REVISED JUNE 5, 2008

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                          FILED
                                   No. 06-41528                          April 30, 2008

                                                                    Charles R. Fulbruge III
                                                                            Clerk
UNITED STATES OF AMERICA

                                             Plaintiff - Appellee
v.

ARZELL GULLEY

                                             Defendant - Appellant



                 Appeal from the United States District Court
                       for the Eastern District of Texas


Before KING, DEMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      The opinion previously filed in this case, United States v. Gulley, -- F.3d --,

(5th Cir. April 8, 2008), is withdrawn and the following is
substituted.
      On April 20, 2005, Arzell Gulley was charged in a two-count indictment.
Count One charged Gulley with the murder of Daryl Brown in violation of 18
U.S.C. § 1111, and aiding and abetting Brown’s murder in violation of 18 U.S.C.
§ 2. Count Two alleged that Gulley possessed a dangerous weapon in a federal
prison in violation of 18 U.S.C. § 930(c). A jury found Gulley guilty of both
counts on June 28, 2006. Gulley now appeals, arguing that his conviction should
                                  No. 06-41528

be reversed because: (1) there was insufficient evidence to prove guilt; (2) the
district court improperly excluded evidence of Brown’s specific prior acts of
violence; (3) the district court refused to conduct an in camera hearing to
determine whether his due process rights were violated as a result of pre-
indictment delay; (4) he received ineffective assistance of counsel; and (5) he was
not present when the district court instructed the jury to continue deliberating.
Finding no reversible error, we affirm.
                              I. BACKGROUND
        Arzell Gulley and his original co-defendant, David Jackson, were federal
inmates incarcerated in the United States Penitentiary, Beaumont, Texas
(“USP-Beaumont”). Between 5:00 p.m. and 8:30 p.m., the inmates at USP-
Beaumont are free to intermingle with each other outside their housing units in
an area referred to as the “compound.” On December 16, 1999, at approximately
6:00 p.m., Gulley and Jackson began arguing with another inmate, Daryl Brown,
while in the compound.
        The evidence concerning the initial events conflicted, but it was
undisputed that it ended with Gulley and Jackson chasing Brown into Housing
Unit 3B-1 while carrying shanks.        Each housing unit at USP-Beaumont,
including Unit 3B-1, was equipped with surveillance cameras. Camera footage
from six different cameras showed that Gulley and Jackson chased Brown
throughout Unit 3B-1 until Brown ran into cell number 125. Gulley and
Jackson, in that order, followed Brown into the cell. Inmates Jerome Prince and
Victor Richards quickly exited the area after Gulley and Jackson entered the
cell.
        A fight ensued inside the cell, although the surveillance cameras were
unable to capture images of the occupants from the waist up.                 After
approximately thirty seconds, Gulley and Jackson walked out of cell number
125, leaving Brown lying on the floor. They proceeded in different directions, but


                                          2
                                  No. 06-41528

were approached by correctional staff and complied with orders to lay down on
the floor. A correctional officer later found a shank on a chair close to where
Gulley lay on the floor.
      While Gulley and Jackson were lying on the ground, Brown exited the cell,
bleeding profusely from his neck and chest and holding Jackson’s weapon. He
advanced towards Jackson, but collapsed. Brown was taken to an area hospital
where he was pronounced dead. It was concluded in the autopsy report that
Brown suffered from eleven knife wounds, but a single strike that pierced the
upper lobe of his left lung and the pericardial sac of his aorta caused his death.
      The Government did not bring charges against any defendant based on
these events until November 19, 2003, when Gulley and Jackson were indicted
for unlawful possession of weapons in a federal prison. That indictment was
voluntarily dismissed by the Government on February 17, 2004. Over a year
later, on April 20, 2005, Gulley and Jackson were re-charged in this case in a
two-count indictment. Count One alleged premeditated murder in violation of
18 U.S.C. § 1111, and aiding and abetting premeditated murder in violation 18
U.S.C. § 2. Count Two alleged that Gulley and Jackson possessed dangerous
weapons in a federal prison in violation of 18 U.S.C. § 930(c). On March 16,
2006, Gulley filed a motion to sever his trial from Jackson’s, arguing that it
would prejudice his case to try him with Jackson, who he claimed bore sole
responsibility for Brown’s death. The district court granted the motion on April
6, 2006.
      On April 18, 2006, Gulley filed a motion to dismiss the case for pre-
indictment delay and requested discovery and a hearing on the motion so that
he could show that: (1) the Government intentionally delayed the prosecution
to gain a tactical advantage; and (2) he was prejudiced by the delay. On April
25, 2006, the Government responded that “[t]he reason for the delay in this case
involved investigative and prosecutorial resources, scientific testing procedures,


                                        3
                                  No. 06-41528

and the Department of Justice’s Protocol on the prosecution of death penalty
eligible cases.” Rather than prejudicing Gulley, the Government contended that
as a result of the delay the prosecution decided not to seek the death penalty.
Moreover, the Government asserted that the motion should be denied because
there was no evidence of any prejudice to Gulley. On May 12, 2006, the district
court decided to carry the motion forward until the end of the trial in order to
better assess whether Gulley suffered prejudice. The court reasoned that while
the Government’s delay was “curious and wondering, that doesn’t mean it [was]
prejudicial necessarily.” The district court did not permit any discovery into the
Government’s prosecutorial decisionmaking and refused to hold an in camera
hearing.
      On June 1, 2006, the Government filed a motion in limine to exclude any
reference to specific acts of violence previously committed by Brown, other than
opinion or reputation testimony, unless Gulley had actual knowledge of the acts
before the attack. On June 14, 2006, Gulley filed a response arguing that while
he “under[stood] that specific acts of misconduct committed by Brown at other
institutions or on other days may well be inadmissable,” he ought to be able to
introduce testimony of specific acts Brown committed on the day of his death in
order to support a self defense claim. Specifically, Gulley sought to show that:
(1) Brown threatened another inmate around four to six hours before his death;
(2) Brown approached an inmate and requested weapons for Brown’s associates;
and (3) Brown had a knife in his hand immediately before the altercation broke
out in the compound. On June 14, 2006, the district court granted the motion
in limine generally, and specifically prohibited Gulley from introducing evidence
that Brown allegedly assaulted another inmate or sought to procure weapons on
the day of his death.    The district court reasoned that the evidence was
inadmissible because Gulley did not contend that he had actual knowledge of
those acts. On the other hand, as the Government conceded, the district court


                                        4
                                 No. 06-41528

ruled that Gulley could introduce evidence that Brown had a knife immediately
before the fight began.
      Gulley’s seven-day trial began on June 19, 2006. The Government offered
testimony from correctional officers who observed Gulley and Jackson in a verbal
altercation with Brown just outside Unit 3B-1 in the compound. Brown, who the
correctional officers testified was unarmed and acting alone, took off his jacket
and shirt and assumed a fighting position. Officer Chopane then heard Jackson
yell “let’s get that mother fucker,” whereupon both Gulley and Jackson pulled
shanks. The officers all testified that Brown began to flee and that Gulley and
Jackson chased him into Unit 3B-1. None of the officers saw any other inmates
participating in the fight or taking any other type of aggressive action.
      The Government also showed the jury footage from the six surveillance
cameras, which captured Brown’s flight down the corridors of Unit 3B-1. Gulley
and Jackson could both be seen at various times holding objects in their hands;
Brown did not appear to be holding a shank or other weapon. One of the video
tapes showed Brown pausing from his flight at one point to pick up a microwave,
which he threw at Jackson. He then continued to run into cell number 125, with
Gulley and Jackson entering after him. Although the video only captured
images of the inmates from the waist down once they entered the cell, it
appeared that Brown was finally cornered against the far wall of the cell.
      Inmate Prince, who could be seen in the video footage with inmate
Richards evacuating the area of cell number 125, also testified at the trial. He
stated that while he was standing outside of cell number 125, Brown fled into it
and Gulley and Jackson followed him in. Moreover, Prince testified that as
Gulley and Jackson approached the cell, Gulley told him: “we’re going to kill
this nigger, get out of here.” Prince did not see Brown killed because he quickly
left the area, but he testified that he did observe Brown crawling on the ground
of the cell, trying to escape from Gulley and Jackson.


                                       5
                                  No. 06-41528

      The Government’s expert witness, Dr. Tommy Brown, testified that Brown
was fatally wounded when a blade pierced the medial aspect of his lung and his
aorta. There was no evidence that Gulley’s shank had any of Brown’s blood on
it, although DNA analysis confirmed that his gloves and pants were stained with
trace amounts of Brown’s blood. Dr. Brown opined on direct examination that
the shank possessed by Jackson was the weapon that caused the fatal wound,
although it was possible that the shank found near Gulley inflicted three of
Brown’s more minor wounds. On cross-examination, Dr. Brown conceded that
in his professional opinion Jackson’s blade caused all of the wounds.
      Finally, in order to show consciousness of guilt, the Government
introduced evidence that Gulley and Jackson, along with another inmate,
escaped from a federal correctional institute on July 10, 2005, shortly after being
arraigned in this case. According to the testimony, Jackson and the third inmate
were able forcibly to remove the prison keys from a correctional officer, which
they used to free Gulley from his cell. Gulley did not physically harm anyone
during the escape, but he did threaten a female officer in order to coerce her to
open the prison gates. He was apprehended shortly after escaping.
      In his defense in chief, Gulley sought to show that Brown was a violent
person who intended to cause Jackson harm and that Gulley was attacked
because Brown mistakenly associated Gulley with Jackson. Neither Gulley nor
Jackson testified, but Gulley introduced testimony from other inmates that:
(1) Brown had a reputation for violence; (2) Brown was seen brandishing a
weapon both earlier in the day and immediately before the fight broke out in the
compound; and (3) Brown and his friends ambushed Jackson and Gulley. For
example, inmate Matt Lindsey testified that Brown was “bad news” and
“violent”; that he had slapped another inmate the morning of Brown’s death and
chased that inmate with a shank; and that Brown had threatened him on the
same day. Inmate Andres Aguiar, meanwhile, testified that he saw Brown


                                        6
                                  No. 06-41528

waylay Jackson with a knife while two of Brown’s friends simultaneously
attacked Gulley.
      In addition, Gulley called a correctional officer, who testified that Jackson
took credit for murdering Brown. Officer Mike Mattes stated that Jackson:
            requested to speak to me, and I came to the cell door
            where he was standing, and he stated to me that he did
            not want to accept a cellee, another individual into the
            cell where he was at, and that he stated to me that “I’m
            through playing games with you people, and if you don’t
            believe me, I will kill again. Look at the tapes.”
Officer Mattes testified that he “absolutely” knew that Jackson was referring to
the tapes capturing the murder of Brown, although he did not inquire further
into the incident because Jackson refused to continue their discussion. He
conceded that Jackson never said: “I was the only one involved [in Brown’s
murder.]”
      Finally, Gulley presented the testimony of Bob Henderson, a crime scene
reconstructionist and expert in blood stain pattern analysis. Henderson testified
that he had reviewed reports by prison staff and the FBI, the autopsy report,
photographs of the weapons that were involved, and photographs of the various
participants’ clothing. Based on this evidence, he concluded that there was
insufficient evidence to prove that either Gulley or Jackson struck the mortal
blow. On cross-examination, Henderson viewed for the first time one of the
surveillance videos. Although the video did not alter his opinion at the time, he
later realized it conclusively proved that Gulley did not strike the mortal wound.
Defense counsel sought to recall Henderson to testify to his most recent opinion,
but the district court refused to permit the additional testimony because
Henderson had never provided a report on the issue.
      After the close of the evidence, on June 26, 2006, Gulley moved for a
judgment of acquittal, which the district court denied. On June 27, 2006, before
closing argument, Gulley renewed his motion to dismiss the case for pre-

                                        7
                                  No. 06-41528

indictment delay. Gulley argued that he was prejudiced because the delay
resulted in the loss of a video that might have contained images supporting his
assertion of self defense. The district court denied the motion because there was
no evidence that any missing video existed.
      That same morning, the jury heard closing arguments, received the jury
instructions and verdict form, and retired for deliberation. At approximately
3:30 p.m., the jury sent a note to the district court judge, stating that “members
of the jury wants recess [sic] for the day in order to collect thoughts and reflect
on all points made about the case. Jury will convene at 9:00 a.m. Wednesday.”
Defense counsel were present, but the record is silent as to whether Gulley was
present. The district court informed counsel that it was going to instruct the
jury to deliberate until 5:00 p.m., but defense counsel objected that this might
lead to juror coercion. Defense counsel suggested that the district court instead
instruct the jury to deliberate until 4:00 p.m. Accordingly, the district court
responded to the jury with a note requesting that they “please deliberate until
4:00, then please return in the morning at 10:00 a.m.”
      The next morning, on June 28, 2006, at approximately 10:15 a.m., the jury
notified the district court that it had reached a verdict. The jury found Gulley
guilty of both counts of the indictment.      On October 4, 2006, Gulley was
sentenced to life imprisonment. He now appeals his conviction.
                                 II. ANALYSIS
A. Sufficiency of the Evidence
      Gulley argues that there was legally insufficient evidence to support his
conviction for murder or for aiding and abetting murder. He emphasizes that
there was no eye-witness testimony or video evidence proving that he caused
Brown’s death. Nor was there any evidence that the weapon he possessed
caused Brown’s fatal wounds. While Brown’s blood was found on his gloves,
Gulley argues that evidence merely proves that he was in the same area as


                                        8
                                  No. 06-41528

Brown when Jackson murdered him. To be legally sufficient, Gulley contends,
the prosecution was required to prove that he associated himself with the
murder by helping to facilitate the crime in some manner—by restraining Brown
or blocking Brown from exiting the cell, for example. He argues, however, that
there was no such evidence in this case.
      Our review of the sufficiency of the evidence is “highly deferential to the
verdict.” United States v. Harris, 

, 869 (5th Cir. 2002). The court
asks “‘whether the evidence, when reviewed in the light most favorable to the
government with all reasonable inferences and credibility choices made in
support of a conviction, allows a rational fact finder to find every element of the
offense beyond a reasonable doubt.’” 

States v. Asibor, 

, 1030 (5th Cir. 1997)). Thus, our inquiry is “limited to whether the
jury’s verdict was reasonable, not whether we believe it to be correct.” United
States v. Williams, 

, 576 (5th Cir. 2001).
      To establish a defendant’s guilt for first degree murder under 18 U.S.C.
§ 1111, the Government must prove that a defendant: (1) unlawfully killed
another person; (2) with malice aforethought; and (3) premeditation. United
States v. Agofsky, 

, 371 (5th Cir. 2006). Moreover, anyone who
“aids, abets, counsels, commands, induces or procures [the murder], is
punishable as a principal.” 18 U.S.C. § 2. “An aider and abettor is liable for
criminal acts that are the ‘natural or probable consequence of the crime’ that he
counseled, commanded or otherwise encouraged.” United States v. Vaden, 

, 783 (5th Cir. 1990) (citations omitted).
      To sustain a conviction for aiding and abetting, the Government must
prove that the underlying offense occurred, “that [the] defendant associated with
[the] criminal venture, purposefully participated in the criminal activity, and
sought by his or her actions to make the venture succeed.” United States v. Polk,

, 620 (5th Cir. 1995) (citations omitted). A defendant associates

                                        9
                                 No. 06-41528

himself with a criminal venture when he shares in the criminal intent of the
principal. United States v. Jaramillo, 

, 923 (5th Cir. 1995). “To
participate in the criminal activity means that the defendant acted in some
affirmative manner designed to aid the venture.” 

      We find that there is sufficient evidence to uphold a conviction for aiding
and abetting Brown’s murder under 18 U.S.C. § 2. A rational jury could have
concluded that Brown intended to join in Jackson’s criminal venture because
there was evidence he: (1) drew a deadly weapon against Brown in response to
Jackson’s instructions to do so; and (2) joined in chasing Brown for
approximately sixty yards into cell number 125. Indeed, the video evidence
shows that Gulley, weapon in hand, was the first person to corner Jackson in the
cell. It does not matter whether Gulley struck the mortal blow because he
participated in the chase and encouraged the fight.       See United States v.
Villarreal, 

, 730-31 (5th Cir. 1992) (upholding an aiding and
abetting murder conviction where the defendant’s fight with a police officer
ended when his co-defendant shot the officer). Moreover, a rational jury could
conclude that Gulley intended for his actions to assist in the murder of Brown.
Inmate Prince testified that upon running into cell number 125, Gulley told him
and Richards “we’re going to kill this nigger, get out of here.” This is direct
evidence of intent, and the jury was entitled to credit the testimony as they saw
fit. See United States v. Cathey, 

, 368 (5th Cir. 2001).
      Gulley’s seeks to avoid this conclusion by analogizing his case to the
Eighth Circuit’s decision in United States v. Grey Bear, 

(8th Cir.
1987). In that case, eleven co-defendants were brought to trial and variously
convicted of first-degree murder, second-degree murder, and assault resulting
in serious bodily injury.   

   The evidence established that the
defendants attacked the victim at a party, chased him to a highway, beat him,
and left him lying on a road. 

One of the defendants then drove

                                       10
                                   No. 06-41528

over the victim. 

The court found that there was insufficient
evidence to support a conviction against co-defendant Maynard Dunn for assault
resulting in serious bodily injury because the only evidence implicating him was
a single witness’s testimony that Dunn “threw a punch” at the victim. 

There was no evidence to show when Dunn threw the punch, where on the
victim’s body it landed, or what type of injury it caused. 

Dunn could have aided and abetted the crime of assault by implicitly
encouraging others to engage in their more severe attack on the victim, the
Government’s own witness testified that Dunn had stated he did not want to get
involved in the fight. 

on Grey Bear is unavailing. Unlike in Grey Bear, here
there is no ambiguity in the time line or any question that Gulley was involved
in the ultimate events leading to the victim’s death. Also, in Grey Bear, the
prosecution’s witness testified that the co-defendant expressly disavowed an
intent to take part in the fight that caused the victim’s death. But here the
evidence shows that Gulley fully participated in the events leading up to Brown’s
death and expressed an intent to kill Brown. Thus, Gulley was not convicted
based on his “mere presence at the scene of the crime.” See 

(citation
omitted). Gulley was convicted because he drew a weapon in response to
Jackson’s exhortation to “get” Brown, chased Brown into cell number 125, where
the fatal blow was struck, and told Prince he was going to kill Brown seconds
before Brown was in fact killed.
B. Character Evidence
      Gulley argues that the district court erred by excluding proof of eight prior
instances of violence committed by Brown because such evidence tended to prove
that Brown was the first aggressor. Gulley points out that in order to prove that
he acted in self defense, he was required to show that he was neither the first
aggressor nor otherwise at fault for inciting the fatal attack. He contends,

                                        11
                                  No. 06-41528

therefore, that evidence of Brown’s prior violent acts were admissible under Rule
405(b) of the Federal Rules of Evidence to show that Brown was more likely than
not the first aggressor. Moreover, Gulley asserts that the exclusion of the
evidence was harmful to his case because there were no cameras that captured
the events in the compound precipitating the fight. The Government was able
to show video evidence of Gulley chasing Brown, but Gulley was allegedly
precluded from offering evidence justifying his conduct.
      We review a district court’s decision to exclude character evidence for an
abuse of discretion. United States v. Marrero, 

, 260 (5th Cir. 1990)
(citation omitted). In general, “[e]vidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion . . . .” FED. R. EVID. 404(a). However,
evidence of a “pertinent” character trait of the victim may be introduced. FED.
R. EVID. 404(a)(2). Rule 405 establishes the permissible methods of proving
character:
             (a) Reputation or Opinion. In all cases in which
             evidence of character or a trait of character of a person
             is admissible, proof may be made by testimony as to
             reputation or by testimony in the form of an opinion.
             On cross-examination, inquiry is allowable into
             relevant specific instances of conduct.

             (b) Specific instances of conduct. In cases in which
             character or a trait of character of a person is an
             essential element of a charge, claim, or defense, proof
             may also be made of specific instances of that person’s
             conduct.

FED. R. EVID. 405. Rule 405(b) thus limits the use of specific prior acts to cases
where character is at issue “in the strict sense” because that method of proof
“possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and
to consume time.” Rule 405 advisory comm. notes.


                                        12
                                  No. 06-41528

      Gulley argues that character was an essential element at issue in this case
because Brown’s propensity for violence tends to indicate that he was the first
aggressor. In support, he relies upon United States v. Burks, 

, 434
(D.C. Cir. 1972), where the D.C. Circuit held that “evidence of the deceased’s
violent character, including evidence of specific violent acts, is admissible where
a claim of self-defense is raised.” The court reasoned that “[s]uch evidence is
relevant on the issue of who was the first aggressor . . . .” 

court noted that it is irrelevant whether the defendant knew of the prior violent
acts “for the question is what the deceased probably did, not what the defendant
probably thought the deceased was going to do.” 

n.4 (internal
quotation marks and citations omitted).
      Other circuit courts have disagreed with the D.C. Circuit. In United States
v. Gregg, 

, 934 (8th Cir. 2006) (citation omitted), the Eighth Circuit
acknowledged that a defendant can introduce evidence of a victim’s violent
character to establish conformity therewith when self defense is raised, but held
that such evidence is limited to reputation or opinion evidence because “a
victim’s violent character is not an essential element of . . . the defense of self-
defense.” The court reasoned that character evidence in the self-defense context
is circumstantial evidence and, therefore, may not be proven by prior specific
acts. 

The Eighth Circuit refrained from following the D.C.
Circuit’s decision in Burks because that case was decided before the Federal
Rules of Evidence were adopted. 

      In United States v. Keiser, 

, 854-55 (9th Cir. 1995), the Ninth
Circuit held that “[u]nder the Federal Rules of Evidence, only reputation or
opinion evidence is proper to show that the victim of an assault had a propensity
toward violence.” 

The court stated that “[t]he language of the rule
states in straightforward manner that evidence of specific instances of conduct
may only be made when a person’s character is ‘an essential element of a . . .

                                        13
                                       No. 06-41528

defense.’” 

And it concluded that a victim’s character is not
an essential element of self-defense. 

The court reasoned that a
defendant could prove that a victim had a violent character and in fact attacked
the defendant, but still fail in a self defense claim if he used more force than
appeared reasonably necessary. 

other hand, it noted, a defendant
could prevail in his “claim of self-defense against an avowed pacifist, so long as
the jury agrees that the defendant reasonably believed unlawful force was about
to be used against him.” 

United States v. Smith, 

, 308 (7th Cir. 2000), the
Seventh Circuit stated that specific-acts character evidence is usually not
admissible to prove a propensity for violence. The Seventh Circuit chose not to
adopt the Ninth Circuit’s rationale in Keiser because specific acts of conduct
known to the defendant might factor into the defendant’s decision to act in self
defense. 

n.5. In such instances the defendant should be able to
introduce specific acts to prove his subjective belief.1               

& n.5.
Nevertheless, the court concluded that when prior violent acts are unknown to
the individual claiming self defense, they are necessarily circumstantial in
nature and cannot be admitted. 

.
       We find that Brown’s prior specific acts were not admissible to prove his
alleged propensity for violence. First, as recognized by the Seventh, Eighth, and
Ninth Circuits, the plain language of Rule 405(b) limits the use of specific



       1
         This distinction was actually acknowledged by the Ninth Circuit in Keiser, where the
Ninth Circuit stated that “we need not, and do not, reach the question whether specific acts
are admissible to bolster the assertion that the defendant’s belief in the need for force was

. In any event, it is not relevant to this case because Gulley does
not argue that Brown’s prior violent acts were known to him or that they were relevant to his
state of mind. He is simply trying to prove that Brown’s prior violent acts make it more likely
than not that Brown was the first aggressor.

                                              14
                                       No. 06-41528

instances of conduct to prove essential elements of a charge or defense. See FED.
R. EVID. 405(b); see also 

(holding that specific instances
of conduct are not admissible as circumstantial evidence proving lack of intent).
Second, Brown’s character was not an essential element of the self defense claim
in the “strict sense” because a self defense claim may be proven regardless of
whether the victim has a violent or passive character. See 

.
Finally, the D.C. Circuit’s decision in Burks is inapposite because it was
promulgated before the Federal Rules of Evidence were adopted. Although well-
reasoned, it does not comport with the subsequently adopted language of Rule
405(b) itself.2
C. Prosecutorial Delay
       Gulley argues that it was reversible error for the district court to refuse
to permit discovery into the Government’s reasons for delay in filing the
indictment. He asserts that the district court should have held some type of
hearing, in camera or otherwise, to determine what the Government’s motives
were because a defendant cannot bear the heavy burden of proving bad faith
without discovery. Gulley does not contend that there was sufficient evidence
of prejudice. Rather, he argues that by preventing him from inquiring into the
prosecutor’s decisionmaking process, the district court also prevented him from
ascertaining the advantage the Government gained.



       2
          Even were we to find that the district court had erred we would not reverse because
excluding the evidence was harmless. See United States v. Sumlin, 

, 688 (5th Cir.
2007) (citation omitted). This court will not overturn a conviction based on the exclusion of
evidence unless a reasonable probability exists that the error contributed to conviction. 

Here, even if Brown was the initial aggressor, the evidence was sufficient
to prove that Brown sought to withdraw from the attack and he did not pose an immediate
threat to Gulley. See United States v. Goodface, 

, 1235-36 (8th Cir. 1987)
(holding that self defense instruction was not warranted where the defendant’s actions
indicated he failed to withdraw from a conflict when he could have done so safely).

                                              15
                                  No. 06-41528

      In United States v. Crouch, 

, 1514 (5th Cir. 1996) (en banc),
this court held that “for preindictment delay to violate the due process clause it
must not only cause the accused substantial, actual prejudice, but the delay
must also have been intentionally undertaken by the government for the purpose
of gaining some tactical advantage over the accused in the contemplated
prosecution or for some other impermissible, bad faith purpose.”                An
“[i]ntentional delay for the purpose of gaining tactical advantage would include
delay for the purpose of rendering unavailable evidence favorable to the defense
or which would tend to undercut the government’s case.” 

n.23. To
establish prejudice, the defendant must offer more than mere speculation of lost
witnesses, faded memories or misplaced documents; he must show an actual loss
of evidence that would have aided the defense and that cannot be obtained from
other sources. 

(citations and quotations omitted). The burden is on
the defendant to prove both prongs of the test. United States v. Avants, 

, 441 (5th Cir. 2004) (citations omitted) (noting that this court does not follow
the minority view that once actual prejudice is shown the district court should
balance prejudice against the Government’s justification for delay). We review
the district court’s factual determinations when reviewing a motion to dismiss
for pre-indictment delay for clear error; legal conclusions are reviewed de novo.

      In this case, we find no reversible error in the district court’s decision to
refuse to hold an in camera hearing. Crouch advised district courts that “at least
in all but the very clearest and most compelling cases, the district court . . .
should carry [a motion to dismiss for pre-indictment delay] with the case, and
make the determination of whether actual, substantial prejudice resulted from
the improper delay in light of what actually transpired at trial.” 

This court has subsequently determined that even when a district court makes

                                        16
                                  No. 06-41528

a pre-trial finding that the prosecution’s delay caused actual prejudice, it is not
under an obligation to permit discovery or hold an open hearing. United States
v. Mulderig, 

, 540 (5th Cir. 1997). In this case, there was no reason
to hold any hearing because the district court found that Gulley suffered no
prejudice from the delay. Thus, even if discovery might have shown that the
Government sought to gain a tactical advantage by delaying the prosecution,
Gulley would not be entitled to a reversal because he had to prove bad faith and
prejudice. See 

(citations omitted). Gulley seeks to avoid
this argument by collapsing the two-prong standard into one test, arguing that
he cannot prove prejudice until he can discover why the prosecution was delayed.
But our case law is clear that each element is separate and distinct. See 

D. Ineffective Assistance of Counsel
      Gulley argues that he received ineffective assistance of counsel because his
attorneys did not adequately prepare Gulley’s crime-scene-reconstruction expert,
Henderson. In particular, Gulley notes that his counsel provided Henderson
with electronic copies of the surveillance videos, but Henderson was unable to
access them on his computer. Moreover, it is undisputed that if trial counsel had
rectified this problem when notified, Henderson would have opined that Jackson
struck the mortal blow that killed Brown. Gulley contends, therefore, that but
for his counsels’ error, the jury would have had concrete scientific evidence
proving that Jackson was the killer. In response, the Government argues that
this court should not reach the issue on direct appeal because the question was
not raised before the district court. In the event that this court does reach the
issue, however, the Government contends that Gulley cannot prove any
prejudice because the prosecution argued in its closing argument that Gulley
aided and abetted Jackson’s murder of Brown.

                                        17
                                  No. 06-41528

      A defendant’s Sixth Amendment right to counsel is violated if: (1) his
counsel’s performance was deficient; and (2) the deficient performance
prejudiced his defense. Strickland v. Washington, 

, 687 (1984);
Bower v. Quarterman, 

, 466 (5th Cir. 2007) (citation omitted). An
attorney’s performance was deficient if it fell below an objective standard of
reasonableness. 

(citation omitted). “[T]o prove prejudice,
‘the defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” United States v. Conley, 

, 841 (5th Cir. 2003) (citation
omitted). “If proof of one element is lacking, the court need not examine the
other.” Kirkpatrick v. Blackburn, 

, 285 (5th Cir. 1985) (citation
omitted).
      However, the “general rule in this circuit is that a claim of ineffective
assistance of counsel cannot be resolved on direct appeal when the claim has not
been raised before the district court since no opportunity existed to develop the
record on the merits of the allegations.” United States v. Higdon, 

,
313-14 (5th Cir. 1987) (citations omitted). Only in those rare occasions where
the record is sufficiently developed will the court undertake to consider claims
of inadequate representation on direct appeal. 

(citations omitted). If
we cannot fairly evaluate the claim from the record, we must decline to consider
the issue without prejudice to a defendant’s right to raise it in a subsequent
proceeding. See id.; United States v. Villegas-Rodriguez, 

, 230 (5th
Cir. 1999) (stating that ordinarily the proper mechanism for resolving an
ineffective assistance of counsel claim is a habeas corpus proceeding).
      We agree with the Government that Gulley’s claim is not ripe for review
because “the district court did not hold a hearing and the record does not provide


                                       18
                                  No. 06-41528

sufficient detail about trial counsel’s conduct and motivations to allow this court
to make a fair evaluation of the merits of [the defendant’s] claim.” United States
v. Aguilar, 

, 436 (5th Cir. 2007). This is not a case where the court
can simply find as a matter of law that defense counsel did not err. See, e.g.,

(rejecting the defendant’s ineffective
assistance argument on direct appeal because counsel had no legal basis to
object to the testimony defendant complained of). Indeed, Gulley’s counsel
originally intended for Henderson to review the crime scene videos, but for
whatever reason did not respond to Henderson’s problems accessing the video
that was provided. We can only speculate as to why. See 

(declining to decide an ineffective assistance claim because the court could
only speculate what the attorney’s motivations were). On the other hand, it is
unclear whether Henderson’s testimony would have had any effect on the
outcome of the case because nearly all of the evidence already supported the
conclusion that Gulley did not strike the killing blow. Accordingly, we decline
to consider this issue at this time, but do so without prejudice to Gulley’s right
to raise it in a habeas corpus proceeding.
E. Right to be Present at Trial
      Gulley argues that he was not present when a jury note—requesting leave
to “recess for the day in order to collect thoughts and reflect on all points made
about the case”—was read. He asserts that there is no notation of his presence
in the trial record, although the balance of the transcripts otherwise indicate
that he was, in fact, present. While his counsel were present and did object to
the district court’s proposal to instruct the jury to deliberate until 5:00 p.m.,
defense counsel agreed to the district court’s order directing the jury to
deliberate until 4:00 p.m. Gulley argues that if he were present when the jury
note was read he would have insisted that counsel object. He contends that the

                                        19
                                   No. 06-41528

error was not harmless because it is clear that there was one holdout on the jury,
and the district court’s order had a coercive effect on that juror.
      Under Rule 43 of the Federal Rules of Criminal Procedure, a criminal
defendant has the right to be present at every stage of the trial. FED. R. CRIM.
P. 43(a). Even if we assume arguendo that Rule 43 was “technically” violated
here, however, the violation only requires reversal if it constituted prejudicial
error. See United States v. Hagmann, 

, 179 (5th Cir. 1991)
(citations omitted) (finding no prejudice from an ex parte communication where
the defendant’s counsel earlier failed to object to the district court’s anticipatory
ruling on the same issue); United States v. Breedlove, 

, 59-60 (5th
Cir. 1978) (holding that if the district court’s answer to the jury’s inquiry is
distinctly responsive to a question and clearly states the law, and if no prejudice
is shown, the violation of Rule 43 is harmless).
      Assuming that Gulley was not present when the district court responded
to the jury’s request to recess, we find that the error, if any, was harmless. The
presence of Gulley’s defense counsel and their objection to the district court’s
original response tends to mitigate any potential prejudice that might have
occurred in Gulley’s absence. See United States v. Stratton, 

, 1080
(5th Cir. Unit A July 1981) (citations omitted). Furthermore, there is no
evidence in the record that any holdout jury member ever existed. Nor is there
any other reason to believe that the district court’s instruction to the jury to
deliberate for approximately thirty additional minutes influenced the jury’s
decision or coerced the jury into rendering a verdict. Cf. United States v. Cowan,

, 91 (5th Cir. 1987) (reversing the defendant’s convictions where the
trial judge met ex parte with each juror to discuss the jury’s obligation to reach
a verdict). To the contrary, the jury did not return the verdict until the next
morning, after the jury had recessed for the night. See United States v. Roberts,

                                         20
                                No. 06-41528

, 216-17 (5th Cir. 1990) (holding that a delay between an ex parte
communication and the jury’s verdict is evidence that the communication was
not coercive). Accordingly, Gulley’s absence did not result in any demonstrable
prejudice.
                            III. CONCLUSION
      For the reasons stated above, we AFFIRM Gulley’s conviction and
sentence.




                                      21