United States v. Terrence S. Owden

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11015 ELEVENTH CIRCUIT
SEPTEMBER 9, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00123-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRENCE S. OWDEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 9, 2009)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Terrence Owden appeals his convictions for conspiracy to possess with
intent to distribute 500 grams or more of cocaine and possession with intent to
distribute 500 grams or more of cocaine. After a thorough review of the record, we
affirm.
I. Background
Owden and Cecil Lee Williams were indicted for conspiracy to possess with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846(Count 1), and possession with intent to distribute 500 grams or more of cocaine,
in violation of 21 U.S.C. § 841 (Count 2).1 Owden was also charged with using
and carrying a firearm in furtherance of a drug trafficking offense, in violation of
18 U.S.C. § 924(c) (Count 3).2
Prior to trial, Owden moved to suppress the evidence seized from his home
on the ground that the statements cited in the supporting affidavit for the search
warrant were false and misleading.3
At the suppression hearing, Owden did not call any witnesses; rather the
court heard the parties on the issue. He asserted that there was no evidence to
establish Williams was sufficiently reliable for his information to establish
probable cause. Owden further argued that the statements in the warrant affidavit
were misleading
1
Williams agreed to plead guilty and testified against Owden at trial.
2
Owden does not challenge his conviction on Count 3 on appeal.
3
Owden supplemented his motion to challenge the search of his home, but he later withdrew
that argument.
2
because the transcript of the calls between Williams and his contact “MeMe” did
not establish that Owden was there to pick up the drugs.
Owden submitted the transcripts of the calls. The conversation in the first
call (“Call 1”) was as follows:
Williams: Man . . . man my truck broke down.
MeMe: I’m about leaving from Texas.
Williams: Oh you’re leaving from Texas.
MeMe: Yeah.
Williams: Ah, so yo . . yo, your cousin . . . where your cousin at?
MeMe: Alright I’m saying he at home.
Williams: Cause shit I’m over here some where with this truck and I got this
stuff . . . stuff . . . stuff in the truck man. I don’t want anybody seeing
me fix this truck and pull up on me.
MeMe: Alright . . . I am fixing to call him and get his number. . . answer the
phone.
Williams: Alright then.
The second call was between Williams and Owden in which Williams told
Owden he was broken down by the grocery store on 29 (“Call 2”). Owden stated
that he would head that way. In the third call, Owden asked Williams for
directions to his location (“Call 3”). At the end of the call, the following exchange
occurred:
Williams: Cause I . . . I got the . . . stuff right there in the truck and the truck
broke down I don’t want nobody to roll up on me.
Owden: Alright you say you have to pass Walmart and all that shit through 9
mile and all that
Williams: Yea you are gonna see my truck on . . when you coming down you
gonna see my truck on the left hand side.
Owden: Alright.
3
Williams: I got the hood open.
Owden: Alright.
In the last two phone calls (“Call 4” and “Call 5”), Owden again asked for
directions.
In addition to the transcripts of the calls, the warrant application stated that
Williams admitted delivering drugs a few weeks earlier to a house agents were able
to link to Owden, Williams identified his contact as MeMe, the phone records
confirmed that Williams, MeMe, and Owden made multiple calls to each other the
morning of the arrest, and Owden arrived and retrieved the drugs from Williams
after Williams informed MeMe the truck had broken down. Based on these facts
in the warrant application, the court denied the motion to suppress because the
statements in the warrant were a reasonable interpretation of the conversations
between Williams and MeMe.4
At the beginning of trial, the court instructed the jury that statements by the
attorneys were not evidence and that the jury could not consider Owden’s decision
not to testify as evidence of guilt because Owden had the right to remain silent.
The evidence at trial established the following: On October 7, 2007,
4
Owden renewed his motion to suppress during trial on the ground that the testimony
confirmed that the statements in the affidavit were false and there was no evidence Williams was
reliable. The court overruled the motion, finding that the statements were a reasonable interpretation
of William’s information based on the officer’s experience and the events that followed the calls.
4
Williams was stopped for speeding while driving his pick-up truck from Atlanta to
Pensacola. Escambia County police conducted a search during the traffic stop and
found three kilograms of cocaine in the tool compartment in the back of the truck.
Williams immediately agreed to cooperate with authorities. DEA agent David
Humphreys arrived and interviewed Williams, at which time Williams informed
the authorities that he was delivering the three kilograms of cocaine to MeMe at a
yellow one-story house. He did not know the address but he gave directions and
admitted that he had delivered one kilogram of drugs to MeMe at the same house
two weeks earlier. He also told Humphreys that Owden was MeMe’s cousin and
had been at the house when Williams made the earlier delivery. He stated that
when he delivered the drugs previously, he had called MeMe as he was exiting the
highway and then drove to the house where Owden met him and instructed him to
pull around back. Owden had taken the drugs from Williams and put the bag in a
little shed off the driveway. Williams had been in this shed before and had seen a
gun there. After he delivered the drugs, Williams met MeMe at another house to
receive his money for the delivery. Humphreys confirmed the yellow house was in
Owden’s name. Humphreys also identified MeMe as Owden’s cousin, Joseph
Posey, who listed Owden’s home as his residence.
On October 7, Williams called MeMe as planned as he was exiting the
5
highway, which was about an hour before he was stopped. After he was caught
and agreed to cooperate, he placed a recorded call (Call 1) to MeMe under
Humphrey’s supervision to inform MeMe the truck had broken down and he did
not want to get caught with the “stuff.” MeMe said he was in Texas but would call
his cousin. A few minutes later, Williams received Call 2 from Owden. According
to Williams, Owden knew Williams was delivering drugs. This was the first time,
however, Owden had called Williams; earlier communications had been between
Williams and MeMe. Owden then called Williams several more times as he drove
to meet Williams.
Following the stop and while Williams and the authorities waited for Owden
to arrive, Escambia County Sheriff’s Deputy Eugene Jackson moved the truck to a
nearby lot and put the hood up to make it look as if the truck had broken down.
The deputies and DEA agents took positions out of sight while they waited for
Owden. When Owden arrived, he asked Williams what was wrong with the truck.
Williams replied it was broken down. Owden then pulled along side the truck,
unlocked the doors, and took the bag Williams handed him from the tool
compartment.5 After Owden took the bag, the authorities surrounded Owden and
Williams and instructed them to get on the ground. Williams complied, but Owden
5
The DEA had replaced the cocaine with sham drugs packaged to appear as the real cocaine.
6
dropped the bag and moved away from the officers. The DEA agents boxed
Owden in and were able to take him into custody. Humphreys videotaped the
meeting between Williams and Owden, but had turned the recording off to assist in
the arrest. The video did not show Owden handling the bag of sham cocaine.6
Williams and Owden were arrested and placed in separate patrol cars.
Williams had another cell phone in his possession, unbeknownst to the authorities,
and placed several calls from the back of the patrol car. One call was to MeMe to
tell him Williams and Owden had been arrested. Williams also called his family to
tell them to call “Primo,” who was the source of the drugs. Williams explained
that he was afraid of MeMe and Primo and did not want MeMe to know he had
been cooperating. At trial, Williams admitted that he had not been completely
truthful with authorities during his cooperation, at one point stating that he did not
know the source of the drugs.
Owden had two phones in his possession when he was arrested. Both were
pre-paid phones with no name assigned and were from other calling areas.
According to Humphreys, drug dealers often used cell phones from different
calling areas in order to conceal their locations. One of Owden’s phones matched
6
The video was admitted into evidence, over Owden’s objection that the officers destroyed
evidence by turning the video off just prior to the actual arrest. Upon questioning by the court,
counsel conceded that the officers were not obligated to tape the events at all. Thus, the court
concluded that there was no discovery violation and denied the motion.
7
calls made to Williams and MeMe. Records for MeMe’s phone also showed calls
to Williams and Owden.
Humphreys detailed the time-line of calls between Owden, Williams, and
MeMe showing the following connections: From September 24 through October 7,
there were thirty-three calls between Williams and MeMe. From September 24
through October 4, there were seventeen calls between Owden and MeMe. On
October 5 and 6, there were five calls between Williams and MeMe. On October
7, there were ten calls between Owden and MeMe and eleven calls between Owden
and Williams.
Specifically, on October 7, MeMe called Williams at 6:30 a.m. Williams
called MeMe at 7:45 a.m., which corresponded with the time Williams exited the
expressway. There were then four calls from MeMe to Owden. At about 9:25
a.m., roughly the time Williams would have arrived at Owden’s house, Williams
called MeMe to tell him the truck was broken down. Minutes later, MeMe called
Owden and then Owden called Williams.
Humphreys sought a search warrant for Owden’s house. Although Williams
and Owden had been arrested, MeMe was unaccounted for and agents could not
confirm MeMe was in Texas as he claimed in the calls. The affidavit for the search
warrant had been submitted by Escambia County narcotics investigator Rene
8
Reguindin and was based on Williams’s statements and the comments Reguindin
heard listening to Williams’s side of the calls with MeMe and Owden. Reguindin
admitted, however, that he had not listened to the full recordings, but rather took
Williams’s word for the conversations. Nevertheless, Reguindin believed the
affidavit was an accurate summary based on Williams’s portion of the
conversations and what happened after Owden arrived. While awaiting the warrant,
Humphreys arrived at Owden’s house and found six people, including MeMe’s
mother and Owden’s mother, on the porch. Humphreys entered the house to
secure it, but did not conduct a search. After the warrant arrived, Humphreys and
Reguindin searched the shed and found security surveillance equipment enabling
Owden to observe the street and driveway. They also found scales with drug
residue, baggies, baking soda to cut the drugs, marijuana, loose dollar bills, a jacket
with papers in the pocket in Owden’s name, $1,500 cash, a picture of MeMe, and a
loaded pistol. Humphreys confirmed the firearm was registered in Owden’s name
and had been purchased on September 13, 2007. The shed was kept locked and,
according to Owden’s mother, Owden had the only key. The key was in Owden’s
possession when he was arrested.
Owden moved for judgment of acquittal on all counts. The court denied the
motion. Owden did not testify.
9
During closing argument, defense counsel argued that Williams withdrew
from the conspiracy when he agreed to cooperate, and thus there was no conspiracy
involving Owden. In rebuttal, the government corrected defense counsel’s
definition of withdrawal, stating,
It’s not when Williams withdrew from the conspiracy that makes him
no longer a part of it. It’s when the defendant withdrew from the
conspiracy, and he no longer becomes a part of it. And he had never
withdrawn from it. To this very day he’s a part of it, because he is
continuing to deny his role in this.
Defense counsel objected to this statement as an improper comment on Owden’s
right to remain silent and moved for a mistrial. The court overruled the objection
and denied the motion. In its instructions to the jury, the court stated that the jury
was not to consider Owden’s decision not to testify, and it reminded the jury that
statements by attorneys did not constitute evidence.
The jury convicted Owden on all counts. The court sentenced Owden to 196
months’ imprisonment, which consisted of 136 months on Counts 1 and 2, to run
concurrently, and a consecutive 60-month sentence for the § 924(c) offense in
Count 3. This appeal followed.
II. Discussion
Owden raises several issues on appeal, only three of which merit
10
discussion.7 First, Owden challenges the denial of his motion to suppress on the
ground that statements in the affidavit for the search warrant allegedly were false.
Second, Owden asserts that there was insufficient evidence to support his
convictions. Third, Owden contends the video tape should have been excluded on
the ground that the evidence violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963) because the police failed to record the entire arrest
when they voluntarily stopped the tape.
A. Standards of Review
In reviewing the denial of a motion to suppress, we review findings of fact
for clear error and the application of the law to those facts de novo. United States
v. Newsome, 475 F.3d 1221, 1223 (11th Cir. 2007). We construe all facts in the
light most favorable to the prevailing party, in this case the government. Id. at
1223-24. We review the district court’s determination that an affidavit established
probable cause de novo and its findings of fact for clear error, and give due weight
7
Owden also challenges the prosecutor’s statements during closing argument. Upon review,
we conclude the prosecutor’s statement was not an improper comment on Owden’s right to remain
silent. First, it was a single isolated statement made during the government’s rebuttal closing
argument and it was intended to explain defense counsel’s misstatement about the law regarding
withdrawal from a conspiracy. The prosecutor was not asking the jury to penalize Owden for
Owden’s decision not to testify. United States v. Dodd, 111 F.3d 867, 869-70 (11th Cir. 2008).
Second, the court instructed the jury that statements by the lawyers were not evidence and that the
defendant’s decision not to testify should not be held against him, and we presume that the jury
followed the court’s instructions. United States v. Brown, 983 F.2d 201, 202 (11th Cir. 1993).
Third, the evidence against Owden was overwhelming, leaving no reasonable probability that the
outcome of the trial would have been different but for this comment. In light of these facts, we
further conclude that, even if the statement were improper, the error was harmless.
11
to the inferences that the judge and law enforcement officers drew from the facts.
United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir. 2000). In addition, we
review for clear error the district court’s decision that misrepresentations or
omissions in an affidavit were not reckless or intentional. United States v. Jenkins,
901 F.2d 1075, 1079 (11th Cir. 1990).
We review sufficiency of the evidence claims de novo, drawing all
reasonable inferences in favor of the government. United States v. Hernandez, 433
F.3d 1328, 1332 (11th Cir. 2005). “It is not necessary that the evidence exclude
every reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.” United States v. Harris, 20 F.3d 445, 452 (11th
Cir. 1994) (quotations omitted).
We review de novo a district court’s conclusion that there was no Brady
violation. United States v. Mejia, 82 F.3d 1032, 1036 (11th Cir. 1996).
B. Motion to Suppress
Owden argues that the court should have suppressed the evidence seized
from his home because the statements in the warrant affidavit were false and, if the
statements are removed, the affidavit does not establish probable cause. Owden
further argues that the court should have granted his renewed motion to suppress
because the evidence at trial showed that Reguindin did not hear both sides of the
12
calls and Williams was not shown to be reliable.
In order to establish probable cause, a search warrant affidavit must “state
facts sufficient to justify a conclusion that evidence or contraband will probably be
found at the premises to be searched.” United States v. Martin, 297 F.3d 1308,
1314 (11th Cir. 2002) (quotation marks and citation omitted). The Fourth
Amendment is violated if a warrant is obtained by using a false statement that was
made intentionally or recklessly. Franks v. Delaware, 438 U.S. 154, 155-56, 98
S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). Under Franks:
[A] defendant may challenge the veracity of an affidavit in support of
a search warrant if he makes a substantial preliminary showing that
(1) the affiant deliberately or recklessly included false statements, or
failed to include material information, in the affidavit; and (2) the
challenged statement or omission was essential to the finding of
probable cause. If he does so, he is entitled to an evidentiary hearing
on the issue.
United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006) (quotation marks
and citations omitted). It can be inferred that an omission was made with a
reckless disregard for the accuracy of the affidavit “when the facts omitted from
the affidavit are clearly critical to a finding of probable cause.” Madiwale v.
Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997) (quotation marks and citation
omitted). However, omissions that are merely negligent or insignificant and
immaterial will not invalidate a warrant. Id. Moreover, even if the defendant
13
meets his burden, the warrant is still valid “when material that is the subject of the
alleged falsity or reckless disregard is set to one side, [and] there remains sufficient
content in the warrant affidavit to support a finding of probable cause.” Franks,
438 U.S. at 171, 98 S.Ct. at 2684.
Here, Owden did not meet his burden. First, Owden has not shown that
Reguindin included false statements or acted with reckless disregard for the truth
of the statements. Reguindin’s statements in the affidavit were an accurate
representation of the telephone conversations in light of the events that morning.
See, e.g., United States v. Awan, 966 F.2d 1415, 1428-31 (11th Cir. 1992)
(upholding the admission of an undercover officer’s explanations of comments
made by the defendant during tape-recorded conversations with the officer); United
States v. Russell, 703 F.2d 1243, 1248 (11th Cir. 1983) (upholding the admission
of a law enforcement agent’s testimony concerning the meaning of tape-recorded
conversations he had with the defendant).
Even if the statements were inaccurate, the remainder of the warrant was
sufficient to establish probable cause. The affidavit detailed the prior drug delivery
and described the events that occurred after the series of phone calls leading to
Owden’s arrival, including that Owden took possession of the bag of drugs.
Additionally, the affidavit alleged that Williams had delivered drugs to the house
14
that was the subject of the warrant in the past few weeks and agents were able to
connect Owden to the house. All of this was sufficient to establish probable cause
even if the statements regarding the recorded calls were removed because the facts,
taken together, were sufficient to justify the conclusion that “evidence or
contraband [would] probably be found at the premises to be searched.” Martin,
297 F.3d at 1314.
Finally, to the extent that Owden argues Williams was unreliable and
therefore the warrant lacked probable cause, that argument is without merit. An
“explicit and detailed description of alleged wrongdoing, along with a statement
that the event was observed firsthand, entitles the [informant’s] tip to greater
weight than might otherwise be the case.” United States v. Goddard, 312 F.3d
1360, 1363 (11th Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 234, 103
S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Moreover, “observations and other
information supplied by officers involved in a common investigation can, taken
together, create probable cause for a search.” Id. (citing United States v. Kirk, 781
F.2d 1498, 1505 (11th Cir. 1986)). Here, the events the morning of the arrest
corroborated Williams’s statements. Accordingly, the district court properly
denied the motion to suppress.
C. Sufficiency of the Evidence
15
Owden next argues that the evidence was insufficient to support his
convictions for conspiracy and possession because (1) there was no evidence of
any agreement to possess cocaine, and (2) he was never in actual or constructive
possession of the drugs. He notes that his mere presence is insufficient to establish
any agreement and the only evidence at trial was Williams’s testimony.
The “uncorroborated testimony of an accomplice is sufficient to support a
conviction in the Federal Courts if it is not on its face incredible or otherwise
insubstantial.” United States v. LeQuire, 943 F.2d 1554, 1562 (11th Cir. 1991).
Testimony is incredible or insubstantial only if it is “testimony as to facts that [the
witness] physically could not have possibly observed or events that could not have
occurred under the laws of nature.” Id. at 1562 (quotation marks and citation
omitted) (alteration in the original). In reviewing witness testimony, “[t]he jury
gets to make any credibility choices, and we will assume that they made them all in
the way that supports the verdict.” United States v. Thompson, 473 F.3d 1137,
1142 (11th Cir. 2006). “It is emphatically not within the province of an appellate
court to reweigh the evidence and the credibility of the witnesses at trial.” United
States v. Hernandez, 141 F.3d 1042, 1052 (11th Cir. 1998).
1. Conspiracy
Conspiracy to possess cocaine with intent to distribute requires the
16
government to prove beyond a reasonable doubt “(1) that a conspiracy existed;
(2) that the defendant knew of it; and (3) that the defendant, with knowledge,
voluntarily joined it.” United States v. Molina, 443 F.3d 824, 828 (11th Cir. 2006)
(quotation omitted). The agreement forming the basis of the conspiracy can be
proved “by circumstantial evidence, through ‘inferences from the conduct of the
alleged participants or from circumstantial evidence of a scheme.’” United States
v. Obregon, 893 F.2d 1307, 1311 (11th Cir. 1990) (citation omitted). “Where the
government’s case is circumstantial, reasonable inferences, and not mere
speculation, must support the jury’s verdict.” United States v. Mejia, 97 F.3d
1391, 1392 (11th Cir. 1996). Moreover, “[m]ere presence, guilty knowledge, even
sympathetic observation” and close association with a co-conspirator are
insufficient, without more, to support a conviction for conspiracy to distribute
drugs. United States v. Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995). Yet, such
factors may raise a permissible inference of participation in a conspiracy, which
the jury may consider as a “material and probative factor . . . in reaching its
decision.” United States v. Hernandez, 896 F.2d 513, 518 (11th Cir. 1990).
“A defendant’s knowing participation in a conspiracy may be established
through proof of surrounding circumstances such as acts committed by the
defendant which furthered the purpose of the conspiracy.” United States v. Bain,
17
736 F.2d 1480, 1485 (11th Cir. 1984). The evidence of prior drug activity may
establish intent. United States v. Roberts, 619 F.2d 379, 383 (5th Cir. 1980)8
(holding that a prior conviction increases the likelihood that the defendant intended
to conspire to commit similar subsequent criminal conduct). In addition, there is a
general principle that, in cases involving large amounts of narcotics, “a prudent
smuggler is not likely to suffer the presence of unaffiliated bystanders.” United
States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th Cir. 1985).
Here, the evidence was sufficient for the jury to infer that Owden knew he
was receiving a delivery of drugs when he went to assist Williams that day.
Williams confirmed that he had delivered drugs to Owden’s home a few weeks
earlier under similar circumstances, and there were numerous calls between MeMe,
Williams, and Owden in the weeks before the October 7 delivery and arrest. In
addition, Owden’s actions on that day are consistent with the jury’s inference that
Owden was involved in the conspiracy. Finally, there was evidence from which
the jury could have concluded that Owden attempted to escape rather than be
arrested, and flight may be considered as evidence of guilt.9 See United States v.
Williams, 541 F.3d 1087, 1089 (11th Cir. 2008). Based on this evidence, the jury
8
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the former Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.
9
The district court declined to give an instruction that flight was evidence of guilt.
18
could have inferred Owden knew of and voluntarily participated in an agreement to
possess drugs.
2. Possession
In order to obtain a conviction for possession with intent to distribute drugs,
the government must “prove three elements: (1) knowledge; (2) possession; and (3)
intent to distribute.” United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989).
These elements may be proved by either direct or circumstantial evidence. Id. at
1391-92. Possession may be actual or constructive. A defendant has actual
possession of a substance when he has direct physical control over the contraband.
United States v. Edwards, 166 F.3d 1362, 1363 (11th Cir. 1999). An intent to
distribute can be inferred from the quantity of drugs involved. United States v.
Tinoco, 304 F.3d 1088, 1123 (11th Cir. 2002).
Here, the evidence established that Owden took the bag of sham cocaine
from Williams just before the police initiated the arrest. Accordingly, the evidence
was sufficient to show Owden possessed the drugs.
The evidence also established that Williams had delivered drugs to Owden’s
home a few weeks earlier in a similar arrangement with MeMe. Moreover, the
calls between Williams, MeMe, and Owden, and the events that followed those
calls, enabled the jury to infer Owden knew the bag contained drugs.
19
D. Video
Owden contends that absence of the full video constituted a discovery
violation under Brady v. Maryland, 373 U.S. 83 (1963). We disagree.
A successful Brady “claim requires three elements: (1) the prosecution
suppressed evidence, (2) the evidence suppressed was favorable to the defense or
exculpatory, and (3) the evidence suppressed was material. Favorable evidence is
material, and constitutional error results from its suppression by the government, if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” United States v.
Starrett, 55 F.3d 1525, 1555 (11th Cir. 1995) (citations and quotations omitted);
see also United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002); United
States v. Newton, 44 F.3d 913, 918 (11th Cir. 1994). A district court may decline
to order discovery “based upon mere speculation as to whether the material would
contain exculpatory evidence because to do so would convert Brady into a
discovery device and impose an undue burden upon the district court.” United
States v. Arias-Izquierdo, 449 F.3d 1168, 1189 (11th Cir. 2006).
As Owden concedes, the government was under no obligation to video the
events at all. See e.g., United States v. Arteaga, 807 F.2d 424, 426-27 (5th Cir.
1986). Accordingly, Owden’s Brady claim fails because he cannot show that the
20
government possessed the evidence, that the government suppressed it, or that
there was a reasonable probability that the evidence would have affected the
outcome of the trial.
III. Conclusion
For the foregoing reasons, we AFFIRM Owden’s convictions.
21