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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16111
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D.C. Docket No. 0:10-cr-60330-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BARRY JOHNSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 12, 2013)
Before DUBINA, Chief Judge, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Barry Johnson appeals his conviction following a jury trial of one count of
bank robbery, in violation of 18 U.S.C. § 2113(a), and one count of possession or
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use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A). Johnson raises seven issues on appeal. He argues that:
(1) the district court improperly denied his motion to suppress historical cell-
site location (“HCL”) data obtained from his cell-phone provider without a
warrant or a showing of probable cause;
(2) the court erred by preventing him from introducing evidence of
uncharged criminal conduct by the government’s primary witness;
(3) the court abused its discretion by denying his motion for a writ of habeas
corpus ad testificandum;
(4) the court erred by allowing FBI Agent David Magnuson to testify as an
expert witness about the HCL data obtained from Johnson’s cell-phone
provider;
(5) the court erred in admitting several government exhibits, which
purported to identify Johnson’s location at the time of the offense, without
holding an evidentiary hearing;
(6) the court erred by denying Johnson’s motion for a judgment of acquittal;
and
(7) the court improperly determined that Johnson was a career offender for
sentencing purposes.
With regards to the HCL data, Johnson argues that the government violated
his Fourth Amendment right to be free from unreasonable searches and seizures
when it obtained historical cell-site location data from his cell phone service
provider, MetroPCS, without a warrant based upon a showing of probable cause.
Assuming arguendo that the district court erred in denying Johnson’s motion to
suppress, we nonetheless affirm the district court’s order because we find that the
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admission of the HCL data constituted harmless error. See United States v.
Khoury, 901 F.2d 948, 960 (11th Cir. 1990) (applying harmless error analysis to
Fourth Amendment violations and holding that an error is harmless if “the other
evidence of guilt was so overwhelming that the defendant suffered no prejudice
from the admitted evidence”). The testimony of Johnson’s co-defendant, Kelvin
Gibson, that Johnson helped to plan and execute the robbery was sufficient to
convict Johnson of armed bank robbery. This testimony was also corroborated by
the testimonies of two eye witnesses, the lead investigator, and Johnson’s former
employer, as well as by the records of Johnson’s incoming calls, not including
HCL data. Accordingly, we affirm the district court’s denial of Johnson’s motion
to suppress the HCL data, albeit on different grounds. See Koziara v. City of
Casselberry, 392 F.3d 1302, 1306 n.2 (11th Cir. 2004) (“[W]e may affirm the
district court’s judgment on any grounds supported in the record.”).
We find no reversible error in any of the remaining issues Johnson raises on
appeal and we affirm the denial of Johnson’s motion for a writ of habeas corpus ad
testificandum, affirm the district court’s evidentiary rulings at trial, affirm the
denial of Johnson’s motion for a judgment of acquittal, and affirm the district
court’s judgment and sentence.
AFFIRMED.
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