Plain-Error Reversal When a Prosecutor Urges Conviction Using an Unadmitted Exhibit in Closing Argument

I. Introduction

In United States v. Hassan Jones, the Eleventh Circuit confronted a recurring trial-integrity problem: a prosecutor’s reliance in closing argument on material that was never admitted into evidence. Jones was convicted of five offenses arising from drug and firearm investigations: conspiracy and possession with intent to distribute marijuana (Counts 1–2), possession of a firearm in furtherance of drug trafficking under 18 U.S.C. § 924(c) (Count 3), felon-in-possession (Count 4), and possession of an unregistered firearm (Count 5). A jury finding that the § 924(c) firearm was a machine gun increased Count 3’s mandatory minimum from 5 years to 30 years, yielding a 45-year aggregate sentence.

On appeal, Jones raised five issues: (1) insufficiency of the evidence on the “in furtherance” element of § 924(c); (2) prosecutorial misconduct for invoking an unadmitted exhibit during closing; (3) erroneous admission of rap videos/images/lyrics under Rules 401 and 403; (4) a Doyle v. Ohio due-process violation by eliciting comments about Jones’s post-Miranda invocation; and (5) cumulative error.

This opinion replaced an earlier panel opinion after rehearing. The court clarified that, although the misconduct warranted reversal, it was “prepared to assume” the prosecutor did not deliberately mislead the jury—underscoring that intent is not required where the fairness and reliability of the verdict are compromised.

II. Summary of the Opinion

The Eleventh Circuit:

• Vacated Jones’s conviction on Count 3 (§ 924(c)) and remanded for a new trial on that count, holding the prosecutor committed plain, reversible misconduct by urging conviction using Exhibit 19Z, which was never admitted into evidence.
• Affirmed the convictions on Counts 1, 2, 4, and 5.
• Held that the evidence was legally sufficient (though “hardly overwhelming”) to support Count 3, but that sufficiency did not prevent reversal on the separate misconduct ground.
• Found that admitting rap-related evidence was (at minimum) questionable under Rule 403, but any error was harmless.
• Condemned the prosecutor’s reference to Jones’s invocation of rights under Doyle v. Ohio, but found any violation harmless in the circumstances.
• Rejected cumulative error as to the remaining counts.

III. Analysis

A. Precedents Cited

1. Plain-error framework and preservation

• United States v. Baston (818 F.3d 651): Controlled the preservation point on sufficiency challenges. Because Jones raised a different sufficiency theory on appeal than he raised at trial, review was limited to plain error.
• United States v. Hawkins (934 F.3d 1251), Rosales-Mireles v. United States (585 U.S. 129), and United States v. Olano (507 U.S. 725): Supplied the four-step plain-error architecture—error, plainness, effect on substantial rights, and discretionary correction when the error seriously affects fairness/integrity/public reputation.
• United States v. Laines (69 F.4th 1221) and United States v. Lejarde-Rada (319 F.3d 1288): Anchored the “plainness” inquiry—an error is “plain” if obvious under current law; if not explicitly resolved by text, it typically requires Supreme Court or Eleventh Circuit precedent directly resolving the issue.

2. Sufficiency review and § 924(c) “in furtherance” nexus

• United States v. Gamory (635 F.3d 480): Provided the sufficiency-review lens (“view the evidence in the light most favorable to the government” and allow the jury to choose among reasonable inferences). The court also later used Gamory to evaluate the prejudicial nature of rap evidence under Rule 403.
• United States v. Timmons (283 F.3d 1246): Supplied the controlling § 924(c) standard: mere presence of a firearm is insufficient; the government must show the firearm “helped, furthered, promoted, or advanced” the drug trafficking offense and establish a “nexus.” Timmons also offered the familiar factor list (drug activity type, accessibility, weapon type, stolen status, illegality, loaded status, proximity to drugs/profits, and timing/circumstances).

3. Prosecutorial misconduct in closing: record limits and prejudice factors

• United States v. Reeves (742 F.3d 487): Supplied the two-part misconduct test (improper remark + prejudicial effect on substantial rights) and the four-factor prejudice inquiry (misleading/prejudice tendency; isolated vs extensive; deliberate vs accidental; strength of competent proof).
• United States v. Iglesias (915 F.2d 1524): Stated the categorical principle that a prosecutor may not go beyond the evidence before the jury during closing argument.
• The court reinforced the rule’s doctrinal depth by citing a line of cases emphasizing that closing argument must rest on admitted evidence: United States v. Bailey (123 F.3d 1381), United States v. Smith (928 F.3d 1215), United States v. Maradiaga (987 F.3d 1315), United States v. Al Jaberi (97 F.4th 1310), United States v. Phillips (664 F.2d 971) (5th Cir. Unit B), United States v. Cole (755 F.2d 748), and United States v. Martinez (96 F.3d 473).
• United States v. Morris (568 F.2d 396) (5th Cir.): Clarified the boundary between permissible commentary on record evidence (helping jurors evaluate and apply the evidence) and impermissible urging based on extra-record material. The Jones prosecutor did the latter.

4. Evidence admissibility and harmless error

• United States v. Khanani (502 F.3d 1281): Cited for the proposition that evidentiary errors are not reversible if harmless.
• Kotteakos v. United States (328 U.S. 750): Provided the “fair assurance” harmless-error test—whether the judgment was “substantially swayed” by the error.

5. Doyle/Miranda references and harmlessness

• Doyle v. Ohio (426 U.S. 610): The foundational due-process rule: the government may not use a defendant’s post-Miranda silence against him.
• United States v. Ruz-Salazar (764 F.2d 1433): Eleventh Circuit application of Doyle.
• United States v. Miller (255 F.3d 1282): Both condemned “call[ing] attention to” a defendant’s invocation and supplied the standard for harmlessness (“no substantial and injurious effect or influence”). The Jones panel invoked Miller to chastise the prosecutor while still finding harmlessness on the unaffected counts.
• United States v. Gonzalez (921 F.2d 1530): Supported the proposition that a single reference can be harmless where evidence is otherwise overwhelming.
• United States v. O'Keefe (461 F.3d 1338): Cited for de novo review of constitutional issues.

6. Cumulative error

• United States v. Thomas (62 F.3d 1332), United States v. Calderon (127 F.3d 1314), and United States v. Margarita Garcia (906 F.3d 1255): Supplied the governing cumulative-error framework—viewing the trial as a whole, do the combined errors render the proceeding fundamentally unfair or violate substantial rights?

B. Legal Reasoning

1. The court separated “legal sufficiency” from “trial fairness”

A notable feature of the opinion is its dual posture toward Count 3: the court held the evidence was just enough to survive a sufficiency challenge (especially under plain-error review due to non-preservation), yet still vacated that conviction because the prosecutor’s closing argument compromised the fairness and integrity of the verdict. This is doctrinally important: sufficiency is about whether any rational jury could convict on the admitted evidence; misconduct is about whether the process by which the jury reached its verdict was infected in a way that undermines confidence in the result.

2. The § 924(c) “nexus” analysis framed why the misconduct mattered

Under Timmons, the government needed a nexus between the machine gun in the apartment and the distribution marijuana in the girlfriend’s trunk 60–80 feet away. The court emphasized the evidence was “legally sufficient” but “hardly overwhelming,” and it highlighted facts that cut against strength under the Timmons factors:

• distance between guns and distribution quantity;
• marijuana was locked in a trunk;
• guns were stored (drawer/hamper) and “not necessarily readily accessible.”

That thinness made the prosecutor’s improper invocation of Exhibit 19Z—portrayed as decisive proof of gun use “in furtherance”—especially prejudicial.

3. The prosecutorial-misconduct holding: using unadmitted evidence as the basis for conviction is plain error

The court’s step-by-step plain-error analysis is tightly linked to Reeves:

• Impropriety: Clear under Iglesias and the long line of Eleventh Circuit cases prohibiting arguments beyond the record.
• Prejudice: Intensified because (a) the prosecutor told jurors Exhibit 19Z was sufficient by itself to convict on Count 3, (b) the exhibit was among only three pieces emphasized in closing, and (c) the government’s competent nexus proof was not strong.
• Intent: The revised opinion expressly assumed the prosecutor did not act deliberately, but still found reversible misconduct—signaling that the fairness inquiry predominates over subjective intent.
• Discretion to correct: The combination of a thin § 924(c) case, a dispositive invitation to rely on extra-record material, and a 30-year mandatory sentence enhancement made leaving the error uncorrected unacceptable under the fourth prong (fairness/integrity/public reputation).

4. Rap evidence: relevance acknowledged; unfair-prejudice concern recognized; harmlessness controls

On the evidentiary question, the court tracked the Rules 401/402 low-threshold relevance inquiry, then focused on Rule 403’s “unfair prejudice” concern—drawing on Gamory, where rap-related material was deemed “heavily prejudicial” because it can be read as promoting violence and unlawful conduct. Even while expressing skepticism about probative value (guns may be props; different firearms; disclaimers), the court avoided a definitive Rule 403 ruling and held any error harmless under Kotteakos because independent evidence (including DNA on the charged guns and other non-rap digital content) was ample for Counts 1, 2, 4, and 5.

5. Doyle: strong admonition, but harmless as to the affirmed counts

The opinion is unusually emphatic in its institutional warning: prosecutors “should not—not, not, not—have commented” on the invocation of rights, and the court reiterated it had already made this “crystal clear” in Miller. Yet, applying harmless-error principles, the court concluded that—given the volume of incriminating physical and digital evidence—any improper implication from the single exchange had no substantial influence on the verdict for Counts 1, 2, 4, and 5.

6. Cumulative error: constrained by the remedy already granted

Because Count 3 was vacated due to the Exhibit 19Z misconduct, the cumulative-error analysis focused only on the remaining counts. The court found that, even combined, the alleged errors did not render the trial fundamentally unfair under Thomas, Calderon, and Margarita Garcia.

C. Impact

1. Closing-argument discipline: exhibit admission is not a technicality

The decision reinforces a strict and practical rule for trial lawyers: if it is not admitted, it is not “evidence,” and it cannot be argued as proof of guilt. What is newly emphasized is the combination of features that make reversal likely under plain-error review:

• the unadmitted material is portrayed as dispositive (“all you need to know”);
• the government’s admissible evidence on the affected count is thin or contested;
• the consequence is substantial (here, a 30-year mandatory minimum on Count 3).

2. Intent is not the safe harbor

By clarifying it was “prepared to assume” the prosecutor did not deliberately mislead, the court makes clear that lack of bad faith does not immunize an extra-record closing argument when prejudice and institutional integrity concerns are present. This is likely to be cited by defendants opposing “it was an accident” explanations as a basis to deny relief.

3. § 924(c) prosecutions: the “nexus” remains fact-sensitive, and thin cases are fragile

Although the court found sufficiency, its careful discussion of why the nexus proof was not “strong” signals that § 924(c) counts anchored primarily by general “drug dealers typically use guns” testimony and attenuated proximity facts are vulnerable—especially if trial error occurs.

4. Rule 403 and rap evidence: a continued warning without a categorical ban

The opinion continues the Eleventh Circuit’s cautious approach: rap content may be relevant, but its propensity to inflame jurors can overwhelm probative value. Trial courts should expect closer scrutiny where authenticity/connection to charged conduct is weak, and prosecutors should be prepared to show a concrete link to disputed elements rather than character or lifestyle inferences.

5. Doyle enforcement: escalating admonitions, but harmlessness remains available

The court’s sharp language suggests a growing impatience with recurring Doyle-adjacent conduct. Still, the case also demonstrates that where evidence is otherwise overwhelming, the Eleventh Circuit may find harmless error—particularly on counts not infected by the more serious misconduct.

IV. Complex Concepts Simplified

• “Plain error” review: When a defendant did not object at trial, the appellate court will reverse only if there was (1) an error, (2) that is obvious under current law, (3) that likely changed the outcome, and (4) that seriously harms the fairness or reputation of the courts if left uncorrected.
• § 924(c) “in furtherance of”: It is not enough that a gun exists near a person who sells drugs. The government must show the gun actually helped the drug crime—e.g., protection, intimidation, guarding stash, facilitating transactions—creating a “nexus” between gun possession and the trafficking offense.
• Rule 403 “unfair prejudice”: Evidence can be relevant but still excluded if it is likely to provoke an emotional or character-based reaction (“he seems violent”) that distracts from deciding the charged elements based on reliable proof.
• Doyle violation: After police read Miranda rights, a defendant’s silence (or request for a lawyer) generally cannot be used against him at trial, because it would be unfair to punish someone for relying on rights the government told him he had.
• Harmless error: Even if a mistake happened at trial, the conviction can stand if the appellate court is confident the mistake did not meaningfully affect the verdict.

V. Conclusion

United States v. Hassan Jones offers a forceful reaffirmation of a basic trial premise: convictions must rest on admitted evidence, not on exhibits merely referenced in argument. The Eleventh Circuit’s most consequential contribution here is its plain-error application to closing-argument misconduct: where the prosecutor directs jurors to convict on the basis of an unadmitted exhibit—especially by framing it as dispositive—and the admissible proof is not strong, reversal is warranted to protect the integrity and public reputation of the judicial process. At the same time, the opinion illustrates the court’s willingness to treat other errors (rap evidence and a Doyle-type reference) as harmless when independent evidence is substantial—narrowing the remedy to the count most directly tainted and most severely punished.