USA v. Jesse Foots

Filing

Opinion issued by court as to Appellant Jesse Foots. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 10/25/2016

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
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.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(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 threestep 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 raceneutral 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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