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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12084
Non-Argument Calendar
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D.C. Docket No. 9:18-cr-80139-WPD-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMY JOSEPH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 27, 2020)
Before LUCK, LAGOA and BLACK, Circuit Judges.
PER CURIAM:
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Jimy Joseph appeals his convictions for conspiring to export firearms to
Haiti without a license, in violation of
18 U.S.C. § 371, and fraudulently and
knowingly attempting to do so, in violation of
18 U.S.C. § 554. He asserts the
district court manifestly abused its discretion by denying his motion to strike the
jury venire after several potential jurors made comments related to school
shootings and stricter gun laws. He also contends the district court abused its
discretion in permitting non-expert testimony about how he “appeared” to
understand a conversation about firearms regulations. After review, we affirm in
part, and vacate and remand for the limited purpose of correcting the judgment.
I. DISCUSSION
A. Jury Panel
“We review the district court’s determination whether to strike an entire jury
panel for manifest abuse of discretion.” United States v. Trujillo,
146 F.3d 838,
842 (11th Cir. 1998). To demonstrate error in the denial of a motion to strike the
panel, the defendant must overcome the presumption of juror impartiality by a
showing of “actual bias.” United States v. Khoury,
901 F.2d 948, 955 (11th
Cir.1990).
In Khoury, this Court reviewed the district court’s denial of a motion to
strike a jury panel in a drug-related case, where a potential juror said that her son
had been charged with a crime and murdered in a drug-related incident, and she
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cried before the other jurors.
Id. The district court removed the juror but did not
strike the panel.
Id. This Court affirmed, holding the defendants had not
demonstrated actual bias—that is, “either an express admission of bias, or proof of
specific facts showing such a close connection to the circumstances of the case that
bias must be presumed”—and noted this was not a case where the juror’s remark
constituted an opinion as to the guilt or innocence of the defendants or related to
their knowledge of the case.
Id.
The district court did not manifestly abuse its discretion by denying Joseph’s
motion to strike the jury venire because he did not show actual bias or the
presumption of bias. As with Khoury, the jurors’ statements did not reflect an
opinion on the guilt or innocence of Joseph or specific knowledge of the case. See
id. Rather, all of the jurors stated they could be impartial, which results in a
presumption of impartiality that Joseph has not overcome. None of the empaneled
jurors made any concerning statements about the Parkland shooting or firearms
that could be construed as expressed admissions of bias. Unlike the juror’s
statement in Khoury about her son’s connection to drugs in a drug-related case, the
jurors’ comments are at best only connected to Joseph’s case through the
involvement of the same firearm, the AR-15—an aspect tangential to Joseph’s
failure to obtain the proper licenses. See
id.
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B. Evidentiary ruling
We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Wenxia Man,
891 F.3d 1253, 1264 (11th Cir. 2018). Lay witness
testimony must be rationally based on the witness’s perception. Fed. R. Evid. 701.
Such testimony must be based on first-hand knowledge or observation. United
States v. Marshall,
173 F.3d 1312, 1315 (11th Cir. 1999). By contrast, under
Federal Rule of Evidence 704(b), expert witnesses are prohibited from stating an
opinion on whether the defendant did or did not have the mental state or condition
that constitutes an element of the crime charged. Fed. R. Evid. 704(b). This Court
has affirmed the district court’s denial of the admission of expert testimony when
the expert testified the defendant “intended to have real sex with a minor” and
“intended to act out a fantasy.” United States v. Stahlman,
934 F.3d 1199, 1220
(11th Cir.), cert. denied, __ S. Ct. __,
2019 WL 6107893 (Nov. 18, 2019).
The district court did not abuse its discretion in allowing the witness’s
testimony as it was based on her rational perception that Joseph appeared to
understand their conversation about firearms regulations. Because the Government
did not qualify the witness as an expert, her testimony was subject to the
restrictions in Rule 701, not Rule 704, and therefore, Joseph’s comparison to Rule
704 is unfounded. Fed. R. Evid. 701, 704. Further, the witness’s testimony was
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based on her rational perception, as she limited her response to her observation of
Joseph’s appearance and did not stray into his intentions or state of mind.
II. CONCLUSION
The district court did not abuse its discretion by denying Joseph’s motion to
strike the jury panel or in permitting testimony about how Joseph “appeared” to
understand a conversation about firearms regulations. Thus, we affirm Joseph’s
convictions. However, the judgment incorrectly reflects the nature of Joseph’s
offense for Count 4. It incorrectly states that Count 4 was a violation for
smuggling goods into the United States under
18 U.S.C. § 554(a). However,
§ 554(a) only covers the exportation of goods. Accordingly, on this basis alone,
we vacate and remand for the limited purpose of the district court correcting the
judgment.
AFFIRMED IN PART, VACATED AND LIMITED REMAND IN
PART.
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