IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41528

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ARZELL GULLEY

Defendant - Appellant

Appeal from the United States District Court 

for the Eastern District of Texas, Beaumont

Before KING, DEMOSS, and SOUTHWICK, Circuit Judges.

PER CURIAM:

On April 20, 2005, Arzell Gulley was charged in a two-count indictment.

Count One charged Gulley with the murder of Daryl Brown in violation of 18

U.S.C. § 1111, and aiding and abetting Brown’s murder in violation of 18 U.S.C.

§ 2. Count Two alleged that Gulley possessed a dangerous weapon in a federal

prison in violation of 18 U.S.C. § 930(c). A jury found Gulley guilty of both

counts on June 28, 2006. Gulley now appeals, arguing that his conviction should

be reversed because: (1) there was insufficient evidence to prove guilt; (2) the

district court improperly excluded evidence of Brown’s specific prior acts of

violence; (3) the district court refused to conduct an in camera hearing to

determine whether his due process rights were violated as a result of preUnited States Court of Appeals

Fifth Circuit

F I L E D

April 8, 2008

Charles R. Fulbruge III

Clerk
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2

indictment delay; (4) he received ineffective assistance of counsel; and (5) he was

not present when the district court instructed the jury to continue deliberating.

Finding no reversible error, we affirm.

I. BACKGROUND

Arzell Gulley and his original co-defendant, David Jackson, were federal

inmates incarcerated in the United States Penitentiary, Beaumont, Texas

(“USP-Beaumont”). Between 5:00 p.m. and 8:30 p.m., the inmates at USPBeaumont are free to intermingle with each other outside their housing units in

an area referred to as the “compound.” On December 16, 1999, at approximately

6:00 p.m., Gulley and Jackson began arguing with another inmate, Daryl Brown,

while in the compound.

The evidence concerning the initial events conflicted, but it was

undisputed that it ended with Gulley and Jackson chasing Brown into Housing

Unit 3B-1 while carrying shanks. Each housing unit at USP-Beaumont,

including Unit 3B-1, was equipped with surveillance cameras. Camera footage

from six different cameras showed that Gulley and Jackson chased Brown

throughout Unit 3B-1 until Brown ran into cell number 125. Gulley and

Jackson, in that order, followed Brown into the cell. Inmates Jerome Prince and

Victor Richards quickly exited the area after Gulley and Jackson entered the

cell.

A fight ensued inside the cell, although the surveillance cameras were

unable to capture images of the occupants from the waist up. After

approximately thirty seconds, Gulley and Jackson walked out of cell number

125, leaving Brown lying on the floor. They proceeded in different directions, but

were approached by correctional staff and complied with orders to lay down on

the floor. A correctional officer later found a shank on a chair close to where

Gulley lay on the floor.
No. 06-41528

3

While Gulley and Jackson were lying on the ground, Brown exited the cell,

bleeding profusely from his neck and chest and holding Jackson’s weapon. He

advanced towards Jackson, but collapsed. Brown was taken to an area hospital

where he was pronounced dead. It was concluded in the autopsy report that

Brown suffered from eleven knife wounds, but a single strike that pierced the

upper lobe of his left lung and the pericardial sac of his aorta caused his death.

The Government did not bring charges against any defendant based on

these events until November 19, 2003, when Gulley and Jackson were indicted

for unlawful possession of weapons in a federal prison. That indictment was

voluntarily dismissed by the Government on February 17, 2004. Over a year

later, on April 20, 2005, Gulley and Jackson were re-charged in this case in a

two-count indictment. Count One alleged premeditated murder in violation of

18 U.S.C. § 1111, and aiding and abetting premeditated murder in violation 18

U.S.C. § 2. Count Two alleged that Gulley and Jackson possessed dangerous

weapons in a federal prison in violation of 18 U.S.C. § 930(c). On March 16,

2006, Gulley filed a motion to sever his trial from Jackson’s, arguing that it

would prejudice his case to try him with Jackson, who he claimed bore sole

responsibility for Brown’s death. The district court granted the motion on April

6, 2006.

On April 18, 2006, Gulley filed a motion to dismiss the case for preindictment delay and requested discovery and a hearing on the motion so that

he could show that: (1) the Government intentionally delayed the prosecution

to gain a tactical advantage; and (2) he was prejudiced by the delay. On April

25, 2006, the Government responded that “[t]he reason for the delay in this case

involved investigative and prosecutorial resources, scientific testing procedures,

and the Department of Justice’s Protocol on the prosecution of death penalty

eligible cases.” Rather than prejudicing Gulley, the Government contended that

as a result of the delay the prosecution decided not to seek the death penalty.
No. 06-41528

4

Moreover, the Government asserted that the motion should be denied because

there was no evidence of any prejudice to Gulley. On May 12, 2006, the district

court decided to carry the motion forward until the end of the trial in order to

better assess whether Gulley suffered prejudice. The court reasoned that while

the Government’s delay was “curious and wondering, that doesn’t mean it [was]

prejudicial necessarily.” The district court did not permit any discovery into the

Government’s prosecutorial decisionmaking and refused to hold an in camera

hearing.

On June 1, 2006, the Government filed a motion in limine to exclude any

reference to specific acts of violence previously committed by Brown, other than

opinion or reputation testimony, unless Gulley had actual knowledge of the acts

before the attack. On June 14, 2006, Gulley filed a response arguing that while

he “under[stood] that specific acts of misconduct committed by Brown at other

institutions or on other days may well be inadmissable,” he ought to be able to

introduce testimony of specific acts Brown committed on the day of his death in

order to support a self defense claim. Specifically, Gulley sought to show that:

(1) Brown threatened another inmate around four to six hours before his death;

(2) Brown approached an inmate and requested weapons for Brown’s associates;

and (3) Brown had a knife in his hand immediately before the altercation broke

out in the compound. On June 14, 2006, the district court granted the motion

in limine generally, and specifically prohibited Gulley from introducing evidence

that Brown allegedly assaulted another inmate or soughtto procure weapons on

the day of his death. The district court reasoned that the evidence was

inadmissible because Gulley did not contend that he had actual knowledge of

those acts. On the other hand, as the Government conceded, the district court

ruled that Gulley could introduce evidence that Brown had a knife immediately

before the fight began.
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5

Gulley’s seven-day trial began on June 19, 2006. The Government offered

testimony from correctional officers who observed Gulley and Jackson in a verbal

altercation with Brown just outside Unit 3B-1 in the compound. Brown, who the

correctional officers testified was unarmed and acting alone, took off his jacket

and shirt and assumed a fighting position. Officer Chopane then heard Jackson

yell “let’s get that mother fucker,” whereupon both Gulley and Jackson pulled

shanks. The officers all testified that Brown began to flee and that Gulley and

Jackson chased him into Unit 3B-1. None of the officers saw any other inmates

participating in the fight or taking any other type of aggressive action.

The Government also showed the jury footage from the six surveillance

cameras, which captured Brown’s flight down the corridors of Unit 3B-1. Gulley

and Jackson could both be seen at various times holding objects in their hands;

Brown did not appear to be holding a shank or other weapon. One of the video

tapes showed Brown pausing from his flight at one pointto pick up a microwave,

which he threw at Jackson. He then continued to run into cell number 125, with

Gulley and Jackson entering after him. Although the video only captured

images of the inmates from the waist down once they entered the cell, it

appeared that Brown was finally cornered against the far wall of the cell.

Inmate Prince, who could be seen in the video footage with inmate

Richards evacuating the area of cell number 125, also testified at the trial. He

stated that while he was standing outside of cell number 125, Brown fled into it

and Gulley and Jackson followed him in. Moreover, Prince testified that as

Gulley and Jackson approached the cell, Gulley told him: “we’re going to kill

this nigger, get out of here.” Prince did not see Brown killed because he quickly

left the area, but he testified that he did observe Brown crawling on the ground

of the cell, trying to escape from Gulley and Jackson.

The Government’s expert witness, Dr. Tommy Brown, testified that Brown

was fatally wounded when a blade pierced the medial aspect of his lung and his
No. 06-41528

6

aorta. There was no evidence that Gulley’s shank had any of Brown’s blood on

it, although DNA analysis confirmed that his gloves and pants were stained with

trace amounts of Brown’s blood. Dr. Brown opined on direct examination that

the shank possessed by Jackson was the weapon that caused the fatal wound,

although it was possible that the shank found near Gulley inflicted three of

Brown’s more minor wounds. On cross-examination, Dr. Brown conceded that

in his professional opinion Jackson’s blade caused all of the wounds.

Finally, in order to show consciousness of guilt, the Government

introduced evidence that Gulley and Jackson, along with another inmate,

escaped from a federal correctional institute on July 10, 2005, shortly after being

arraigned in this case. According to the testimony, Jackson and the third inmate

were able forcibly to remove the prison keys from a correctional officer, which

they used to free Gulley from his cell. Gulley did not physically harm anyone

during the escape, but he did threaten a female officer in order to coerce her to

open the prison gates. He was apprehended shortly after escaping.

In his defense in chief, Gulley sought to show that Brown was a violent

person who intended to cause Jackson harm and that Gulley was attacked

because Brown mistakenly associated Gulley with Jackson. Neither Gulley nor

Jackson testified, but Gulley introduced testimony from other inmates that:

(1) Brown had a reputation for violence; (2) Brown was seen brandishing a

weapon both earlier in the day and immediately before the fight broke out in the

compound; and (3) Brown and his friends ambushed Jackson and Gulley. For

example, inmate Matt Lindsey testified that Brown was “bad news” and

“violent”; that he had slapped another inmate the morning of Brown’s death and

chased that inmate with a shank; and that Brown had threatened him on the

same day. Inmate Andres Aguiar, meanwhile, testified that he saw Brown

waylay Jackson with a knife while two of Brown’s friends simultaneously

attacked Gulley.
No. 06-41528

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In addition, Gulley called a correctional officer, who testified that Jackson

took credit for murdering Brown. Officer Mike Mattes stated that Jackson:

requested to speak to me, and I came to the cell door

where he was standing, and he stated to me that he did

not want to accept a cellee, another individual into the

cell where he was at, and that he stated to me that “I’m

through playing games with you people, and if you don’t

believe me, I will kill again. Look at the tapes.”

Officer Mattes testified that he “absolutely” knew that Jackson was referring to

the tapes capturing the murder of Brown, although he did not inquire further

into the incident because Jackson refused to continue their discussion. He

conceded that Jackson never said: “I was the only one involved [in Brown’s

murder.]”

Finally, Gulley presented the testimony of Bob Henderson, a crime scene

reconstructionist and expertin blood stain pattern analysis. Henderson testified

that he had reviewed reports by prison staff and the FBI, the autopsy report,

photographs of the weapons that were involved, and photographs of the various

participants’ clothing. Based on this evidence, he concluded that there was

insufficient evidence to prove that either Gulley or Jackson struck the mortal

blow. On cross-examination, Henderson viewed for the first time one of the

surveillance videos. Although the video did not alter his opinion at the time, he

later realized it conclusively proved that Gulley did not strike the mortal wound.

Defense counsel sought to recall Henderson to testify to his most recent opinion,

but the district court refused to permit the additional testimony because

Henderson had never provided a report on the issue. 

After the close of the evidence, on June 26, 2006, Gulley moved for a

judgment of acquittal, which the district court denied. On June 27, 2006, before

closing argument, Gulley renewed his motion to dismiss the case for preindictment delay. Gulley argued that he was prejudiced because the delay

resulted in the loss of a video that might have contained images supporting his
No. 06-41528

8

assertion of self defense. The district court denied the motion because there was

no evidence that any missing video existed.

That same morning, the jury heard closing arguments, received the jury

instructions and verdict form, and retired for deliberation. At approximately

3:30 p.m., the jury sent a note to the district court judge, stating that “members

of the jury wants recess [sic] for the day in order to collect thoughts and reflect

on all points made about the case. Jury will convene at 9:00 a.m. Wednesday.”

Defense counsel were present, but the record is silent as to whether Gulley was

present. The district court informed counsel that it was going to instruct the

jury to deliberate until 5:00 p.m., but defense counsel objected that this might

lead to juror coercion. Defense counsel suggested that the district court instead

instruct the jury to deliberate until 4:00 p.m. Accordingly, the district court,

responded to the jury with a note requesting that they “please deliberate until

4:00, then please return in the morning at 10:00 a.m.”

The next morning, on June 28, 2006, at approximately 10:15 a.m.,the jury

notified the district court that it had reached a verdict. The jury found Gulley

guilty of both counts of the indictment. On October 4, 2006, Gulley was

sentenced to life imprisonment. He now appeals his conviction.

II. ANALYSIS

A. Sufficiency of the Evidence

Gulley argues that there was legally insufficient evidence to support his

conviction for murder or for aiding and abetting murder. He emphasizes that

there was no eye-witness testimony or video evidence proving that he caused

Brown’s death. Nor was there any evidence that the weapon he possessed

caused Brown’s fatal wounds. While Brown’s blood was found on his gloves,

Gulley argues that evidence merely proves that he was in the same area as

Brown when Jackson murdered him. To be legally sufficient, Gulley contends,

the prosecution was required to prove that he associated himself with the
No. 06-41528

9

murder by helping to facilitate the crime in some manner—by restraining Brown

or blocking Brown from exiting the cell, for example. He argues, however, that

there was no such evidence in this case.

Our review of the sufficiency of the evidence is “highly deferential to the

verdict.” United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002). The court

asks “‘whether the evidence, when reviewed in the light most favorable to the

government with all reasonable inferences and credibility choices made in

support of a conviction, allows a rational fact finder to find every element of the

offense beyond a reasonable doubt.’” Id. (quoting United States v. Asibor, 109

F.3d 1023, 1030 (5th Cir. 1997)). Thus, our inquiry is “limited to whether the

jury’s verdict was reasonable, not whether we believe it to be correct.” United

States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001).

To establish a defendant’s guilt for first degree murder under 18 U.S.C.

§ 1111, the Government must prove that a defendant: (1) unlawfully killed

another person; (2) with malice aforethought; and (3) premeditation. United

States v. Agofsky, 458 F.3d 369, 371 (5th Cir. 2006). Moreover, anyone who

“aids, abets, counsels, commands, induces or procures [the murder], is

punishable as a principal.” 18 U.S.C. § 2. “An aider and abettor is liable for

criminal acts that are the ‘natural or probable consequence of the crime’ that he

counseled, commanded or otherwise encouraged.” United States v. Vaden, 912

F.2d 780, 783 (5th Cir. 1990) (citations omitted).

To sustain a conviction for aiding and abetting, the Government must

prove thatthe underlying offense occurred,“that [the] defendant associated with

[the] criminal venture, purposefully participated in the criminal activity, and

sought by his or her actions to make the venture succeed.” United States v. Polk,

56 F.3d 613, 620 (5th Cir. 1995) (citations omitted). A defendant associates

himself with a criminal venture when he shares in the criminal intent of the

principal. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995). “To
No. 06-41528

10

participate in the criminal activity means that the defendant acted in some

affirmative manner designed to aid the venture.” Id. (citation omitted).

We find that there is sufficient evidence to uphold a conviction for aiding

and abetting Brown’s murder under 18 U.S.C. § 2. A rational jury could have

concluded that Brown intended to join in Jackson’s criminal venture because

there was evidence he: (1) drew a deadly weapon against Brown in response to

Jackson’s instructions to do so; and (2) joined in chasing Brown for

approximately sixty yards into cell number 125. Indeed, the video evidence

shows that Gulley, weapon in hand, was the first person to corner Jackson in the

cell. It does not matter whether Gulley struck the mortal blow because he

participated in the chase and encouraged the fight. See United States v.

Villarreal, 963 F.2d 725, 730-31 (5th Cir. 1992) (upholding an aiding and

abetting murder conviction where the defendant’s fight with a police officer

ended when his co-defendant shot the officer). Moreover, a rational jury could

conclude that Gulley intended for his actions to assist in the murder of Brown.

Inmate Prince testified that upon running into cell number 125, Gulley told him

and Richards “we’re going to kill this nigger, get out of here.” This is direct

evidence of intent, and the jury was entitled to credit the testimony as they saw

fit. See United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001). 

Gulley’s seeks to avoid this conclusion by analogizing his case to the

Eighth Circuit’s decision in United States v. Grey Bear, 828 F.2d 1286 (8th Cir.

1987). In that case, eleven co-defendants were brought to trial and variously

convicted of first-degree murder, second-degree murder, and assault resulting

in serious bodily injury. Id. at 1288. The evidence established that the

defendants attacked the victim at a party, chased him to a highway, beat him,

and left him lying on a road. Id. at 1293-97. One of the defendants then drove

over the victim. Id. at 1294. The court found that there was insufficient

evidence to support a conviction against co-defendant Maynard Dunn for assault
No. 06-41528

11

resulting in serious bodily injury because the only evidence implicating him was

a single witness’s testimony that Dunn “threw a punch” at the victim. Id. at

1295. There was no evidence to show when Dunn threw the punch, where on the

victim’s body it landed, or what type of injury it caused. Id. Furthermore, while

Dunn could have aided and abetted the crime of assault by implicitly

encouraging others to engage in their more severe attack on the victim, the

Government’s own witness testified that Dunn had stated he did not want to get

involved in the fight. Id.

Gulley’s reliance on Grey Bear is unavailing. Unlike in Grey Bear, here

there is no ambiguity in the time line or any question that Gulley was involved

in the ultimate events leading to the victim’s death. Also, in Grey Bear, the

prosecution’s witness testified that the co-defendant expressly disavowed an

intent to take part in the fight that caused the victim’s death. But here the

evidence shows that Gulley fully participated in the events leading up to Brown’s

death and expressed an intent to kill Brown. Thus, Gulley was not convicted

based on his “mere presence at the scene of the crime.” See id. at 1292 (citation

omitted). Gulley was convicted because he drew a weapon in response to

Jackson’s exhortation to “get” Brown, chased Brown into cell number 125, where

the fatal blow was struck, and told Prince he was going to kill Brown seconds

before Brown was in fact killed.

B. Character Evidence

Gulley argues thatthe district court erred by excluding proof of eight prior

instances of violence committed by Brown because such evidence tended to prove

that Brown was the first aggressor. Gulley points out that in order to prove that

he acted in self defense, he was required to show that he was neither the first

aggressor nor otherwise at fault for inciting the fatal attack. He contends,

therefore,that evidence of Brown’s prior violent acts were admissible under Rule

405(b) ofthe Federal Rules of Evidence to show that Brown was more likely than
No. 06-41528

12

not the first aggressor. Moreover, Gulley asserts that the exclusion of the

evidence was harmful to his case because there were no cameras that captured

the events in the compound precipitating the fight. The Government was able

to show video evidence of Gulley chasing Brown, but Gulley was allegedly

precluded from offering evidence justifying his conduct.

We review a district court’s decision to exclude character evidence for an

abuse of discretion. United States v. Marrero, 904 F.2d 251, 260 (5th Cir. 1990)

(citation omitted). In general, “[e]vidence of a person’s character or a trait of

character is not admissible for the purpose of proving action in conformity

therewith on a particular occasion . . . .” FED. R. EVID. 404(a). However,

evidence of a “pertinent” character trait of the victim may be introduced. FED.

R. EVID. 404(a)(2). Rule 405 establishes the permissible methods of proving

character:

(a) Reputation or Opinion. In all cases in which

evidence of character or a trait of character of a person

is admissible, proof may be made by testimony as to

reputation or by testimony in the form of an opinion.

On cross-examination, inquiry is allowable into

relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which

character or a trait of character of a person is an

essential element of a charge, claim, or defense, proof

may also be made of specific instances of that person’s

conduct.

FED. R. EVID. 405. Rule 405(b) thus limits the use of specific prior acts to cases

where character is at issue “in the strict sense” because that method of proof

“possess the greatest capacity to arouse prejudice, to confuse, to surprise, and to

consume time.” Rule 405 advisory comm. notes.

Gulley argues that character was an essential element atissue in this case

because Brown’s propensity for violence tends to indicate that he was the first
No. 06-41528

13

aggressor. In support, he relies upon United States v. Burks, 470 F.2d 432, 434

(D.C. Cir. 1972), where the D.C. Circuit held that “evidence of the deceased’s

violent character, including evidence of specific violent acts, is admissible where

a claim of self-defense is raised.” The court reasoned that “[s]uch evidence is

relevant on the issue of who was the first aggressor . . . .” Id. Moreover, the

court noted that it is irrelevant whether the defendant knew of the prior violent

acts “for the question is what the deceased probably did, not what the defendant

probably thought the deceased was going to do.” Id. at 434 n.4 (internal

quotation marks and citations omitted).

Other circuit courts have disagreed with the D.C. Circuit. In UnitedStates

v. Gregg, 451 F.3d 930, 934 (8th Cir. 2006) (citation omitted), the Eighth Circuit

acknowledged that a defendant can introduce evidence of a victims’s violent

character to establish conformity therewith when self defense is raised, but held

that such evidence is limited to reputation or opinion evidence because “a

victim’s violent character is not an essential element of . . . the defense of selfdefense.” The court reasoned that character evidence in the self-defense context

is circumstantial evidence and, therefore, may not be proven by prior specific

acts. Id.(citation omitted). The Eighth Circuit refrained from following the D.C.

Circuit’s decision in Burks because that case was decided before the Federal

Rules of Evidence were adopted. Id. at n.5.

In United States v. Keiser, 57 F.3d 847, 854-55 (9th Cir. 1995), the Ninth

Circuit held that “[u]nder the Federal Rules of Evidence, only reputation or

opinion evidence is proper to show that the victim of an assault had a propensity

toward violence.” Id. at 855. The court stated that “[t]he language of the rule

states in straightforward manner that evidence of specific instances of conduct

may only be made when a person’s character is ‘an essential element of a . . .

defense.’” Id. (citation omitted). And it concluded that a victim’s character is not

an essential element of self-defense. Id. at 857. The court reasoned that a
No. 06-41528

1 This distinction was actually acknowledged by the Ninth Circuit in Keiser, where the

Ninth Circuit stated that “we need not, and do not, reach the question whether specific acts

are admissible to bolster the assertion that the defendant’s belief in the need for force was

reasonable.” 57 F.3d at 853. In any event, it is not relevant to this case because Gulley does

not argue that Brown’s prior violent acts were known to him or that they were relevant to his

state of mind. He is simply trying to prove that Brown’s prior violent acts make it more likely

than not that Brown was the first aggressor.

14

defendant could prove that a victim had a violent character and in fact attacked

the defendant, but still fail in a self defense claim if he used more force than

appeared reasonably necessary. Id. On the other hand, it noted, a defendant

could prevail in his “claim of self-defense against an avowed pacifist, so long as

the jury agrees thatthe defendant reasonably believed unlawful force was about

to be used against him.” Id.

Finally, in United States v. Smith, 230 F.3d 300, 308 (7th Cir. 2000), the

Seventh Circuit stated that specific-acts character evidence is usually not

admissible to prove a propensity for violence. The Seventh Circuit chose not to

adopt the Ninth Circuit’s rationale in Keiser because specific acts of conduct

known to the defendant might factor into the defendant’s decision to act in self

defense. Id. at 308 n.5. In such instances the defendant should be able to

introduce specific acts to prove his subjective belief.1Id. 308 & n.5.

Nevertheless, the court concluded that when prior violent acts are unknown to

the individual claiming self defense, they are necessarily circumstantial in

nature and cannot be admitted. Id. at 308.

We find that Brown’s prior specific acts were not admissible to prove his

alleged propensity for violence. First, as recognized by the Seventh, Eighth, and

Ninth Circuits, the plain language of Rule 405(b) limits the use of specific

instances of conduct to prove essential elements of a charge or defense. See FED.

R.EVID.405(b); see also Marrero, 904 F.2d at 260 (holding that specific instances
No. 06-41528

2 Even were we to find that the district court had erred we would not reverse because

excluding the evidence was harmless. See United States v. Sumlin, 489 F.3d 683, 688 (5th Cir.

2007) (citation omitted). This court will not overturn a conviction based on the exclusion of

evidence unless a reasonable probability exists that the error contributed to conviction. Id.

(citations omitted). Here, even if Brown was the initial aggressor, the evidence was sufficient

to prove that Brown sought to withdraw from the attack and he did not pose an immediate

threat to Gulley. See United States v. Goodface, 835 F.2d 1233, 1235-36 (8th Cir. 1987)

(holding that self defense instruction was not warranted where the defendant’s actions

indicated he failed to withdraw from a conflict when he could have done so safely).

15

of conduct are not admissible as circumstantial evidence proving lack of intent).

Second, Brown’s character was not an essential element ofthe self defense claim

in the “strict sense” because a self defense claim may be proven regardless of

whether the victim has a violent or passive character. See Keiser, 57 F.3d at 857.

Finally, the D.C. Circuit’s decision in Burks is inapposite because it was

promulgated before the Federal Rules of Evidence were adopted. Although wellreasoned, it does not comport with the subsequently adopted language of Rule

405(b) itself.2

C. Prosecutorial Delay

Gulley argues that it was reversible error for the district court to refuse

to permit discovery into the Government’s reasons for delay in filing the

indictment. He asserts that the district court should have held some type of

hearing, in camera or otherwise, to determine what the Government’s motives

were because a defendant cannot bear the heavy burden of proving bad faith

without discovery. Gulley does not contend that there was sufficient evidence

of prejudice. Rather, he argues that by preventing him from inquiring into the

prosecutor’s decisionmaking process, the district court also prevented him from

ascertaining the advantage the Government gained.

In United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir. 1996) (en banc),

this court held that “for preindictment delay to violate the due process clause it
No. 06-41528

16

must not only cause the accused substantial, actual prejudice, but the delay

must also have been intentionally undertaken by the government for the purpose

of gaining some tactical advantage over the accused in the contemplated

prosecution or for some other impermissible, bad faith purpose.” An

“[i]ntentional delay for the purpose of gaining tactical advantage would include

delay for the purpose of rendering unavailable evidence favorable to the defense

or which would tend to undercut the government’s case.” Id. at 1514 n.23. To

establish prejudice, the defendant must offer more than mere speculation of lost

witnesses, faded memories or misplaced documents; he must show an actual loss

of evidence that would have aided the defense and that cannot be obtained from

other sources. Id. at 1515 (citations and quotations omitted). The burden is on

the defendantto prove both prongs of the test. United States v. Avants, 367 F.3d

433, 441 (5th Cir. 2004) (citations omitted) (noting thatthis court does notfollow

the minority view that once actual prejudice is shown the district court should

balance prejudice against the Government’s justification for delay). We review

the district court’s factual determinations when reviewing a motion to dismiss

for pre-indictment delay for clear error; legal conclusions are reviewed de novo.

Id. (citation omitted).

In this case, we find no reversible error in the district court’s decision to

refuse to hold an in camera hearing. Crouch advised district courts that“atleast

in all but the very clearest and most compelling cases, the district court . . .

should carry [a motion to dismiss for pre-indictment delay] with the case, and

make the determination of whether actual, substantial prejudice resulted from

the improper delay in light of what actually transpired at trial.” Id. at 1516.

This court has subsequently determined that even when a district court makes

a pre-trial finding that the prosecution’s delay caused actual prejudice, it is not

under an obligation to permit discovery or hold an open hearing. United States
No. 06-41528

17

v. Mulderig, 120 F.3d 534, 540 (5th Cir. 1997). In this case, there was no reason

to hold any hearing because the district court found that Gulley suffered no

prejudice from the delay. Thus, even if discovery might have shown that the

Government sought to gain a tactical advantage by delaying the prosecution,

Gulley would not be entitled to a reversal because he had to prove bad faith and

prejudice. See Avants, 367 F.3d at 441 (citations omitted). Gulley seeks to avoid

this argument by collapsing the two-prong standard into one test, arguing that

he cannot prove prejudice until he can discover why the prosecution was delayed.

But our case law is clear that each element is separate and distinct. See id. at

441-42.

D. Ineffective Assistance of Counsel

Gulley argues that he received ineffective assistance of counsel because his

attorneys did not adequately prepare Gulley’s crime-scene-reconstruction expert,

Henderson. In particular, Gulley notes that his counsel provided Henderson

with electronic copies of the surveillance videos, but Henderson was unable to

access them on his computer. Moreover, it is undisputed that if trial counsel had

rectified this problem when notified, Henderson would have opined that Jackson

struck the mortal blow that killed Brown. Gulley contends, therefore, that but

for his counsels’ error, the jury would have had concrete scientific evidence

proving that Jackson was the killer. In response, the Government argues that

this court should not reach the issue on direct appeal because the question was

not raised before the district court. In the event that this court does reach the

issue, however, the Government contends that Gulley cannot prove any

prejudice because the prosecution argued in its closing argument that Gulley

aided and abetted Jackson’s murder of Brown.

A defendant’s Sixth Amendment right to counsel is violated if: (1) his

counsel’s performance was deficient; and (2) the deficient performance
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prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

Bower v. Quarterman, 497 F.3d 459, 466 (5th Cir. 2007) (citation omitted). An

attorney’s performance was deficient if it fell below an objective standard of

reasonableness. Bower, 497F.3d at 466 (citation omitted). “[T]o prove prejudice,

‘the defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003) (citation

omitted). “If proof of one element is lacking, the court need not examine the

other.” Kirkpatrick v. Blackburn, 777 F.2d 272, 285 (5th Cir. 1985) (citation

omitted).

However, the “general rule in this circuit is that a claim of ineffective

assistance of counsel cannot be resolved on direct appeal when the claim has not

been raised before the district court since no opportunity existed to develop the

record on the merits of the allegations.” United States v. Higdon, 832 F.2d 312,

313-14 (5th Cir. 1987) (citations omitted). Only in those rare occasions where

the record is sufficiently developed will the court undertake to consider claims

of inadequate representation on direct appeal. Id. at 314 (citations omitted). If

we cannot fairly evaluate the claim from the record, we must decline to consider

the issue without prejudice to a defendant’s right to raise it in a subsequent

proceeding. See id.; United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th

Cir. 1999) (stating that ordinarily the proper mechanism for resolving an

ineffective assistance of counsel claim is a habeas corpus proceeding).

We agree with the Government that Gulley’s claim is not ripe for review

because “the district court did not hold a hearing and the record does not provide

sufficient detail abouttrial counsel’s conduct and motivations to allow this court

to make a fair evaluation of the merits of [the defendant’s] claim.” United States
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19

v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007). This is not a case where the court

can simply find as a matter of law that defense counsel did not err. See, e.g.,

Villegas-Rodriguez, 171 F.3d at 230 (rejecting the defendant’s ineffective

assistance argument on direct appeal because counsel had no legal basis to

object to the testimony defendant complained of). Indeed, Gulley’s counsel

originally intended for Henderson to review the crime scene videos, but for

whatever reason did not respond to Henderson’s problems accessing the video

that was provided. We can only speculate as to why. See Higdon, 832 F.2d at

314 (declining to decide an ineffective assistance claim because the court could

only speculate what the attorney’s motivations were). On the other hand, it is

unclear whether Henderson’s testimony would have had any effect on the

outcome of the case because nearly all of the evidence already supported the

conclusion that Gulley did not strike the killing blow. Accordingly, we decline

to consider this issue at this time, but do so without prejudice to Gulley’s right

to raise it in a habeas corpus proceeding.

E. Right to be Present at Trial

Gulley argues that he was not present when a jury note—requesting leave

to “recess for the day in order to collect thoughts and reflect on all points made

about the case”—was read. He asserts that there is no notation of his presence

in the trial record, although the balance of the transcripts otherwise indicate

that he was, in fact, present. While his counsel were present and did object to

the district court’s proposal to instruct the jury to deliberate until 5:00 p.m.,

defense counsel agreed to the district court’s order directing the jury to

deliberate until 4:00 p.m. Gulley argues that if he were present when the jury

note was read he would have insisted that counsel object. He contends that the

error was not harmless because itis clear thatthere was one holdout on the jury,

and the district court’s order had a coercive effect on that juror.
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Under Rule 43 of the Federal Rules of Criminal Procedure, a criminal

defendant has the right to be present at every stage of the trial, including when

a judge is determining how to respond to a question from the jury. See FED. R.

CRIM. P. 43(a); United States v. Brooks, 786 F.2d 638, 643 (5th Cir. 1986).

Although a district court may “technically” violate a defendant’s right to be

present at every stage of a trial, the violation only requires reversal if it

prejudiced the defendant. United States v. Hagmann, 950 F.2d 175, 179 (5th

Cir. 1991) (citations omitted). We therefore review an alleged violation of Rule

43 for abuse of discretion and harmless error. Id. (citations omitted) (finding no

prejudice from an ex parte communication where the defendant’s counsel earlier

failed to object to the district court’s anticipatory ruling on the same issue);

United States v. Breedlove, 576 F.2d 57, 59-60 (5th Cir. 1978) (holding that if the

district court’s answer to the jury’s inquiry is distinctly responsive to a question

and clearly states the law, and if no prejudice is shown, the violation of Rule 43

is harmless).

Assuming that Gulley was not present when the district court responded

to the jury’s request to recess, we find that the error was harmless. The

presence of Gulley’s defense counsel and their objection to the district court’s

original response tends to mitigate any potential prejudice that might have

occurred in Gulley’s absence. See United States v. Stratton, 649 F.2d 1066, 1080

(5th Cir. Unit A July 1981) (citations omitted). Furthermore, there is no

evidence in the record that any holdout jury member ever existed. Nor is there

any other reason to believe that the district court’s instruction to the jury to

deliberate for approximately thirty additional minutes influenced the jury’s

decision or coerced the jury into rendering a verdict. Cf. United States v. Cowan,

819 F.2d 89, 91 (5th Cir. 1987) (reversing the defendant’s convictions where the

trial judge met ex parte with each juror to discuss the jury’s obligation to reach
No. 06-41528

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a verdict). To the contrary, the jury did not return the verdict until the next

morning, after the jury had recessed for the night. See United States v. Roberts,

913 F.2d 211, 216-17 (5th Cir. 1990) (holding that a delay between an ex parte

communication and the jury’s verdict is evidence that the communication was

not coercive). Accordingly, Gulley’s absence did not result in any demonstrable

prejudice and was harmless error.

III. CONCLUSION

For the reasons stated above, we AFFIRM Gulley’s conviction and

sentence.