UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TYVONNE WILEY, Defendant-Appellant.
No. 22-10179
United States Court of Appeals For the Eleventh Circuit
August 29, 2023
[PUBLISH]
JILL PRYOR, Circuit Judge:
Tyvonne Wiley appeals his convictions for conspiracy to commit Hobbs Act robbery, Hobbs Act robbery, and brandishing a firearm during a crime of violence. He makes three arguments on appeal: (1) the district court abused its discretion by striking a juror for cause because of her religious beliefs, (2) the district court plainly erred by allowing law enforcement officers to identify Wiley in surveillance footage, and (3) his convictions for using, carrying, and brandishing a firearm during a crime of violence should be vacated because aiding and abetting Hobbs Act robbery is not a predicate crime of violence under
I. BACKGROUND
Wiley was charged with one count of conspiracy to commit Hobbs Act robbery, in violation of
During voir dire, the court asked the jury pool if anyone “would not accept or follow the law given by the judge at the end of the trial,” and if anyone “ha[d] any moral or religious convictions which discourage or prevent jury service or would make it difficult for [them] to pass judgment.” Doc. 329 at 27.1 Prospective Juror 23 told the court that she was a Jehovah’s Witness and would have difficulty judging others because she did not “have a lot of faith in the legal—the justice system.” Id. at 27–28. The court and counsel for both parties questioned Juror 23 on her ability to be impartial.
In response to the questioning, she expressed her opinion that nobody knew the truth about what happened except the people involved and Jehovah. She said that she did “not want to be responsible for someone going to jail when [she] won’t be given all of the facts according to the way justly they should be given to [her]” and would instead have to rely on “imperfect men’s opinions.” Id. at 149–50.
When the government asked Juror 23 if she could be impartial, she responded, “I don’t really know. I cannot tell you that I would.” Id. at 150. When defense counsel asked her if she could give each side a fair trial, she stated that “fair is relative.” Id. at 151. The court acknowledged that some aspects of Juror 23’s religion
After this exchange, the government moved to strike Juror 23 for cause because she did not answer clearly when asked whether she could be fair and impartial, emphasized that she would not have all the facts of the case, and said she could not judge other people. Defense counsel opposed the strike, arguing that Juror 23’s statements did not mean that she could not be impartial, merely that it would be difficult for her. The court agreed with the government and struck Juror 23 for cause. The court explained that it had “some concerns about her ability to follow the court’s instructions about this being the evidence and follow what it is she’s supposed to do.” Id. at 153.
At trial, the government introduced evidence of Wiley’s role in the series of armed robberies, which occurred at several retail stores. One of the government’s witnesses was Sergeant Darren Hull, a Cobb County police officer who investigated the robberies. Hull explained that as part of the investigation, he and other officers surveilled a house associated with the robberies. The house belonged to Wiley’s codefendant, Torey Starling. During Hull’s testimony, the government played a surveillance video taken at Starling’s house the day after one of the robberies. The video showed a man sitting on the porch of the house holding a cell phone and removing a stack of cash from his pocket. The government also
Hull also testified that the day after the surveillance footage was taken, officers executed a search warrant at Starling’s house. When Hull arrived with other officers to execute the search warrant, he saw a man run out of the house. Hull and another officer pursued the man. They eventually stopped him and placed him in handcuffs. The man turned out to be Wiley.
Defense counsel did not object to Hull’s testimony identifying Wiley as the man in the photograph or to the introduction of the still images. On cross examination, defense counsel questioned Hull about the “close-up picture of Mr. Wiley sitting on the porch” and acknowledged that the government showed a “picture . . . of Mr. Wiley sitting on the porch.” Id. at 242, 247.
The government also called former Cobb County detective David Raissi, another law enforcement officer who investigated the robberies. Like Hull, Raissi was present when Wiley was arrested. During his testimony, Raissi identified Wiley as the person in the surveillance photographs who was sitting on the porch holding a stack of money. Defense counsel did not object to this testimony. Raissi also testified that he interacted with Wiley immediately following his arrest, and he identified the clothes that Wiley was
The government also called Starling. Starling testified that he met Wiley approximately two months before the men were arrested. Starling admitted that he participated in two of the robberies. He testified that on each occasion he drove Wiley and Mitchell to a retail store. Once they arrived at the retail stores, Wiley, carrying a mask and a gun, exited the car and robbed the stores. Starling admitted that Wiley paid him for driving to the stores.
The government showed Starling the same surveillance video it had shown to Hull. Starling identified the man in the video as Wiley and noted that Wiley was holding a stack of money. He also identified Wiley in the courtroom.
During their investigation, officers searched Starling’s house and car. The government introduced into evidence two masks that had been recovered from Starling’s house and a gun that had been recovered from his car. Starling testified that Wiley used these items during the robberies. In addition to Starling’s testimony, the government introduced evidence showing that Wiley’s fingerprints and DNA were found on the masks recovered from Starling’s house and that his DNA was found on the gun recovered from Starling’s car.
The jury found Wiley guilty on all counts. After trial, Wiley invoked
II. STANDARD OF REVIEW
We review a district court’s decision to strike a juror for cause for an abuse of discretion. United States v. Brown, 996 F.3d 1171, 1182 (11th Cir. 2021) (en banc). “We will reverse the district court only if we find that it discharged the juror without factual support, or for a legally irrelevant reason.” Id. (internal quotation marks omitted).
We generally review for abuse of discretion a district court’s decision to admit lay opinion testimony. See United States v. Pierce, 136 F.3d 770, 773 (11th Cir. 1998). Where a party fails to object to the testimony at trial, however, we review for plain error. See United States v. Campo, 840 F.3d 1249, 1265 (11th Cir. 2016).
Whether an offense is a crime of violence under
III. DISCUSSION
Wiley makes three arguments on appeal. First, he argues that the district court abused its discretion by striking Juror 23 based on her statements regarding her religious beliefs and her
A. The District Court Did Not Abuse Its Discretion by Striking Juror 23 for Cause.
Wiley argues that the district court abused its discretion by excusing prospective Juror 23. He contends that, although Juror 23 questioned the fairness of the judicial process and explained that it would be difficult for her to judge others, she did not indicate that she was unable to weigh the evidence, follow the law, and render a just verdict. We disagree. Juror 23 said that her religious convictions might impact her ability to sit on a jury and that she did not know if she could be impartial. The district court therefore did not abuse its considerable discretion when it struck Juror 23 for cause.
“Courts may exclude or remove jurors who make clear that they may not sit in judgment of others based on their religious beliefs.” Brown, 996 F.3d at 1190. In Brown, the district court removed a deliberating juror after he told other jurors that “the Holy Spirit told him [the defendant] was not guilty on all charges.” Id. 1193 (internal quotation marks omitted). We reversed, reasoning that,
Here, unlike the juror in Brown, Juror 23 could not confirm her ability to be fair and follow the court’s instructions on weighing the evidence presented. See United States v. Lewis, 40 F.4th 1229, 1241–42 (11th Cir. 2022) (holding that the district court did not abuse its discretion when it struck a juror who could not confirm her ability to be fair and stated during jury selection that she was not one to cast judgment on others and that it would be a struggle for her to do so). When asked whether she could be impartial, Juror 23 responded that she did not know. She explained that, based on her religious beliefs, she could not judge other people. She expressed doubt that she would be given all the facts she thought she should be given to decide the case, saying that she “could only be as fair as what you give me.” Doc. 329 at 150–51. She voiced concern about relying on “imperfect men’s opinions” without all the facts. Id. at 149–50. And she said that she did not “have a lot of faith in the . . . justice system.” Id. at 27–28. Based on these responses, the district court did not abuse its discretion in striking Juror 23 for cause. See Lewis, 40 F.4th at 1241–42.
We note that this case is further distinguishable from Brown because in Brown “the heightened standard applicable to the dismissal of an already empaneled juror during deliberations was central to our decision.” Id. at 1242. Here, by contrast, Juror 23 was struck during jury selection. And “there are few aspects of a jury trial where we would be less inclined to disturb a trial judge’s exercise of discretion than in ruling on challenges for cause in empaneling of a jury.” Id. (internal quotation marks omitted).
B. The District Court Did Not Plainly Err by Permitting Law Enforcement Officers to Offer Lay Opinion Testimony.
Next, Wiley argues that the district court plainly erred by permitting law enforcement officers to identify him in surveillance videos and photographs because the officers lacked sufficient familiarity with him to permit their identification testimony. He also argues that the officers should not have been permitted to testify that he was holding a stack of money because they had no way of identifying the object in his hand, other than by examining the photographs. Wiley failed to object to the officers’ testimony at trial, so we review this argument for plain error. See Campo, 840 F.3d at 1265. “To prevail under plain error review, [the defendant] must show that the district court made an error, that the error was plain, and that it affected his substantial rights.” United States v. Iriele, 977 F.3d 1155, 1177 (11th Cir. 2020). And we will not reverse based on plain error unless the error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. Even
Here, the officers’ familiarity with Wiley lands somewhere in the middle. Although it falls short of the “close relationship . . . or substantial and sustained contact” contemplated in Pierce, both officers were present when Wiley was arrested just a day after the surveillance footage was captured and thus had more familiarity with Wiley’s appearance at that time than the jury. See id. But we need not decide whether the officers’ post-arrest familiarity with Wiley was sufficient to permit them to identify him at trial. Assuming that the district court erred by admitting the lay opinion identification testimony, Wiley cannot show that his substantial rights were affected. “A substantial right is affected if the appealing party can show that there is a reasonable probability that there would have been a different result had there been no error.” United States v. Bennett, 472 F.3d 825, 831–32 (11th Cir. 2006). Wiley cannot make this showing because the officers’ identification testimony was not the only evidence linking Wiley to the robberies.
For one thing, Wiley’s codefendant Starling—who knew Wiley personally and spent considerable time with him in the two months preceding the surveillance footage and Wiley’s arrest—confirmed that Wiley was at Starling’s house on the day the surveillance footage was taken. Starling identified Wiley as the man in the video. He also noted that Wiley was holding a cell phone in the video and took money out of his pocket. On appeal, Wiley does not challenge the admission of this testimony. Additionally, defense counsel acknowledged at trial that Wiley was the person in the video.
For another, the government presented additional evidence linking Wiley to the robberies. Starling testified that Wiley paid him to drive Wiley to two retail stores, where Wiley, carrying a gun and a mask, got out of the car to rob the stores. When police recovered two masks from Starling’s house and a gun from Starling’s car, Starling identified them as the items Wiley used during the robberies. Wiley’s fingerprints and DNA were found on the masks, and his DNA was found on the gun recovered from Starling’s car. Considering Starling’s testimony identifying Wiley in the surveillance footage and the substantial evidence establishing Wiley’s involvement in the robberies, Wiley cannot show that the admission of Hull’s and Raissi’s testimony affected his substantial rights.
C. Our Precedent Forecloses Wiley’s Argument that Aiding and Abetting Hobbs Act Robbery Is Not a Crime of Violence.
Finally, Wiley argues that his
Section
Wiley was convicted of five counts of aiding and abetting Hobbs Act robbery, in violation of
Under our precedent, aiding and abetting a completed Hobbs Act robbery constitutes a crime of violence. See In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016). In Colon, we relied on our precedent establishing that completed Hobbs Act robbery qualifies as crime of violence under
Colon explained that “[a]iding and abetting, under
Wiley acknowledges that his argument is foreclosed by our precedent, but he urges us to revisit the issue in light of the Supreme Court’s decision in Taylor. See 142 S. Ct. at 2025–26 (holding that attempted Hobbs Act robbery is not a crime of violence under
In Taylor, the Supreme Court held that attempted Hobbs Act robbery is not a crime of violence under
The same reasoning does not apply to accessory liability under
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
Whereas attempt to commit Hobbs Act robbery can be proven by showing intent and a substantial step, “an aider and abettor of a Hobbs Act robbery necessarily commits all the elements of
IV. CONCLUSION
For the above reasons, we affirm Wiley’s convictions.
AFFIRMED.