United States v. Enclade

United States Court of Appeals
for the Fifth Circuit
____________

No. 24-30684
____________

United States of America,

Plaintiff—Appellee,

versus

Travis Enclade; Terence Wilson,

Defendants—Appellants.
______________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC Nos. 2:22-CR-238-1,
2:22-CR-238-2
______________________________

Before Richman, Higginson, and Douglas, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
This appeal follows a jury’s convictions of Terence Wilson and Travis
Enclade for conspiring to distribute methamphetamine, fentanyl, and heroin.
Wilson was additionally convicted of possessing those drugs with intent to
distribute and unlawfully possessing two firearms found at the stash house as
a convicted felon; Enclade was additionally convicted of unlawfully
possessing those firearms and a third firearm found at his residence. The
convictions stem from a two-month surveillance operation in New Orleans
that ended with the search of three residences and the recovery of substantial
United States Court of Appeals
Fifth Circuit
FILED
August 18, 2026

Lyle W. Cayce
Clerk
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quantities of narcotics, multiple firearms, and a jailhouse call where Wilson
directed Enclade to the stash. On appeal, the defendants raise nine issues,
challenging the sufficiency of the evidence, the admission of certain evidence
and testimony, the prosecutor’s rebuttal closing argument, the district
court’s response to a jury question and denial of a continuance, cumulative
error, Enclade’s sentence, and the constitutionality of 18 U.S.C. § 922(g)(1).
Finding no reversible error, we AFFIRM.
I.
In early 2022, a Drug Enforcement Administration task force led by
Jefferson Parish Sheriff’s Office narcotics agent Steven Brens began
investigating Travis Enclade and Terence Wilson, relatives who were
suspected of narcotics trafficking in the New Orleans area.
Beginning in August 2022, law enforcement installed pole cameras
outside two residences associated with the defendants: 4558 Camelot Drive,
where Enclade lived with his girlfriend, and 4235 Hollygrove Street, where
Wilson’s father lived. The cameras recorded automatically upon detecting
movement and allowed law enforcement to capture still photographs.
Through this video surveillance, supplemented by physical surveillance,
GPS tracking, and phone toll analysis, Agent Brens observed Wilson and
Enclade at both residences, along with several vehicles the two men used
interchangeably—a practice Brens testified is intended to frustrate law-
enforcement surveillance.
The pole cameras captured multiple brief visits to both residences that
Brens testified were consistent with hand-to-hand narcotics transactions. On
August 18, 2022, footage from Camelot Drive showed Enclade retrieving
objects from Wilson’s parked car; Brens opined, based on the activity and the
appearance of a clear plastic bag, that Enclade was handling narcotics. On
August 25, 2022, footage from Hollygrove showed an unknown man arriving
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by truck and briefly interacting with Wilson and Enclade at a vehicle in what
Brens identified as a hand-to-hand transaction; a still photograph taken
shortly afterward showed Wilson exiting the same vehicle and entering the
Hollygrove residence carrying a handgun. On August 26, 2022, footage
showed Wilson retrieving an item from a vehicle that Brens “believe[d]” to
be narcotics or currency, after which Wilson was observed placing a handgun
in his waistband. Agent Brens later testified that a Smith & Wesson 9mm
semi-automatic handgun recovered from the Hollygrove residence during
the eventual search appeared to be the same firearm depicted in the footage,
though the Government acknowledged it could not confirm the identification
with certainty.
On September 22, 2022, law enforcement installed a third pole
camera at 3511 Encampment Street. The residence had previously been
rented by Stacia Caston, an acquaintance of Wilson’s, who testified that she
vacated the property on September 1 because she could no longer afford the
rent and that Wilson thereafter arranged with her to take over the lease so
that he could move his ailing father into more comfortable housing. After
Caston moved out, Wilson began bringing items into the home, including a
mattress, a television, and a black suitcase. Brens testified that he observed
Wilson and Enclade accessing the Encampment residence with individual
keys on repeated occasions, entering and exiting for brief periods—a pattern
he described as consistent with a stash house maintained at a location
deliberately distanced from the defendants through a third party. He similarly
testified to near-daily hand-to-hand drug activity at the Hollygrove residence
and to identifying several visitors there as narcotics customers through
registration checks and prior law-enforcement contacts.
On September 28, 2022, Wilson contacted an individual later
identified as an undercover officer working with the Plaquemines Parish
major crimes task force, and the two arranged what the officer understood to
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be a narcotics transaction; Wilson was arrested when he arrived at the agreed
meeting location, a Home Depot, though no narcotics were found on his
person. The following morning, while in custody, Wilson placed a recorded
call to Enclade using another inmate’s phone access. During the call, Wilson
said, “Look ray.” Enclade responded, “Yeah I already know where ray at.”
Wilson then said, “It’s in the cabinet.” Agent Brens testified that, based on
the narcotics later recovered from a kitchen cabinet and his training and
experience, he understood “ray” to be a coded reference to narcotics rather
than to a person, a conclusion he maintained on cross-examination
notwithstanding his acknowledgment that the term is not one commonly
used in the drug trade. Pole camera footage captured Enclade entering the
Encampment residence several hours after the call. Wilson was held for about
twenty-four hours and then released.
On October 4, 2022, footage showed Enclade arriving at the
Encampment residence carrying what Brens identified, based on the item’s
appearance, as a backpack; Brens later testified that a backpack matching
those characteristics was recovered from a kitchen cabinet during the
subsequent search, an identification he maintained on cross-examination
despite challenges to the footage’s clarity. On the evening of October 8,
2022, footage captured Wilson and Enclade moving Wilson’s elderly father
into the Encampment residence.
On October 12, 2022, law enforcement executed search warrants at all
three residences. At Hollygrove, officers recovered marijuana, small
quantities of cocaine and heroin, a handgun, and ammunition. At
Encampment Street, officers recovered narcotics from several locations,
including a black backpack in a kitchen cabinet consistent with Wilson’s
reference during the jailhouse call; the search yielded, in total, over 300
grams of methamphetamine, over 100 grams of fentanyl, and over 500 grams
of heroin, later confirmed through forensic testing, along with distribution
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paraphernalia including a vacuum sealer, digital scales, a blender, and a kilo
press. Officers also recovered two firearms from the residence: a pistol found
inside an open suitcase in a bedroom that pole camera footage had earlier
shown Wilson carrying into the house, and a second pistol found in a
bathroom. Wilson’s bedridden father was found in the residence at the time
of the search. At Camelot Drive, officers recovered synthetic marijuana and
two firearms, including a pistol in the master bedroom closet whose location
Enclade identified for officers.
A federal grand jury indicted Wilson and Enclade, charging both
defendants with conspiracy to distribute and possess with intent to distribute
methamphetamine, fentanyl, and heroin (Count 1); possession with intent to
distribute the same substances (Count 2); being felons in possession of
firearms, as to Wilson for the two firearms recovered at Encampment Street
(Count 3) and as to Enclade for those same firearms and the pistol recovered
at Camelot Drive (Count 4); and possessing firearms in furtherance of drug
trafficking (Count 5). Before trial, the district court denied Wilson’s motions
in limine to exclude evidence of his firearm possession outside of the
Hollygrove residence, and to dismiss his felon-in-possession count on
Second Amendment grounds. On the morning trial was set to begin, the
district court denied Enclade’s request for new counsel and a continuance
following an extensive colloquy with Enclade and his attorney.
At trial, the Government called nine witnesses, including Agent
Brens, forensic chemists, the undercover officer involved in Wilson’s arrest,
Stacia Caston, and a firearms expert. Neither defendant testified, and the
defense presented no case. During closing argument, the defendants argued
primarily that the Government’s evidence rested on inference and
speculation rather than direct or forensic proof. During rebuttal, the
prosecutor made remarks now challenged as improper, including a statement
that “law enforcement knew who done it” when the warrants were executed.
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The jury convicted both defendants on Count 1, acquitted both on
Count 5, convicted Wilson alone on Count 2, and convicted Wilson and
Enclade respectively on Counts 3 and 4. The district court sentenced Enclade
to 288 months’ imprisonment and Wilson to 240 months, both below the
applicable Guidelines ranges.
II.
This appeal asks whether (A) the evidence was sufficient to support
the convictions; (B) the district court committed plain error in admitting
Agent Brens’s lay opinion testimony; (C) the prosecutor’s rebuttal closing
argument constituted reversible misconduct; (D) the district court properly
admitted other-acts evidence of Wilson possessing uncharged firearms; (E)
the district court adequately responded to a jury question during
deliberations; (F) the district court abused its discretion in denying a
morning-of-trial continuance; (G) cumulative error warrants relief; (H)
Enclade’s below-Guidelines sentence was substantively reasonable; and (I)
18 U.S.C. § 922(g)(1) violates the Second Amendment and Commerce
Clause. We address each issue in turn.
A
Enclade and Wilson moved for a judgment of acquittal following the
close of the Government’s case, preserving their challenges to the sufficiency
of the evidence. Such preserved challenges “get de novo review, with a heavy
thumb on the scale in favor of the verdict.” United States v. Cabello, 33 F.4th
281, 288 (5th Cir. 2022). “[W]e consider the evidence, all reasonable
inferences drawn from it and all credibility determinations in the light most
favorable to the Government, and affirm if a reasonable jury could find the
offense’s essential elements beyond a reasonable doubt.” United States v.
Medina, 161 F.3d 867, 872 (5th Cir. 1998).
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We proceed to address: (1) Enclade and Wilson’s challenge to the
sufficiency of the evidence on Count 1; (2) Wilson’s challenge to the
sufficiency of the evidence on Count 2; and (3) Enclade and Wilson’s
challenge to the sufficiency of the evidence on Counts 3 and 4.
(1)
The jury convicted Enclade and Wilson of Count 1, conspiracy to
distribute and possess with intent to distribute at least 50 grams of
methamphetamine, 40 grams of fentanyl, and 100 grams of heroin. “The
essential elements of a drug conspiracy are (1) an agreement by two or more
persons to violate the narcotics laws; (2) a defendant’s knowledge of the
agreement; and (3) his voluntary participation in the agreement.” United
States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc);
21 U.S.C. §§ 841, 846. Enclade and Wilson challenge only the sufficiency of
the evidence supporting the first element—an agreement. “A conspiracy
agreement may be tacit, and the trier of fact may infer agreement from
circumstantial evidence.” United States v. Thomas, 12 F.3d 1350, 1356 (5th
Cir. 1994) (quoting United States v. Hernandez-Palacios, 838 F.2d 1346, 1348
(5th Cir. 1988)).
The evidence was sufficient to establish an agreement between
Enclade and Wilson. The Government presented evidence that the two men
shared access to the Encampment Street residence, which Agent Brens
identified as a stash house. Surveillance footage showed Enclade and Wilson
repeatedly traveling to and from the residence, and both men possessed keys
to the home. A search of the residence recovered narcotics, scales, a kilo
press, a blender, a vacuum sealer, and packaging materials consistent with
drug distribution. The jury also saw surveillance footage of what Agent Brens
identified as hand-to-hand narcotics transactions involving Wilson and
Enclade, both with each other and with third parties.
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The jailhouse call between Enclade and Wilson following Wilson’s
arrest reinforces the jury’s finding of an agreement. During the call, Wilson
told Enclade, “Look ray.” Enclade responded, “Yeah I already know where
ray at.” Wilson then stated, “It’s in the cabinet.” When law enforcement
searched the Encampment Street residence, they recovered a black backpack
containing narcotics from a cabinet under the sink. Agent Brens testified that,
based on his experience, he understood “ray” to refer to narcotics and
interpreted Wilson’s statement as directing Enclade to the drugs in the
cabinet. A rational jury could infer from the exchange that Enclade already
knew the location of the narcotics and that Wilson expected him to
understand the reference without further explanation. That evidence,
combined with the surveillance footage and shared access to the stash house,
was sufficient to establish a coordinated operation. United States v. Grant,
683 F.3d 639, 643 (5th Cir. 2012) (“An agreement may be inferred from
concert of action . . . .” (quoting United States v. Stephens, 571 F.3d 401, 404
(5th Cir. 2009))).
To the extent Enclade and Wilson challenge Agent Brens’s testimony
as inadmissible opinion testimony, those arguments do not affect the
sufficiency analysis. When a defendant separately challenges the
admissibility of evidence supporting his conviction, sufficiency is considered
first for double-jeopardy purposes, and the court considers all evidence
presented to the jury, including evidence challenged as inadmissible. United
States v. Robinson, 87 F.4th 658, 667 n.1 (5th Cir. 2023). Nor may the
defendants defeat sufficiency by attacking Brens’s credibility. This court
does not reweigh witness credibility unless testimony is incredible as a matter
of law—that is, unless the testimony “relates to facts that the witness could
not possibly have observed or to events which could not have occurred under
the laws of nature.” United States v. Green, 180 F.3d 216, 221–22 (5th Cir.
1999) (first quoting United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir.
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1994); and then citing United States v. Casteneda, 951 F.2d 44, 48 (5th Cir.
1992)). Brens’s testimony was not incredible as a matter of law, and it was for
the jury to determine what weight, if any, to give that testimony.
Wilson counters that, at most, the evidence showed “mere parallel
drug dealing,” which is insufficient to establish a conspiracy absent evidence
of a mutually dependent relationship, citing to United States v. Holloway, 377
F. App’x 383 (5th Cir. 2010). This case is unlike Holloway. There, the
evidence showed only buyer-seller transactions and “conscious parallelism,”
without shared infrastructure, coordinated activity, or evidence that the
defendants worked together toward a common distribution objective. Id. at
387–88. Here, by contrast, the evidence showed that Enclade and Wilson
shared access to a stash house, engaged in transactions together, used shared
resources, and communicated about the location of narcotics. The record
therefore supports a finding of more than parallel drug activity.
Enclade’s arguments—that his familial relationship with Wilson and
the absence of forensic evidence undermine the verdict—are likewise
unavailing. The Government never relied on the defendants’ familial
relationship, and the absence of fingerprints or DNA evidence does not
preclude a finding of conspiracy based on circumstantial evidence, Thomas,
12 F.3d at 1356. Enclade’s argument that Wilson’s use of Enclade’s truck,
without Enclade present, during the Home Depot undercover-agent buy
negates Enclade’s participation in the conspiracy likewise depends on
drawing an inference in his favor, contrary to the governing standard of
review. Medina, 161 F.3d at 872.
A rational juror could find beyond a reasonable doubt that Enclade and
Wilson agreed “to violate the narcotics laws.” Vargas-Ocampo, 747 F.3d at
303. We therefore affirm their Count 1 convictions.
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(2)
The jury also convicted Wilson of Count 2, possession with intent to
distribute at least 50 grams of methamphetamine, 40 grams of fentanyl, and
100 grams of heroin. “The essential elements of possession with the intent
to distribute controlled substances in violation of 21 U.S.C. § 841 are 1)
knowledge, 2) possession, and 3) intent to distribute the controlled
substances.” United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001).
Wilson challenges only the sufficiency of the evidence establishing
possession.
“Possession may be actual or constructive and may be proved by
circumstantial evidence.” United States v. De Leon, 170 F.3d 494, 496 (5th
Cir. 1999). The Government proceeded under a constructive-possession
theory. Constructive possession exists where the defendant has dominion or
control over the item itself or over the premises in which the item is found.
Id. But where, as here, the premises are jointly occupied, the Government
must present “‘some evidence supporting at least a plausible inference that
the defendant had knowledge of and access to’ the illegal item.” United States
v. Hinojosa, 349 F.3d 200, 204 (5th Cir. 2003) (quoting United States v.
Mergerson, 4 F.3d 337, 349 (5th Cir. 1993)). Whether constructive possession
exists is a fact-specific inquiry guided by common sense. United States v.
Wright, 24 F.3d 732, 735 (5th Cir. 1994) (citing Mergerson, 4 F.3d at 349).
Wilson does not dispute that he had access to the Encampment Street
house and its contents. Instead, he argues that the Government proved only
joint occupancy, not that he knew of or exercised control over the narcotics
found there. This argument is undermined by the jailhouse call, where
Wilson told Enclade, “Look ray . . . It’s in the cabinet.” Officers
subsequently recovered heroin and methamphetamine from a black backpack
located in a cabinet under the sink. From this evidence, a rational jury could
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infer that Wilson knew of the heroin and methamphetamine stored at the
residence. And while Wilson does not separately identify any evidence
undermining the inference that he knew of the fentanyl recovered from the
house, the fentanyl was found in plain view in a closet at the Encampment
Street residence. So, a jury could reasonably infer knowledge from that fact.
United States v. Meza, 701 F.3d 411, 420–21 (5th Cir. 2012). The evidence
was therefore sufficient to support Wilson’s Count 2 conviction.
(3)
The jury convicted Wilson of Count 3, which charged him with being
a felon in possession of two firearms recovered from the Encampment Street
house: a Palmetto pistol found in a black suitcase in a bedroom and a
Diamondback pistol found behind the door of a spare bathroom. To convict
under 18 U.S.C. § 922(g)(1), the Government was required to prove that
Wilson previously had been convicted of a felony, knowingly possessed a
firearm, and that the firearm traveled in or affected interstate commerce.
United States v. Ferguson, 211 F.3d 878, 885 n.4 (5th Cir. 2000). Wilson
challenges only the sufficiency of the evidence establishing possession.
As with Count 2, the Government proceeded under a constructive-
possession theory. The same principles apply: in a jointly occupied residence,
the Government must present evidence supporting a plausible inference that
the defendant had knowledge of and access to the firearm. De Leon, 170 F.3d
at 496; Hinojosa, 349 F.3d at 204.
The jury heard evidence supporting an inference that Wilson
constructively possessed both firearms. As to the Diamondback pistol, the
jury heard evidence that the firearm was found lying on the bathroom floor
near the open door, unobstructed by any container, furniture, or personal
effects. Nothing in the photograph or the surrounding testimony suggests the
firearm was shielded from view; it rested in open floor space visible to anyone
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standing in the room. A firearm resting openly, with no intervening object
blocking it from view, is a paradigm case of exposure. This court has
repeatedly recognized that a firearm found in plain view in a jointly occupied
residence supports an inference of constructive possession. United States v.
Fields, 72 F.3d 1200, 1212 (5th Cir. 1996); Meza, 701 F.3d at 420–21. A
rational jury therefore could find that Wilson constructively possessed the
firearm.
The evidence was also sufficient as to the Palmetto pistol. The jury
heard evidence that Wilson carried a black suitcase into the Encampment
Street residence and that the Palmetto pistol was later found in a black
suitcase inside the house. From that evidence, a rational juror could infer that
Wilson brought the suitcase containing the firearm into the residence,
establishing knowledge and access to the weapon. What’s more, law
enforcement found the Palmetto in plain view too. Though it was in a
suitcase, that suitcase was found wide open on the floor in a bedroom, empty
but for the pistol laid bare inside it, confirmed by Agent Brens’s testimony
that the Palmetto “was in plain view.” Fields, 72 F.3d at 1212; Meza, 701 F.3d
at 420–21. The evidence was sufficient to support Wilson’s Count 3
conviction.
Next, the jury convicted Enclade of Count 4, which charged him with
being a felon in possession of the same two firearms recovered from the
Encampment Street house and a Ruger pistol recovered from his Camelot
Drive residence. Enclade challenges only the sufficiency of the evidence
establishing constructive possession. As to the Palmetto and Diamondback
pistols, the evidence was sufficient for the same reasons discussed above. The
jury heard that Enclade had access to the Encampment Street residence,
possessed a key to the residence, and regularly entered and exited the house.
Because both firearms were located in plain view, the jury could reasonably
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infer that Enclade had knowledge of and access to them. Fields, 72 F.3d at
1212; Meza, 701 F.3d at 420–21.
The Ruger pistol presents an easier case. Enclade does not dispute
that he exercised control over the Camelot Drive residence. Although his
girlfriend also lived there, the jury heard that Enclade told officers where the
firearm was located: in the master bedroom closet. Officers subsequently
recovered the Ruger from that closet among men’s clothing. This evidence
provided more than a plausible inference that Enclade knew of and had access
to the firearm. Hinojosa, 349 F.3d at 204. The evidence was therefore
sufficient to support Enclade’s Count 4 conviction.
B
Wilson and Enclade challenge the admission of Agent Brens’s
testimony on numerous grounds. Significantly, none of the theories now
advanced was raised in the district court.
1
Review is therefore for plain error,
under which a defendant must show (1) an error, (2) that is clear or obvious,
(3) that affected his substantial rights, and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Puckett v.
United States, 556 U.S. 129, 135 (2009). We address each theory in turn.
(1)
Wilson and Enclade argue that Brens’s testimony interpreting the
word “ray” on the recorded jailhouse call exceeded the bounds of
permissible lay opinion under Rule 701. A lay witness may offer an opinion
only if it is “(a) rationally based on the witness’s perception; (b) helpful to
_____________________
1
Government lead-agent testimony, whether lay or expert, requires close
evidentiary scrutiny because of its impact and because it can implicate Confrontation
Clause concerns as well as multiple Federal Rules of Evidence constraints. E.g., Fed. R.
Evid. 602, 611, 701–04.
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clearly understanding the witness’s testimony or to determining a fact in
issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Fed. R. Evid. 701.
Our analysis is guided by United States v. Haines, 803 F.3d 713 (5th
Cir. 2015), which addressed the admissibility of a DEA agent’s testimony
interpreting wiretapped calls in a heroin conspiracy. Haines organized such
testimony into three categories. The first covers terms carrying a consistent,
specialized meaning within the drug trade generally—testimony admissible
as expert opinion under Rule 702. Id. at 728 (citing United States v. Griffith,
118 F.3d 318, 321–22 (5th Cir. 1997)). The second covers terms whose
meaning derives not from general drug-trade expertise but from the agent’s
first-hand knowledge of the specific investigation—testimony admissible as
lay opinion under Rule 701. Id. at 729 (first citing United States v. Akins, 746
F.3d 590, 599 (5th Cir. 2014); and then citing United States v. Miranda, 248
F.3d 434, 441 (5th Cir. 2001)).
The third category covers testimony interpreting language that the
jury is equally capable of evaluating for itself, such as ordinary English words
and pronouns. Id. at 733. Such testimony is inadmissible under either Rule
701 or Rule 702 because it does not assist the jury in understanding something
beyond its own ability to evaluate; instead, it simply supplies the inference
the jury must itself draw from the evidence. See id. at 734. In Haines, this
category included the agent’s interpretations of words like “what,” “she,”
“that,” and “stuff,” as well as his testimony that “as soon as I can” referred
to heroin distribution. Relying on United States v. Freeman, 730 F.3d 590, 598
(6th Cir. 2013), and United States v. Grinage, 390 F.3d 746, 750 (2d Cir.
2004), Haines explained that a case agent may not simply narrate the meaning
of recorded conversations when the jury is equally capable of drawing the
relevant inference from the evidence before it. Id. Testimony of this kind is
inadmissible regardless of the agent’s experience because the issue is not the
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witness’s qualifications, but whether the jury needs assistance in reaching the
conclusion itself. See id. at 733.
Brens’s testimony implicated the same Rule 701(b) helpfulness
concern identified in Haines’s explication of Category 3.
2
Brens did not
explain “ray” based on a broader pattern of usage or some investigative fact
unavailable to the jury. He simply connected the term to the narcotics
recovered from the Encampment Street residence. The jury had all the
evidence necessary to draw or reject that inference itself: it heard the
recording in which Wilson told Enclade to “look ray” and that “it’s in the
cabinet,” and it heard that officers later recovered narcotics from a cabinet
under the sink at the residence. Because the jury was equally capable of
drawing the same inference from the evidence presented at trial, Brens’s
interpretation was not helpful under Rule 701(b).
The Government’s principal authorities do not support a different
conclusion. In United States v. Churchwell, 807 F.3d 107 (5th Cir. 2015), this
court rejected the argument that a witness’s opinion was unhelpful merely
because the jury might reach the same conclusion. Id. at 119. But the witness
there supplied something the jury did not otherwise have: his own prior,
private interactions with the defendant, including the defendant’s shifting
admissions. Id. Similarly, in United States v. El-Mezain, 664 F.3d 467 (5th Cir.
2011), an FBI agent testified that a codefendant’s recorded reference to
someone being “sick” referred to Hamas leader Khalid Mishal, based on the
agent’s knowledge, drawn from the investigation, that Mishal had recently
_____________________
2
Because Brens’s “ray” testimony failed Rule 701(b), we do not reach the
defendants’ arguments that the testimony also lacked the personal knowledge required by
Rule 701(a). Moreover, the defendants do not mount a Rule 701(c) challenge, seemingly
because “ray” is not a term with a consistent, specialized meaning in the drug trade that
would require expert testimony.
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survived an assassination attempt and that the codefendant had telephoned
Mishal’s father shortly after the call. Id. at 514 & n.13. In both cases, the
witness’s testimony was helpful under Rule 701(b) precisely because it gave
the jury access to a fact—developed independently through the
investigation—that the jury had no other way of obtaining.
Testimony can also be helpful on a different footing; namely,
sustained exposure to how a term was used across an investigation, rather
than any single undisclosed fact, can give an agent’s synthesis genuine value
to the jury even where the jury hears the same underlying recordings. See
Akins, 746 F.3d at 599–600; Miranda, 248 F.3d at 441. There, the assistance
the testimony provides is not a fact the jury lacks but a pattern the jury,
reviewing the same calls cold and in isolation, is not well positioned to
reconstruct on its own.
Brens’s testimony offered neither form of assistance. He identified no
discrete fact, of the kind in Churchwell and El-Mezain, that the jury lacked;
nor did he testify to any consistent usage of “ray” across other calls he had
personally observed, in the manner of Akins and Miranda. His understanding
arose from a single call, interpreted after the fact by connecting it to a search
result the jury had already heard about. His testimony was therefore
unhelpful under Rule 701(b)—it simply narrated an inference the jury was
equally positioned to draw for itself—and it is what Haines forbids, resulting
in error.
That conclusion does not end the inquiry, however, because Wilson
and Enclade must also show that the error affected their substantial rights—
that is, a reasonable probability that, but for the error, the outcome of the
proceeding would have been different. Id. They have not made that showing
here. Brens’s interpretation was only one piece of a substantial body of
evidence supporting the convictions, including surveillance footage of
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repeated hand-to-hand transactions, the defendants’ shared access to and
use of the stash house, and the distribution paraphernalia and narcotics
recovered during the search itself. Additionally, in closing argument, and
arguably consistent with the failure to object earlier, defense counsel
powerfully urged the jury to acquit in large part by highlighting that Brens
was not “super natural” in his observations and comparisons. Given the
strength of the independent evidence and the obviousness of the “ray”
inference apart from Brens’s gloss, Wilson and Enclade have not shown a
reasonable probability that the erroneous admission of this testimony
affected the outcome of trial. The error therefore does not warrant relief
under plain-error review.
(2)
Wilson separately argues that various of Brens’s opinions were
improperly based on “the investigation as a whole” rather than his own
perceptions, in violation of Rule 701(a), and that this same defect raises a
Confrontation Clause problem.
Wilson relies on United States v. Garcia, 413 F.3d 201, 212 (2d Cir.
2005), where the Second Circuit found Rule 701(a) error because the
testifying agent’s opinions drew on “the total information developed by all
the officials who participated in the investigation” rather than his own
perceptions. The court emphasized the agent’s repeated references to “our
investigation” and what “we” learned, distinguishing testimony from an
agent who personally participated in the events described. Id. “Precisely
because Rule 701 limits the admissibility of lay opinions at trial to those based
only on personal perceptions, an opinion . . . which appears to have been
based on the totality of information gathered by various persons in the course
of an investigation[] [i]s not admissible before a jury.” Id. at 213.
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Garcia does not resemble this case. Much of the testimony Wilson
identifies was not opinion testimony at all. Brens’s description of the
investigative methods employed—such as aerial surveillance, GPS tracking,
toll records, traffic stops, and pole cameras—was simply a factual account of
the investigation. The same is true of his testimony that the lease on the
Encampment Street residence automatically renewed at the end of its twelve-
month term. And Wilson’s reliance on statements made during the
Government’s closing argument is misplaced because closing argument is
not evidence, much less testimony from Brens.
The remainder of the challenged testimony reflected Brens’s own
observations and conclusions. He repeatedly explained that his opinions
rested on “my observations,” “my investigation,” and “my experience,”
while identifying the surveillance, investigative steps, and conduct that he
personally observed. Although Brens’s testimony occasionally used “we”
when describing this surveillance, his testimony throughout established that
“physical surveillance” meant conduct he personally undertook or
monitored—“being in my vehicle, on foot,” and pole-camera footage he
personally watched and adjusted from the DEA office—not an opinion that,
like the agent’s in Garcia, drew on the total information developed by the
investigative team without any limitation to what Brens personally perceived.
Likewise, his testimony identifying recurring vehicles and customers at the
Hollygrove residence was based on registration checks, traffic stops, and
other investigative steps that he personally conducted.
Taken together, the challenged testimony reflects Brens’s own
perceptions rather than the collective knowledge of the investigative team.
Wilson therefore cannot show that this case resembles Garcia. For the same
reason, his related Confrontation Clause argument fails. Because Brens did
not convey out-of-court statements or conclusions reached by other officers
under the guise of lay opinion, his testimony did not implicate the
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Confrontation Clause. United States v. Hamann, 33 F.4th 759, 767 (5th Cir.
2022).
(3)
Wilson and Enclade next argue that portions of Brens’s testimony
were expert testimony governed by Rule 702 masquerading as Rule 701 lay
opinion. The challenged testimony shares a common structure: the
Government asked Brens, “in your experience,” to explain the significance
of items, conduct, or patterns encountered during the investigation, and
Brens answered by drawing on his experience investigating drug trafficking
generally. The instances include testimony that the defendants’ frequent
switching of vehicles and phones was, in his experience, indicative of efforts
to thwart law-enforcement surveillance; that it is common, in his experience,
for drug dealers to carry firearms to protect their supply; that a vacuum
sealer, sealed-bag remnants, and a blender found at the Encampment Street
residence were, in his experience, indicative of drug packaging; that a razor
blade is used, in his experience, to cut narcotics into distributable amounts
and that brown sugar is used to spread narcotics further; that food coloring is
used, in his experience, to change the color of narcotics for sale; that drug
dealers, in his experience, sometimes keep guns near their drugs for
protection; that a digital scale, scissors, a pan, gloves, sandwich bags, and a
kilo press are, in his experience, used to prepare drugs for distribution; that
the quantities of methamphetamine, fentanyl, and heroin recovered were, in
his experience, consistent with quantities intended for distribution; that the
conduct depicted in one pole-camera clip was, in his experience, consistent
with a hand-to-hand transaction because purchasers “enter the vehicle for a
very short period of time . . . to grab the narcotics and exchange the
currency;” and that a second clip depicted a hand-to-hand transaction based
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20
on, in his experience, “the amount of time that was spent there and the
furtive movements.”
Wilson and Enclade, who made no objection at trial, have not shown
that the district court plainly erred by admitting this testimony as lay opinion.
Our court has recognized that “[t]he ‘distinction between lay and expert
witness testimony is that lay testimony results from a process of reasoning
familiar in everyday life, while expert testimony results from a process of
reasoning which can be mastered only by specialists in the field.’” United
States v. Jackson, 549 F.3d 963, 975 (5th Cir. 2008) (quoting United States v.
Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008)). Testimony does not become
expert testimony merely because it reflects an officer’s experience; it “must
involve more than ‘common sense or the officer’s past experience formed
from firsthand observation.’” Id. (quoting Yanez Sosa, 513 F.3d at 200); see
also United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995) (similar). In
Jackson, the challenged witness testified from his own firsthand experience
“investigat[ing] various assaults and fights with knives and fights with fists,”
from which he had come to recognize a recurring pattern—shirts removed
before fistfights, clothing padded before knife fights—and applied that
pattern to explain the conduct he observed. 549 F.3d at 975. This court held
that “any error in admitting his statements as lay rather than expert
testimony was not plain.” Id.
Brens’s testimony has the same structure. He did not testify from
training manuals or scientific literature on narcotics trafficking; he testified,
as a DEA task force agent since 2017, from his own firsthand experience
investigating narcotics conspiracies, through which he had come to recognize
recurring patterns and applied them to explain the conduct and objects
encountered in this investigation. As in Jackson, this is “past experience
formed from firsthand observation,” id. (quoting Yanez Sosa, 513 F.3d at
200), as opposed to the kind of scientific, technical, or specialized knowledge
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21
that must be presented through a qualified expert. Wilson and Enclade cite
no authority clearly establishing the contrary. Accordingly, they have not
shown plain error.
(4)
Wilson and Enclade further argue that Brens improperly identified
people and objects depicted in the pole-camera footage—including Wilson
and Enclade themselves, a backpack and suitcase later recovered during the
search, and a firearm allegedly matching one recovered from the Hollygrove
residence—because the jury was equally capable of making those
identifications for itself. See Fed. R. Evid. 701(b).
A lay witness may identify a person or object depicted in surveillance
footage if the opinion is rationally based on the witness’s own perception and
helpful to the jury. United States v. Masha, 990 F.3d 436, 445 (5th Cir. 2021).
“Lay opinion testimony is admissible if it requires no great leap of logic and
draws straightforward conclusions from observations informed by the
witness’s own experience.” Id. (citation modified).
Brens’s identification of Wilson and Enclade satisfies those standards.
He testified that, over the course of his two-month investigation, he became
familiar with both defendants through physical surveillance, pole-camera
surveillance, photographs, and interviews. That familiarity was developed
through the investigation itself, not from viewing the challenged footage in
isolation, and therefore resembles the identification testimony approved in
United States v. Wilson, 143 F.4th 647, 663 (5th Cir. 2025), where the
witness’s familiarity likewise arose during the investigation. Moreover,
portions of the surveillance footage obscured the subjects’ features, making
Brens’s independent familiarity more useful to the jury. Id. “There is nothing
unusual about admitting lay opinion testimony during which the witness
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22
identifies someone in a photograph or video.” Id. at 662. The district court
did not plainly err by admitting Brens’s identification of the defendants.
The challenged object identifications stand on similar footing. Brens
testified that the backpack and suitcase he identified were items he personally
recovered and examined during the search of the Encampment Street
residence. His testimony was grounded in his firsthand recovery and
examination of the backpack and suitcase, together with his observations
during the investigation, rather than solely in comparing the surveillance
footage with the recovered items. That independent basis gave the jury
something beyond its own side-by-side comparison of the images, which
appears to satisfy Rule 701(b)’s helpfulness requirement. Defendants cite no
authority clearly establishing the contrary. Instead, the closest authority they
rely upon is from the Seventh Circuit and involved officers whose
identification rested only on comparing photographs already before the jury,
without independent familiarity. United States v. Earls, 704 F.3d 466, 472–73
(7th Cir. 2012) (“Rule 701 does not extend so far as to allow a witness to serve
as the thirteenth juror and compare two pieces of evidence that are already
available to the jury.”). Whatever the precise limits of lay identification
testimony regarding physical objects, Wilson and Enclade have not shown
that the district court plainly erred in admitting Brens’s testimony
concerning the backpack and suitcase.
The firearm identification presents a closer question.
3
Unlike the
backpack and suitcase, Brens did not personally recover the uncharged Smith
_____________________
3
During oral argument, Wilson’s counsel suggested that trial counsel’s one-word
“speculation” objection preserved the challenge to Brens’s firearm identification. That
objection, however, sounds in Rule 701(a)—whether the opinion was rationally based on
the witness’s own perception—not the theory Wilson actually presses on appeal: that the
identification was unhelpful under Rule 701(b) because the jury could compare the
surveillance footage and the recovered firearm for itself. “Evidentiary errors must be
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No. 24-30684
23
& Wesson handgun later seized from the Hollygrove residence. Nor did he
identify any distinctive feature connecting the firearm depicted in the
surveillance footage to the recovered weapon, instead testifying only that it
“appear[ed] to be the same gun.” The Government likewise acknowledged
at trial that it could not “definitively say it’s the same gun.” Absent some
independent basis for the comparison, Brens’s testimony risked doing no
more than inviting the jury to adopt his own assessment of two exhibits it was
equally free to examine itself—the “thirteenth juror” concern Earls
identified. 704 F.3d at 472–73. We need not decide whether admitting this
testimony was error, however, because Wilson has not shown that any such
error affected his substantial rights. He offers no developed explanation of
how identifying the particular firearm itself—as distinct from generally
identifying Wilson as the individual holding a firearm outside of the
Hollygrove address—could reasonably have affected the verdict. Puckett, 556
U.S. at 135.
(5)
Finally, Wilson argues that Brens impermissibly bolstered his own
testimony by referencing evidence unavailable to the jury, expressing a
_____________________
preserved by stating the specific ground of objection.” Wilson, 143 F.4th at 662 (citing
Fed. R. Evid. 103(a)(1)(B)). “Because the primary purpose of Fed. R. Evid. 103(a)(1)
is to assist the judge in avoiding error and correctly ruling on evidentiary objections, the
corollary is that to preserve the objection, the ‘specific ground’ for the stated objection
must be the correct one.” Id. (quoting United States v. Seale, 600 F.3d 473, 486 (5th Cir.
2010)). A bare “speculation” objection did not alert the district court to the distinct
unhelpfulness theory Wilson now presses, so that theory remains subject to plain-error
review. And to the extent the “speculation” objection preserved a personal-knowledge
challenge under Rule 701(a), Wilson has not adequately briefed that theory on appeal, and
it is therefore forfeited. Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397 (5th Cir. 2021).
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personal view of the defendants’ guilt, and invoking a prior judicial finding of
probable cause.
Wilson first argues that Brens improperly suggested he possessed
undisclosed knowledge by testifying that the footage shown to the jury was
representative of conduct he observed “pretty much daily.” Wilson
characterizes this as an invitation for the jury to trust Brens’s undisclosed
knowledge rather than its own assessment of the evidence. The testimony
does not support that gloss. Brens stated only that the admitted footage was
representative of his broader observations during the investigation, without
suggesting that the jury should rely on undisclosed evidence or defer to his
conclusions in place of its own.
Wilson next points to Brens’s testimony explaining why he did not
seek fingerprint or DNA evidence—that he “had [his] two suspects,” that
he “clearly believed” the “suspects” to be “the targets of the investigation,”
and that he “felt confident” he had “the right individuals.” We disagree that
this testimony amounted to an improper expression of Brens’s belief that
Wilson was guilty. Brens used the investigative designation “suspects,” not
a statement of guilt, and he never told the jury that Wilson committed the
charged offenses. Instead, he explained the investigative reasoning behind his
decision not to pursue additional forensic testing based on his observations
during the investigation.
Finally, Wilson points to Brens’s testimony that a district judge had
reviewed his affidavit and authorized the search warrants. Brens did not
testify that the issuing judge believed Wilson guilty or that the warrants
established any fact the jury was required to accept; he explained only the
process by which law enforcement obtained judicial authorization to conduct
the searches. Wilson identifies no authority holding that such background
testimony is improper.
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We find no plain error in any of the bolstering theories Wilson raises.
C
Wilson argues that his due process rights were violated when the
AUSA made improper remarks during rebuttal closing argument by (1)
characterizing an object depicted in a photograph as a search-team vest rather
than a backpack, (2) referring to additional drug transactions and known drug
customers not presented at trial, and (3) suggesting that law enforcement had
already determined his guilt before trial.
“We apply a two-step analysis to claims of prosecutorial misconduct:
First, we assess whether the prosecutor made an improper remark. If so, we
determine whether the defendant was prejudiced . . . .” United States v.
Rodriguez-Lopez, 756 F.3d 422, 433 (5th Cir. 2014). “[A] prosecutor is
confined in closing argument to discussing properly admitted evidence and
any reasonable inferences or conclusions that can be drawn from that
evidence.” United States v. Ceballos, 789 F.3d 607, 624 (5th Cir. 2015)
(quoting United States v. Reagan, 725 F.3d 471, 492 (5th Cir. 2013)). Although
“[t]he line separating acceptable from improper advocacy is not easily
drawn,” United States v. Young, 470 U.S. 1, 7 (1985), a prosecutor may not
express a personal opinion on the merits of a case or the credibility of a
witness except insofar as that opinion is based on the evidence, United States
v. Alaniz, 726 F.3d 586, 616 (5th Cir. 2013). Nor may a prosecutor argue facts
not in evidence or bolster a law-enforcement witness’s credibility through
personal assurances. United States v. Delgado, 672 F.3d 320, 336 (5th Cir.
2012) (en banc); Rodriguez-Lopez, 756 F.3d at 433–34.
Wilson first argues that the AUSA improperly relied on facts outside
the record when discussing Government Exhibit 8, a photograph taken by law
enforcement of an interior room in the Encampment house. We disagree.
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Agent Brens testified that law enforcement recovered a black
backpack containing drugs from a cabinet under the sink at the Encampment
house and that Enclade had been captured on pole-camera footage carrying
what Brens believed to be the same backpack into the residence. During
closing argument, Enclade’s counsel argued that Government Exhibit 8
depicted a backpack, undermining Brens’s identification of the item carried
by Enclade as the same item later recovered by law enforcement. In rebuttal,
the AUSA responded: “That is a vest from the search team that was there
that morning. That is not a backpack.” After defense counsel objected that
the statement relied on facts not in evidence, the district court sustained the
objection. The AUSA then clarified: “If you zoom in, it appears to be a vest
from a search team, not a backpack.” Because Wilson objected only to the
first statement, review of that statement is for abuse of discretion and review
of the second is for plain error. Alaniz, 726 F.3d at 615; Puckett, 556 U.S. at
135.
Wilson’s challenge fails because the AUSA’s remarks were based on
reasonable inferences from admitted evidence. United States v. Morris, 568
F.2d 396, 401 (5th Cir. 1978) (holding that role of the attorney in closing
argument is “to assist the jury in analyzing, evaluating and applying the
evidence. . . . The assistance permitted includes counsel’s right to state his
contention as to the conclusions that the jury should draw from the
evidence.”). The jury saw the photograph itself, heard testimony that law
enforcement executed a tactical search of the Encampment house and took
the photograph during that search, and heard Brens identify an item in the
photograph as an “evidence box for DEA.” From that evidence, the AUSA
could argue that the object depicted in the photograph appeared to be a vest
associated with the search team rather than a backpack. Indeed, no witness
testified that the object was either a vest or a backpack; the parties instead
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offered competing interpretations of the admitted photograph. The district
court neither abused its discretion nor plainly erred.
Wilson next argues that the AUSA improperly referred to facts
outside the record when she stated that there had been “several transactions
by known drug customers, not Uber Eats drivers, but people whose license
plates were checked and were known to law enforcement as drug
customers,” and that the transactions shown to the jury “were only a few”
because Brens had testified there were “several more.” Because Wilson did
not object, review is for plain error. Puckett, 556 U.S. at 135.
This argument mischaracterizes the record. The jury heard testimony
that the individuals depicted in the surveillance footage were known drug
customers and that Wilson carried a firearm while interacting with them.
Brens also testified that these exchanges occurred “pretty much daily” and
“multiple times a day,” throughout both daylight and nighttime hours. He
further explained that the clips presented at trial were examples of the
conduct captured by surveillance. Although the AUSA misstated “license
check” rather than “registration checks,” Wilson does not contend that this
minor misstatement rendered the argument improper. The AUSA therefore
did not introduce new evidence.
Finally, Wilson challenges the AUSA’s statement that “[t]his was
never really a case of who done it” because “[l]aw enforcement knew who
done it” when they executed the search warrants:
Part of the argument is that the government didn’t fingerprint
and DNA swab the evidence in this case. Why not? This was
never really a case of who done it. Law enforcement knew who
done it on October 12th, 2022, when they went to execute
those search warrants. The video footage and the other
evidence was overwhelming. It supported probable cause to get
the search warrants. It wasn’t a question of who did it. It was
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Mr. Enclade and Mr. Wilson in and out of that stash house. It
was Mr. Wilson and Mr. Enclade conducting drug transactions
on Hollygrove Drive conspiring together. On October 12th, the
only question was how many drugs were they dealing?
Wilson did not object to these remarks, so review is for plain error.
Puckett, 556 U.S. at 135. The remarks were plainly improper. A prosecutor
may not suggest that the Government’s pretrial investigation or charging
decision establishes a defendant’s guilt. Such arguments risk undermining
the presumption of innocence by inviting jurors to defer to an institutional
determination of guilt rather than independently evaluate the evidence
presented at trial. See United States v. Garza, 608 F.2d 659, 664–65 (5th Cir.
1979) (condemning argument that “if I ever thought that I had framed an
innocent man and sent him to the penitentiary, I would quit” as the
“argument presumed that the whole government apparatus, and the
prosecutor individually, had reached a determination of the defendant’s guilt
before the trial”); Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969)
(condemning argument that “we try to prosecute only the guilty” as taking
“guilt as a predetermined fact” and leading the jury to believe the “whole
governmental establishment had already determined appellant to be guilty on
evidence not before them”); United States v. Lamerson, 457 F.2d 371, 372 (5th
Cir. 1972) (condemning argument that “had [the defendant] not committed
a crime, we would not be prosecuting him”).
The AUSA’s statement that “law enforcement knew who done it”
falls within the concern identified in Garza, Hall, and Lamerson. It suggested
that law enforcement had already resolved Wilson’s guilt before trial and
implicitly invited the jury to defer to that conclusion rather than consider the
lack of forensic evidence. The reference to probable cause for the search
warrants reinforced that suggestion by implying that the pretrial judicial
authorization of the searches confirmed Wilson’s guilt. The remarks
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therefore constituted error, and because they were contrary to this court’s
precedent, the error was plain. Puckett, 556 U.S. at 135.
The Government attempts to sanitize the AUSA’s improper remarks
by invoking the invited response doctrine and United States v. Dorr, 636 F.2d
117, 120 (5th Cir. Unit A Feb. 1981), which permits bolstering arguments in
rebuttal made “to remove any stigma cast upon him or his witnesses.” Dorr
did not explain what “stigma” means, but its own citation tells the story. The
case Dorr itself relied on, United States v. Cotton, 631 F.2d 63, 66 (5th Cir.
1980), involved a prosecutor who argued in rebuttal that its Secret Service
witnesses were not the type of men to risk their careers by lying, bolstering
their credibility—a direct response to defense counsel’s baseless argument
that those same agents were liars motivated by a desire to convict. Thus, the
court in Cotton found that the prosecutor’s comments were not “prejudicial
error.” Id. This is the invited response doctrine in action. Young, 470 U.S. at
11 (describing “an all too common occurrence in criminal trials—the defense
counsel argues improperly, provoking the prosecutor to respond in kind, and
the trial judge takes no corrective action”).
Here, and as a threshold matter, the invited response doctrine has no
purchase because it is only relevant to step two of the analysis—prejudice—
not whether the prosecutor’s comment was improper, Young, 470 U.S. at 11–
13; Cotton, 631 F.2d at 66. And, in any event, defense counsel made no
improper closing argument. Instead, counsel identified a gap in the
investigation (a lack of forensic evidence), which is plainly permissible
closing argument. Neither Dorr, Cotton, nor Young means that whenever
defense counsel identifies weaknesses in the Government’s case, prosecutors
may respond with Garza-type remarks.
“Our finding that the prosecutor’s comments were improper does not
end our inquiry.” Garza, 608 F.2d at 665. That is because Wilson cannot
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succeed at the second step of the analysis: prejudice. A defendant seeking
reversal based on improper prosecutorial remarks bears a substantial burden
and must show that the “remarks cast serious doubt on the correctness of the
jury’s verdict.” United States v. Beaulieu, 973 F.3d 354, 361 (5th Cir. 2020)
(quoting United States v. Mendoza, 522 F.3d 482, 492 (5th Cir. 2008)). In
evaluating prejudice, this court considers “(1) the magnitude of the
prejudicial effect of the statements, (2) the efficacy of any cautionary
instructions, and (3) the strength of the evidence of defendant’s guilt.” Id.
(quoting Mendoza, 522 F.3d at 492).
Those factors weigh against reversal. First, the improper remarks
were isolated statements in a relatively lengthy rebuttal argument. The
AUSA did not repeat or emphasize them, and the remainder of her argument
focused on evidence admitted at trial. Second, the district court instructed
the jury that arguments by counsel were not evidence and that the defendants
were presumed innocent, bore no burden to prove their innocence, and could
be convicted only if the Government proved guilt beyond a reasonable doubt.
We presume juries follow such instructions unless there is an “overwhelming
probability” that they cannot do so and a “strong probability” that the
statement’s effect is “devastating.” United States v. Tomblin, 46 F.3d 1369,
1390 (5th Cir. 1995) (quoting United States v. Barksdale-Contreras, 972 F.2d
111, 116 (5th Cir. 1992)). Nothing in this record approaches that threshold.
Third, the evidence supporting Wilson’s convictions was substantial,
including extensive pole-camera surveillance, the jailhouse call directing
Wilson to the stash house, the shared access to the stash house, and the
firearms recovered there.
Accordingly, although the AUSA’s “law enforcement knew who done
it” remark was improper, Wilson has not shown prejudice sufficient to
warrant reversal.
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D
Wilson contends that the district court violated Rule 404(b) by
permitting the Government to introduce pole-camera footage and
accompanying testimony from Agent Brens depicting Wilson in possession
of uncharged firearms on August 25 and August 26, 2022, outside the
Hollygrove residence. Rule 404(b) is designed to “guard against the inherent
danger that the admission of ‘other acts’ evidence might lead a jury to convict
a defendant not of the charged offense, but instead of an extrinsic offense.”
United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007). Wilson preserved
this challenge by filing a motion in limine that the district court definitively
denied. Fed. R. Evid. 103(b). Accordingly, “[w]e apply an abuse-of-
discretion standard.” United States v. Kinchen, 729 F.3d 466, 470 (5th Cir.
2013). “A trial court abuses its discretion when its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of the evidence.”
Id. at 470–71 (quoting Yanez Sosa, 513 F.3d at 200).
As to the August 25 footage, Agent Brens testified that surveillance
video depicted an individual engaging in what Brens believed, based on his
experience, to be a hand-to-hand drug transaction with a vehicle in which
Wilson was present. Approximately fifteen minutes later, Wilson exited that
same vehicle carrying a firearm and entered the Hollygrove Street residence
associated with the conspiracy. Because Wilson remained in the vehicle
throughout the transaction before immediately exiting it with a firearm, the
jury could reasonably infer that he was armed during the transaction itself.
As for the August 26 footage, Brens testified that surveillance video showed
Wilson retrieve an item from a vehicle that had arrived at the Hollygrove
residence, which Brens believed to be either narcotics or currency, and return
to the porch. Moments later, Wilson was observed carrying a firearm in a
single, uninterrupted sequence from which the jury could likewise infer that
he remained armed throughout.
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The district court properly admitted this evidence. Viewed in the light
most favorable to the verdict, the surveillance footage depicted Wilson
engaging in drug-trafficking activity during the charged conspiracy period
while contemporaneously possessing firearms. His firearm possession was
therefore intrinsic to Count 1 because firearms are the “tools of the trade”
for drug traffickers. See, e.g., United States v. Goff, 847 F.2d 149, 175 (5th Cir.
1988) (“Possession of weapons is highly probative as to an accused drug
trafficker’s criminal intent as ‘tools of the trade.’” (quoting United States v.
Martinez, 808 F.2d 1050, 1057 (5th Cir.), cert. denied, 481 U.S. 1032 (1987))).
Because “Rule 404(b) is only implicated when the offered evidence is
extrinsic,” and “evidence intrinsic to the charged offense does not implicate
the rule,” Wilson’s Rule 404(b) challenge fails. United States v. Crawley, 533
F.3d 349, 353–54 (5th Cir. 2008) (citing United States v. Powers, 168 F.3d 741,
749 (5th Cir. 1999)).
E
Enclade and Wilson argue that the district court erred by declining to
“directly answer” the jury’s question during deliberation. The jury asked:
“Does living in a house with a firearm as a convicted felon constitute
possession?” After conferring with counsel, the district court proposed re-
reading the possession instruction, clarifying that it applied to firearms, and
reminding the jury that Enclade’s prior felony conviction could not be used
as evidence that he committed the charged offense. Enclade’s counsel agreed
that the proposal was “an appropriate answer” and stated that he had “no
objection.” Wilson’s counsel likewise responded, “Sounds good to me.”
The district court then recalled the jury and re-read the possession
instruction, tracking the Fifth Circuit’s Pattern Jury Instructions.
Any challenge to the district court’s supplemental instruction was
waived. United States v. Rico, 864 F.3d 381, 383 (5th Cir. 2017) (“Where a
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defendant has intentionally relinquished or abandoned a known right, the
issue is waived.” (citing United States v. Olano, 507 U.S. 725, 733 (1993))).
Counsel for both defendants expressly agreed to the district court’s proposed
response. That affirmative assent waived any objection. United States v.
Musquiz, 45 F.3d 927, 931 (5th Cir. 1995) (“Waived errors are entirely
unreviewable, unlike forfeited errors, which are reviewable for plain error.”).
F
Enclade next argues that the trial court abused its discretion by
denying his motion for a continuance. On the morning of trial, with the venire
assembled, Enclade moved for substitute counsel and a continuance. He
complained that counsel had not provided him discovery, doubted his
chances of success at trial, and generally had not communicated with him.
The district court then conducted an extensive colloquy with Enclade and his
counsel concerning their attorney-client relationship. It ultimately denied the
motion, explaining that the request came on the morning of trial after the case
had been pending for approximately eighteen months, trial had already been
continued several times, and the current trial date had been set months
earlier. The court further found that counsel had sufficient time to prepare,
was prepared to provide competent representation notwithstanding his
disagreement with Enclade’s decision to proceed to trial, and that this was a
relatively straightforward drug-and-firearms conspiracy prosecution.
We review the denial of a motion for continuance for abuse of
discretion. United States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999). Because
the district court enjoys broad discretion in ruling on continuance motions,
reversal is warranted only if the defendant demonstrates that “the denial
resulted in ‘specific and compelling’ or ‘serious prejudice.’” Id. (quoting
United States v. Krout, 66 F.3d 1420, 1436 (5th Cir. 1995)).
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Enclade has not made that showing. Without citing the record, he
asserts that he never reviewed “numerous videos” and “[n]umerous key
facts that he could have provided in defense of his claims were not developed,
such as his familial relationship with his co-defendant, the actual meaning of
‘Ray’, and what surveillance videos actually depicted.” But he neither
identifies which videos he allegedly failed to review nor explains how
reviewing them would have altered his defense. Likewise, he does not explain
how the purportedly undeveloped facts would have affected the outcome of
trial or cite any record evidence supporting his allegations. His assertions of
prejudice are therefore unsupported and speculative and fall well short of the
“specific and compelling” prejudice required under Barnett, 197 F.3d at 144.
See also United States v. Watson, 790 F. App’x 651, 651 (5th Cir. 2020) (per
curiam) (applying Barnett and rejecting continuance challenge where
defendant’s “assertion of prejudice is unsupported and speculative” and he
did “not explain how the denial of a continuance prejudiced him or affected
his counsel’s performance at trial”).
G
Wilson contends that “because the cumulative effect of the errors in
this case prevented Mr. Wilson from receiving a fair trial, he is entitled to a
new trial regardless of whether each independent error would mandate relief
on its own.” Under the cumulative error doctrine, “an aggregation of non-
reversible errors (i.e., plain errors failing to necessitate reversal and harmless
errors) can yield a denial of the constitutional right to a fair trial, which calls
for reversal.” Delgado, 672 F.3d at 343–44. But reversal is warranted only
when errors “so fatally infect the trial that they violated the trial’s
fundamental fairness.” Id. “We have repeatedly emphasized that the
cumulative error doctrine necessitates reversal only in rare instances and
have previously stated en banc that ‘the possibility of cumulative error is
often acknowledged but practically never found persuasive.’” Id. (quoting
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Derden v. McNeel, 978 F.2d 1453, 1456 (5th Cir. 1992) (en banc)). “Its
application is especially uncommon where, as here, the government presents
substantial evidence of guilt.” Id.
Wilson has not shown cumulative error warranting reversal. The
nonreversible errors—the admission of Agent Brens’s testimony identifying
“ray” as drugs, the assumed error in admitting Brens’s identification of the
Smith & Wesson 9mm semi-automatic handgun recovered from the
Hollygrove residence as the firearm Wilson possessed on August 26, and the
prosecutor’s “law enforcement knew who done it” remarks during rebuttal
closing—did not render the trial fundamentally unfair. The evidence of
Wilson’s guilt was substantial, the improper remarks were isolated, and the
district court instructed the jury that counsel’s arguments were not evidence
while reminding it of the presumption of innocence. On this record, the
cumulative effect of the errors does not warrant reversal.
H
Enclade challenges both the procedural and substantive
reasonableness of his below-Guidelines sentence of 288 months’
imprisonment. We find no error.
Enclade first contends that the district court erroneously designated
him a career offender. Our review is de novo. Akins, 746 F.3d at 611. Under
U.S.S.G. § 4B1.1(a), a defendant qualifies as a career offender if he (1) was
at least eighteen years old when he committed the instant offense, (2) was
convicted of a felony that is either a crime of violence or a controlled
substance offense, and (3) has at least two prior felony convictions for crimes
of violence or controlled substance offenses.
Enclade disputes only the third requirement. The district court found
it satisfied because Enclade had two prior Louisiana felony convictions
involving heroin: possession with intent to distribute heroin and distribution
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of heroin. Rather than challenge those convictions, Enclade relies on a
proposed amendment to U.S.S.G. § 4B1.2 that was never adopted. Because
“[t]he guidelines in effect at the time of sentencing are the appropriate
source for determining a sentence,” United States v. Gonzales, 988 F.2d 16,
18 (5th Cir.), cert. denied, 510 U.S. 858 (1993), the never-enacted amendment
provides no basis to disturb the career offender designation on appeal.
4
See
U.S.S.G. § 4B1.1(a).
Enclade next argues that his 288-month sentence creates an
unwarranted disparity with Wilson’s 240-month sentence because the PSR
described Wilson as Enclade’s supplier and the evidence showed Wilson was
more deeply involved in the conspiracy. We review Enclade’s challenge to
the substantive reasonableness of his sentence under an abuse-of-discretion
standard and consider the totality of the circumstances. Gall v. United States,
552 U.S. 38, 51 (2007). Section 3553(a)(6) concerns “disparities among
defendants with similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a)(6) (emphasis added). Enclade and Wilson did
not have similar records. Enclade qualified as a career offender; Wilson did
not. As the Fourth Circuit has explained, differences in career-offender
status necessarily produce sentencing disparities based on the defendants’
criminal histories, and those disparities are not unwarranted under
_____________________
4
The career-offender designation resulted in an offense level of 37 and a criminal
history category of VI, neither of which Enclade disputes. The district court calculated the
Guidelines’ range accordingly. Although Enclade now challenges the presentence
investigation report’s independent calculations of his offense level and criminal history
category, those challenges do not affect the Guidelines’ range: the undisputed career-
offender designation produced a higher offense level than the PSR’s independent
calculation, and it independently fixed his criminal history category at VI under U.S.S.G.
§ 4B1.1(b)—the maximum category under the Guidelines—regardless of how the point-
based calculation Enclade disputes would otherwise resolve. We therefore decline to reach
his remaining objections to the PSR.
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§ 3553(a)(6). United States v. Fonville, 5 F.3d 781, 784 (4th Cir. 1993); cf.
United States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006) (“Congress
intended that certain disparities be caused by application of the federal
guidelines, and ‘a sentencing disparity intended by Congress is not
unwarranted.’” (quoting United States v. Duhon, 440 F.3d 711, 720 (5th Cir.
2006))).
I
Finally, Wilson argues that his § 922(g)(1) conviction must be
reversed because the statute violates the Second Amendment and the
Commerce Clause, both facially and as applied to him. Because Wilson
preserved his Second Amendment challenge below, review is de novo. United
States v. Copeland, 820 F.3d 809, 811 (5th Cir. 2016). His Commerce Clause
challenge, raised for the first time on appeal, is reviewed only for plain error.
Puckett, 556 U.S. at 135.
Our precedent forecloses each challenge. United States v. Diaz
rejected facial Second Amendment challenges to § 922(g)(1) because it
identified at least one constitutional application of the statute. 116 F.4th 458,
471–72 (5th Cir. 2024), cert. denied, 145 S. Ct. 2822 (2025). Diaz also
reaffirmed that § 922(g)(1) is a facially valid exercise of Congress’s
Commerce Clause authority. Id. at 462 (citing United States v. Alcantar, 733
F.3d 143, 146 (5th Cir. 2013)). Wilson’s as-applied Commerce Clause
challenge likewise fails because he does not dispute that the firearms he
possessed had previously traveled in interstate commerce. United States v.
Rawls, 85 F.3d 240, 243 (5th Cir. 1996) (per curiam) (citing Scarborough v.
United States, 431 U.S. 563, 575 (1977)). And United States v. Kimble
forecloses Wilson’s as-applied Second Amendment challenge because he has
a prior narcotics distribution conviction. 142 F.4th 308, 318 (5th Cir. 2025).
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III.
For the foregoing reasons, we AFFIRM the district court’s
judgment.
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