USCA11 Case: 21-10558 Date Filed: 12/16/2021 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10558
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
versus
MITCHELL LEM FINNEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cr-00044-TFM-B-1
____________________
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2 Opinion of the Court 21-10558
Before JORDAN, NEWSOM, and MARCUS, Circuit Judges.
PER CURIAM:
Mitchell Finney appeals from his conviction, following a
jury trial, for deprivation of rights under color of law resulting in
bodily injury, in violation of 18 U.S.C. § 242. According to the in-
dictment, the offense occurred when Finney, acting as a Sheriff’s
Deputy in Clarke County, Alabama, punched and used pepper
spray on an elderly psychiatric patient who had already been sub-
dued and handcuffed by earlier-arriving officers. On appeal, Finney
argues that: (1) the trial evidence was insufficient for the jury to
conclude that he caused bodily injury to the victim because there
was no evidence that the victim subjectively experienced pain; and
(2) the district court abused its discretion by denying his motion for
a new trial based on newly discovered evidence of juror miscon-
duct without holding a hearing. After careful review, we affirm.
We review the sufficiency of the evidence de novo,
“view[ing] the evidence in the light most favorable to the prosecu-
tion and draw[ing] all reasonable inferences and credibility choices
in favor of the jury verdict.” United States v. Joseph,
709 F.3d 1082,
1093 (11th Cir. 2013). “[W]e must affirm a conviction unless there
is no reasonable construction of the evidence from which the jury
could have found the [defendant] guilty beyond a reasonable
doubt.”
Id. We review a district court’s decision to grant or deny
an evidentiary hearing on a motion for new trial for abuse of dis-
cretion. United States v. Schlei,
122 F.3d 944, 990 (11th Cir. 1997).
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21-10558 Opinion of the Court 3
First, we are unpersuaded by Finney’s argument that there
was insufficient evidence of bodily injury to support his convic-
tion.1 A violation of § 242 requires proof that the defendant, while
acting under color of law, deprived the victim of his rights. 18
U.S.C. § 242. If the deprivation results in “bodily injury,” the max-
imum term of imprisonment increases from one to ten years. Id.
“[T]he term ‘bodily injury’ means—(A) a cut, abrasion, bruise,
burn, or disfigurement; (B) physical pain; (C) illness; (D) impair-
ment of a function of a bodily member, organ, or mental faculty;
or (E) any other injury to the body, no matter how temporary.”
United States v. Myers,
972 F.2d 1566, 1572-73 (11th Cir. 1992)
(quotations omitted).
“[C]ircumstantial evidence may be used to establish an ele-
ment of a crime, even if the jury could draw more than one reason-
able inference from the circumstantial evidence, and in judging suf-
ficiency of the evidence, we apply the same standard whether the
evidence is direct or circumstantial.” United States v. Langford,
647 F.3d 1309, 1319 (11th Cir. 2011). “But [w]hen the government
relies on circumstantial evidence, reasonable inferences, not mere
speculation, must support the conviction.” United States v. Friske,
640 F.3d 1288, 1291 (11th Cir. 2011) (quotations omitted).
1 Notably, Finney does not appeal the jury’s conclusion that he violated the
victims’ rights when he struck and pepper sprayed him; he is only appealing
the jury’s finding of “bodily injury,” which increases the maximum sentence
under the statute.
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4 Opinion of the Court 21-10558
Here, there was sufficient evidence for the jury to find that
Finney caused bodily harm to the victim. As the record reflects,
the jury heard testimony -- from law enforcement, people who
have experienced the effects of pepper spray, and an expert -- that
pepper spray causes eye burning, temporary blindness, difficulty
breathing, a burning feeling on bare skin, and pain. Finney himself
testified that being pepper sprayed is “not a good feeling” and that
the victim’s eyes were “on fire.” Upon hearing this testimony, the
jury reasonably inferred that the victim experienced pain or organ
impairment in the form of temporary blindness when he was pep-
per sprayed and, therefore, suffered “bodily injury.” Langford,
647
F.3d at 1319; Myers,
972 F.2d at 1572-73.
As for Finney’s claim that the victim experienced fewer ef-
fects because he was “drugged and mentally disturbed,” Finney
presented no evidence to the jury to support this claim. Rather,
several experts testified that the victim felt the effects of pepper
spray. Similarly, while Finney notes that he was the second officer
to spray the victim that day, Finney never presented evidence that
a second spray would not cause pain. Regardless, even if a second
spray caused more or less pain than the first one, the level of pain
is irrelevant as to whether there was a bodily injury. Myers,
972
F.2d at 1572-73. Finney’s citation to cases that warn against making
assumptions about the dangerousness of pepper spray based on its
label and advertisements is also irrelevant since the jury did not
hear evidence of its label and advertisement. Accordingly, we af-
firm as to Finney’s sufficiency-of-the-evidence argument.
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21-10558 Opinion of the Court 5
We also find no merit to Finney’s claim that the district
court abused its discretion by denying his motion for a new trial.
Motions for a new trial are governed by Federal Rule of Criminal
Procedure 33, which provides that, upon the defendant’s motion,
“the court may vacate any judgment and grant a new trial if the
interest of justice so requires.” Fed. R. Crim. P. 33(a). “Motions
for a new trial based on newly discovered evidence are highly dis-
favored in the Eleventh Circuit and should be granted only with
great caution. Indeed, the defendant bears the burden of justifying
a new trial.” United States v. Campa,
459 F.3d 1121, 1151 (11th Cir.
2006) (en banc) (quotations omitted). An evidentiary hearing is not
required if the record contains all the evidence needed to dispose
of each ground asserted as the basis for a new trial. United States v.
Scrushy,
721 F.3d 1288, 1305 n.30 (11th Cir. 2013).
“[A] motion for new trial based on juror misconduct is a
form of new trial motion for newly discovered evidence.” United
States v. Bolinger,
837 F.2d 436, 439 (11th Cir. 1988). Accordingly,
the defendant has “the burden of establishing in [his] motion[] that
the evidence was in fact newly discovered and that failure to dis-
cover it prior to verdict was not due to a lack of due diligence.”
United States v. Calderon,
127 F.3d 1314, 1351 (11th Cir. 1997).
Further, to obtain a new trial based on alleged juror misconduct
during voir dire, “a party must first demonstrate that a juror failed
to answer honestly a material question on voir dire, and then fur-
ther show that a correct response would have provided a valid basis
for a challenge for cause.” United States v. Perkins,
748 F.2d 1519,
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6 Opinion of the Court 21-10558
1531 (11th Cir. 1984) (quotations omitted). “A relationship be-
tween a juror and defendant, albeit a remote one, can form the ba-
sis of a challenge for cause.”
Id. at 1532. A party seeking a new trial
based on a juror’s non-disclosure during voir dire must show actual
bias, which may be shown either “by express admission or by proof
of specific facts showing such a close connection to the circum-
stances at hand that bias must be presumed.”
Id. (quotations omit-
ted). “A juror’s dishonesty is a strong indication of bias.” United
States v. Carpa,
271 F.3d 962, 967 (11th Cir. 2001). The inclusion
of a biased juror on a jury is never harmless.
Id.
However, there is no per se rule requiring the trial court to
investigate alleged juror misconduct, and “[t]he duty to investigate
arises only when the party alleging misconduct makes an adequate
showing of extrinsic influence to overcome the presumption of
jury impartiality.” United States v. Cuthel,
903 F.2d 1381, 1382-83
(11th Cir. 1990) (quotations omitted). “A court enjoys substantial
discretion in choosing the investigative procedure to be used in
checking for juror misconduct.” Carpa,
271 F.3d at 967 (quotations
omitted). “The more speculative or unsubstantiated the allegation
of misconduct, the less the burden to investigate.” Cuthel,
903 F.2d
at 1383 (quotations omitted). Notably, “a defendant alleging juror
bias must do more than speculate.” United States v. Sammour,
816
F.3d 1328, 1339 (11th Cir. 2016) (quotations omitted). “[H]e must
show clear, strong, substantial and incontrovertible evidence . . .
that a specific, nonspeculative impropriety has occurred.” Cuthel,
903 F.2d at 1383 (quotations omitted).
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21-10558 Opinion of the Court 7
In this case, Finney is not challenging the district court’s ul-
timate denial of his motion for a new trial, but only that the court
did so without holding an evidentiary hearing. Nevertheless, the
district court did not abuse its discretion in declining to hold a hear-
ing on Finney’s juror misconduct claim because the record con-
tained all the evidence needed to dispose of the motion. As the
record reveals, Finney’s allegation of juror misconduct -- that a fe-
male juror had remembered him, held a thirty-year grudge against
him for not reciprocating her romantic interest, and lied about it --
is purely speculative because he offers no proof of these claims. Ra-
ther, his claim is based on a vague statement from his sister, and
even he admitted that he did not recognize the juror. This situa-
tion stands in stark contrast to the court’s removal for cause of an-
other juror who said he’d known Finney’s family his whole life.
Nor did Finney show that his failure to discover evidence of
a potential relationship with the juror was not due to his lack of
due diligence. At trial, Finney declined to question the juror fur-
ther, and he did not investigate her until after the trial was over
even though he had access to her personal information during the
trial. He likewise declined the opportunity to present additional
information about juror misconduct at the sentencing hearing
when he was given an opportunity to do so by the court. Accord-
ingly, we affirm.
AFFIRMED.
