                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-12527                 AUG 26, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                          D.C. Docket No. 6:09-mc-00029-ACC-GJK

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff–Appellee,

                                            versus

DANIEL E. KOWALLEK,

lllllllllllllllllllll                                          Defendant–Appellant.

                                ________________________

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

                                      (August 26, 2011)

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

         After a trial before a magistrate judge, Daniel E. Kowallek was convicted of

engaging in disorderly conduct in a national park in violation of 36 C.F.R.
§ 2.34(a)(2). Kowallek appealed his conviction to the district court, which

affirmed. Kowallek, who represented himself at trial and is proceeding pro se on

appeal as well, appeals once more and asks that we overturn his conviction for

three separate reasons.1

       First, Kowallek argues that the citation he was issued does not sufficiently

apprise him of the charges against him. Second, he argues that the government

violated Federal Rule of Criminal Procedure 26.2 by failing to disclose a pre-trial

statement made by the only witness against him. And last, Kowallek challenges

the sufficiency of the evidence used to obtain his conviction. Because we

conclude that Kowallek had sufficient notice of the charges against him, that any

violation of Rule 26.2 was harmless, and that the government presented sufficient

evidence to obtain a conviction, we affirm.

       On November 8, 2008, Kowallek was cited for committing obscene acts and

engaging in disorderly conduct at Playalinda Beach at the Canaveral National

Seashore. The citation listed the date, time, and place of the offense, the

regulation that Kowallek allegedly violated, and also included a brief description

of the disorderly conduct that tracked the regulation’s language. In February



       1
         Because Kowallek is proceeding pro se, we read his briefs liberally. McBride v.
Sharpe, 25 F.3d 962, 971 (11th Cir. 1994).

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2009, Kowallek made his initial appearance before the magistrate judge and the

charges against him were explained in greater detail than they were in the citation.

Kowallek now argues that the citation deprived him of due process because its

generic information prevented him from preparing a defense.

      Federal Rule of Criminal Procedure 58 allows for a petty offense, like the

one Kowallek was charged with, to proceed to trial based on a violation notice or

citation. Fed. R. Crim. P. 58(b)(1). Rule 58 contemplates that the charging

document for a petty offense need not be as formal or require as much as an

indictment or information would. But the rule also contains additional safeguards

to ensure that a defendant receives due process. Specifically, a defendant must be

informed of the charges against him at his initial appearance before a magistrate

judge. Id. (b)(2). In reviewing the sufficiency of an indictment, we have said

“even an inadequate indictment satisfies due process if the defendant has actual

notice [of the charges against him], such that [he] suffers no prejudice.” United

States v. Odom, 252 F.3d 1289, 1298 (11th Cir. 2001).

      Here, we conclude that because Kowallek was informed of the charges

against him at his initial appearance, including the factual allegations against him,

he suffered no prejudice and thus due process was satisfied. And although

Kowallek argues that the citation should have contained a description of the exact

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location where the offense was alleged to have occurred, we conclude that the

citation was sufficient. We have held previously that an indictment that alleges

that an offense took place in a specific judicial district is sufficient to put a

defendant on notice of where a crime was committed. See United States v. Steele,

178 F.3d 1230, 1234 n.1 (11th Cir. 1999). The offense that Kowallek was charged

with required the offense to have taken place within a national park. 36 C.F.R. §

2.34(b). The citation alleged that Kowallek violated the regulation at Playalinda

Beach at the Canaveral National Seashore, somewhere north of mile marker 13.

Whether the offense took place somewhere to the north or the south of mile

marker 13 is immaterial, so long as it was committed at the Canaveral National

Seashore. No greater specificity was required.

      Kowallek also argues that the government violated Rule 26.2 by not

producing the probable cause statement made by the only witness against him.

Rule 26.2 requires the government to produce a witness’s pre-trial statement

relevant to that witness’s testimony after that witness has testified on direct

examination upon motion by the defendant. Kowallek did not move for the

statement’s production immediately after the government’s witness testified on

direct examination. It was only after the government showed the statement to

Kowallek while it was cross-examining him, that he did. The magistrate judge

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said that Kowallek could have a copy of the statement. But the government did

not have an extra copy, and mistakenly responded that the document was on the

docket. Additionally, the district court did not grant a recess for Kowallek to

examine the statement but instead proceeded to closing arguments. But even

assuming that the government did not produce the statement, the error was

harmless. United States v. Jones, 601 F.3d 1247, 1266 (11th Cir. 2010). Although

Kowallek contends that the statement differs from the witness’s testimony, after

reviewing both, we are not persuaded that is so. The witness’s statement says that

he saw two men seated approximately 15 and 25 feet to the south of Kowallek. At

trial, the witness testified that he saw one man seated 25 feet to south, and then he

saw another man to his (the witness’s) left who was about 15 feet from the

defendant. Although it might be ambiguous, that statement does not contradict the

witness’s statement and thus it would not have had any impeachment value.

Because the statement and the testimony did not differ, any error from its non-

production was harmless.

      We now address whether the government presented sufficient evidence to

obtain a conviction, which is a legal question that we review de novo. United

States v. Pruitt, 638 F.3d 763, 765 (11th Cir. 2011). We view the evidence in the

light most favorable to the government and ask whether it would permit the

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magistrate judge to have found the defendant guilty beyond a reasonable doubt.

United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). We do not

generally reevaluate credibility determinations or pass upon the weight of the

evidence. Id. Only if we have a definite and firm conviction that the magistrate

judge’s conclusions about a witness’s credibility were wrong, will we disturb

them. United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997). And

should a defendant testify in his own defense, a fact finder may disbelieve the

defendant’s statement and consider it as substantive evidence of guilt. United

States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004).

      Although the government’s witness was unable to recall the conditions at

the beach or how many people were at the beach on November 8, 2008, he did

testify that he watched Kowallek engage in disorderly conduct on the beach that

day. And a witness’s capacity to remember events is only one factor in evaluating

testimony. United States v. Lopez, 985 F.2d 520, 524 (11th Cir. 1993). In

addition, the magistrate judge was free to disbelieve Kowallek’s own testimony

and take it as evidence of his guilt. Accordingly, we conclude that sufficient

evidence supports Kowallek’s conviction.

AFFIRMED.




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