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                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-15137
                               ________________________

                      D.C. Docket No. 1:16-cr-00421-TWT-AJB-1



UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                             versus

STANLEY LAMAR BAILEY,


                                                                     Defendant-Appellant.

                               ________________________

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

                                     (February 19, 2019)

Before TJOFLAT and WILLIAM PRYOR, Circuit Judges, and MURPHY, *
District Judge.


*
 Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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MURPHY, District Judge:

      Stanley Lamar Bailey appeals his conviction for possessing a firearm as a

previously-convicted felon. After a traffic stop, flight, and brief pursuit, the

defendant—who undisputedly had a prior felony conviction—was arrested and

charged with possessing a handgun.

      At trial, Bailey’s ex-girlfriend testified for the prosecution that Bailey told

her in a phone call that he totaled his car. Bailey asked her on cross-examination

about a second phone call he made to her, during which he said that someone else

was driving his car and had fled from the police. The district court permitted the

witness to recite Bailey’s hearsay statements under the rule of completeness. The

prosecution then requested the district court’s permission to introduce two of

Bailey’s prior felony convictions to impeach him as a hearsay declarant. The

district court granted the request and the prosecution introduced the prior

convictions. On appeal, Bailey contends that the district court erred by admitting

the convictions and failing to perform Federal Rule of Evidence 609’s balancing

test before admitting the impeachment evidence.

      In its case in chief, the prosecution also called a probation officer to testify

about her reports on Bailey. Although the prosecution never provided the officer’s

reports to Bailey, the government did provide a written summary of the reports’

contents to him. And the trial court found that the summaries substantially

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complied with the Jencks Act, 18 U.S.C. § 3500 et seq. Bailey asserts that the trial

court erred in that conclusion.

      On appeal, Bailey argues that the district court erred in three discrete ways:

(1) by allowing the prosecution to impeach the defendant with his prior

convictions; (2) by failing to weigh the probative value of Appellant’s prior

convictions against their prejudicial effect under Rule 609; and (3) by improperly

finding that the government had substantially complied with its discovery

obligations under Criminal Rule 26.2. For ease of reference, we will address each

point in turn.

                                           I.

      Deciding whether to admit evidence is “committed to the sound discretion”

of the trial court. United States v. Bovain, 708 F.2d 606, 614 (11th Cir. 1983); see

also Fed. R. Evid. 806, 609. Thus, we review a district court’s admission of prior-

conviction evidence under Rule 609 for abuse of discretion. United States v.

Pritchard, 973 F.2d 905, 908 (11th Cir. 1992).

      When a district court admits a hearsay statement into evidence, “the

declarant’s credibility may be attacked . . . by any evidence that would be

admissible” if the declarant himself had testified as a witness. Fed. R. Evid. 806. In

certain circumstances, therefore, a declarant’s statements may be impeached by

evidence of a prior criminal conviction. See Fed. R. Evid. 609. Prior conviction


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evidence is admissible even if the defendant is the hearsay declarant. See Bovain,

708 F.2d at 613 (“Because [a non-testifying defendant] is a hearsay declarant, his

testimony may be treated like that of a witness (Rule 806), and as a witness, he can

be impeached (Rules 608, 609). Therefore, the . . . prior convictions were

admissible for impeachment purposes (Rule 609).”).

       Moreover, a criminal defendant’s hearsay statements elicited through a

defense witness fall within the purview of Rules 806 and 609. See United States v.

Scrima, 819 F.2d 996, 1001 (11th Cir. 1987) (“[T]he defense sought to place the

defendant’s remarks before the jury without subjecting them to scrutiny of cross-

examination. This is precisely what is forbidden by the hearsay rule.”).

       The trial court admitted a small subset of Bailey’s several convictions

pursuant to the applicable rules. Bailey fails to cite authority or offer convincing

arguments for his position that we should read a limitation into these rules to

prohibit the impeachment of a hearsay declarant whose statement is admitted under

the rule of completeness. Because the applicable rules plainly authorize the district

court’s ruling, we conclude that the district court did not abuse its discretion. 1 We

affirm in this respect.



1
  Having determined that the impeachment was proper, we also see no issue of the prosecution
using the conviction evidence in its rebuttal argument to urge the jury to weigh the credibility of
the defendant’s hearsay statements against the immunized government witness’s testimony.
Jurors are instructed to weigh the credibility of witnesses against impeached testimony. Because
the government lawyers did not suggest that Bailey was guilty of the charge on trial because his
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                                              II.

       When a defendant objects to evidence under Federal Rule of Evidence 609,

the trial court is required to make “an on-the-record finding under Rule 609(a)(1)

that the probative value of admitting the evidence outweighs its prejudicial effect.”

United States v. Preston, 608 F.2d 626, 639 (5th Cir. 1979). When an objection is

made at trial, but a new basis is raised for the first time on appeal for that

objection, we review for plain error. See United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir. 2005). To demonstrate plain error, Bailey must demonstrate

“(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. at 1298

(internal quotation omitted). Plain error justifies reversal of the district court only if

it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation omitted).

       Here, Bailey objected to the government’s use of his prior convictions only

under Rules 806 and 404, and he raised Rule 609 as a basis for objection for the

first time on appeal. We therefore review for plain error. Any error the district

court may have made by failing to conduct the Rule 609 balancing test on the

record was not plain. Balancing the prejudicial effect of the convictions against




past felonies gave him a propensity to commit the crime, the government rebuttal was proper and
the trial court committed no error by allowing it.
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their probative value lies within the district court’s discretion. And the balance

here would support introduction of the impeaching evidence as a matter of law.

      Although the admission of his prior convictions was prejudicial to Bailey, all

evidence offered against a criminal defendant is prejudicial. The question is

whether the prejudice outweighs the probative value of the evidence. And here it

did not. When the defendant introduced hearsay evidence regarding whether he

was at or near the vehicle in which the firearm was found—a central question in

the case—he put his credibility directly at issue. The government was therefore

entitled to challenge his credibility by impeaching the hearsay declarations with

limited evidence of past felony convictions. And that is precisely what the district

court allowed.

      The felonies admitted by the district court constituted only a subset of

defendant’s overall criminal record, were close in time to the criminal activity

charged in the indictment, and did not constitute evidence that touched upon

impermissible matters involving character, moral turpitude, or similar crimes

governed by Rule 404. In sum, the evidence was properly balanced to provide the

United States with grounds for impeachment while not substantially prejudicing

Bailey’s right to a fair trial. And, even if the district court committed error by not

balancing the Rule 609 factors on the record, it did not affect the fairness or

integrity of the trial. The United States presented additional evidence that Bailey


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possessed a gun—identification by an officer, Bailey's wallet in his car where the

gun was found, and multiple witnesses testifying about Bailey having a gun or gun

holster at various times. There is therefore no reason to remand the matter to the

district court.2

       Accordingly, we affirm in this respect.

                                              III.

       “We review a district court’s enforcement of Jencks disclosure requirements

for abuse of discretion.” United States v. Schier, 438 F.3d 1104, 1107 (11th Cir.

2006). And a district court’s Jencks Act findings are reviewed for clear error. Id.

       The Jencks Act establishes that, upon request, a district court must order the

government to produce to the defendant any witness statements in its possession

that relate to the subject matter of that witness’s testimony. See 18 U.S.C. § 3500.

       Bailey argues that the trial judge abused his discretion by failing to order the

United States to provide him with prior statements of a government witness and

that the trial judge plainly erred by not reviewing the statements in camera before

making his ruling. But the government agency in possession of the case notes—the

Georgia Department of Community Supervision—had not authorized the

prosecution to produce the notes at trial. The prosecution had also only received

2
  The district court also provided the jury with a limiting instruction designed to remind the
jurors that the convictions were to be considered as impeachment material and not evidence of
guilt, which further cured any potential unfairness.

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the contents of the case notes verbally, and it promptly turned over to the defense a

written summary detailing the information that it had received. Accordingly, the

prosecution stated that it complied with the Act by disclosing its own notes of the

materials, which it said included the relevant substance of the Jencks material. 3

The trial court agreed and determined that the prosecution “substantially complied”

with the Act.

       Based on representations the government made at trial, the district court

reasonably could have believed that the government did not have the notes in its

possession. Federal Rule of Criminal Procedure 26.2(a) provides:

       (a) Motion to Produce. After a witness other than the defendant has
       testified on direct examination, the court, on motion of a party who did
       not call the witness, must order an attorney for the government or the
       defendant and the defendant’s attorney to produce, for the examination
       and use of the moving party, any statement of the witness that is in their
       possession and that relates to the subject matter of the witness’s
       testimony.

Fed. R. Crim. P. 26.2(a) (emphasis added).

       Rule 26.2(a) requires the production only of statements that are “in [the

government’s] possession.” And we have held for purposes of criminal discovery

rules that the phrase “within the possession, custody, or control of the government”



3
 In many cases, federal law enforcement agencies found to be in full compliance with the Jencks
Act routinely turn over written summaries of oral witness statements (e.g., FBI “302s”) as
opposed to raw notes or random written recollections of the statements themselves. The
production of “302s”—as opposed to those other types of materials—represents full compliance
with the Act.
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does not include possession of a statement by persons who are not a part of the

prosecution’s team, such as when a statement is possessed by a federal or state

court, probation officers, or local law enforcement officers. See United States v.

Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997) (analyzing the issue in the context of

Fed. R. of Crim. P. 16(a)(1)(A)); United States v. Trevino, 556 F.2d 1265, 1271

(5th Cir. 1977) (observing that a presentence investigation report in the probation

officer’s possession was not also in the government’s possession for purposes of

several criminal discovery rules). Although Bailey argues that Jencks Act

disclosure obligations also extend to any statement that is “constructively

possessed” by the government, he fails to show that the facts here establish

constructive possession.4




4
  The government’s brief was ambiguous regarding whether it possessed the case notes at issue.
A recap of the government’s representations at trial shows that it did not. After Probation Officer
Michelle Vidal testified that she sought a warrant for Bailey’s arrest after he absconded from
supervision, Bailey requested the production of her “reports” about his conduct on supervision.
In response, the prosecutor stated that the “reports” were not reports in a traditional sense, but
were case notes stored electronically in a database of the Georgia Department of Community
Supervision. The prosecutor also explained that, based on the probation department’s
regulations, she was “not able to release them without [the agency’s] authorization.” Although
that statement might appear ambiguous about whether she had the reports in her possession, she
then clarified that she never possessed or had direct access to the reports. She stated that one
week earlier, the prosecution received the information in the reports “verbally,” and that they
were not “able to get the physical paper.” After “[the prosecution] got the information verbally
. . . the agent wrote reports summarizing that information” and delivered those reports to Bailey.
The government argued that, because the report covered all the information the government
received and it detailed the substance of what Vidal testified about, the government had satisfied
its disclosure obligations. Bailey admitted that he had received the report, and he did not dispute
the government’s factual allegations. The district court based its conclusion that the government
had “substantially complied” with its Jencks Act obligations on these representations.
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      Both of Bailey’s assignments of error for the district court’s Jencks Act

ruling fail for the same reason: the government did not possess the records Bailey

requested. As the record establishes, the government only “verbally” received a

summary of the contents of the reports; it never had the “physical paper” of the

reports or even had the opportunity to view the electronic records. The Jencks Act

and Rule 26.2(a) therefore do not apply to the records. To the extent the

government “possessed” the information in the records, it promptly turned the

information over to Bailey.

       “We may affirm on any ground supported by the record, regardless of

whether that ground was relied upon or even considered below.” Waldman v.

Conway, 871 F.3d 1283, 1289 (11th Cir. 2017). Because the record here

establishes that the government did not possess the records Bailey sought, the

district court did not abuse its discretion when it declined Bailey’s request to

produce the records under Rule 26.2(a) and the Jencks Act, and it did not plainly

err by not reviewing in camera records that were not subject to Rule 26.2(a) or the

Jencks Act.

      Accordingly, we affirm in this respect.

      AFFIRMED.




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