United States v. Donald Brinson, 679 F. App'x 855

On June 24, 2015, Miami-Dade police stopped a reported-stolen vehicle; officers observed Brinson (defendant) place a firearm between the center console and passenger seat; a stolen Glock was recovered.
A federal indictment charged Brinson with being a felon in possession of a firearm and ammunition (18 U.S.C. §§ 922(g), 924(e)).
Trial was set for October 19, 2015; at an earlier calendar call defense counsel said she would be ready, but on the trial day she asked for a continuance because another case resolved early and because the Government had just produced ~65 recorded prison telephone calls.
The Government and the district court stated the calls would not be admitted at trial; the court denied the continuance and rejected the defense contention that the late production violated the standing discovery order.
The jury convicted Brinson; he was sentenced as an armed career criminal to 180 months. He appealed the denial of the continuance, arguing prejudice from late disclosure and that he could not decide whether to testify.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of a continuance for late-produced prison-call recordings was an abuse of discretion	Government: district court properly exercised discretion; calls were not going to be admitted and defense not substantially prejudiced	Brinson: late disclosure prevented review of calls and impaired ability to decide whether to testify; violated standing discovery order	Affirmed: no abuse of discretion; defendant failed to show substantial prejudice
Whether late disclosure violated standing discovery order such that reversal is required	Government: produced recordings as required for defendant statements; not necessarily a discovery-order breach	Brinson: production on first day of trial violated the standing order and prejudiced his defense	Even assuming a discovery-order violation, reversal requires showing substantial prejudice; Brinson’s claim was speculative and insufficient

United States v. Graham, 643 F.3d 885 (11th Cir.) (standard of review for continuance denial)
United States v. Verderame, 51 F.3d 249 (11th Cir.) (defendant must show substantial prejudice from denial)
United States v. Knowles, 66 F.3d 1146 (11th Cir.) (focus on reasons given to trial court when evaluating continuance denial)
United States v. Saget, 991 F.2d 702 (11th Cir.) (no prejudice where defendant fails to identify non-cumulative evidence lost by denial)
United States v. Camargo-Vergara, 57 F.3d 993 (11th Cir.) (standing discovery violation reversible only if substantial prejudice shown)
Luce v. United States, 469 U.S. 38 (U.S. 1984) (speculativeness of appellate review when defendant did not testify)
United States v. Hall, 312 F.3d 1250 (11th Cir.) (speculation about potential harm from evidentiary rulings when defendant does not testify)
United States v. Rivera, 944 F.2d 1563 (11th Cir.) (late disclosure of defendant’s own statement generally less prejudicial)
Jones v. White, 992 F.2d 1548 (11th Cir.) (rules on supplementing the record on appeal)
Selman v. Cobb Cty. Sch. Dist., 449 F.3d 1320 (11th Cir.) (appellate review limited to district-court record)