United States v. Kerby Brown, Jr.

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14056

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KERBY BROWN, JR.,

a.k.a. K.J.,

a.k.a. Slime,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:20-cr-60045-RS-1

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2 Opinion of the Court 22-14056

____________________

Before WILLIAM PRYOR, Chief Judge, and JORDAN and MARCUS, Cir-

cuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether sufficient evi-

dence supports convictions of conspiracy to commit child sex traf-

ficking and attempted child sex trafficking, whether the district

court erred in admitting a conspirator’s phone records and com-

munications, whether continuances related to the coronavirus pan-

demic and changes in defense counsel violated the Speedy Trial

Act, and whether the district court erred when it refused to strike

the jury venire after it read an earlier version of the indictment and

then corrected its error. Kerby Brown Jr. was charged with one

count each of conspiracy to commit, attempted, and child sex traf-

ficking. See 18 U.S.C. §§ 1591(a)(1), (b)(2), 1594(a), (c). A grand jury

indicted Brown in early 2020, but the pandemic and a series of con-

tinuances delayed his trial until August 2022. The jury convicted

Brown on all counts. We affirm because Brown fails to establish

that a reversible error occurred.

I. BACKGROUND

In the fall of 2018, Minor Victim 1 was 14 years old and

homeless. On November 20, 2018, she stayed in a hotel room in

Hollywood, Florida, with Kerby Brown Jr. Over the next few days,

Minor Victim 1 took several photographs of herself in that hotel

room, including at least one with Brown. On November 23, she

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invited her friend, Child Witness, to a party at the hotel. When

Child Witness and two other minor girls arrived, Brown, two

women, and another man were in a hotel room with Minor Vic-

tim 1. When the girls entered the room, they observed needles and

pills “all over the table.”

Brown and “[t]he white lady” began asking the girls if they

“want[ed] to work” or “want[ed] to make money.” The woman

showed the girls a website and explained that the girls would “take

pictures of [their] bod[ies], post [them], and then people [would]

come meet [them] at the hotel.” Brown said that Minor Victim 1

was “making money” and explained that once the teenagers signed

up, “[his] girls” would “show [them] what to do,” and that men

would come have sex with them for money. The girls informed

Brown that they were minors, but he dismissed their concerns

about age “because [they] were just making money.” Child Wit-

ness understood that Brown was recruiting the girls to be prosti-

tutes. Someone showed Child Witness a prostitution advertise-

ment for Minor Victim 1 that had the same “backdrop” as the pho-

tographs she had taken of herself earlier that week. During this in-

teraction, the other man took Minor Victim 1 into the next room.

The girls got scared and left the hotel, but they could not locate

Minor Victim 1 before leaving.

The next day, Child Witness and the other girls “decided

that [they] had to get [Minor Victim 1] out of the hotel,” so Child

Witness called her mother and described what had happened.

Child Witness’s mother agreed that they needed to rescue Minor

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4 Opinion of the Court 22-14056

Victim 1, and the group returned to the hotel later that day. On the

drive there, Child Witness called the police and told them where

to meet the group.

When the group arrived at the hotel, Child Witness con-

tacted Minor Victim 1 and asked her to meet in front of the hotel.

Minor Victim 1 stepped outside as Officer Michael Ryder arrived.

Child Witness told Officer Ryder, “my friend’s up there getting

prostituted and she’s on drugs, and she don’t even know she’s get-

ting prostituted right now.” One of the group’s members showed

Officer Ryder a prostitution advertisement for Minor Victim 1.

During this exchange, Brown left the hotel, spotted Officer Ryder

and the group, and ran back inside.

In January 2019, Minor Victim 2 was 15 years old and home-

less. Brown told Minor Victim 2 that he could book a hotel room

for her, and she could “just go to school and the room.” Brown

knew that Minor Victim 2 was 15 years old. Soon after their initial

contact, Brown picked up Minor Victim 2 and took her to a hotel

in Fort Lauderdale, Florida. Heidy Archer, whom Minor Victim 2

knew as “Lala,” was there. Although Brown did not ask Minor Vic-

tim 2 for any money that first night, he told her that “[n]ot every-

thing in life is for free.” Minor Victim 2 did not go to school during

this time.

Brown, Archer, and another woman took Minor Victim 2 to

Orlando. When they arrived, Brown initiated a conversation about

Minor Victim 2 “having sex with men for money.” They discussed

how pictures of Minor Victim 2 would be posted on a website with

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the abbreviation “P4P,” or “pay for play,” which meant that the

viewer could pay for sex. Minor Victim 2 testified that she felt that

she could not say no because she feared “being out on the streets”

and she had nowhere else to stay. Archer and the other woman

were present while Brown explained the setup to Minor Victim 2.

When Minor Victim 2 agreed to the plan, the two women, at

Brown’s direction, took nude photographs of Minor Victim 2 to

use in the advertisement. The women gave Brown the photos to

post, and an advertisement was posted.

After the photographs were posted, Brown told Minor Vic-

tim 2 that a man “was going to come pick [her] up.” That man met

Minor Victim 2 and had sex with her. The man paid Minor Vic-

tim 2, and she gave the money to Brown. Brown orchestrated the

prices, the meetings, and any transportation for Minor Victim 2;

managed the responses to the advertisement; and screened poten-

tial clients to ensure that they were not law enforcement officers.

Brown organized three or four commercial sex dates with Minor

Victim 2 during the trip to Orlando.

Brown and the women took Minor Victim 2 back to Fort

Lauderdale and stopped along the way so that men could have sex

with her. In early February, Archer admonished Brown to treat Mi-

nor Victim 2 better because she made him money. After the group

returned to Fort Lauderdale, the adults left Minor Victim 2 alone,

and she asked a friend to pick her up and escaped.

Meanwhile, the Hollywood Police Department alerted the

Federal Bureau of Investigation that Brown had reportedly sex

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6 Opinion of the Court 22-14056

trafficked Minor Victim 1. Bureau agents, with Minor Victim 1’s

permission, searched her phone and located the photographs of her

and Brown together at the hotel in November 2018. The Bureau

organized an undercover operation. An agent located a commer-

cial sex advertisement for Archer, and an undercover officer with

the Hollywood Police contacted the number listed on the adver-

tisement and arranged a meeting at a hotel in the hope that Brown

would arrive with Archer. Federal agents and local police prepared

to arrest Brown at the hotel. At the meeting time, a vehicle entered

the parking lot. Brown drove, Archer was a passenger, and a third

minor was in the backseat. When police surrounded the vehicle,

Brown fled on foot. Police chased Brown and arrested him.

On February 13, 2020, a grand jury indicted Brown on one

count of conspiracy to commit sex trafficking of a minor, 18 U.S.C.

§§ 1591, 1594(c), for conduct related to unnamed Minor Victims 1,

2, and 3; two counts of attempted sex trafficking of a minor, 18

U.S.C. §§ 1591, 1594(a), for his conduct related to Minor Victim 1

and Minor Victim 3; and one count of sex trafficking of a minor, 18

U.S.C. § 1591(a)(1), (b)(2), for his conduct related to Minor Vic-

tim 2.

A series of motions and intervening circumstances delayed

Brown’s trial. First, on February 28, 2020, Brown, while repre-

sented by counsel, moved pro se to dismiss the indictment based on

the Speedy Trial Act, 18 U.S.C. § 3162(a)(2). The district court de-

nied that motion based on Southern District of Florida Local

Rule 11.1(d)(4), which provides that “[w]henever a party has

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appeared by attorney, the party cannot thereafter appear or act on

the party’s own behalf in the action or proceeding, or take any step

therein, unless an order of substitution shall first have been made

by the Court.” On March 17, 2020, Brown moved to continue the

trial because he had switched counsel and the new attorney needed

time to prepare. The district court granted that continuance and

excluded the resultant days under the Speedy Trial Act, 18 U.S.C.

§ 3161(h)(7).

Then the coronavirus pandemic interrupted court proceed-

ings. The district court entered a series of continuances based on

corresponding administrative orders, stating that “in light of the

public health emergency, the interest[s] of justice require the Court

to take additional steps to protect the health and safety of the pub-

lic,” and excluding the resultant days. The administrative orders

delayed all jury trials from March 30, 2020, to at least July 6, 2021,

because “the ends of justice served by taking that action out-

weigh[ed] the interests of the parties and the public in a speedy

trial.” See, e.g., S.D. Fla. Admin. Order 2021-33, at 2. Amid these

orders and continuances, the district court entered another contin-

uance without specifying the reason, but it later noted that the days

covered by that continuance were also covered by the administra-

tive orders for the pandemic.

On April 26, 2021, shortly after the last pandemic order, the

parties submitted a joint motion to continue. The district court

granted that order in “the ends of justice” and excluded the result-

ant days. On June 7, 2021, at a status conference, defense counsel

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8 Opinion of the Court 22-14056

requested another continuance. The district court granted that re-

quest in the ends of justice and excluded the resultant days.

On July 6, 2021, the government submitted an unopposed

motion to continue because the most recent change of trial dates

conflicted with the prosecutor’s planned travel. The district court

granted that order on July 14, 2021, without explanation, continu-

ing the trial date by eight days from September 27, 2021, to October

5, 2021. Brown submitted another pro se motion to dismiss on the

ground that more than 70 unexcluded days would elapse by the

start of trial in violation of the Speedy Trial Act. The government

responded, and the district court denied Brown’s motion because

the challenged days had been tolled such that even if the days re-

sulting from the most recent continuance were not excluded from

the Speedy Trial calculations, only 36 unexcluded days would have

elapsed by the trial date.

On September 17, 2021, new defense counsel submitted an-

other motion to continue, which the district court granted in the

ends of justice with excluded time. On September 27, 2021, Brown

submitted another pro se motion to dismiss, which the district court

struck because Brown was represented by counsel. On January 20,

2022, Brown’s counsel moved to continue again. The district court

granted that motion without stating its reasons, but later specified

that the continuance served the ends of justice and excluded the

relevant days. On February 14, 2022, Brown filed yet another pro se

motion to dismiss, which the district court struck because “[t]he

Eleventh Circuit ‘has held repeatedly that an individual does not

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have a right to hybrid representation.’” See Cross v. United States,

893 F.2d 1287, 1291–92 (11th Cir. 1990).

On April 26, 2022, Brown submitted his final pro se motion

to dismiss. The district court denied that motion because nothing

had changed to justify dismissal since the last motion, and it ex-

plained that Brown’s “repetitive” pro se motions to dismiss had no

merit.

Brown again switched counsel, and on May 16, 2022, de-

fense counsel moved to continue. The district court granted that

motion in the ends of justice and excluded the relevant days. Fi-

nally, at a calendar call on June 28, 2022, defense counsel “advised

[that Brown] re-entered quarantine” the day before, and the parties

jointly requested a continuance to August 8, 2022. The district

court granted that request in the ends of justice and excluded the

relevant days.

Amid these motions and continuances, the government filed

a superseding indictment, which made two changes to the charges

against Brown. First, it amended the conspiracy charge to omit any

specific mention of individual minor victims. Second, it dropped

the attempted sex-trafficking count related to Minor Victim 3.

Brown’s trial began on August 8, 2022. At the beginning of

the trial, the district judge read the conspiracy charge from the orig-

inal indictment, which enumerated three minor victims. The pros-

ecution immediately interrupted him, and the judge started over

by reading the superseding indictment. Brown moved to strike the

jury venire. The district court denied that motion but offered to

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10 Opinion of the Court 22-14056

give a curative instruction. Brown declined that offer, but the dis-

trict court instructed the jury that the indictment “isn’t evidence of

guilt.”

During the trial, the government sought to introduce exhib-

its from Heidy Archer’s phone. Brown objected that the evidence

was irrelevant, more prejudicial than probative, included evidence

of other crimes, lacked foundation, and included hearsay. The dis-

trict court overruled these objections and admitted the exhibits.

The district court denied Brown’s motion for judgment of

acquittal on counts one and two. The jury convicted Brown on all

counts. The district court sentenced Brown to 360 months of im-

prisonment.

II. STANDARDS OF REVIEW

Several standards govern our review. We review a denial of

a motion for judgment of acquittal based on the sufficiency of the

evidence de novo, but we “view all evidence in the light most favor-

able to the government, resolving any conflicts in favor of the gov-

ernment’s case.” United States v. Watts, 896 F.3d 1245, 1250–51 (11th

Cir. 2018). “A jury’s verdict cannot be overturned if any reasonable

construction of the evidence would have allowed the jury to find

the defendant guilty beyond a reasonable doubt.” Id. at 1251 (cita-

tion and internal quotation marks omitted). We review evidentiary

rulings for abuse of discretion. United States v. Henderson, 409 F.3d

1293, 1297 (11th Cir. 2005). And we review unpreserved challenges

under the Confrontation Clause, U.S. CONST. amend. VI, for plain

error. United States v. Jiminez, 564 F.3d 1280, 1286 (11th Cir. 2009).

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We review a district court’s application of its local rules for abuse

of discretion. United States v. McLean, 802 F.3d 1228, 1233 (11th Cir.

2015). We review a claim under the Speedy Trial Act de novo, but

we “review a district court’s factual determinations on excludable

time for clear error.” United States v. Williams, 314 F.3d 552, 556

(11th Cir. 2002); accord United States v. McCutcheon, 86 F.3d 187, 190

(11th Cir. 1996) (“The district court’s factual determination as to

what constitutes excludable time is protected by the clearly erro-

neous standard of review.”). We review the “determination

whether to strike an entire jury [venire] for manifest abuse of dis-

cretion.” United States v. Grushko, 50 F.4th 1, 10 (11th Cir. 2022) (ci-

tation and internal quotation marks omitted).

III. DISCUSSION

We divide our discussion into four parts. First, we explain

that sufficient evidence supported Brown’s convictions for conspir-

acy to sex traffic a minor and attempted sex trafficking of a minor.

Second, we explain that the district court did not abuse its discre-

tion in admitting records and communications related to Heidy

Archer’s phone. Third, we explain that the denial of Brown’s re-

peated pro se motions to dismiss did not violate the Speedy Trial

Act. Finally, we explain that the district court did not abuse its dis-

cretion in denying Brown’s motion to strike the jury venire.

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A. Sufficient Evidence Supported Brown’s Convictions for Con-

spiracy to Commit and Attempted Child Sex Trafficking.

Brown was convicted of conspiracy to commit child sex traf-

ficking. 18 U.S.C. §§ 1591, 1594(c). Section 1594(c) states that any-

one who “conspires with another to violate section 1591 shall be

fined . . . , imprisoned for any term of years or for life, or both.”

Section 1591, in turn, specifies the punishments for anyone who

“knowingly . . . recruits, entices, harbors, transports, provides, ob-

tains, advertises, maintains, patronizes, or solicits by any means a

person . . . knowing . . . that the person has not attained the age of

18 years and will be caused to engage in a commercial sex act.” To

prove a conspiracy, the government must prove beyond a reasona-

ble doubt that “(1) two or more persons agreed to violate § 1591,

(2) [Brown] knew of that conspiratorial goal, and (3) he voluntarily

assisted in accomplishing that goal.” United States v. Mozie, 752 F.3d

1271, 1287 (11th Cir. 2014), superseded by statute on other grounds, 18

U.S.C. § 1591(c). “The existence of an agreement may be inferred

from the participants’ conduct,” id., and the agreement “may be

proven by circumstantial evidence, including inferences from th[at]

conduct” or other evidence, United States v. Silvestri, 409 F.3d 1311,

1328 (11th Cir. 2005) (citation and internal quotation marks omit-

ted).

Brown argues that the district court erred in denying his mo-

tion for judgment of acquittal on the conspiracy count because

“there was no evidence of an agreement between Brown and any

potentially alleged co-conspirator” and “no evidence of a

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22-14056 Opinion of the Court 13

conspiratorial scheme or intent to join it.” The government re-

sponds that there was sufficient circumstantial evidence for a rea-

sonable jury to infer that an agreement existed between Brown and

Archer “to persuade or maintain at least one minor to engage in

commercial sex.” We agree with the government.

At trial, the government presented two key witnesses who

testified to Archer’s involvement with Brown: Minor Victim 2 and

a federal agent who was present when Brown was arrested. Minor

Victim 2 testified that Brown and Archer transported her from Fort

Lauderdale to Orlando together and that Archer participated in cre-

ating and posting the advertisement featuring Minor Victim 2 by

taking the photographs of her and by sending them to Brown so

that he could make the advertisement. Even after learning that Mi-

nor Victim 2 was 15 years old, Archer continued to supervise the

girl. That testimony would permit a reasonable jury to infer that

Brown and Archer had an agreement to commit child sex traffick-

ing. See Mozie, 752 F.3d at 1287 (describing an agreement and

knowledge of the goal of that agreement as the first two elements

of a conspiracy). And Minor Victim 2 testified that Archer acted at

Brown’s direction, which allowed the jury to infer that Brown vol-

untarily joined the conspiracy. See id.

The federal agent also testified about seeing Archer and

Brown together with another minor. Brown drove Archer to the

undercover meeting with a 17-year-old in the backseat. Brown and

Archer’s continued association and the continued association with

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14 Opinion of the Court 22-14056

minors also supports the jury’s finding that the two conspired to

commit child sex trafficking.

Brown was also convicted of attempted sex trafficking of a

minor. 18 U.S.C. §§ 1591, 1594(a). Section 1594(a) provides that

“[w]hoever attempts to violate . . . [section] 1591 shall be punisha-

ble in the same manner as a completed violation of that section.”

To prove attempt, the government need prove only that the defend-

ant acted with “the specific intent to engage in the criminal conduct

for which he is charged” and that the defendant “took a substantial

step toward commission of the offense.” United States v. Murrell, 368

F.3d 1283, 1286 (11th Cir. 2004).

Brown challenges both elements of the attempt conviction.

He argues that, because no one testified that they saw Brown and

Minor Victim 1 directly interact and no one testified that Brown

himself prepared or posted the prostitution advertisement of Mi-

nor Victim 1, there was insufficient evidence to support the at-

tempt conviction. We disagree.

Child Witness testified that she found Minor Victim 1 se-

questered in a hotel room with Brown and several other adults, and

that there were needles and pills “all over the table.” While there,

Brown asked the girls if they would like to “make money” like Mi-

nor Victim 1 and explained the process of signing up for a prostitu-

tion website, taking photographs, having sex with men, and getting

paid. Someone showed Child Witness a prostitution advertisement

for Minor Victim 1, which featured photos taken in the same hotel

room. When Child Witness, her friends, her mother, and the police

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came back to rescue Minor Victim 1 the next day, Child Witness

told the police officer that Minor Victim 1 was on drugs and did not

know what was happening to her. Child Witness’s testimony pre-

sented sufficient evidence to allow a reasonable jury to infer that

Brown had the specific intent to traffic Minor Victim 1 and that he

took a substantial step—propositioning the girls—toward that

goal.

B. The District Court Did Not Abuse Its Discretion by

Admitting Evidence About Heidy Archer’s Phone.

Brown challenges the admission of the records related to

Heidy Archer’s phone, labeled Exhibit 47. At trial, he challenged

the admission of that exhibit under Federal Rules of Evidence 403,

404, and 802. On appeal, he makes only a passing reference to

Rules 403 and 404. So he abandons any challenge to the relevance

of those documents or their admission to prove intent or another

permissible purpose. See Sapuppo v. Allstate Floridian Ins., 739 F.3d

678, 681 (11th Cir. 2014). As for Rule 802, Brown challenges the ad-

mission of portions of Exhibit 47 on the ground that statements in

the record constitute hearsay. But we disagree; each statement ei-

ther is not hearsay or satisfies an exception to the prohibition of

hearsay.

Federal Rule of Evidence 802 prohibits the introduction of

hearsay at trial. “Hearsay” is a statement by an out-of-court declar-

ant introduced “to prove the truth of the matter asserted.” FED. R.

EVID. 801(c). But, when “offered against an opposing party,” nei-

ther statements made by the opposing party, id. R. 801(d)(2)(A), nor

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16 Opinion of the Court 22-14056

statements “made by the party’s coconspirator during and in fur-

therance of the conspiracy” are hearsay, id. R. 801(d)(2)(E). To ad-

mit a statement under Rule 801(d)(2)(E), “the government must

prove by a preponderance of the evidence” that “(1) a conspiracy

existed; (2) the conspiracy included the declarant and the defendant

against whom the statement is offered; and (3) the statement was

made during the course and in furtherance of the conspiracy.”

United States v. Magluta, 418 F.3d 1166, 1177–78 (11th Cir. 2005) (ci-

tation and internal quotation marks omitted). “In determining the

admissibility of co-conspirator statements, the trial court may con-

sider both the co-conspirator’s statements and independent exter-

nal evidence.” Id. at 1178 (citation and internal quotation marks

omitted). And among the exceptions to the prohibition of hearsay

in Rule 802, Rule 803(6) permits the admission of business records,

including cell phone data. See United States v. Sanchez, 586 F.3d 918,

928–29 (11th Cir. 2009) (holding that district court did not abuse its

discretion in admitting cell phone data).

Each statement Brown challenges either fits under one of

the hearsay exceptions or is not hearsay. First, many of the exhibits

are admissible under Rule 803(6) as business records. Exhibits 47A,

F, G, and H are an extraction report from the cell phone, records

of the cell phone numbers and emails for Archer’s phone, and call

logs associated with her phone. It was not an abuse of discretion to

admit those business records under Rule 803(6). See id. Similarly,

Exhibits 47L through P are photographs from Archer’s phone with

location data, photographs of her cell phone, and another extrac-

tion report of cell phone data. There are no statements contained

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in the photographs, and to the extent that the location data and the

extraction report are “statements,” they also satisfy the business-

records exception. See id.

Second, Exhibit 47C is a transcript of an audio message re-

cording Brown’s statements to Archer. It is not hearsay under

Rule 801(d)(2)(A) because it is a statement of a party opponent.

And Exhibit 47E-1 contains many messages from Brown to Archer,

which are admissible for the same reason.

Third, Exhibit 47D is a series of text messages between

Archer and Minor Victim 2. The messages include a series of im-

ages, short messages discussing where the two speakers are, and

mentions of “[S]lime”—Brown’s alias. There was ample evidence

that Archer was Brown’s coconspirator in the child sex trafficking

conspiracy. See Magluta, 418 F.3d at 1177–78. The district court rea-

sonably could have found that these discussions of location and co-

ordination were in furtherance of the conspiracy, as they suggest

that Archer helped to manage Minor Victim 2’s whereabouts and

activities. The district court did not abuse its discretion in admitting

Archer’s statements under Rule 801(d)(2)(E), and the messages

from Minor Victim 2 to Archer provide context to Archer’s state-

ments and were not introduced for the truth of the matter asserted

and are not hearsay.

Fourth, Exhibit 47J is a log of text messages on Archer’s

phone. Because none of the messages were introduced for the

truth of the matter asserted, the district court did not abuse its dis-

cretion in admitting them.

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18 Opinion of the Court 22-14056

Finally, Exhibit 47E-1 is a 13-page excerpt from Exhibit 47E

that contains a series of text messages between Brown and Archer

in early February 2019. Archer’s messages in this exhibit fall into

three categories. Page one up to the last message on page four, the

first message on page five, pages six and seven, the first message on

page eight, and pages nine through thirteen establish only the rela-

tionship between Brown and Archer and were not introduced for

the truth of the matters asserted. The last message on page four

and the remaining messages on page five discuss “a 15yr old,” and

Archer’s accusation that Brown had sex with that 15-year-old, Mi-

nor Victim 2. These messages were also not introduced for the

truth of the matters asserted but instead establish that Brown and

Archer knew that Minor Victim 2 was 15.

Only the rest of the messages on page eight, which discuss

Minor Victim 2 and that someone had gotten her a phone, remain.

They also include two messages from Archer to Brown admonish-

ing him to treat Minor Victim 2 better because “[s]he makes [him]

money.” Those messages in furtherance of the conspiracy concern

the maintenance of Minor Victim 2 while Brown and Archer traf-

ficked her. The district court did not abuse its discretion in admit-

ting this page of Exhibit 47E-1.

Brown also argues that the admission of these exhibits vio-

lated the Confrontation Clause of the Sixth Amendment. Brown

did not raise this argument below, so we review for plain error.

Jiminez, 564 F.3d at 1286. Plain error review requires Brown to es-

tablish that “(1) there is an error; (2) that is plain or obvious;

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22-14056 Opinion of the Court 19

(3) affecting [his] substantial rights in that it was prejudicial and not

harmless; and (4) that seriously affects the fairness, integrity, or

public reputation of the judicial proceedings.” Id. (citation and in-

ternal quotation marks omitted).

Brown cannot prove an error, plain or otherwise. The Con-

frontation Clause prohibits the admission of only “testimonial”

hearsay—“solemn declaration[s] or affirmation[s] made for the

purpose of establishing or proving some fact.” Crawford v. Washing-

ton, 541 U.S. 36, 51 (2004) (citation and internal quotation marks

omitted). Statements are testimonial if “in light of all the circum-

stances, viewed objectively, the primary purpose of the conversa-

tion was to create an out-of-court substitute for trial testimony.”

United States v. Hano, 922 F.3d 1272, 1287 (11th Cir. 2019) (alteration

adopted) (citation and internal quotation marks omitted). “Only

statements of this sort cause the declarant to be a ‘witness’ within

the meaning of the Confrontation Clause.” Davis v. Washington, 547

U.S. 813, 821 (2006). And “a casual remark to an acquaintance” does

not “bear[] testimony.” See Crawford, 541 U.S. at 51. None of the

statements in Exhibit 47 were testimonial, so Brown can prove no

confrontation error.

C. The District Court Did Not Err in Denying Brown’s Pro Se

Motions to Dismiss the Indictment under the Speedy Trial Act.

Under the Speedy Trial Act, an accused is entitled to a trial

date within 70 days of his indictment or arraignment. 18 U.S.C.

§ 3161(c)(1), (d)(1). Certain days, however, may be excluded from

the 70-day count, including “delay[s] resulting from a continuance

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20 Opinion of the Court 22-14056

. . . if the judge granted such continuance on the basis of his find-

ings that the ends of justice served by taking such action outweigh

the best interest of the public and the defendant in a speedy trial.”

Id. § 3161(h)(7)(A). District judges may consider several factors in

determining whether a continuance is in “the ends of justice,” in-

cluding whether it would prevent “a miscarriage of justice” or en-

sure “adequate preparation for pretrial proceedings” or “reasonable

time necessary for effective preparation” for either the defense or

the prosecution, “among other[]” factors. Id. § 3161(h)(7)(B).

The district court must state its reason for granting a contin-

uance on the record, “either orally or in writing.” Id.

§ 3161(h)(7)(A). It can make those findings when it enters the con-

tinuance or before it rules on the merits of a motion to dismiss. See

Zedner v. United States, 547 U.S. 489, 506–07 (2006). If a defendant

fails to move for dismissal on Speedy Trial grounds before trial, that

failure “constitute[s] a waiver of the right to dismissal” under the

statute. 18 U.S.C. § 3162(a)(2).

The district court denied or struck most of Brown’s motions

to dismiss not on the merits of his Speedy Trial claims, but instead

because his pro se motions violated Southern District of Florida Lo-

cal Rule 11.1(d)(4). That local rule prohibits pro se filings when the

defendant is represented by counsel. See S.D. FLA. LOC.

R. 11.1(d)(4). The district court denied two of those motions ex-

pressly for violating the local rule. In denying another of Brown’s

motions, the district court cited circuit precedent confirming the

logic of the local rule, and it noted that Brown was “represented

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22-14056 Opinion of the Court 21

by private counsel.” See Cross, 893 F.2d at 1291–92. And in denying

Brown’s final motion, the district court explained that it “st[ood] on

its previous rulings” on Brown’s “repetitive” motions and noted

that “nothing ha[d] changed to justify” dismissal. Brown has not

established that the district court “made a clear error of judgment”

in denying these motions based on Brown’s pro se filings. See

McLean, 802 F.3d at 1233 (noting that the challenging party bears

the burden to show clear error in a district court’s application of its

local rules).

The district court considered the merits of only one of

Brown’s pro se motions to dismiss. In that motion, Brown argued

that the attorneys “taking vacation” did “not support . . . a contin-

uance in a speedy trial petition.” Brown contended that his Speedy

Trial clock should have restarted at the end of the pandemic con-

tinuances on July 6, 2021. He also asserted that before the district

court entered the most recent continuances, 109 Speedy Trial days

would have elapsed by the anticipated trial date. The government’s

response outlined the number of unexcluded days that had elapsed

since Brown’s indictment and stated that only 36 Speedy Trial days

would have elapsed by the new trial date. The Speedy Trial calcu-

lations included the previous continuances that Brown had not val-

idly challenged and that were granted to serve “the ends of justice,”

as well as the pandemic excluded days. The district court adopted

the government’s calculations and denied the motion to dismiss.

The district court did not clearly err in calculating the num-

ber of Speedy Trial days that had elapsed since Brown’s indictment.

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22 Opinion of the Court 22-14056

As outlined in the government’s response to Brown’s motion, as of

the July 14, 2021, order, the only unexcluded days were February

13, 2020, to February 28, 2020, (15 days) and March 4, 2020, to

March 17, 2020, (13 days). On March 17, 2020, Brown moved to

continue, and the district court granted that motion, continuing

Brown’s trial until May 11, 2020. And the parties agreed below that

the period from March 30, 2020, to July 6, 2021, was excluded un-

der the administrative orders, although the government asserted

that the pandemic exclusions continued into September. The pe-

riod from July 6, 2021, to September 13, 2021, was excluded in “the

ends of justice” upon joint motion by the parties because ongoing

pandemic issues continued to present availability challenges. And

the period from September 13, 2021, to September 27, 2021, was

excluded in “the ends of justice” because defense counsel had only

been granted access to meet with Brown in person the day the con-

tinuance was entered. So, even if we were to assume that the eight

days from the July 14 continuance were not excludable, 36 days

would have elapsed by the new trial date. Because the district court

did not clearly err in its finding that fewer than 70 unexcluded days

would elapse by the trial date, it did not err in denying Brown’s

motion to dismiss.

D. The District Court Did Not Abuse Its Discretion by Denying

Brown’s Motion to Strike the Jury Venire.

Criminal defendants are entitled to “a panel of impartial, in-

different jurors.” Murphy v. Florida, 421 U.S. 794, 799 (1975) (citation

and internal quotation marks omitted). But jurors are entitled to a

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22-14056 Opinion of the Court 23

presumption of impartiality. See id. at 800. To overcome that pre-

sumption, the party seeking to strike the venire must prove “actual

bias.” See United States v. Khoury, 901 F.2d 948, 955 (11th Cir. 1990)

(citation and internal quotation marks omitted). To make that

showing, the moving party must point to “an express admission of

bias[] or proof of specific facts showing . . . that bias must be pre-

sumed.” Id. (citation and internal quotation marks omitted) The

trial judge has discretion whether to strike the venire. United States

v. Tegzes, 715 F.2d 505, 508–09 (11th Cir. 1983).

Brown contends that the district judge “inject[ed] bias and

prejudice into the jury” when he read the first count of the original

indictment, instead of the superseding indictment, and that he

abused his discretion in denying Brown’s motion to strike the ve-

nire. The original indictment charged Brown with conspiracy to

sex traffic a minor and specified that Brown conspired to traffic

“persons, that is, Minor Victim 1, Minor Victim 2, and Minor Victim 3.”

The superseding indictment lacked any specific reference to the in-

dividual victims; it instead stated that Brown conspired to traffic

“by any means a person.” Brown suggests that, by reading “Minor

Victim 3” into the trial record, the district judge introduced the pos-

sibility that Brown’s crimes involved more than the two minor vic-

tims addressed in the substantive counts and that there may have

been additional substantive counts related to those unmentioned

victims.

Brown’s theory fails to suggest any actual bias on the part of

the jury. See Khoury, 901 F.2d at 955. Even if the district court raised

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24 Opinion of the Court 22-14056

the possibility of additional victims, the government’s argument

about the conspiracy highlighted at least three minor victims—Mi-

nor Victim 1, Minor Victim 2, and the minor in the back of the car

when Brown was arrested—that Brown targeted during the con-

spiracy. And Child Witness testified that Brown and several other

adults tried to recruit her and two of her friends to sign up for their

prostitution website. So the jury heard about at least six minors

that Brown targeted. As for the inference that some deleted sub-

stantive counts may have addressed conduct related to Minor Vic-

tim 3, Brown presents no evidence that the jury considered any

such counts.

Moreover, the district judge instructed the jury that “[t]he

indictment is not to be considered as evidence” and that the indict-

ment “isn’t evidence of guilt.” Because jurors are presumed to fol-

low these instructions, Grushko, 50 F.4th at 14, the instructions

cured any potential bias introduced by mentioning Minor Victim 3.

Cf. United States v. Peters, 435 F.3d 746, 753 (7th Cir. 2006) (finding

that an instruction “that the indictment was not evidence[] . . .

weigh[ed] against finding plain error”). Without specific evidence

of bias, we cannot say that the district court manifestly abused its

discretion in denying Brown’s motion to strike. See Grushko, 50

F.4th at 14 (finding no reversible error where the district court’s dis-

cussion during jury instructions “was unnecessary, unwise and

should have been avoided”).

IV. CONCLUSION

Brown’s convictions are AFFIRMED.