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                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14302
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 3:13-cr-00093-MCR-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

PRESTON LEE JOHNSON, JR.,

                                                          Defendant-Appellant.

                       ________________________

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

                              (June 25, 2015)

Before HULL, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
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      After a jury trial, Preston Lee Johnson, Jr., appeals his conviction for one

count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e). On appeal, Defendant Johnson challenges: (1) the district

court’s denial of his motion for a mistrial; and (2) the admission of his 2003

Florida conviction for possession of a firearm by a convicted felon. After review,

we affirm.

                           I. BACKGROUND FACTS

      Defendant Johnson’s firearm charge arose from an incident in which he

carried a shotgun onto a neighbor’s porch after an argument. The following facts

are based on the government’s trial evidence to which Defendant Johnson either

did not object at trial or does not now raise any evidentiary issue on appeal.

      On March 14, 2013, officers with the Escambia County Sheriff’s Office

responded to an armed disturbance call at the home of George Jenkins at 1595

West Yonge Street. According to Jenkins, Johnson lived “right down the street”

with his brother Ray. On the evening of March 14, Johnson entered Jenkins’s

home yelling about a woman who owed him money for washing a car. Another

neighbor apologized, quickly removed Johnson from Jenkins’s home, and walked

Johnson down the street.

      About an hour later, however, Defendant Johnson reappeared on Jenkins’s

porch, pumping a shotgun and staggering under the influence of alcohol. Jenkins


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told Johnson he was going to call the police, and then called 911. In the 911 call,

Jenkins told the operator “Ray’s brother,” who “stay[s] right down the street,” had

come over to his porch with a 12-gauge shotgun.

      When the officers arrived, Jenkins told them that a man named Preston had

brought a shotgun onto his front porch, yelled, and ejected a round of ammunition

from the gun. Jenkins told the officers Preston was “Ray’s brother” and indicated

where he thought Preston lived. The officers also found and collected a live

Winchester 12-gauge shotgun shell on Jenkins’s porch.

      One of the officers, Sergeant Michael Hoyland, realized he had interacted

with Preston a few hours earlier and identified him as Defendant Johnson.

Sergeant Hoyland went to an address at 1609 West Yonge Street that Johnson had

provided earlier, which was about a block away. Sergeant Hoyland found Johnson

in a shed behind the house, which appeared to be empty and under renovation.

Johnson was sleeping on a mattress, with a shotgun leaning against the wall and

some shells in a nearby backpack. The officers could not rouse Johnson, and did

not arrest him, but they seized the shotgun and some shells, leaving a note advising

him the property had been seized. The shotgun was a Browning 12-gauge shotgun

made in Japan, and the 12-gauge shotgun shells were made by Winchester in

Illinois and by Remington in Arkansas.




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      The next day, Special Agent Brent Carrier with the Bureau of Alcohol,

Tobacco, Firearms and Explosives, after determining that Defendant Johnson was

a convicted felon, visited Jenkins’s home and retrieved an additional 12-gauge

Winchester shotgun shell that was lying in Jenkins’s garden.

      A few days later, on March 18, 2013, Agent Carrier visited the 1609 West

Yonge Street address where Defendant Johnson had been found with the shotgun.

Johnson agreed to speak with Agent Carrier, and during the interview, admitted

drinking with Jenkins, leaving after getting into an argument, and then reappearing

at Jenkins’s residence with the shotgun and some shells. Johnson also admitted he

knew he was not allowed to possess a firearm because of his status as a convicted

felon. With Johnson’s permission, Agent Carrier searched the shed, saw a twin

mattress on the floor, and saw no indications anyone lived in the shed other than

Johnson. The house on the property appeared to Agent Carrier to be under

renovation with no one living in it.

                                 II. DISCUSSION

A.    Motion for a Mistrial

      Prior to trial and at Defendant Johnson’s request, the government provided

Johnson with a one-page report prepared by Agent Carrier that summarized his

March 18 interview with Johnson. At trial, Agent Carrier, in testifying about the

interview, mentioned three statements by Defendant Johnson that were not


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included in his one-page report. Specifically, Agent Carrier testified that Johnson

said: (1) he was living in the shed where officers found him asleep next to a

shotgun; (2) he was helping his brother Ray renovate the house on the property;

and (3) no one else lived in the shed.

      Defense counsel did not object to Agent Carrier’s testimony. Instead, on

cross-examination, defense counsel asked Agent Carrier about each of the three

statements and had Agent Carrier admit that he did not include them in his one-

page report. After Agent Carrier’s testimony, Defendant Johnson moved for a

mistrial, arguing outside the jury’s presence that these three omissions from Agent

Carrier’s report violated Federal Rule of Criminal Procedure 16. Defense counsel

stated that Agent Carrier’s testimony had undermined his defense strategy that

others had access to the shed and the shotgun.

      After a recess to review the trial transcript, the district court pointed out that

other government witnesses had testified to the same underlying information—that

Johnson lived with his brother Ray and that Johnson had said to Sergeant Hoyland

that he lived at the 1609 West Yonge Street address. The district court denied

Johnson’s motion, concluding that, given the other trial testimony, the Rule 16

violation did not result in incurable prejudice. The district court struck Agent

Carrier’s testimony as to those three statements from the record and gave the jury a

curative instruction, telling the jury to remove from their memories Agent Carrier’s


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testimony about those three statements and to “not consider [those] statements in

any way in arriving at [their] verdict.”

      Rule 16 requires the government, upon the defendant’s request, to “disclose

to the defendant the substance of any relevant oral statement made by the

defendant, before or after arrest, in response to interrogation by a person the

defendant knew was a government agent if the government intends to use the

statement at trial.” Fed. R. Crim. P. 16(a)(1)(A). “A discovery violation does not

automatically preclude the government’s use of the evidence at trial.” United

States v. Quinn, 123 F.3d 1415, 1423 (11th Cir. 1997) (alteration omitted). And,

even if a Rule 16 violation occurred, we will not reverse unless the violation

prejudiced a defendant’s substantial rights, meaning that actual prejudice must be

shown. See United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999). The

defendant’s substantial rights are violated when the “defendant is unduly surprised

and lacks an adequate opportunity to prepare a defense, or if the mistake

substantially influences the jury.” United States v. Camargo-Vergara, 57 F.3d 993,

998–99 (11th Cir. 1995); see also United States v. Noe, 821 F.2d 604, 607 (11th

Cir. 1987) (“[T]he degree to which [a defendant’s trial] rights suffer as a result of a

discovery violation is determined not simply by weighing all of the evidence




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introduced, but rather by considering how the violation affected the defendant’s

ability to present a defense.”).1

       Here, we conclude that the district court did not abuse its discretion in

denying Defendant Johnson’s motion for a mistrial. Even if the government

violated Rule 16, the admission of the three statements did not prejudice Johnson’s

substantial rights. As the district court noted, prior to Agent Carrier’s testimony,

Jenkins testified that Johnson lived with his brother Ray down the street and

Sergeant Hoyland testified that Johnson had told him the 1609 Yonge Street

address was his residence. Sergeant Hoyland also testified that no one else

appeared to be living in the main house, which was under renovation, or in the

shed with Johnson.

       In addition to this testimony, the government had already presented Agent

Carrier’s testimony that Defendant Johnson admitted holding the shotgun in front

of Jenkins’s home and knowing he could not possess a firearm as a result of his

prior felony conviction. Admission of these properly disclosed statements had

already substantially undercut Defendant Johnson’s defense that he had only fallen

asleep next to the shotgun in a shed over which he did not have exclusive control.

Even before trial, defense counsel knew from the disclosed report that she would

       1
        We review the denial of a motion for mistrial for abuse of discretion. United States v.
Chavez, 584 F.3d 1354, 1362 (11th Cir. 2009). We also review district court rulings on alleged
discovery violations under Rule 16 for abuse of discretion. United States v. Hastamorir, 881
F.2d 1551, 1559 (11th Cir. 1989).
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need to either impeach Agent Carrier or explain Johnson’s statements to Agent

Carrier in order to obtain an acquittal. Given the evidence that was already before

the jury, Agent Carrier’s testimony about the three undisclosed statements did not

“shatter[ ]” Defendant Johnson’s trial strategy. See Camaro-Vergara, 57 F.3d at

999.

       Furthermore, the district court provided a curative instruction following

Agent Carrier’s testimony. Absent any indication to the contrary, we presume the

jury followed the district court’s instruction and disregarded the three undisclosed

statements in reaching their guilty verdict. See United States v. Mock, 523 F.3d

1299, 1303 (11th Cir. 2008) (concluding there was nothing in the record to suggest

the jury failed to follow the court’s curative instruction to disregard certain

evidence). Under the specific facts of this case, the district court did not abuse its

discretion in denying Defendant Johnson’s motion for a mistrial.

B.     Prior Firearm Conviction

       Defendant Johnson argues that the district court erred in denying his motion

in limine and admitting into evidence his 2003 Florida conviction—for possession

of a firearm, a shotgun, by a convicted felon—because it was irrelevant and unduly

prejudicial.2



       2
         We review a district court’s denial of a motion in limine for abuse of discretion. United
States v. Thompson, 25 F.3d 1558, 1563 (11th Cir. 1994). We also review for abuse of
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       Under Federal Rule of Evidence 404(b), evidence of “a crime, wrong, or

other act” is not admissible to prove “a person’s character in order to show that on

a particular occasion the person acted in accordance with the character.” Fed. R.

Evid. 404(b)(1). Such evidence “may be admissible for another purpose,”

however, such as to prove a defendant’s motive, intent, knowledge, or absence of

mistake. Id. 404(b)(2). To be admissible, the Rule 404(b) evidence must (1) be

relevant to an issue other than the defendant’s character, (2) be sufficiently proven

to allow a jury to find that the defendant committed the extrinsic act, and (3)

possess probative value that is not substantially outweighed by its undue prejudice

under Federal Rule of Evidence 403. United States v. Sanders, 668 F.3d 1298,

1314 (11th Cir. 2012). Rule 404(b) is a rule of inclusion that “allows extrinsic

evidence unless it tends to prove only criminal propensity.” Id.

       With regard to the first prong, a convicted felon’s knowing possession of a

firearm at a previous time is relevant to whether his possession of a firearm at a

later time is knowing rather than mistaken or accidental. United States v. Jernigan,

341 F.3d 1273, 1281 (11th Cir. 2003). With regard to the third prong, to determine

whether the probative value of the prior firearm offense is substantially outweighed

by its prejudicial effect, a district court must make “a common sense assessment of

all the circumstances surrounding the extrinsic offense, including prosecutorial

discretion a district court’s decision to admit or exclude evidence. United States v. Smith, 122
F.3d 1355, 1357 (11th Cir. 1997).
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need, overall similarity between the extrinsic act and the charged offense, as well

as temporal remoteness.” Id. at 1282 (quotation marks omitted).

      Even if a district court erroneously admitted evidence under Rule 404(b), we

may still affirm if the error was harmless. United States v. Hubert, 138 F.3d 912,

914 (11th Cir. 1998); see also Fed. R. Evid. 103(a); Fed. R. Crim. P. 52(a).

Evidence admitted in violation of Rule 404(b) is harmless where there is

substantial evidence of the defendant’s guilt. United States v. Chavez, 204 F.3d

1305, 1317 (11th Cir. 2000); see also United States v. Harriston, 329 F.3d 779, 789

(11th Cir. 2003) (stating that the admission of a prior conviction is harmless

“where there is overwhelming evidence of guilt”).

      Here, Defendant Johnson did not show the district court abused its discretion

in admitting his 2003 Florida conviction for being a felon in possession of a

firearm. That conviction was highly probative of Defendant Johnson’s knowing

possession given the close similarity between the two offenses. See United States

v. Zapata, 139 F.3d 1355, 1357-58 (11th Cir. 1998). Furthermore, any prejudice

resulting from the admission of the prior conviction was mitigated by the district

court’s limiting instruction to the jury that they could not use the evidence of

Defendant Johnson’s prior conviction to decide whether Johnson actually

possessed the firearm and the ammunition in the current case. See United States v.

Edouard, 485 F.3d 1324, 1346 (11th Cir. 2007).


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      In any event, we readily conclude that any error in admitting the prior

conviction was harmless in light of the overwhelming evidence of Defendant

Johnson’s guilt in the form of eyewitness testimony, corroborated by physical

evidence and a 911 call, the police testimony, and Johnson’s confession during his

interview with Agent Carrier.

      AFFIRMED.




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