under Federal Rule of Evidence
404(b). He also challenges the district court’s limiting instruction about that
evidence. And he claims that his trial counsel rendered ineffective assistance. We
affirm.
I.
We review the district court’s decision to admit evidence for abuse of
discretion. United States v. McGregor, 960 F.3d 1319, 1323 (11th Cir. 2020). We
give the district court considerable leeway on evidentiary issues, and we will not
reverse a district court’s evidentiary decision absent manifest error. Id. We need
not reverse based on an erroneous evidentiary ruling if the error was harmless.
United States v. Langford, 647 F.3d 1309, 1323 (11th Cir. 2011). And we may
affirm for any reason supported by the record. United States v. Castillo, 899 F.3d
1208, 1215 (11th Cir. 2018), cert. denied, 139 S. Ct. 796 (2019).
Evidence of uncharged, criminal activities is generally considered
inadmissible, extrinsic evidence under Rule 404. See Fed. R. Evid. 404(b)(1)
(prohibiting the admission of evidence of prior bad acts to prove a person’s
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character to show that on a particular occasion the person acted in accordance with
that character). But “this evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2); see United
States v. Hano, 922 F.3d 1272, 1291 (11th Cir. 2019) (explaining that Rule 404(b)
is an inclusive rule which allows extrinsic evidence unless its only purpose is to
prove criminal propensity), cert. denied, 140 S. Ct. 488 (2019).
“To be admissible under Rule 404(b)(2), a prior act (1) must be relevant to
an issue other than [the] defendant’s character; (2) must be sufficiently proven to
permit a jury determination that the defendant committed that act; (3) must have
probative value that is not substantially outweighed by undue prejudice; and
(4) must otherwise satisfy Federal Rule of Evidence 403.” United States v. Nerey,
877 F.3d 956, 974 (11th Cir. 2017). Extrinsic evidence of other crimes or acts is
inherently prejudicial because it “may entice the jury to draw the prohibited
inference” that a defendant likely committed the same crime or act again. United
States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013). That said, a limiting
instruction may mitigate unfair prejudice caused by the admission of a prior bad
act. See United States v. Edouard, 485 F.3d 1324, 1346 (11th Cir. 2007).
A district court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of unfair prejudice. Fed. R. Evid. 403. But
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“Rule 403 is an extraordinary remedy that must be used sparingly because it results
in the exclusion of concededly probative evidence, and the balance should be
struck in favor of admissibility.” United States v. Dixon, 901 F.3d 1322, 1345
(11th Cir. 2018) (citations and internal quotation marks omitted), cert. denied sub
nom. Portela v. United States, 139 S. Ct. 854 (2019), and cert. denied sub nom.
Chacon v. United States, 139 S. Ct. 1392 (2019).
We review the legal correctness of a jury instruction de novo, but questions
of phrasing are reviewed for an abuse of discretion. United States v. Cooper,
926 F.3d 718, 736 (11th Cir. 2019), cert. denied, 140 S. Ct. 613 (2019). The
district court has broad discretion to formulate its jury instructions as long as “the
charge as a whole accurately reflects the law and the facts.” United States v.
Williams, 526 F.3d 1312, 1320 (11th Cir. 2008) (per curiam). Jury instructions are
subject to harmless error review, meaning we will not reverse if we are satisfied
beyond a reasonable doubt that an erroneous instruction did not affect the verdict.
United States v. House, 684 F.3d 1173, 1196–97 (11th Cir. 2012). So if a jury
instruction accurately states the applicable law, “there is no reason for reversal
even though isolated clauses may, in fact, be confusing, technically imperfect, or
otherwise subject to criticism.” United States v. Gonzalez, 834 F.3d 1206, 1222
(11th Cir. 2016).
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When a party does not properly object to a jury instruction before the district
court, we review the instruction for plain error. See Fed. R. Crim. P. 30(d), 52(b);
United States v. Felts, 579 F.3d 1341, 1343 (11th Cir. 2009) (per curiam). Under
plain error review, we may provide relief only if the defendant shows that (1) an
error occurred; (2) it was plain; (3) it affected substantial rights; and (4) “the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Vereen, 920 F.3d 1300, 1312 (11th Cir. 2019), cert.
denied, 140 S. Ct. 1273 (2020).
Here, the district court did not abuse its discretion by admitting photographic
evidence of Fails’s possession of a similar gun under Rule 404(b). First, the
evidence was relevant under Rule 404(b)(2). The photographs showed Fails with a
gun in his waistband that appeared to be similar in make and model to the gun
from the present offense. This evidence was probative of whether the gun
recovered from Fails’s car was there by accident or coincidence, and thus it was
relevant to prove a lack of mistake or accident. See Fed. R. Evid. 404(b)(2);
Nerey, 877 F.3d at 974. What’s more, the video from which the photographs were
taken was not too remote to have probative value because there was less than a
two-year span between its recording and the offenses of conviction. See Sterling,
738 F.3d at 238 (holding that a prior act “need not be very recent” to be probative);
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Edouard, 485 F.3d at 1345–46 (holding that a two-year span did not render the
extrinsic evidence too remote for proper consideration).
Second, the evidence could permit a jury determination that Fails committed
the act portrayed in the photographs. There is no question that the photographs
came from a music video that Fails made, and that the video was found on a hard
drive that belonged to him. Although the testimony was not definitive about
whether the gun in the video was real, Fails chose not to play the entire video for
the jury to support his argument that the gun was a prop when the district court
gave him the opportunity to do so. And he made the strategic choice not to testify
that the gun in the video was a prop. See Currier v. Virginia, 138 S. Ct. 2144,
2152 (2018) (holding that a defendant’s strategic choice about whether to testify is
“not the same as no choice, and the Constitution does not forbid requiring a litigant
to make [it]” (citation, ellipsis, and internal quotation marks omitted)). Thus,
sufficient evidence existed for a reasonable jury to conclude that Fails possessed a
gun two years before the present offense.
Next, the photographs’ probative value in showing the lack of mistake or
accident was not substantially outweighed by undue prejudice, and the evidence
otherwise satisfies Rule 403. The district court mitigated any prejudice by
providing a limiting instruction when the photographs were introduced and again at
the close of the trial to explain how the jury could consider the evidence. See
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Edouard, 485 F.3d at 1346. To the extent Fails argues that the district court gave
an improper jury instruction, Fails did not properly object to the substance of the
district court’s limiting instruction either time it was given, and we thus review the
jury instruction only for plain error. See Felts, 579 F.3d at 1343. Because the
limiting instruction accurately stated the law and mitigated the photographs’
prejudicial effect, the district court did not plainly err. And the government’s delay
in informing Fails that it intended to introduce the photographs did not create
unfair prejudice. Although the government did not initially inform Fails that it
planned to use the evidence from the video at trial, it ultimately did so before trial.
See Fed. R. Evid. 404(b)(2) (stating that a prosecutor must, before trial, provide a
defendant reasonable notice of the nature of the Rule 404 evidence that the
prosecutor intends to introduce at trial).
Finally, even if the district court erred in admitting the Rule 404(b) or in
giving the related jury instruction, those errors were harmless. The police
recovered a loaded gun, three cell phones, and multiple bags of marijuana, cocaine,
and methamphetamine from the car. In a post-Miranda 1 statement, Fails took
responsibility for everything in the car. Multiple phones belonging to Fails
contained text messages with references to narcotic distribution, and Fails
stipulated that he knew he was a felon at the time of the offenses of conviction.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Therefore, given the substantial evidence of guilt, we are satisfied beyond a
reasonable doubt that admission of the Rule 404(b) evidence and the related jury
instruction did not affect the verdict.
II.
Whether a criminal defendant’s counsel was ineffective is a mixed question
of law and fact that we review de novo. United States v. Bender, 290 F.3d 1279,
1284 (11th Cir. 2002). We generally will not consider claims of ineffective
assistance of counsel raised on direct appeal “where the district court did not
entertain the claim nor develop a factual record.” Id. Even if the record includes
some indication that an attorney’s performance was deficient, a 28 U.S.C. § 2255
motion is the preferred means for deciding an ineffective-assistance-of-counsel
claim. United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010); see
Massaro v. United States, 538 U.S. 500, 509 (2003) (holding that failure to raise an
ineffective-assistance-of-counsel claim on direct appeal does not bar a defendant
from bringing the claim in a collateral proceeding under § 2255). We will consider
an ineffective-assistance claim on direct appeal only where the record is
sufficiently developed. See Bender, 290 F.3d at 1284.
We decline to review Fails’s ineffective-assistance-of-counsel claims.
Although some of his ineffective-assistance claims were raised in a motion for a
new trial and addressed by the district court, Fails’s motion was unsworn, counsel
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filed no affidavits supporting the motion, and the district court held no hearing on
the motion. And Fails raises additional ineffective-assistance claims for the first
time on appeal. For those reasons, the parties agree that the district court record is
insufficiently developed for proper consideration of Fails’s ineffective-assistance
claims. So we will not address them today. Fails may file a § 2255 motion to
address all of his ineffective-assistance-of-counsel claims in a collateral
proceeding.
AFFIRMED.
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