author: MARCUS, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Antonio FARIAS, Defendant-Appellant.
    No. 14-15804
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 09/01/2016

      Amit Agarwal, Aileen Cannon, Wifredo A. Ferrer, Alison Whitney Lehr, Francisco Raul Maderal, Jr., Kathleen Mary Salyer, Emily M. Smachetti, U.S. Attorney’s Office, Miami, FL, for Plaintiff-Appellee.

      Richard Carroll Klugh, Jr., Law Offices of Richard C. Klugh, Miami, FL, for Defendant-Appellant.
    Before MARCUS and FAY, Circuit Judges, and FRIEDMAN, District Judge.

       Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation.

   MARCUS, Circuit Judge:

Over the course of about 10 months, Antonio Farias purchased more than 18 million unstamped Marlboro cigarettes from undercover agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), at a significantly below-market price, and he arranged to have the cigarettes transported for sale on an Indian reservation in upstate New York. The agents told Farias they had stolen the cigarettes from cargo trucks. Farias was charged and convicted at trial of one count of conspiring, in violation of 18 U.S.C. § 371, to traffic in stolen goods, 18 U.S.C. § 2314, and to traffic in contraband cigarettes, 18 U.S.C. § 2342(a). The district court sentenced Farias to 36 months in prison and ordered him to forfeit his proceeds from the offense, which the parties agreed were $331,426. On appeal, Farias challenges: (1) the denial of his motion to dismiss the indictment as untimely; (2) the denial of his motion to compel discovery or alternatively to dismiss the indictment based on claimed government misconduct; (3) the sufficiency of the evidence to sustain his conviction for conspiracy; (4) the district court’s jury instructions; and (5) the court’s authority to enter a forfeiture judgment at the sentencing hearing, where it had failed to enter a preliminary forfeiture order as soon as practicable after the verdict, as required under Fed. R. Crim. P. 32.2. After careful review, and having the benefit of oral argument, we affirm.

I.

In 2005, special agents of the ATF began investigating Farias for unlawfully trafficking in cigarettes in Miami-Dade County, Florida, based on a tip they had received from a confidential informant. On June 20, 2006, a second confidential informant working with the special agents sold Farias more than one million unstamped Marlboro cigarettes. After that transaction, ATF placed the investigation on hold for about a year because the second confidential informant was serving a federal prison sentence. Thereafter, on seven separate occasions between June 23, 2008, and April 2, 2009, undercover ATF special agents Peter Alies and Richard Checo, working with the first confidential informant, sold Farias a total of more than 18 million unstamped Marlboro cigarettes. The agents sold Farias the cigarettes at a price per carton of only $19.50 — significantly below the going list price, which was between $27 and $36 per carton. Generally, the list price, which includes federal but not state taxes, is the lowest possible price at which a direct wholesaler can buy Marlboro cigarettes. During the course of each of the seven cigarette transactions, the agents recorded their conversations with the defendant, Farias.

After purchasing the cigarettes from the undercover agents, Farias immediately resold them to Stephen Valvo, who had arranged with his and Farias’s mutual friend to haul the cigarettes to an Indian reservation in Salamanca, New York. Special Agent Alies explained at trial that, in order to evade detection by law-enforcement officers, cigarette traffickers often transport contraband cigarettes for sale on Indian reservations in New York and in other northeastern states. Farias initially sold Valvo the cigarettes at a price per carton of $21.95, but later increased the price to $24.95.

On June 21, 2013, a federal grand jury sitting in the Southern District of Florida initially indicted Farias and Valvo on one count of conspiring to traffic in contraband cigarettes, in violation of 18 U.S.C. §§ 371 and 2342(a), and seven substantive counts of trafficking in contraband cigarettes, in violation of 18 U.S.C. §§ 2342(a) and 2. The indictment specifically charged that the conspiracy ran from April 7, 2006, through April 2, 2009. Moreover, it alleged 15 overt acts as part of the conspiracy, including the June 20, 2006 transaction between Fa-rias and the second confidential informant, the 7 transactions that occurred between June 23, 2008, and April 2, 2009, and 7 wire transfers between Valvo and Farias during that time frame. The indictment was sealed until Farias was arrested on June 16, 2014.

On July 17, 2014, the federal grand jury returned a superseding indictment, which again charged both Farias and Valvo with conspiring to violate 18 U.S.C. § 371. The superseding indictment alleged that the conspiracy, again, included trafficking in contraband cigarettes, in violation of § 2842(a), and that it also involved trafficking in stolen goods, in violation of 18 U.S.C. § 2314. Notably, the superseding indictment dropped the seven substantive § 2342(a) counts against Farias and Valvo, and shortened the time span of the conspiracy to a period commencing on or about June 4, 2008, and ending on or about April 2, 2009. The superseding indictment re-alleged the same overt acts that originally had been alleged in the initial charge (overt acts numbers 2-15), except that it dropped the June 20, 2006 transaction between Farias and the second confidential informant (overt act number 1).

Farias moved the district court to dismiss the superseding indictment because it was allegedly untimely under the governing five-year statute of limitations found in 18 U.S.C. § 3282(a), since it was filed more than five years after the last alleged overt act, which had occurred on April 2, 2009. In the alternative, the defendant claimed that the government had violated the Due Process Clause of the Fifth Amendment by waiting until June 21, 2013 to bring the initial charge. He claimed that both the superseding and original indictments should be dismissed as being untimely. The district court denied each argument, reasoning that, while the superseding indictment was indeed filed outside the five-year statutory limitations period, it plainly related back to the original, timely indictment because no broadening of the charges occurred. The district court also denied Farias’s due-process claim because he failed to show either actual prejudice or that the delay was an intentional construction used by the government to obtain tactical advantage over him. See United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

Farias proceeded to trial. On the morning trial commenced, he moved the court to compel the government to produce details of the ATF’s investigation, including the agency’s dealings with Phillip Morris and other cigarette companies. Alternatively, he urged the district court to dismiss the superseding indictment based on claimed outrageous government misconduct. Again, the district court denied Fari-as’s motions, characterizing the allegations that cigarette companies were financing ATF’s enforcement activities as being “pretty speculative.”

In its case-in-chief, the government played each of the agents’ recorded conversations with Farias for the jury, and also provided clarifying testimony. In the recordings, the undercover agents repeatedly indicated that they were dealing with stolen goods. Thus, for example, Special Agent Checo told Farias prior to the June 23, 2008 transaction that the conspirators’ cigarette supply was unpredictable because they could only get the product “[w]hen it falls” off the back of a truck. Checo explained that this terminology was designed and intended to convey that the undercover agents had stolen the cigarettes from cargo trucks that were transporting the merchandise. Notably, Farias responded: “Of course .... I know how it works.” An employee of Altria Group Distribution Company — Marlboro and Phillip Morris’s parent company — testified that Phillip Morris maintains a consistent supply of Marlboro cigarettes, so that the product is always available for purchase through legitimate channels.

In another recording, made on October 31, 2008, Special Agent Alies told Farias that he wanted to change trucks and let everything “cool down a bit” before selling the cigarettes. Alies explained that he was speaking in code, telling Farias that “because the product is stolen, I have ta move it ... basically to avoid detection by law enforcement.” Farias’s response was: “Of course.” In fact, Farias then told the undercover agent that he didn’t want to spend “too much time” at the warehouse, where the sale would take place. Special Agent Alies explained that Farias wanted to minimize his time at the warehouse because he was concerned that customs agents might come to inspect the warehouse and ask to see documentation for the cigarettes. In still another recording, made on November 6, 2008, Farias said he wanted to break up larger transactions into smaller shipments, which would be less likely to attract law-enforcement attention.

Farias had also explained to Special Agent Checo, prior to the July 24, 2008 transaction, that they would have nothing to worry about once the cigarettes made it onto the New York Indian reservation, where state and federal law-enforcement authorities couldn’t investigate the cigarettes for sale. During that conversation, Farias specifically asked undercover agent Checo to confirm if the cigarettes he was purchasing were stolen. Checo responded, “You don’t want to know the answer to that.” Farias then said: “Yeah, because I’m afraid. I mean, so many cases. They’re after that, you know.”

Valvo, who had entered a plea and agreed to cooperate with the government and to testify against Farias, explained that he knew the cigarettes he bought from Farias had been stolen, and that they were unstamped. At the time, Valvo did not know what price Farias had paid for the cigarettes, but he knew the price Fari-as was offering him for the contraband was “too cheap” by about $1.50-$1.65 per carton. Valvo added that Farias also told him the cigarettes “[w]eren’t on board,” which he, too, took to mean that the cigarettes had been stolen.

Farias testified in his own defense. He flatly denied knowing that the cigarettes were stolen and maintained that he was not responsible for paying Florida cigarette taxes.

During the charging conference, defense counsel asked the district court to give a “buyer-seller” instruction, which the court denied. The district court noted that “there’s some authority in the drug area [that] if there’s an isolated buyer/seller relationship that that can’t constitute a conspiracy,” but there was also authority indicating the instruction was unnecessary. The court found that the instruction was unnecessary and not supported by the evidence.

The district court, however, used a special verdict form, which asked the jury to find whether Farias was guilty or not of the conspiracy charge, and if guilty, whether the object of the conspiracy was to traffic in stolen goods, or to traffic in contraband cigarettes, or both. The jury found Farias guilty and that he had conspired both to traffic in stolen goods and to traffic in contraband cigarettes.

At the sentencing hearing, the government moved ore tenus for a forfeiture judgment in the amount of $719,538.60, which was a market-value estimate of the cigarettes Farias had purchased from the undercover agents, minus the amounts he had paid the agents. Farias objected, arguing that, pursuant to Fed. R. Crim. P. 32.2, the government had waived forfeiture by waiting until the sentencing hearing, and the court lacked the authority to enter a forfeiture judgment at sentencing since it had failed to enter a preliminary forfeiture order as soon as practicable after the verdict had been rendered by the jury. Alternatively, Farias claimed that the court should look to his actual profit, and not to the market value of the cigarettes, in determining the amount to be forfeited. Defense counsel agreed that Farias’s personal profit was $331,426. The court agreed with the defense on that point, and, therefore, ordered him to forfeit that amount.

Farias timely filed this appeal, challenging both his conviction and the district court’s forfeiture order.

II.

Generally, we review the district court’s denial of a motion to dismiss an indictment for abuse of discretion, but the interpretation and application of a statute of limitations is a legal question that we review de novo. United States v. Rojas, 718 F.3d 1317, 1319 (11th Cir. 2013). We also review the sufficiency of the evidence de novo, drawing all reasonable inferences and resolving all questions of credibility in favor of the government. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). Under this standard, we are required to affirm the verdict “if a reasonable juror could conclude that the evidence establishes guilt beyond a reasonable doubt.” Id.

We review the legal correctness of a jury instruction de novo, but defer to the district court on questions of phrasing absent an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We also review de novo whether the defense was entitled to a requested jury instruction. See United States v. Calderon, 127 F.3d 1314, 1329 (11th Cir. 1997). Finally, we review the district court’s legal conclusions regarding forfeiture de novo, but its factual findings only for clear error. United States v. Puche, 350 F.3d 1137, 1153 (11th Cir. 2003).

A.

Farias first argues that the district court erred in denying his motion to dismiss the indictment as being untimely under 18 U.S.C. § 3282(a). We disagree. The conspiracy charge in the superseding indictment had a five-year statute of limitations. See 18 U.S.C. § 3282(a); id. § 371. Thus, to be timely, the superseding indictment had to be returned within five years of the last alleged overt act, which occurred on April 2, 2009. See United States v. Isaacson, 752 F.3d 1291, 1302 (11th Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 990, 190 L.Ed.2d 869 (2015). The initial indictment was returned on July 21, 2013, which fell squarely within the five-year limitations period. Although the original indictment was sealed, “the government may properly request the sealing of an indictment for a period beyond the statute of limitations.” United States v. Edwards, 777 F.2d 644, 647 (11th Cir. 1985).

The essential question, then, is whether the superseding indictment related back to the original indictment, which was timely. Our case law makes it abundantly clear that the filing of a timely indictment tolls the statute of limitations for purposes of a superseding or new indictment if the subsequent indictment does not “broaden or substantially amend the original charges.” United States v. Italiano, 894 F.2d 1280, 1282 (11th Cir. 1990). Here, the superseding indictment actually narrowed, rather than broadened, the original charges. For starters, the original indictment charged Farias with one conspiracy count and seven substantive offenses, whereas the superseding indictment charged him with only one conspiracy count, having dropped the seven § 2342(a) substantive counts. The superseding indictment also shortened the timeframe of the conspiracy; thus the superseding indictment charged a conspiracy that spanned only from June 4, 2008, through April 2, 2009, whereas the original indictment ran from April 7, 2006, through April 2, 2009. What’s more, 14 of the 15 overt acts that had been alleged in the original indictment (overt acts numbers 2-15) were re-alleged in exactly the same form in the superseding indictment. The superseding indictment omitted the 15th overt act that originally had been alleged (overt act number 1), and added none that were new.

Farias maintains, nevertheless, that the conspiracy charge in the superseding indictment broadened the original conspiracy because it added as an object of the § 371 conspiracy trafficking in stolen goods, as well as trafficking in contraband cigarettes which was found in the original charge. We remain unpersuaded. This Court has explained that the central policy purpose underlying statutes of limitations is to provide fair notice to a defendant. Id. at 1283. “If the allegations and charges are substantially the same in the old and new indictments, the assumption is that the defendant has been placed on notice of the charges against him.” Id. Both the original and superseding indictments charged Fari-as with conspiracy, under the same federal statute, 18 U.S.C. § 371. And, while the superseding indictment added violation of an additional federal statute as an object of the conspiracy, both indictments alleged the very same “Object of the Conspiracy,” which was for “the defendants and their co-conspirators to unlawfully enrich themselves by receiving, possessing, and purchasing contraband untaxed cigarettes in Florida, which they believed to be stolen.” Thus, the original indictment sufficiently placed Farias on notice that the government was alleging that he had joined an unlawful conspiracy that involved cigarettes that were not only untaxed, but which he believed to be stolen. The district court did not err in denying his motion to dismiss the superseding indictment as being untimely under the applicable statute of limitations.

Nor did the district court err in denying his due-process challenge. In order to establish that the government’s delay in bringing the indictment — even if it had been filed in a statutorily timely manner — -violated his due process rights, Fari-as was required to establish both (1) that the delay actually prejudiced his defense, and (2) that it resulted from a deliberate design by the government to gain a tactical advantage over him. United States v. Knight, 562 F.3d 1314, 1325 (11th Cir. 2009). Farias’s vague allegation, stated at the highest order of abstraction, that the passage of time made it more difficult for him to reconstitute his records for the charged transactions failed to explain how he suffered any actual prejudice. And he made absolutely no showing that the pre-indictment delay was the product of deliberate design by the government to gain a tactical advantage over him. Contrary to his claim, Farias was not entitled to an evidentiary hearing on his due-process claim because he failed to set forth any specific allegations in support of it. Cf. Blalock v. United States, 844 F.2d 1546, 1551 (11th Cir. 1988) (noting that a defendant must establish a prima facie case of improper disclosure of grand-jury matters to obtain an evidentiary hearing on such a claim); United States v. Silien, 825 F.2d 320, 322 (11th Cir. 1987) (discussing similar standard for evidentiary hearing on selective-prosecution claim).

B.

Farias also argues that the district court erroneously denied his motion to compel discovery of the ATF’s dealings with Phillip Morris, or in the alternative to dismiss the indictment, purportedly based on outrageous government misconduct. As we read this record, the district court properly denied these applications as well. In so far as Farias launches a challenge to the lawfulness of the sting operation conducted by special agents of the ATF, the Supreme Court and this Court have recognized the possibility that the nature and extent of the government’s involvement in a criminal scheme may violate a defendant’s due process rights, but only where the government’s conduct “violates ‘fundamental fairness, [and is] shocking to the universal cause of justice.’ ” Owen v. Wainwright, 806 F.2d 1519, 1521 (11th Cir. 1986) (quoting United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)). Employing this standard, we have repeatedly rejected challenges to reverse-sting undercover investí1 gations, whereby undercover officers have occasion to offer and sell contraband to suspected traffickers. See United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998) (citing United States v. Savage, 701 F.2d 867, 869-70 (11th Cir. 1983); United States v. Gianni, 678 F.2d 956, 960 (11th Cir. 1982); and United States v. Nicoll, 664 F.2d 1308, 1314-15 (5th Cir. Unit B 1982), rev’d on other grounds by United States v. Henry, 749 F.2d 203, 206 & n.2 (5th Cir. 1984)).

The Supreme Court has also made it abundantly clear that “[t]he limitations of the Due Process Clause ... come into play only when the Government activity in question violates some protected right of the Defendant.” Hampton v. United States, 425 U.S. 484, 490, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Here, the evidence established that Farias was perfectly willing to repeatedly engage in unlawful cigarette transactions involving huge sums of money, and indeed he raised no entrapment argument at all. His allegations that the sting operation benefited the tobacco companies and harmed the public health by making cigarettes available at a below-market price are irrelevant, and in all events, do not establish any violation of his due process rights.

Farias says, however, that the tobacco companies’ involvement in the investigation somehow denied him the right to a disinterested prosecutor. We remain unconvinced. In Young v. U.S. ex rel. Vuitton et Fils, S.A., the Supreme Court recognized a criminal defendant’s right to be tried by a disinterested prosecutor. 481 U.S. 787, 810, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). But we’ve explained that, while Young forbids an interested party from controlling the defendant’s prosecution, it does not categorically forbid an interested party from having any involvement in the case. United States v. Siegelman, 786 F.3d 1322, 1329 (11th Cir. 2015), cert. denied, - U.S. -, 136 S.Ct. 798, 193 L.Ed.2d 765 (2016). In his motion to dismiss the indictment, Farias only alleged, and again only in the most general way, that the tobacco companies somehow benefit from ATF’s efforts to impede or thwart unlawful distribution and sale of contraband cigarettes. The problem Farias has is that this claim in no way shows that the cigarette companies exercised any control over the conduct of the investigation or prosecution. The tobacco companies did not decide whether to proceed with an undercover investigation, or how or when to do so. Nor did the tobacco companies have any control over what, if anything, would be sold to Farias. Nor, finally, is there even the remotest suggestion that the tobacco companies somehow affected the timing or nature of the prosecution itself.

Farias was not entitled to discovery on his misconduct claim. Plainly, the government is obliged to disgorge evidence or information that would be favorable to the defendant. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. In his motion to dismiss the indictment, however, Farias has again failed to show how the tobacco companies’ claimed involvement in the sting operation was in any way relevant to establish his innocence or mitigate his punishment. We decline to consider an argument that he raised for the first time in his reply brief that evidence of some benefit conferred on Phillip Morris would have been relevant to impeach the testimony from a representative of Phillip Morris. See United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (“[arguments raised for the first time in a reply brief are not properly before a reviewing court” (quotation omitted)).

But, in any event, Farias cannot show that he was prejudiced by the government’s failure to turn over any claimed information about any alleged benefits conferred on Phillip Morris. The jury learned through Special Agent Alles’s testimony that Phillip Morris provided the Marlboro cigarettes used in the sting operation and that the government agreed to pay Phillip Morris for the cigarettes with the money it recovered from Farias. Thus defense counsel had the opportunity to — and did— cross-examine the Phillip Morris representative with this information, and the representative testified that he had no knowledge of Phillip Morris’s cooperation with the ATF.

C.

Farias also challenges the sufficiency of the evidence to establish a conspiracy either to traffic in stolen goods or a conspiracy to traffic in contraband cigarettes. In .order to convict him, the government was only required to prove beyond a reasonable doubt that he conspired to do the one or the other. See United States v. McKinley, 995 F.2d 1020, 1025 (11th Cir. 1993) (“[I]t has always been the law that where an indictment alleges a conspiracy to commit several offenses against the United States, the charge is sustained by adequate pleadings and proof of conspiracy to commit any one of the offenses.” (quotations omitted)). As we read the record, the government provided more than sufficient evidence to prove beyond a reasonable doubt that Farias knowingly conspired to traffic in stolen goods.

The elements necessary to establish a § 371 conspiracy are these: (1) an agreement between the defendant and at least one other person to achieve an unlawful objective; (2) the defendant’s knowing and voluntary participation in the agreement; and (3) an overt act by a conspirator in furtherance of the agreement. Hasson, 333 F.3d at 1270. As for the trafficking in stolen goods object of the conspiracy, Fari-as challenges on appeal only the government’s proof that he knew the stolen nature of the cigarettes. The government provided more than sufficient evidence from which the jury could have inferred that Farias knew the stolen nature of the cigarettes he purchased from the undercover agents.

For starters, Valvo testified that, when Farias sold him the cigarettes, Farias told him they “weren’t on board,” which Valvo, among others, understood to mean the cigarettes were stolen. The evidence also established that the undercover agents told Farias on numerous occasions that the cigarettes they were selling him had been stolen, and Farias affirmed his understanding of this fact in various ways. Again, for example, undercover agent Che-co and the confidential informant told Fa-rias that their cigarette supply was unpredictable because they obtained the product “[w]hen it falls” — meaning they stole the cigarettes from cargo trucks — and Farias responded, “I know how it works.” Agent Checo also asked Farias if the confidential informant told him how they had gotten the cigarettes, and Farias responded: “I don’t want to know.” On still another occasion, Farias specifically asked Checo if the cigarettes were stolen. Checo responded, “You don’t want to know the answer to that,” which he intended to mean that they were stolen. And, in later transactions, undercover agent Alies told Farias that, before he could buy the cigarettes, they had to “let everything cool down a bit,” which Alies testified was a coded way of telling Farias the cigarettes were stolen.

What’s more, the agents sold Farias the cigarettes at a substantial price disparity — at a price per carton of $19.50, while the list price per carton during the relevant time period was between $27 and $36 — which would have given Farias substantial reason to believe that the undercover agents had not gotten the cigarettes from some legitimate source or channel. Finally, the jury was entitled to discredit Farias’s testimony that he did not know the cigarettes had been stolen (which it plainly did), and to consider that testimony as substantive evidence of his guilt. See United States v. Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009).

Farias also contends that the evidence against him was insufficient because the government failed to prove that his knowledge of the stolen nature of the cigarettes was based on an official representation, which he maintains was charged in the superseding indictment. In fact, the superseding indictment charged that Farias and Valvo conspired to “knowingly transport, transmit, and transfer in interstate and foreign commerce goods ... having a value of $5,000 or more, knowing the same to have been stolen, converted, and taken by fraud within the meaning of Title 18, United States Code Section 21, in violation of Title 18, United States Code, Section [ ] 2314.” There was no official representation in the charge itself. Farias claims, nonetheless, that the government constructively amended the superseding indictment by relying on evidence other than an official representation. We disagree.

A constructive amendment occurs when “the essential elements of the offense contained in the [grand jury] indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States v. Augustin, 661 F.3d 1105, 1115-16 (11th Cir. 2011) (quotation omitted). However, “Congress defines the elements of an offense, not the charging document.” Id. at 1116 (quotation omitted). “[A]s long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.” Id. (quotation omitted).

The superseding indictment charged Farias with conspiring to violate 18 U.S.C. § 2314, which makes it a crime for anyone to “transport[ ], transmit ], or transferí ] in interstate or foreign commerce any goods ... of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.” 18 U.S.C. § 2314. Section 2314 does not require that the defendant’s knowledge be based on an official representation. See id. Section 21, which is referenced in the superseding indictment, provides that, whenever the defendant’s knowledge of the sto-ten nature of goods is an element of a Title 18 offense, “such element may be established by proof that the defendant, after or as a result of an official representation as to the nature of the property, believed the property to be embezzled, robbed, stolen, converted, taken, altered, counterfeited, falsely made, forged, or obliterated.” 18 U.S.C. § 21(a) (emphasis added). By using the word “may,” § 21 permits the government to prove knowledge based on an official representation, but does not require the government to do so. Thus, by referencing § 21, the superseding indictment did not make an official representation an element of the charged conspiracy, and the government was not required to prove an official representation to convict Farias. See Augustin, 661 F.3d at 1116.

Nor did the district court err by denying Farias’s request for a buyer-seller relationship instruction. We’ve said that, “[a]s long as there is some basis in the evidence and legal support, the jury should be instructed on a theory of the defense.” United States v. Zlatogur, 271 F.3d 1025, 1030 (11th Cir. 2001). However, “[a] district court’s refusal to give a requested instruction warrants reversal only if the requested instruction was correct, the charge actually given did not substantially address it, and the failure to give the instruction seriously impaired- the defendant’s ability to present an effective defense.” United States v. Jones, 933 F.2d 1541, 1544 (11th Cir. 1991).

The district court denied Farias’s request for a buyer-seller instruction based, in part, on defense counsel’s representation that Farias’s primary theory of defense was that he was a broker, rather than a buyer or seller. While the evidence could be read in one way to show a buyer-seller relationship between Valvo and Fari-as, we still see no reversible error. The general conspiracy instruction given by the district court more than adequately met Farias’s request. See United States v. Lively, 803 F.2d 1124, 1128-29 (11th Cir. 1986) (concluding buyer-seller relationship instruction was unnecessary where the court’s general conspiracy charge covered the substance of that instruction). The district court instructed the jury that it could convict Farias only if it found that: “Two or more persons in some way agreed to try to accomplish a shared and unlawful plan,” and Farias “knew the unlawful purpose of the plan and willfully joined in it.” The district court also instructed that the unlawful plan alleged in the conspiracy count was to traffic in stolen goods or to commit the crime of trafficking in stolen cigarettes. The court further instructed the jury that “simply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn’t establish proof of a conspiracy,” and “[a] person who doesn’t know about [the] conspiracy but who happens to act in a way that advances some purpose of one doesn’t automatically become a conspirator.” Those instructions substantially addressed Farias’s concern that the jury might convict him based solely on his buyer-seller relationship with Valvo.

Farias also challenges the jury’s finding that he conspired, not just to traffic in stolen goods, but also to traffic in contraband cigarettes. Because we can discern no error in his conviction for conspiring to traffic in stolen goods, and the jury — on a special verdict form — specifically found that object had been proven beyond a reasonable doubt, we need not address whether any error occurred with regard to the object of trafficking in contraband cigarettes. See McKinley, 995 F.2d at 1025.

D.

Lastly, Farias argues that the district court erred by failing to enter a preliminary forfeiture order after the jury rendered its verdict and before the sentencing hearing. We agree that the district court erred, but conclude after carefully reviewing the record that the error was harmless.

Fed. R. Crim. P. 32.2 sets out three required steps in criminal forfeiture proceedings. First, the “court must not enter a judgment of forfeiture ... unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute.” Fed. R. Crim. P. 32.2(a). Second, “[a]s soon as practical after a verdict or finding of guilty ... on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture,” and, “[i]f the government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay.” Fed. R. Crim. P. 32.2(b)(1)(A). Then, “[i]f the court finds that property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment, directing the forfeiture of specific property, and directing the forfeiture of any substitute property if the government has met the statutory criteria.” Fed. R. Crim. P. 32.2(b)(2)(A). “Unless doing so is impractical, the court must enter the preliminary order sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final .... ” Fed. R. Crim. P. 32.2(b)(2)(B). The preliminary forfeiture order becomes final as to the defendant “[a]t sentencing — or at any time before sentencing if the defendant consents.” Fed. R. Crim. P. 32.2(b)(4)(A).

Here, the district court erred by failing to enter a preliminary forfeiture order after the jury rendered its verdict and before the sentencing hearing. See United States v. Marion, 562 F.3d 1330, 1339 (11th Cir. 2009) (“The Federal Rules of Criminal Procedure have the force and effect of law. Just as a statute, the requirements promulgated in these Rules must be obeyed.” (quotation omitted)). Notably, there is nothing in the record, and the government has pointed us to nothing, that would have rendered doing so impractical. See Fed. R. Crim. P. 32.2(b)(2)(B). But harmless-error analysis clearly applies to the examination of this issue. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded”); United States v. Martin, 662 F.3d 301, 307-10 (4th Cir. 2011) (affirming forfeiture order, despite district court’s failure to enter a preliminary order prior to the sentencing hearing and to make the order final at sentencing, as required by Fed. R. Crim. P. 32.2 (2004), where the defendants had notice both of the pending forfeiture and the amount sought by the government).

The record unambiguously establishes that Farias had fair notice prior to the sentencing hearing that the government would seek forfeiture. For one thing, both the original and superseding indictments contained a forfeiture count. See Fed. R. Crim. P. 32.2(a). Thus, the superseding indictment contained the following clause:

Upon conviction of a conspiracy to commit a violation of Title 18, United States Code, Sections 2314 and 2342, as alleged in this Superseding Indictment, the defendant so convicted shall forfeit to the United States of America all of his respective right, title and interest in any property, real or personal, which constitutes or is derived from proceeds traceable to such violation, pursuant to Title 18, United States Code, Section 981(a)(1)(C).

Second, the government confirmed its intent to seek forfeiture at trial, when, in response to the court’s inquiry whether there were any forfeiture issues for the jury, the government noted that it would be seeking a “monetary judgment on the amount of the profit,” which the parties agreed was not a jury issue. What’s more, at sentencing, both the government and defense counsel indicated that the parties had actually been negotiating the amount of the forfeiture prior to the sentencing hearing.

Farias also had notice of the specific amount ordered forfeited. At the trial, an ATF financial analyst, John Mark Crawford, testified that Farias’s bank statements indicated that his profit from the seven charged transactions was approximately $320,000. The government also introduced a profit chart, which the defense did not dispute, showing the analyst’s calculations. Then, at sentencing, when the government sought a higher forfeiture amount of $719,538.60 based on the market price of the cigarettes, defense counsel argued that, to the extent forfeiture was appropriate, Farias should be required to forfeit only the amount of his personal profit, which was $331,426. The court ultimately agreed with Farias, and entered a forfeiture judgment in the lesser amount, that is for $331,426. We also observe that Farias had a full opportunity to contest the forfeiture at the sentencing hearing. Thus, we cannot see how he was prejudiced in any way by the district court’s failure to comply with Rule 32.2, and we can confidently say the error was harmless.

We are also unpersuaded by Fari-as’s alternate claim that the district court erred by denying his request to make his forfeiture liability joint and several with Valvo. The court ordered Farias to forfeit only the amount of his personal profit. Farias has shown no basis for making this liability joint and several with Valvo, where he has agreed that the amount he was ordered to forfeit represents his own proceeds from the offense. See United States v. Browne, 505 F.3d 1229, 1278 (11th Cir. 2007) (explaining that joint and several forfeiture liability is appropriate, in a conspiracy case, where it is impractical to require the government to determine the precise allocation of proceeds between codefendants).

Nor, as Farias argues, did the government waive its right to seek forfeiture when it decided not to seize the cigarettes involved in the sting operation. The superseding indictment alleged that the proceeds of the offense were forfeitable under the civil forfeiture statute, 18 U.S.C. § 981(a)(1)(C). Section 981(a)(1)(C) authorized a forfeiture money judgment for the conspiracy to traffic in stolen goods, see United States v. Kaley, 579 F.3d 1246, 1250 n.3 (11th Cir. 2009), regardless of whether the government attempted to seize the cigarettes involved in the sting operation, pursuant to 18 U.S.C. § 2344(c).

Accordingly, we affirm Farias’s conviction for conspiracy and the district court’s order that he forfeit $331,426.

AFFIRMED.

      . A government witness explained at trial that Marlboro manufactures cigarettes in North Carolina, South Carolina, and Virginia, and the company pays a federal excise tax on all of its cigarettes before they leave the company’s plants. All of the states, including the State of Florida, impose their own separate excise tax, which is generally assessed when the cigarettes arrive in that state. Payment of the state tax is evidenced by application of a tax stamp to the outer packaging of each pack of cigarettes.

      . Section 371 provides that "[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the objéct of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.” 18 U.S.C. §371.

      . Section 2342(a) provides that "[i]t shall be unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes or contraband smokeless tobacco.” 18 U.S.C. § 2342(a).

      . The indictment alleged the following 15 overt acts:
      (1) On or about June 20, 2006, ANTONIO FARIAS purchased approximately 1,500,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a cashier's check in the amount of $112,500.
      (2) On or about June 23, 2008 STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $42,144.
      (3) On or about June 23, 2008, ANTONIO FARIAS purchased approximately 384,-000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a cashier’s check in the amount of $37,440.
      (4) On or about July 22, 2008, STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $84,288.
      (5) On or about July 24, 2008, ANTONIO FARIAS purchased approximately 768,-000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a cashier’s check in the amount of $74,880.
      (6) On or about September 15, 2008, STEPHEN VALVO sent, through a company he controlled, two wire transfers to ANTONIO FARIAS totaling $250,864.
      (7) On or about September 15, 2008, ANTONIO FARIAS purchased approximately 2,304,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using two cashier’s checks totaling $224,640.
      (8) On or about September 26, 2008, STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $252,864.
      (9) On or about September 30, 2008, ANTONIO FARIAS purchased approximately 2,304,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a cashier’s check in the amount of $224,640.
      (10) On or about October 24, 2008, STEPHEN VALVO sent, through a company he controlled, two wire transfers to ANTONIO FARIAS totaling $284,472.
      (11) On or about October 27, 2008, ANTONIO FARIAS purchased approximately 2,592,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using two cashier's checks totaling $252,720.
      (12) On or about November 12, 2Q08, STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $210,720.
      (13) On or about November 13, 2008, STEPHEN VALVO sent, through a company he controlled, a wire transfer to ANTONIO FARIAS in the amount of $168,577.
      (14) On or about November 13, 2008, ANTONIO FARIAS purchased approximately 3,456,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using two cashier’s checks totaling $336,900.
      (15) On or about April 2, 2009, ANTONIO FARIAS purchased approximately 6,852,000 purportedly stolen cigarettes bearing no evidence of payment of applicable state cigarette taxes to the State of Florida, using a wire transfer in the amount of $668,070.

      . Section 2314 provides that "[wjhoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud ... [sjhall be fined under this title or imprisoned not more than ten years, or both.” 18 U.S.C. §2314.

      . The statute of limitations provides that "[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” 18 U.S.C. § 3282(a).

      . Defense counsel requested that the jury be instructed:
      [A] mere buyer-seller relationship does not constitute proof of a conspiracy. A defendant who sells to another person merchandise while believing it to be illegal merchandise does not, merely by selling the merchandise, commit a violation of the federal conspiracy law ....

      . Section 21 defines an “official representation” as "any representation made by a Federal law enforcement officer (as defined in section 115) or by another person at the direction or with the approval of such an officer.” 18 U.S.C. § 21(b).

      . Because we conclude that the government was not required to prove an official representation to convict Farias, we need not decide whether its evidence supported a finding that the undercover special agents’ representations to Farias regarding the stolen nature of the cigarettes qualified as “official representation[s]” within the meaning of 18 U.S.C. § 21(b).


source: Caselaw Access Project

author: ED CARNES, Chief Judge:

license: Public Domain

text:
    Durrell BESTER, Petitioner-Appellant, v. WARDEN, Attorney General of the State of Alabama, Respondents-Appellees.
    No. 13-15779
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 09/02/2016

      Samika Nicole Boyd, Bondurant Mixson & Elmore, LLP, Atlanta, GA, for Petitioner-Appellant.
    Robin Denise Scales, Andrew Lynn Brasher, Luther J. Strange, III, Alabama Attorney General’s Office, Montgomery, AL, for Respondents-Appellees.
    Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH, District Judge.

       Honorable Royce C. Lamberth, United States District Judge for the District of Columbia, sitting by designation.

   ED CARNES, Chief Judge:

Durrell Bester appeals the district court’s denial of his 28 U.S.C. § 2254 petition, which challenged his Alabama convictions for trafficking in cocaine, failure to affix a tax stamp, and possession of drug paraphernalia. Bester contends that his trial counsel rendered ineffective assistance by failing to request that the jury be given a no-adverse-inference jury instruction, which would have told the jurors that they could not infer from his failure to testify that he was guilty.

I.

On May 24, 2009, Sergeant Hattie French and Deputy Jude Washington of the Jefferson County Sheriffs Office were conducting surveillance on Bester’s home in preparation for the execution of a search warrant when they saw two men park a blue pickup truck in front of the house. After one of the men got Bester from the house, he and Bester began throwing bags and luggage into the back of the truck. Once the truck was loaded, Bester, carrying a white bag, got in the front and the three men drove away. Sergeant French and Deputy Washington notified some other officers and then followed the truck to an apartment complex where Deputy Mark Eaton met up with them.

At the apartment complex Bester and one of the other men got out of the truck. Each was carrying a white bag. Bester’s bag was small and looked like a plastic grocery bag, while the other man’s was larger and looked like a garbage bag. They entered an apartment, which belonged to Bester’s mother. The men stayed in the apartment for a few minutes before leaving without the bags and driving away in the same truck.

Sergeant French and Deputy Washington stayed at the apartment complex while Deputy Eaton and some other officers followed the truck. The officers at the apartment complex obtained from Bester’s mother written consent to search her apartment. She took them into a bedroom and told them that Bester had put his bag in a corner behind a stereo. She also gave them a handwritten statement that read: “I saw my son come home with bags + left + two white gu[y]s were with him + he left come in [sic] with the white bag behind the [boom]box.”

Inside the small white grocery bag that they found behind the boombox, the officers found digital scales and two smaller bags, one containing 43.5 grams of powder cocaine and one containing 26.1 grams of crack cocaine. The officers also found in the bedroom marijuana and the large white garbage bag, which itself contained scales, baggies, and a glass Pyrex cup with residue in it.

In the meantime, some officers had pulled over the truck Bester and his two companions were in. Deputy Eaton conducted a dog sniff with his K-9 partner, Pepsi, who indicated the presence of drugs in a black suitcase in the bed of the truck. When Deputy Eaton searched the suitcase, he found “pieces of torn off Brillo pad, syringes, an ash tray, a pill splitter and a push rod that was burnt on the end,” which is “typical of use in a crack pipe.” Bester later admitted to Deputy Eaton that the suitcase was his. After conducting the car stop, Deputy Eaton went back to Bester’s house and executed the search warrant. There, he found small bags containing what appeared to be cocaine residue and a set of digital scales.

Throughout Bester’s trial for trafficking in cocaine, failure to affix a tax stamp, and possession of drug paraphernalia, the court permitted members of the jury to ask the witnesses questions. While Deputy Eaton was on the stand, several jurors asked him about the suitcase and the small white grocery bag. The trial court permitted Deputy Eaton to explain to the jury that he did not have the suitcase fingerprinted because Bester admitted that it was his, but the court refused to let Deputy Eaton answer questions from the jury about the small white grocery bag. Jurors were allowed to ask Sergeant French questions about who had carried which bag into Bes-ter’s mother’s apartment. Her answers incriminated Bester.

Bester did not testify in his own defense at trial. His attorney did not ask the trial court to give the jury a no-adverse-inference instruction. While the trial court in opening and closing instructions did instruct the jury that it had to presume Bester’s innocence, that the State had the burden of proving his guilt beyond a reasonable doubt, and that Bester did not have to present any witnesses in his own defense, it did not give a no-adverse inference instruction. The jury found Bester guilty of all three charges, and the trial court sentenced him to life imprisonment without the possibility of parole for the drug-trafficking offense, 15 years imprisonment for the faihire-to-affix-a-tax-stamp offense, and 12 months in jail for the drug-paraphernalia offense.

II.

In 2010 Bester filed a pro se Alabama Rule of Criminal Procedure 32 petition for post-conviction relief alleging, among other claims, that his trial counsel was ineffective for failing to request a no-adverse-inference instruction. Bester obtained ha-beas counsel, who represented him at an evidentiary hearing in state court. After the evidentiary hearing the state habeas trial court denied Bester’s Rule 32 petition, stating:

[I]t is alleged that trial counsel failed to request or object to the Court not giving a jury instruction on the Petitioner’s failure to testify. There was no request made to the Court to give the instruction regarding a Defendant who does not testify during his trial and therefore the Court did not have an opportunity to rale on that issue. Therefore, the Court finds that [this] issue is without merit....

Bester, still represented by habeas counsel, appealed the state habeas trial court’s denial of his Rule 32 petition. But habeas counsel abandoned Bester’s no-adverse-inference-instruction claim, prompting Bester to file a pro se brief raising that claim. The Alabama Court of Criminal Appeals permitted Bester’s habeas counsel to withdraw and allowed Bester to proceed pro se, but it refused to consider his pro se brief. In its order affirming the state habeas trial court’s denial of his Rule 32 petition, the Alabama Court of Criminal Appeals considered only the claims that Bester’s attorney had raised in the brief he filed before being dismissed as counsel. Bester applied for rehearing, arguing that the appellate court had not addressed his claim that trial counsel was ineffective for failing to request the no-adverse-inference instruction, but the court denied his application. The Alabama Supreme Court denied Bester’s petition for certiorari, in which he had again argued that the Ala--bama Court of Criminal Appeals failed to address his no-adverse-inference-instruction claim.

III.

In 2012 Bester filed pro se in federal district court a § 2254 petition for writ of habeas corpus. He claimed, among other things, that his trial counsel had rendered ineffective assistance by failing to request a no-adverse-inference instruction and that failure had prejudiced him because “it is more likely than not that the jury assigned culpability to him by assuming ... from his failure to testify that petitioner had something to hide, and/or otherwise that he was guilty.” A magistrate judge, while acknowledging that ineffective assistance of counsel claim, apparently conflated it with a separate claim that trial counsel had not permitted Bester to testify. Without holding an evidentiary hearing, the magistrate judge recommended denying both claims because:

The [state habeas] trial court heard the petitioner’s claim that he wanted to testify but was not allowed to, and his attorney’s testimony that he advised the petitioner not to testify, even though he had a right to testify, and that the peti- ■ tioner chose to accept the attorney’s advice. Under questioning, the petitioner admitted that his attorney advised him not to testify and that he thought his attorney was acting in his best interest. The record developed at the trial court’s Rule 32 hearing does not demonstrate that the court made any unreasonable determination of any facts in light of the evidence presented. Neither has petitioner demonstrated that the trial court failed to follow any clearly established federal law with respect to his right to testify.

Despite Bester’s objection that the magistrate judge’s report and recommendation did not address his claim that trial counsel was ineffective for failing to request a no-adverse-inference instruction, the district court adopted the report, agreed with the recommendation, and denied Bester’s § 2254 petition. This Court granted Bester a certificate of appealability on the following issue:

Whether [Bester’s] trial counsel rendered ineffective assistance of counsel by failing to request a no-adverse-inference jury instruction regarding petitioner’s right not to testify. See Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981).

IY.

We review de novo a district court’s denial of a § 2254 petition. Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1330 (11th Cir. 2013). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court cannot grant habeas relief on a claim adjudicated on the merits in state court unless the state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In this case, it appears that none of the state courts adjudicated on the merits Bester’s claim that trial counsel was ineffective for failing to request the no-adverse-inference instruction.

“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits' — but that presumption can in some limited circumstances be rebutted.” Johnson v. Williams, 568 U.S. -, 133 S.Ct. 1088, 1096, 185 L.Ed.2d 105 (2013). For example, the Supreme Court suggested in Johnson that “[w]hen the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to an unencumbered opportunity to make his case before a federal judge.” Id. at 1097; Childers v. Floyd, 736 F.3d 1331, 1334 (11th Cir. 2013) (en banc) (“To determine whether the presumption has been rebutted, we look to the state court’s decision and the record in the case to determine whether the evidence leads very clearly to the conclusion that the federal claim was inadvertently overlooked in state court.”) (footnote, quotation marks, and alteration omitted). The presumption has been rebutted in this case.

The Alabama Court of Criminal Appeals, while permitting Bester to proceed pro se, rejected his pro se brief — not the arguments in his brief, but the brief itself — and considered only the claims that his (dismissed) habeas counsel had raised, which did not include a claim of ineffective assistance for failing to request a no-adverse-inference instruction. While the state appellate court may not have “inadvertently overlooked” Bester’s claim, it did not adjudicate the claim on the merits either. See Johnson, 133 S.Ct. at 1097. Neither did the state trial court.

In the state collateral proceeding, the trial court acknowledged Bester’s claim that trial counsel was ineffective for failing to request a no-adverse-inference instruction. But the reason for its denial of the claim, paradoxically, was that the trial court had not had the opportunity to decide whether to give the instruction because counsel had not requested it. Which was the point of the ineffective assistance of counsel claim, a point that the state court’s circular reasoning missed. In the terms of the Johnson decision, the state trial court “inadvertently overlooked” the actual claim, failing to rule on the merits of it. Johnson, 133 S.Ct. at 1097. We therefore must decide the claim de novo. See id. at 1096.

y.

The Supreme Court has held that “a criminal trial judge must give a ‘no-adverse-inference’ jury instruction when requested by a defendant to do so.” Carter, 450 U.S. at 300, 101 S.Ct. at 1119. The right to such an instruction is necessary to protect “[t]he freedom of a defendant in a criminal trial to remain silent unless he chooses to speak in the unfettered exercise of his own will.” Id. at 305, 101 S.Ct. at 1121 (quotation marks omitted). That is because “the failure to limit the jurors’ speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of the privilege.” Id. (emphasis added). But the Supreme Court has also said in dicta that “[i]t may be wise for a trial judge not to give [a no-adverse-inference jury] instruction over a defendant’s objection.” Lakeside v. Oregon, 435 U.S. 333, 340, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319 (1978). Neither the Supreme Court nor this Court has ever held that a trial court must give a no-adverse-inference instruction if one is not requested. Nor has either court held that it is ineffective assistance of counsel not to request such an instruction.

Bester raises that ineffective assistance claim, contending trial counsel was ineffective for failing to request a no-adverse-inference instruction. To establish his claim of ineffective assistance, he must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel performs deficiently if “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690,104 S.Ct. at 2066. A counsel’s deficient performance prejudices the defense if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. “Because both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (citation omitted). We will take advantage of that option and forego deciding whether trial counsel performed deficiently by not requesting the no-adverse-inference instruction. We can skip over that issue because Bester has not established a reasonable probability that the result of his proceeding would have been different if the instruction had been requested and given.

Bester argues that the evidence that he possessed cocaine and drug paraphernalia was “not overwhelming” and that the jury’s questions about the small white plastic bag show that it had doubts about whether he possessed the items inside it. He relies heavily on this Court’s decision in United States v. Burgess, 175 F.3d 1261 (11th Cir. 1999). In that case, the defendant requested a no-adverse-inference instruction but the district court failed to give it. Id. at 1263-64. While deliberating, the jury asked the court for further instruction about the law on Burgess’ defense of entrapment and stated that “[t]here is some reasonable doubt that the Defendant would have [committed the crime] if the police did not send [him an email], is this nothing more than the Govt. offering an opportunity.” Id. at 1268. In the end the jury convicted Burgess. Id. at 1264. On direct appeal we reversed his convictions because the evidence against Burgess was not overwhelming, especially in light of the jury question explicitly stating that it had reasonable doubt about the sufficiency of the evidence on the entrapment issue. Id. at 1267-69.

Bester’s reliance on the Burgess decision is misplaced. Even if the facts in this case were identical to those in Burgess (which they are not), the Burgess decision would not establish that Bester has shown the necessary prejudice because that case and this one are governed by different burdens of persuasion and different prejudice standards. In Burgess we held that the district court’s failure to give a no-adverse-inference instruction when the defendant had requested one is constitutional error, id. at 1265-66, a “classic trial error,” id. at 1266 (quotation marks omitted), subject to “constitutional harmless error” review. Id. at 1267. And “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The government, not the defendant, bears the burden of establishing that a constitutional error is harmless. What the Burgess decision holds is that where the evidence against the defendant was not overwhelming and, after all of the evidence was in, the jury stated it had a reasonable doubt about guilt, the government has not carried its burden of proving beyond a reasonable doubt that the failure to give the instruction was harmless. Burgess, 175 F.3d at 1267-69.

Bester, on the other hand, has asserted a claim of ineffective assistance in a § 2254 proceeding, so the burden on the prejudice or harm issue is on the other side of the courtroom. The state does not have the burden of showing that any error was harmless beyond a reasonable doubt, or harmless by any standard at all. Instead, Bester has the burden of establishing prejudice under the Strickland standard. See Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1256 (11th Cir. 2012) (“To succeed on his ineffective assistance of counsel claim, [the petitioner] has the burden of showing [deficient performance and prejudice] under Strickland.”). He must show that there is a “reasonable probability that, but for counsel’s [claimed] unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Bester has not carried his burden of showing prejudice. The evidence against him was overwhelming and the jurors’ mid-trial questions did not show that they had doubts about this guilt. Sergeant French testified that she saw Bester and a companion carrying the white grocery bag and the black suitcase from his house to the truck, and both Sergeant French and Deputy Eaton testified that they saw Bes-ter carrying the small white grocery bag from the truck to his mother’s apartment. Bester’s mother gave the officers a written statement that Bester had brought a white bag into her house and placed it behind the boombox, where the officers found the small white grocery bag. In addition to Bester’s mother’s written statement, three officers testified that she had told them that her son had brought a small white grocery bag into her apartment. That bag contained digital scales, a bag of powder cocaine, and a bag of crack cocaine.

As for the black suitcase, Deputy Eaton found it in the bed of the truck Bester was riding in when the police pulled him and his companions over. Deputy Eaton’s K-9 partner Pepsi indicated the presence of drugs in the black suitcase. The suitcase contained “an ash tr[a]y, a pill splitter, three syringes, small pieces of torn off Brillo pad, [and] a burn push rod, typical of use in a crack pipe,” which Deputy Eaton testified were items “commonly used for the injection of drugs.” And Deputy Eaton testified that Bester had admitted that the suitcase was his. There was no evidence to refute or cast doubt on any of that testimony.

Bester relies on the questions that several jurors asked during the trial about the small white grocery bag that he carried into his mother’s apartment. He would have us believe those questions show that the jury had “doubts about the evidence.” We are not persuaded. Questions that the jury as a whole sends to the judge during deliberations may indicate some doubt about the strength of the evidence, as they did in the Burgess case. But in the unusual trial where individual jurors are permitted to submit questions to clarify testimony while a witness is still on the stand, juror questions will seldom indicate that the jury has doubts about guilt. First, the questions come from individual jurors and not the jury as a whole. Second, when a question is allowed by the judge and answered by the witness, the answer may well resolve any concern or doubt that the juror had. Third, even if a question indicated some doubt in an individual juror’s mind at that point in the trial, there is no way to know whether that doubt survived the presentation of other evidence, the judge’s closing instructions to the jury, and the arguments of counsel. In this case, the most that the jurors’ questions show is that at least some of them were paying attention to the trial evidence and conscientiously attempting to clarify any ambiguities in the evidence while they had the opportunity to do so.

In light of the overwhelming evidence of his guilt, Bester has not carried his burden of showing that the jury inferred his guilt because of the lack of a no-adverse-inference instruction. He has not shown a “reasonable probability that ... the result of the proceeding would have been different” if counsel had requested and the court had given a no-adverse-inference instruction. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

VI.

At oral argument Bester asserted that he was entitled to an evidentiary hearing on this claim. A hearing might arguably be relevant to the performance deficiency issue in an ineffective assistance of counsel claim. But see Harrington v. Richter, 562 U.S. 86, 109, 131 S.Ct. 770, 790, 178 L.Ed.2d 624 (2011) (“The Court of Appeals erred in dismissing strategic considerations ... as an inaccurate account of counsel’s actual thinking .... Strickland ... calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.”); Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc) (“The reasonableness of a counsel’s performance is an objective inquiry. And because counsel’s conduct is presumed reasonable, for a petitioner to show that the conduct was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel did take.”) (footnotes and citations omitted). We have, however, skipped over the deficiency issue and affirmed the denial of the claim because of Bester’s failure to show prejudice. It is difficult, if not impossible, to imagine any facts outside the record that are relevant to the question of whether there is a reasonable probability of a different result if a particular jury instruction had been given. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) (explaining that, in an ineffectiveness case involving the alleged failure of counsel to discover or present potentially exculpatory evidence, the prejudice inquiry “will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial”). Bester has not proffered any facts that would be relevant to that issue in this case. That is enough, by itself, to rule out an evidentiary hearing.

And there is another reason to do so. Absent certain exceptions not applicable here, a federal court may not hold an evidentiary hearing in a § 2254 proceeding if the applicant failed to develop the factual basis for the claim in state court proceedings. 28 U.S.C. § 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 430, 120 S.Ct. 1479, 1487, 146 L.Ed.2d 435 (2000) (“If the prisoner has failed to develop the facts, an evidentiary hearing cannot be granted unless the prisoner’s case meets the other conditions of § 2254(e)(2).”). Bester has offered no justification for his failure during the evidentiary hearing held in the state collateral proceeding to develop whatever facts he thinks may be relevant to the prejudice issue. He is not entitled to another shot at it in federal court. See 28 U.S.C. § 2254(e)(2).

AFFIRMED.

      . At trial Bester's mother denied telling the officers that Bester had put the small white grocery bag in the bedroom, saying that Bes-ter’s companion was the one who had put it there. The State impeached her denial with her written statement.