United States v. Darryl Odely, Jr.

11th Cir.8/26/2025

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USCA11 Case: 23-10069 Document: 66-1 Date Filed: 08/26/2025 Page: 1 of 23

NOT FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 23-10069
____________________

UNITED STATES OF AMERICA,
Plaintiﬀ-Appellee,
versus
DARRYL ODELY, JR.,

Defendant-Appellant.

____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:22-cr-60183-WPD-1
____________________
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2 Opinion of the Court 23-10069

Before JORDAN and BRASHER, Circuit Judges, and GERAGHTY,1 Dis-
trict Judge.
PER CURIAM:
Following a three-day trial, a jury convicted Darryl Odely, Jr.
of sex traﬃcking of a minor by force or coercion in violation of 18
U.S.C. § 1591. He now appeals his conviction on a number of
grounds.
I
We set out the evidence presented at trial in the light most
favorable to the government, see United States v. Smith, 821 F.3d
1293, 1296 (11th Cir. 2016), and then summarize the relevant pro-
cural history.
A
In 2021, the minor victim, D.M.C., ran away from home and
was reported missing by her family. She was recruited into prosti-
tution ﬁrst by a woman named Keke, then by another woman
named Skittles.
While working as a prostitute for Skittles, D.M.C. met Mr.
Odely, who paid her for sex. After she got into an argument with
Skittles, D.M.C. called Mr. Odely and asked him to pick her up. She
moved into his mother’s house with him and lived there for two

1 Honorable Sarah E. Geraghty, United States District Judge for the Northern

District of Georgia, sitting by designation.
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23-10069 Opinion of the Court 3

months. When Mr. Odely’s mother was evicted they began living
out of a car.
During her testimony, D.M.C. told the jury that Mr. Odely
“manipulated” her into sex work. Mr. Odely posted online prosti-
tution advertisements for D.M.C. and handled most of the text ne-
gotiations with customers. Mr. Odely also transported D.M.C. to
meet customers and often received payments from customers
through his Cash App account. D.M.C. also testiﬁed that when she
“didn’t feel like having sex with [customers] anymore” she and Mr.
Odely “started robbing them.” She said that Mr. Odely provided
her with “beans” (a type of upper) and marijuana.
D.M.C. said that she was scared of Mr. Odely and that he hit
her, choked her, threatened to kill her, and broke her phone to pre-
vent her from accessing her contacts. She explained that some of
this violence occurred during arguments about Mr. Odely’s ongo-
ing relationship with the mother of his child.
Police eventually located D.M.C. at a hotel with Mr. Odely
and arrested him. A grand jury charged Mr. Odely with sex traf-
ﬁcking of a minor by force or coercion in violation of 18 U.S.C. §
1591.
B
The government sought to admit at trial a videotaped state-
ment Mr. Odely had made to the FBI when he was arrested. The
government agreed to redact references to his prior criminal his-
tory from the transcript of the statement. Defense counsel ob-
jected to providing the jury the redacted transcript, but the district
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4 Opinion of the Court 23-10069

court overruled the objection and the government presented it to
the jury. The transcript mistakenly contained Mr. Odely’s unre-
dacted statement that he “did nine years” in prison.
During deliberations, the jury asked to play Mr. Odely’s vid-
eotaped statement, and then later requested to re-read the tran-
script of the statement. Defense counsel maintained his objection
to the transcript, and the district court agreed not to provide it to
the jury again, and instead instructed the jury that “[a]lthough the
transcript was identiﬁed as Exhibit 16, it was actually a demonstra-
tive exhibit, and, as such, does not go back to the jury.” D.E. 88 at
50.
The jury next requested assistance with poor computer vol-
ume and was provided with speakers. The jury also requested a
transcript of the trial testimony. Defense counsel requested that
the district court ask the jury what portion of the testimony it
wanted transcribed but the government objected to this request.
The district court denied the defense’s request, instead instructing
the jury that “[y]ou can’t just push a button to get the transcript. It
takes quite a bit of time to prepare transcripts, so I’m going to ask
that you rely on your collective recollection of what the testimony
was.” Id. at 55. The court stated, outside the presence of the jury,
that if the jury submitted an additional request for a speciﬁc tran-
script it would provide that speciﬁc portion.
The jury found Mr. Odely guilty of commercial sex traﬃck-
ing of a minor by use of force. The district court denied Mr.
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23-10069 Opinion of the Court 5

Odely’s motion for a new trial and sentenced him to 300 months of
imprisonment followed by ﬁve years of supervised release.
II
On appeal, Mr. Odely argues that (1) the indictment, the jury
instructions, and the special verdict form all misstated the requisite
mens rea, and the special verdict form did not track the speciﬁc
statutory language of the force provision in 18 U.S.C. § 1591(c), and
therefore (a) he was impermissibly convicted of a non-existent of-
fense and (b) the indictment was constructively amended; (2) the
district court erred by allowing the case agent to oﬀer an opinion
based on hearsay; (3) the district court erred by admitting and then
failing to mitigate the interview transcript’s reference to his crimi-
nal history; (4) the district court violated his constitutional right to
testify by discouraging him from doing so; (5) the district court
erred by denying the jury’s request for a transcript of the testi-
mony; and (6) these cumulative errors deprived him of a fair trial.
Because Mr. Odely challenges his conviction on multiple
grounds, we apply several diﬀerent standards of review.
First, we review a forfeited challenge to an indictment for
plain error. See Fed. R. Crim. P. 12; United States v. Reed, 941 F.3d
1018, 1020–21 (11th Cir. 2019).
Second, we generally review a constructive amendment
claim de novo, but if the claim was forfeited we review for plain
error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
731–32 (1993); United States v. Holt, 777 F.3d 1234, 1261 (11th Cir.
2015). And if the defendant expressly agreed to the jury instruction
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6 Opinion of the Court 23-10069

that he contends caused the constructive amendment, the invited
error doctrine precludes appellate review of the instruction. See
United States v. Hill, 119 F. 4th 862, 866 (11th Cir. 2024).
Third, we review a district court’s rulings on the admission
of evidence and its responses to jury questions for abuse of discre-
tion. See United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000);
United States v. Lopez, 590 F.3d 1238, 1248 (11th Cir. 2009).
Fourth, we generally apply plenary review to allegations
that a district court violated a defendant’s right to testify. See United
States v. Watts, 896 F.3d 1245, 1252 (11th Cir. 2018); United States v.
Van De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998).
III
A defendant commits the oﬀense of sex traﬃcking if he
“knowingly”
(1) in or aﬀecting interstate or foreign commerce, . . .
recruits, entices, harbors, transports, provides, ob-
tains, advertises, maintains, patronizes, or solicits
by any means a person; or
(2) beneﬁts, ﬁnancially or by receiving anything of
value, from participation in a venture which has
engaged in an act described in violation of para-
graph (1),
knowing, or except where the act constituting the vi-
olation of paragraph (1) is advertising, in reckless dis-
regard of the fact [either] that means of force, threats
of force, fraud, coercion described in subsection
(e)(2), or any combination of such means will be used
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23-10069 Opinion of the Court 7

to cause the person to engage in a commercial sex act
[the force provision], or that the person has not at-
tained the age of 18 years and will be caused to en-
gage in a commercial sex act [the minor provision].
18 U.S.C. § 1591(a) (emphasis and brackets added). Sex traﬃcking
under the force provision, or if the minor is under the age of 14 at
the time of the oﬀense, carries a sentence of 15 years to life impris-
onment. See § 1591(b)(1). Otherwise sex traﬃcking carries a sen-
tence of 10 years to life imprisonment. See § 1591(b)(2).
Mr. Odely contends that the indictment was deﬁcient in
charging a violation of § 1591(a)(1), and that the jury instructions
and the verdict form allowed him to be convicted of a non-existent
oﬀense. We discuss each argument below.
A
The indictment alleged, in relevant part, that Mr. Odely,
knowing, in reckless disregard of the fact, and having
had a reasonable opportunity to observe MINOR
VICTIM, that means of force, threats of force, and
coercion, and any combination of such means, would
be used to cause MINOR VICTIM to engage in a
commercial sex act, and MINOR VICTIM had not at-
tained the age of 18 years and would be caused to en-
gage in a commercial sex act, in violation of Title 18,
United States Code, Sections 1591 (a)(1), (b)(1), (b)(2),
and (c), and 2.
D.E. 1 at 1.
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8 Opinion of the Court 23-10069

Mr. Odely argues that by including the “reasonable oppor-
tunity to observe” language with the force provision, the indict-
ment impermissibly rendered the force provision a strict liability
crime. He asserts that the indictment therefore fails to charge a
crime, and that this constitutes a jurisdictional defect that can be
raised at any time under de novo review. See Appellant’s Br. at 35
(citing United States Izurieta, 710 F.3d 1176, 1179–85 (11th Cir.
2013)).
Federal Rule of Criminal Procedure 12 provides that “a de-
fect in the indictment or information,” including an indictment’s
“failure to state an oﬀense,” must generally be raised by a pretrial
motion. This current language reﬂects a 2014 amendment to Rule
12. See United States v. Sperrazza, 804 F.3d 1113, 1118–19 (11th Cir.
2015). In the wake of this amendment, we review a forfeited claim
that an indictment fails to state an oﬀense for plain error. See id. at
1119; Reed, 941 F.3d at 1020–21.
An indictment is so insuﬃcient as to deprive the district
court of jurisdiction only where a crime “d[oes] not exist in the
United States Code” or where the conduct “undoubtedly f[alls] out-
side the sweep of the . . . statute[.]” United States v. Brown, 752 F.3d
1344, 1353 (11th Cir. 2014). Otherwise, defects in an indictment do
not destroy subject-matter jurisdiction. See United States v. Cotton,
535 U.S. 625, 630 (2002) (“[D]efects in an indictment do not deprive
a court of its power to adjudicate a case.”). “So long as the indict-
ment charges the defendant with violating a valid federal statute as
enacted in the United States Code, it alleges an ‘oﬀense against the
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23-10069 Opinion of the Court 9

laws of the United States’ and, thereby, invokes the district court’s
subject-matter jurisdiction.” Brown, 752 F.3d at 1354. For example,
the omission of an element in an indictment, standing alone, does
not deprive a district court of jurisdiction over a criminal prosecu-
tion. See United States v. Moore, 954 F.3d 1322, 1336 (11th Cir. 2020).
With these basics out of the way, we review the language in
the indictment for plain error. See Reed, 941 F.3d at 1020 (reviewing
a forfeited indictment deﬁciency claim for plain error). To establish
plain error, Mr. Odely must demonstrate that there was an error,
that the error was plain, and that it aﬀected his substantial rights.
See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
If he satisﬁes these requirements, we can correct the error if it se-
riously aﬀected the fairness, integrity, or public reputation of judi-
cial proceedings. See id.
We have explained that a “defendant is guilty of sex traﬃck-
ing by force, fraud, or coercion if he ‘knowingly in or aﬀecting in-
terstate or foreign commerce . . . recruits, entices, harbors, trans-
ports, provides, obtains, advertises, maintains, patronizes, or solic-
its by any means a person . . . knowing . . . [or in reckless disregard
of the fact] that means of force, threats of force, fraud, [or] coer-
cion . . . will be used to cause the person to engage in a commercial
sex act.’” United States v. Baston, 818 F.3d 651, 663 (11th Cir. 2016)
(quoting § 1591(a)(1)) (emphasis deleted). Mr. Odely is correct that
the indictment incorrectly linked the “reasonable opportunity to
observe” language with the force provision in § 1591(a)(1) because
that language applies only to the minor provision. See United States
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10 Opinion of the Court 23-10069

v. Lockhart, 844 F.3d 501, 513–14 (5th Cir. 2016) (“§ 1591 allows the
Government to prove scienter by showing that the defendant (1)
knew the victim was underage, (2) recklessly disregarded that fact,
or (3) had a reasonable opportunity to observe the victim”); United
States v. Keys, 747 Fed. App’x 198, 205–06 (5th Cir. 2018) (“Subsec-
tion (b)(1) [of § 1591] requires the government to prove that the
defendant knew or recklessly disregarded the fact that the oﬀense
would be eﬀected by means of force, fraud, or coercion. Traﬃck-
ing by force can be charged irrespective of the victim’s age. Sub-
section (b)(2) requires that the government prove that the defend-
ant knew or recklessly disregarded the fact that the victim was un-
der 18 years old. Moreover, under subsection (b)(2), the govern-
ment can satisfy the intent requirement by demonstrating that the
defendant had a reasonable opportunity to observe the victim—it
need not demonstrate that the defendant actually knew or reck-
lessly disregarded her age.”) (citation omitted).
Assuming that this error was plain, Mr. Odely has not shown
that his substantial rights were aﬀected. The indictment used the
correct “knowledge” and “in reckless disregard” language for the
force provision in addition to the “reasonable opportunity to ob-
serve” language. We have held that the inclusion of a superﬂuous
mens rea element does not cause an indictment to allege a non-
existent oﬀense, see United States v. Cancelliere, 69 F.3d 1116, 1121
(11th Cir. 1995) (explaining that “mere surplusage may be deleted
from an indictment without error”), and Mr. Odely has not given
us any reason to believe that the erroneous language here preju-
diced him. See United States v. Pena, 684 F.3d 1137, 1147–48 (11th
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23-10069 Opinion of the Court 11

Cir. 2012) (“Minor deﬁciencies [in an indictment] that do not prej-
udice the defendant will not prompt this court to reverse a convic-
tion.”) (citation and quotation marks omitted).
B
We next turn to the jury instructions and the verdict form.
The district court instructed the jury, in relevant part, as follows:
It’s a federal crime for anyone in or aﬀecting com-
merce to recruit, entice, harbor, transport, provide,
obtain, maintain or solicit by any means a person
knowing and in reckless disregard of the fact, or hav-
ing had a reasonable opportunity to observe the minor vic-
tim by means of force, threats of force or coercion
will be used to cause the person to engage in a com-
mercial sex act.
D.E. 88 at 39 (emphasis added). The court went on to instruct the
jury that to ﬁnd Mr. Odely guilty, the government had to prove be-
yond a reasonable doubt that he
knowingly recruited, enticed, harbored, transported,
provided, obtained, maintained or solicited by any
means, the minor victim . . . [and] did so knowing in
reckless disregard of the fact, or having had a reasonable
opportunity to observe the minor victim, that means of
force, threats of force, coercion, or other combina-
tion of such means would be used to cause the person
to engage in a commercial sex act and the person had
not attained the age of 18 years and would be caused
to engage in a commercial sex act.
Id. at 39–40 (emphasis added).
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12 Opinion of the Court 23-10069

The verdict form was worded in the following way:
As to the sole count of the Indictment, which charges De-
fendant DARRYL ODELY[,] JR. with co[m]mercial sex traﬃck-
ing:
GUILTY __X__ NOT GUILTY _____
If you ﬁnd the Defendant GUILTY, did you unanimously
ﬁnd that the Defendant DARRYL ODELY[,] JR.:
(a) used means of force, threats of force, or coercion to
commit the crime?
YES __X__ NO _____
(b) knew, acted in reckless disregard of the fact that the
Minor Victim was under the age of 18 years, or had a
reasonable opportunity to observe the Minor Victim?
YES __X__ NO _____
D.E. 27 at 1 (bold text added).
Mr. Odely argues that these instructions, coupled with the
special verdict form’s omission of a mens rea, constructively
amended the indictment by broadening the requisite intent for con-
viction and rendering the force element a strict liability crime. He
asserts that the jury instruction that minors cannot lawfully con-
sent to commercial sex—coupled with the lack of precision in the
indictment, jury instructions, and special verdict form—might have
caused the jury to mistakenly conclude that a defendant who is
guilty of sex traﬃcking a minor must necessarily also be guilty of
traﬃcking that minor by force. The government acknowledges
that the jury instructions included “imprecise phrasing,” Appellee’s
Br. at 18, but contends that no plain error occurred because there
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23-10069 Opinion of the Court 13

was overwhelming evidence of knowledge and the government re-
lied on the proper legal standard in its closing argument.
“Where a party expressly accepts a jury instruction, such ac-
tion constitutes invited error and serves to waive his right to chal-
lenge the accepted instruction on appeal. We have held that when
a party responds to a court’s proposed jury instructions with the
words ‘the instruction is acceptable to us,’ such action consti-
tutes invited error. These words serve to waive a party’s right to
challenge the accepted instruction on appeal.” Hill, 119 F. 4th at
871 (involving a constructive amendment claim) (internal quota-
tion marks and citations omitted).
We conclude that, under the invited error doctrine, Mr.
Odely has waived any challenge to the jury instructions or the ver-
dict form by expressly agreeing to them. At the charge conference,
the district court asked defense counsel to look at the government’s
proposed instruction on sex traﬃcking and “see what you think.”
D.E. 85 at 163. Defense counsel reviewed it and told the district
court “[t]he instruction appears correct, Judge.” Id. And when the
district court asked about the verdict form, defense counsel re-
sponded “[a]ppears correct, Judge.” Id. at 164. Under our prece-
dent, Mr. Odely invited the constructive amendment errors that he
now complains of. We therefore do not address the constructive
amendment claim related to the jury instructions and the verdict
form.
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14 Opinion of the Court 23-10069

IV
Mr. Odely next argues that the district court erred by allow-
ing the case agent to oﬀer an opinion based on hearsay. The case
agent answered in the aﬃrmative when asked if D.M.C. had said—
when interviewed months earlier—“basically what she told you on
the stand today.” Id. at 12. Defense counsel objected to that ques-
tion as hearsay, but the district court overruled the objection, con-
cluding that the exchange was admissible as a “prior consistent
statement.”
According to Mr. Odely, because the content of D.M.C.’s
prior statement had not been admitted into evidence, the district
court could not examine that statement to determine whether it
was consistent with D.M.C.’s testimony. And, as a result, the case
agent’s testimony about that statement could not be properly ad-
mitted as a prior consistent statement. As noted earlier, we review
a district court’s rulings on the admission of evidence for abuse of
discretion. See Jiminez, 224 F.3d at 1249.
“Hearsay” is “a statement that: (1) the declarant does not
make while testifying at the current trial or hearing; and (2) a party
oﬀers in evidence to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(c). A statement is not hearsay if
[t]he declarant testiﬁes and is subject to cross-exami-
nation about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testi-
mony and was given under penalty of perjury
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23-10069 Opinion of the Court 15

at a trial, hearing, or other proceeding or in a
deposition;
(B) is consistent with the declarant’s testimony
and is oﬀered:
(i) to rebut an express or implied charge
that the declarant recently fabricated it
or acted from a recent improper inﬂu-
ence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credi-
bility as a witness when attacked on an-
other ground[.]
Fed. R. Evid. 801(d)(1). See generally Tome v. United States, 513 U.S.
150, 167 (1995) (“The Rule permits the introduction of a declarant’s
consistent out-of-court statements to rebut a charge of recent fab-
rication or improper inﬂuence or motive only when those state-
ments were made before the charged recent fabrication or im-
proper inﬂuence or motive.”).
The case agent’s answer to the question does not meet the
deﬁnition of hearsay because it does not appear to have been of-
fered to prove the truth of the matter asserted. The case agent’s
aﬃrmative answer—which was not accompanied by any speciﬁc
factual content because D.M.C.’s underlying statement was never
introduced—instead served to rehabilitate D.M.C.’s credibility after
defense counsel called it into question. See United States v. Jiminez,
564 F.3d 1280, 1287 (11th Cir. 2009) (holding that a statement about
what was said during a law enforcement interview was not hearsay
because it was oﬀered for the purpose of rehabilitating a witness’
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16 Opinion of the Court 23-10069

credibility, rather than to prove the truth of the matter asserted).
We therefore conclude that the district court did not abuse its dis-
cretion in admitting the case agent’s testimony. See id. at 1288 (ex-
plaining that “even when the trial judge admits testimony for a
stated reason that is improper under the Federal Rules of Evidence,
the decision generally will be upheld so long as the testimony is
properly admissible on other, non-stated grounds apparent from
the record”).
V
Mr. Odely argues that the district court committed reversi-
ble error by admitting and then failing to sua sponte suﬃciently mit-
igate the interview transcript’s reference to his criminal history.
We are not persuaded.
We ﬁrst note that the district court did not choose to admit
evidence of Mr. Odely’s prior convictions. The court, along with
the parties, were under the impression that all references to the
prior convictions had been redacted. If anyone was to shoulder the
blame for the reference to the convictions in the transcript, it was
the parties, who were in charge of making the redactions.
We next address the district court’s decision not to issue a
curative instruction once it learned that the redaction had not been
made. Although defense counsel had objected to admitting the re-
dacted transcript, he did so before knowing about the missing re-
daction. Once the court notiﬁed him of the unredacted references
to Mr. Odely’s criminal history—which defense counsel acknowl-
edged he “missed” when making the redactions—he did not
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23-10069 Opinion of the Court 17

request any curative instructions. See D.E. 85 at 129–30. We there-
fore review his claim for plain error. See United States v. Smith, 700
F.2d 627, 633 (11th Cir. 1983).
The district court, rather than the parties, noticed the mis-
takenly unredacted reference in the transcript to Mr. Odely doing
“nine years.” The court remarked that “the way it was buried in
there, I don’t know that the context would be necessarily some-
thing that [the jury] would catch,” and opted not to provide the
transcript to the jury during its deliberations in the hopes of not
drawing further attention to the unredacted portion. See D.E. 85 at
130. Under the circumstances, we cannot say that the court plainly
erred in declining to sua sponte strike the evidence from the record
or issue a curative instruction to the jury. See United States v. Em-
manuel, 565 F.3d 1324, 1335 (11th Cir. 2009) (holding that the dis-
trict court did not abuse its discretion by failing to sua sponte issue
a curative instruction to a witness’ remark about the defendant’s
prior conviction because “the comment was but a brief reference .
. . and a curative instruction could have drawn unwarranted atten-
tion to the comment”) (quotation marks omitted).
VI
Mr. Odely claims that the district court violated his right to
testify by discouraging him from doing so. We reject this assertion.
At trial, Mr. Odely told the district court he wanted to testify.
The district court informed him of his constitutional right to testify
or not to testify, and explained that the choice was ultimately up to
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18 Opinion of the Court 23-10069

him and not his attorney. The court then engaged in the following
discussion with Mr. Odely:
[COURT]: There may be strategic reasons for or
against your testifying. Do you understand that?
[MR. ODELY]: Yes, Your Honor.
[COURT]: Right now, the jury doesn’t know whether
you’re a convicted felon. If you take the stand and tes-
tify, the Government may be able to bring out that
you have prior felony convictions if you do. Do you
understand that?
[MR. ODELY]: At this point, I’m ﬁghting for my life.
I have nothing to hide, sir.
[COURT]: But that may be a strategy reason for or
against your testifying. Do you understand that?
[MR. ODELY]: Understood, sir.
[COURT]: And whatever decision you make in this
case, you pretty much going are going to be stuck
with that decision. Do you understand that?
[MR. ODELY]: Understood, sir.
[COURT]: So for example, if you decide to testify and
it turns out that you’re a lousy witness and get con-
victed, you can’t complain about that later on because
you decided to testify. Do you understand that?
[MR. ODELY]: Understood, sir. . . .
[COURT]: If you decide not to testify and if the jury
comes back guilty, you can’t come back later on and
say, oh, Judge, if the jury would have just heard my
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23-10069 Opinion of the Court 19

side of the story, they would have let me go. Do you
understand that?
[MR. ODELY]: Understood, sir.
[COURT]: So again, whatever decision you make, it’s
your decision. You know you can listen to your law-
yer’s advice but it’s your life. It’s up to you to decide
what you want to do. Do you understand that?
[MR. ODELY]: Understood, sir.
[COURT]: And have you had enough time to think
about this and talk about it with your lawyer?
[MR. ODELY]: Yes, I did, sir.
[COURT]: And is it your decision that you do or do
not want to testify, or is it something you want to
think about overnight? You have that right, too. You
can think about it.
[DEFENSE COUNSEL]: Judge, in helping in that de-
cision, I’d ask the Government . . . if they have the
number of felony convictions, that they would use to
impeach with so I can give him that number?
[PROSECUTOR]: We have certiﬁed convictions. Fel-
ony convictions. He spent nine years in prison.
[DEFENSE COUNSEL]: So the number would be
three.
[MR. ODELY]: I want to testify. . . .
[COURT]: All right. And obviously, I sent the jury
home so you can do that ﬁrst thing tomorrow morn-
ing at 9:00. If you change your mind, you can change
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20 Opinion of the Court 23-10069

your mind but if you don’t change your mind, then
you can testify tomorrow at 9:00.
D.E. 85 at 158–60. The next morning, defense counsel told the
court that Mr. Odely no longer wanted to testify and Mr. Odely
conﬁrmed his decision.
Mr. Odely contends that the district court’s colloquy im-
properly interfered with the attorney-client relationship and that by
“twice advising Mr. Odely that he could ‘think about [it] overnight,’
and ‘[could] change [his] mind,’ the [court] further implied that tes-
tifying was imprudent.” Appellant’s Br. at 60 (alterations in origi-
nal). He also argues that the court misled him when it stated that
the jury did not know that he had a felony record, because the un-
redacted transcript referencing his nine years in prison had already
been presented. He contends that this error was not harmless be-
cause without his testimony, the jury did not have an alternative
narrative to consider, and he was therefore prejudiced.
As a general matter, we “review de novo a claim that a dis-
trict court denied a defendant’s right to testify.” Watts, 896 F.3d at
1252. But Mr. Odely, who was represented by counsel, did not ob-
ject to the colloquy below, and we have said in dicta that it “seems
right” to apply plain error review where a represented defendant
did not lodge an objection in the district court. See United States v.
Waters, 937 F.3d 1344, 1358 n.6 (11th Cir. 2019) (bypassing appro-
priate standard and applying de novo review). We will conduct ple-
nary review because, even under that standard, Mr. Odely’s argu-
ment fails.
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23-10069 Opinion of the Court 21

“A criminal defendant has a constitutional right to choose
whether or not to testify[.]” United States v. Anderson, 1 F.4th 1244,
1253 (11th Cir. 2021). “[W]here a defendant is represented by coun-
sel, counsel is responsible for providing the advice needed to render
the defendant’s decision of whether to testify knowing and intelli-
gent,” and the district court is generally not required to conduct a
colloquy. See United States v. Ly, 646 F.3d 1307, 1313 (11th Cir.
2011). Nevertheless, the court may choose to conduct a colloquy
to make sure that a defendant fully understands their rights. See
Anderson, 1 F.4th at 1257.
We have cautioned district courts against “provid[ing] inap-
propriate commentary” about a defendant’s choice to testify or not
to testify during a colloquy, because “inserting the . . . court’s im-
plied preference would intrude into this protected choice” and
might interfere with the attorney-client relationship. See Ly, 646
F.3d at 1315–16. See also United States v. Teague, 953 F.2d 1525, 1533
n.8 (11th Cir. 1992) (en banc); Anderson, 1 F.4th at 1259. Although
the court here told Mr. Odely that there might be strategic reasons
for not testifying and advised him that the jury might learn about
his felony convictions if he took the stand, we cannot say that its
colloquy, taken as a whole, impaired Mr. Odely’s ability to know-
ingly and intentionally waive his right to testify. The court told Mr.
Odely on several occasions that it was his decision whether or not
to testify, and never told Mr. Odely what choice he should make.
See Anderson, 1 F. 4th at 1259. Moreover, Mr. Odely had the ability
to consult with his counsel and think about his choice overnight.
See, e.g., United States v. Joelson, 7 F.3d 174, 178 (9th Cir. 1993)
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22 Opinion of the Court 23-10069

(concluding that a defendant’s right to testify was not violated de-
spite the court’s “troubling” colloquy that appeared to discourage
the defendant from testifying, because the court told him that he
had a right to testify and “gave him an opportunity to confer with
his attorney to ﬁnalize his decision”).
VII
Mr. Odely contends that the district court abused its discre-
tion by denying the jury’s request for a transcript of the testimony.
He asserts that this prejudiced him by undermining the credibility
of his counsel, who had told the jury in his closing argument that
it could have portions of the transcript read back to it. The govern-
ment contends that defense counsel made this assurance at his own
risk, and that Mr. Odely has failed to establish prejudice in light of
the ample evidence against him.
District courts have “broad discretion in responding to a jury
request that certain evidence be reread,” and their decisions are re-
viewed for abuse of discretion. See United States v. Pacchioli, 718 F.3d
1294, 1306 (11th Cir. 2013) (citation and quotation marks omitted).
A court, for example, has discretion to refuse to read back testi-
mony that “is simply too long[.]” Id. See also United States v. Morrow,
537 F.2d 120, 148 (5th Cir. 1976) (concluding that the district court
did not abuse its discretion in refusing to grant the jury’s request
for a portion of the transcript because it was lengthy and providing
the requested portion might cause jurors to give it undue weight);
Gov’t of the Canal Zone v. Scott, 502 F.2d 566, 570 (5th Cir. 1974) (ﬁnd-
ing no abuse of discretion in district court’s denial of the jury’s
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23-10069 Opinion of the Court 23

request for a transcript because its preparation would cause a delay,
and because providing the requested portion might cause jurors to
give it undue weight).
Reviewing for abuse of discretion, we discern no error.
First, Mr. Odely’s trial lasted three days, meaning that it would have
taken some time to prepare a full transcript. Second, the jury did
not make any request for a speciﬁc portion of the transcript. We
conclude that the district court acted within its discretion in deny-
ing the jury’s request for the transcript of the trial.
VIII
Finally, Mr. Odely argues that the cumulative errors he al-
leges above deprived him of the right to a fair trial. Because we
have found no errors, there is no cumulative error. See, e.g., United
States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011) (“Where there is
no error or only a single error, there can be no cumulative error.”).
IX
Mr. Odely has not established that the district court commit-
ted any error warranting reversal. We therefore aﬃrm his convic-
tion.
AFFIRMED.

United States v. Darryl Odely, Jr.

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