IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10142

UNITED STATES OF AMERICA,

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:

United States Court of Appeals

Fifth Circuit

FILED

March 18, 2016

Lyle W. Cayce

Clerk

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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 

 

1 Giglio 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 apparentauthority 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 multipleconspiracy 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 crossexamination 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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