IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10653

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

KARLOS MARSHALL,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:10-CR-158-1

Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

This appeal concerns two rulings made in a criminal trial that resulted in

the conviction and imprisonment of the defendant, Karlos Marshall, for being a

felon in possession of a firearm. The first ruling involved the proper sanction for

a criminal discovery violation committed by the government. The second

involved the admission of photographic evidence offered by the government. 

Because Marshall was not entitled to a stronger sanction for the government’s

United States Court of Appeals

Fifth Circuit

F I L E D

August 24, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 11-10653 Document: 00511969340 Page: 1 Date Filed: 08/24/2012
No. 11-10653

discovery violation, and because the government’s photographic evidence was

admissible, we AFFIRM Marshall’s conviction and sentence.

I.

At about 4:00 a.m. on February 12, 2010, Officer Bennight of the Dallas

Police Department was checking vehicle registrations at a gas station when he

learned that a Chevrolet Tahoe parked there had been reported stolen. Officer

Bennight had observed defendant Marshall exit the driver’s door of the Tahoe

and enter the station’s convenience store, so he waited in his marked patrol car

for Marshall to return. When Marshall emerged from the convenience store,

however, he did not return to the Tahoe but instead got into the front passenger

seat of a Volvo parked at a gas pump.

Officer Bennight approached the Volvo and advised Marshall that he was

investigating a report of a stolen vehicle. He requested that Marshall step out

of the car and, when Marshall acquiesced, frisked him. He found a set of keys

in Marshall’s pocket, but they did not open the locked Tahoe. He next searched

the convenience store but did not find the keys to the Tahoe there, either. 

Finally, an assisting officer searched the area of the Volvo where Marshall had

been sitting and found the keys to the Tahoe on the floorboard of the Volvo.

Next, Officer Taylor entered the Tahoe, where he found the center

console’s lid open and upright. The console was divided into two compartments,

one smaller and one larger. In the smaller compartment, a revolver was sitting

upright on its handle and tip, but leaning against the driver’s side of the console;

the compartment was too small to admit of its lying flat on its side.

Marshall was subsequently indicted for being a felon in possession of a

firearm. He was offered a plea bargain of ten years of imprisonment, which he

declined. 

Relevant to this appeal, shortly before trial the government emailed

defense counsel advising him of statements Marshall had made to officers on the

2

Case: 11-10653 Document: 00511969340 Page: 2 Date Filed: 08/24/2012
No. 11-10653

night of his arrest, among them Marshall’s statement, “I just borrowed it from

a friend,” a statement not supported by the government’s evidence at trial. In

his opening statement at trial, defense counsel orated that “he [Marshall] was

driving a car that he, when questioned about, said that it was borrowed,”

presumably laying the groundwork for a defense theory that Marshall may have

been unaware of the contents of the Tahoe’s console. Defense counsel’s forecast

proved unsupported, however, when Officer Bennight testified that Marshall,

when asked about the Tahoe on the night of his arrest, had denied knowing

anything about the vehicle, rather than saying he had borrowed it from a friend.

Marshall objected to the inconsistency between Officer Bennight’s

testimony and the government’s pre-trial disclosure. He requested that the

court either excise by instruction to the jury the disputed portion of Officer

Bennight’s testimony, allow him to call as a witness the prosecutor who had

emailed the pre-trial disclosure, or declare a mistrial. The court denied those

requests but permitted counsel and the government to stipulate to an

explanation for the discrepancy. The resulting stipulation, read to the jury by

the government, went as follows:

The government will stipulate that when we sent [defense counsel]

notice of a certain statement, that is, what Mr. Marshall stated to

one of the officers that night[,] the statement was that he just

borrowed the car, and that none of the officers today remember that

statement.

The government, however, in its closing argument, referred to Officer Bennight’s

trial testimony that Marshall said he knew nothing about the Tahoe: “If Karlos

Marshall is walking away from the car and he doesn’t know anything about the

car, when initially questioned, he’s walking away from what’s inside that car. 

And what’s inside the car is this gun.” The defense, on the other hand, urged the

jury that the government would not have provided the pre-trial disclosure had

3

Case: 11-10653 Document: 00511969340 Page: 3 Date Filed: 08/24/2012
No. 11-10653

an officer not reported that Marshall said he had borrowed the Tahoe, and that

Officer Bennight’s trial testimony to the contrary was untruthful.

Relative to the second issue raised in this appeal, the government called

Agent Camune of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to

testify, in part, on the position of the revolver in the Tahoe’s console. To visually

aid her testimony, Agent Camune presented photographs of her own revolver in

various positions in the Tahoe’s console. Marshall objected that the photographs

were irrelevant because Agent Camune’s revolver was a different size than the

one found in the Tahoe. The court nevertheless allowed the photographs.

Following a two-day trial and brief jury deliberation, Marshall was

convicted. As he had two prior convictions for serious drug offenses and one for

a crime of violence, he was sentenced to 15 years of imprisonment, the minimum

under the Armed Career Criminal Act, 18 U.S.C. § 924(e). He has timely

appealed.

II.

Marshall contests both the district court’s choice of sanction for the

government’s discovery violation and its admission of the photographs of Agent

Camune’s revolver. We take them in turn.

A.

The Federal Rules of Criminal Procedure require the government, upon

request, to disclose to a defendant any oral statement that he made in response

to interrogation if the government intends to use the statement at trial. Fed. R.

Crim. P. 16(a)(1)(A). Although the government’s email was misleading, there

was no objection that it was intentionally so. There is no question, however, but

that the government’s pre-trial email to defense counsel constituted a discovery

violation because it failed accurately and completely to disclose Marshall’s oral

statements. The question is whether the sanction imposed–stipulation to the

jury–was adequate.

4

Case: 11-10653 Document: 00511969340 Page: 4 Date Filed: 08/24/2012
No. 11-10653

A district court’s choice of sanction for a criminal discovery violation is

reviewed for abuse of discretion. United States v. Singer, 970 F.2d 1414, 1418

(5th Cir. 1992). A court is to impose the least severe sanction necessary in the

light of the following considerations: “(1) the reasons why the 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. Garza, 448 F.3d 294, 299-300 (5th Cir. 2006). 

Reversal is appropriate only if the defendant can show that the violation

prejudiced his substantial rights. Singer, 970 F.2d at 1418.

Marshall identifies two forms of prejudice he suffered as a consequence of

the government’s discovery violation. First, he contends that his defense counsel

relied on the pre-trial disclosure to his detriment at trial. When his opening

prediction ofthe government’s evidence proved false, counsel lost credibility with

the jurors. Moreover, had counsel been aware that Officer Bennight would

testify that Marshall had disclaimed knowledge of the Tahoe, rather than saying

it was borrowed, he may have focused on a different defense, perhaps that the

person Officer Bennight saw exiting the Tahoe was not Marshall at all.

Second, Marshall maintains the discovery violation influenced his decision

before trial to reject the government’s plea offer. If defense counsel had known

Officer Bennight would testify that Marshall had disclaimed knowledge of a

vehicle he had just been seen exiting, he may have advised him to plead guilty

because the denial created a greater appearance of guilt. Marshall’s prison

sentence is five years longer than it would have been had he accepted the

government’s offer.

1.

a.

As for the first of the alleged harms–the undermining of defense counsel’s

credibility and of his chosen defense theory–we do not think “the nondisclosure

5

Case: 11-10653 Document: 00511969340 Page: 5 Date Filed: 08/24/2012
No. 11-10653

could reasonably be taken to put the whole case in such a different light as to

undermine confidence in the jury verdict.” United States v. Webster, 162 F.2d

308, 336 (5th Cir. 1998). As the district court found in denying Marshall’s

motion for new trial, in addition to Officer Bennight’s testimony that Marshall

attempted to distance himself from the Tahoe, the government presented

evidence that: Marshall was seen exiting the driver’s door of the Tahoe and

entering the convenience store; no one else was in the Tahoe; when Marshall left

the store, he walked past the Tahoe and sat in a Volvo; the keys to the Tahoe

were found hidden in the Volvo where Marshall had been sitting; when Officer

Taylor entered the Tahoe, he found the center console’s lid open and upright; and

when Officer Taylor looked in the console, he found a revolver sitting upright in

the smaller, driver’s side compartment.

Whether Marshall claimed to be ignorant of the Tahoe or to be borrowing

it, he still offers little explanation for the evidence connecting him to the vehicle

and the revolver inside. In the light of the totality of that evidence, we cannot

say “there is a reasonable probability that, had the [non-disclosed] evidence been

disclosed to the defense, the result of the proceeding would have been different.”

Id. (internal quotation marks omitted).

b.

Marshall proposed to the district court three possible remedies for the

government’s discovery violation: excision of the disputed portion of Officer

Bennight’s testimony, permission to call a prosecutor as a witness, and mistrial. 

The court rejected all three measures. Marshall contends he was entitled to one

of these instead of the sanction chosen by the court, a stipulation. We disagree.

Excising a portion of Officer Bennight’s testimony would have been a

weaker protection of Marshall’s rights than an artful stipulation. Had the

district court ordered the excision, defense counsel’s forecast of the evidence still

would have been incorrect, and the jury would have been left to wonder why. 

6

Case: 11-10653 Document: 00511969340 Page: 6 Date Filed: 08/24/2012
No. 11-10653

The remedy of a stipulation at least allowed defense counsel the opportunity to

salvage some credibility and to cast doubt on Officer Bennight’s trustworthiness. 

As for calling a prosecutor as a witness, the prosecutors attributed the incorrect

statement to a police officer who was unavailable to testify and who, in any

event, could not remember the statement being made. Lacking any further

insight into the mistake, the prosecutor could have said little more than what

the stipulation said.

The grant of a mistrial may not have been an abuse of discretion in the

circumstances, but one was not required. As discussed above, given the weight

of the evidence against Marshall, there is not a reasonable probability that an

accurate and complete pre-trial disclosure would have made for a different

outcome. Webster, 162 F.2d at 336.

The choice of sanction imposed was adequate to safeguard Marshall’s

substantial rights. Singer, 970 F.2d at 1418.

2.

Marshall next argues the inadequate pre-trial disclosure colored defense

counsel’s appraisal of the evidence and, consequently, influenced his decision to

plead not guilty. As the government points out, Marshall did not raise this

theory of prejudice to the district court either at the time of his objection to

Officer Bennight’s testimony or in his motion for a new trial.

Only in rare circumstances do we consider an argument raised for the first

time on appeal. United States v. Piazza, 647 F.3d 559, 565 (5th Cir. 2011). In

any event, we find no prejudice. Again, regardless of the disclaimer or

explanation Marshall gave for the Tahoe, he could not refute the considerable

evidence connecting him to the vehicle and the revolver in its console. The

defense was aware of that evidence prior to trial and yet declined the

government’s plea offer. Given this weight of the evidence, we are not persuaded

7

Case: 11-10653 Document: 00511969340 Page: 7 Date Filed: 08/24/2012
No. 11-10653

that the discovery violation meaningfully impacted Marshall’s decision to plead

not guilty.

B.

Finally, Marshall appeals the admission, over his relevance objection, of

the photographs of Agent Camune’s revolver. “Evidence is relevant if: (a) it has

any tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.” Fed. R.

Evid. 401. “Irrelevant evidence is not admissible.” Fed. R. Evid. 402. Even

relevant evidence may be excluded “if its probative value is substantially

outweighed by a danger of . . . misleading the jury.” Fed. R. Evid. 403. Marshall

contends the evidence was irrelevant or, alternatively, that the danger of

misleading a jury is especially acute where, as here, the evidence is a reenactment that is similar enough to be confused with the actual event but not

similar enough to represent the actual event faithfully, Muth v. Ford Motor Co.,

461 F.3d 557, 566-67 (5th Cir. 2006). A district court’s admission of evidence

over a relevance objection is reviewed for abuse of discretion. United States v.

Nutall, 180 F.3d 182, 189 (5th Cir. 1999).

The disputed photographs, although not particularly probative, at least

aided Agent Camune’s testimony about the nature of the console and how a

revolver might fit in the console. The photographs thus had some tendency,

albeit slight, to demonstrate how the revolver fit in the console more effectively

than could have been done in their absence. The dissimilarities between the

revolver in the photographs and the revolver found in the Tahoe were made

plain for the jury in both direct and cross examination, thus lessening the chance

that the evidence would mislead. See Carson v. Polley, 689 F.2d 562, 579 (5th

Cir. 1982) (explaining danger of misleading jury can be lessened where

dissimilarities between evidence and actual events are made clear). On this last

point we note that, although the government does not argue forfeiture, the basis

8

Case: 11-10653 Document: 00511969340 Page: 8 Date Filed: 08/24/2012
No. 11-10653

for Marshall’s objection at trial was relevance, not a tendency to mislead. 

Admission of the photographs was not an abuse of discretion.

III.

We close with a summary of what we have decided: The government

committed a discovery violation, which the district court remedied by ordering

the government to stipulate to the jury that it had committed the violation. 

Marshall argues he was entitled to excision of a disputed portion of testimony,

to call a prosecutor as a witness, or to a mistrial. Because the district court’s

choice of sanction was adequate to safeguard Marshall’s substantial rights, the

court did not abuse its discretion.

The government also presented photographic evidence that did not

represent the charged crime exactly. Despite the shortcomings of that evidence,

it was relevant, and any danger of misleading the jury was ameliorated by

sufficient explanation of the dissimilarities between the evidence and the actual

events.

The conviction and sentence are therefore

AFFIRMED.

9

Case: 11-10653 Document: 00511969340 Page: 9 Date Filed: 08/24/2012