United States v. Jesse Foots

Case: 15-15318 Date Filed: 10/25/2016 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 15-15318
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20184-CMA-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESSE FOOTS,
a.k.a. Polo,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(October 25, 2016)

Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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Jesse Foots appeals his convictions of the following crimes: conspiracy to

commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); two counts of

Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2; and two counts of

using and brandishing a firearm during the commission of the robberies in

violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Foots contends the district court

abused its discretion in excluding expert testimony regarding the effects of Foots’s

ingestion of a drug known as “Flakka.” Foots also asserts the district court erred

when it denied his Batson 1 challenge to the government’s striking of a prospective

juror. Additionally, Foots appeals his 462-month total sentence, contending the

district court erred in denying his request for a downward variance at sentencing.

After review, we affirm.

I. DISCUSSION

As the parties are familiar with the facts of this case, we will not recount

them in detail. We include only those facts necessary to the discussion of each

issue.

A. Exclusion of Expert Testimony

Foots first argues his expert should have been permitted to testify at trial

pursuant to Fed. R. Evid. 702. We review the admissibility of expert testimony for

abuse of discretion—a standard so deferential we will not reverse “unless the

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Batson v. Kentucky, 476 U.S. 79 (1986).
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ruling is manifestly erroneous.” United States v. Frazier, 387 F.3d 1244, 1258

(11th Cir. 2004) (en banc) (quotation omitted). In determining the admissibility of

expert testimony under Rule 702, we engage in a three-part inquiry evaluating the

expert’s qualification, reliability, and helpfulness to the jury. Id. at 1260. We find

the district court did not abuse its discretion in refusing to admit Dr. Brannon’s

testimony. Dr. Brannon is a licensed psychologist, but has no training or expertise

with respect to neuroscience, pharmacology, or toxicology. See id. at 1260–61;

Fed. R. Evid. 702 (expert must have “knowledge, skill, experience, training, or

education” in the applicable subject matter). At the hearing, Dr. Brannon could

point to no studies or other evidentiary basis supporting his opinion that Flakka

ingestion causes aggression, except to note that Flakka is a stimulant and that other

stimulants can cause aggression. See Frazier, 387 F.3d at 1262; Fed. R. Evid.

702(b), (c). His vague and unspecific conclusions did not require expertise and

would have more likely confused than assisted the jury in their determination. See

Frazier, 387 F.3d at 1262–63 (“Proffered expert testimony generally will not help

the trier of fact when it offers nothing more than what lawyers for the parties can

argue in closing arguments.”); see also id. at 1263 (“Exclusion under Rule 403 is

appropriate if the probative value of otherwise admissible evidence is substantially

outweighed by its potential to confuse or mislead the jury . . . .”). The district

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court did not make any “clear error of judgment” or apply any incorrect legal

standard, id. at 1369, so Foots’ argument fails.

B. Batson Challenge

Next, Foots contends the district court violated Batson v. Kentucky when it

permitted the Government to strike an African-American juror. We review errors

of law in the application of Batson de novo, but “[a] district court’s finding as to

why a juror is excused is an issue of fact, and as such, it will not be disturbed on

appeal ‘unless it is clearly erroneous or appears to have been guided by improper

principles of law.’” United States v. Allen-Brown, 243 F.3d 1293, 1296 (11th Cir.

2001) (citing United States v. Williams, 936 F.2d 1243, 1246 (11th Cir. 1991)).

A party may not exercise a peremptory challenge against a juror solely on

account of that juror’s race. Batson, 476 U.S. at 84. Batson established a three-

step test for evaluating racial discrimination claims in jury selection: first, the

defendant must establish a prima facie showing that a peremptory challenge has

been exercised on the basis of race; second, if that showing is made, the

prosecution must offer a race-neutral basis for striking the juror in question; and

third, in light of the parties’ submissions, the court determines whether the

defendant has established purposeful discrimination. United States v. Folk, 754

F.3d 905, 912–13 (11th Cir. 2014).

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The district court did not err in rejecting Foots’ Batson challenge. Even

assuming Foots made a prima facie showing of discrimination merely by objecting

to the Government’s peremptory challenge, his argument still fails with respect to

the second and third Batson prongs. When prompted, the Government gave a race-

neutral reason for striking the juror, satisfying the second Batson element: as a

scientist, the juror had expressed hesitation to trust testimony, stating a preference

for physical evidence. See Purkett v. Elem, 514 U.S. 765, 767–68 (1995) (“Unless

a discriminatory intent is inherent in the prosecutor's explanation, the reason

offered will be deemed race neutral.”) (quotation omitted). This was a credible

basis for excluding her, since it also struck Juror 17, an engineer and the only other

juror who expressed similar doubts about non-physical evidence. We will not

disturb the trial court’s conclusion on this record. See Folk, 754 F.3d at 914 (“The

trial judge's decision on this ‘ultimate question of discriminatory intent . . .

represents a finding of fact of the sort accorded great deference on appeal.’”)

(citation omitted).

C. Denial of Variance

Finally, Foots asserts the district court erred when it denied his motion for a

downward variance, contending his sentence was unreasonable. We review the

reasonableness of a sentence under a deferential abuse of discretion standard.

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The burden is on the

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party challenging the sentence to show that the sentence was unreasonable in light

of the record and the factors set forth in 18 U.S.C. § 3553(a). Id. at 1189.

The district court did not abuse its discretion in sentencing Foots to 462

months’ imprisonment, which was within the Guidelines range. It discussed in

depth its reasons for imposing the sentence, giving due consideration to the

§ 3553(a) factors, and the facts it relied on were not clearly erroneous. See Gall v.

United States, 552 U.S. 38, 51 (2007). Nor was the sentence substantively

unreasonable, despite Foots’ assertion that his codefendant, who received a lower

sentence, was more culpable. See id. Unlike his codefendant, Foots did not admit

guilt, and he repeatedly lied to the court. His charge of disparity is unwarranted.

See United States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008) (holding that

although § 3553(a)(6) requires the court to avoid unwarranted sentencing

disparities, concerns about disparate sentences among co-conspirators are not

implicated where the appellant and a codefendant are not similarly situated);

United States v. Regueiro, 240 F.3d 1321, 1325–26 (11th Cir. 2001) (“Disparity

between sentences imposed on codefendants is generally not an appropriate basis

for relief on appeal.”).

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II. CONCLUSION

For the reasons stated above, we affirm the judgment of the district court and

Foots’ sentence.

AFFIRMED.

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