United States v. Jamaur Lewis

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13660 JULY 12, 2011
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-60090-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMAUR LEWIS,
CURTIS SOLOMON,
DEVON CHANCE,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Southern District of Florida
_________________________
(July 12, 2011)

Before TJOFLAT and BARKETT, Circuit Judges, and STEELE,* District Judge.

*
Honorable John E. Steele, United States District Judge for the Middle District of
Florida, sitting by designation.
PER CURIAM:

Jamaur Lewis, Curtis Solomon, and Devon Chance appeal their convictions

and sentences after a jury convicted them on multiple counts of Hobbs Act

robbery, carrying a firearm in connection with each of the robberies, and

conspiracy to commit the same, in violation of 18 U.S.C. §§ 1951(a), 924(c), and

924(o) respectively, contained in a 36-count second superceding indictment.

Defendant Solomon, charged in all 36 counts, was found guilty of Counts 1

through 22 and 25 through 36, and not guilty of Counts 23 and 24. Defendant

Lewis, charged in 14 counts, was found guilty of Counts 1 and 2, 9 and 10, and 13

through 20, and not guilty of Counts 23 and 24. Defendant Chance, charged in 16

counts, was found guilty of Counts 1 and 2, and 25 through 36, and not guilty of

Counts 23 and 24. Defendant Solomon was sentenced to a total of 4,641 months

imprisonment; defendant Lewis was sentenced to a total of 1,347 months

imprisonment; and defendant Chance was sentenced as a career offender to a total

of 1,794 months imprisonment.

Defendant Lewis1 raises the following claims: (1) The district court erred by

(a) overruling a defense challenge for cause and allowing a juror (Juror Forbes),

who had been a robbery victim and could not provide assurance of her ability to be

1
Pursuant to Fed. R. App. P. 28(i), all appellants have adopted the appellate briefs and
arguments of co-appellants.

2
fair, to be seated as a juror over defense objection, and (b) denying defendants’

alternative request for an additional peremptory challenge; (2) The evidence was

insufficient to support the convictions; (3) The district court erred in admitting

speculative and unreliable lay opinion testimony and cell tower maps by a deputy

U.S. Marshal regarding the interpretation of cellular telephone tower signals, in

violation of Federal Rules of Evidence 403 and 702 and appellants’ due process

rights; (4) The district court committed multiple trial errors, including (a)

admission of prejudicial hearsay evidence of extra-judicial admissions by co-

defendants Solomon and Chance, (b) admission of recorded jailhouse

conversations between co-defendants Lewis and Solomon which were in the

government’s possession but were not disclosed to the defense until seven days

after the start of the trial, and denial of a requested continuance, and (c) denial of

requests for a mistrial or curative instruction following an improper burden-

shifting closing argument by the government which was unfairly prejudicial and

rendered the trial process fundamentally unfair; and (5) The district court erred in

imposing consecutive sentences for each count charging a violation of 18 U.S.C. §

924(c).

Defendant Solomon raises the following claims: (1) The district court erred

in denying a motion to suppress evidence found during a search of Solomon’s

3
residence pursuant to a search warrant by (a) failing to hold an evidentiary hearing

under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978),

and (b) finding the informant to have been reliable; (2) The district court erred in

denying (a) a challenge for cause to Juror Forbes, and (b) a defense request for

additional peremptory challenges given the nature of the case; (3) The district court

erred in refusing to re-seat an alternate juror when Juror Forbes had to be excused

for health reasons after the jury had been deliberating for approximately three and

one-half hours, and instead proceeded with eleven jurors; (4) The district court

erred in denying requests for a short continuance after the last minute disclosure of

cooperating witness William Arias; (5) The district court abused its discretion and

violated due process by admitting evidence of recorded telephone conversations

between defendants Solomon and Lewis while they were incarcerated, which the

government failed to disclose pre-trial; (6) The district court erred in admitting cell

phone tower mapping evidence and unreliable lay opinion testimony from a deputy

U.S. Marshal under the guise of lay opinion testimony; (7) There was not sufficient

evidence to support all counts of the robberies where witnesses failed to identify

Solomon or other co-defendants as the robbers, and appellants’ Rule 29 motions

should have been granted; (8) The enhancements under 18 U.S.C. § 924(c) for

multiple convictions, which resulted in a sentence of 4,641 months for Solomon,

4
(a) were unconstitutionally applied and (b) violated due process and the Eighth

Amendment.

Defendant Chance raises the following claims: (1) There was insufficient

evidence to prove his guilt of any of the offenses; (2) The district court erred by

denying his motion for severance based on the cumulative prejudicial effect of

spillover evidence; (3) The district court erred in denying his motion in limine and

objections to prejudicial documentary and testimonial evidence concerning his

prior jail custody; (4) The district court erred by admitting hearsay and opinion

evidence that the defendants were involved in or admitted involvement in

robberies; (5) The district court violated Bruton v. United States, 391 U.S. 123, 88

S. Ct. 1620, 20 L. Ed. 476 (1968) by admitting a jailhouse confession and other

statements by a co-defendant; (6) The district court erred in admitting evidence of

criminal activities pre-dating the charged conspiracy; (7) The district court erred in

denying a request for a continuance to address the government’s late disclosure of

a material cooperating witness and the need to provide for travel of a defense

witness to rebut that testimony; (8) The district court erred by admitting recorded

telephone calls between Solomon and Lewis while incarcerated; (9) The district

court erred by admitting the unqualified opinion testimony as to the cellular

telecommunications process; (10) The district court erred in imposing multiple

5
consecutive imprisonment sentences for the 18 U.S.C. § 924(c) counts; (11) The

district court violated defendant’s due process, equal protection, and cruel and

unusual punishment rights; and (12) The district court erroneously sentenced him

as a career offender when he had only one prior qualifying conviction.

We review preserved Bruton claims for abuse of discretion and evaluate any

Bruton error for harmlessness beyond a reasonable doubt. United States v. Turner,

474 F.3d 1265, 1275 (11th Cir. 2007). We have stated the proper Bruton standard

as being that “a defendant’s confrontation right is violated when the court admits a

codefendant statement that, in light of the Government’s whole case, compels a

reasonable person to infer the defendant’s guilt.” United States v. Schwartz, 541

F.3d 1331, 1351 (11th Cir. 2008)(footnote omitted). A Bruton error does not

require a new trial if it is harmless beyond a reasonable doubt, which we find when

“the properly admitted evidence of guilt is so overwhelming, and the prejudicial

effect of the co-defendant’s statement so insignificant, that beyond any reasonable

doubt the improper use of the statement was harmless.” Schwartz, 541 F.3d at

1353-54 (quoting United States v. Doherty, 233 F.3d 1275, 1282 (11th Cir. 2000)).

Applying these standards, we find that even if the district court committed error in

admitting the evidence, any such Bruton error would be harmless beyond a

reasonable doubt in light of the entirety of the record evidence.

6
 After careful review of the record and the parties’ briefs, and having had the

benefit of oral argument, we find the other arguments either lack merit or are

foreclosed by circuit precedent, and no abuse of discretion or reversible error has

been shown. We affirm all convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

7