author: PER CURIAM:

text:
    Pedro HERNANDEZ-ALBERTO, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
    No. 14-14092
    United States Court of Appeals, Eleventh Circuit.
    (November 4, 2016)

      Linda McDermott, McClain & McDer-mott, PA, Wilton Manors, FL, for Petitioner-Appellant.
    Timothy A. Freeland, Attorney General’s Office, Criminal Division, for Respondents-Appellees.
    Before ED CARNES, Chief Judge, ROSENBAUM, and JILL PRYOR, Circuit Judges.
   PER CURIAM:

In this appeal, we consider whether, for purposes of federal habeas law, a Florida postconviction petition properly filed by a death-row prisoner claiming incompetency remains pending through the final resolution of the postconviction proceedings despite the state court’s having found the prisoner competent before the end of those proceedings. We hold that it does and conclude that the prisoner’s federal habeas petition was timely filed.

I.

A.

In 2002,. Petitioner-Appellant Pedro Hernandez-Alberto was sentenced to death by a Florida court, following his convictions, for murdering two of his wife’s daughters. Hernandez-Alberto v. State, 889 So.2d 721, 724-25 (Fla. 2004). Hernandez-Alberto’s conviction became final on May 9, 2005, when he failed to file a petition for writ of certiorari with the United States Supreme Court despite having been given an extended window to do so.

After 308 days elapsed, on March 10, 2006, Hernandez-Alberto filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. See Hernandez-Alberto v. State, 126 So.3d 193, 199 (Fla. 2013) (“Collateral Appeal”). Hernandez-Alberto did not sign the motion under oath, as required at the time by Rule 3.851(e)(1). See id. at 199, 200-01. But on March 13, 2006, HernandeznAlberto’s attorney filed a motion requesting a competency determination under Rule 3.851(g) that, under the rules, replaced the signed oath required by Rule 3.851(e)(1). Id.; see Fla. R. Crim. P. 3.851(g)(2). All parties agree that when the competency motion was filed, Hernandez-Alberto’s postconviction petition was properly filed under Florida law.

The state court appointed experts who evaluated Hernandez-Alberto and testified at a competency hearing. Collateral Appeal, 126 So.3d at 201. On June 3, 2008, the state court ruled that Hernandez-Alberto was competent to continue with his post-conviction proceedings, a ruling it confirmed by denying reconsideration on July 15, 2008. See id. The state court provided Hernandez-Alberto sixty days to file the verification required by Rule 3.851(e)(1). Id. He did not do so.

At an October 2008 status hearing, Hernandez-Alberto stated his desire to dismiss his collateral counsel and represent himself. Id. The state court conducted a Faretta inquiry and found that Hernandez-Alberto “knowingly, intelligently, and voluntarily dismissed [his counsel] and chose to represent himself.” Id.

On October 30, 2008, the court dismissed without prejudice the petition filed by counsel and permitted Hernandez-Alberto to file a pro se petition within sixty days, a deadline that it subsequently extended another sixty days. Id. But before expiration of the deadline, the state court concluded that, while legally competent to proceed, Hernandez-Alberto was not competent to represent himself, citing Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). Id. at 201-02. So the state court reappointed collateral counsel for Hernandez-Alberto on January 12, 2009, and gave counsel ninety days to file an amended petition. See id. at 202. The amended petition was timely filed but again without Hernandez-Alberto’s signature, on March 18,2009. See id.

In April 2009, Hernandez-Alberto’s counsel was granted an extension of time to obtain his client’s signature, but by June 2009, counsel conceded that Hernandez-Alberto was unlikely to ever sign his petition. See id. The court again, at counsel’s request, appointed experts to evaluate Hernandez-Alberto’s competency. Id. After hearing testimony from the experts at a second competency hearing in June 2010, the court again found Hernandez-Alberto competent to proceed. Id.

After the second finding of competency, Hernandez-Alberto persisted in his refusal to sign his amended postconviction petition. Id. The court dismissed the petition without prejudice on August 17, 2010, giving Hernandez-Alberto another sixty days to file a properly verified postconviction petition. Id. Hernandez-Alberto failed to do so, and on November 1, 2010, the trial court dismissed his petition with prejudice. Id. at 203.

Hernandez-Alberto sought review of the trial court’s dismissal of his petition and its competency determinations in the Florida Supreme Court. See id. at 199. In an opinion issued July 3, 2013, the Florida Supreme Court upheld both the competency finding and the dismissal of the petition. See id. at 199-208; id. at 210 (“[W]e affirm the trial court’s determination that Hernandez-Alberto was competent to proceed with postconviction litigation and the order dismissing his postconviction motion with prejudice for failing to'file a facially sufficient motion.”). Rehearing was denied, and the Florida Supreme Court’s mandate issued on December 2, 2013.

B.

On January 21, 2014, Hernandez-Alberto filed a federal habeas petition under 28 U.S.C. § 2254 in the Middle District of Florida. The district court ordered the state to address the timeliness of Hernandez-Alberto’s federal petition.

In response, the state argued that Hernandez-Alberto’s federal petition was time barred under the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). In the state’s view, Hernandez-Alberto ceased to have a properly filed application for post-conviction relief pending in state, court once the state trial court deemed Hernandez-Alberto competent and he refused to sign his petition—as of July 15, 2008, or at the very latest, when the state court first dismissed the unsigned petition without prejudice in October 2008. So the remaining 57 days of the one-year AEDPA limitations period would have expired, at the latest, in December 2008, well before Hernandez-Alberto filed his federal petition in January 2014.

The district court agreed with the reasoning proffered by the state, finding “no ‘properly filed’ application for postconviction relief pending” as of the trial court’s first competency finding in July 2008, and concluding that the AEDPA clock ran out in December 2008 at the latest. In reaching this conclusion, the district court highlighted language in the Florida Supreme Court’s opinion affirming the dismissal with prejudice of the postconviction motion “for failing to file a facially sufficient motion.” The district court also rejected the notion "that the extended deadlines given to Hernandez-Alberto to file a verified petition or the amended petition filed by counsel in March 2009 could toll the AEDPA limitations period on the basis that extensions of time do not toll the clock, and after the clock expired in December 2008, nothing was left to toll in March 2009. For these reasons, the district court denied the federal petition as untimely.

This Court granted Hernandez-Alberto a certificate of appealability on several questions, including the following:

Was Hernandez-Alberto’s state postcon-viction petition no longer properly filed and pending, for the purposes of 28 U.S.C. § 2244(d)(2), after the state trial court’s first competency determination and dismissal with leave to amend in 2008, or did it remain properly filed and pending until the Florida Supreme Court issued its mandate on December 2, 2013, following its review of the dismissal of his state petition?

II.

We review de novo the district court’s dismissal of a § 2254 petition as untimely. Day v. Crosby, 391 F.3d 1192, 1193 (11th Cir. 2004).

III.

Under 28 U.S.C. § 2254, a state prisoner asserting that he is being held in violation of the Constitution or laws of the United States may, in federal court, challenge his incarceration. He must do so, though, within one year of his conviction’s becoming final, either on direct review or when the deadline for seeking direct review has expired. 28 U.S.C. § 2244(d)(1)(A). This limitations period is tolled, however, while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). '

The Supreme Court has instructed that an application is properly filed “when its delivery and acceptance are in compli-anee with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 (2000). And an application remains pending until it “has achieved final resolution through the State’s post-conviction procedures.” Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); see also Lawrence v. Florida, 549 U.S. 327, 332, 127 S.Ct. 1079, 1083, 166 L.Ed.2d 924 (2007) (“State review ends when the state courts have finally resolved an application for state postconviction relief. After the State’s highest court has issued its mandate or denied review, no other state avenues for relief remain open.”).

Based on these guidelines, we conclude that Hernandez-Alberto’s federal petition was timely filed on January 21, 2014. We agree with the parties that Hernandez-Alberto’s state petition was “properly filed” as of March 13, 2006, when counsel filed a motion requesting a competency determination under Rule 3.851(g) that, under Florida’s rules, replaced the signed oath required by Rule 3.851(e)(1). Under Saffold, Hernandez-Alberto’s properly filed petition remained pending until it achieved “final resolution through the State’s post-conviction procedures.” Saffold, 536 U.S. at 220, 122 S.Ct. at 2138 (emphasis added). Hernandez-Alberto’s petition was not finally resolved until the Florida Supreme Court affirmed the competency determination and dismissal of the petition and issued its mandate on December 2, 2013. Since Hernández-Alberto filed his federal petition on January 21, 2014, the filing timely fell on the 50th day after his conviction became final, within the 57-day period remaining on the one-year AEDPA limitations period.

IV.

Florida advances two arguments for why statutory tolling does not save Hernandez-Alberto’s federal petition. First, the state contends that while Hernandez-Alberto’s petition may have initially met the filing requirements of Florida law, once the state court found him competent and he still refused to sign the petition, the petition ceased to be “properly filed.” Second, Florida asserts that even if properly filed, Hernandez-Alberto’s refusal to sign the petition after the finding of competency resulted in its “pending” status being withdrawn. Florida’s arguments do not comport with applicable law and precedent.

A.

Florida bases its first argument on Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). To understand Florida’s contention, we must review Pace, but to understand Pace, we begin with a prior case, Artuz.

In Artuz, the Supreme Court faced the question of whether a state petition was “properly filed” when it contained two claims that were procedurally barred by state law. 531 U.S. at 7, 121 S.Ct. at 363. The Supreme Court held that an application is “filed” “when it is delivered to, and accepted by, the appropriate court officer for placement into the official record.” Id. at 8, 121 S.Ct. at 363. The Court held that an application is “properly filed” “when its delivery and acceptance are in compliance with the applicable laws and rules governing filings,” including, for example, rules on form, timeliness, and filing fees. Id. at 8, 121 S-Ct. at 364.

In Pace, the Supremé Court confronted a question left open in Artuz: “[W]hether the existence of certain exceptions to a timely filing requirement' can prevent a late application from being considered improperly filed.” 544 U.S. at 413, 125 S.Ct. at 1811 (quoting Artuz, 531 U.S. at 8 n.2, 121 S.Ct. at 364 n.2). The Supreme Court answered the question in the negative, holding “that time limits, no matter their form, are ‘filing’ conditions” and that when a state court rejects an application for failing to satisfy that condition, the application was never “properly filed.” See id. at 417, 125 S.Ct. at 1814.

The prisoner in Pace filed a second state postconvietion petition that would have been untimely unless it fell within at least one of 'three exceptions to the state’s time limit. Id. at 410-11 & n.1, 125 S.Ct. at 1810 & n.l. The state court ultimately dismissed the state petition as untimély, finding, among other things, that Pace had neither alleged nor proven that his case fell within one of the exceptions. Id. at 411, 125 S.Ct. at 1810-11.

Pace then filed a federal § 2254 petition that would have been time barred absent any tolling of the AEDPA limitations period. Id. at 411-12, 125 S.Ct. at 1811. The district court concluded, though, that Pace’s second state petition had tolled the AEDPA deadline, reasoning that because the Pennsylvania statute “set up judicially reviewable exceptions t6. the time limit,” the deadline was not a necessary filing prerequisite. Id. at 412, 125 S.Ct. at 1811. The Third Circuit reversed, finding that the state time limit is a “condition to filing,” and that if the state petition is untimely, it could never have been properly filed. Id, .

In affirming the Third Circuit, the Supreme Court observed that “a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more ‘properly filed’ than a petition filed after a time limit that permits no exception.” Id. at 413, 125 S.Ct. at 1812. In rejecting Pace’s various arguments, the Supreme Court noted that it made no difference whether the condition to filing was “mechanical” or required judicial scrutiny; failing to meet a filing prerequisite meant the state petition was never properly filed in the first place. See id. at 414-16, 125 S.Ct. at 1812-13.

Florida attempts to liken the signature requirement in Rule 3.851(e)(1) to the Pennsylvania time limit discussed in Pace. In other words, the state draws an analogy between the Florida court’s determination that Hernandez-Alberto was competent and thus required to sign his petition, on the one hand, and the Pennsylvania court’s determination that no exceptions made Pace’s petition timely, on the other. Florida contends that signing the Rule 3.851 petition is a condition to filing, see Hurley v. Moore, 233 F.3d 1295, 1297-98 (11th Cir. 2000), and that competency is merely a “judicially reviewable exception” to the signature requirement.

We find Florida’s argument flawed. Unlike the time bar in Pace, Florida’s Rule 3.851(g) permitted counsel’s good-faith competency motion to take the place of Rule 3.851(e)(l)’s oath. Fla. R. Crim. P. 3.851(g)(2). So while in Pace a finding of untimeliness meant the petition was never properly filed, here, a finding of competency did not change the fact (conceded by the state) that Hernandez-Alberto’s initial petition—accompanied by the Rule 3.851(g) motion—was “in compliance with the applicable laws and rules governing filings” when it was delivered and accepted on March 13, 2006—in other words, was “properly filed”—regardless of the ultimate finding of competency. See Artuz, 531 U.S. at 8, 121 S.Ct. at 363-64.

The key takeaway from Pace is that an untimely application was not, and could not ever have been considered, properly filed. But here, Hernandez-Alberto’s petition was “properly filed,” and that status rests on counsel’s good-faith competency motion, not on the eventual outcome of the competency evaluations. Moreover, nothing in Pace supports the idea that a properly filed petition can “change” into an improperly filed one, and Florida has not pointed to any authority suggesting that such a transmogrification is possible. Cf. id. at 10, 121 S.Ct. at 364 (“The statute, however, refers only to ‘properly filed’ applications and does not contain the peculiar suggestion that a single application can be both ‘properly filed’ and not ‘properly filed.’ ”). Accordingly, Hernandez-Alberto’s petition was properly filed, and once a petition is properly filed, the inquiry shifts to how long that petition remained pending.

B.

Florida bases its argument that Hernandez-Alberto’s petition ceased pending, at the latest, in December 2008 on Saffold. In Saffold, the Supreme Court considered the meaning of “pending” in § 2244(d) within the context of California’s unique postcon-viction procedures. 536 U.S. at 217, 122 S.Ct. at 2136. The Court began its opinion by finding that in the usual state process, not unlike Florida’s, a prisoner’s petition remains pending “as long as the ordinary state collateral review process is ‘in continuance’—i.e., ‘until the completion of that process. In other words, until the application has achieved final resolution through the State’s post-conviction procedures, by-definition it' remains ‘pending.’” Id. at 219-20, 122 S.Ct. at 2138. The Supreme Court reached this conclusion, in part, by noting that requiring a prisoner to exhaust a full round of state collateral review “serves AEDPA’s goal of promoting ‘comity, finality, and federalism.’” Id. at 220, 122 S.Ct. at 2138 (quoting Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 1490, 146 L.Ed.2d 435 (2000)).

California, however, did not follow the usual pattern. Its postconviction process was unique in that, instead of requiring a prisoner to file a notice of appeal from a lower court’s denial of a collateral petition, it requires the prisoner to file an original habeas petition in the state supreme court. Id. at 221, 122 S.Ct. at 2139. California did not set a deadline for filing this original petition but merely required that it be filed within a reasonable time. Id. at 222, 122 S.Ct. at 2139. In applying AEDPA’s “pending” requirement in the context of California’s process, though, the Supreme Court found these distinctions unimportant, noting that California’s process essentially functioned as the appeals procedures in other states, and commenting that AEDPA demands a certain measure of deference or protection to the states’ post-conviction processes. Id. at 222-23, 122 S.Ct. at 2139-40.

The Supreme Court acknowledged, however, that California’s indeterminate reasonableness standard could make it more difficult for a federal court to apply § 2244(d)’s tolling provisions. Id. at 223, 122 S.Ct. at 2139. The Court remanded Saffold’s case to determine whether his delay was unreasonable. Id. at 225-227, 122 S.Ct. at 2141. But while it was unclear whether Saffold, specifically, had unreasonably delayed filing his petition, the Court observed that if the state court had clearly ruled that the delay was unreasonable, the petition would not have been pending, for purposes of AEDPA tolling, during the period between when the intermediate court denied Saffold’s petition and he filed his original writ in the state supreme court. Id. at 225-26, 122 S.Ct. at 2141.

Florida seizes on this last observation to argue that a prisoner’s failure to comply with state procedural requirements after a dismissal can result in a petition’s “pending” status being withdrawn prior to completion of an appeal. The state contends that Hernandez-Alberto’s refusal to sign his petition after being found competent has an effect similar to the effect of a California prisoner’s failing to file a writ with the state supreme court in a reasonable time: lack of compliance with the procedural requirement results in “pending” status being withdrawn.

Assuming for our purposes that Florida is correct that Hernandez-Alberto was required to sign his petition after being found competent, Florida’s argument nevertheless goes astray because it conflates filing conditions with appellate procedural requirements. Saffold made clear that an application remains pending through completion of the state’s collateral appeals process. Id. at 219-20, 122 S.Ct. at 2138. Saffold suggests, at most, that if a prisoner fails to comply with appeal requirements, his petition may lose “pending” status for the period between when the lower court issued its decision and the higher court takes up or dismisses the appeal.

But the record in Hernandez-Alberto’s case includes no indication that Hernandez-Alberto failed to satisfy any appellate procedural requirements in appealing the trial court’s competency determination and its dismissal of his postconviction petition. Until the Florida trial court dismissed his petition with prejudice, Hemandez-Alber-to could not appeal those issues and resolve his postconviction proceedings. See, e.g., Christner v. State, 984 So.2d 561, 562 (Fla. 2d DCA 2008) (“[A]n unfavorable ruling on one or more postconviction claims with leave to amend is not an appealable, final order.”); Howard v. State, 976 So.2d 635, 636 (Fla. 5th DCA 2008) (holding that denial of a postconviction motion without prejudice and with leave to amend is not a final, appealable order). And AEDPA insists that we respect these procedural realities. See Saffold, 536 U.S. at 222-23, 122 S.Ct. at 2139.

When the court finally dismissed Hernandez-Alberto’s postconviction petition with prejudice in November 2010, Hernandez-Alberto timely appealed to the Florida Supreme Court, which considered his appeal on the merits. The postconviction process that began with his properly filed petition on March 13, 2006, was finally resolved with the issuance of the Florida Supreme Court’s mandate on December 2, 2013. See Lawrence, 549 U.S. at 332, 127 S.Ct. at 1083. For purposes of AEDPÁ, Hernandez-Alberto’s properly filed application was pending during this entire period. Saffold, 536 U.S. at 219-20, 122 S.Ct. at 2138.

V.

In conclusion, Hernandez-Alberto’s “properly filed application for State post-conviction or other collateral review” was pending from March 13, 2006, through December 2, 2013, tolling the deadline during this period for Hernandez-Alberto to file his federal habeas petition. As a result, Hernandez-Alberto’s federal petition, filed on January 21, 2014, was timely filed under AEDPA, within one year of untolled time of his conviction having become final. Accordingly, the judgment of the district court finding his petition time-barred is REVERSED. This case is REMANDED to the district court for proceedings consistent with this opinion.

      . In January 2015, Florida amended Rule 3.851(e)(1) to remove the requirement that a postconviction motion be verified under oath by the prisoner, requiring instead that an attorney merely certify that the motion was filed in good faith. See In re Amendments to the Florida Capital Postconviction Rules, 148 So.3d 1171, 1175, 1182 (Fla. 2014) (per curiam); see also In re Amendments to Florida Rule of Criminal Procedure 3.851, 156 So.3d 1036, 1036-37 (Fla. 2015) (per curiam). Nevertheless, because Hernandez-Alberto’s post-conviction proceedings occurred before these changes, all references to Rule 3.851 in this opinion concern the prior version of the rule.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The other two questions in the certificate of appealability addressed whether Hernandez-Alberto could overcome the time bar of § 2244(d) through equitable tolling or an actual-innocence-of-the-death-penalty exception. Because we conclude that Hernandez-Alberto’s federal petition was timely filed based on statutory tolling under § 2244(d)(2), we need not and do not reach these other avenues of avoiding the statute of limitations.


source: Caselaw Access Project

author: ROSENBAUM, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Brandon Lavantis HUGHES, Defendant-Appellant.
    No. 14-14181
    United States Court of Appeals, Eleventh Circuit.
    (November 4, 2016)

      Linda Julin McNamara, Arthur Lee Bentley, III, U.S. Attorney’s Office, Tampa, FL, Nicole M. Andrejko, Andrew C. Searle, U.S. Attorney’s Office, Orlando, FL, for Plaintiff-Appellee.
    Adeel Bashir, Federal Public Defender’s Office, Tampa, FL, D. Todd Doss, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender’s Office, Orlando, FL, for Defendant-Appellant.
    Brandon Lavantis Hughes, Pro Se.
    Before TJOFLAT, ROSENBAUM, and ANDERSON, Circuit Judges.
   ROSENBAUM, Circuit Judge:

Time may wait for no one, but the Speedy Trial Act clock does. Under the Speedy Trial Act of 1974, a federal criminal'trial must commence within seventy days after a defendant is charged or makes an appearance in court, whichever occurs later. 18 U.S.C. § 3161(c)(1). If it does not, the court must dismiss the indictment or information on motion by the defendant. Id. § 3162(a)(2). But significantly, the seventy-day Speedy Trial Act clock does not run continuously. Instead, much like a timeout in a football game momentarily halts the game clock, some pretrial events temporarily stop the running of the Speedy Trial Act clock.

Defendant-Appellant Brandon Lavantis Hughes’s appeal requires us to evaluate the effect on the Speedy Trial Act clock when a pretrial event that is not excluda-ble under the Act occurs during the pen-dency of an event that is. We find that the nonexcludable event does not affect the timeout from, the Speedy Trial Act clock required by the excludable event and deny Hughes’s challenge on this basis. We likewise find no merit to Hughes’s other arguments on appeal, so we affirm his conviction.

I. Background

A. The Underlying Offense

At 2:26 a.m. on November 25, 2011, the Seminole County Sheriffs Office received a 911 call from an anonymous person. The caller reported that a man standing outside of a Sanford County bar called The Spot had “cock[ed]” a gun and “put it to a couple of people’s heads.” According to the caller, the man had a “really big beard” and wore a black leather jacket, and his gun was long, silver, and western looking. The caller identified the man as “Brandon Hill” and reported that Brandon went by the nickname “Baby.”

The Sheriffs Office immediately transmitted the substance of the call to Sanford Police Sergeant Anthony E. Raimondo via its “Computer-Aided Dispatch” (“CAD”) system. Raimondo later testified that, when .he received the dispatch,.“[he] knew immediately that [the caller was] talking about Brandon Hughes” because he knew that Brandon Hughes went by the nickname “Baby” and “was standing in front of The Spot.” (emphasis added).

Already near The Spot, Raimondo arrived at the scene at 2:27 a.m. He instantly recognized Hughes standing in front of the bar. Hughes had a large bushy beard and was wearing a black jacket, but he was not wielding a gun or otherwise engaged in an altercation when Raimondo arrived. So Raimondo parked and approached Hughes.

As Raimondo neared, Hughes momentarily disappeared from Raimondo’s view, “fading back behind the southwest corner of'... ‘The Spot.’ ” Almost immediately, Hughes reappeared. When Raimondo greeted Hughes by name, Hughes, facing Raimondo, opened his jacket “like he was showing [Raimondo] something” and displayed his waistband, as though he were expecting Raimondo. Raimondo told Hughes that the Sheriffs Office “had a 911 call and that people were saying [Hughes] had a gun.” In response, Hughes invited Raimondo to check him. Raimondo conducted a cursory search of. Hughes’s outer garments and waistline, looking for the gun. But the search turned up empty.

While Raimondo was searching Hughes, Officer Geoff Field arrived on the scene. Raimondo told Field that Hughes had consented to a search and asked Field to perform a more thorough examination. In the meantime,' Raimondo stepped around the corner of The Spot to inspect the location into which Hughes had temporarily ducked moments earlier.

Just around the corner, Raimondo located a garbage can. The garbage can was in “exactly the same spot” where Hughes had disappeared. Raimondo observed that the lid of the- garbage can was slightly displaced. So he peered inside and saw “a silver revolver, western-style handgun on top of the refuse” in the can. Raimondo retrieved the gun from the can.

Then Raimondo questioned Hughes about the gun, Hughes told Raimondo that “he didn’t know anything about the gun, that it wasn’t his gun, and .,. denied all knowledge of it.” Raimondo and Field left without arresting Hughes.

Back at the Sanford Police station, the gun and the single bullet found inside it were stored as evidence,. On November 29, 2011, the gun and bullet were transferred to the Volusia Sheriffs Office. Two weeks later, on December 13, 2011, Jonathan Mott, a. Volusia County Sherriff s Office crime-scene investigator, processed the gun for fingerprints. Mott discovered two prints on the gun, photographed the prints, and provided the pictures to Cristal Bustamante, a Volusia County Sheriffs Office fingerprint technician.

On December 14, 2011, Bustamante ran the prints through' law enforcement’s Automated Fingerprint Identification System (“AFIS”). Though the system located no matches at that time, Bustamante again ran the revolver prints through AFIS almost a year-and-a-half later, on April 4, 2013. This time, the system identified “Brandon Lavantis Hughes” as a potential match. Bustamante pulled the fingerprint cards on Hughes and conducted, a side-by-side .comparison of them with the revolver prints. She concluded that the revolver prints belonged to Hughes.. A second technician reached the same conclusion.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) then took over the investigation. On February 25, 2014, law-enforcement officers found Hughes on the back porch of Nixon Bar— formerly, The Spot, and they interviewed him. Although Hughes admitted that his nickname was “Baby,” he denied having any knowledge of the gun or any memory of the 2011 encounter with Raimondo, even after the officers told Hughes his prints had been found on the gun.

On April 2, 2014, a federal grand jury charged Hughes, a twice-convicted felon, with one count of knowingly possessing a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Hughes was arrested the next day.

He appeared before a magistrate judge for his arraignment on April 4, 2014. The judge granted Hughes pretrial release on certain conditions, including that he refrain from using any narcotics, submit to drug testing, and abide by a curfew. The magistrate judge set trial for June 2, 2014.

B. The Pretrial Motions

On April 21, 2014, pretrial services and the government filed a joint petition contending that Hughes had violated his conditions of pretrial release and seeking a warrant for his arrest. A magistrate judge issued the warrant later that day. Hughes self-surrendered on April 23, 2014.

The next day, a magistrate judge held an initial detention hearing. The government orally moved the court to detain Hughes pending trial. Hughes’s attorney requested a continuance, and the magistrate judge granted the request, continuing the detention hearing to April 29, 2014. The magistrate judge did not make any factual findings or record any reasons for granting Hughes’s request for a continuance.

On April 29, 2014, the magistrate judge held a final detention hearing and granted the government’s motion. Subsequently, the district judge set trial for June 23, 2014.

On June 19, 2014, Hughes filed a motion to dismiss his indictment under the Speedy Trial Act, 18 U.S.C. § 3161, et seq. In support of his motion, Hughes relied on § 3161(h)(7)(A), which makes the period of delay resulting from a court’s granting of a continuance excludable under the Speedy Trial Act>—but only if the court “sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and defendant in a speedy trial.” Noting that the magistrate judge had not made an ends-of-justice finding in support of his decision to grant Hughes’s April 24, 2014, request for a continuance of the detention hearing, Hughes argued that the period between April 24, 2014, and April 29, 2014, continued to tick off the Speedy Trial Act clock. As a result, Hughes contended, the seventy-day Speedy Trial Act clock expired on June 13, 2014, and Hughes asked that his indictment be dismissed. The government opposed the motion.

The district court denied Hughes’s motion and concluded that the Speedy Trial Act clock would expire on June 23, 2014— the day trial was scheduled to commence. Relevant to this appeal, the district court reasoned that the nine-day period between April 21, 2014—when pretrial services and the government filed their petition seeking a warrant for Hughes’s arrest—and April 29, 2014, was excludable as pretrial-motion delay and as advisement delay under 28 U.S.C. § 3161(h)(1)(D), (H). The district court rejected Hughes’s argument that the six-day period from April 24 to 29 continued to count off the Speedy Trial Act clock under § 3161(h)(7)(A), holding that the period was automatically excludable as pretrial-motion delay. And even if a Speedy Trial Act violation had occurred, the district court opined, the appropriate remedy would have been dismissal without prejudice “because nothing about this particular case suggested] that the Government sought to delay trial at all, much less in bad faith.”

C. Jury Selection

During jury selection, the government struck Juror Number 3, the only African-American member of the venire. Hughes raised a Batson challenge to the government’s strike. In response to the court’s request for the government to provide a race-neutral reason for the strike, the government stated,

Okay. Your Honor, with respect to [Juror Number 3], he does have a prior burglary conviction. I do note that some of the other jurors do have some prior contacts with law enforcement; but with respect to [Juror Number 3], it was a serious crime, a felony. And I also note that three years after the conviction, "he was also violated for probation; but in addition to that, Your Honor, he did present some other issues.
When the Court first opened up questions in terms of whether or not jurors had issues, it did appear as though he gave a number of reasons which were somewhat inconsistent. Originally he stated that because he’s a car salesman, he needs to be present at his job in order to earn his salary, which is perfectly understandable, but then shortly thereafter he stated that there’s some neurological issues that he’s suffering from that he needs to address, which seemed to be somewhat inconsistent. So based upon that, the government does have some concerns about him,

The district court concluded that “the government ... demonstrated sufficient non-race-related reasons for the challenge exercised with respect to [Juror Number 3]” and overruled Hughes’s Batson challenge.

D. Evidentiary Objections at Trial

Hughes’s trial began on June 23, 2014, and lasted two days. Before jury selection, the government informed the judge that it would seek to introduce a November 26, 2011, CAD report (the “CAD Report”) as a business record. Hughes objected, asserting that the report contained hearsay and violated his rights under the Confrontation Clause of the Sixth Amendment, since Hughes had no opportunity to cross-examine the anonymous 911 caller documented in the CAD Report.

The trial court overruled Hughes’s objection. It determined that the CAD Report was admissible as an exception to the rule against hearsay, either as the 911 caller’s present sense impression or as an ordinary business record of the law-enforcement agency.

At trial, the government offered the revolver and ammunition into evidence. Hughes objected on chain-of-custody grounds. Specifically, Hughes argued that “there was a gap in the chain-of-custody from the time that the firearm was transported to the Volusia County Sheriffs Office to the time the government introduced the firearm at trial.” The district court eventually overruled the objection and admitted the firearm and ammunition into evidence.

E. The Jury Instructions

Following the close of the government’s case, Hughes exercised his Fifth Amendment right to remain silent. He likewise declined to present witnesses. The district court conducted a charge conference, proposing to issue the following instruction regarding false exculpatory statements:

You have heard testimony that the Defendant made certain statements outside the courtroom to law enforcement authorities in which the Defendant claimed that his conduct was consistent with innocence and not with guilt. The Government claims that these statements in which the Defendant exonerated or exculpated himself are false.
If you find that the Defendant gave a false statement in order to divert suspicion from himself, you may, but are not required to, infer that the Defendant believed that he was guilty. You may not, however, infer on the basis of this alone that. the Defendant is, in fact, guilty of the crime for which he is charged.
Whether or not the evidence as to the Defendant’s statements shows that the Defendant believed that he was guilty and the significance, if any, to be attached to such evidence are matters for you, the jury, to decide.

Hughes objected to the instruction, arguing that it was inappropriate in his case because, he had merely denied knowledge of the firearm and had not misled law enforcement. The trial court overruled the objection and issued the instruction.

F. The Appeal

At the close of deliberations, the jury returned a guilty verdict against Hughes, concluding that he had illegally possessed a firearm and ammunition in violation of the felon-in-possession statute,’ 18 U.S.C. § 922(g)(1). The district court sentenced Hughes to 57 months’ imprisonment, to be followed by 2 years’ supervised release.

■ Hughes now appeals on five- grounds. First, Hughes argues that the district court erred in denying his motion to dismiss his indictment under the Speedy Trial Act, Second, -Hughes contends that the district court wrongly overruled his Bat-son objection. Third, Hughes asserts that the district court should not have admitted into evidence the CAD Report and the firearm and ammunition. Fourth, Hughes challenges the instruction of the jury on false exculpatory statements. Finally, Hughes argues, “for purposes of preservation,” that the felon-in-possession statute, 18 U.S.C. § 922(g), is unconstitutional, facially and as applied.

II. Discussion

A. The Speedy Trial Act Claim

As we have noted, the Speedy Trial Act mandates that a criminal defendant’s trial commence within seventy days “from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1). When the clock is triggered by a defendant’s first appearance, the clock begins to run on the day after the defendant’s appearance. See United States v. Williams, 314 F.3d 552, 557 (11th Cir. 2002). If trial does not begin within seventy days, the defendant’s “information or indictment shall be dismissed on motion of the defendant.” Id. § 3162(a)(2).

But the Act enumerates certain periods of delay that do not count towards the seventy-day time limit, See id. § 3161(h). In this case, we need consider only whether the district court’s determination that the period between April 24 and 29 was excludable under the Act was correct. If so, trial commenced within the statutory period, and the district court properly denied Hughes’s motion to dismiss. But if the district court erred in excluding that six-day period, the Speedy Trial Act clock expired in this case before trial began, and the case should have been dismissed.

We review de novo a district court’s decision denying a defendant’s Speedy Trial Act motion, though we review for clear error the court’s factual determinations on excludable time. United States v. Mathurin, 690 F.3d 1236, 1239 (11th Cir. 2012).

We find that the period from April 24 to 29 is excludable under the Speedy Trial Act. Specifically, this period constitutes excludable pretrial-motion delay triggered by the government’s oral motion for Hughes’s detention. Under 18 U.S.C. § 3161(h)(1)(D), the filing of a pretrial motion stops the Speedy Trial clock until “the conclusion of the hearing on, or other prompt disposition of, such motion.” Id. Nor does the oral nature of the motion affect the rule’s applicability. Indeed, we have specifically held that “oral pretrial motions made on the record” trigger pretrial-motion delay under the Act. United States v. Broadwater, 151 F.3d 1359, 1361 (11th Cir. 1998).

And for motions that require hearings, excludable pretrial-motion delay encompasses “all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is reasonably necessary.” Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 1877, 90 L.Ed.2d 299 (1986) (internal quotation marks omitted). Excludable pretrial-motion delay for motions that require hear-mgs also encompasses the “time after a hearing on a motion but before the district court receives all the submissions by counsel it needs to decide that motion.” Id. The excludable period of delay ceases when the court has held the hearing and received all the submissions it reasonably expects; at that point, the motion is “under advisement,” and only 30 days thereafter may be excluded as advisement delay under 18 U.S.C. § 3161(h)(1)(H). See id. at 328-30, 106 S.Ct. at 1876-77.

Here, the government orally moved for Hughes’s detention at the April 24 hearing. The attorney representing Hughes requested that the hearing be continued so that Hughes’s primary counsel could “look into some of the allegations to see if there [was] a defense to any of the allegations or an explanation.” The magistrate judge granted the continuance -without making any findings. And, on April 29, 2014, the magistrate judge held a hearing on the government’s motion for detention and granted it.

Under a straightforward reading of § 3161(h)(1)(D), then, the period from April 24 to 29 constitutes automatically excludable pretrial-motion delay. The government’s oral motion triggered excludable pretrial-motion delay, and April 29 marked the conclusion of the excludable period of delay for three independent reasons: (1) the trial court “prompt[ly] dispos[ed] of’ the government’s motion on that day, 18 U.S.C. § 3161(h)(1)(D); (2) the conclusion of the April 29 hearing was the true “conclusion of the hearing” on the government’s motion, Henderson, 476 U.S. at 330, 106 S.Ct. at 1877; and (3) April 29 marked the point when “the district court receive[d] all the submissions by counsel it need[ed] to decide that motion” because the trial court continued the detention hearing to April 29 to permit Hughes’s primary counsel to contest the government’s motion, id.

We are not persuaded by Hughes’s argument to the contrary. Hughes contends that the period from April 24 to 29 is not excludable under the Act because he moved for a continuance of the detention hearing on April 24,.and the court made no finding before granting the continuance through April 29 that the ends of justice outweigh the best interests of the public and the defendant in a speedy trial. In support of his position, Hughes relies on 18 U.S.C. § 3161(h)(7)(A) and the Supreme Court’s decision in Bloate v. United States, 559 U.S. 196, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010).

Section 3161(h)(7)(A) specifies that “delay resulting from a continuance granted by any judge” is excludable delay “if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” But simply making such a finding does not satisfy the provision. Rather, § 3161(h)(7)(A) continues, “No such period of delay resulting from a continuance granted by the court ... shall be excludable under this subsection unless the court sets forth, in the record of the case ... its reasons” underlying its ends-of-justice findings. Id. Hughes contends that the magistrate judge’s failure , to make an ends-of-justice finding supported by on-the-record reasons renders the April 24-29 period non-excludable continuance delay.

We disagree. First, the text of the continuance provision on which Hughes relies belies his argument. As a general matter, § 3161(h)(7)(A) does not purport to trump the other paragraphs in § 3161(h). So where, as here, a period of delay arguably stems both from a continuance and from a pretrial motion, nothing in § 3161(h)(7)(A) indicates that that section supersedes § 3161(h)(1)(D) and renders non-excludable the otherwise-excludable pretrial-motion delay.

Second, nothing in Bloate alters our conclusion that § 3161(h)(7)(A) does not trump § 3161(h)(1)(D). In Bloate, the Supreme Court held that delay resulting from a district court’s order granting parties time to prepare and file pretrial motions is not automatically excludable pretrial-motion delay. Bloate, 559 U.S. at 203-207, 130 S.Ct. at 1351-54. Instead, only the actual filing of a pretrial motion triggers automatic pretrial-motion Speedy Trial Act clock stoppage. Id. at 206, 130 S.Ct. at 1353. Hughes’s case, however, involves the actual filing of a pretrial motion in the form of the government’s oral motion for detention. So Bloate is simply inapplicable.

Third, adopting Hughes’s construction of the Speedy Trial Act would superimpose a causation requirement over the Act’s delay provisions that the Supreme Court has already rejected as unworkable. Where delay “result[s] from” the filing of a pretrial motion, it is to be excluded from the Speedy Trial Act’s seventy-day clock. 18 U.S.C. § 3161(h)(1)(D). Here, the delay may reasonably be viewed as “resulting from” either the government’s oral pretrial motion or from Hughes’s request for a continuance. Under Hughes’s interpretation, the district court would have to engage in a proximate-cause analysis to determine whether the delay “resulted from” the pretrial motion or the continuance in order to determine whether it was ultimately excludable.

But the Supreme Court rejected that very approach in United States v. Tinklenberg, 563 U.S. 647, 131 S.Ct. 2007, 179 L.Ed.2d 1080 (2011). There, the Court held that § 3161(h)(1)(D) contains no causation requirement and that Congress did not intend for judges to determine whether a delay was “actually cause[d]” by a pretrial motion. Tinklenberg, 563 U.S. at 650-52, 131 S.Ct. at 2010-11, 2013. Instead, the Court held that § 3161(h)(1)(D) “stops the Speedy Trial clock from running automatically upon the filing of a pretrial motion irrespective of whether the motion has any impact on when the trial begins.” Id. at 653, 131 S.Ct. at 2012 (emphasis added). Notably, the Court rejected the imposition of a causation requirement, in part, to avoid the causal dilemma courts would face under Hughes’s interpretation—namely, what to do when a period of delay arguably results from excludable and nonex-cludable causes:

Moreover, what is to happen if several excludable and several nonexcludable potential causes of delay (e.g., pre-trial motions to take depositions, potential scheduling conflicts, various health examinations, etc.) coincide, particularly in multidefendant cases? Can the judge, motion by motion, decide which motions were responsible and which were not responsible for postponing what otherwise might have been an earlier trial date? And how is a defendant or his attorney to predict whether or when a judge will later find a particular motion to have caused a postponement of trial? And if the matter is difficult to predict, how is the attorney to know when or whether he or she should seek further postponement of the 70-day deadline?

Id. at 658, 131 S.Ct. at 2015. To sidestep that problem, the Supreme Court rejected a causal requirement under § 3161(h)(1)(D) in favor of an eminently more workable rule: the filing of a piretrial motion automatically stops the Speedy Trial clock until its resolution, regardless of whether it- “actually causes” any delay.

We therefore reject Hughes’s contention that the magistrate judge’s failure to make an on-the-record, ends-of-justice finding rendered the April 24-29 period non-ex-cludable. Instead, the government’s oral motion at the April 24 hearing automatically stopped the Speedy Trial clock until the court disposed of that motion on April 29. So Hughes’s trial timely commenced on the seventieth day after his first appearance, see 18 U.S.C. § 3161(c)(1), and we affirm the trial court’s denial of Hughes’s Speedy Trial Act motion.

B. The Batson Claim

Hughes argues that the trial court clearly erred in denying his Batson challenge to the government’s use of one of- its peremptory challenges to strike Juror Number 3, the only African-American in the venire. In géneral, “the Equal Protection Clause forbids 'the prosecutor to challenge potential jurors solely on account of their race.” Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986), Even a single peremptory strike that results from discriminatory intent violates the Equal Protection Clause. See Cochran v. Herring, 43 F.3d 1404, 1412 (11th Cir. 1995).

When a party accuses her opponent of violating Batson’s prohibition, a district court deploys a three-step process to adjudicate the claim:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, .if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Foster v. Chatman, — U.S. -, 136 S.Ct. 1737, 1747, 195 L.Ed.2d 1 (2016). We review a district court’s denial of a Batson challenge for “clear error,” United States v. Blackman, 66 F.3d 1572, 1575 (11th Cir. 1995), according the district court’s “determination on the ultimate question of discriminatory intent ..! great deference on appeal,” Greene v. Upton, 644 F.3d 1145, 1155 (11th Cir. 2011) (internal quotation marks omitted).

Here, the trial court apparently rejected Hughes’s Batson challenge at step 3. On appeal, however, Hughes challenges the trial court’s. decisions at Batson steps 2 and 3.

Regarding step 2, Hughes argues that the government failed to provide legitimate, race-neutral reasons for striking Juror Number 3. We do not agree.

“The reason given for the peremptory strike need not be a good reason,” and it can even be an “irrational, silly or superstitious reason, as long as it is not a discriminatory reason.” United States v. Steele, 178 F.3d 1230, 1235 (11th Cir. 1999). Here, the government explained that it struck Juror Number 3 because that juror had committed a felony and had violated the terms of his resultant probation. In addition, the government stated that it struck Juror Number 3 because he gave inconsistent answers during voir dire. Even if these could fairly be viewed as “irrational” or “silly” reasons, they were not facially discriminatory reasons. Therefore, we affirm the trial court’s decisión at Batson step 2;

As for Batson step 3, Hughes argues that other jurors had contacts with law enforcement but were not excluded; that the government failed to explain why Juror Number 3’s burglary conviction rendered him unfit for jury duty; that Juror Number 3’s inconsistent voir dire answers were not grounds to exclude him; and that the government’s proffered reasons did not rebut Hughes’s prima facie case. We have a different view.

At Batson step 3, “the district court’s determination concerning the actual motivation behind each challenged strike amounts to pure factfinding, and we will reverse only if the decision is clearly erroneous.” United States v. Walker, 490 F.3d 1282, 1291 (11th Cir. 2007). “A district court’s perception of an attorney’s credibility is an essential part of determining whether a proffered reason was pretextual.” Id. at 1293-94. “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” Madison v. Comm’r, Alabama Dep’t of Corr., 761 F.3d 1240, 1251 (11th Cir. 2014) cert. denied sub nom. Madison v. Thomas, — U.S. -, 135 S.Ct. 1562, 191 L.Ed.2d 649 (2015) reh’g denied, — U.S. -, 135 S.Ct. 2346, 191 L.Ed.2d 1004 (2015). Of course, a court may find intent to discriminate when the reason provided for striking a juror applies with equal force to a juror that the same party declined to strike, who is outside the protected group of the stricken juror. Parker v. Allen, 565 F.3d 1258, 1271 (11th Cir. 2009). But we do not view a party’s failure to strike “similarly situated jurors” as pretextual when “relevant differences” exist between the juror who was stricken and jurors who were not. Id.

Here, striking Juror Number 3 for his criminal background in a criminal case could well have been a race-neutral, reasonable trial strategy. See United States v. Crawford, 413 F.3d 873, 875 (8th Cir. 2005) (“A prior conviction is a race-neutral reason for dismissing a juror.”). And the fact that Juror Number 3 violated probation, resulting in repeated contact with law enforcement and the courts, distinguishes him from Hughes’s proffered comparator jurors and supports the government’s contention that it struck Juror Number 3 out of a concern over his prior contact with law enforcement. “The trial judge’s decision on [the] ultimate question of discriminatoiy intent represents a finding of fact of the sort accorded great deference on appeal,” United States v. Folk, 754 F.3d 905, 914 (11th Cir. 2014) (internal quotation marks and alterations omitted) cert. denied, — U.S. -, 135 S.Ct. 1006, 190 L.Ed.2d 879 (2015). On this record, we can find no clear error in the district court’s factual determination that the government did not strike Juror Number 3 for discriminatory reasons.

C. The Evidentiary Objections

Hughes argues that the district court erred in admitting into evidence (1) the firearm and ammunition and (2) the CAD Report. We are not persuaded.

In general, we review a district court’s evidentiary rulings for an abuse of discretion. United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). However, “[w]e review de novo the question of whether hearsay statements are ‘testimonial’ for purposes of the Confrontation Clause.” United States v. Lamons, 532 F.3d 1251, 1261 n.15 (11th Cir. 2008).

With regard to the firearm and ammunition, Hughes asserts that the district court should have precluded their admission because of “cumulative gaps in the chain-of-custody.” However, gaps in the chain of custody bear on only the weight of the evidence, not its admissibility. United States v. Roberson, 897 F.2d 1092, 1096 (11th Cir. 1990). As a result, Hughes’s challenge on this basis fails. See United States v. Lopez, 758 F.2d 1517, 1521 (11th Cir. 1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 789, 88 L.Ed.2d 767 (1986).

As for the CAD Report, Hughes argues that the district court abused its discretion in admitting it into evidence because it contained “testimonial” statements by the 911 caller in violation of Hughes’s rights under the Confrontation Clause. The Sixth Amendment’s Confrontation Clause guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause - prohibits the introduction of “[t]estimonial statements of witnesses absent from trial” unless “the declarant is unavailable, and ... the defendant has had a prior opportunity to cross-examine” the witness. Id. at 59, 124 S.Ct. at 1369. The admission of an absent witness’s nontestimonial statements, on the other hand, does not run afoul of the Confrontation Clause. Id. at 68, 124 S.Ct. at 1374.

In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Supreme Court elaborated on the differences between nontestimonial and testimonial statements to the police.

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an. ongoing emergency. They are testimonial when the circumstances objectively indicate .that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution

Id. at 822, 126 S.Ct. at 2273-74. In Davis, for instance, the Supreme Court held that a 911 caller’s statements to a 911 Operator were nontestimonial for several reasons: (1) “the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to .establish or prove some past fact, but to describe current circumstances requiring police assistance”; (2) the caller was “speaking about events as they were actually happening, rather than describing past events”; (3) a 911 caller is usually facing an “ongoing emergency”; and (4) the statements elicited by the operator “were necessary to be able to resolve the present, emergency, rather than simply to learn ... what ... happened in the past.” Id. at 827, 126 S.Ct. at 2276 (emphasis in original). From these attributes, the . Supreme Court “conclude[d] ,.. that the circumstances of [the 911 call] objectively indicate[d] its primary purpose was to enable police assistance to meet an ongoing emergency. [The caller] simply was not acting as a witness; she was not testifying.” Id. at 828, 126 S.Ct. at 2277 (emphasis in original). So the Court held that the statements at issue in Davis were nontestimonial and properly admitted. Id.

Here, for exactly the same reasons, the 911 caller’s statements contained in the CAD Report were nontestimonial. Even Hughes acknowledges that, “[a]dmit-tedly, the testimony at trial established that the primary purpose of a CAD report ordinarily is ‘to provide information to the officers who are responding in the field in realtime to allow them to address whatever ongoing emergency is being reported.’ ” Nor does Hughes contend that the CAD Report in his case is unique, or that the 911 caller’s statements themselves were somehow unrelated to the CAD Report’s primary purpose of assisting officers who were responding to an ongoing emergency. Put simply, Hughes fails to distinguish the 911 caller’s statements in this case from those in Davis in any way whatsoever.

' For these reasons, we hold that the trial court did not err in admitting either the firearm and ammunition or the CAD Report.

D. False-Exculpatory-Statements Jury Instruction

Next, Hughes argues that the district court committed' reversible error by issuing a false exculpatory statements jury instruction. We generally review jury instructions challenged in the district court de novo in order “to determine whether the instructions misstated the law or misled the jury to the prejudice of the objecting party.” United States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012). But where, as here, a party raises an argument regarding jury instructions for the first time on appeal, we review the district court’s issuance of that instruction for plain error. United States v. Solomon, 856 F.2d 1572, 1577 (11th Cir. 1988).

At trial, Hughes objected to the false-exculpatory-statements instruction on the grounds that he had merely denied knowledge of the firearm and had not misled law enforcement, so it was inappropriate to give the challenged instruction in his case. For the first time on appeal, however, Hughes contends that “there [was] no basis under this Court’s precedent to instruct the jury to draw negative inferences from his purported false exculpatory statements” because he invoked his Fifth Amendment right against self-incrimination and chose not to testify. He bases his argument on United States v. Brown, 53 F.3d 312 (11th Cir. 2005), which he characterizes as holding that “only” a defendant who testifies runs a substantial risk of bolstering the Government’s case. Because Hughes did not raise the argument he now presses on appeal at trial, we review for plain error.

To establish plain error, “a defendant must show there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Evans, 478 F.3d 1332, 1338 (11th Cir. 2007). Only if all three requirements are satisfied may we exercise our discretion to recognize a forfeited error, but we may do so “only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

Hughes fails to meet the error prong of the plain-error test. Contrary to Hughes’s assertion, we did not hold in Brown that “only” a defendant who testifies may have his false exculpatory statements held against him. In fact, despite Hughes’s quotation of the word “only” in his citation to Brown, that word does not even appear in the language that Hughes relies on from Brown. Instead, in Brown, we merely observed that defendants are not obliged to take the stand and that those who do run the risk of bolstering the government’s case. 58 F.3d at 314.

We have, however, held that “a statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of the defendant’s guilt.” United States v. McDowell, 250 F.3d 1354, 1367 (11th Cir. 2001). And this principle applies equally to false exculpatory statements made pre-trial and false exculpatory statements made on the stand. See id.; United States v. Alejandro, 118 F.3d 1518, 1521 (11th Cir. 1997) (“The jury could also properly consider appellant’s false exculpatory statements upon his arrest as substantive evidence of his guilty intent.”). So we find no merit to Hughes’s argument that the jury could not consider his pre-trial, false-exculpatory statements as substantive evidence of his guilt because he chose not to take the stand.

E. Hughes’s Constitutional Challenge

Hughes’s final argument on appeal is that 18 U.S.C. § 922(g)—the statute under which he was convicted—is unconstitutional, facially and as applied, in two respects. First, Hughes argues that the felon-in-possession statute is unconstitutional because it fails to limit commerce to “interstate commerce.” Second, Hughes argues that the statute is unconstitutional because Congress exceeded its power under the Commerce Clause in enacting the statute.

We generally review the constitutionality of a statute de novo. United States v. Cespedes, 151 F.3d 1329, 1331 (11th Cir. 1998). But where, as here, a party raises a constitutional challenge for the first time on appeal, our review is limited to “plain error.” United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005).

In this case, however, as Hughes acknowledges, we have previously rejected both of his arguments and are bound by those decisions. See United States v. Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997); United States v. McAllister, 77 F.3d 387, 389 (11th Cir. 1996). As a result, we do not overturn Hughes’s conviction on this basis.

III. CONCLUSION

For the reasons stated above, we affirm Hughes’s conviction.

AFFIRMED.

      . Neither party explains the delay between when Bustamante ran the prints through AFIS in 2011 and when she ran them through AFIS in 2013. Nor does the record reveal why the delay occurred or what prompted Busta-mante to run the 'prints a second time, other than a brief reference to the fact that an investigator requested the analysis a second time.

      . Title 18 U.S.C. § 922(g)(1) reads as follows:
      (g) It shall be unlawful for any person—
      (I) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ...
      to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

      . In addition to pretrial-motion delay and continuance delay, the Speedy Trial Act provides that “delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court" shall not be counted towards the seventy-day Speedy Trial clock. 18 U.S.C. § 3161(h)(1)(H).

      . The Speedy Trial Act provides that a court should consider the following factors when determining whether to dismiss a case with or without prejudice: "the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” 18 U.S.C. § 3162(a)(2).

      . When the Seminole County Sheriffs Office receives a 911 call, the conversation is automatically recorded. The Sheriff Office's CAD system automatically gleans information about the call and pulls that data into the CAD system. In addition, as the call-taker starts interviewing the caller, the call-taker types information obtained from the caller directly into the CAD system, which records and relays the new information in real time. The CAD information is, at some point, fed to a “dispatcher” who dispatches a law-enforcement unit to the scene. The CAD information is relayed to the officers via the “My CAD system,” and, even as the officers respond to the call, new information input into the CAD system by the original call-taker is relayed to the officers in real time. Besides facilitating 911 responses, as relevant here, the CAD system serves a recordkeeping function. The Sheriff’s Office retains the data that is entered into the CAD system for each particular call “for up to -15 years”—far longer than the six months- it keeps recordings of 911 calls— because the CAD data takes up less space on the Office’s server. Printouts for any given call are called “CAD reports.”

      . Hughes has abandoned his position in the district court that the Speedy Trial Act clock expired on June 13. He currently asserts that the clock ran out on June 18. As a result, the differences in the Speedy Trial Act calculations of Hughes, the government, and the district court, which vary in respects other than those regarding the April 24-29 period, do not affect the determination of whether a violation of the Act occurred.

      . The trial court excluded the period from April 24-29 as part of a larger exclusion of the period from April 21-29, 2014. As the Government concedes, though, the period from April 22-23 was not excludable. On April 21, the government and pretrial services filed a petition seeking Hughes’s arrest for violating his pretrial release conditions, but the court granted the petition that day. So the petition for Hughes's arrest stopped the Speedy Trial Act clock for pretrial motion delay and advisement delay for that day only, and the clock began to run again the next day. See 18 U.S.C. § 3161(h)(1)(D), (H). As a result, April 22-23 should not have been excluded. This error, however, is not enough without the addition of the April 24-29 period to render the commencement of Hughes’s trial untimely under the Speedy Trial Act.

      .In Broadwater, we held that "oral pretrial motions made on the record” triggered pretrial motion delay under 18 U.S.C. § 3161(h)(1)(F). Id. at 1366. When Broadwater was decided, § 3161(h)(1)(F) provided that "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion” did not count towards the seventy-day clock. 18 U.S.C. § 3161(h)(1)(F) (1994). That language has been moved to subsection (h)(1)(D). See 18 U.S.C. § 3161(h)(1)(D) (2012).

      . Tide 18, United States Code, § 3142(f)(2) provides that the court may continue a detention hearing for a period of up to five business days upon, among other occurrences, a motion by a defendant to do so. Nothing in that provision requires the court to state, or even to have, any reasons for granting the continuance unless the court grants a continuance that lasts longer than five business days. In that case, "good cause” must exist. See id.

      . Though the district court did-not explicitly rule on Batson step 1, we interpret its request for race-neutral reasons from the government as an implicit’ ruling that Hughes met Batson step 1. See United States v. Campa, 529 F.3d 980, 998 (11th Cir. 2008) (construing the district court's decision to require the government to give race-neutral explanations for its peremptory challenges as an implicit decision that Batson step 1 was met).


author: MCCONNELL, District Judge.

text:
    IN RE: Richard D. CRAWFORD, Debtor. Premier Capital, LLC, Plaintiff, Appellee, v. Richard D. Crawford, Defendant, Appellant.
    No. 16-1285
    United States Court of Appeals, First Circuit.
    October 25, 2016

      Émily C. Shanahan, with whom Mark S. Furman, John D. Finnegan, and Tarlow, Breed, Hart & Rodgers, P.C., Boston, MÁ, were on brief, for appellant.
    Douglass C. Lawrence, Dover, MA, with whom Thomas H. Curran, Peter Antonelli, and Curran Antonelli, LLP were on brief, for appellee.
    Before THOMPSON and BARRON, Circuit Judges, and MeCONNELL, District Judge.

       Of the District of Rhode Island, sitting by designation.

   MCCONNELL, District Judge.

A bankruptcy court denied Richard D. Crawford’s petition for bankruptcy, in part, because Crawford omitted the existence of his Cash Balance Plan (“CBP”), a retirement account, from his Schedule B filing. While Crawford omitted the existence of the account, he disclosed the account’s value through inclusion with a second retirement account, a 401(k). On appeal, this Court considers whether omitting an asset’s name but including the asset’s value on a Schedule B form clears the materiality threshold for a false oath claim under 11 U.S.C. § 727(a)(4)(A). For the reasons set out below, we affirm.

I. Background

The genesis of this bankruptcy case dates back to a loan that Crawford personally guaranteed. Crawford, a financially sophisticated individual, works in the banking industry as a mortgage originator at Wells Fargo. In 1987, Oak Street Realty Trust (“Oak Street”), a company in which Crawford has an 80% interest, received a $250,000 loan from Amoskeag Bank (“Amoskeag”) secured by Oak Street property. In 1989, through a Change in Terms Agreement, Crawford guaranteed the loan in his individual capacity. After the loan matured, neither Oak Street nor Crawford paid the balance. The FDIC, acting as liquidating agent for Amoskeag, assigned Amoskeag’s interest to Tenth RMA Partners, L.P. (“RMA”). RMA obtained a judgment against Crawford in the amount of $888,753.01 and then assigned its interest to Premier who sought and received a $456,774.04 execution on the judgment from the Middlesex Superior Court. Save for the $7,030.68 that Premier obtained from wage garnishments, the execution remains in full force.

Reaching a financial impasse with liabilities far exceeding assets, Crawford petitioned for bankruptcy. He subsequently filed his Schedules and Statement of Financial Affairs (“SOFA”). Two weeks later, Crawford filed an amended SOFA. With Crawford’s fresh start in sight, Premier thwarted Crawford’s discharge of debt through the filing of the instant action. Two claims formed the basis for the bankruptcy court’s disposition: (1) the making of a false oath in violation of 11 U.S.C. § 727(a)(4)(A) and (2) the intentional concealment of property in violation of 11 U.S.C. § 727(a)(2)(A). Because we affirm on the false oath count, we do not reach the merits of the unlawful concealment claim.

At the time Crawford petitioned for bankruptcy, he had two retirement accounts with Wells Fargo, a 401(k) account and a CBP. Wells Fargo provides quarterly statements to Crawford with the heading “401(k) Plan and Cash Balance Plan.” On this statement, the two accounts are listed separately and with separate balances, but the statement also contains a cumulative amount reported under the label “Total Retirement Accounts.”

Schedule B, item 12, requires an individual filing for bankruptcy to disclose “[i]n-terests in IRA, ERISA, Keough, or other pension or profit sharing plans” and to “[gjive particulars.” In addition, this form contains a column for the description and location of property as well as the current value of the property. After consulting with counsel, Crawford filed his Schedule B, item 12, which listed “401(k) with Wells Fargo” under the description and “$148,000” under the value, Crawford’s form made no mention of his CBP.

Premier’s complaint made a general allegation of a false oath in Crawford’s Schedules and Statement of Financial Affairs. The CBP, though not mentioned in the complaint as the basis for a false oath claim, became a topic of the trial on the second day of the three day trial. At trial, Premier introduced Exhibit 847-1, which contained Crawford’s quarterly statements with Wells Fargo. Crawford objected to the introduction of the exhibit under Rule 403, arguing that the Statements were cumulative. The bankruptcy court overruled Crawford’s sole objection on the matter. On direct examinátion, Premier questioned Crawford on whether he had a CBP that he failed to list on his Schedule B. Evasive at first, Crawford retorted, “I gave all this information to [my former attorney].” Eventually, Crawford admitted that his CBP is a retirement account and he failed to include it in his Schedule B. Pressing further, Premier directly asked why Crawford failed to list the CBP. To this, Crawford equivocated, “I don’t have a good answer for you sir.” On cross-examination, Crawford’s counsel presented Crawford with Exhibit 847-1 and asked whether he disclosed the amount listed on the quarterly statement. Crawford affirmed that he had. On redirect, Premier once again questioned Crawford on his failure to list his CBP. Specifically, Premier asked, “Is it not separated out as a separate plan on your statement, the CBP? Is it not?” “I think it’s a different heading. I agree; yes, sir,” Crawford answered.

In Premier’s post trial brief, Premier argued that by failing to disclose his interest in the CBP, Crawford committed a false oath in violation of 11 U.S.C. § 727(a)(4)(A). In Crawford’s Proposed Findings of Fact and Conclusion of Law, again contesting the disclosure, Crawford reasoned that he did disclose his CBP, or if he did fail to disclose, that failure was not the product of fraudulent intent. At closing arguments, both parties engaged the merits of the false oath claim at issue. Crawford averred, “So while the CBP wasn’t separately listed on his schedules, the amount in it was included in the 401K amount that was reflected on Mr. Crawford’s schedule.... ”

The bankruptcy court found Crawford “less than credible” based on numerous misrepresentations and evasive answers. The court ruled that while the claim of a false oath by omission of the CBP was not raised in Premier’s complaint, Crawford impliedly consented to the trial of the charge. Additionally, the court concluded that Crawford’s failure to include his CBP in his Schedule B, item 12, amounted to a false oath. Finding Crawford’s veracity suspect, the court reasoned that the CBP and 401(k) are separate accounts and that Crawford believed the accounts were separate when he filed his Schedule B. Premier Capital, LLC v. Crawford (In re Crawford), 531 B.R. 275 (Bankr. D. Mass. 2015). On appeal, the District of Massachusetts affirmed the false oath claim. Premier Capital, LLC v. Crawford (In re Crawford), No. 15-12726 (D. Mass. Feb. 26, 2016). Now, Crawford raises several errors with the district court’s decision: the finding of implied consent on Crawford’s part to try the omission of the CBP Plan from Schedule B, the improper application of the burden-shifting method of proof for false-oath claims, and the determination that the omission of the CBP was a false oath and material.

II. Standard of Review

We review the bankruptcy-court’s findings of fact for clear error. Davis v. Cox, 356 F.3d 76, 82 (1st Cir. 2004). We will not set aside the trier’s findings absent a “strong, unyielding belief that a mistake was made.” Carp v. Carp (In re Carp), 340 F.3d 15, 22 (1st Cir. 2003). In contrast, we review the bankruptcy court’s conclusions of law de novo, Davis, 356 F.3d at 82, and review issues of implied consent for abuse of discretion; Antilles Cement Corp. v. Fortuno, 670 F.3d 310, 319 (1st Cir. 2012). “Notwithstanding the fact that we are the second-in-time reviewers, we cede no special deference to the district court’s determinations.” Carp, 340 F.3d at 21.

III. Analysis

Before this Court may reach the merits of the false oath claim, we must first consider two threshold issues—implied consent; and improper burden shifting.

A. Implied Consent

Premier’s complaint and pre-trial filings never identified the omission of the CBP as forming the basis of a false oath claim. However, “Federal Rule of Civil Procedure 15(b) allows an unpleaded claim to be considered when the parties’ conduct demonstrates their express or implied consent to litigate the claim.” Antilles Cement Corp., 670 F.3d at 319. “When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.” Fed. R. Civ. P. 15(b)(2).

A party can give implied consent to the litigation of an unpleaded claim in two ways: by treating a claim introduced outside the complaint ‘as having been pleaded, either through [the party’s] effective engagement of the claim or through his silent acquiescence’; or by acquiescing during trial ‘in the introduction of evidence which is relevant only to that issue.’

Antilles Cement Corp., 670 F.3d at 319 (alteration in original) (quoting Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1172 (1st Cir. 1995)).

At trial, Premier introduced Crawford’s quarterly statements with Wells Fargo and examined Crawford regarding the omission of the CBP from his Schedule B. While Crawford objected to the admission of the statements under Rule 403, he clarified that the duplicative nature of the documents formed the basis for his objection. See Conjugal P’ship v. Conjugal P’ship, 22 F.3d 391, 400-01 (1st Cir. 1994) (“One sign of implied consent is that issues not raised by the pleadings are presented and argued without proper objection by opposing counsel.” (internal quotation marks omitted) (quoting In re Prescott, 805 F.2d 719, 725 (7th Cir. 1986))). On multiple occasions, Premier pointedly asked Crawford why he failed to include his CBP on his Schedule B. Crawford responded without objection. In fact, on cross-examination, Crawford’s counsel attempted to rebut Premier’s questions by pointing out that Crawford disclosed the value of the asset. Both Crawford and Premier continued to contest the issue in post-trial memoranda and closing arguments. Because Crawford failed to object to the trial of an unpleaded claim and engaged the merits of the claim, this Court cannot say that the bankruptcy court abused its discretion by finding Crawford impliedly consented.

B. Burden Shifting

Crawford next asserts that both the bankruptcy court and district court prematurely applied the burden-shifting framework, saddling him (to quote his brief) with the burden of proving “that his disclosure was not false and that it was not material without first finding that Premier ha[d] made out its prima facie case.” Under § 727(a)(4)(A), the plaintiff bears the burden to establish each element of a pri-ma facie case by a preponderance of the evidence. In re Mascolo, 505 F.2d 274, 276 (1st Cir. 1974). Once that party puts forth a prima facie case, the burden shifts to the debtor who must then come forth with evidence rebutting the offense. Id.

The bankruptcy court recited the correct burden-shifting framework. Specifically, the court stated:

The burden of proof is on the party objecting to discharge— Tully indicates, however, that ‘once it reasonably appears that the oath is false, the burden falls upon the [debtor] to come forward with evidence that he has not committed the offense charged.’ This language does not shift the burden of proof or nullify the need to prove knowledge of falsity and fraudulent intent. Rather, it establishes that a false oath may itself be sufficient to establish knowledge of falsity and fraudulent intent.

Premier Capital, LLC v. Crawford (In re Crawford), 531 B.R. 275, 299 (Bankr. D. Mass. 2015) (alteration in original) (citations omitted). Nothing in the bankruptcy court’s memorandum of decision leads us to believe that the court improperly placed the onus on Crawford prior to the establishment of a prima facie case. The one sentence that Crawford points to in the bankruptcy court’s memorandum of decision—“[Crawford] does not deny, and I find, that [the omission of the CBP] was material”'—proves unavailing because that sentence merely explains that Crawford did not attempt to rebut the materiality of the omission. Id. at 307. Moreover, Crawford’s position is inapposite given the bankruptcy court’s statement that “[t]he party objecting to the discharge must show that (i) the debtor made an oath (ii) that was false and (iii) related to a material fact in the case (iv) knowingly and (v) fraudulently.” Id. at 306.

In addition, Crawford reasons that improper burden shifting occurred because, in Crawford’s words, Premier failed to present any evidence of materiality. Despite Crawford’s assertion to the contrary, Premier put forth evidence proving the materiality of the CBP omission. Namely, Premier introduced Crawford’s quarterly 401(k) and CBP statements into evidence and examined Crawford regarding the omission of the CBP. Crawford fails to point to language in the bankruptcy court’s disposition that indicates improper application of the burden-shifting framework, and Premier presented evidence sufficient to make out a prima'facie case; therefore, we do not find that the bankruptcy court improperly shifted the burden to Crawford.

C. False Oath

The Bankruptcy Code “limits the opportunity for a completely unencumbered new beginning to the ‘honest but unfortunate debtor.’ ” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)). In considering a denial of discharge for a false oath, two competing considerations are at play. On the one hand, § 727(a)(4)(A) purports to prevent debtors who “play fast and loose with their assets or with the reality of their affairs” from séeking refuge under the Bankruptcy Code. Boroff v. Tully (In re Tully), 818 F.2d 106, 110 (1st Cir. 1987). On the other hand, “bankruptcy is an essentially equitable remedy,” so “the statutory right to a discharge should ordinarily be construed liberally in favor of the debt- or.” Id. Where a claim falls squarely within one of the Bankruptcy Code’s exceptions— and Premier’s false oath claim certainly does—the liberal construction of the right to discharge does not apply. Martin v. Bajgar (In re Bajgar), 104 F.3d 495, 498 n.1 (1st Cir. 1997).

“The court shall grant the debtor a discharge, unless ... the debtor knowingly and fraudulently, in or in connection with the case ... made a false oath or account....” 11 U.S.C. § 727(a)(4)(A). In order for § 727(a)(4)(A) to form the basis for denying discharge, the Court must find that the debtor “(i) knowingly and fraudulently made a false oath, (ii) relating to a material fact.” Boroff, 818 F.2d at 110. On appeal, Crawford advances arguments encompassing the false oath and material fact elements.

When a debtor files her Schedules, she does so under the equivalent of an oath. Fed. R. Bankr. P. 1008; Perry v. Warner (In re Warner), 247 B.R. 24, 26 (1st Cir. BAP 2000). A debtor has a duty to prepare schedules accurately and with “reasonable particularization under the circumstances.” Donarumo v. Furlong (In re Furlong), 660 F.3d 81, 87 (1st Cir. 2011) (quoting In re Mohring, 142 B.R. 389, 394-95 (Bankr. E.D. Cal. 1992), aff'd, 153 B.R. 601 (9th Cir. BAP 1993), aff'd, 24 F.3d 247 (9th Cir. 1994)) (internal quotation marks omitted). “[A] debtor is required only to ‘do enough itemizing to enable the trustee to determine whether to investigate further.’ ” Id. at 87 (quoting Payne v. Wood, 775 F.2d 202, 207 (7th Cir. 1985)).

By omitting an account from his Schedule B, Crawford made a false oath. See Harrington v. Donahue (In re Donahue), BAP No. NH 11-026, 2011 WL 6737074, at *11 (1st Cir. BAP Dec. 20, 2011) (“[W]hen a debtor omits a transaction from his Statement of Financial of Affairs, he has made a false oath.”). Schedule B, item 12, instructed Crawford to disclose his “[i]nterests in IRA, ERISA, Keough, or other pension or profit sharing plans” and to “[g]ive particulars.” While Crawford listed his 401 (k) account with Wells Fargo and included the combined value of his 401(k) and CBP, Crawford failed to list the existence of his CBP on the form, as required by Schedule B, item 12.

A false oath is material if its subject matter “bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.” Boroff, 818 F.2d at 111 (quoting Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 (11th Cir. 1984)) (internal quotation marks omitted). “[T]he threshold to materiality is fairly low.” Lussier v. Sullivan (In re Sullivan), 455 B.R. 829, 839 (1st Cir. BAP 2011) (quoting Cepelak v. Sears (In re Sears), 246 B.R. 341, 347 (8th Cir. BAP 2000)) (internal quotation marks omitted). Like many of our sister courts, we have rejected the notion that valuation determines materiality. Boroff, 818 F.2d at 110 n.4. Therefore, the disclosure of an asset’s value does not dispense with the materiality question.

Regardless of whether a creditor may reach an asset, the debtor still must disclose that asset’s existence. Daniels v. Agin, 736 F.3d 70, 84 (1st Cir. 2013). After all, the creditor, not the debtor, is in the best position to determine what may or may not affect that creditor. As articulated in In re Mascólo, “[T]he materiality of the false oath will not depend upon whether in fact the falsehood has been detrimental to the creditors.” 505 F.2d 274, 278 (1st Cir. 1974) (quoting In re Slocum, 22 F.2d 282, 285 (2d Cir. 1927)) (internal quotation marks omitted). Thus, we need not analyze the character of the asset or whether creditors could recover from the asset.

Critically for our purposes, when it comes to materiality, we distinguish an asset from an asset’s value. Knowledge of an asset’s value alone does little to forewarn creditors and the court of unscrupulous dealings. For this reason, the discovery of an asset’s existence, as in the case of the CBP, clears the threshold for materiality. Boroff, 818 F.2d at 111. Listing one retirement account held with a financial institution does not signal the existence of a second account held with that same institution. To hold otherwise would be at odds with the principles of a rule rooted in honest disclosures. Our decision today, follows our ruling in Daniels, which addressed a similar scenario. 736 F.3d at 82-83. Much like the matter before this Court, in Daniels, the debtor failed to list two IRA accounts in his Schedule B and instead included the value with that of the reported profit-sharing plan. Id. at 74. Despite disclosing the value, we regarded the excluded IRA information as material. Id. at 83.

Bankruptcy disclosures are not meant to create a trap for the unwary, and we see no perverse result in affirming the denial of Crawford’s bankruptcy. By omitting the existence of the CBP, a creditor would not otherwise know of the plan’s existence. Creditors have a right to investigate the history of a debtor’s asset, and if a debtor fails to disclose the existence of an asset, then a creditor may not be able to engage in due diligence.

IV. Conclusion

We affirm the district court’s ruling on the § 727(a)(4)(A) claim; therefore, we do not reach the merits of the § 727(a)(2)(A) claim.

Affirmed.

      . Premier alleges that at the time Crawford filed for bankruptcy, Crawford owed an amount in excess of $725,000.

      . Crawford objected once arguing that “this assumes facts not in evidence.” Upon elaboration, he contended that the Schedules were prepared prior to receiving the new quarterly statement.

      . Rule 15 of the Federal Rules of Civil Procedure apply in adversary proceedings in bankruptcy court, under Rule 7015 of the Federal Rules of Bankruptcy Procedure.

      . Crawford does not raise error with the intent component—"knowingly and fraudulently.” § 727(a)(4)(A).

      . E.g., Palatine Nat'l Bank v. Olson (In re Olson), 916 F.2d 481, 484 (8th Cir. 1990) ("While we are not prepared to say that value is irrelevant to materiality, we are certain that it is not determinative.”); Chalik, 748 F.2d at 618 ("The recalcitrant debtor may not escape a section 727(a)(4)(A) denial of discharge by asserting that the admittedly omitted or falsely stated information concerned a worthless business relationship or holding; such a defense is specious.” (citations omitted)); see also U.S. Trustee v. Garland (In re Garland), 417 B.R. 805, 814 (10th Cir. BAP 2009) ("[M]ateriality is not defeated by the fact that the undisclosed property interests are determined to be without value.”); cf. Fogal Legware of Switz., Inc. v. Wills (In re Wills), 243 B.R. 58, 63 (9th Cir. BAP 1999) (“A false statement or omission may be material even if it does not cause direct financial prejudice to creditors.”).

      . One false step does not lead to draconian results. See, e.g., Dotson v. Cogswell (In re Cogswell), 462 B.R. 28, 35 (Bankr. D. Mass. 2012) (misstating the year of a boat and misstating an inconsequential sum on a credit card statement are "harmless errors”); see also Steele v. Boutiette (In re Boutiette), 168 B.R. 474, 482 (Bankr. D. Mass. 1994) ("[A] debtor [should] not be put at risk that discharge will be denied by a mischaracterization which is esoteric.”).

      . "[Cjreditors are entitled to judge for themselves what will benefit, and what will prejudice, them.” Harrington v. Mazzone (In re Mazzone), 510 B.R. 439, 445 (Bankr. D. Mass. 2014) (quoting JP Morgan Chase Bank, N.A. v. Koss (In re Koss), 403 B.R. 191, 213 (Bankr. D. Mass. 2009)) (internal quotation marks omitted); Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 (11th Cir. 1984).