USCA11 Case: 19-14423 Date Filed: 12/21/2021 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14423
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DION GREGORY FISHER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00236-VMC-TGW-1
____________________
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2 Opinion of the Court 19-14423
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Defendant-Appellant Dion Fisher was convicted by a jury of
multiple counts of trafficking fentanyl and money laundering. On
appeal, Fisher challenges the district court’s denial of his motion to
suppress evidence seized from his home and person and the district
court’s decision to allow a witness to testify at trial who was not
listed on the government’s witness list. After careful review, we
affirm on both issues.
I.
A grand jury indicted Fisher on 15 counts, charging him with
conspiring to manufacture, possess with intent to distribute, and
distribute 400 grams or more of fentanyl, in violation of 21 U.S.C.
§ 846 (Count 1); possessing with intent to distribute and distrib-
uting fentanyl, in violation of 21 U.S.C. § 841(a)(1) (Counts 2-4);
possessing with intent to distribute 40 grams or more of fentanyl,
in violation of 21 U.S.C. § 841(a)(1) (Count 5); possessing with in-
tent to distribute 400 grams or more of fentanyl, in violation of 21
U.S.C. § 841(a)(1) (Count 6); possessing with intent to distribute
pentylone, in violation of 21 U.S.C. § 841(a)(1) (Count 7); and en-
gaging in illegal monetary transactions, in violation of 18 U.S.C. §§
1957 and 2 (Counts 9–16). 1
1 Fisher was not charged in Count 8 of the indictment.
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19-14423 Opinion of the Court 3
Fisher subsequently filed a motion to suppress items seized
from his house and person in the district court, arguing that the
items were found pursuant to an illegal detention. While Fisher
conceded that there was a search warrant for his home, he con-
tended that he was not detained in the immediate vicinity of the
premises to be searched, as required for detentions incident to the
execution of a search warrant. Fisher thus argued that his deten-
tion was unlawful. Fisher further argued that, even if the original
seizure was lawful, both the length of his detention and the lapse
in time between the beginning of his detention and the start of the
search was unreasonable. He argued that, consequently, all evi-
dence obtained both from his person during the detention and
from his house pursuant to the search warrant should be excluded.
The government responded that the search warrant was
valid, and that Fisher was detained a block away from the location
of the search, which was within the immediate vicinity. The gov-
ernment further argued that the lapse in time between Fisher’s de-
tention and the beginning of the search was due to the need for law
enforcement officials to don protective chemical gear (HAZMAT
suits) before entering the house. Finally, the government argued
that the duration of the search—and, by extension, Fisher’s deten-
tion—was not excessive.
A magistrate judge held a hearing on the motion to suppress.
At the hearing, the government called Deputy Matthew Schultheis
who testified to the following. On February 15, 2018, Schultheis
was tasked with detaining Fisher while law enforcement officers
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4 Opinion of the Court 19-14423
executed a search warrant at his residence. At approximately noon,
an officer surveilling Fisher’s residence notified Schultheis that
Fisher had left his residence in a vehicle. Schultheis initiated a traf-
fic stop of the vehicle and instructed Fisher to get out of the car.
Schultheis then detained Fisher in the back seat of his car.
Schultheis did not question Fisher at any time while he was de-
tained. Approximately one hour after the traffic stop, the officers
who executed the search warrant donned HAZMAT gear and be-
gan the search of Fisher’s home. Schultheis thereafter arrested
Fisher after a detective advised him to do so based on the evidence
found in the home. When Schultheis initially detained Fisher prior
to the search of the house, he searched Fisher, finding two cell
phones.
Schultheis further testified that the location at which he
stopped and detained Fisher was approximately 40 feet from
Fisher’s house. After Schultheis concluded his testimony, the mag-
istrate judge verified with the government that the cell phones
seized from Fisher during the traffic stop did not contain material
evidence.
On May 3, 2019, the magistrate judge issued a report and
recommendation (R&R) that recommended denying Fisher’s mo-
tion to suppress. The magistrate judge found, in relevant part, that
there was no basis for suppressing the evidence obtained from
Fisher’s residence because it was seized pursuant to a valid search
warrant. The magistrate judge also found that there was nothing
to suppress as a result of Fisher’s detention because the only items
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19-14423 Opinion of the Court 5
seized from his person were two cellphones that the government
indicated did not contain material evidence.
The magistrate judge also concluded that the government
had probable cause to arrest Fisher. The affidavit supporting the
search warrant included evidence that Fisher sold confidential in-
formants thousands of dollars’ worth of pills that tested positive for
fentanyl. Therefore, Fisher was lawfully detained, and any evi-
dence collected was admissible. The magistrate judge also dis-
cussed whether Fisher’s detention was authorized as a detention
incident to the execution of the search warrant, but it declined to
decide the issue since Fisher’s detention was lawful in any event.
The magistrate judge further reasoned that, even if Fisher’s
detention was unlawful, the evidence seized from his residence was
admissible under the independent source exception. The magis-
trate judge reasoned that because there was a valid search warrant
for Fisher’s residence, any evidence seized from that residence was
obtained independent of any constitutional violation and thus ad-
missible. Finally, the magistrate judge notified the parties that fail-
ure to file written objections within fourteen days would result in
waiver of the right to challenge any unobjected-to factual findings
or legal conclusions adopted by the district court.
On May 21, 2019, the district court adopted the R&R, noting
that no objections had been filed, and denied Fisher’s motion to
suppress. Fisher’s case then proceeded to a jury trial.
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6 Opinion of the Court 19-14423
During the trial, the government called Detective Karl
Gwynne to testify. However, before Gwynne could begin his tes-
timony, the court conducted a sidebar, noting that Gwynne was
not listed on the government’s witness list. The government then
orally moved to add him to the witness list. Fisher objected. The
government informed the court that Gwynne was inadvertently
left off the witness list, but that he was listed as an evidence custo-
dian in a report provided to Fisher during discovery. The court
heard argument on the matter outside the presence of the jury.
The government stated that Gwynne’s testimony would be
based on a Pinellas County Sheriff’s Office (PCSO) evidence log
and a three-sentence supplemental report. The government then
argued that there could be no prejudice because Fisher received the
reports during discovery and Gwynne’s name was on each evi-
dence bag.
In response, Fisher argued that Gwynne’s name was not on
the government’s witness list, and it was not a name that he would
realize was missing. Fisher asserted that he had prepared for each
witness on the witness list. Fisher then argued that the govern-
ment had sufficient time to make sure their witness list was correct
and therefore should be prohibited from calling Gwynne as a wit-
ness. However, Fisher was unable to articulate to the court what
harm could result from the admission of Gwynne’s testimony.
The government insisted that Gwynne would be testifying
solely as a records custodian and that he was the only person who
could testify to the matter.
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19-14423 Opinion of the Court 7
After hearing from the parties, the court found that no prej-
udice would result from Gwynne’s testimony. Specifically, the
court stated that “[i]t could have been any one of these individuals.
It doesn’t sound like the name is what’s important. It’s the role he
played.” Consequently, the court ruled that it would allow
Gwynne to testify. Following the ruling, the court took a recess of
almost one hour. After the recess was over, the government in-
formed the court that it had provided the exhibit list to Fisher be-
fore trial, and thus Fisher had notice of the exact items that
Gwynne’s testimony would introduce. At no point did Fisher re-
quest a continuance to further prepare for Gwynne’s testimony.
As relevant to the resolution of this appeal, Gwynne testified
to the following. Gwynne had been working with the PCSO since
2005 and was employed solely at the PCSO throughout the inves-
tigation. Gwynne worked as the evidence custodian for the non-
drug evidence seized during the search of Fisher’s residence on
February 15, 2018. As evidence custodian, Gwynne logged the
non-drug evidence seized from Fisher’s home, including receipts
and records pertaining to jewelry, cars, wire transfers, and bank ac-
counts. Gwynne identified each piece of evidence, each of which
was subsequently admitted over Fisher’s objections.2
At the conclusion of the six-day trial, the jury convicted
Fisher of all charges except for Count 7. The district court then
2 No cell phones or information taken from cell phones were admitted at trial.
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8 Opinion of the Court 19-14423
sentenced Fisher to a total sentence of 360 months’ imprisonment
followed by a total of 60 months of supervised release.
II.
“A district court’s ruling on a motion to suppress presents a
mixed question of law and fact.” United States v. Zapata,
180 F.3d
1237, 1240 (11th Cir. 1999). We review the district court’s factual
findings for clear error and its application of the law to the facts de
novo.
Id.
A defendant waives review of the denial of his suppression
motion when he does not file “specific written objections” within
the time set by the court or within fourteen days of being served
with the magistrate’s report and recommendation. See Fed. R.
Crim. P. 59(b)(2). Additionally, our court’s rules state that the fail-
ure to object to a magistrate judge’s report and recommendation
“waives the right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions if the party
was informed of the time period for objecting and the conse-
quences on appeal for failing to object.” 11th Cir. R. 3-1. We may,
however, review the issue for plain error “if necessary in the inter-
ests of justice.”
Id. Additionally, any issues not raised in an appel-
lant’s initial brief are deemed abandoned and are not considered.
United States v. Levy,
379 F.3d 1241, 1243 (11th Cir. 2004) (per cu-
riam).
Under a plain error analysis, a defendant must show (1) an
error, (2) that is plain, (3) that affects substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation of
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19-14423 Opinion of the Court 9
judicial proceedings. United States v. Cotton,
535 U.S. 625, 631
(2002). To demonstrate that an error affected his substantial rights,
a defendant “must show a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.”
Molina-Martinez v. United States,
136 S. Ct. 1338, 1343 (2016) (in-
ternal quotation marks omitted).
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. The
exclusionary rule prohibits the use of tangible materials seized dur-
ing an unlawful search as evidence. Murray v. United States,
487
U.S. 533, 536 (1988). The exclusionary rule also prohibits the intro-
duction of derivative evidence, or evidence that is otherwise ac-
quired as an indirect result of an unlawful search, “up to the point
at which the connection with the unlawful search becomes so at-
tenuated as to dissipate the taint” of the unlawful search.
Id. at 536–
37 (internal quotation mark omitted).
However, the independent source exception provides that
evidence obtained from a lawful source that is independent of any
Fourth Amendment violation is admissible.
Id. at 537–38. The ra-
tionale is that “the exclusionary rule should not put the govern-
ment in a worse position than if the constitutional violation had
not occurred.” United States v. Noriega,
676 F.3d 1252, 1260 (11th
Cir. 2012).
Fisher waived his right to appellate review of the denial of
his motion to suppress by not timely filing objections to the
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10 Opinion of the Court 19-14423
magistrate judge’s R&R. See Fed. R. Crim. P. 59(b)(2). While we
may still review Fisher’s claim for “plain error if necessary in the
interests of justice,” see 11th Cir. R. 3-1, Fisher did not state in his
brief that we should review his claim on that basis and thus has
abandoned this argument. See Levy, 379 F.3d at 1242–43.
Accordingly, we affirm the district court’s denial of Fisher’s
motion to suppress.
III.
We review a district court’s decision to admit witness testi-
mony under an abuse-of-discretion standard. United States v.
Crabtree,
878 F.3d 1274, 1287 (11th Cir. 2018). A district court
abuses its discretion when it “applies the wrong law, follows the
wrong procedure, bases its decision on clearly erroneous facts, or
commits a clear error in judgment.”
Id.
In general, “[a] criminal defendant has no absolute right to a
list of the government’s witnesses in advance of the trial.” United
States v. Johnson,
713 F.2d 654, 659 (11th Cir. 1983). Nevertheless,
the district court has the discretion to require the government to
produce its witness list. United States v. Colson,
662 F.2d 1389,
1391 (11th Cir. 1981) (“[R]equiring production of a list of the gov-
ernment’s witnesses is a matter of judicial discretion, and proof of
abuse of discretion is necessary for reversal.”). In Colson, we held
that a district court’s denial of a defendant’s motion to require pro-
duction of the government’s witness list was not an abuse of
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19-14423 Opinion of the Court 11
discretion because “disclosure of the list would not have materially
aided his defense.”
Id. at 1392.
Fisher contends that the district court abused its discretion
by permitting the government to call Gwynne to testify at trial
since he was not on the government’s witness list. Gwynne’s tes-
timony unfairly surprised defense counsel, Fisher argues, and re-
sulted in defense counsel having no opportunity to prepare for an
effective cross-examination.
The district court did not abuse its discretion by permitting
Gwynne to testify despite the government’s accidental omission of
his name from the witness list. Fisher has failed to show any actual
prejudice resulting from Gwynne’s testimony or explain how
counsel’s cross-examination would have differed if Gwynne had
been included on the witness list. Because “proof of abuse of dis-
cretion is necessary for reversal,” and Fisher has offered no such
proof, we affirm. See
id. at 1391.
AFFIRMED.
