         Case: 18-14905   Date Filed: 06/01/2020   Page: 1 of 18



                                                    [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 18-14905
                      Non-Argument Calendar
                    ________________________

                D.C. Docket No. 3:18-cr-00016-MCR-1



UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                versus

KENNETH LAMAR WEATHERS, JR.,

                                                    Defendant-Appellant.

                    ________________________

             Appeal from the United States District Court
                 for the Northern District of Florida
                   ________________________

                            (June 1, 2020)
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Before WILLIAM PRYOR, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

       Kenneth Lamar Weathers, Jr. appeals his convictions for knowingly

possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1)1 and

924(a)(2),2 and for possessing a controlled substance with intent to distribute in

violation of 21 U.S.C. § 841(a)(1) 3 and (b)(1)(C). On appeal, Weathers raises

three issues. First, he argues the district court erred by admitting as prior bad act

evidence under Rule 404(b)(2) of the Federal Rules of Evidence a prior Florida

conviction for drug possession with intent to distribute imposed after he had

pleaded nolo contendere. Second, he argues the district court erred by denying his

motion for a Franks 4 hearing to challenge the sufficiency of a search warrant

affidavit which omitted, in his view, critical facts. Lastly, he argues the district

court erred by admitting text messages showing drug trafficking activity after the



       1
         “It shall be unlawful for any person who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in interstate or foreign
commerce.” 18 U.S.C. § 922(g)(1).
       2
         “Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as
provided in this title, imprisoned not more than 10 years, or both.” 18 U.S.C. § 924(a)(2).
       3
          “Except as authorized by this subchapter, it shall be unlawful for any person knowingly
or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1).
       4
           Franks v. Delaware, 438 U.S. 154 (1978).
                                                2
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government failed to provide express notice of its intent to introduce them for Rule

404(b) purposes within a reasonable time before trial. For the following reasons,

we affirm.

                                        I. Background

       Following a jury trial in July 2018, Weathers was convicted for knowingly

possessing a firearm as a felon and for possessing a controlled substance with

intent to distribute.5 Thereafter, he was sentenced to 72 months of imprisonment

and three years of supervised release.

                                            A. Facts

       On September 26, 2017, law enforcement responded to a purported shooting

at 2915 West Lloyd Street. During the investigation, police identified Sabrina

Skanes as the alleged victim and Kenneth Weathers as a person present at the

scene of the shooting. About a week later, on October 4, Skanes’s sister called 911

to advise police that “the suspected shooter” had returned to the area and was

inside a residence at 2907 West Lloyd Street with Skanes. Officers responded to

the 2907 residence, where Skanes’s mother met them outside. She informed the

officers that the disturbance was actually occurring at a different location—that is,

at 1215 North W. Street, Unit B—where Skanes lived. Skanes’s mother then led


       5
         Unrelated to the issues on appeal, Weathers’s conviction included a second violation of
§ 922(g)(1)’s prohibition on knowingly possessing a firearm as a felon which arose from a separate
incident a few months prior to the events relevant here.
                                                3
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the officers by foot to 1215 North W. Street and told them that there was a male in

the rear bedroom who was armed with a firearm. Skanes’s mother then led the

officers into Unit B. In the rear bedroom, the officers found Skanes and Weathers

lying on a bed together and a shotgun leaning against the wall—less than three feet

away from Weathers. The officers immediately detained Weathers and unloaded

the shotgun, 6 and prepared to charge him for possessing a firearm as a convicted

felon. At some point after Weathers’s arrest, Skanes told the police that Weathers

was not the individual who shot her a week earlier.7

       Later that day, an investigator applied for a warrant to search the residence

“for other weapons possibly used in the shooting of Sabrina Skanes.” The affidavit

supporting the application included most of the facts mentioned in the preceding

paragraph, with three notable omissions: (1) that Skanes lived at the address where

Weathers was found (1215 North W. Street, Unit B); 8 (2) that Skanes was sleeping



       6
           Later, the officers photographed and seized the shotgun pursuant to a search warrant.
       7
        During a pretrial motion, the district court noted that the parties disagreed about the timing
of Skanes’s statement that Weathers was not the shooter. The government claimed she made the
statement after the officers had already applied for a warrant. Weathers’s attorney argued that
Skanes informed the officers that Weathers was not the shooter before the officers applied for a
search warrant—despite the fact that Skanes’s affidavit is vague about the timing of her statement
Because this dispute is inconsequential to the ultimate outcome on the motion to suppress, we
assume without deciding, as the district court did, that Skanes made the comment before the police
executed the search warrant.
       8
         In fact, the affidavit went so far as to assert that the apartment was “occupied by or under
the control of persons unknown” to the investigator.


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on the bed next to Weathers when officers found him; and (3) that Skanes told the

officers Weathers was not the person who shot her. A judge issued the warrant and

the search was executed that same day. During the search of Skanes’s apartment

the officers discovered a handgun, a substantial quantity of controlled substances

(cocaine and heroin), various drug-trafficking paraphernalia (including two cell

phones), and $3,400 in cash.

                                     B. Procedure

      Before and during trial, Weathers made three challenges to the evidence

admitted by the district court that are relevant here. First, Weathers filed a pre-trial

motion in limine to exclude, among other things, a prior 2011 conviction following

his plea of nolo contendere to drug charges. Second, Weathers filed a pre-trial

motion to suppress all physical evidence, statements, and observations made by

officers during the October 4 search of Skanes’s apartment, and requested a Franks

hearing in order to determine the sufficiency of the affidavit supporting the search

warrant. Third, at trial, Weathers objected to the introduction of text messages

depicting drug-trafficking conversations that were extracted from his cell phones.

He asserted that, although the government had previously provided him all of the

potential cell phone data it might use at trial, it did not notify him that it intended

to use the text messages for the specific purposes of Rule 404(b). Weathers also




                                            5
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noted that the government did not notify him that an expert would be interpreting

those text messages until 11 days before trial. 9

         The court denied all three challenges and admitted the evidence. Notably,

the nolo conviction evidence was accompanied by two other prior felony

convictions for possession with intent to distribute from 2013. Also, following the

admission of both the nolo conviction and text messages, the court instructed the

jury not to consider these pieces of evidence in deciding whether Weathers

possessed drugs. Rather, the jury was to determine whether Weathers possessed

drugs based on other evidence; only if it found he committed that act were they

permitted to consider the nolo conviction and text messages as evidence of whether

he acted knowingly and with intent to distribute. The jury subsequently found

Weathers guilty of one count of possessing cocaine and heroin with intent to

distribute.10 Weathers appeals the district court’s denials of his challenges to the

admission of these articles of evidence.

                                       II. Standards of Review

         We review a district court’s evidentiary rulings for a clear abuse of

discretion. United States v. Flanders, 752 F.3d 1317, 1334 (11th Cir. 2014). But



         9
         Weathers received notice on July 29, 2018 that an expert would be called to interpret the
text messages. Trial began on July 9.
         10
              The jury also found Weathers guilty of both counts of possessing a firearm as a convicted
felon.
                                                    6
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even if an evidentiary ruling is erroneous, we will not reverse that ruling where the

error was harmless. United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir.

2007). “An error is harmless unless there is a reasonable likelihood that [it]

affected the defendant’s substantial rights.” United States v. Hands, 184 F.3d

1322, 1329 (11th Cir. 1999).

       We review a district court’s denial of a Franks hearing for abuse of

discretion. United States v. Votrobek, 847 F.3d 1335, 1342 (11th Cir. 2017).

There is “a presumption of validity with respect to the affidavit supporting the

search warrant.” Franks v. Delaware, 438 U.S. 154, 171 (1978).

       We review a district court’s determination of whether the government gave

sufficient pretrial notice under Rule 404(b) for abuse of discretion. See United

States v. Perez-Tosta, 36 F.3d 1552, 1560–62 (11th Cir. 1994).

                                       III. Discussion

              A. Admission of the Nolo Contendere Plea & Conviction

       Weathers’s first argument on appeal is that the district court erred by

admitting evidence of his 2011 nolo plea and conviction pursuant to Rule 404(b) 11




       11
          Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible
to prove a person's character in order to show that on a particular occasion the person acted in
accordance with the character,” but that “[t]his 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)
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as evidence of a prior bad act. Assuming without deciding that he is correct, we

find this error to be harmless.

      “Evidentiary errors are subject to review for harmlessness.” United States v.

Green, 873 F.3d 846, 866 (11th Cir. 2017), cert. denied, 138 S. Ct. 2620 (2018).

“A non-constitutional evidentiary error does not warrant reversal unless there is a

reasonable likelihood that the error affected the defendant’s substantial rights.” Id.

at 867; see also United States v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir. 2010)

(stating that even if a district court abused its discretion in admitting evidence,

“[r]eversal is warranted only if the error resulted in actual prejudice because it had

[a] substantial and injurious effect or influence in determining the jury’s verdict.”).

We review the entire record to determine whether an error resulted in actual

prejudice. Phaknikone, 605 at 1109. “Overwhelming evidence of guilt is one

factor that may be considered in finding harmless error.” United States v. Guzman,

167 F.3d 1350, 1353 (11th Cir. 1999).

      In light of the overwhelming evidence presented at trial demonstrating

Weathers’s guilt, we find that the admission of his 2011 nolo plea and conviction

neither affected his substantial rights nor resulted in actual prejudice. At the scene

of his arrest in this case, police found a Crown Royal bag containing fifteen

individually wrapped baggies of cocaine. At trial, an agent from the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”) testified that the cocaine


                                           8
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appeared to be packaged for distribution. The Crown Royal bag also contained a

wallet with Weathers’s Florida Identification Card, approximately $3,400 in cash,

a receipt with Weathers’s name, and a black cellphone. This black cellphone,

along with another white cellphone that was collected at the scene of Weathers’s

arrest, contained text messages identified by an ATF agent as consistent with

narcotics trafficking terminology. The cellphones also appeared to belong to

Weathers. Both had a calendar event which stated “Happy Birthday” on the day

that was Weathers’s birthday; the black cell phone had a message from T-Mobile

to “Kenneth”; the white cellphone had several autofill entries for the words

“Kenneth Weathers,” a message with an attached photograph depicting Weathers,

and a text message from Expedia.com to “Kenneth Weathers.” Beneath the

mattress on the side of the bed where Weathers was found, police discovered

inositol—a chemical commonly used as a cutting agent for cocaine. Next to

Weathers’s side of the bed, police discovered a red pouch containing three baggies

of heroin. On the dresser in the bedroom where Weathers was found, police found

a digital scale.

       The government also introduced other prior bad acts evidence pursuant to

404(b) that were not challenged by Weathers. The government proffered a

certified copy of Weathers’s two prior felony convictions from 2013 for

“possession of controlled substance.” Moreover, the government made no


                                         9
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reference to Weathers’s 2011 nolo plea or conviction during its initial or rebuttal

closing arguments. See Green, 873 F.3d at 868 (noting that the fact that the nolo

conviction “was not emphasized during trial or closing argument” is some

indication that it was harmless for the district court to have admitted it in the first

place).

      For these reasons, we believe one can “reasonably conclude that all the

circumstances described above were of far more significance to the jury in

deciding whether” Weathers possessed controlled substances with the intent to

distribute than his single 2011 nolo plea and conviction. Id. at 867. Accordingly,

even if the district court committed error, the admission of the 2011 nolo plea and

conviction was harmless.

          B. Denial of Motion to Suppress and Request for a Franks Hearing

      Weathers’s next contention is that the district court erred in denying his

motion to suppress and request for a Franks hearing to determine the sufficiency of

the affidavit supporting the search warrant application. We find that the district

court did not abuse its discretion in denying Weathers’s motion or request.

      The Fourth Amendment requires a hearing to be had at the defendant’s

request “where the defendant makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and if the allegedly false statement


                                           10
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is necessary to the finding of probable cause.” Franks, 438 U.S. at 155–56; see

also Votrobek, 847 F.3d at 1342. “Omissions made negligently or because of an

innocent mistake are insufficient to warrant suppression of the evidence.” United

States v. Whyte, 928 F.3d 1317, 1333 (11th Cir. 2019). Furthermore, even

intentional or reckless omissions will invalidate a warrant only if inclusion of the

omitted facts would have prevented a finding of probable cause. United States v.

Kapordelis, 569 F.3d 1291, 1309 (11th Cir. 2009). The defendant bears the burden

of showing that the omissions would defeat a probable cause determination.

Franks, 438 U.S. at 171. The defendant’s attack “must be more than conclusory.”

Id. The district court, when making a probable cause finding, considers the totality

of the circumstances to determine whether “there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Illinois v.

Gates, 462 U.S. 213, 238 (1983).

      In his motion to suppress and request for a Franks hearing, Weathers argued

that certain facts were recklessly or intentionally omitted from the search warrant

and that, had those facts been included, the reviewing judge would not have found

probable cause to support the issuance of the warrant. Specifically, Weathers

noted that the search warrant omitted the facts that Skanes was sleeping on the bed

next to Weathers when the officers found him and that Skanes told the officers




                                          11
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Weathers was not the person who shot her. On appeal, Weathers basically repeats

this argument.

       The district court found that the affidavit attached to the search warrant

would have been sufficient to support a finding of probable cause even if it had

included the omitted facts. 12 Specifically, the district court noted the affidavit

stated that Weathers had been present at the time of the September 26 shooting,

and that police were summoned to the residence by a concerned citizen who said

Weathers was a suspect in the previous shooting and was in the back of the

residence with Skanes. Moreover, the district court highlighted that all these facts

were corroborated when the officers found Weathers, a convicted felon, in the

residence with Skanes within three feet of a shotgun. The district court reasoned

that, even the officer’s affidavit stated that Skanes had told the police Weathers

was not the shooter, the “issuing judge would not have been required to credit

Skanes’s statement above that of the 911 caller and other evidence.” Further, the




       12
           Although we resolve this issue by finding that the omitted evidence would not have
changed the probable cause determination, it is doubtful that Weathers can demonstrate that the
officers acted recklessly or intentionally. The only evidence provided by Weathers to this end was
an affidavit from Skanes stating where she lived and indicating that Weathers was both in bed with
her during the raid of her apartment and that Weathers was not the person who shot her. This
evidence suggests that errors were made in the officer’s affidavit. But showing that errors were
made does not automatically imply that they were made intentionally or recklessly. Thus,
Weathers’s assertions do not necessarily amount to a substantial preliminary showing of a reckless
or intentional false statement or omission. We need not resolve this issue, however, because, even
assuming that the facts had been represented to the reviewing judge just as Weathers asserted they
should have been, a finding of probable cause was appropriate.
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district court contemplated, the fact that Skanes (the victim of the previous

shooting) was found in bed with Weathers “could even be a reason to doubt the

veracity of the victim’s statement that he was not the shooter.” For these reasons,

the district court found that the inclusion of the omitted facts would not have

prevented a finding of probable cause. We agree with the district court and find

that it did not abuse its discretion in denying Weathers’s motion to suppress and

request for a Franks hearing.

                C. Notice for Prior Act Evidence Under Rule 404(b)

      Weathers also asserts that the district court erred by admitting text messages

referencing prior drug deals pursuant to Rule 404(b) because the government did

not provide sufficient notice. Over three months before trial, on March 27, 2018,

the government turned over 2,366 text messages and identified them as potential

trial evidence—but it did not indicate it might offer any texts pursuant to Rule

404(b). Then, on June 29, 11 days before trial, the government notified Weathers

it planned to call an expert to interpret several of those text messages in front of the

jury—again without any express indication of Rule 404(b) purposes. Finally, on

July 6, just three days before trial, the government provided the specific text

messages it intended to introduce at trial, marked as trial exhibits. At trial, the

government used five text messages. Weathers objected to these text messages by




                                           13
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asserting that the government’s notice pursuant to Rule 404(b) was insufficient.13

He reasserts this objection on appeal.

       Under Rule 404(b), a prosecutor who intends to use evidence of a crime,

wrong, or other act under Rule 404(b) must, “[o]n request by a defendant in a

criminal case . . . provide reasonable notice of the general nature of any such

evidence that the prosecutor intends to offer at trial; and do so before trial—or

during trial if the court, for good cause, excuses lack of pretrial notice.” Fed. R.

Evid. 404(b)(2). What constitutes a reasonable disclosure will depend largely on

the circumstances of each case. Perez-Tosta, 36 F.3d at 1562. We have outlined

three factors for consideration to determine whether the government provided

reasonable pretrial notice: (1) when the government could have learned of the

evidence’s availability through timely preparation for trial; (2) the extent of

prejudice that the defendant faces from a lack of time to prepare; and (3) the

significance of the evidence to the government’s case. Id. Of these three Perez-

Tosta factors, the second—prejudice to the defendant from a lack of time to

prepare—should “weigh heavily in the court’s consideration.” Id. at 1561.

       Addressing these factors out of turn, we start by noting that the government

concedes that the third Perez-Tosta factor weighs in Weathers’s favor; the text



       13
         Weathers also objected to their admission on hearsay and Rule 403 grounds. Weathers
appeals only the Rule 404(b) ruling.
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messages were not significant to the government’s case in light of the other

evidence it had available.

       Regarding the first Perez-Tosta factor, Weathers asserts that the government

was negligent in failing to provide pretrial notice expressly stating the Rule 404(b)

purposes of the text messages. To support this argument, Weathers points to the

fact that the government originally intended to introduce the text messages as

evidence that was inextricably intertwined with the search of Skanes’s apartment.

By focusing solely on the fact that the government neglected to mention the

evidence’s Rule 404(b) purpose, however, Weathers assumes—without citation to

authority—that Rule 404(b) requires the government to state expressly its intent to

use evidence for the specific purposes of Rule 404(b). The district court rejected

this assumption because it “elevates form over substance.” We need not resolve

whether the district court’s characterization was correct because, under the

circumstances of this case, any failure by the government to specify its intent to

use the text messages pursuant to Rule 404(b) is not consequential in light of the

second—and most significant—Perez-Tosta factor.

      Regarding that second factor, Weathers asserts he was prejudiced due to the

volume of the text message disclosure and the government’s lack of specificity as

to the Rule 404(b) purpose. He claims these variables forced him to review the

texts on the spot at trial when he was unable to do so effectively or make


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individualized objections. The district court found that Weathers was not

prejudiced by the government’s voluminous production or lack of specificity with

regards its Rule 404(b) purposes. Noting that Weathers had been provided the text

messages over three months before trial, the district court concluded that,

“[c]learly, Weathers was not surprised or unable to adequately prepare for trial

based on the Government’s failure to specify 404(b) in its notice.” Moreover, the

district court noted, even if Weathers would have filed a pretrial Rule 404(b)

objection to specific text messages, “the Court’s ruling on admissibility would

have been the same.”

      We find that the district court did not err by finding that Weathers did not

suffer prejudice from the government’s three-month notice. Based on the March

27 production and July 9 trial date, Weathers had 105 days leading up to trial to

review all 2,366 text messages. Cf. Perez-Tosta, 36 F.3d at 1560 (finding the

defendant was not prejudiced where the prosecutor disclosed the Rule 404(b)

evidence “a few minutes before jury selection”). On appeal, Weathers provides no

specific explanation for why that was an insufficient amount of time. Absent any

evidence to the contrary, we hold that it was a sufficient amount of time to review

the text messages. Moreover, even if he had objected to the text messages on Rule




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404(b) grounds before trial, the district court has made clear it would have

overruled that objection.14

       In conclusion, the district court did not abuse its discretion by admitting the

text messages referencing prior drug deals pursuant to Rule 404(b). 15 The

government’s notice or lack of evidentiary importance as it pertains to the text

messages is greatly outweighed by the fact that Weathers had a copious amount of

time to review the texts before trial. We note that “the abuse of discretion standard

allows for a range of choice for the district court, so long as that choice does not

constitute a clear error of judgment.” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (en banc); accord United States v. Osmakac, 868 F.3d 937,

952 (11th Cir. 2017). The district court’s decision to admit the text messages

pursuant to Rule 404(b) was within the range of choices constituting sound

discretion and did not constitute a clear error of judgment. Accordingly, we affirm

the district court’s admission of the text messages.16


       14
         Further, on appeal, Weathers abandoned his hearsay and Rule 403 trial objections to the
text messages.
       15
           Even if the district court erred by admitting the text messages, the error is harmless in
light of the district court’s limiting instruction and the other evidence establishing Weathers’s guilt.
See United States v. Langford, 647 F.3d 1309, 1323 (11th Cir. 2011); United States v. Hersh, 297
F.3d 1233, 1254 n.31 (11th Cir. 2002) (relying in part on the trial court’s limiting instruction as
evidence that any error in admitting certain evidence was harmless). Thus, “sufficient evidence
uninfected by error supports the verdict, [and] reversal is not warranted.” United States v. Mendez,
117 F.3d 480, 486 (11th Cir. 1997).
       16
         After briefing, Weathers submitted a pro se notice of supplemental authority and
argument pursuant to the Supreme Court’s holding in Rehaif v. United States, 139 S. Ct. 2191
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       AFFIRMED.




(2019). In short, he requests a new trial on Counts I and II on the basis that the district court erred
by failing to instruct the jury on the scienter requirement of §§ 922(g)(1) and 924(a)(2), and that
he is actually innocent of having knowledge that he belonged to a relevant category of persons
barred from possessing a firearm. We are unable to consider this claim because Weathers
submitted this supplemental authority pro se during a time that he was represented by counsel.
11th Cir. R. 25-1 (“When a party is represented by counsel, the clerk may not accept filings from
the party.”). But even if we were to consider that claim, Weathers could not “show a reasonable
probability that, but for the error[s], the outcome of [his trial] would have been different.” United
States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019) (alterations in original) (quoting Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)). At the time Weathers possessed the
firearms in this case, he had been convicted of three felonies in a Florida court. Not only were
these felonies disclosed to the jury, but in its final instructions the district court explained that
Weathers had stipulated that he “had been convicted” of these felonies and that Weathers’s “right
to possess firearms and ammunition had not been restored.” In Reed, we determined that “the jury
could have inferred that [the defendant] knew he was a felon from his stipulation . . . .” 941 F.3d
at 1022. The same is true for Weathers here. Thus, even if we were to consider Weathers’s
supplemental Rehaif-based claim, he could not “prove that the errors affected his substantial rights
or the fairness, integrity, or public reputation of his trial.” Id.
                                                  18
