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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                No. 15-10142                            FILED
                                                                  March 18, 2016
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

                                         Plaintiff – Appellee
v.

JASON DVORIN,

                                         Defendant – Appellant
----------------------------
CONSOLIDATED WITH 15-10183

UNITED STATES OF AMERICA,

                                         Plaintiff

v.

JASON DVORIN,

                                         Defendant

MINDY SAUTER,

                                         Interested Party – Appellant


                Appeals from the United States District Court
                     for the Northern District of Texas


Before PRADO, OWEN, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
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      This is an appeal from the retrial of defendant Jason Dvorin, who was
convicted of one count of conspiracy to commit bank fraud. On appeal, Dvorin
contends the district court erred by refusing to give certain requested jury
instructions, excluding certain admissible evidence but admitting other
inadmissible evidence, failing to adequately sanction the government for
prosecutorial misconduct, and failing to dismiss the forfeiture notice in his
indictment due to prosecutorial vindictiveness. Consolidated with Dvorin’s
appeal is the appeal of Mindy Sauter, who prosecuted Dvorin during his first
trial. Sauter appeals the district court’s findings that she committed Giglio,
Brady, and Napue violations. 1 For the reasons explained below, we VACATE
the district court’s judgment of forfeiture and AFFIRM on all other grounds.
                                     I. Background
      Jason Dvorin was a business customer of Pavillion Bank (“Pavillion”)
with multiple accounts and loans collateralized by vehicles and oil-field
equipment. To alleviate his periodic cash-flow issues, Dvorin brought checks
to Pavillion’s executive vice president, Chris Derrington, that neither man
expected would clear. Derrington nonetheless processed the checks, giving
Dvorin access to the face value of the check until the checks were returned.
This arrangement operated as an unofficial line of credit.                  Dvorin and
Derrington maintained this arrangement from 2005 through December of
2010, during which time the bank charged Dvorin more than $19,000 in
overdraft fees.
      The arrangement continued for five years, in part because Dvorin was
able to periodically deposit large, legitimate payments into his accounts.
Ultimately, however, bank auditors discovered the scheme.                  In 2012, the



      1Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963);
Napue v. Illinois, 360 U.S. 264 (1959).
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government indicted defendant Dvorin on one count of conspiring to commit
bank fraud.   The superseding indictment alleged that between 2005 and
December 2010, Dvorin and Derrington engaged in a scheme in which they
deposited checks in Dvorin’s account knowing the deposited checks would not
clear. The indictment did not contain a forfeiture count.
      After a two-day trial, a jury found Dvorin guilty.        During trial, the
government elicited testimony from Derrington, who had pleaded guilty to
conspiring to commit bank fraud and was awaiting sentencing. Derrington
explained that he had cooperated with the government during its
investigation, and that he was testifying in the hope that he would obtain some
leniency in his sentencing. The prosecutor asked Derrington whether he had
received any promises from the government in exchange for his testimony, and
Derrington responded that he had not. The court sentenced Dvorin to 24
months of imprisonment and ordered $111,639.73 in restitution.
      Dvorin appealed, and we set the case for oral argument. While preparing
for oral argument, the government’s appellate counsel discovered that the trial
prosecutor, Mindy Sauter, had failed to disclose Derrington’s sealed plea
agreement supplement to Dvorin’s counsel. The plea agreement supplement
stated, in relevant part, that, “[i]f in its sole discretion, the government
determines that the defendant has provided substantial assistance in the
investigation or prosecution of others, it will file a motion urging sentencing
consideration for that assistance.” The government produced the supplement
to Dvorin’s counsel and agreed to an order vacating Dvorin’s conviction and
remanding the case for a new trial.
      On remand, the district court sua sponte issued a show cause order in
which it requested that the government’s counsel file a pleading addressing
why sanctions should not be imposed for Sauter’s failure to disclose
Derrington’s plea agreement supplement and Sauter’s permitting Derrington
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to falsely testify that the government had not made him any promises. The
district court held an evidentiary hearing in connection with the show cause
order, and thereafter made preliminary findings that Sauter had violated
Brady and Giglio by failing to turn over Derrington’s plea agreement
supplement. The district court also concluded that Sauter had violated Napue
by permitting Derrington to testify falsely regarding the promises the
government made him. The district court found that Sauter did not act in “bad
faith,” but “exhibited a reckless disregard for her duties and conducted the
proceedings in an irresponsible manner.” The district court declined to make a
decision regarding the propriety of sanctions at that time.
      While the sanctions issue was pending, the same U.S. Attorney’s Office
in which Sauter worked assigned a new prosecution team to handle Dvorin’s
new trial. The new prosecutors filed a second superseding indictment in which
they included a forfeiture count for the first time. Dvorin moved to dismiss the
forfeiture count on the basis of prosecutorial vindictiveness and judicial
estoppel, but the district court denied the motion. Dvorin was tried a second
time and the jury once again convicted Dvorin of conspiring to commit bank
fraud.   The district court then imposed a new sentence of 18 months of
imprisonment, two years of supervised release, and $110,939.73 in restitution.
The court also entered a forfeiture judgment in the amount of $91,239.73. The
district court declined to impose sanctions based on Sauter’s prosecutorial
misconduct, but formally adopted as final its substantive findings that Sauter
committed Brady, Giglio, and Napue violations.
      Dvorin and Sauter filed separate appeals that have been consolidated.
Dvorin’s appeal is a direct appeal from a judgment in a criminal case. Sauter
appeals the district court’s reputational findings against her under Walker v.
City of Mesquite, 129 F.3d 831, 832–33 (5th Cir. 1997) (holding that an


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attorney’s challenge to a district court’s reprimand and finding of misconduct
present a reviewable appellate issue).
                                II. Discussion
      Dvorin appeals his conviction, asserting that the district court erred in:
(1) denying his request for an apparent-authority jury instruction; (2) denying
his request for a special unanimity jury instruction; (3) overruling his
objections under Federal Rules of Evidence 701 and 704 to the government
counsels’ and witnesses’ use of the terms “fraud,” “fraudulent check,” or
“conspiracy”; (4) excluding extrinsic evidence of and cross-examination
regarding the court’s findings that Derrington testified falsely in a prior
proceeding; (5) declining to award sanctions for prosecutorial discovery
misconduct; (6) admitting the testimony of Chase Bank representative
Arthemis Lindsay despite the government’s failure to timely designate
Lindsay as a possible witness on its witness list; and (7) permitting the
government to add a forfeiture count to the second superseding indictment
before the second trial and entering a forfeiture judgment at sentencing
without having a jury find the facts essential to that judgment.          Sauter
appeals, contending that the district court erroneously found that she violated
Brady, Giglio, and Napue and acted “recklessly” by failing to timely disclose
Derrington’s plea agreement supplement. We consider each challenge in turn.
A. Failure to Give Adequate Jury Instructions
      Dvorin contends the district court erred in refusing to charge the jury
with an apparent-authority instruction and a special unanimity instruction.
We review a district court’s refusal to give a defensive jury instruction for an
abuse of discretion. See United States v. Salazar, 751 F.3d 326, 330 (5th Cir.
2014) (citing United States v. Webster, 162 F.3d 308, 321–22 (5th Cir. 1998)).
            A refusal to give a requested instruction constitutes
            reversible error only if the proposed instruction (1) is

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              substantially correct, (2) is not substantively covered
              in the jury charge, and (3) pertains to an important
              issue in the trial, such that failure to give it seriously
              impairs the presentation of an effective defense.
Id. (quoting Webster, 162 F.3d at 322).
       1. Apparent-Authority Instruction
       During Dvorin’s trial, Dvorin attempted to create reasonable doubt
regarding his “intent to defraud” by showing that he relied on Derrington’s
apparent authority to approve his checks. Dvorin thus requested that the
district court give the following instruction: “In order to prove that the
defendant had the intent of tricking the bank, the government must show that
the defendant did not rely on the apparent authority of one or more bank
officials.”
       Rather than insert Dvorin’s proposed apparent-authority instruction,
the court largely accepted Dvorin’s proposed good faith instruction:
              The word “willfully” . . . means that the act was
              committed voluntarily and purposely, with the specific
              intent to do something the law forbids; that is to say,
              with bad purpose either to disobey or disregard the
              law. A defendant does not act willfully if he believes
              in good faith that his conduct does not violate the law.
              This is so even if that belief is objectively
              unreasonable.
The district court also instructed the jury that “[o]fficers, directors, or other
employees of a financial institution cannot validate a fraud on the institution.
Therefore, the knowledge of bank fraud by officers, directors, or other
employees of the institution is not a defense to the charge of bank fraud.”
Dvorin insists that the charge did not adequately address his apparent-
authority defense because the good faith instruction was abstract rather than
specific to the facts presented by Dvorin’s defense, and further argues that the
district court’s instruction regarding an official’s inability to validate a fraud

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undermined his apparent-authority defense. The government counters that
the district court did not err because the court’s charge substantially and
accurately covered the content of the proposed instruction.
      We conclude that the district court did not err in refusing to instruct the
jury on apparent authority because the district court’s good faith instruction
makes clear that the government must prove beyond a reasonable doubt that
Dvorin acted with the specific intent to violate the law. See United States v.
Aubin, 87 F.3d 141, 147–48 (5th Cir. 1996) (holding that the district court’s
good faith instruction adequately preserved the defendant’s ability to argue
that he relied on the apparent authority of the bank official, such that an
agency instruction was not necessary in spite of the court’s instruction
regarding an official’s inability to validate a fraud on the bank).           This
instruction preserved Dvorin’s ability to argue that he had a good faith belief
that the bank authorized Derrington to enter into the check-kiting
arrangement with Dvorin, and in fact, Dvorin’s attorney made this argument
during trial. The jury simply rejected Dvorin’s theory. Because the court’s
charge substantially covered the content of Dvorin’s proposed instruction, we
hold that the district court did not err in refusing to instruct the jury
specifically on Dvorin’s apparent-authority defense.
      2. Special Unanimity Instruction
      Dvorin also asserts that the district court’s refusal to give the jury a
special unanimity instruction was error. The district court instructed the jury
using a general unanimity instruction, which read: “To reach a verdict,
whether it is guilty or not guilty, all of you must agree. Your verdict must be
unanimous on count one of the indictment.” The district court also gave the
Fifth Circuit pattern jury charge on multiple conspiracies. 2 Dvorin requested


            2   This instruction reads:
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that the district court add an instruction to the effect that the jury must
unanimously find guilt as to the same conspiracy if “you find that the
government’s proof tends to show that the defendant was actually engaged in
more than one conspiracy.”
      The Sixth Amendment requires that a jury unanimously agree upon all
elements of the offense. United States v. Gipson, 553 F.2d 453, 456 (5th Cir.
1977); see also FED. R. CRIM. P. 31(a). “In the routine case, a general unanimity
instruction will ensure that the jury is unanimous on the factual basis for a
conviction, even where an indictment alleges numerous factual bases for
criminal liability.” United States v. Holley, 942 F.2d 916, 925–26 (5th Cir.
1991) (quoting United States v. Beros, 833 F.2d 455, 460 (3d Cir. 1987)).
However, such an instruction is insufficient if “there exists a ‘genuine risk that
the jury is confused or that a conviction may occur as the result of different
jurors concluding that a defendant committed different acts.’”                  Id. at 926
(quoting United States v. Duncan, 850 F.2d 1104, 1114 (6th Cir. 1988)).
Generally, a special unanimity instruction is not necessary where an
indictment charges a conspiracy because “the crux of a conspiracy charge . . .
[is] [t]he defendant’s voluntary agreement with another or others to commit an
offense.” United States v. Dillman, 15 F.3d 384, 391 (5th Cir. 1994) (emphasis




            You must determine whether the conspiracy charged in the
            indictment existed and, if it did, whether the defendant was a
            member of it. If you find that the conspiracy charged did not
            exist, then you must return a not guilty verdict, even though you
            find that some other conspiracy existed. If you find that a
            defendant was not a member of the conspiracy charged in the
            indictment, then you must find that defendant not guilty, even
            though that defendant may have been a member of some other
            conspiracy.
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omitted); see also United States v. Narviz-Guerra, 148 F.3d 530, 535 (5th Cir.
1998).
      Although Dvorin argues that the jury may have found multiple
conspiracies, we conclude that this case falls within the general rule. The
charged conspiracy involved the same course of conduct between the same two
co-conspirators at the same bank over a period of five years. The court’s
instruction regarding multiple conspiracies makes clear that the jury had to
unanimously find Dvorin guilty of the single conspiracy charged in count one
of the indictment; where a defendant is charged with one conspiracy, a special
unanimity instruction is not required. See United States v. Royal, 972 F.2d
643, 648–49 (5th Cir. 1992) (holding that the district court did not err in
refusing to give a special unanimity instruction where the court’s multiple-
conspiracy instruction reflected that the defendant was charged with only one
conspiracy in the indictment); see also United States v. Musacchio, 590 F. App’x
359, 363 (5th Cir. 2014) (per curiam), aff’d. on other grounds, 136 S. Ct. 709
(2016); United States v. Mason, 736 F.3d 682, 684 (5th Cir. 2013) (denying
petition for rehearing); United States v. Creech, 408 F.3d 264, 268–69 (5th Cir.
2005). Accordingly, we hold that the district court did not abuse its discretion
in declining to charge the jury with Dvorin’s proposed special unanimity
instruction.
B. Prejudicial Use of the Word “Fraud”
      Dvorin’s next point of error concerns the district court’s allowing, over
his objection, what Dvorin characterizes as inadmissible testimony by a lay
witness or by the government’s expert regarding Dvorin’s mental state. For
instance, Alan Turner, the government’s expert, along with other lay
witnesses, described instruments submitted to Pavillion as “fraudulent
checks,” referred to the scheme as fraudulent, and referred to Dvorin’s
arrangement with Derrington as a “conspiracy.” Dvorin contends that this
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evidence is inadmissible under Federal Rules of Evidence 701 and 704, which
prohibit, respectively, certain lay opinion testimony and expert testimony
regarding a defendant’s mental state that constitutes an element of the crime
charged. We review a trial court’s evidentiary ruling for an abuse of discretion.
United States v. Hernandez-Guevara, 162 F.3d 863, 869 (5th Cir. 1998). “Such
review is necessarily heightened in a criminal case, however, which demands
that evidence be strictly relevant to the particular offense charged.”         Id.
(alterations omitted) (quoting United States v. Hays, 872 F.2d 582, 587 (5th
Cir. 1989)).
      While it would be preferable to avoid a term like “fraud” in this situation,
we conclude that, in context, the term’s use meant “worthless” and was not a
direct reference to Dvorin’s mental state. It does not appear that any witness
directly opined on the ultimate issue of Dvorin’s mental state, whether as a lay
witness or an expert, such that Rule 701 or 704 would bar the testimony. See
United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994) (“Rule 704(b) is not
strictly construed and prohibits only a direct statement of the defendant’s
intent.”); United States v. Owens, 301 F.3d 521, 527 (7th Cir. 2002) (concluding
that the district court’s allowance for an expert to use the phrase “misleading
and fraudulent” was not error where the expert never commented directly on
the defendant’s state of mind (citing 29 CHARLES ALAN WRIGHT & VICTOR
JAMES GOLD, FEDERAL PRACTICE & PROCEDURE § 6285, at 395 (1997) (“Rule
704(b) usually bars only a direct statement that defendant did or did not have
the required mental state.”))). Accordingly, we hold that the district court did
not abuse its discretion in admitting testimony referring to “fraudulent
checks,” “fraud,” or “conspiracy.”
C. Admissibility of the District Court’s Findings that Derrington Gave False
Testimony



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      Dvorin contends that the district court erred in excluding evidence and
prohibiting cross-examination on the subject of the court’s tentative finding
that Derrington had rendered false testimony regarding his plea agreement
with the government during Dvorin’s first trial.             At the second trial, the
government filed a motion in limine seeking to preclude Dvorin’s counsel from
questioning Derrington regarding whether he committed perjury during the
first trial and whether the trial court made findings regarding his truthfulness
during the first trial. The district court permitted Dvorin’s counsel to question
Derrington about his answers to the questions that were asked of him during
the first trial and whether he answered those questions truthfully, but would
not allow him to question or introduce evidence regarding the district court’s
findings. Dvorin asserts that the district court’s ruling disallowing extrinsic
evidence of and cross-examination regarding its findings as to Derrington’s
truthfulness in the first trial violated the Confrontation Clause of the Sixth
Amendment and Federal Rules of Evidence 608 and 403. 3
      “We review alleged violations of a defendant’s Sixth Amendment
confrontation right de novo[,]” but “[s]uch claims . . . are subject to harmless
error review.” United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008)
(citing United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004)). Absent a
constitutional violation, we review a district court’s evidentiary decisions and
limitations on cross-examination for an abuse of discretion, which requires the




      3  Federal Rule of Evidence 608(b) prohibits the use of extrinsic evidence to prove
specific instances of conduct in order to attack or support a witness’s character for
truthfulness. Dvorin argues that extrinsic evidence of the district court’s findings was
admissible under Rule 608(b) because the findings were offered for the purpose of showing
bias—not Derrington’s character for truthfulness. Because we conclude that the district
court did not violate Dvorin’s right to confrontation under the Sixth Amendment, and
properly exercised its discretion to exclude otherwise admissible evidence under Rule 403,
we need not address the admissibility of the district court’s findings under Rule 608(b).
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defendant to show that the district court’s evidentiary rulings were clearly
prejudicial. Id.
      “[T]he Confrontation Clause does not guarantee defendants cross-
examination to whatever extent they desire.” Bigby v. Dretke, 402 F.3d 551,
573 (5th Cir. 2005). The right to confrontation focuses, fundamentally, on
whether the district court’s exclusion “significantly undermined fundamental
elements of the defendant’s defense.” United States v. Scheffer, 523 U.S. 303,
315 (1998). The circumstances of this case do not permit the conclusion that
Dvorin’s ability to put on his defense was undermined by the district court’s
holding. The only evidence Dvorin was deprived of was the fact that the
district court made tentative findings that Derrington’s prior testimony was
not truthful, and the district court was within its right to impose limits on
Dvorin’s cross-examination of Derrington based on the prejudice that would
result from the jury learning of the district court’s findings. See Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986). Accordingly, we hold that the district
court did not violate Dvorin’s Sixth Amendment right in excluding evidence of
or cross-examination regarding the district court’s tentative findings.
      Similarly, the district court did not err in excluding this evidence under
Federal Rule of Evidence 403. Cf. Stevens v. United States, 306 F.2d 834, 838
(5th Cir. 1962) (“A comment by the judge that a witness is not to be believed is
prejudicial error unless instructions are given which make it clear that the
court’s observation is not binding on the jury.”). Accordingly, the district court
did not err in excluding evidence of its tentative findings that Derrington gave
false testimony regarding his plea agreement with the government during
Dvorin’s first trial.
D. Prosecutorial Misconduct
      Dvorin contends that the district court erred in fashioning an inadequate
sanction after finding that Sauter engaged in prosecutorial misconduct. In her
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related appeal, Sauter challenges the district court’s conclusions that she
violated Brady, Giglio, and Napue, and that she acted with reckless disregard
and engaged in irresponsible conduct. We consider first whether the district
court erred in concluding that Sauter violated Brady, Giglio, and Napue, and
then address whether the district court erred in failing to sanction Sauter for
any wrongful conduct.
      We review a district court’s holding that the government violated Brady,
Giglio, or Napue de novo, but in doing so, afford deference to the district court’s
factual findings. See United States v. Guerrero, 768 F.3d 351, 363 (5th Cir.
2014) (citing United States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011)), cert.
denied, 135 S. Ct. 1548 (2015). However, in considering a district court’s
decision to (or decision not to) impose sanctions for discovery violations, “[w]e
review alleged errors . . . under an abuse of discretion standard and will not
reverse on that basis unless a defendant establishes prejudice to his
substantial rights.” United States v. Holmes, 406 F.3d 337, 357 (5th Cir. 2005)
(quoting United States v. Ellender, 947 F.2d 748, 756 (5th Cir. 1991)).
      1. Brady and Giglio
      Sauter contends that the district court erred in concluding that she
violated Brady and Giglio by failing to provide Dvorin’s counsel a copy of
Derrington’s plea agreement supplement before Dvorin’s first trial. Brady
prohibits the prosecution from suppressing evidence favorable to the defendant
“where the evidence is material either to guilt or to punishment,” Brady, 373
U.S. at 87, and Giglio applies Brady to evidence affecting the credibility of key
government witnesses, United States v. Davis, 609 F.3d 663, 696 (5th Cir.
2010). To establish a Brady violation, a defendant must show: (1) the evidence
at issue was favorable to the accused, either because it was exculpatory or
impeaching; (2) the evidence was suppressed by the prosecution; and (3) the
evidence was material. Brown, 650 F.3d at 587–88. Sauter concedes that the
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plea agreement supplement was favorable to Dvorin because it related to the
credibility of a government witness, but she contends that the district erred in
concluding that the supplement was suppressed and material.
      a. Suppressed
      Sauter argues that the plea agreement supplement was not suppressed
because its existence was disclosed to Dvorin’s counsel by a reference to it in
Derrington’s plea agreement, which was disclosed to Dvorin. Sauter contends
that this should have prompted Dvorin’s counsel to request the plea agreement
supplement from the prosecution. Dvorin counters that the supplement was
suppressed because, although the plea agreement referenced the supplement,
the supplement itself was sealed, and thus could not be discovered by Dvorin’s
counsel through due diligence.
      To constitute suppressed evidence under Brady, the evidence must not
have been discoverable through the defendant’s due diligence. Brown, 650
F.3d at 588. “[E]vidence is not suppressed if the defendant knows or should
know of the essential facts that would enable him to take advantage of it.” Id.
(quoting United States v. Skilling, 554 F.3d 529, 575 (5th Cir. 2009)). The
Brady analysis regarding suppression focuses on the fact that the government
need not “furnish a defendant with exculpatory evidence that is fully available
to the defendant through the exercise of reasonable diligence.” Kutzner v.
Cockrell, 303 F.3d 333, 336 (5th Cir. 2002). Sauter does not, nor can she,
contend that the plea agreement supplement was fully available to Dvorin’s
counsel through the exercise of due diligence. The plea agreement supplement
was sealed and in the control and possession of the government. Accordingly,
the district court correctly determined that Sauter suppressed the plea
agreement supplement.




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      b. Material
      Sauter next argues that the plea agreement supplement was not
material for Brady purposes, because there is no reasonable probability that,
had the evidence been disclosed, the result of Dvorin’s first trial would have
been different. Dvorin responds that the testimony elicited at trial based on
Derrington’s plea agreement did not convey that the government had promised
Derrington to forego other charges, had agreed that his testimony and
statements could not be used against him, and had agreed to file a motion for
sentence reduction in the event it found Derrington’s assistance substantial.
Further, Dvorin contends that the testimony elicited at trial did not convey
that all of these promises were expressly contingent on Derrington’s testimony.
      “Evidence is material if there is ‘a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.’” Brown, 650 F.3d at 588 (quoting United States v. Bagley, 473
U.S. 667, 682 (1985)). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Spence v. Johnson, 80 F.3d 989, 994
(5th Cir. 1996) (quoting Bagley, 473 U.S. at 682). The district court held that
the plea agreement supplement was material because although the jurors
might have been aware during trial that Derrington cooperated with the
government in his own case, they were not aware that Derrington had
motivation to testify in Dvorin’s trial. The court concluded: “[b]ecause the
undisclosed evidence undermined the credibility of the Government’s most
important witness, . . . it was material.”
      We find no abuse of discretion in the district court’s conclusion that this
evidence was material. Derrington was a key witness and the only other
alleged conspirator with Dvorin. During trial, Derrington testified that he was
“cooperating with the . . . Government” and “hope[d] to obtain some leniency”
at sentencing, but represented that he did not “get any promises from the
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Government in exchange for [his] testimony.”        During cross examination,
Dvorin’s counsel elicited testimony that Derrington was hoping to get favorable
treatment from the court and the government based on his cooperation. But
this testimony does not make clear, nor does the plea agreement itself indicate,
that the government agreed to “file a motion urging sentencing consideration
for Derrington’s cooperation if, in its sole discretion, it determine[d] that he
ha[d] provided substantial assistance in the investigation or prosecution of
others.” It is reasonable to conclude that evidence of such consideration would
be more powerful than Derrington’s testimony that he merely hoped he would
receive leniency, but had not received any promise from the government that
he would. “[G]iv[ing] play to the trial court’s superior understanding of the
trial, evidence, and witnesses,” United States v. Sipe, 388 F.3d 471, 480 (5th
Cir. 2004), we affirm the district court’s holding that the withheld evidence
was material, and thus conclude that Sauter violated Brady and Giglio.
      2. Napue
      Sauter also challenges the district court’s holding that she violated
Napue’s prohibition against a prosecutor knowingly using false testimony to
obtain a conviction. To establish a claim under Napue, a defendant must prove
that the witness’s testimony “was (1) false, (2) known to be so by the state, and
(3) material.” Summers v. Dretke, 431 F.3d 861, 872 (5th Cir. 2005). Sauter
contends that Derrington’s testimony was not false (and thus she could not
have knowledge that it was false), and even if it was, it was not material.
      With respect to the first element, Sauter argues that Derrington’s
testimony that he did not receive any promises from the government in
exchange for his testimony was not false because the text of the plea agreement
supplement is not an enforceable promise or guarantee. Paragraph 2 of the
supplement reads:


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             If, in its sole discretion, the government determines
             that the defendant has provided substantial
             assistance in the investigation or prosecution of
             others, it will file a motion urging sentencing
             consideration for that assistance. Whether and to
             what extent the motion are granted are matters solely
             within the Court’s discretion.
      Regardless of whether this provision of the supplement is an enforceable
guarantee, under Napue, “the key question is not whether the prosecutor and
the witness entered into an effective agreement, but whether the witness
might have believed that the state was in a position to implement any promise
of consideration.” LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d 728,
735 (5th Cir. 2011) (alterations omitted) (quoting Napue, 360 U.S. at 270); see
also Giglio, 405 U.S. at 155 (“[E]vidence of any understanding or agreement as
to a future prosecution would be relevant to [the witness’s] credibility . . . .”).
In fact, as the Supreme Court recognized in United States v. Bagley, the fact
that the government’s willingness to seek leniency for a defendant is not
guaranteed, but “was expressly contingent on the [g]overnment’s satisfaction
with the end result, serve[s] only to strengthen any incentive to testify falsely
in order to secure a conviction.” 473 U.S. at 683. The focus is “on the extent
to which the testimony misled the jury[.]” Tassin v. Cain, 517 F.3d 770, 778
(5th Cir. 2008). Here, Derrington’s testimony that he had not received any
promise from the government was at best misleading, and at worst false, in
light of the government’s agreement to file a motion urging sentencing
consideration if it determined that Derrington had substantially assisted its
prosecution of Dvorin. Accordingly, we hold that the district court properly
concluded that Sauter violated Napue in permitting Derrington to testify that
that the government had not made any promises in exchange for his testimony.
      With    respect    to   the   third    element—materiality—Sauter      again
challenges the district court’s conclusion that Derrington’s false testimony was
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material, and in doing so, concedes that the materiality standard under Napue
is essentially identical to the analysis performed under Brady. Thus, for the
reasons discussed above, we conclude that Derrington’s false statement that
he had not received any promise from the government was material and,
accordingly, affirm the district court’s finding that Sauter violated Napue. 4
       3. Sanctions
       Having determined that the district court properly held that Sauter
violated Brady, Giglio, and Napue, we now turn to Dvorin’s challenge to the
district court’s decision not to award sanctions to address Sauter’s misconduct.
Dvorin contends that the district court erred in declining to impose any
sanctions because the district court initially found that a new trial alone was
insufficient to deter future misconduct. Specifically, Dvorin requested that the
district court dismiss the indictment with prejudice, or, alternatively, preclude
Derrington’s testimony during the second trial. The district court declined to
impose either requested sanction, concluding that neither dismissing the
indictment nor excluding Derrington’s testimony from the second trial would
be reasonable. The district court also declined to impose sanctions against the
government as an institution, and found that prosecutorial immunity
prevented it from issuing monetary sanctions against Sauter individually or
the government as a whole.
       We review a district court’s determination not to impose sanctions for
abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
The following factors should guide a district court’s exercise of its discretion to



       4  Sauter also challenges the district court’s finding that she “exhibited a reckless
disregard for her duties and conducted the proceedings in an irresponsible manner” solely on
the ground that such a finding must be error because the district court’s underlying findings
of Brady, Giglio, and Napue violations were error. Having determined that the district court
properly held that Sauter violated Brady, Giglio, and Napue, we likewise affirm the district
court’s findings of reckless disregard and irresponsible conduct.
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impose sanctions for a discovery violation: “(1) the reasons why disclosure was
not made; (2) the amount of prejudice to the opposing party; (3) the feasibility
of curing such prejudice with a continuance of the trial; and (4) any other
relevant circumstances.” United States v. Garrett, 238 F.3d 293, 298 (5th Cir.
2000). Any sanction imposed should be the least severe penalty necessary to
ensure compliance with the court’s discovery orders. Id. The district court is
given wide discretion in this fact-intensive inquiry. Mercury Air Grp., Inc. v.
Mansour, 237 F.3d 542, 548 (5th Cir. 2001).
      Considering these facts here, we conclude that the district did not abuse
its discretion in declining to award sanctions to address Sauter’s misconduct.
First, the district court did not find, nor is there any indication in the record,
that Sauter’s failure to disclose Derrington’s plea agreement supplement was
intentional or in bad faith. Generally, a district court will not impose severe
sanctions, like suppression of evidence, where the government’s discovery
violations were not committed in bad faith. See, e.g., Garrett, 238 F.3d at 299.
      Dvorin received a new trial obviating most of the prejudice involved
except for the forfeiture issue. Because we grant Dvorin relief on this issue on
another ground, we do not factor this point into the prejudice analysis here. 5
      With respect to the third consideration, a trial continuance was not
needed to permit Dvorin to gain access to the undisclosed evidence, because
the government agreed to a new trial. And finally, there are other relevant
circumstances present here. For instance, the individual who was responsible
for the discovery violation (Sauter) was no longer involved in the case at the
time the district court was considering the propriety of awarding sanctions.




      5  We address the prejudice suffered by Dvorin as a result of the second trial in the
form of the new forfeiture count in the indictment infra Section II.F.
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Thus, the concern of deterring future misconduct was less significant than it
might have been otherwise.
      Under these circumstances, and bearing in mind the broad discretion we
afford the district court in determining the propriety of imposing sanctions, we
hold that the district court did not abuse its discretion in declining to award
sanctions for Sauter’s misconduct.
E. Testimony of Chase Representative, Arthemis Lindsay
      Dvorin next challenges the district court’s refusal to exclude the
testimony of Chase Bank’s representative, Arthemis Lindsay, contending that
Lindsay’s testimony should have been excluded because the government
violated the district court’s discovery order by failing to timely identify Lindsay
on the government’s witness list. The government had disclosed early on the
desire to call a Chase Bank representative but had difficulty identifying the
particular person who could testify. The district court allowed defense counsel
to interview Lindsay when she appeared but denied the motion to exclude her
testimony regarding Chase Bank procedures as it related to Dvorin’s checks.
      “We review the admission of evidence that violates a discovery order for
abuse of discretion. In such cases we will order a new trial ‘only where a
defendant demonstrates prejudice to his substantial rights.’” United States v.
Aguilar, 503 F.3d 431, 434 (5th Cir. 2007) (quoting United States v. Cuellar,
478 F.3d 282, 293 (5th Cir. 2007)). The district court has “great latitude” in
“fashioning the appropriate remedy for alleged discovery errors.” Ellender, 947
F.2d at 756.     In considering whether to impose sanctions for discovery
violations, a district should consider the following factors: “(1) the reasons why
disclosure was not made; (2) the amount of prejudice to the opposing party;
(3) the feasibility of curing such prejudice with a continuance of the trial; and
(4) any other relevant circumstances.” Garrett, 238 F.3d at 298 (5th Cir. 2000)
(citing United States v. Sarcinelli, 667 F.2d 5, 7 (5th Cir. Unit B 1982)).
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       Under these circumstances, considering the above factors, the district
court did not abuse its discretion in permitting Lindsay to testify despite the
government’s failure to disclose her identity until the day of trial. First, the
government gave a legitimate reason for failing to timely disclose the specific
identity of the Chase Bank representative who would testify at trial, and
Dvorin does not contend that the government’s failure to timely disclose was
in bad faith. See Garrett, 238 F.3d at 295, 298–300 (concluding that a district
court abused its discretion in excluding 25 government witnesses where the
government did not act in bad faith in failing to timely disclose letters written
to potential government witnesses, and characterizing exclusion of witnesses
as a “draconian sanction”).          Second, the record does not support Dvorin’s
contention that he suffered “extraordinary prejudice” as a result of the late
disclosure. Finally, the court permitted Dvorin’s counsel to meet with Lindsay
during the lunch break and ask her questions regarding her testimony. Dvorin
has not shown how he would have been more prepared to cross-examine
Lindsay had her name been timely disclosed on the witness list. See Aguilar,
503 F.3d at 434. Accordingly, we conclude that the district court did not err in
permitting Lindsay to testify despite the government’s late disclosure of her
identity.
F. Prosecutorial Vindictiveness
       Finally, Dvorin argues that the district court erred in permitting the
government to add a forfeiture notice in the second superseding indictment,
contending that the addition of the forfeiture notice was an act of prosecutorial
vindictiveness that violated his right to due process. 6 We review a district


       6 Dvorin also challenges the forfeiture count on the ground that the district court erred
in concluding that Dvorin did not have a right to have a jury find the facts essential to a
forfeiture money judgment in violation of the Sixth Amendment. A panel of this court held
recently, however, that a defendant does not have a right to a jury determination in the
forfeiture context. United States v. Simpson, 741 F.3d 539, 560 (5th Cir. 2014). Dvorin’s only
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court’s factual findings concerning prosecutorial vindictiveness for clear error
and its legal conclusions de novo. United States v. Saltzman, 537 F.3d 353,
359 (5th Cir. 2008). “To punish a person because he has done what the law
plainly allows him to do is a due process violation ‘of the most basic sort.’”
United States v. Goodwin, 457 U.S. 368, 372 (1982) (quoting Bordenkircher v.
Hayes, 434 U.S. 357, 363 (1978)). Accordingly, a prosecutor may not increase
the charge or penalty against a defendant solely as a punishment for invoking
his right to appeal.     Saltzman, 537 F.3d at 359 (citing United States v.
Krezdorn, 718 F.2d 1360, 1362–65 (5th Cir. 1983) (en banc)). The defendant
must prove prosecutorial vindictiveness by a preponderance of the evidence,
and may do so either by showing actual animus or “show[ing] sufficient facts
to give rise to a presumption of vindictiveness.” Saltzman, 537 F.3d at 359.
Dvorin argues only the latter.
      To determine whether the presumption of vindictiveness applies, the
court “examine[s] the prosecutor’s actions in the context of the entire
proceedings,” and “[i]f . . . the course of events provides no objective indication
that would allay a reasonable apprehension by the defendant that the
[additional] charge was vindictive, . . . a presumption of vindictiveness
applies.” Krezdorn, 718 F.2d at 1365. The presumption “cannot be overcome
unless the government proves by a preponderance of the evidence that events
occurring since the time of the original charge decision altered that initial
exercise of the prosecutor’s discretion.” Id.
      Dvorin argues for application of the presumption because: (1) the second
superseding indictment included an additional forfeiture count that was not in




argument on this point is that Simpson was wrongly decided. The rule of orderliness
precludes this panel from overturning the holding in Simpson. See Jacobs v. Nat’l Drug
Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
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the original indictment and could (and did) result in additional penalties;
(2) the prosecutor sought to add the additional penalty based on the same
conduct; and (3) the prosecutors had strong institutional bias against retrying
the same issues. The government does not seem to contest these particular
arguments, but contends that the presumption of vindictiveness does not apply
here because objective events in the record show that the prosecutors’ decision
to add the forfeiture notice was not motivated by a vindictive desire to deter or
punish appeals.
       We conclude that Dvorin has proved sufficient facts to invoke the
presumption and the government has not rebutted the presumption. First,
much of the evidence pointed to by the government is not evidence of an
“objective event” that would motivate the government to add the forfeiture
count. 7 See, e.g., United States v. Wells, 262 F.3d 455, 467 (5th Cir. 2001)
(concluding that a defendant’s breach of a plea agreement is an objective event
that could cause that prosecutor to withdraw leniency and alter the sentencing
recommendation previously given); United States v. Moulder, 141 F. 3d 568,
572 (5th Cir. 1998) (successful appeal seeking dismissal of the defendant’s
conviction was an objective event that would motivate the government to
reinstate a drug charge that had previously been dismissed pursuant to a plea
agreement); Krezdorn, 718 F.2d at 1362, 1365 (concluding that the prosecutor’s



       7 Specifically, the government points to the following evidence: (1) the forfeiture count
was added by a prosecution team that was not involved in the original prosecution and
appeal; (2) the prosecution did not seek a new indictment just to add the forfeiture notice,
but also clarified the charge and scheme and addressed issues Dvorin raised in a motion to
strike surplusage; (3) the new prosecutors added the forfeiture notice because its omission in
the prior indictment was an oversight that was contrary to office practice; (4) the
government’s decision to add the forfeiture notice was based in part on new analysis of
Pavillion’s records showing the monetary benefit Dvorin received from the check-kiting
scheme; (5) the prosecutors sought forfeiture to give them additional tools to make the victim
whole; and (6) the government’s overall conduct belies the notion that the forfeiture notice
was included out of vindictiveness.
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decision to charge conspiracy in a superseding indictment was motivated by
the Fifth Circuit’s intervening opinion reversing the defendant’s convictions on
the ground that evidence of 32 forgeries was inadmissible absent a conspiracy
charge). The government has not pointed to any objective event that would
motivate prosecutors to add a forfeiture count aside from Dvorin’s appeal and
the agreed remand.      The government’s primary argument was that the
omission of the forfeiture count was a “mistake” that was “corrected” on
remand.
      Additionally, the circumstances surrounding the addition of the
forfeiture count support concluding that the presumption of vindictiveness
applies here. Dvorin originally appealed his conviction on the ground that
prosecutorial misconduct occurred, and while his appeal was pending,
appellate counsel for the government discovered additional prosecutorial
misconduct. Although the government agreed to a remand, the district court
concluded that the reason behind the government’s agreement was “because
the Government knew that [Dvorin’s] conviction would be reversed,” not
because the government was “accommodating [Dvorin] and giving [him] the
benefit of the doubt.” The district court then issued a show cause order in
which it requested that the government’s counsel file a pleading addressing
why sanctions should not be imposed for the failure to disclose Derrington’s
plea agreement supplement and for allowing Derrington to falsely testify that
the government had not made him any promises. Only after the district court
issued its show cause order did the government file the superseding indictment
that included the forfeiture count for the first time. Although the forfeiture
count was added by a prosecution team that was not involved in the original
prosecution and appeal, the new prosecution team was made up of attorneys
who simply worked in a different division of the same U.S. Attorney’s office.
Under these circumstances, there is no “objective indication that would allay a
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reasonable apprehension by the defendant that the [additional] charge was
vindictive.”    Krezdorn, 718 F.2d at 1365.         Thus, we conclude that the
presumption of vindictiveness applies.
      Further, the government has failed to overcome this presumption by
proving by a preponderance of the evidence that events occurring since the
time of the original charge decision altered the initial exercise of the
prosecutor’s discretion. The government merely points to the same evidence
outlined above, and contends that this evidence rebuts the presumption. We
are not persuaded by this evidence for the same reasons we have already
discussed.     Accordingly, we reverse the district court’s denial of Dvorin’s
motion to dismiss the forfeiture account for prosecutorial vindictiveness, and
we vacate the district court’s judgment of forfeiture.
                                 III. Conclusion
      For the foregoing reasons, we VACATE the district court’s judgment of
forfeiture and AFFIRM on all other grounds.




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