United States v. Jernigan

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 00-16199 AUGUST 15, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00003-CR-WDO-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RANDY JERNIGAN,
WENDELL NELSON,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Middle District of Georgia
_________________________
(August 15, 2003)

Before BIRCH and MARCUS, Circuit Judges, and FULLAM *, District Judge.

MARCUS, Circuit Judge:

*
Honorable John P. Fullam, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
 These direct criminal appeals stem from the November 7, 2000 convictions of

appellants Randy Jernigan and Wendell Nelson, each on one count of being a felon

in possession a firearm, in violation of 18 U.S.C. § 922(g). Although appellants were

tried together, their claims on appeal are largely distinct, with only one substantive

claim being advanced by both Jernigan and Nelson. In the end, we conclude that no

claim advanced by either appellant is meritorious, and accordingly we affirm their

convictions in all respects.

I

On April 15, 1998, Jernigan was driving a type of tow truck known as a

“wrecker” with Nelson riding in the passenger seat when the vehicle was pulled over

by police in Macon, Georgia for having an expired license plate tag. Officers

questioned Jernigan, quickly learned that he was driving with a suspended drivers’

license, and arrested him. Although Jernigan initially gave the officers a false name,

they found a driver’s license bearing his picture and true name. After running a

background check, the officers learned that Jernigan was a convicted felon. Incident

to this arrest, the officers searched the vehicle, which, instead of individual bucket

seats, had a single padded bench with a cushioned back support that traversed the

width of the truck’s cab. Stuffed between the back of the seat and the bench the

2
officers found a loaded .380 semi-automatic pistol wrapped in a red bandanna.1 Upon

discovering this weapon the officers showed it to Nelson, who spontaneously

exclaimed that he was on probation and that the weapon was not his. The officers

took Nelson into custody as well.

Once they had returned to the station, the officers again questioned Nelson

about the gun. He reiterated that it was not his, and explained that Jernigan, upon

realizing that he was being pulled over, had removed the gun from his pants, wrapped

it in a red bandana and placed it between the seat and the backing where it was

subsequently found. Nelson also repeated his statement that he was on probation.

Indeed, on October 15, 1994, Nelson shot another person from inside a car, which led

to an April 7, 1995 aggravated assault conviction in the Superior Court of Bibb

County, Georgia. Subsequently, on November 5, 1996, he was convicted in the same

court of possession of a firearm by a convicted felon. This latter conviction stemmed

from an August 20, 1996 incident in which Nelson was a passenger in a car that was

stopped by Macon police officers for traffic violations. When the vehicle was

searched, officers found a shotgun on the floorboard of the back and two handguns

under the front seat, as well as cocaine.

1
One of the arresting officers specifically described the pistol as being “stuck down within
the seat . . . it was stuck completely through the seat and you could just see a bulge.”

3
 Jernigan also was a convicted felon, and as such was legally barred from

possessing a firearm. Specifically, he had been found guilty on February 22, 1985 of

violating Georgia’s Controlled Substance Act. Subsequently, on June 19, 1997,

Jernigan was convicted of being a felon in possession of a firearm in the Superior

Court of Monroe County, Georgia. In that case, Jernigan had been stopped at a

sobriety checkpoint when a Sheriff’s deputy spotted a loaded Smith and Wesson

semi-automatic pistol tucked into the seat. Although he gave the deputy a false name,

Jernigan’s true identity was quickly revealed, as was his status as a felon, and he was

arrested.

After a delay of approximately one year and nine months following their initial

arrest (and their subsequent release), Jernigan and Nelson both were charged in this

case with being felons in possession of a firearm, in violation of 18 U.S.C. § 922(g),

and were arraigned on March 29, 2000. On April 21, 2000, the government notified

Jernigan and Nelson that it intended to introduce evidence of their prior bad acts

pursuant to Fed. R. Evid. 404(b), and on April 28, 2000 Nelson filed a motion in

limine to preclude the admission of such evidence. Then, on September 20, 2000,

Nelson moved to dismiss the indictment based on an alleged violation of the Speedy

Trial Act, 18 U.S.C. § 3161. The district court denied this motion, and the case

proceeded to trial on November 6, 2000.

4
 At trial, pursuant to a stipulation among both defendants and the government,

tapes of Nelson’s two statements inculpating Jernigan, i.e., his spontaneous

exclamation when first showed the weapon and his subsequent, formal statement at

the police station, were played for the jury. The government also introduced

Jernigan’s June 19, 1997 conviction for being a felon in possession of a firearm,

Nelson’s November 5, 1996 conviction for this same offense2 and Nelson’s April 7,

1995 aggravated assault conviction.3 Because these offenses all involved the

knowing possession of a firearm, the district court deemed them admissible under

Fed. R. Evid. 404(b) to establish appellants’ knowledge that the weapon was present

in the cab of Jernigan’s truck, and it charged the jury that no propensity inference

could be drawn from them. Although Jernigan objected to the presentation of this

“prior bad acts” evidence, Nelson did not.

In addition, the government introduced the testimony of Deputy Marshall Brad

Bennett, one of the officers who had arrested Jernigan on February 11, 2000 on a

warrant based on the indictment in this case. As noted, there was a lengthy delay

between appellants’ initial arrest and their indictment, and during this time Jernigan

2
The government did not, however, inform the jury that cocaine also was found in
connection with this offense.
3
The government did not, however, inform the jury that Nelson actually shot someone
during the incident from which this conviction stemmed, but merely told the jury that Nelson had
been convicted of a crime that involved the knowing possession of a firearm.

5
and Nelson were not in custody. Bennett told the jury that when he attempted to

recapture Jernigan following the indictment, he spotted Jernigan’s car leaving an

Atlanta apartment complex. Although Bennett tried to stop the vehicle, Jernigan fled

by backing the car the wrong way down a one-way street. Later that day Jernigan was

found sitting on the front stoop of his apartment with the front door partially open.

Incident to this arrest officers conducted a protective sweep of the apartment where

they found an unloaded semi-automatic rifle, which Jernigan admitted to owning,

and a 30-round magazine. Jernigan objected to the introduction of this evidence as

well.

For his part, Jernigan was permitted to introduce evidence that Nelson was a

member of the Bloods gang, and that this gang used the color red as a symbol of

membership. In allowing the presentation of this evidence, the district court rejected

Nelson’s objection that the evidence of his gang membership was more prejudicial

than probative of his guilt of the § 922(g) offense, and thus inadmissible under Fed.

R. Evid. 403. Jernigan also introduced the testimony of Roger Stembridge, a

probation surveillance officer who told the jury that an August 19, 1999 search of

Nelson’s residence -- the search having resulted from a probation violation -- yielded

.380 caliber ammunition, the same as in the instant case and pictures of Nelson and

other known gang members wearing the color red and flashing gang signs. This

6
testimony was corroborated by investigator Melanie Hoffman, who also testified that

it is common practice for gang members to wrap their weapons in their own

bandannas.

On November 7, 2000, the jury returned guilty verdicts against Jernigan and

Nelson. On February 5, 2001, Jernigan was sentenced to 240 months imprisonment

and Nelson was sentenced to 120 months imprisonment.

On February 1, 2001, Jernigan moved for a new trial based on what he deemed

newly discovered admissions made by Nelson to Michael West, a fellow inmate. By

West’s account, Nelson admitted that the weapon found in Jernigan’s truck belonged

to him, and that he had placed the gun behind the bench seat without Jernigan’s

knowledge. West said that Nelson had told him that he (Nelson) was helping to

convict an innocent man. West also stated that neither Jernigan nor defense counsel

was aware of Nelson’s admission until after the conclusion of the trial, when he wrote

a letter informing the district court of the same. The district court denied this motion

on August 1, 2001.

On appeal, Jernigan and Nelson both challenge their convictions on sufficiency

of the evidence grounds, arguing specifically that the government failed to present

evidence from which a reasonable juror could conclude that they knowingly

possessed a firearm and that the district court erred by denying a motion for a

7
judgment of acquittal on this basis. Additionally, Nelson contends that the district

court erred by (1) failing to dismiss the indictment in his case based on a Speedy Trial

Act violation; (2) admitting evidence of his past crimes under Fed. R. Evid. 404(b);

and (3) rejecting his challenge under Fed. R. Evid. 403 to the admission of evidence

regarding his gang membership. Jernigan, in turn, contends that the district court

erred by denying his motion for a new trial based on West’s testimony and by

admitting Nelson’s two hearsay statements that the gun belonged to Jernigan.4

II

A. Appellants’ Sufficiency of the Evidence Claims

Although our review of the sufficiency of the evidence against appellants is de

novo, see United States v. Anderson, 326 F.3d 1319, 1326 (11th Cir. 2003) (citation

omitted), in making this determination we “view the evidence ‘in the light most

favorable to the government, with all reasonable inferences and credibility choices

made in the government’s favor.’” United States v. Ortiz, 318 F.3d 1030, 1036 (11th

Cir. 2003) (quoting United States v. Miles, 290 F.3d 1341, 1355 (11th Cir. 2002)). In

the end, “[a] jury’s verdict will be affirmed ‘if a reasonable trier of fact could

conclude that the evidence establishes guilt beyond a reasonable doubt.’” Id.

4
We note that neither appellant advances any claim that they were prejudicially joined in
the same indictment or that they were wrongly tried together.

8
(quoting Miles, 290 F.3d at 1355). Moreover, as we have explained, we also “review

de novo the district court’s denial of a motion for judgment of acquittal, applying the

same standard used in reviewing the sufficiency of the evidence, meaning that we

view the facts and draw all inferences in the light most favorable to the Government.”

United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002) (citations omitted), cert.

denied __ U.S. __, 123 S. Ct. 913, 154 L. Ed. 2d 820 (2003).

In this case, Jernigan and Nelson were convicted of violating 18 U.S.C. §

922(g), an offense that entails three distinct elements: (1) that the defendant was a

convicted felon; (2) that the defendant was in knowing possession of a firearm; and

(3) that the firearm was in or affecting interstate commerce. See United States v.

Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000) (citing United States v. Billue,

994 F.2d 1562, 1565 n.2 (11th Cir. 1993)). Although neither appellant contests the

sufficiency of the evidence against him with respect to the first or third prong of this

test, both claim that the government failed to present evidence that could convince

a reasonable factfinder that he knowingly possessed the gun found in the cab of

Jernigan’s tow truck.

We disagree. Simply stated, there was ample evidence on which a reasonable

jury could have based a conclusion that Jernigan and Nelson knowingly possessed the

weapon found in the cab of Jernigan’s truck. As for Jernigan, the government

9
established that he was the owner and operator of the vehicle in which the gun was

found and that the pistol was hidden immediately next to the driver’s “area” of the

truck’s bench seat. Moreover, a reasonable juror could have afforded credence to

Nelson’s out-of-court statements implicating Jernigan. It would have been equally

reasonable to infer from the fact that Jernigan initially gave the arresting officers a

false name that he was attempting to conceal his identity as a felon to avoid a

prosecution for being a felon in possession of a firearm, and that this effort evidences

a consciousness that Jernigan in fact possessed the gun found in his truck.

Additionally, we have often noted the difficulty faced in establishing a defendant’s

state of mind. See, e.g., United States v. Manoocher Nostari-Shamloo, 255 F.3d

1290, 1292 (11th Cir.) (“A defendant’s intent is often difficult to prove and often must

be inferred from circumstantial evidence.”), cert. denied 534 U.S. 1030, 122 S. Ct.

566, 151 L. Ed. 2d 440 (2001); United States v. Pollock, 926 F.2d 1044, 1048 (11th

Cir. 1991) (“We previously have noted the special difficulty of proving intent in

conspiracy cases.”). Here, the jury could have inferred from all the circumstances

surrounding the initial stop, coupled with the fact that Jernigan previously and

subsequently had committed acts requiring the same state of mind -- i.e., those that

resulted in his June 19, 1997 conviction for being a felon in possession of a firearm

10
and his possession of weapons at the time of his February 11, 2000 arrest,5 just

shortly after he was indicted in this case for being a felon in possession of a firearm --

that Jernigan knowingly possessed the gun found in his truck.

As for Nelson, it was equally plausible for the jury to have concluded, based

on the evidence presented, that it was Nelson who stuffed the weapon behind the

bench seat, since he had just as much access to the area in question as did Jernigan.

Moreover and quite notably, the gun was wrapped in a red bandanna, which could

have convinced a reasonable juror that it belonged to Nelson, who, as stated, was a

member of a street gang that used the color red as a symbol of membership. In

addition, we have no doubt that a reasonable factfinder also could have concluded

that Nelson knowingly possessed the weapon found in the truck -- i.e., he did not

possess it by mistake or accident -- based on each of his prior convictions for

aggravated assault and being a felon in possession, both of which involved the

knowing possession of a weapon.

Thus, although a reasonable jury could have concluded that either Jernigan or

Nelson did not knowingly possess the gun found in Jernigan’s truck, the government

presented sufficient evidence to permit a reasonable trier of fact to conclude

5
As is more fully explained infra, the district court did not abuse its discretion or commit
plain error by admitting evidence of these bad acts under Fed. R. Evid. 404(b).

11
contrarily. The district court did not err in denying appellants’ motions for judgments

of acquittal.

B. Nelson’s Rule 404(b) Argument

Nelson also contends that the district court erred by admitting evidence of his

prior crimes under Fed. R. Evid. 404(b).6 At the outset, we note that Rule 404(b) is

a rule of inclusion, and that accordingly “404(b) evidence, like other relevant

evidence, should not lightly be excluded when it is central to the prosecution’s case.”

United States v. Perez-Tosta, 36 F.3d 1552, 1562 (11th Cir. 1994). Typically, in

reviewing a properly preserved claim that the district court abused its discretion by

admitting evidence of a defendant’s prior bad acts under Fed. R. Evid. 404(b), we

employ a three part test:

First, the evidence must be relevant to an issue other than the
defendant’s character. Second, as part of the relevance analysis, there

6
This rule provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, ... of the general nature of any such
evidence it intends to introduce at trial.

Fed. R. Evid. 404(b).

12
 must be sufficient proof so that a jury could find that the defendant
committed the extrinsic act. Third, the evidence must possess probative
value that is not substantially outweighed by its undue prejudice, and the
evidence must meet the other requirements of Rule 403.

United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc) (footnote and

internal citations omitted); see also United States v. Zapata, 139 F.3d 1355, 1357 (11th

Cir. 1998) (outlining the same test).

In this case, however, Nelson admits that he failed to object to this evidence

before the district court, and accordingly we review its admission not for abuse of

discretion but instead only for plain error. See United States v. Brazel, 102 F.3d

1120, 1151 (11th Cir. 1997) (“[T]he Rule 404(b) argument was not properly preserved

and thus is reviewed for plain error only.”); United States v. Williford, 764 F.2d

1493, 1502 (11th Cir. 1985) (“Evidentiary errors that are not specifically objected to

at trial are reviewed for plain error.”); Wilson v. Attaway, 757 F.2d 1227, 1242 (11th

Cir. 1985) (to preserve objections to admissibility of evidence, objections must state

specific grounds; otherwise, review is only for plain error). Under this standard,

“[w]e correct only for errors that are particularly egregious and that ‘seriously affect

the fairness, integrity or public reputation of judicial proceedings,’ and then only

when a miscarriage of justice would result.” Williford, 764 F.2d at 1502 (internal

citations and punctuation omitted); see also United States v. Gresham, 325 F.3d 1262,

13
1265 (11th Cir. 2003) (“Under the plain error standard, Gresham must show that: (1)

an error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4)

it seriously affected the fairness of the judicial proceedings.” (citing United States v.

Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999))).

In this case, to reiterate, the government introduced Nelson’s April 7, 1995,

conviction for aggravated assault and his November 5, 1996 conviction for being a

felon in possession of a firearm, both of which involved the knowing possession of

a firearm in a car. Under the first prong of the Miller test, these offenses plainly bore

on Nelson’s knowledge that the gun was present in this case. Indeed, the caselaw in

this and other circuits establishes clearly the logical connection between a convicted

felon’s knowing possession of a firearm at one time and his knowledge that a firearm

is present at a subsequent time (or, put differently, that his possession at the

subsequent time is not mistaken or accidental). As we said in United States v.

Gomez:

Appellant’s possession of a concealed firearm on a prior instance is relevant
to a charge of possession of a firearm in his car while he sought to transport
drugs. . . . Introduction of a prior conviction for carrying a concealed weapon
helped the government establish that Gomez was aware of the dangers of and
law relating to concealed weapons and rebut Gomez’s claim that the gun was
for an innocent purpose and its presence was mere accident or coincidence.
The district court did not abuse its discretion in allowing such evidence.

14
927 F.2d 1530, 1534 (11th Cir. 1991) (emphasis added); see also United States v.

Coleman, __ F.3d __ (3d Cir. 2003) (“Coleman put at issue during trial whether he

had knowledge of, and thus possessed, the shotgun and narcotics found in the

apartment in which he resided with Avery Coleman. The District Court admitted this

evidence not to permit the prosecution to show Coleman’s propensity to possess a

firearm or narcotics, but instead ‘as proof of . . . knowledge’ of their presence in the

apartment, a permissible purpose pursuant Rule 404(b).”); United States v. Cassell,

292 F.3d 788, 793 (D.C. Cir. 2002) (noting, in the context of a felon in possession

case, that “[w]e have previously held that ‘in cases where a defendant is charged with

unlawful possession of something, evidence that he possessed the same or similar

things at other times is often quite relevant to his knowledge and intent with regard

to the crime charged’” (quoting United States v. King, 254 F.3d 1098, 1100 (D.C. Cir.

2001))); United States v. Moorehead, 57 F.3d 875, 878 (9th Cir. 1995) (holding that

prior possession of a firearm is admissible to show knowledge in a prosecution for

knowingly possessing a similar weapon); United States v. Pelusio, 725 F.2d 161, 167-

68 (2d Cir. 1983) (holding that the introduction of evidence of previous instances in

which the defendant had been present in an automobile with a shotgun were

admissible “under Fed. Rules of Evid. 404(b)[] to show that his presence in the car

with the shotgun [on the occasion in question] was intentional and not a mistake or

15
accident”); United States v. Beechum, 582 F.2d 898, 913 (5th Cir. 1978) (en banc)

(“Once it is determined that the extrinsic offense requires the same intent as the

charged offense and that the jury could find that the defendant committed the

extrinsic offense, the evidence satisfies the first step under Rule 404(b).”).

Against this doctrinal background, it is untenable to say that Nelson’s previous,

knowing commission of crimes that involved the possession of a weapon -- and

specifically, the possession of a weapon in a car -- does not logically bear on his

knowledge of the presence of a gun at the time Jernigan’s car was pulled over.7 Put

simply, the fact that Nelson knowingly possessed a firearm in a car on a previous

occasion makes it more likely that he knowingly did so this time as well, and not

because of accident or mistake.

Importantly, because Nelson’s prior crimes plainly bore on his knowledge that

the gun was present in Jernigan’s truck, the district court could by no measure have

committed plain error by so concluding. Indeed, Nelson makes no showing that the

district court’s evidentiary ruling affected his substantial rights or that it somehow

affected the fairness or integrity of the judicial proceedings.

7
Significantly, by pleading not guilty, Nelson placed this element of the § 922(g) offense
in issue.

16
 The second Miller factor also is plainly satisfied, as “[i]t is elementary that a

conviction is sufficient proof that [the defendant] committed the prior act.” United

States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997) (citing United States v.

Arambula-Ruiz, 987 F.2d 599, 603 (9th Cir. 1993)). Here, the parties stipulated to

Nelson’s 1995 and 1996 convictions.

Finally, as we explained in Calderon, “[u]nder the third and final prong of our

inquiry, the probative value of the evidence must not be substantially outweighed by

unfair prejudice. . . . [T]his determination lies within the sound discretion of the

district judge and calls for a ‘common sense assessment of all the circumstances

surrounding the extrinsic offense,’ including prosecutorial need, overall similarity

between the extrinsic act and the charged offense, as well as temporal remoteness.”

127 F.3d at 1332 (quoting United States v. Beechum, 582 F.2d 898, 914-15 (5th Cir.

1978)) (emphasis in original). We emphasize again that our task in this case is not

to determine whether the evidence of Nelson’s other crimes was more unduly

prejudicial than probative. Instead, we ask only whether the district court committed

plain error in concluding that this calculus tips in favor of admissibility.

As in Calderon, where we held that the Rule 403 calculus favored

admissibility, in this case the other crimes evidence admitted by the district court

“bore sufficient similarity to uphold the district [court’s] relevance determination.”

17
As explained supra, both Nelson’s prior offenses and the instant offense involved the

knowing possession of a weapon in an automobile. Moreover, the time span between

Nelson’s prior convictions and the present offense does not render those convictions

“too remote for proper consideration.” 127 F.3d at 1332. Specifically, Nelson’s

convictions came 2 and 3 years prior to the instant offense, which is well within the

temporal bounds of relevance. See generally id. (holding that a six year span between

the prior offense and the charged conduct did not render the previous conviction too

remote to be relevant to the defendant’s intent in the case then at bar).

In addition, in this case the district court gave the jury two separate limiting

instructions regarding the impermissibility of considering Nelson’s previous

convictions as propensity evidence. See id. at 1333 (“[A]ny unfair prejudice that

may have existed was mitigated by the district judge’s limiting instruction.”). Equally

significantly, the district court was careful to preclude the admission of certain

especially prejudicial aspects of Nelson’s prior convictions, including that the 1995

aggravated assault conviction stemmed from the shooting of another person and that

cocaine was found along with the weapon that led to his 1996 felon in possession

conviction. Based on these considerations, we are satisfied that the district court did

not err, let alone plainly err, in concluding that the probative value of this evidence

18
was not substantially outweighed by its prejudicial impact. In short, the third prong

of the Miller test is satisfied here as well.

Although Jernigan has waived the Rule 404(b) claim that he properly preserved

at trial,8 we note briefly that his claim would have been no more persuasive than the

8
We do not believe that Jernigan can be fairly said to have appealed from the district
court’s Rule 404(b) ruling. Under our caselaw, a party seeking to raise a claim or issue on appeal
must plainly and prominently so indicate, i.e., in a section of his brief that is demarcated by a
boldface heading or by some equivalent notation. At the very least, he must devote a discrete,
substantial portion of his argumentation to that issue. Otherwise, the issue -- even if properly
preserved at trial -- will be considered abandoned. See Greenbriar, Ltd. v. City of Alabaster, 881
F.2d 1570, 1573 n.6 (11th Cir. 1989) (“Although Greenbriar refers to the district court’s dismissal
of its amendment in its Statement of the Case in its initial brief, it elaborates no arguments on the
merits as to this issue in its initial or reply brief. Accordingly, the issue is deemed waived.”);
Federal Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n.3 (11th Cir. 1987) (“[I]ssues that
clearly are not designated in the appellant’s brief normally are deemed abandoned.” (citing
Rogero v. Noone, 704 F.2d 518, 520 n.1 (11th Cir. 1983) and 9 Moore’s Federal Practice
228.02[2.-1], at 28-7 (2d ed. 1985))); Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1979)
(although raised in statement of issues, claim was deemed abandoned by appellant where it was
not addressed anywhere else in the brief).

In this case, Jernigan’s brief contains only four passing references to the evidence
admitted under Fed. R. Evid. 404(b), each of which is embedded under different topical
headings. First, he entitles one minor subsection within his statement of facts “[p]rior [b]ad
[a]cts of [a]ppellant.” Second, he mentions the prejudicial effect of this evidence in the last
sentence in his “summary of the argument” section. Third, he mentions “the propensity
evidence” in passing in the context of his third argument (alleging error in the denial of his
motion for a judgment of acquittal at the close of the government’s case). Finally, he concludes
that same argument by asserting that “all the Government had in this case was a gun, found in a
truck, and prior bad acts.” Under our controlling law, we do not believe Jernigan has devoted a
discrete section of his argument to claims regarding the evidence of his prior bad acts; instead,
each mention of this evidence is undertaken as background to the claims he does expressly
advance or is buried within those claims.

Our requirement that those claims an appellant wishes to have considered on appeal be
unambiguously demarcated stems from the obvious need to avoid confusion as to the issues that
are in play and those that are not. See Federal Sav. & Loan, 813 F.2d at 373 n.3 (“The waiver
rule requires that the appellant state and address argument to the issues the appellant desires to
have reviewed by this Court in the appellant’s initial brief because ‘[i]n preparing briefs and

19
one advanced by Nelson. Against Jernigan, the government introduced evidence of

(1) his June 19, 1997 conviction for possession of a firearm by a convicted felon; and

(2) his possession of several weapons at the time of his February 11, 2000 arrest in

this case. Both of these crimes involved the knowing possession of a weapon, and

as such they bear on his knowledge that a gun was present in his wrecker just as

Nelson’s prior convictions bore on Nelson’s knowledge of this fact. In this vein, we

note that the standard for evaluating the admissibility of a subsequent bad act under

Rule 404(b) is identical to that for determining whether a prior bad act should be

admitted under this Rule. See, e.g., United States v. Dorsey, 819 F.2d 1055, 1060-61

(11th Cir. 1987) (evaluating prior and subsequent bad acts under precisely the same

framework); United States v. Hurley, 755 F.2d 788, 790 (11th Cir. 1985) (“A

subsequent act, as well as a prior act, can be used to show intent under Rule 404(b).”).

Second, Jernigan does not contest that he committed these acts. Third, as

compared with Nelson’s 1995 and 1996 convictions, which we have concluded were

arguments, an appellee is entitled to rely on the content of an appellant’s brief for the scope of
the issues appealed.’” (quoting Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st
Cir.1983))). Unsurprisingly, the government does not address Jernigan’s Rule 404(b) argument
in its brief; instead, it comprehensively discusses the three arguments that are squarely raised and
extensively briefed by Jernigan. In our view, this omission is not the product of an oversight by
the government, but rather of the fact that nothing in Jernigan’s brief apprized appellee that
Jernigan was pursuing the 404(b) claim on appeal. Our task in assessing an appeal is to
adjudicate the issues that are fairly and plainly presented to us and of which the appellee is put on
notice; it is not to hunt for issues that an appellant may or may not have intended to raise.
Accordingly, we conclude that Jernigan has abandoned his Rule 404(b) argument on appeal.

20
temporally relevant to the incident underlying this case, Jernigan’s 1997 felon in

possession conviction and his subsequent possession of weapons on February 11,

2000 bore even more heavily on his knowledge of the gun found in his wrecker on

April 15, 1998. Moreover, the limiting jury instructions delivered by the district court

with respect to the inferences that could fairly be drawn from appellants’ prior and

subsequent bad acts benefitted Jernigan to an equal degree as they did Nelson.

Accordingly, had Jernigan squarely raised this issue on appeal, we would not be able

to say that the district court abused its discretion in permitting the introduction of his

prior bad acts under Fed. R. Evid. 404(b).

C. Nelson’s Fed. R. Evid. 403 Argument

Nelson further suggests that the district court erred by rejecting his challenge

under Fed. R. Evid. 4039 to Jernigan’s introduction of Nelson’s gang membership.

Unlike his Rule 404(b) argument, Nelson properly preserved this claim before the

9
This Rule provides that:

Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.

Fed. R. Evid. 403.

21
district court, and as such we review the court’s rejection of his Rule 403 challenge

for abuse of discretion. See United States v. Tinoco, 304 F.3d 1088, 1120 (11th Cir.

2002) (“We review the district court’s Rule 403 determinations, moreover, for a clear

abuse of discretion.”) (citation omitted), cert. denied sub nom. United States v.

Hernandez, __ U.S. __, 123 S. Ct. 1484, 155 L. Ed. 2d 231 (2003); United States v.

Ruiz, 253 F.3d 634, 640 (11th Cir. 2001) (“‘A trial court has broad discretion in

determining the admissibility of evidence; its ruling will not be disturbed on appeal

absent an abuse of discretion.’” (quoting Zapata, 139 F.3d at 1357)); United States

v. Pierce, 136 F.3d 770, 775 (11th Cir. 1998) (“We review the district court’s decision

not to exclude evidence pursuant to Rule 403 for an abuse of discretion.”) (citation

omitted). As we recently explained in Tinoco, “[i]n reviewing issues under Rule 403,

we ‘look at the evidence in a light most favorable to its admission, maximizing its

probative value and minimizing its undue prejudicial impact.’” 304 F.3d at 1120

(quoting United States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989)).

In this case, Jernigan did not simply inform the jury that Nelson was a gang

member, thereby implying that he was a bad person and probably was responsible for

the gun’s presence in the cab of the wrecker. Instead, he introduced evidence that (1)

Nelson was a member of a particular gang that, notably, used the color red as a

symbol of membership; and (2) gang members often wrap their weapons in

22
bandannas of their gang’s color. This evidence was especially probative in this case

because the weapon was found wrapped in a red bandanna.

On the other hand, we do not wish to understate the prejudicial effect that

evidence of a criminal defendant’s gang membership may entail. Indeed, modern

American street gangs are popularly associated with a wealth of criminal behavior

and social ills, and an individual’s membership in such an organization is likely to

provoke strong antipathy in a jury. See generally Kim Strosnider, Anti-Gang

Ordinances After City of Chicago v. Morales: The Intersection of Race, Vagueness

Doctrine, and Equal Protection in the Criminal Law, 39 Am. Crim. L. Rev. 101, 105-

08 (2002) (describing some of the illicit activities associated with gang membership

and specifically noting the “public outrage and political reaction” that such activities

have produced).

In this case, the Rule 403 calculus was in our view a close one, and the district

court would have been justified in deciding this issue either way. That is to say, the

court could have reasonably determined that the evidence of Nelson’s gang

membership did or did not substantially outweigh its probative value. Importantly,

it is precisely these close questions that give rise to the deferential abuse of discretion

standard of review. Inherent in this standard is the firm recognition that there are

difficult evidentiary rulings that turn on matters uniquely within the purview of the

23
district court, which has first-hand access to documentary evidence and is physically

proximate to testifying witnesses and the jury. For these reasons, the district court is

uniquely situated to make nuanced judgments on questions that require the careful

balancing of fact-specific concepts like probativeness and prejudice, and we are

loathe to disturb the sound exercise of its discretion in these areas. See United States

v. Williams, 216 F.3d 611, 615 (7th Cir. 2000) (noting in a related context that “we

accord great deference to the district court’s assessment of the evidence because of

the judge’s first-hand exposure to the evidence and because of the judge’s familiarity

with the case and ability to gauge the impact of the evidence on the jury in the context

of the trial”) (citation omitted). Only if the decision to admit evidence over a Rule

403 challenge is unsupportable when the evidence is viewed in the light most

supportive of the decision will we say that the decision constitutes an abuse of

discretion. See United States v. Cross, 928 F.2d 1030, 1051 (11th Cir. 1991) (“[A]

conviction will not be overturned on the basis of a violation of Rule 403 absent a

clear abuse of discretion. This rule is an extraordinary remedy which should be used

sparingly, and, indeed, the trial court’s discretion to exclude evidence as unduly

prejudicial is narrowly circumscribed.”) (internal citations and punctuation omitted);

United States v. Finestone, 816 F.2d 583, 585 (11th Cir. 1987) (“The ‘balance [under

Rule 403] should be struck in favor of admission.’” (quoting United States v. Dennis,

24
625 F.2d 782, 797 (8th Cir. 1980))). Because the Rule 403 issue in this case was such

a close one, it fell squarely within the ambit of the district court’s sound discretion,

and Nelson consequently is not entitled to relief on this claim.

D. Nelson’s Speedy Trial Act Claim

“We review a claim under the Speedy Trial Act de novo and review a district

court’s factual determinations on excludable time for clear error.” United States v.

Williams, 314 F.3d 552, 556 (11th Cir. 2002) (citing United States v. Miles, 290 F.3d

1341, 1348-49 (11th Cir. 2002)).

Under the Speedy Trial Act:

In any case in which a plea of not guilty is entered, the trial
of a defendant charged in an information or indictment
with the commission of an offense shall commence within
seventy days from the filing date (and making public) of
the information or indictment, or from the date the
defendant has appeared before a judicial officer of the
court in which such charge is pending, whichever date last
occurs.

18 U.S.C. 3161(c)(1).

However, the Act also provides for the exclusion of certain specified periods

of time from the speedy trial calculation. Of particular relevance in this case are

sections 3161(h)(1)(F) and (J), which exclude from the seventy-day period “delay

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

25
conclusion of the hearing on, or other prompt disposition of, such motion,” 18 U.S.C.

§ 3161(h)(1)(F), and “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.” 18 U.S.C. § 3161(h)(1)(J). We explained the interaction

of these provisions in United States v. Davenport:

For pretrial motions that do not require hearings, § 3161(H)(1)(F)
excludes the time required for “prompt disposition” of the motion. The
length of the exclusion depends upon when the court takes the motion
“under advisement” for purposes of § 3161(h)(1)(J). If the court has all
the information necessary to rule on the motion at the time the motion
is filed, the court immediately has the motion under advisement under
§ 3161(h)(1)(J) and thirty days may be excluded from the speedy trial
clock due to the motion. The court may establish a period of time after
the motion is filed, however, within which parties may submit materials
relating to the motion. The motion is not under advisement by the court
during this period of time, which is automatically excluded from the
speedy trial clock and is not subject to a reasonableness requirement.
Once the period for filing additional materials expires, the court takes
the motion under advisement for purposes of § 3161(h)(1)(J) and no
more than thirty additional days may be excluded from the speedy trial
clock.

For motions that require hearings, § 3161(h)(1)(F) excludes all time
between the filing of the motion and the conclusion of the hearing at
which it is addressed. This entire period is excluded from the speedy
trial clock and is not subject to review regarding its reasonableness.
Once the hearing is concluded, the motion is treated exactly like a
motion for which no hearing is required. If the court has all materials
necessary to rule on the motion, the court is deemed to have taken the
motion under advisement immediately following the hearing and §

26
 3161(h)(1)(J) permits no more than thirty additional days to be
excluded.

935 F.2d 1223, 1228 (11th Cir. 1991) (citing Henderson v. United States, 476 U.S.

321, 327-28, 106 S. Ct. 1871, 1875-77, 90 L. Ed. 2d 299 (1986)).

In this case, Nelson correctly notes that the speedy trial clock began running

on March 29, 2000, the date of his arraignment. On April 21, 2000, the government

filed a document that it labeled a “motion” in which it notified Nelson of its intent to

introduce at trial evidence of his prior convictions under Fed. R. Evid. 404(b). One

week later, Nelson responded by filing a motion in limine to exclude such evidence.

Although neither of these motions were acted upon until trial, the district court ruled

that the entire time from April 21, 2000 through November 6, 2000 was excludable

under § 3161(h)(1)(F) because a hearing was required on the government’s motion.

Whether or not the government’s April 21, 2000 filing was a motion that

required a hearing and tolled the speedy trial clock under § 3161(h)(1)(F), there can

be little question that Nelson’s motion in limine required a hearing. Indeed, one of

the primary components of the Rule 404(b) calculus is the strength of the

government’s evidence, see United States v. Pollock, 926 F.2d 1044, 1049 (11th Cir.

27
1991),10 a matter that plainly cannot be properly ascertained until the trial itself. In

more general terms, as we have said, probativeness and prejudice -- which comprise

the third prong of the Miller test -- are fact- and context-intensive inquiries that can

only be competently made by the district court upon assessing first hand the evidence

presented by both parties. Accordingly, the district court was amply justified in

concluding that despite the fact that the hearing on Nelson’s motion in limine to

exclude the Rule 404(b) evidence was deferred until trial, the speedy trial clock did

not run during the entire pendency of this motion. See 18 U.S.C. § 3161(h)(1)(F);

United States v. Phillips, 936 F.2d 1252, 1254 (11th Cir. 1991) (“Motions

necessitating hearings, such as suppression hearings . . . are governed by section

3161(h)(1)(F). As such, the entire time from the filing of the motion to the

conclusion of the hearing is excludable, even when the hearing is deferred until trial.”

(citing United States v. Garcia, 778 F.2d 1558, 1562 (11th Cir. 1986) and United

States v. Mastrangelo, 733 F.2d 793, 796 (11th Cir. 1984)); see also United States v.

Beard, 41 F.3d 1486, 1488 (11th Cir. 1995) (recognizing that a district court’s

10
We explained in Pollock that “‘[i]t is the incremental probity of the evidence that is to
be balanced against its potential for undue prejudice . . . . Thus, if the Government has a strong
case on the intent issue, the extrinsic offense may add little and consequently will be excluded
more readily.’ In other words, if the government can do without such evidence, fairness dictates
that it should; but if the evidence is essential to obtain a conviction, it may come in. This may
seem like a ‘heads I win; tails you lose’ proposition, but it is presently the law.” 926 F.2d at
1049 (quoting Beechum, 582 F.2d at 914).

28
decision to defer hearing a motion until trial does not render the intervening time non-

excludable under § 3161(h)(1)(F)). Thus, no more than 30 non-excludable days

elapsed between Nelson’s arraignment and his trial, and no violation of the Speedy

Trial Act occurred in this case.

E. Jernigan’s Newly-Discovered Evidence Claim

We review the denial of a motion for a new trial based on newly discovered

evidence for abuse of discretion. See United States v. Hansen, 262 F.3d 1217, 1236

(11th Cir. 2001) (citing United States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999)),

cert. denied 535 U.S. 1111, 122 S. Ct. 2326, 153 L. Ed. 2d 158 (2002). As we

observed in United States v. Ramos:

To succeed on a motion for new trial based on newly discovered
evidence, the movant must establish that (1) the evidence was
discovered after trial, (2) the failure of the defendant to discover the
evidence was not due to a lack of due diligence, (3) the evidence is not
merely cumulative or impeaching, (4) the evidence is material to issues
before the court, and (5) the evidence is such that a new trial would
probably produce a different result.

179 F.3d 1333, 1336 n.1 (11th Cir. 1999) (citing United States v. Schlei, 122 F.3d 944,

991 (11th Cir. 1997)). Indeed, we have held that motions for a new trial are highly

disfavored, and that district courts “should use ‘great caution’ in granting a new trial

motion based on newly discovered evidence.” United States v. Garcia, 13 F.3d 1464,
29
1472 (11th Cir. 1994) (quoting United States v. Johnson, 713 F.2d 654, 661 (11th Cir.

1983)).

In this case, Jernigan bases his newly-discovered evidence claim on Michael

West’s statement that Nelson told him that he (Nelson) owned the gun found in

Jernigan’s truck and that he had placed it between the seat cushions. We assume that

the first and second prongs of the test set forth above are satisfied, i.e., that West’s

statement genuinely was discovered after trial and that Jernigan’s failure to learn of

it earlier did not stem from a lack of diligence. We also will assume without deciding

that this evidence was non-cumulative and that it would have been material.

However, we are confident that the district court did not abuse its discretion in

concluding that it is not probable that West’s testimony would have produced a

different result. This is so because West’s statement unquestionably was hearsay,

and it is overwhelmingly likely that the statement was inadmissible under the

exception to the hearsay rule set forth in Fed. R. Evid. 804(b)(3).

Rule 804(b)(3) plainly provides that “[a] statement tending to expose the

declarant to criminal liability and offered to exculpate the accused is not admissible

unless corroborating circumstances clearly indicate the trustworthiness of the

statement.” Fed. R. Evid. 804(b)(3). We have interpreted this Rule to “establish[] a

three-prong test for the admission of statements against interest in criminal cases: (1)

30
the declarant must be unavailable; (2) the statement must be against the declarant’s

penal interest; and (3) corroborating circumstances must clearly indicate the

trustworthiness of the statement.” United States v. Thomas, 62 F.3d 1332, 1337 (11th

Cir. 1995) (citation omitted). Here, the first prong of this test is satisfied, as Nelson

exercised his Fifth Amendment right not to testify at trial. See id. (“Because they

invoked their Fifth Amendment privilege to remain silent, it is clear that the McCoys

were unavailable.” (citing United States v. Hendrieth, 922 F.2d 748, 750 (11th Cir.

1991))). The second prong is satisfied as well, since Nelson’s alleged statements,

taken on their face, were self-inculpatory.

The problem for Jernigan, however, is the third prong, because he has failed

to make the requisite showing that West’s statement was in fact trustworthy. Indeed,

the only evidence presented at trial that was consistent with Nelson’s alleged self-

inculpatory statement was the fact that the weapon was wrapped in a red bandanna

and was physically proximate to Nelson’s seat in the truck’s cab. By contrast, the

statement was contradicted by all of the government’s evidence inculpating Jernigan.

Moreover, the district court is “entitled to consider the fact that [the person proffering

the testimony is] a prison inmate in determining whether his testimony would be

trustworthy.” United States v. Gossett, 877 F.2d 901, 907 (11th Cir. 1989). In this

vein, not only was West incarcerated when he allegedly bore witness to Nelson’s self-

31
inculpatory statements, but also he (1) had a lengthy history of felony convictions,

including two forgery offenses which bore on his character for truthfulness; (2) was

then awaiting trial for writing a threatening letter to an individual in the Middle

District of Georgia (he notified the district court of Nelson’s alleged statements via

letter in this case); and (3) had been diagnosed with psychological problems. We

have held that “in determining trustworthiness, the [district] court should determine

what the possibility was that the declarant fabricated the statement. In other words,

it must be unlikely, judging from the circumstances, that the statement was

fabricated” if we are to deem the third prong of the Rule 804(b)(3) test satisfied.

United States v. Gomez, 927 F.2d 1530, 1536 (11th Cir. 1991) (citing United States

v. Thomas, 571 F.2d 285 (5th Cir. 1978)). When all of the circumstances surrounding

West’s statement are viewed in concert, it seems plain to us that the district court did

not abuse its discretion in concluding that it was reasonably likely that West had

fabricated Nelson’s alleged statement, and that Fed. R. Evid. 804(b)(3)’s “clear

indic[ia of] trustworthiness” standard consequently was unsatisfied in this case.

Because West’s testimony probably would have been inadmissible under Fed.

R. Evid. 804(b)(3), that testimony is unlikely to have generated a different result at

trial. Accordingly, Jernigan fails the fifth prong of the test set forth supra, and the

32
district court did not abuse its discretion in concluding that he is entitled to no relief

on his newly-discovered evidence claim.

Nor, given this conclusion, did the district court err by refusing to conduct an

evidentiary hearing on this claim. See United States v. L’Hoste, 640 F.2d 693, 696

(5th Cir. 1981) (“Even if it be assumed that a hearing [on a motion for a new trial

based on newly-discovered evidence] may be appropriate in some such cases, the

facts of the present case do not require one, nothing having been alleged by L’Hoste

that would support the admissibility of the statement.”).

F. Jernigan’s “Admission of Co-Defendant’s Hearsay Statements” Argument

Jernigan argues that the district court erred by allowing the introduction of

Nelson’s pre-and post-arrest statements to Macon police officers implicating

Jernigan. He says that this violated the prohibition announced by the Supreme Court

in Bruton v. United States on admitting into evidence in a joint trial one defendant’s

hearsay confession that facially inculpates a co-defendant, as the admission of the

confession violates the rights secured to the co-defendant under the Sixth

Amendment’s Confrontation Clause. See 391 U.S. 123, 126, 88 S. Ct. 1620, 1622,

20 L. Ed. 2d 476 (1968). Because Jernigan failed to object to this evidence in the

district court, we may review its admission only for plain error. See Brazel, 102 F.3d

at 1151 & 1151 n.21. To reiterate, under this standard Jernigan “must show that: (1)

33
an error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4)

it seriously affected the fairness of the judicial proceedings.” Gresham, 325 F.3d at

1265 (citation omitted).

Importantly, however, even plain error review is unavailable in cases where a

criminal defendant “invites” the constitutional error of which he complains. See Ford

ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1294 (11th Cir. 2002) (“Where invited

error exists, it precludes a court from ‘invoking the plain error rule and reversing.’”

(quoting United States v. Davis, 443 F.2d 560, 564-65 (5th Cir. 1971))), cert.

denied __ U.S. __, 123 S. Ct. 868, 154 L. Ed. 2d 849 (2003). In the context of a

district court’s decision to admit certain evidence, “‘[t]he accepted rule is 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.

Martinez, 604 F.2d 361, 366 (5th Cir. 1979) (quoting United States v. Doran, 564 F.2d

1176, 1177 (5th Cir. 1971)); see also United States v. Parikh, 858 F.2d 688, 695 (11th

Cir. 1988) (holding that “the admission of out of court statements by a government

witness, when responding to an inquiry by defense counsel, creates ‘invited error’”);

United States v. De Parias, 805 F.2d 1447, 1451 n.1 (11th Cir. 1986) (“When counsel

for [one defendant] attempted to cross-examine [a witness] concerning the Texas

murder, counsel for Ramirez objected to his doing so. The doctrine of invited error

34
precludes Ramirez from complaining now because the court followed his request.”),

overruled on other grounds by United States v. Kaplan, 171 F.3d 1351, 1356-57 (11th

Cir. 1999).

In this case, Jernigan did more than simply fail to object to the introduction of

Nelson’s statements -- he affirmatively stipulated to their admission. The relevant

exchange proceeded as follows:

The Assistant United States Attorney: Judge, we worked out -- came to
an agreement yesterday that the government in its case will just play
both tapes totally from start to finish. That way we won’t have to do it
piecemeal, and one of the defendants might want to play a piece of it
later.

The court: Okay.

The Assistant United States Attorney: So, as I recall, there’s about 31
or 32 minutes on one tape and approximately 10 to 15 minutes on
another.

The court: Okay. Is everybody agreeable to that?

Counsel for Jernigan: Yes, Your Honor.

Counsel for Nelson: Yes, sir.

The court: Okay.

Simply put, by affirmatively agreeing to the playing of the tapes, Jernigan

effectively caused, i.e., invited, any Bruton error that resulted from the jury’s hearing

35
them. Indeed, we and other courts of appeals have applied the invited error doctrine

in factual circumstances that are closely analogous to those presented here. See

United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“The court’s decision to

deny the prosecutor’s request that the indictment be given to the jury was based on

the stipulation of counsel that the indictment should not be given to the jury. Thus,

any error in failing to give the indictment to the jury was invited.”) (emphasis added);

United States v. Treadway, 26 Fed. Appx. 594, 596 (8th Cir. 2001) (“Treadway argues

that the district court failed to comply with Federal Rule of Criminal Procedure 23(b)

when it excused a juror and allowed the case to be tried to an eleven-person jury. We

conclude that Treadway is not entitled to any relief because both he and his counsel

orally consented in open court to proceed with an eleven-person jury and thereby

invited the alleged error of which he now complains.” (citation omitted); Parikh, 858

F.2d at 695 (“Defense counsel effectively caused the injury about which he now

complains by questioning the witness about the contents of the letter.”). This is not

to say that had Jernigan not consented to the tapes’ introduction the tapes necessarily

would have been inadmissible -- indeed, we express no opinion as to the merits of the

underlying Bruton claim -- but merely to say that a criminal defendant may not make

an affirmative, apparently strategic decision at trial and then complain on appeal that

the result of that decision constitutes reversible error. This is precisely the situation

36
that the invited error doctrine seeks to avert, and in this case the doctrine precludes

Jernigan from asserting as error under Bruton the introduction of Nelson’s hearsay

statements.

In sum, we conclude that none of appellants’ claims on appeal are meritorious,

and accordingly we affirm their convictions in all respects.

AFFIRMED.

37
FULLAM, District Judge, concurring:

I reluctantly concur in the result reached by the majority because, although I

am convinced that neither appellant received a fundamentally fair trial, it appears

under controlling precedent in this circuit, that relief cannot be afforded in this

direct appeal, but must await collateral attack via a §2255 motion.

In the circumstances of this case, it should have been obvious to the

prosecution as well as defense counsel that appellants could not fairly be tried in a

single trial, since their defenses were antagonistic. Trying both men together

enabled the government to use the out-of-court statement of each to convict the

co-defendant, without confrontation or cross-examination, in plain violation of

their constitutional rights under Bruton v. United States, 391 U.S. 123, S. Ct. 1620

(1968). But, although both appellants sought separate trials, neither has appealed

the denial of severance. And, strange as it seems, trial counsel were prevailed

upon to stipulate to the admissibility of the statements which violated Bruton

principles. Thus, the issue of joint trial is not before us, and the Bruton violation

constitutes invited error which cannot be addressed by this Panel. United States v.

Parikh, 858 F.2d 688 (11th Cir. 1988); United States v. Parias, 805 F.2d 1447 (11th

Cir. 1986).

38
 As to both appellants, the government introduced extensive evidence of

prior (and subsequent) “bad acts,” the admissibility of which is governed by

Federal Rule of Evidence 404(b). In my view, none of this evidence should have

been received. Although I recognize that the Eleventh Circuit cases cited by the

majority have substantially eroded Rule 404(b)’s prohibition of assaults on a

defendant’s character to show propensity to commit a crime of the type charged, I

note that many of the cited cases involved evidence admitted on cross-examination

for purposes of impeachment, or “pattern” crimes, where similarities of style

tended to identify the defendant as having committed the crime on trial. In the

circumstances of the present case, I find it mind-boggling to suggest that

Jernigan’s ownership of a semi-automatic rifle found in his house in February

2000 tends to prove that he knew about a handgun behind the seat of the tow truck

two years earlier, on April 15, 1998, or that the various other instances in which

the appellants either possessed or were in close proximity to weapons of various

kinds, years earlier, sheds any meaningful light on the issues being tried in this

case. In my view, the only possible significance of the evidence of other “bad

acts” in this case was to suggest that the defendants were unsavory characters who

had demonstrated a propensity for firearm possession - a purpose which is

squarely prohibited by Rule 404(b). I recognize, however, that there are reported

39
decisions in this Circuit which seem to assume, as do my colleagues of the

majority, that evidence of gun possession on one occasion may be relevant to

prove gun possession on an entirely different occasion. The question still remains,

however, whether the probative force of such evidence is sufficient to outweigh

the obvious prejudice to the defendant it entails.

Be all that as it may, appellant Nelson did not object to the evidence at trial,

and is limited to arguing “plain error”; appellant Jernigan has not raised the issue

on appeal; and Jernigan himself produced the evidence of Nelson’s gang

membership. It is therefore at least arguable that neither appellant is entitled to a

ruling that the trial judge abused his discretion.

For me, the most egregious error with respect to the 404(b) issues is one

which has not been addressed by either appellant, namely, the prosecutor’s closing

argument on the subject. In his relatively brief closing argument, the prosecutor

exhorted the jury to convict the defendants because their previous crimes

demonstrated their disdain for the law. Some examples:

“But what has the evidence shown in this case? The defendants
Randy Jernigan and Wendell Nelson have contempt for the law. They
have contempt for the rules and regulations by which we have an
orderly society. We know that by what we have heard on the
videotape. We know that by their stipulations that they’re convicted

40
 felons and can’t have guns. We know that through their prior contact
with law enforcement and their actions.

“Actions speak louder than words ...

“... And then when they get to [Jernigan’s ] house later that day, he’s
got this SK5 semi-automatic long high-capacity magazine rifle in his
closet. He knows he can’t have it - but he just has it.

“Now, Wendell Nelson, 1996, he’s in a car, two handguns under the
front seat and he’s in the back seat with a shotgun. You’ve got that
conviction. He pled guilty of that ...

“So, here we have two convicted felons, who we know we can’t
believe, who make self-serving statements out there at the scene, who
have a propensity ... a common theme of having a gun wherever they
are ...”

I do not believe the government should be permitted now to argue that the

evidence was admitted for any purpose other than propensity.

Unfortunately for the appellants, however, neither lodged any objection to

the prosecutor’s closing argument at the time, and neither appellant has raised the

issue on appeal.

In my view, as stated above, neither appellant received a fundamentally fair

trial. Speaking for myself, I would prefer to grant both appellants new trials, but,

41
given the limitations of appellate authority on direct review, I reluctantly concur in

the judgment.

42