Update: “After considering the government’s petition for panel rehearing, we vacate our earlier opinion and issue this one in its place. Our holding is unchanged. The only modifications to our opinion are in Part II.B.1, clarifying that while we conclude that the prosecutor engaged in reversible misconduct by relying on an unadmitted exhibit during his closing argument, we are prepared to assume that he did not deliberately seek to mislead the jury.”

https://media.ca11.uscourts.gov/opinions/pub/files/202410938.reh.pdf

 

In United States v. Jones, No. 24-10938 (11th Cir. Dec. 19, 2025) (Newson, Joran, Corrigan (MDFL)), the Court vacated & remanded Jones’s 18 U.S.C. § 924(c) conviction (and 30-year consecutive sentence), but affirmed Jones’s four other drug and gun convictions and their 15 -year sentence.

In reversing Jones’s § 924(c) conviction due to prosecutorial misconduct, the Court held, on plain error review, that:

  1. The government’s plainly (“patently”!) erred when it referred in closing to direct messages from Jones’s Instagram account that were never admitted into evidence; and,
  2. That error substantially prejudiced Jones because:
    1. While the evidence was sufficient for the § 924(c) conviction, it was barely so: the firearm at issue was found inside Jones’s home, not within his immediate reach, and the distribution quantity of marijuana was found in his girlfriend’s car trunk, parked 60ft away from the home;
    2. The government emphasized in closing that this un-admitted evidence was “all the jury needed to know” to convict on the 924(c) count;
    3. It was “inconceivable” that the reference was accidental;
    4. And this exhibit was only one of three pieces of evidence highlighted in closing.
  3. The error also “seriously affected the fairness, integrity, or public reputation” of Jones’s trial, because “[t]he circumstances we confront are particularly troubling: The evidence of Jones’s guilt on the § 924(c) offense was thin, the prosecutor told jurors at the close of trial that ‘all [they] need[ed]’ to convict him of that crime was a piece of evidence that wasn’t before them, and Jones was sentenced to 30 years on that count alone. If left uncorrected, the prosecutor’s misconduct in this case would leave ‘reasonable citizen[s]’ with ‘a rightly diminished view of the judicial process.’” (internal citations omitted)>

In affirming Hassan’s four other convictions (pursuant to 18 USC § 922(g)(1), 21 USC §§ 841, 846, & 26 USC 5861(d)), the Court held, in most pertinent part:

  1. The district court erred under Rule 403 in admitting rap-related evidence from Jones’s phone. “Here, as in a past case of ours, ‘the substance of the rap [evidence] was heavily prejudicial’ because, as there, the videos and lyrics contained ‘violence [and] profanity’ and ‘could reasonably be understood as promoting a violent and unlawful lifestyle[,]’” and had “little relevance” to Jones’s knowing possession of two firearms at issue. See also United States v. Gamory, 635 F.3d 480, 493 (11th Cir. 2011). However, error was harmless due to the other admissible and “substantial” proof that Jones knowingly possessed the two firearms found in his bedroom with his DNA on them.
  2. Even if the prosecutor’s unobjected-to inquiry about Jones having invoked Miranda at arrest violated due process, that, constitutional violation too, was harmless, given the weight of the government’s evidence of guilt.
  1. The Eleventh seems truly mystified as to why the government keeps doing what the Court keeps allowing it to: “We shouldn’t have to keep saying this, but alas, it seems the message isn’t getting through: So let us once again make ‘crystal clear’ that the government may not ‘call attention to’ a defendant’s invocation of his Miranda rights. [] Prosecutors know better, and they simply must stop ‘continu[ing] to indulge themselves in this way’—enough is enough. [] Despite the impropriety of the prosecutor’s conduct—and our increasing consternation at government lawyers’ repeated refusals to heed our warnings—we are satisfied that, in the particular circumstances presented in this case, any Doyle violation that might have occurred was harmless.”

Opinion available here: https://media.ca11.uscourts.gov/opinions/pub/files/202410938.pdf