     Case: 17-30664      Document: 00514886337         Page: 1    Date Filed: 03/25/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                      No. 17-30664                          FILED
                                                                      March 25, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee

v.

CAREY WARDELL REED,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:14-CR-113-1


Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Carey Wardell Reed appeals his conviction after a jury trial. He argues
that the district court abused its discretion in crafting a remedy to the
Government’s discovery violation. After careful review, we find no abuse of
discretion and affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 17-30664
                                      I.
      Reed robbed three Opelousas businesses. While doing so, he also fired
his gun. The Government brought a six-count indictment based on Reed’s
armed-robbing spree. Despite the mountain of evidence against him, Reed
elected trial.
      His theory was simple: The cops framed him. The only evidence
supporting this theory was some body-camera footage. The footage shows an
officer taking Reed’s phone. The time stamp on the footage when this happened
read 13:29 and 48 seconds (1:29 p.m.). Yet at 2:24 p.m., a damning text message
essentially admitting to the last robbery was sent from Reed’s phone. How
could that be if his phone was taken at 1:29 p.m.? Good question. Reed would
have liked to argue that the answer was that the police sent the message from
his phone to pin the crimes on him.
      Not a bad theory—especially if the body-camera footage was the only
documentary evidence showing the time that the police confiscated Reed’s
phone. Yet at the end of the trial’s first day, the Government handed Reed a
copy of a radio-log report, a report demonstrating that Reed’s phone was
confiscated around 2:30 p.m. after he arrived at the police station—not at 1:29
p.m. Turns out the body camera’s time stamp was an hour off because it had
not taken into account daylight-savings time. Outside the jury’s presence, Reed
moved to have the radio-log report excluded due to its late production. The
court denied Reed’s motion.
      After the Government admitted the radio-log report during trial, Reed
moved for a mistrial. He argued that the Government had violated the
discovery requirements found in Federal Rule of Criminal Procedure 16 and
had significantly prejudiced the defense’s theory. The district court deferred
ruling on the mistrial motion until the Government finished its case-in-chief.
When the Government rested, Reed renewed his mistrial motion. The district
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                                     No. 17-30664
court found that the Government had violated Rule 16(a)(1)(E)(i) and granted
a mistrial as a remedy. But to give it time to consider the Government’s motion
for reconsideration the following day, the court did not release the jury.
      After hearing the reconsideration arguments, the court rescinded the
mistrial and, instead, granted a three-week recess. The recess would cure any
prejudice, the court reasoned, that the radio-log report had caused—especially
since Reed had not yet given an opening statement tying him to a particular
theory. Plus, the Government had reoffered its original plea deal, which Reed
could consider during the recess. Reed strenuously objected to this approach,
to no avail.
      Reed rejected the plea deal, continued with the trial three weeks later,
and took the stand himself. The jury convicted on all counts, and the court
sentenced him to prison for 57 years and 1 day. This appeal followed. Reed’s
only argument on appeal is that the district court abused its discretion in
granting the three-week recess—instead of a mistrial—as a remedy for the
Government’s Rule 16 violation.
                                           II.
      As a mistrial is an extreme remedy, it should be “used with the greatest
caution, under urgent circumstances, and for very plain and obvious cases.”
United States v. Ebron, 683 F.3d 105, 128 (5th Cir. 2012) (quotation omitted).
A denial of a motion for a mistrial based on a discovery violation is reviewed
for an abuse of discretion. 1 See United States v. McGrew, 165 F. App’x 308, 313
(5th Cir. 2006) (citing United States v. Holmes, 406 F.3d 337, 357 (5th Cir.
2005)).




      1 The Government argues that Reed’s claim was not properly preserved and that plain-
error review should therefore apply. We need not address this argument. Even under the
abuse-of-discretion standard, Reed’s claim fails.
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                                 No. 17-30664
      Generally, an abuse of discretion occurs only when “no reasonable person
could take the trial court’s adopted position.” United States v. Akpan, 407 F.3d
360, 369 (5th Cir. 2005) (quoting Whitehead v. Food Max of Miss., Inc., 332
F.3d 796, 803 (5th Cir. 2003)); see also United States v. Brooks, 681 F.3d 678,
711 (5th Cir. 2012). Additionally, even if an abuse of discretion is found, a
district court’s decision to deny a motion for a mistrial premised on a discovery
violation is only reversable error if “the defendant demonstrates prejudice to
his substantial rights.” McGrew, 165 F. App’x at 313 (citing Holmes, 406 F.3d
at 357).
      Reed cannot overcome this demanding standard. The district court’s
choice to hold a three-week recess instead of declaring a mistrial was
reasonable. It allowed Reed to evaluate the radio-log report, prepare for the
trial, and reevaluate the original plea deal, which the Government reoffered.
In short, it cured all the prejudice that the Government’s late disclosure of the
radio-log report caused without any of the costs of declaring a mistrial.
      Reed does not dispute these facts. Instead, he argues that although a
three-week recess would ordinarily be reasonable, it was an abuse of discretion
to implement it in his particular case. Reed claims his situation is unique. He
argues that he could not properly evaluate the renewed plea deal because his
judgment was clouded by his resolute belief that he had been treated unfairly
and been cheated out of a mistrial that was rightfully his. But a defendant’s
own hardheadedness is not a recognized source of prejudice for which a mistrial
has ever been granted. The district court’s choice to value the many benefits of
the recess over Reed’s stubborn insistence for a mistrial was not an abuse of
discretion.
      And even if it was, he cannot show that the abuse affected his substantial
rights. The only right Reed alleges was affected was his right to a fair
opportunity to consider the plea deal. But the recess gave him that opportunity;
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                                  No. 17-30664
he just chose not to take advantage of it. We reject Reed’s further contention
that his right to have an opportunity to consider a plea deal also includes a
right to consider the deal in the setting of his choice—i.e., the pretrial setting.
      AFFIRMED.




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