United States v. Tyvonne Wiley

78 F.4th 1355
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 29, 2023
Docket22-10179
StatusPublished
Cited by16 cases

This text of 78 F.4th 1355 (United States v. Tyvonne Wiley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tyvonne Wiley, 78 F.4th 1355 (11th Cir. 2023).

Opinion

USCA11 Case: 22-10179 Document: 56-1 Date Filed: 08/29/2023 Page: 1 of 18

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-10179 ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TYVONNE WILEY,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:17-cr-00122-LMM-LTW-2 ____________________ USCA11 Case: 22-10179 Document: 56-1 Date Filed: 08/29/2023 Page: 2 of 18

2 Opinion of the Court 22-10179

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, car- rying, 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 viola- tion of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. The indictment alleged that Wiley and codefendants Tevin Mitchell and Torey Starling

∗ The Honorable Corey L. Maze, United States District Judge for the Northern District of Alabama, sitting by designation. USCA11 Case: 22-10179 Document: 56-1 Date Filed: 08/29/2023 Page: 3 of 18

22-10179 Opinion of the Court 3

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 no- body knew the truth about what happened except the people in- volved and Jehovah. She said that she did “not want to be respon- sible 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 impar- tial, 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

1 “Doc.” numbers refer to the district court’s docket entries. USCA11 Case: 22-10179 Document: 56-1 Date Filed: 08/29/2023 Page: 4 of 18

4 Opinion of the Court 22-10179

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 Ju- ror 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 in- structions 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 offic- ers surveilled a house associated with the robberies. The house be- longed to Wiley’s codefendant, Torey Starling. During Hull’s testi- mony, the government played a surveillance video taken at Star- ling’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 USCA11 Case: 22-10179 Document: 56-1 Date Filed: 08/29/2023 Page: 5 of 18

22-10179 Opinion of the Court 5

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 court- room 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 war- rant, 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 identify- ing 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 fol- lowing his arrest, and he identified the clothes that Wiley was USCA11 Case: 22-10179 Document: 56-1 Date Filed: 08/29/2023 Page: 6 of 18

6 Opinion of the Court 22-10179

wearing at the time.

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Bluebook (online)
78 F.4th 1355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tyvonne-wiley-ca11-2023.