United States v. David G. Trevino, Jr.
16-16758
| 11th Cir. | Jan 4, 2018Background
- Defendant David G. Trevino, Jr. convicted of: felon in possession of a firearm, two counts of possession with intent to distribute marijuana, possession with intent to distribute cocaine, carrying a firearm during a drug trafficking crime, and falsifying records; sentenced to 240 months.
- Pretrial: government disclosed a DNA report showing Trevino’s DNA was not on the gun and announced an expert would testify absence of DNA does not prove lack of contact shortly before trial.
- Trial evidence included items found in Trevino’s car (latex gloves, currency, counterfeit-detection pen), recorded jail phone calls, and two prior convictions for crimes at the same location as the instant offense.
- Post-trial Trevino moved for a continuance and funding for a DNA expert, moved to exclude certain evidence and prior convictions, sought a new trial based on an affidavit alleging witness coaching, and objected to prosecutor’s rebuttal remarks.
- District court denied relief on all motions; Trevino appealed contending: abuse of discretion on continuance/expert funding, evidentiary errors, denial of new trial, prosecutorial misconduct on rebuttal, and erroneous ACCA sentencing.
Issues
| Issue | Trevino's Argument | Government's Argument | Held |
|---|---|---|---|
| Denial of continuance & funding for DNA expert | Needed time/money to investigate government’s allegedly "new theory" about absence of DNA | Theory wasn’t new; report unchanged; expert unnecessary; no prejudice | Denial affirmed — no abuse of discretion; no specific prejudice or plausible defense shown |
| Admission of physical evidence and jail calls | Items/jail calls were irrelevant/prejudicial | Items and calls were relevant to drug trafficking, intent; probative value not substantially outweighed by prejudice | Admission affirmed — relevant and not unfairly prejudicial; issues on calls waived for inadequate briefing |
| Admission of prior convictions | Prior convictions constituted improper character evidence | Convictions admissible under Rule 404(b) to prove identity, intent, knowledge; limiting instruction given | Admission affirmed — relevant to intent/identity and probative value not substantially outweighed by prejudice |
| Motion for new trial (newly discovered evidence of witness coaching) | New affidavit from defendant’s mother alleging witness was coached warrants new trial or hearing | District court was best positioned to evaluate credibility; affidavit was cumulative/impeaching and not shown to be newly discoverable | Denial affirmed — Trevino failed to meet elements for new-trial relief; no evidentiary hearing required |
| Prosecutorial misconduct in rebuttal closing | Rebuttal went beyond evidence and used inflammatory language ("do boy") | Rebuttal fairly addressed defense arguments, drawn from evidence, and criticized counsel’s failure to explain evidence | No misconduct — statements were proper responses/reasonable inferences; objections correctly overruled |
| ACCA sentence classification | Argued prior Florida aggravated assault did not qualify as a violent felony under ACCA | Court relied on binding Eleventh Circuit precedent that Fla. Stat. § 784.021 contains threatened use of force element | Affirmed — prior conviction qualifies as a violent felony under binding precedent |
Key Cases Cited
- United States v. Valladares, 544 F.3d 1257 (11th Cir.) (standards for continuance review)
- United States v. Feliciano, 761 F.3d 1202 (11th Cir.) (standard for funding expert assistance)
- United States v. Clay, 832 F.3d 1259 (11th Cir.) (evidentiary review standard)
- United States v. Vallejo, 297 F.3d 1154 (11th Cir.) (newly discovered evidence/new trial review)
- United States v. Saget, 991 F.2d 702 (11th Cir.) (specific prejudice requirement for continuance)
- United States v. Flanders, 752 F.3d 1317 (11th Cir.) (Rule 401/403 relevance and prejudice framework)
- United States v. Jernigan, 341 F.3d 1273 (11th Cir.) (Rule 404(b) admissibility and new-trial standards)
- United States v. Edouard, 485 F.3d 1324 (11th Cir.) (limiting instruction can reduce prejudice)
- United States v. Gupta, 463 F.3d 1182 (11th Cir.) (issue waiver for inadequate briefing)
- United States v. Schlei, 122 F.3d 944 (11th Cir.) (no evidentiary hearing required when judge has sufficient acumen)
- United States v. Eckhardt, 466 F.3d 938 (11th Cir.) (standard for prosecutorial misconduct review)
- United States v. Gonzalez, 834 F.3d 1206 (11th Cir.) (prosecutor may argue reasonable inferences)
- United States v. Reeves, 742 F.3d 487 (11th Cir.) (prosecutor may respond to defense arguments)
- United States v. Bernal-Benitez, 594 F.3d 1303 (11th Cir.) (commenting on defense counsel’s failure to explain evidence)
- United States v. Wilkerson, 286 F.3d 1324 (11th Cir.) (ACCA violent-felony review)
- Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir.) (Florida aggravated assault includes threatened use of force)
- United States v. Golden, 854 F.3d 1256 (11th Cir.) (confirming Turner remains binding precedent)