USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 1 of 28

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-10020 ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSEPH JOHN DEBLASI,

Defendant-Appellant.

____________________ Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 1:21-cr-00011-AW-GRJ-1 ____________________ USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 2 of 28

PER CURIAM: Joseph Deblasi appeals his conviction for possessing meth- amphetamine with the intent to distribute it, arguing that the dis- trict court abused its discretion by denying his motion for a second midtrial continuance so that he could try to secure testimony from a favorable witness. Because the district court did not abuse its dis- cretion, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY On December 29, 2020, an officer with the High Springs Po- lice Department was out on patrol when she saw a Jeep blow right through a stop sign. Cecilla Wyatt was behind the wheel, and Deblasi was riding shotgun. The officer immediately chased after the two and pulled them over. Just as the Jeep was stopping, the officer saw Deblasi’s arm move toward the passenger’s window moments before a baggie with a white substance fell to the ground.

The officer walked up to the driver’s side of the Jeep and asked for the registration. Deblasi, whose father owned the Jeep, used one hand to get the registration from the center console while he used his other hand to hide a gray bag in the console.

Deblasi and Wyatt were arrested at the scene. The baggie Deblasi threw out the passenger window had 66.6 grams of meth- amphetamine in it. The gray bag Deblasi tried to hide had plastic baggies, a scoop spoon with residue, and a scale, and a search of the rest of the Jeep turned up a glass pipe with blue liquid, four cell USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 3 of 28

22-10020 Opinion of the Court 3 phones, and a book bag holding two canisters of Narcan and a ledger. Six of the ledger’s pages recorded what seemed to be drug sales.

The grand jury indicted Deblasi on March 23, 2021, for pos- sessing methamphetamine with the intent to distribute it, in viola- tion of 21 U.S.C. sections 841(a)(1) and (b)(1)(A)(viii). Following four continuances and the withdrawal of two of Deblasi’s attor- neys, his trial was set for six months later.

Shortly after his appointment, Deblasi’s third attorney tried to interview Wyatt, but she refused to talk with him. Since she wouldn’t tell him anything, Deblasi’s counsel decided not to sub- poena Wyatt, thinking she was “better off as a government wit- ness.” The government agreed and subpoenaed Wyatt to testify at trial.

The trial started on October 4, 2021. About five hours into the first day, after jury selection, Deblasi’s counsel told the district court that during the lunch break Deblasi’s sister sent counsel text messages between the sister and Wyatt from the day before. In the text messages, Wyatt confessed to Deblasi’s sister that the “dope” the police found was hers and that Deblasi didn’t know she had it.

According to Wyatt, on the day of the arrest, she told Deblasi— who had just woken up when the two were getting pulled over— to open his door and that she, not Deblasi, threw the baggie out of the Jeep. That was different from the story Wyatt told nine months A medicine used to counter the effect of opioids in the event of an overdose.

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 4 of 28

Deblasi’s sister asked if Wyatt planned to tell the jury that the meth was hers, and Wyatt replied that she wasn’t sure what to do but that she “d[idn’t] wanna go to jail.” Still, Wyatt told the sis- ter, there was “no way [Wyatt] could live with [herself ] if [Deblasi] had to take the punishment” for her. Deblasi’s sister encouraged Wyatt to reach out to Deblasi’s counsel because the trial was set to start the next day. Wyatt responded with a simple, “Okay.”

Because of the text messages, Deblasi’s counsel moved for a midtrial continuance so he could investigate calling Wyatt as a wit- ness. For its part, although the government had subpoenaed Wy- att, it doubted she would show up to trial because she stopped an- swering the government’s calls the week before. Even so, the gov- ernment didn’t object to the continuance.

The district court, while concerned “about wasting [the jury’s] time” and “letting a third party . . . disrupt [the] trial sched- ule” with a midnight hour confession, granted Deblasi’s counsel a continuance. It dismissed the jury for the day, quickly addressed an evidentiary issue with the parties, and let Deblasi’s counsel use the rest of the day to reach out to Wyatt.

The next morning, Deblasi’s counsel explained that he’d spo- ken to Wyatt the day before and that she confirmed what was in USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 5 of 28

22-10020 Opinion of the Court 5 the text messages with Deblasi’s sister. Wyatt told Deblasi’s counsel that she knew she was subpoenaed to testify and that she would show up to trial that day even though her testimony would incrim- inate her. But that was yesterday. By the next morning, Wyatt had “again fallen off the grid.”

Deblasi’s counsel moved for a second midtrial continuance “until such time as [Wyatt’s] appearance could be secured.” This time, the government objected to the continuance, arguing that Wyatt had already been subpoenaed and talked to both Deblasi’s sister and counsel. As the government saw it, if Wyatt ever planned to testify, she would do so that day.

The district court denied counsel’s second midtrial continu- ance motion. While the district court found that Deblasi’s counsel had been diligent in trying to get Wyatt to testify, it also found that Wyatt was not “some surprise, out-of-the-blue witness”; everyone knew about her connection to the case from the start. And even if Deblasi’s counsel could get Wyatt on the stand, the district court found that she was entitled to invoke her Fifth Amendment right against self-incrimination, “in which case . . . she wouldn’t testify.”

In the absence of any “concrete indication” that Wyatt would ap- pear and testify, the district court concluded that a second midtrial continuance would “just giv[e a] third party the authority to inter- fere with th[e] case” and “give[ a third party] a lot of power” to delay the trial with a last-minute confession not offered in court.

As the second day of trial continued, the district court re- peatedly checked in with the parties about Wyatt. The first time USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 6 of 28

After a short recess, the district court asked for another up- date on Wyatt. The government told the district court that the ad- dress it had for Wyatt wasn’t her own—it was her mother’s house, where Wyatt “mostly stay[ed].” When the government served its subpoena three weeks earlier, it did so at a gas station. More re- cently, though, Wyatt had been heard on jail calls saying she was staying with “Little Dilly,” a person the government knew nothing about. The only lead the government had on Little Dilly’s identity was that Wyatt might know a man named “Dillon,” but the gov- ernment didn’t have Dillon’s last name or address. Picking up on the government’s lead, Deblasi’s counsel made a call and narrowed Dillon’s address down to a specific apartment complex, but counsel couldn’t get anything more specific than that. Without a specific address, there wasn’t enough to find Wyatt and get her to testify.

Five more government witnesses testified over the next hour of trial. The district court asked about Wyatt a third time just be- fore it recessed for lunch. Deblasi’s counsel didn’t have much of an update—as he told the court earlier, he only knew the name of someone he thought Wyatt was staying with and the apartment complex where they might be found. The district court asked about counsel’s previous conversations with Wyatt, and Deblasi’s USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 7 of 28

22-10020 Opinion of the Court 7 counsel explained that they’d spoken the day before and that she told him she would be there for the second day of trial. But, just as counsel had told the district court earlier, Wyatt changed course the morning of the second day. When Deblasi’s sister followed up with Wyatt about giving Wyatt a ride to trial, Wyatt didn’t reply.

And when Deblasi’s counsel tried to follow up with Wyatt, he got the same response—nothing.

Deblasi’s trial continued for another four hours before the jury began its deliberations. During that time, the government called two more witnesses, the parties delivered their closing argu- ments, and the district court gave its instructions to the jury. Wyatt never showed.

Following his conviction, Deblasi appeals the denial of his second midtrial continuance motion.

STANDARD OF REVIEW We review a district court’s denial of a continuance for an abuse of discretion. United States v. Khan, 794 F.3d 1288, 1311 (11th Cir. 2015).

DISCUSSION Where a district court denies a continuance so a defendant can obtain testimony from an absent witness, we generally look to four factors to determine whether the denial was an abuse of dis- cretion: (1) the diligence of the defendant in interviewing the wit- ness and procuring her testimony; (2) the probability of obtaining the testimony within a reasonable time; (3) the specificity with USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 8 of 28

1. Deblasi’s Diligence in Interviewing Wyatt and Procuring Her Testi- mony As to the first factor, we have repeatedly held that a defend- ant is not diligent when he fails to subpoena a witness to secure her attendance at trial. See United States v. Holt, 777 F.3d 1234, 1268 (11th Cir. 2015) (“[The defendant] indicated that she had not timely subpoenaed witnesses, showing a lack of diligence.”); Alejandro, 118 F.3d at 1523 (“[D]ue diligence required that a subpoena be is- sued to secure [the witness’s] attendance.”); United States v. Uptain, 531 F.2d 1281, 1285, 1289 (5th Cir. 1976) (“doubt[ing]” that the de- fendant was diligent when he “ha[dn’t] subpoenaed and inter- viewed” the witnesses). That’s what happened here—over the span of six months, four continuances, and three lawyers, Deblasi never subpoenaed Wyatt. And, as the district court found, Wyatt wasn’t “some surprise, out-of-the-blue witness.” She was the only other person in the Jeep when the drugs were found. It was not diligent to wait until the first day of trial to try to subpoena Wyatt to testify.

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 9 of 28

22-10020 Opinion of the Court 9 2. The Probability of Obtaining Wyatt’s Testimony in a Reasonable Time As to the second factor, there is no indication that a witness’s testimony can be obtained in a reasonable time when no party “kn[ows the witness’s] exact whereabouts and attempts made dur- ing trial to locate h[er] were unproductive,” United States v. Costello, 760 F.2d 1123, 1126–27 (11th Cir. 1985), or when the defendant can- not “indicate precisely when [the] witness would be available” to testify, cf. United States v. Moriarty, 497 F.2d 486, 490 (5th Cir. 1974).

That was the case when Deblasi moved for his second midtrial con- tinuance. By the time Deblasi made his second midtrial continu- ance motion, Wyatt had stopped talking to the government and Deblasi, neither party knew her exact whereabouts, Deblasi hadn’t been able to find her, and no one knew when she could be found.

Also, the incriminating nature of Wyatt’s testimony made it unlikely she would show up to court. Cf. United States v. Cawley, 481 F.2d 702, 705 (5th Cir. 1973) (explaining there was “no evi- dence . . . that [the witnesses] would have” incriminated them- selves and “their willingness to testify was completely unascertain- able”). Here, as the district court found, Wyatt could have refused to incriminate herself, and that finding was supported by the rec- ord. Wyatt told Deblasi’s sister that she “d[idn’t] wanna go to jail,” stopped talking to Deblasi, his sister, and the government, and, even though she was subpoenaed, she did not show up to testify.

And there was no indication that Wyatt’s testimony could be obtained in a reasonable time because the district court had already USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 10 of 28

United States v. Bergouignan, 764 F.2d 1503, 1508 (11th Cir. 1985).

The same was true in Deblasi’s trial. The district court gave Deblasi much of the first trial day to find Wyatt, and, by the time he moved for a second midtrial continuance, he still hadn’t located Wyatt or knew whether she would testify.

Deblasi responds that it was “reasonable to assume” Wyatt’s testimony could be secured in a reasonable time because the parties had her phone number, her mother’s address, and the name and apartment complex of someone she might have been staying with.

But Deblasi had the same information during two days of trial, and he still couldn’t find Wyatt or get her to show up to trial. That’s the best evidence that she probably wasn’t going to testify.

3. The Specificity with Which Deblasi Was Able to Describe Wyatt’s Ex- pected Knowledge or Testimony The third factor weighs in a defendant’s favor when he can proffer what the witness would say if called to testify. See Hicks v. Wainwright, 633 F.2d 1146, 1149 (5th Cir. Unit B Jan. 1981) (holding this factor weighed in the defendant’s favor when he proffered the specific testimony the witness would give); Dickerson v. Alabama, 667 F.2d 1364, 1370 (11th Cir. 1982) (holding the defendant offered USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 11 of 28

22-10020 Opinion of the Court 11 “a clear indication” of the witness’s testimony when he proffered that the witness would establish his alibi). Here, Deblasi was clear about what Wyatt would say on the stand. He provided copies of, and told the district court about, the text messages between Wyatt and Deblasi’s sister. Unlike the first two factors, the third favors Deblasi.

4. The Degree to Which Wyatt’s Testimony Was Expected to Be Favora- ble to Deblasi Finally, Wyatt’s expected testimony was not all that favora- ble to Deblasi because her last-minute confession contradicted what she said on jail calls after she was arrested. After Wyatt’s ar- rest, she consistently said that the drugs weren’t hers. And she spe- cifically told one person she called right after her arrest that she had “no idea” about the drugs found near the Jeep. Because Wyatt’s expected testimony would have been heavily impeached with her earlier statements, her testimony would not have moved the ball significantly for Deblasi. Cf. Sullivan v. DeLoach, 459 F.3d 1097, 1110 (11th Cir. 2006) (holding a habeas petitioner did not demonstrate a reasonable probability that he would have been acquitted where his counsel did not call a witness who “lacked credibility” in part be- cause she “changed her story and gave inconsistent versions of what happened”). *** Taken together, the district court did not abuse its discretion in denying Deblasi’s second midtrial continuance motion. Besides specifically describing Wyatt’s expected testimony, Deblasi was not USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 12 of 28

CONCLUSION Because the district court did not abuse its discretion in denying Deblasi’s second midtrial continuance motion—Deblasi’s only basis for challenging his conviction—we affirm.

AFFIRMED.

Deblasi also argues that the district court abused its discretion because, in- stead of considering the four factors, it only considered “the convenience of the . . . jury” when denying his motion. But that argument ignores the district court’s reasons for denying the second midtrial continuance motion. The dis- trict court didn’t consider the convenience of the jury at all; the only time the district court referenced the jury’s convenience—when it said it didn’t want to “wast[e the jury’s] time”—was when it granted Deblasi his first midtrial con- tinuance. The district court considered several factors when denying Deblasi’s second midtrial continuance motion, including that Wyatt wasn’t a surprise witness, could invoke her Fifth Amendment right if called to testify, and gave no indication she would show up to trial.

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 13 of 28

22-10020 LAGOA, J., Concurring 1 LAGOA, Circuit Judge, concurring: I concur with the majority’s conclusion that the district court did not abuse its discretion in denying Deblasi’s motion for a continuance. I write separately, however, to reiterate what I made plain at oral argument: the government, in this case, failed to pri- oritize the pursuit of truth over the pursuit of a guilty verdict.

I.

As the majority explains, this appeal arose from the district court’s denial of a motion for continuance during trial.

Deblasi was indicted for possessing methamphetamine with the intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii). After several continuances, his trial was set for Oc- tober 4, 2021. On October 1, 2021, the government filed its witness list, which included Cecilla Wyatt. Wyatt had been driving the car in which Deblasi, her front-seat passenger, was arrested following a traffic stop. On October 3, 2021, Deblasi filed his own witness list, which included “[a]ny and all witness [sic] disclosed by the Gov- ernment or called during its case in chief, in rebuttal or otherwise.”

After jury selection, but before the jurors were sworn, the district court recessed for lunch. When they reconvened, Deblasi’s lawyer, Wilson, told the court that Deblasi’s sister contacted him during the break. The sister told Wilson that she had received some text messages from Wyatt earlier that day or the night before. Wil- son described the texts to the district court as follows: USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 14 of 28

2 LAGOA, J., Concurring 22-10020 [T]he text messages basically exonerate Mr. Deblasi, and [Wyatt] says that the drugs were hers; he knew nothing about it; he was asleep; they got stopped, and then she threw the drugs out the door when the vehi- cle is stopped and that he had no knowledge of the presence of the drugs in the vehicle.

He also read one of the texts, which said, “You know, I don’t know what to do. I don’t want to go to jail, but I don’t want him to go to prison for something he didn’t do,” and characterized another as saying, “The day that we got arrested, the stuff that they found was mine.” Wilson explained to the district court that he had tried to interview Wyatt during his investigation but “she refused to talk to [him].” Wilson acknowledged that, while these statements “would operate as a complete defense,” Wyatt “could certainly invoke her right to remain silent,” and stated that “if we go forward with trial . . . there could be an injustice done. . . . [W]e have someone who’s actually coming forward . . . and has made statements that com- pletely support what our defense would be, without having the op- portunity to talk with her.” The government, for its part, stated that it “candidly [did not] know exactly what the best course of ac- tion” was. The Assistant United States Attorney, Byron, told the court that the government had subpoenaed Wyatt and had been in some contact with her, but “she essentially stopped returning phone calls.” Based on her “complete radio silence,” Byron kept Wyatt on the witness list on the “outside chance” that she would show up to trial. Byron also confirmed that the government was not aware, prior to these text messages from Deblasi’s sister to USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 15 of 28

22-10020 LAGOA, J., Concurring 3 Wilson, that Wyatt would testify to “anything other than ‘I don’t know what happened.’”

After a brief recess, Wilson told the district court that he “could not agree to go forward with the trial, simply because of the fact that now . . . there’s a witness, who is a government witness,” who he needed to speak to. As for how Wyatt could be tracked down, Wilson admitted that he did not “quite know how to do that yet except . . . she’s under subpoena . . . by the government.” Wil- son reiterated his due diligence in trying to speak to Wyatt, efforts which she had rebuffed. Ultimately, Wilson asked the court for a brief continuance and stressed that “they’re the ones that have her under subpoena, and I don’t know if they’ve tried to contact her and say, ‘what exactly is going on,’ because that may be something that can help the situation forward. . . . They have a lot more am- munition in that part than I would.” The district court clarified that this information had flowed from Wyatt to Deblasi’s sister to Wil- son and had not been discovered by the government.

The district court then turned to the government for its view. Byron confirmed that the government had subpoenaed Wy- att but that she had stopped responding to phone calls and text mes- sages the week before trial. He said that he had “a hard time imag- ining that she is going to come to this courtroom, take the stand and admit to conduct for which she could be indicted,” but also agreed that the text messages “are highly exculpatory if true and if believed.”

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 16 of 28

4 LAGOA, J., Concurring 22-10020 The district court then weighed the practical concerns of jury convenience and other witnesses’ schedules and expressed some hesitation about “letting a third party . . . disrupt our trial schedule . . . by coming in with this ‘Well, I did it’ thing on the eve of or the day of trial.” The court concluded that they would begin trial the following morning instead so that Wilson could have the afternoon to try and locate Wyatt. In doing so, the district court commented that “there’s no sense in waiting indefinitely” if Wyatt was not willing to speak to either side.

The next morning, Wilson advised the district court that he had spoken to Wyatt the prior afternoon. Wilson told the court that Wyatt “acknowledged and confirmed the content of the text messages” and said that “she had sent those text messages because it’s, in fact, the truth.” Wilson also noted that Wyatt confirmed she had received the subpoena but “felt that she was being hounded and pressured by the government and she just didn’t want any part of that, so she basically went off the grid as far as the government is concerned.” Wyatt told Wilson that she would “absolutely” come to court to testify that day, despite the risk of self-incrimina- tion. However, Wilson said that as of that morning, Wyatt had “again fallen off the grid.” Wilson then argued that Wyatt was a material witness and suggested that she be taken into custody and brought in to testify. Wilson suggested two pathways forward.

First, he suggested he might bring the text messages in as state- ments against interest under Rule 804, but he acknowledged that he would need to bring in a witness (Deblasi’s sister) to authenti- cate them. Second, and absent the ability to introduce the text USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 17 of 28

22-10020 LAGOA, J., Concurring 5 messages, Wilson admitted that he did not “feel comfortable going forward” without Wyatt. To that end, Wilson argued that Wyatt was a material witness and “should be taken into custody and brought here . . . . But [he] [did not] know if [he had] the power to do that.” He ultimately requested a continuance until such time as Wyatt’s appearance could be secured.

When the district court asked Byron for the government’s position, he immediately conceded “the seriousness of the im- portance of this to the defense case, if true, and if Ms. Wyatt is ever actually going to appear in court.” Byron expressed concern, how- ever, that Wyatt may have never “intended anything more than to throw a wrench into the government’s case by claiming custody of drugs at the eleventh hour” when she previously denied all knowledge. He also stated that, if Wyatt did testify, that would put the government in the position of “having to open the door to re- buttal evidence that could be substantial” about her prior incon- sistent statements. As to the likelihood of Wyatt appearing and tes- tifying, Byron took the position that “If she’s going to show, today will be the day,” and maintained that “the best course forward is to proceed with trial today.”

Wilson raised another point: the subpoena to which Wyatt was subject was “a court order . . . not a government order,” mean- ing that “the Court has the ability to enforce that and compel her attendance.” The district court, in response, clarified that the in- strument was “the government’s subpoena” and “if they are not seeking to pursue it at this time, then that’s kind of where we are.”

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 18 of 28

6 LAGOA, J., Concurring 22-10020 Ultimately, the district court said that Wyatt was not a sur- prise witness and that both parties had been given an opportunity to investigate her anticipated testimony and, accordingly, found no basis to continue the trial. In saying so, the district court specifically stated that it did not mean to suggest that Wilson had not been appropriately diligent—but, rather, that the court was not inclined to give a third-party control over the trial calendar. After denying the motion for continuance, the district court reserved the idea of a motion to take Wyatt into custody for a break later in the day.

As planned, during a break in the government’s case in chief a few hours later, the district court raised “the request to take Ms. Wyatt into custody” and asked Wilson if anyone knew where Wy- att could be found. Wilson pointed out that the government (who had served Wyatt with the trial subpoena) had an address for her.

The district court then asked the government for its position, and Byron responded as follows: Your Honor, as I’ve advised the Court, TFO Houston served Ms. Wyatt. Candidly, I don’t intend to call her as a witness because I don’t believe she’s going to pre- sent truthful testimony, and I’m not going to put that before the Court. So I’m not asking [for] her to be brought to court. I’m not asking for a warrant to be sent.

The district court pressed further, asking the government, “But is there any reason why she shouldn’t be brought in?” Byron reiter- ated his “strong reservations about whether [Wyatt would] testify truthfully,” but conceded that he could not “think of anything” USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 19 of 28

22-10020 LAGOA, J., Concurring 7 else. After a brief recess, the district court asked the government if it knew where Wyatt was. Byron explained that the agent who served Wyatt’s subpoena reported that Wyatt had been staying with her mother as of a few weeks prior to trial, but that the agent had served Wyatt at a nearby gas station where she had agreed to meet. Byron also informed the district court that, based on some recent jail calls, the agent believed Wyatt had been staying with someone named “Little Dilly.” Byron and the agent told the court they could provide Wyatt’s mother’s address, but not Little Dilly’s.

Wilson then asked the district court’s permission to make a quick phone call and, when he returned, he offered that he could “narrow [Little Dilly’s address] down to an apartment complex,” but not a specific apartment. The district court reserved ruling on the mo- tion to enforce the subpoena and brought the jury back in to re- sume trial.

When the jury stepped out for lunch, the discussion of Wy- att resumed. Wilson did not have any new information and was still working on tracking down an apartment number for Little Dilly. The district court asked again about the conversations Wil- son had had with Wyatt, and Wilson reiterated that Wyatt, the night before, had said she would appear at trial that day and testify consistently with her text messages. That morning, however, Wy- att had fallen off the grid and stopped responding to both Wilson and Deblasi’s sister. The district court asked if the government had anything to add—and it did not.

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 20 of 28

8 LAGOA, J., Concurring 22-10020 The government pivoted, however, to an idea Wilson had raised earlier: the possibility of introducing the text messages be- tween Wyatt and Deblasi’s sister under Federal Rule of Evidence 804. 1 Byron told the district court that he saw two issues with this plan: first, he doubted that Deblasi could establish unavailability be- cause “Wyatt is not saying that she’s unavailable. She’s saying that she is available and intends to appear. . . . [S]he’s simply not ap- peared.” Second, Byron argued that the statements in Wyatt’s texts were not supported by sufficient corroborating circumstances be- cause, aside from those texts, she consistently denied that the drugs were hers. Wilson disagreed, contending that Wyatt was indeed unavailable and that there was “nothing to refute her statement or admission against her own interest that it’s her drugs.” Without making any decision on either enforcing the subpoena or admitting the text messages, the court recessed.

Trial resumed, and the government finished its case and rested. Outside the presence of the jury, the district court again inquired about Wyatt, and Wilson stated “it appears that the poten- tial witness is unavailable and making herself unavailable. . . . She has not been reachable.” Wilson also told the court that he had a

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 21 of 28

22-10020 LAGOA, J., Concurring 9 witness—Deblasi’s sister—who could authenticate the texts. The district court then heard the parties’ positions on unavailability.

Wilson pointed to Rule 804(a)(2), which says that a declarant is con- sidered unavailable as a witness if she “refuses to testify about the subject matter despite a court order to do so,” contending that “a subpoena is a court order that requires a witness to appear in court” and that he was “not aware that they have – the government has released her.” In response, Byron disputed whether a subpoena is the type of order contemplated in Rule 804(a)(2) and announced, “[I]f it’s an option for the government to release Ms. Wyatt, then I hereby release her.” Pivoting to corroborating circumstances of trustworthiness under Rule 804(b)(3)(b), the district court con- firmed with Wilson that Wilson had nothing else to offer to bolster the trustworthiness of the texts. The court then ruled that the text messages would not be admitted because the Rule requires corrob- orating circumstances indicating trustworthiness, which Deblasi could not provide. In the alternative, the district court continued, it was not persuaded that Deblasi had shown Wyatt’s unavailabil- ity. 2 Deblasi moved for a judgment of acquittal, which the district court denied; the defense rested; the parties gave their closing ar- guments; the district court instructed the jury; and the jury re- turned a guilty verdict after half an hour of deliberations. The

2 The district court did, however, make a point to include the text messages in the record “so that the Court of Appeals can look at that.”

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 22 of 28

10 LAGOA, J., Concurring 22-10020 district court subsequently sentenced Deblasi to 180 months’ im- prisonment. This appeal follows.

II.

More than sixty years ago, the Supreme Court announced that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The Court has “since held that the duty to disclose such evidence is applicable even though there has been no request by the accused . . . and that the duty encompasses impeachment evidence as well as exculpatory evidence.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (first citing United States v. Agurs, 427 U.S. 97, 107 (1976); and then citing United States v. Bagley, 473 U.S. 667, 676 (1985)). Indeed, “[t]he prosecutor has a duty not only to disclose such favorable evidence but also ‘to learn of any favorable evidence known to others acting on the government’s behalf.’” Parker v. Al- len, 565 F.3d 1258, 1277 (11th Cir. 2009) (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)).

This concurrence should not be read to conclude that the government in fact violated Brady in this case. I recount the obli- gations crystalized in that line of cases, however, because Brady is a fundamental aspect of “the special role played by the American prosecutor in the search for truth in criminal trials.” Strickler, 527 USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 23 of 28

22-10020 LAGOA, J., Concurring 11 U.S. at 281. Of Brady and the related Giglio 3 requirements, the De- partment of Justice’s handbook devotes an entire section to policies regarding disclosure “so as to ensure that trials are fair.” Dep’t of Justice, Justice Manual § 9-5.001 (Policy Regarding Disclosure of Exculpatory and Impeachment Information). This is consistent with the Supreme Court’s clear pronouncement that “[s]ociety wins not only when the guilty are convicted but when criminal tri- als are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady, 373 U.S. at 87. And, as the Court observed, “[a]n inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citi- zens in the courts.’” Id. As I expressed at oral argument, however, the government’s course of conduct here suggests a win-at-all- costs approach, taken at the expense of uncovering truth—as a trial is intended to do.

III.

There can be little debate that Wyatt’s text messages, if true, were exculpatory. Her messages to Deblasi’s sister include the fol- lowing statements:4 That day we got arrested together The dope they found, it was mine Giglio v. United States, 405 U.S. 150, 154 (1972).

4 I replicate Wyatt’s spacing and punctuation in the text messages. Each sepa- rate line represents a new text message.

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 24 of 28

12 LAGOA, J., Concurring 22-10020 Joey didn’t know I had it I told him to open his door after the lady cop told me to pull forward And I threw it out his door hoping she wouldn’t see But she did Do you understand?

He didn’t know anything about it at all I love y’all so much Say something please bae ...

He opened the door for me but he had just woken up . . . he didn’t understand what was going on at that time ...

I’m not sure what I should do man I don’t wanna go to jail but But there’s no way I could live with myself if Joey had to take the punishment . . he was trying to do right and live a better life Joey keeps calling me . . does he know that I told you?

If you’re talking to him now please 3 way At the end of the conversation, Deblasi’s sister issued the following warning: If you truly mean what you say. Then David Wilson will be the only person that would be able to help you USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 25 of 28

22-10020 LAGOA, J., Concurring 13 get the information that’s needed before 8 tomorrow morning.

To that, Wyatt simply responded, “Okay.”

Despite this exchange—eleventh hour though it may have been—the government took every opportunity to shut down ef- forts to investigate Wyatt’s knowledge and forged ahead with trial.

On my review of the record, the government had five separate op- portunities to tell the district court that the best decision was to track down Wyatt and put her under oath to examine her willing- ness to testify and, if she would, the substance of her testimony.

And, given the choice each time, the government chose pursuit of a verdict over pursuit of truth.

One: When Wilson first brought Wyatt’s texts to the district court’s attention, the jury had not yet been sworn. The govern- ment, to be clear, seemed to have had no idea that Wyatt was changing her story until Wilson raised the issue. 5 But, at that mo- ment, the government became aware that Wyatt was claiming the drugs as her own, necessarily exculpating Deblasi in the process. It was the government’s obligation in that moment—consistent with Brady, Department of Justice policy, and the Oath of Attorney 6—

6 Florida’s Oath of Admission to The Florida Bar includes a promise not to “counsel or maintain any suit or proceedings which shall appear to [the USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 26 of 28

Two: The next morning, when Wilson told the district court that he had made contact with Wyatt before being ghosted again, the court pointed out that Wyatt was under “the government’s sub- poena” and indicated that it was the government’s to pursue (or not). Again, the government chose not to do so. Three: Later that day, on the topic of bringing Wyatt into cus- tody, Wilson pointed out that the government had an address at which it had served her subpoena. In response, the government maintained that it would “not ask[] her to be brought to court” and that it was “not asking for a warrant to be sent.” Why? Because Byron had already decided that he did not “believe [Wyatt was] go- ing to present truthful testimony,” curtailing the fact-finding mis- sion before it could begin. Indeed, aside from the belief that Wyatt was lying about Deblasi’s innocence, the government could not “think of anything” else that would justify not bringing Wyatt in.

Four: During the lunch recess, the government had nothing to add to the ongoing discussion of locating Wyatt, but instead raised its objections to Wilson’s backup plan—bringing in the text

lawyer] to be unjust” and a pledge of “fairness, integrity, and civility” owed “to opposing parties and their counsel.”

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 27 of 28

22-10020 LAGOA, J., Concurring 15 messages as an exhibit—disputing both Wyatt’s unavailability and the reliability of the texts.

Five: A few hours later, after the government rested and the topic of unavailability was raised again, Byron finally declared, “[I]f it’s an option for the government to release Ms. Wyatt, then I hereby release her.”

It may well be true that Wyatt never “intended anything more than to throw a wrench into the government’s case by claim- ing custody of drugs at the eleventh hour,” as the government sug- gested to the district court. As things played out, though, no- body—certainly not the jury—ever had the opportunity to test that theory. As Byron conceded at oral argument, he charted this course because he determined that he “did not think [the change in Wyatt’s testimony] was credible.” But, as I indicated in response to that admission, the government is not the fact finder in a crimi- nal prosecution—nor is an individual Assistant United States Attor- ney. It is not the government’s job to decide whether exculpatory information is credible; we summon jurors for that very purpose.7 Here, however, the government employed a strategic move to cur- tail the fact-finding power of Deblasi’s jury. That conduct “casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the

USCA11 Case: 22-10020 Document: 40-1 Date Filed: 09/17/2024 Page: 28 of 28

IV.

As Justice Sutherland so aptly described the job of the pros- ecuting attorney, The United States Attorney is the representative not of an ordinary party to a controversy, but of a sover- eignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935). Channeling the same sentiment, the Justice Manual explains that “public service is a pub- lic trust, meaning that the decisions and actions that federal em- ployees take must be made in the best interests of the American people.” Justice Manual § 1-4.010 (Standards of Conduct – Intro- duction). I cannot say, here, that the government lived up to the responsibilities and obligations with which it is entrusted.