FILED
NOT FOR PUBLICATION OCT 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10311
Plaintiff-Appellee, D.C. No. 2:10-cr-456-LDG-VCF
v.
MEMORANDUM*
JASON WILEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted September 10, 2013**
San Francisco, California
Before: WALLACE, FISHER, and BERZON, Circuit Judges.
Wiley was convicted of nine counts of interference with commerce by
robbery and one count of conspiracy to interfere with commerce by robbery, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of 18 U.S.C. § 1951, and ten counts of use of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c). Wiley now appeals his convictions.
We review whether the challenged convictions were based on insufficient evidence
by asking whether, construing the evidence in the light most favorable to the
Government, a rational trier of fact could have found the elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).
We review the exclusion of expert testimony by the district court for abuse of
discretion. United States v. Rincon, 28 F.3d 921, 923 (9th Cir. 1994). We have
jurisdiction under 28 U.S.C. § 1291, and affirm.
Wiley argues that six of the robberies he conducted did not interfere with
interstate commerce. The vast majority of the alcoholic beverages sold by five of
the businesses Wiley robbed was manufactured outside the state of Nevada. The
other challenged business, a hotel, served out-of-state guests. The depletion of the
resources of such interstate businesses affects interstate commerce. United States
v. Rodriguez, 360 F.3d 949, 955 (9th Cir. 2004). (“Robbery of an interstate
business, on the other hand, typically constitutes sufficient evidence to satisfy the
Hobbs Act’s interstate commerce element.”). There was sufficient evidence for a
rational factfinder to conclude that Wiley’s robberies affected interstate commerce.
Wiley contends that interstate commerce is only affected if a store closes
early because of a robbery. That is not the law of the Ninth Circuit, which requires
only a de minimis effect on interstate commerce, like the depletion of an interstate
business’ resources. United States v. Phillips, 577 F.2d 495, 501 (9th Cir. 1978).
Wiley also challenges all of his convictions based on the district court’s
exclusion of expert testimony on the accuracy of eyewitness identification. The
sole eyewitness who testified was present at only one of the robberies and had seen
Wiley several times before. Wiley’s attorney cross-examined her, and the district
court gave comprehensive jury instructions on eyewitness testimony. Moreover,
Wiley’s co-conspirator, who testified against Wiley, identified him in surveillance
footage of the same robbery as to which the eyewitness testified. We therefore
hold that the district court did not abuse its discretion by excluding the expert
testimony. Rincon, 28 F.3d at 925-26 & n.6. Even if the district court had abused
its discretion, Wiley suffered no prejudice from that exclusion. Howard v. Clark,
608 F.3d 563, 575 (9th Cir. 2010) (noting that federal defendants are not
necessarily prejudiced by the exclusion of testimony from
eyewitness-identification experts).
AFFIRMED.
FILED
OCT 03 2013
United States v. Wiley, No. 12-10311 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BERZON, Circuit Judge, concurring:
I agree with the memorandum disposition, except that I would not hold that
the district court did not abuse its discretion in excluding the expert testimony
concerning eyewitness identification. Instead, I would simply hold that Wiley
suffered no prejudice from that exclusion, for the reasons stated in the
memorandum disposition.