                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-12566                ELEVENTH CIRCUIT
                                   Non-Argument Calendar            SEPTEMBER 8, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                         D.C. Docket No. 8:09-cr-00387-VMC-TBM-2

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

CURTIS SPEIGHT,
a.k.a. Curtis Lavar Speight,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

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

                                     (September 8, 2011)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:

         Curtis Speight appeals his convictions for conspiracy to possess with intent
to distribute five or more grams of cocaine base, in violation of 21 U.S.C. §§ 846

and 841(b)(1)(B)(iii), and possession with intent to distribute five or more grams

of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). On

appeal, Speight argues that the district court should have granted a mistrial after a

government witness testified about his involvement in other uncharged crimes. He

also asserts that the district court erred by denying his motion for a continuance to

secure the testimony of an additional witness who could have rebutted the

testimony of his brother, Leonard Speight, who was a witness for the government.

Finally, Speight argues that the district court should have directed the government

to provide him with Jencks Act materials relevant to Leonard’s testimony. For the

reasons stated below, we affirm.

                                          I.

      A grand jury charged Speight with conspiracy to possess with intent to

distribute five or more grams of cocaine base, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(B)(iii), and possession with intent to distribute five or more grams of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Speight’s

brother Leonard also was charged in the indictment. Leonard pled guilty shortly

before the trial began.

      At Speight’s trial, the government called a series of law enforcement

                                          2
officers who testified to the following facts. On July 24, 2009, Detective Eddie

Benitez of the Lakeland, Florida, Police Department received a tip that Speight

was going to be transporting crack cocaine in a Ford F150 pickup truck. A check

of Speight’s driving history revealed that his license had been suspended. Benitez

and Detective Jason Perez located Speight’s truck and followed it until they

observed it run a stop sign. The detectives radioed for a marked patrol unit to stop

the truck.

      Officer Oscar Wesley responded to the call, pulled up behind the truck, and

activated his lights and siren. However, the truck failed to pull over. Suddenly,

Leonard jumped out of the passenger’s side of the vehicle and ran through an

opening between some bushes. Wesley exited his vehicle and pursued Leonard on

foot. He saw Leonard drop what appeared to be styrofoam plates. Wesley

eventually took Leonard into custody. Officer Ruben Garcia later recovered the

styrofoam plates and discovered pieces of crack cocaine in the vicinity.

      Meanwhile, Detectives Benitez and Perez were traveling down another

street in an attempt to head off the truck. Benitez heard over the radio that a

passenger had jumped out of the truck, so he exited the vehicle in order to catch

the passenger if he attempted to flee in that direction. Meanwhile, Perez drove

down Davis Street, where he saw Speight’s truck pull into a driveway of a

                                          3
residence and then start to back out again. Perez positioned his vehicle to block

the truck, and then arrested Speight for driving on a suspended license. A few

weeks later, Detective Benitez arrested Speight on the present drug trafficking

charges. After waiving his Miranda1 rights, Speight admitted that he had

purchased the crack cocaine and identified his supplier.

      At one point, the prosecutor asked Detective Perez to relate what happened

after he stopped Speight’s truck. Perez responded, “I asked him to step out of the

vehicle, which he complied. I asked him if he had a driver’s license. He did not.

He was placed under arrest for driving while license suspended or revoked, and a

search incident to arrest yielded a small amount of cannabis in his pocket.”

Defense counsel objected to that statement and moved for a mistrial. The district

court declined to order a mistrial, but it did instruct the jury to disregard the

testimony about the marijuana.

      Speight’s brother Leonard testified on behalf of the government. Leonard

explained that, on the date in question, he and Speight had driven to a residence

where Speight had purchased crack cocaine. As they were driving, a police car

pulled up behind them and activated its lights. Leonard started to hide the drugs in

the glove compartment, but Speight told him that he had to do better than that.


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                                4
Leonard then took the crack cocaine, jumped out of the truck, and ran through the

hedges. Eventually, Officer Wesley caught Leonard and placed him under arrest.

Leonard confirmed that Speight was planning to sell the crack cocaine.

      Following Leonard’s testimony, the government rested its case. Defense

counsel briefly recalled Detective Benitez, and then informed the court that he did

not have any further witnesses. The district court then inquired whether Speight

intended to testify in his own defense. Defense counsel stated that he was not

planning to call Speight as a witness. Counsel then started to argue that, under the

Jencks Act, the government should have turned over all of the recorded telephone

calls that Leonard had made while in custody. Counsel acknowledged that the

government probably was not in possession of those recordings, but he asserted

that they were nonetheless subject to disclosure under the Jencks Act. The district

court responded, “At the present moment, Mr. Hovsepian, I wish to proceed with

what we started out to discuss.” The court then engaged in a colloquy with

Speight to confirm that he did not wish to testify. Defense counsel did not renew

his Jencks Act argument and the district court never ruled on that issue.

      Defense counsel later moved for a continuance to secure the testimony of a

rebuttal witness who would be able to impeach Leonard’s testimony. Counsel

explained that Speight had just told him about a witness in the Pinellas County Jail

                                         5
who would have some information regarding Leonard’s testimony. The district

court denied the motion for a continuance. The jury convicted Speight with

respect to both counts of the indictment, and the district court sentenced him to

concurrent terms of 235 months’ imprisonment.

                                           II.

      In the proceedings below, Speight objected to Detective Perez’s testimony

about the marijuana found on his person, but not the testimony that he was driving

on a suspended license. Therefore, we are reviewing Speight’s arguments

regarding the marijuana for an abuse of discretion, and his arguments concerning

the suspended license for plain error. See United States v. Emmanuel, 565 F.3d

1324, 1334 (11th Cir. 2009) (a district court’s refusal to grant a mistrial is

reviewed for an abuse of discretion); United States v. Edouard, 485 F.3d 1324,

1343 (11th Cir. 2007) (unpreserved evidentiary objections are reviewed for plain

error). Under the plain error standard, a defendant must establish: (1) error; (2)

that is plain; and (3) that affects his substantial rights. Id. at n.7. An error affects

a defendant’s substantial rights if there is a reasonable probability that it altered

the outcome of the case. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th

Cir. 2005). If the first three elements of plain error review are met, this Court has

discretion to correct an error that “seriously affects the fairness, integrity, or public

                                            6
reputation of judicial proceedings.” Edouard, 485 F.3d at 1343 n.7 (quotation

omitted).

      A district court should grant a mistrial based on improper testimony only if

there is a reasonable probability that the testimony altered the outcome of the case.

Emmanuel, 565 F.3d at 1334. The stronger the government’s case, the less likely

it is that the inadmissible evidence had an effect on the verdict. United States v.

Rouco, 765 F.2d 983, 992 (11th Cir. 1985). If the district court issued a curative

instruction, this Court will reverse only if “the evidence is so highly prejudicial as

to be incurable by the trial court's admonition.” United States v. Slocum, 708 F.2d

587, 598 (11th Cir. 1983).

      Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith,” but can be admitted for other purposes. Fed.R.Evid. 404(b). Rule

404(b) only applies to evidence that is extrinsic to the charged offenses. Edouard,

485 F.3d at 1344. Evidence is not extrinsic, and therefore falls outside the scope

of Rule 404(b), if it is: “(1) an uncharged offense which arose out of the same

transaction or series of transactions as the charged offense, (2) necessary to

complete the story of the crime, or (3) inextricably intertwined with the evidence

regarding the charged offense.” Id. (quotation omitted).

                                           7
       In this case, the district court did not abuse its discretion by denying

Speight’s motion for a mistrial after Detective Perez testified that he found a small

amount of marijuana on Speight’s person. The government introduced substantial

evidence of Speight’s guilt, including the testimony of the law enforcement

officers, Speight’s own confession, and the testimony of his brother Leonard. In

light of that overwhelming evidence, it is unlikely that Detective Perez’s brief

statement about the marijuana had a significant impact on the jury’s verdict. The

court’s instruction to the jury to disregard that testimony was sufficient to cure any

prejudice that the detective’s remark might have caused. See Slocum, 708 F.2d at

598.

       In addition, the district court did not commit plain error by failing to sua

sponte exclude the evidence that Speight had been driving on a suspended license.

That testimony was not extrinsic under Rule 404(b) because it was necessary to

complete the story of Speight’s arrest. See Edouard, 485 F.3d at 1344. Also, that

testimony was not particularly prejudicial, so it likely did not have any impact on

the jury’s verdict. Speight has not established that the admission of that testimony

affected his substantial rights. See Rodriguez, 398 F.3d at 1299.

                                          III.

       We review the denial of a motion for a continuance for an abuse of

                                           8
discretion. United States v. Douglas, 489 F.3d 1117, 1128 (11th Cir. 2007). We

examine the district court’s decision “in light of the circumstances presented,

focusing upon the reasons for the continuance offered to the trial court when the

request was denied.” Id. (quotation omitted). Relevant factors include:

      (1) the diligence of the defense in interviewing the witness and
      procuring his testimony; (2) the probability of obtaining the testimony
      within a reasonable time; (3) the specificity with which the defense
      was able to describe the witness’s expected knowledge or testimony;
      and (4) the degree to which such testimony was expected to be
      favorable to the accused, and the unique or cumulative nature of the
      testimony.

Id. The defendant must show that the denial of a continuance caused him

“specific substantial prejudice.” Id. (quotation omitted). To establish specific

prejudice, the defendant “must identify relevant, non-cumulative evidence that

would have been presented if his request for a continuance had been granted.”

United States v. Saget, 991 F.2d 702, 708 (11th Cir. 1993).

      This Court reviews constitutional issues de novo. Douglas, 489 F.3d at

1126. The Sixth Amendment protects a criminal defendant’s right to confront the

witnesses against him. U.S. Const. amend. VI. “The principal protection derived

from the confrontation right is the right to effective cross-examination of the

[government’s] witnesses.” Childers v. Floyd, 642 F.3d 953, 972 (11th Cir. 2011)

(en banc), pet. for cert. filed, (U.S. July 6, 2011) (No. 11-42).

                                           9
      In this case, the district court did not abuse its discretion by denying

Speight’s motion for a continuance. Speight informed the district court that his

new witness would rebut Leonard’s testimony, but he did not provide any

additional information about the witness. He did not describe the witness’s

expected knowledge or testimony with specificity, nor did he explain how the

witness’s testimony would be non-cumulative and favorable to his defense. See

Douglas, 489 F.3d at 1128. Therefore, it was reasonable for the district court to

deny the motion for a continuance.

      Moreover, the denial of a continuance did not violate Speight’s right to

confrontation. Although Speight contends that the right to confrontation also

includes the right to call rebuttal witnesses, he does not cite to any precedent to

support that argument. Speight was given a full and fair opportunity to

cross-examine Leonard, which is all that the Confrontation Clause requires. See

Childers, 642 F.3d at 972.

                                         IV.

      A district court’s enforcement of the Jencks Act’s disclosure requirements is

reviewed for an abuse of discretion. United States v. Schier, 438 F.3d 1104, 1107

(11th Cir. 2006). The Jencks Act requires the government to “produce any

statement . . . of the witness in the possession of the United States which relates to

                                          10
the subject matter as to which the witness has testified.” See 18 U.S.C. § 3500(b).

“A statement is ‘in the possession of the United States’ for Jencks Act purposes if

it is in the possession of a federal prosecutorial agency.” United States v.

Cagnina, 697 F.2d 915, 922 (11th Cir. 1983).

      In this case, Speight has not established that the government violated the

Jencks Act. Speight argues that the prosecution should have turned over

recordings of Leonard’s telephone calls from the Pinellas County Jail, but there is

nothing in the record to suggest that the government actually possessed those

recordings. In fact, defense counsel acknowledged below that the government

probably did not have the recordings. Moreover, Speight has not established that

the recorded calls were related to the subject matter of Leonard’s testimony. See

18 U.S.C. § 3500(b). Because Speight has not identified any specific materials

relevant to Leonard’s testimony that the government had in its possession but

failed to disclose, he has failed to establish a violation of the Jencks Act. See 18

U.S.C. § 3500(b); Cagnina, 697 F.2d at 922. In light of the foregoing, it is

unnecessary for us to address the government’s alternative argument that this issue

is unreviewable because Speight failed to obtain a ruling from the district court.

      Accordingly, after review of the record and the parties’ briefs, we affirm

Speight’s convictions.

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AFFIRMED.




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