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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10076
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:15-cr-20503-UU-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

DONALD BRINSON,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 13, 2017)

Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Following a jury trial, Defendant Donald Brinson appeals his conviction for

being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C.

§§ 922(g) and 924(e). On the day trial was set to begin, the Government provided

defense counsel with several recordings of Defendant’s prison telephone calls.

Defense counsel requested a continuance: first, because she was not ready to

proceed and second, because she wanted time to review these phone calls. Ruling

that counsel should have been ready to proceed and that the phone calls would not

be allowed into evidence, the district court denied Defendant’s request for a

continuance, and moved forward with the trial. Defendant now challenges the

denial of his request for a continuance. After careful review, we affirm.

I. BACKGROUND

      A.     Factual Background

      On June 24, 2015, Miami-Dade Police Department Detective Ernesto

Rodriguez was on patrol when he encountered a vehicle that had been reported

stolen earlier in the day. Detective Rodriguez observed two people in the vehicle:

a male and a female. The vehicle did not initially stop when Detective Rodriguez

activated his patrol car lights but, shortly thereafter, the vehicle parked in the

driveway of a residence. When Detective Rodriguez approached the vehicle, he

observed the driver, later identified as Defendant, remove a firearm from his

waistband and place it between the center console and the passenger seat. After


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securing Defendant and the passenger, officers found a firearm in the area of the

vehicle between the center console and the front passenger seat. A subsequent

investigation revealed that the firearm was a stolen Glock pistol.

      B.     Procedural History

      A federal grand jury subsequently issued an indictment against Defendant

charging him with being a felon in possession of a firearm and ammunition, in

violation of 18 U.S.C. §§ 922(g) and 924(e).

      Defendant pled not guilty and proceeded to trial. In August 2015, Defense

counsel filed an unopposed motion to continue trial and stated that the defense

would be ready for trial the week of October 6, 2015 through October 19, 2015.

The district court set trial for October 19, 2015.

      At the calendar call on October 14, 2015, defense counsel informed the court

that Defendant was ready for trial. The court informed defense counsel that if the

case preceding it on the trial calendar, which was also one of defense counsel’s

cases, was resolved by a guilty plea instead of a trial, defense counsel should be

ready to try Defendant’s case.

      The court called the case for trial on October 19, 2015. But contrary to the

representation made at calendar call, defense counsel now announced that she was

not ready to proceed because she had not expected the preceding case to be

resolved by a guilty plea. She added, as another ground for delay, that the


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Government had just presented her with some recordings of Defendant’s prison

phone calls. The district court responded that the prison calls would not be

admitted into evidence. Expressing concern that these calls by her client might

include some Brady1 material, counsel asked if she could have a continuance after

selecting the jury to review the calls before providing her opening statement to the

jury. Government counsel responded that, while he had not personally listened to

the approximately 65 phone calls, he did not believe they contained any Brady

material based on his conversations with the case agent who had listened to them.

The Government explained that it was producing the recordings, as required by the

standing discovery order2 because the recordings contained statements of


1
    Brady v. Maryland, 373 U.S. 83 (1963).
2
  The standing discovery ordered required the parties to comply with Southern District of
Florida’s Local Rule 88.10. This rule provides in relevant part that:

         (a) The government shall permit the defendant to inspect and copy the following
         items or copies thereof, or supply copies thereof, which are within the possession,
         custody or control of the government, the existence of which is known or by the
         exercise of due diligence may become known to the government:

                (1) Written or recorded statements made by the defendant;

                (2) The substance of any oral statement made by the defendant before or
                after his arrest in response to interrogation by a then known-to-be
                government agent which the government intends to offer in evidence at
                trial;

                (3) Recorded grand jury testimony of the defendant relating to the
                offenses charged;

                (4) The defendant’s arrest and conviction record;


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Defendant. As to Defendant’s apparent argument that the Government had

violated the standing discovery order with the late production of these recordings,

the district court stated that although the standing discovery order required the

Government to produce statements of Defendant in its custody, it did not

necessarily require production of every prison phone call that a defendant may

have made. Characterizing Defendant’s argument as a “red herring,” the district

court denied the request for a continuance.

       At the two-day trial, the Government presented six witnesses during its case-

in-chief. After the district court denied Defendant’s motion for judgment of

acquittal, Defendant did not present any evidence or testify in his defense. The

jury ultimately found Defendant guilty as charged. At sentencing, the district court

determined that Defendant was an armed career criminal, 18 U.S.C. § 924(e), and

sentenced him to 180 months’ imprisonment. This appeal followed.




              (5) Except as provided in Fed. R. Crim. P. 16(a)(2), books, papers,
              documents, photographs, tangible objects, buildings or places, or copies or
              portions thereof, which are material to the preparation of the defendant’s
              defense, or which the government intends to use as evidence at trial to
              prove its case-in-chief, or which were obtained from or belonging to the
              defendant; and

              (6) Results or reports of physical or mental examinations, and of scientific
              tests or experiments, made in connection with this case.

S.D. Fla. Loc. R. 88.10 (2015).

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II. DISCUSSION

       We review the district court’s denial of a motion to continue trial for an

abuse of discretion. United States v. Graham, 643 F.3d 885, 893 (11th Cir. 2011).

In order to succeed on this claim, a defendant must show any abuse of discretion

resulted in substantial prejudice. United States v. Verderame, 51 F.3d 249, 251

(11th Cir. 1995). “This issue must be decided in light of the circumstances

presented, focusing upon the reasons for the continuance offered to the trial court

when the request was denied.” United States v. Knowles, 66 F.3d 1146, 1160–61

(11th Cir. 1995).

       Here, Defendant has not shown that he was substantially prejudiced by his

inability to review the recorded telephone calls prior to the beginning of the trial.

First, the record shows that none of the recorded telephone calls were introduced at

trial. In fact, the Government agreed that it would not use any of the phone calls

and the district court made clear that the telephone calls would not be admitted into

evidence. As to whether the calls contained any exculpatory information,

apparently they did not, given the fact that with months of time after trial to listen

to the calls, Defendant has still been unable to point to any exculpatory or

impeachment information contained in these calls. 3 See United States v. Saget,


3
  The Government also notes that Defendant had the ability to subpoena the recorded telephone
calls had counsel thought them to be potentially useful.


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991 F.2d 702, 708 (11th Cir. 1993) (concluding that defendant failed to show

substantial prejudice resulting from the district court’s denial of his motion for a

continuance because he did not “identify relevant, non-cumulative evidence that

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

Defendant’s failure to explain what evidentiary value any of his prior statements

had means that he has shown no prejudice, much less substantial prejudice, based

on the denial of his continuance motion.

       Defendant responds, however, that the prejudice he suffered from the

Government’s violation of the standing discovery order was the inability to make

an informed decision about whether to testify in his own defense. Even assuming

that the Government’s disclosure of the recorded telephone calls on the first day of

trial violated the standing discovery order,4 Defendant still cannot prevail on his

argument because he shows no substantial prejudice. United States v. Camargo-

Vergara, 57 F.3d 993, 998 (11th Cir. 1995) (explaining that the violation of a

standing discovery order constitutes reversible error only when there is substantial

prejudice, meaning that the “defendant is unduly surprised and lacks an

opportunity to prepare a defense”). Defendant’s claim that he might have testified

had he just known what was on the tapes is too speculative to establish substantial


4
  The record does not indicate when the Government first obtained these recordings. Thus, we
cannot ascertain whether there was a delay in disclosure significant enough to imply a violation
of the standing discovery order.
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prejudice.5 Cf. Luce v. United States, 469 U.S. 38, 41 (1984) (concluding that it

could not meaningfully review defendant’s claim challenging the district court’s

ruling permitting the admission of impeachment evidence because the defendant

did not testify and therefore the Government did not have the opportunity to use

the impeachment evidence); see also United States v. Hall, 312 F.3d 1250, 1256–

58 (11th Cir. 2002) (determining that the potential harm stemming from district

court’s pre-trial evidentiary ruling under Fed. R. Evid. 404(b) was speculative

because the defendant did not testify).

       Moreover, because the Government’s case extended over two days,

Defendant and his two lawyers had the entire evening after the first day of trial to

listen to some of the calls and determine whether they would impact Defendant’s

decision to testify. Indeed, Defendant never expressed any concern to the district

court that the phone conversations might contain impeachment evidence. Cf.

United States v. Rivera, 944 F.2d 1563, 1566 (11th Cir. 1991) (concluding that

defendant had not shown that he was substantially prejudiced by the Government’s

late disclosure of a statement made by the defendant because it was defendant’s

“own statement which he should have had some knowledge of making”).



5
  As to Defendant’s statement in his brief that he was originally planning to testify and dispute
the officer’s version of events, the Government disputes the plausibility of this assertion, given
what the Government characterizes as Defendant’s “vast criminal history” that would have been
exposed through cross-examination had Defendant taken the stand.


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       In short, Defendant has offered only speculation that listening to these

recordings of calls he made might have prompted him to testify. This speculation

does not constitute substantial evidence of prejudice. Therefore, Defendant has

failed to demonstrate that the district court abused its discretion by denying his

motion for a continuance.6

       AFFIRMED.




6
  Defendant attaches an index of the recorded telephone conversations to his appellate brief and
asks us to supplement the record with this index. We deny his request. See Jones v. White, 992
F.2d 1548, 1567 (11th Cir. 1993) (“We have not allowed supplementation when a party has
failed to request leave of this court to supplement a record on appeal or has appended material to
an appellate brief without filing a motion requesting supplementation.”); see also Selman v.
Cobb Cty. Sch. Dist., 449 F.3d 1320, 1332 (11th Cir. 2006) (“In deciding issues on appeal we
consider only evidence that was part of the record before the district court.”).
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