United States v. Wiley

78 F.4th 1355

UNITED STATES of America, Plaintiff-Appellee, v. Tyvonne WILEY, Defendant-Appellant.

No. 22-10179

United States Court of Appeals, Eleventh Circuit

Filed: August 29, 2023

Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket No. 1:17-cr-00122-LMM-LTW-2

Annalise Kathleen Peters, Lawrence R. Sommerfeld, DOJ-USAO, Northern District of Georgia, Atlanta, GA, for Plaintiff-Appellee.

Dennis C. O'Brien, Law Office of Dennis C O'Brien, Newnan, GA, Sydney Rene Strickland, Strickland Webster, LLC, Atlanta, GA, for Defendant-Appellant.

Before Jill Pryor and Grant, Circuit Judges, and Maze,^* District Judge.

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 18 U.S.C. § 924(c). After careful consideration and with the benefit of oral argument, we affirm.

I. BACKGROUND

Wiley was charged with one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); five counts of aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and five counts of aiding and abetting to use, carry, and brandish a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. The indictment alleged that Wiley and co-defendants Tevin Mitchell and Torey Starling had "aided and abetted" one another in committing a series of armed robberies several years earlier. Mitchell and Starling pled guilty, and Wiley proceeded to trial.

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 may "make[ ] it difficult for a person to potentially sit in judgment over another person" and asked her to explain whether that was true for her. Id. at 151-52. She responded that God was the only judge and she could not judge people.

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 introduced still images from the surveillance video. Hull identified the man in the images as Wiley. Although Hull was unfamiliar with Wiley at the time the footage was captured, he testified, "at the conclusion of the investigation[,] that is who I learned was Mr. Wiley." Doc. 330 at 224. Hull also identified Wiley in the courtroom after Wiley removed his face covering.

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 wearing at the time. Raissi photographed Wiley after his arrest. When the government showed him the photographs he had taken of Wiley, Raissi identified Wiley in the photographs, noting that Wiley had a tattoo under his left eye, a ninja turtle tattoo on the side of his right eye, and a tattoo of a dollar sign on his forehead.

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 Federal Rule of Criminal Procedure 29 in a motion to dismiss three of the § 924(c) counts of conviction, arguing that aiding and abetting Hobbs Act robbery was not a crime of violence. The district court denied Wiley's motion, concluding that his argument was foreclosed by this Court's precedent. This is Wiley's appeal.

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 18 U.S.C. § 924(c) is a question of law that we review de novo. Alvarado-Linares v. United States, 44 F.4th 1334, 1341 (11th Cir. 2022).

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 ability to render a fair and impartial verdict. Second, he argues that the district court erred by allowing law enforcement officers to give lay opinion testimony identifying Wiley in the surveillance footage presented at trial when the officers did not become familiar with Wiley until after his arrest. Third, he argues that his § 924(c) convictions should be vacated...