United States v. Alfonzo Lewis ( 2022 )

USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 1 of 34
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12997
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONZO LEWIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cr-00369-WMR-UNA-1
____________________
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 2 of 34
2 Opinion of the Court 20-12997
Before GRANT, LUCK, and HULL, Circuit Judges.
HULL, Circuit Judge:
On appeal, Alfonzo Lewis challenges his convictions for
conspiracy to possess with intent to distribute, and possessing
with intent to distribute, five kilograms of cocaine. After careful
review and with the benefit of oral argument, we affirm.
Lewis’s four claims on appeal focus on three discrete
portions of his criminal proceeding: the initial arrest, the jury
selection, and the trial itself. For that reason, we describe the set
of facts relevant to each issue, discuss that issue, and then move
on to the next issue and its pertinent facts.
PART ONE: THE ARREST
I. Factual Background
A. The Traffic Stop
On December 14, 2015, Michael Hannan was monitoring a
pole camera at the office used by the High Intensity Drug
Trafficking Area task force, which is under the Drug Enforcement
Administration (the “DEA task force”). This type of specialized
DEA task force operates in “critical drug-trafficking regions of the
United States” using the combined resources of federal, state, and
local law enforcement agencies. 1 Hannan was employed by the
1 See HIDTA, U.S. Drug Enf’t Admin., http://dea.gov/operations/hidta
(last visited June 14, 2022).
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 3 of 34
20-12997 Opinion of the Court 3
Fulton County Sheriff’s Office (“FCSO”) but was also a deputized
DEA task force officer.
In November 2015, the DEA task force had placed the
camera that Officer Hannan was monitoring at a residential
address in East Point, Georgia, as part of an investigation into a
large-scale methamphetamine-trafficking organization. While
watching the camera feed, Hannan observed a black Chevy
Suburban pull into the driveway of the East Point residence.
Hannan watched the Suburban’s occupants walk toward the
house with a brown backpack. He later learned that one of these
men was Lewis. The Suburban was registered to the mother of
Lewis’s child.
Officer Hannan believed a drug deal was occurring, so he
contacted Lieutenant Corey Henry of the FCSO. Lt. Henry was
not a DEA task force member. Officer Hannan, who was a task
force member, informed Lt. Henry that there was a chance a
vehicle would be leaving a residence with narcotics, and he asked
Lt. Henry if he was available to make a “walled-off stop.”
According to Officer Hannan, a “walled-off stop is a law-
enforcement technique . . . where a state or local officer in a
marked unit is used to assist in conducting a traffic stop on a
vehicle that we believe is involved in some type of illegal
activity.” Officer Hannan explained that the federal task force
used walled-off stops “to separate our overall larger investigation
from the stop of the vehicle to basically not disclose our—reveal
our investigation and compromise our investigation.” Officer
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 4 of 34
4 Opinion of the Court 20-12997
Hannan asked Lt. Henry if he could make a traffic stop on the
Suburban if he could obtain probable cause through a traffic
violation, and if he did find anything, to handle the arrest.
Officer Hannan instructed Lt. Henry to go to a MARTA
station 2 near the East Point residence and wait there. Officer
Hannan and other DEA task force officers went to the MARTA
station as well and continued surveilling the residence on a
laptop. Eventually, Officer Hannan saw the two men return to
the Suburban and watched as Lewis placed a brown bag in the
back seat before getting into the passenger’s seat. Officer Hannan
provided Lt. Henry with a description of the Suburban and its
occupants, as well as its license plate number, and told him a
brown bag was placed into the Suburban.
Officer Hannan saw the Suburban drive by the MARTA
station about 30 seconds after it left the view of the camera. He
and other DEA task force officers—in several different, unmarked
cars—began following the Suburban. Lt. Henry, in his marked
patrol car, followed at the back of the surveillance team. The
Suburban got onto 85 South, and Officer Hannan followed it for
“a while.” Once the group was “far enough away” from the
residence that a stop would not raise suspicion about the larger
investigation, Officer Hannan “let Lieutenant Henry know that
2 The Metropolitan Atlanta Rapid Transit Authority, or MARTA, is Atlanta’s
public transportation system.
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 5 of 34
20-12997 Opinion of the Court 5
any time he’s ready, you know, he could get closer and try to
observe if there’s any traffic violations.”
Lt. Henry then moved closer to the Suburban and, using
his calibrated speedometer (he did not have a radar gun),
determined that the Suburban was traveling 83 miles per hour in
an area where the speed limit was 70 miles per hour. He did not
pull the Suburban over right away because he was waiting for
Georgia State Patrol (GSP) Trooper Jordan Ennis to assist. FCSO
officers do not have authority to pursue a fleeing vehicle, but GSP
troopers do. So, Lt. Henry had contacted Ennis from the MARTA
station. Trooper Ennis arrived sometime after Lt. Henry had
determined that the Suburban had been speeding. By that time,
Lt. Henry had slowed down and backed off the Suburban. Once
Trooper Ennis arrived, Lt. Henry initiated his emergency lights
and stopped behind the Suburban. Trooper Ennis stopped his
vehicle behind Lt. Henry’s.
After Lt. Henry pulled the Suburban over, Officer Hannan
and the other DEA task force officers kept driving, got off at an
exit, and gathered in a parking lot to wait for word about what
happened at the traffic stop. They did not see or participate in the
stop.
Lt. Henry and his partner walked to the Suburban, and
Lt. Henry approached to speak to the driver, Telrone Houston.
He told Houston that he stopped the Suburban for speeding.
While standing at the window speaking with Houston, Lt. Henry
smelled burnt marijuana inside the Suburban. He went to his
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 6 of 34
6 Opinion of the Court 20-12997
vehicle to get his citation book, and then walked back and asked
Houston to step out of the Suburban. He asked Houston about
the marijuana odor, and Houston told him there was no
marijuana in the car, but he had smoked marijuana earlier in the
day. Based on the odor and Houston’s statement, Lt. Henry
advised Houston that he was going to conduct a search of the
vehicle. He then had Lewis exit the vehicle as well.
Lt. Henry searched the Suburban and found the brown
bag. He unzipped it and observed five kilogram-sized packages of
cocaine. At that point, he told his partner and Trooper Ennis to
detain Lewis and Houston. As Lt. Henry was carrying the brown
bag back to his patrol car, Lewis stated that the bag was his.
Lt. Henry then searched the rest of the Suburban. He did not find
any marijuana, burnt or otherwise.
Over the course of the traffic stop, Lt. Henry called Officer
Hannan three times to advise him of what had occurred. Officer
Hannan instructed Lt. Henry to arrest Lewis but to allow
Houston to leave. Lt. Henry arrested Lewis and advised him of
his Miranda3 rights. Lewis agreed to provide a written statement
claiming ownership of the contents of the bag.
Lt. Henry issued a traffic ticket to Houston for speeding
and allowed him to leave the scene. The ticket was later
dismissed.
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 7 of 34
20-12997 Opinion of the Court 7
B. Lewis’s Statements at the Jail
Before being transported to the Fulton County Jail, Lewis
told Lt. Henry that he wanted to provide information about drug
trafficking. Lt. Henry called Officer Hannan and relayed that
Lewis wanted to talk. Officer Hannan and a second DEA task
force officer, Matthew Dembowski, came to the jail to speak to
Lewis. Officer Hannan introduced himself to Lewis as an FCSO
officer. Officer Hannan then read Lewis his Miranda rights using
a card that he borrowed from Officer Dembowski. Hannan
borrowed the card because all of his own Miranda forms had
“DEA” written on them, and he did not want Lewis to know that
federal authorities were involved in the investigation.
After agreeing to waive his Miranda rights, Lewis stated
that he was planning to transport the cocaine to Albany, Georgia,
that he had done so before, and that the people in East Point had
large quantities of methamphetamine.
C. State Court Prosecution
On December 22, 2015, a Fulton County indictment
charged Lewis with trafficking in cocaine. Lewis moved to
suppress the cocaine and his subsequent statements. The state
court denied his motion initially and on reconsideration. In
testimony before the state court at a suppression hearing, Lt.
Henry did not disclose the federal task force’s role in his decision
to stop the Suburban. Driver Houston testified that he did not
tell Lt. Henry that he had smoked marijuana earlier in the day.
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 8 of 34
8 Opinion of the Court 20-12997
Lewis filed a second motion for reconsideration after
receiving a DEA report revealing the task force’s role in the
investigation and arrest. Looking at the evidence in light of the
newly-uncovered DEA report, the state court granted Lewis’s
motion to suppress the cocaine and his statements. The state
court found that Lt. Henry did not smell marijuana and wanted
an excuse to search the car, and that Houston was not speeding,
stating as follows:
[Lt. Henry] never smelled burning marijuana. He
simply wanted an excuse to search the car. More
specifically, he wanted to inspect the “brown bag”
and its contents.
...
It thus appears that the traffic stop may well have
been entirely pre-textual and that Houston was not
speeding at the time he was pulled over. Further, it
clearly appears that [Lt. Henry] did not smell
marijuana during his interview of [driver] Houston
and hence the alleged reason for the search was
simply not true.
There was no probable cause to stop and search the
vehicle and the detention of [driver] Houston and
the [passenger] Defendant was unlawful.
The state did not appeal. The state charges against Lewis were
dismissed on November 1, 2017.
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 9 of 34
20-12997 Opinion of the Court 9
D. Federal Prosecution Begins
After the state charges were dismissed, Officer Hannan
consulted with the U.S. Attorney’s Office about bringing federal
charges against Lewis. In February 2018, Officer Hannan
contacted the FCSO’s evidence custodian to have all five bricks of
suspected cocaine tested, because only one of them was tested in
advance of the state prosecution. Officer Hannan also “instructed
them that I needed the cocaine saved and preserved pending
[these] possible federal charges against Mr. Lewis.”
In September 2018, a federal grand jury indictment charged
Lewis with one count of conspiracy to possess with intent to
distribute, and one count of possession with intent to distribute,
five kilograms of cocaine.
At no point after the federal indictment did Officer Hannan
or anyone else working on the federal case follow up with the
FCSO’s evidence custodian to confirm that the cocaine was
needed for a federal prosecution. In the state case file, the
evidence custodian never noted that the cocaine might be needed
for a federal case. In December 2019, Officer Hannan finally
reached out to the FCSO because the drugs were needed for the
federal trial. At that point, he learned that the drugs had been
destroyed, as a matter of routine, almost a year prior.
E. Denial of Motion to Suppress
Lewis moved the district court to suppress the cocaine and
his statements. Lewis argued, inter alia, that: (1) Lt. Henry was
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 10 of 34
10 Opinion of the Court 20-12997
not credible; (2) the stop and search of the Suburban were illegal;
and (3) collateral estoppel should apply to bar relitigation of the
legality of the stop because that issue was already decided in his
state proceedings.
A magistrate judge held a hearing, at which Officer
Hannan, Lt. Henry, and Trooper Ennis testified. The magistrate
judge recommended that Lewis’s motion to suppress be denied.
Lewis objected to the R&R, and the district court ordered that
another evidentiary hearing be held so that it could assess
Lt. Henry’s credibility for itself.
After that hearing, the district court denied Lewis’s motion
to suppress. It found that (1) Lt. Henry was credible; (2) there
was probable cause for the traffic stop and the Suburban search;
and (3) the cocaine and Lewis’s statements were thus admissible.
It further determined that, assuming collateral estoppel could
apply in this context, its requirements were not met because there
was no privity between the state and federal prosecuting
authorities.
II. Discussion: Collateral Estoppel and Lewis’s
Motion to Suppress
On appeal, Lewis argues that the district court erred in
denying his motion to suppress. Lewis contends that the
collateral estoppel doctrine precluded the federal government
from relitigating the legality of the traffic stop and Lt. Henry’s
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 11 of 34
20-12997 Opinion of the Court 11
subsequent search of the Suburban as that identical issue was
already decided in state court. 4
Collateral estoppel, otherwise known as issue preclusion,
“means simply that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again
be litigated between the same parties in any future lawsuit.” Ashe
v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194 (1970).
“Collateral estoppel . . . has the dual purpose of protecting
litigants from the burden of relitigating an identical issue with the
same party or his privy and of promoting judicial economy by
preventing needless litigation.” Parklane Hosiery Co. v. Shore,
439 U.S. 322, 326, 99 S. Ct. 645, 649 (1979).
This Court has indicated that it is an “open question” in
this Circuit “[w]hether issue preclusion may apply in the criminal
context to bar one governmental entity from relitigating a pretrial
suppression order previously rendered against another
governmental entity.” United States v. Perchitti, 955 F.2d 674,
675 (11th Cir. 1992). 5
4 When reviewing a district court’s denial of a motion to suppress, we review
the court’s findings of fact for clear error and its application of law to the
facts de novo. United States v. Campbell, 26 F.4th 860, 870 (11th Cir. 2022)
(en banc). In doing so, we view the evidence in the light most favorable to
the government. Id. Our review may encompass the entire record. United
States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007).
5 In its brief, the government contends that the specific question identified in
Perchitti has been settled and that federal courts cannot be bound by state
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 12 of 34
12 Opinion of the Court 20-12997
In Perchitti, the defendant was charged in Florida and, after
the state court granted the defendant’s motion to suppress, the
state prosecutor dismissed the charges. Id. Subsequently, the
defendant was indicted in federal court, and the Florida
prosecutor was appointed as a “Special Assistant United States
Attorney” for the federal prosecution. In federal court, the
defendant’s motion to suppress was denied. On appeal, the
defendant argued that the federal court erred by not applying
issue preclusion. Id.This Court held that it was not necessary to “decide the
applicability of issue preclusion to successive criminal
prosecutions by multiple sovereigns, because there was no privity
between Florida and the United States in [that] case.” Id. at 676.
Because issue preclusion applies only when the same issue has
criminal court decisions pertaining to motions to suppress. In support, it
cites: (1) a footnote from a 2004 criminal forfeiture decision, U.S. v. One
Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d
1099, 1101 n.1 (11th Cir. 2004), and (2) a Supreme Court case decided
decades before Perchitti, Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437(1960). However, neither case is anywhere near on point. Neither decision
even mentions the phrase “collateral estoppel.” In One Piece of Real
Property, this Court reversed the district court’s grant of summary judgment
because there were disputed fact issues. And Elkins, a case that involved no
federal agents at all, dealt with the question of whether federal courts should
apply the exclusionary rule to the conduct of state agents even in states that
had not yet adopted the exclusionary rule in their own courts. This brief
walk through history has absolutely nothing to do with the issue here. The
question we identified in Perchitti remains undecided.
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 13 of 34
20-12997 Opinion of the Court 13
been decided against the same party, a litigant seeking to invoke it
against a third party must show some kind of privity between the
original and current opposing parties. See Montana v. United
States, 440 U.S. 147, 154, 99 S. Ct. 970, 974 (1979) (“[T]he persons
for whose benefit and at whose direction a cause of action is
litigated cannot be said to be strangers to the cause.” (quotation
marks omitted)).
In general terms, “privity” is a relationship between two
parties who both have a legally recognized, mutual interest in the
same subject matter. See Privity, Black’s Law Dictionary (11th
Ed. 2019). That relationship can take many different forms, some
of which are easy to identify—e.g., a contractual relationship—
while others are not so clear. In Perchitti, we described four
factors relevant “in attempting to identify the nexus necessary
between two parties to justify finding them in privity”:
(1) “Privity may be found where a non-party substantially
controls, or is represented by, a party to the action”;
(2) “Another formulation requires that the party estopped must
have been ‘so closely related to the interest of the party to be
fairly considered to have had his day in court’”;
(3) “Still another derivative is that there must be a ‘substantial
identity’ of the parties such that the party to the action was
the virtual representative of the party estopped”; and
(4) “Furthermore, when the parties at issue are sovereigns, . . . a
second prosecution may be barred where one prosecuting
sovereign can be said to be acting as a ‘tool’ of the other, or
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 14 of 34
14 Opinion of the Court 20-12997
where the second prosecution amounts to a ‘sham and cover’
for the first.”
Perchitti, 955 F.2d at 676 (footnotes and citations omitted).
After discussing these factors, this Court concluded that:
(1) the state prosecutor’s role in the federal prosecution was an
insufficient basis for the application of issue preclusion against the
United States; and (2) the investigatory cooperation between the
Tampa police and the DEA (which the Court characterized as
“minor involvement of DEA agents in the Tampa Police
Department’s investigation of the defendants”) was not enough to
establish privity. Id. at 677.
After review, we again conclude that it is not necessary to
decide whether issue preclusion may apply in successive criminal
prosecutions involving multiple sovereigns. Even assuming that
it could apply if all of the elements were met, it would not apply
here because Lewis has not established privity between the state
and federal prosecuting authorities in this case.
We agree with Lewis that the cooperation between the
state and federal governments in the investigation and arrest was
far more than the “minor involvement of DEA agents” present in
Perchitti. See id. And, while that cooperation is relevant in this
case to the identity inquiry, we conclude it is not a sufficient
nexus. The bulk of this cooperation occurred before either
prosecution was initiated. No evidence has been presented
showing federal prosecutors’ involvement until after the state
case was dismissed. Lewis has not shown that the state
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 15 of 34
20-12997 Opinion of the Court 15
prosecutors were acting as a “tool” of, or were even “substantially
controlled” by, the federal prosecutors. See id.Lewis points us to the timeline of events, noting that he did
not find out about the DEA’s involvement until more than a year
after the state-court prosecution began, after other
co-conspirators had been indicted federally, and there was no
need to hide the larger DEA investigation during his state
prosecution. But Lewis leaves the inference-drawing to us,
inviting us to speculate that the federal prosecutors collaborated
with the state prosecutors on a strategy to ensure the larger DEA
investigation stayed “walled off.” We decline to do so. Even if
the DEA did not want to disclose its role and thereby stay walled
off, this does not show the federal prosecutors were controlling
the state prosecution itself. There must be something more
concrete, express, and extensive to support a finding that a party
was a tool of, or was substantially controlled by, another party.
Because the federal and state governments were not in
privity in this case, the federal government was not estopped
from relitigating the legality of the traffic stop, the search, and
Lewis’s arrest. Accordingly, we affirm the district court’s denial
of Lewis’s motion to suppress.
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 16 of 34
16 Opinion of the Court 20-12997
PART TWO: JURY SELECTION
I. Factual Background
We now move to the first day of trial, when the parties
selected a jury from an initial pool of 38 prospects.
A. For-cause dismissal of Juror 13
During voir dire, prospective Juror 13, who holds a masters
degree in divinity, stated that she “struggle[d] with the spiritual
aspect of grace,” and agreed when asked if that meant she would
“have difficulty standing in judgment of someone else.” Lewis
asked Juror 13 if that struggle was based on her religious
convictions, and she said it was, as well as from personal
experience. Lewis then asked Juror 13 if she would be able to
follow the judge’s instructions and render her opinion based on
the evidence in the case, and Juror 13 responded, “To the best of
my ability, sir.”
The district court followed up and asked Juror 13 if she
believed she could be fair to both parties. Juror 13 responded that
given her moral beliefs she is not one to cast judgment and that it
would be a struggle for her, stating:
To be honest, Judge, I think morally I would
struggle with that. I do believe in that everlasting
grace and forgiveness. I know there’s a law of the
land, and also for my moral beliefs I don’t think I’m
the one to cast judgment on anyone. So it would be
a struggle for me, sir.
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 17 of 34
20-12997 Opinion of the Court 17
The government moved to strike Juror 13 for cause
because she indicated that she did not believe she could be fair to
both parties. Lewis objected because her hesitance had to do with
her religious convictions and she said she would try to follow the
instructions to the best of her ability.
The district court granted the government’s motion to
strike Juror 13 for cause. Responding to Lewis’s argument, the
court stated:
But she had previously said that the best of her
ability was impacted by her religious and moral
considerations in passing judgment. I mean, that’s
like saying I can hit a curve ball to the best of my
ability. I can assure you I could never hit a curve
ball.
…
[W]hen I asked her a question, I deliberately left it
open ended without trying to say can’t you be fair or
you can’t be fair, can you. And in response to my
questioning, as well as to yours . . . she hedged on
her ability to be fair.
B. Jurors 11 and 12
During voir dire, the parties asked the prospective jurors
whether they would “tend to believe or disbelieve the sworn
testimony of a police officer or a federal agent solely because of
that person’s position even before you heard his or her
testimony?” Five jurors, including Jurors 11 and 12, indicated that
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 18 of 34
18 Opinion of the Court 20-12997
they were more likely to believe or disbelieve a law enforcement
witness.
The government asked both Jurors 11 and 12 if they would
be able to follow an instruction to treat an officer’s testimony
with equal weight. Both Jurors 11 and 12 responded yes. Lewis
asked Juror 11 what caused his answer, and Juror 11 said, “I guess
it’s just my respect for law enforcement.” Lewis asked Juror 11 if
he believed he could be impartial, and Juror 11 said yes.
Juror 12 had stated that she had family who worked in
government, including her husband’s aunt who was a police
officer. Lewis asked Juror 12 if she ever spoke to her husband’s
aunt about her work as a police officer, and Juror 12 said no.
Lewis did not ask Juror 12 if she could be impartial.
Lewis moved to strike Juror 11 for cause based on his
answer that he had more respect for law enforcement which
made them more believable. He argued that Juror 11 could not
be fair and impartial. The court asked if Lewis was also moving
to strike Juror 12, because “she basically said the same thing.”
Lewis responded that he “didn’t press her about that.”
The district court stated that Jurors 11 and 12 both
responded that they could follow an instruction to treat an
officer’s testimony with equal weight. The court pointed out that
Juror 12 was a black female, while Juror 11 was a white male.
Lewis stated he was moving on Juror 11 because Juror 11 said that
law enforcement was more believable.
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 19 of 34
20-12997 Opinion of the Court 19
The court gave the parties the opportunity to follow up
with Juror 11. The government asked Juror 11 if his respect for
law enforcement would interfere with his ability to fairly evaluate
the testimony of a law enforcement witness, and Juror 11 said no.
Lewis asked if his respect for law enforcement was based on any
interactions with or relationships with law enforcement, and
Juror 11 said no. Juror 11 said he could follow an instruction not
to give more weight to law enforcement than to anyone else.
After this questioning, Lewis did not renew his motion to
strike Juror 11 for cause.
After all of the for-cause strikes were made, the court
narrowed the prospective juror pool to the first 28 individuals.
About one-third of the prospective jurors were black, while the
other two-thirds were white. The government received six
peremptory strikes, and Lewis received ten.
In exercising his ten peremptory strikes, Lewis struck eight
white jurors, including Juror 11. The government raised a
Batson6 challenge to his strike of Juror 11, arguing that there was
no difference between Jurors 11 and 12 other than their race.
The district court presumed a prima facie case was met and
asked Lewis to explain why he struck Juror 11. Lewis stated that,
although the government had attempted to rehabilitate Juror 11,
that juror’s original statement that he found law enforcement
6 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 20 of 34
20 Opinion of the Court 20-12997
more believable because of his respect for law enforcement was
still concerning. Lewis noted that Juror 12 did not make a similar
statement about respecting law enforcement, but he conceded
that he did not ask her any questions about it.
The district court sustained the government’s Batson
challenge, finding that “the basis for which Juror No. 11 was
struck had to do with the fact that he was Caucasian, when his
answer that he gave was essentially identical to the juror literally
right next to him, who was an African American female and gave
the same answer.”
The district court seated Juror 11 and pushed the last juror
selected—a white woman—into the first alternate position.
II. Discussion
On appeal, Lewis argues that the district court (1) abused
its discretion by striking Juror 13 for cause; and (2) erred in
sustaining the government’s Batson challenge and seating Juror
11 over Lewis’s peremptory strike. We first discuss Juror 13.
A. Juror 13
Lewis argues that the district court’s for-cause strike of
Juror 13 was an abuse of discretion in light of our holding in
United States v. Brown, 996 F.3d 1171 (11th Cir. 2021) (en banc). 7
7 We review the district court’s for-cause strike of a prospective juror for an
abuse of discretion. United States v. Pendergrass, 995 F.3d 858, 871 (11th Cir.
2021).
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 21 of 34
20-12997 Opinion of the Court 21
In Brown, the district court dismissed an empaneled juror
during deliberations after finding that the juror could not follow
the district court’s instructions due to his religious beliefs. Brown,
996 F.3d at 1181. At the outset of deliberations, the juror told the
other jurors that “A Higher Being told [him]” that the defendant
“was Not Guilty on all charges” and that he “trusted the Holy
Ghost.” Id. at 1177. After the other jurors raised concerns about
these remarks, the district court interviewed the juror. Id. at
1178. The juror confirmed that he had prayed for and received
divine guidance regarding the case, but assured the court he was
following the jury instructions and basing his decision on the
evidence and the law. Id. at 1179-80.
Applying the heightened standard required for dismissal of
jurors at the deliberation stage, the en banc Court in Brown held
that the district court’s dismissal of the juror was an abuse of
discretion. See id. at 1184-85, 1194 (“Our decision today follows
directly from our and our sister circuits’ precedents demanding
satisfaction of the highest standard of proof to remove a juror
from deliberations.”).
The en banc Court explained that the improperly dismissed
juror’s statements “were nothing like those made by jurors in
other cases where religious beliefs have disqualified jurors.” Id. at
1189. Specifically, it maintained that “[c]ourts may exclude or
remove jurors who make clear that they may not sit in judgment
of others based on their religious beliefs.” Id. at 1190. Unlike
those types of cases, however, the juror in Brown “expressly
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 22 of 34
22 Opinion of the Court 20-12997
disavowed that any religious or moral beliefs were interfering
with his ability to decide the case on the facts presented and on
the law as instructed.” Id. (cleaned up).
After review of Brown and the record, we conclude that
the district court did not abuse its discretion in striking Juror 13
for cause during the voir dire stage of Lewis’s case. Juror 13
stated that, per her moral beliefs, she was not one to sit in
judgment of someone else and that would be a struggle for her.
Juror 13 never confirmed that she felt capable of following the
law and the court’s instructions. This scenario is entirely
distinguishable from the facts in Brown, where the court
specifically asked the juror if his religious or moral beliefs were
“interfering with [the juror’s] ability to decide the case on the
facts presented and on the law” as instructed, and the juror
answered, “No, sir.” See id. at 1178. Indeed, the dismissal of
Juror 13 is just the type of dismissal that our en banc Court
identified as allowable even though the dismissal was based on
the prospective juror’s religious beliefs. See id. at 1189-90.
Moreover, the heightened standard applicable to the
dismissal of an already empaneled juror during deliberations was
central to our decision in Brown. Id. at 1194. In contrast, “[w]e
have recognized that there are few aspects of a jury trial where
we would be less inclined to disturb a trial judge’s exercise of
discretion than in ruling on challenges for cause in empaneling of
a jury.” United States v. Davis, 854 F.3d 1276, 1296 (11th Cir.
2017) (quotation marks omitted). We are not inclined to do so
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 23 of 34
20-12997 Opinion of the Court 23
here. The district court acted within its wide discretion in striking
Juror 13 for cause.
B. Jurors 11 and 12
Lewis next argues that the district court erred in sustaining
the government’s Batson challenge to his peremptory strike of
Juror 11. 8
The Batson three-step procedure for evaluating an
objection to a peremptory challenge is as follows: (1) the objector
must make a prima facie showing that the peremptory challenge
was exercised on the basis of race; (2) the burden then shifts to the
challenger to articulate a race-neutral explanation for striking the
jurors in question; and (3) the trial court must determine whether
the challenger’s stated reasons were the actual reasons or instead
were a pretext for discrimination. Flowers v. Mississippi, 588 U.S.
__, 139 S. Ct. 2228, 2241 (2019). Disparate questioning of jurors
can be probative of disparate intent. Id. at 2247.
After review, we conclude that the district court’s finding
of discriminatory intent in the peremptory strike of Juror 11 was
not clearly erroneous. We defer to the district court’s evaluation
8 We review de novo jury selection under Batson, but we review the district
court’s underlying factual findings for clear error. United States v. Campa,
529 F.3d 980, 992 (11th Cir. 2008). Because the trial court is in the best
position to evaluate the credibility and demeanor of the attorneys and jurors,
our review of the trial court’s factual determinations in the Batson context is
“highly deferential.” See Snyder v. Louisiana, 552 U.S. 472, 477-79, 128 S. Ct.
1203, 1208-09 (2008).
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 24 of 34
24 Opinion of the Court 20-12997
of the defense attorney’s demeanor in explaining his rationale for
the strike of Juror 11. See Snyder, 552 U.S. at 477-79, 128 S. Ct. at
1208-09. In addition, the attorney’s disparate questioning of
Jurors 11 and 12 about their tendency to believe law enforcement
witnesses was probative of discriminatory intent. See Flowers,
588 U.S. __, 139 S. Ct. at 2241. Thus, the court did not err in
sustaining the government’s Batson challenge and seating Juror
11.
In any event, we apply harmless error review “to any
misapplication of Batson that results in the seating of a juror who
is otherwise qualified for juror service.” United States v.
Williams, 731 F.3d 1222, 1236 (11th Cir. 2013); see Rivera v.
Illinois, 556 U.S. 148, 158, 129 S. Ct. 1446, 1454 (2009).
Even if the district court had erred in its application of
Batson, Lewis’s substantial rights were not affected by the seating
of Juror 11. Lewis does not contend that Juror 11 was not
qualified to sit on the jury. See Williams, 731 F.3d at 1236; Rivera,
556 U.S. at 158, 129 S. Ct. at 1454. In fact, he declined to renew
his for-cause challenge to Juror 11 when given the chance in the
district court. Because Juror 11’s qualifications are not in dispute,
any Batson error was harmless.
PART THREE: TRIAL
We now proceed to the trial itself.
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 25 of 34
20-12997 Opinion of the Court 25
I. Factual Background
A. Government’s motion in limine
Before trial, the government filed a motion in limine
seeking to exclude from trial any reference to Lewis’s state
prosecution as irrelevant and unduly prejudicial under Fed. R.
Evid. 401 and 403.
At a pretrial conference, the district court granted the
government’s motion in part but determined that the jury should
be informed that (1) Lewis was prosecuted in state court and
(2) the state case terminated before trial. The district court ruled
that those facts were relevant to explaining how the cocaine came
to be destroyed prior to the federal trial. The court stated that it
would “give some thought” to “exactly what [it was] going to
allow the jury to know” about the termination of the state case.
Lewis argued that the jury should be presented with “the totality
of what transpired.”
Following the pretrial conference, the government filed a
supplemental memorandum reiterating its argument that any
reference to the state prosecution should be excluded under Rules
401 and 403. In response, Lewis argued that the balancing test in
Rule 403 provided “ample reason to allow the jury to hear the
totality of the case.”
At trial, the district court returned to the issue of “what the
jury is going to be told relative to the state prosecution.” It told
Lewis that he could not ask questions about whether the traffic
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 26 of 34
26 Opinion of the Court 20-12997
stop was consistent with the Fourth Amendment, because that
was already litigated in the federal pretrial proceedings. Next, the
court stated that it would allow “the jury to know that the drugs
no longer exist because the state case was terminated” and that
the drugs accidentally were disposed of.
The district court, however, said it was “not going to go
into why the state case was terminated.” The court reasoned that
“why the case was terminated is not relevant to the issues that the
jury will have to decide in this case.”
After the court ruled, Lewis did not make any further
arguments on the issue.
B. Trial evidence
In its case-in-chief against Lewis, the government called ten
witnesses, including Officer Hannan, Lt. Henry, and Trooper
Ennis. These three witnesses testified about the circumstances of
Lewis’s arrest, as described above. Specifically, Lt. Henry testified
that Lewis claimed the brown bag belonged to him without any
prompting and agreed to make a written statement to that effect.
And Officer Hannan testified that, at the police station,
Lewis (1) admitted to having the cocaine in the car; (2) stated that
he was transporting the cocaine to Albany, Georgia, to be
distributed and had done so before; and (3) provided information
about the methamphetamine-trafficking organization.
The government also called Warren Ferguson, a
cooperating witness, who testified that he sold drugs to Lewis on
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 27 of 34
20-12997 Opinion of the Court 27
two occasions. One transaction occurred on December 14, 2015,
when Ferguson sold Lewis five kilograms of cocaine at the East
Point residence. Ferguson sold the cocaine to Lewis at a
“wholesale price” of $32,000 per kilogram, and it was Ferguson’s
understanding that the drugs would sell for more than that on the
street.
In addition, forensic chemist Karlie McManaman of the
Georgia Bureau of Investigation testified that she tested all five
packages of cocaine found in the brown bag—the first in 2016 at
the state’s request, and the other four in 2018 when the cocaine
was resubmitted to the lab. In total, the packages’ contents
weighed 5,016.35 grams, plus or minus 3.32 grams. Each package
contained cocaine that was between 65 to 85 percent pure.
The government introduced into evidence, among other
documents, Lewis’s written statement claiming responsibility for
the brown bag found in the Suburban and photographs of the five
packages of cocaine after they had been processed at the FCSO.
C. Lewis’s defense
In his cross-examination of Lt. Henry, Lewis questioned
Lt. Henry about two prior inconsistent statements relating to the
traffic stop. The first inconsistent statement had to do with Lt.
Henry’s knowledge of when Trooper Ennis arrived at the scene,
and the second had to do with his awareness of Trooper Ennis’s
dashboard camera. The government did not object to any
questions that Lewis asked based on the court’s earlier exclusion
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 28 of 34
28 Opinion of the Court 20-12997
ruling about the reason why the case was terminated. Notably,
Lewis did not seek the court’s permission to ask further questions
or otherwise indicate that he considered the court’s exclusion
ruling to be preventing him from doing so.
In his closing argument, Lewis stressed the importance of
the jury’s role in determining the credibility of witnesses. He
contended that credibility was particularly significant to the
government’s case because (1) Trooper Ennis’s dashboard video
of the traffic stop did not have any audio that would corroborate
Lt. Henry’s account of what Lewis said on the side of the road;
(2) there was no video or audio of Lewis’s admissions to Officers
Hannan and Dembowski at the jail; and (3) the cocaine was not
placed into evidence due to its destruction. Highlighting the two
prior inconsistent statements from Lt. Henry, Lewis argued to the
jury that Lt. Henry’s testimony was not credible. He asserted that
Lt. Henry was “the central lynchpin of this entire case.”
D. Conviction and Sentence
The jury returned a verdict of guilty on both drug counts.
The district court sentenced Lewis to 360 months’ imprisonment
on each count, to run concurrently. 9
II. Discussion
On appeal, Lewis argues that the district court’s exclusion
of any evidence relating to why the state court proceeding against
9 In this appeal, Lewis does not raise any challenges to his sentences.
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 29 of 34
20-12997 Opinion of the Court 29
him was terminated—including the state court order finding that
Lt. Henry was not credible—was an abuse of discretion under the
Federal Rules of Evidence. According to Lewis, if the jury knew
Lt. Henry was found not credible by the state court, this would
have undermined the entire case because Lt. Henry (1) was the
arresting officer, (2) found the cocaine in the Suburban, and
(3) testified that Lewis admitted the brown bag was his.
For the first time on appeal, Lewis argues that the
exclusion violated his constitutional rights. Specifically, Lewis
contends the exclusion violated his Fifth Amendment right to
present a defense and his Sixth Amendment right to effective
cross-examination. We take these arguments in turn.
A. Lewis’s Evidentiary Challenge
Evidence is relevant if it has any tendency to make a
material fact more or less probable than it would be without the
evidence. Fed. R. Evid. 401. A district court, however, may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of unfair prejudice, confusing of the
issues, or misleading the jury. See Fed. R. Evid. 403. 10
10 This Court reviews a district court’s rulings on the admissibility of
evidence for abuse of discretion. United States v. Barton, 909 F.3d 1323, 1330
(11th Cir. 2018). Under abuse-of-discretion review, “this Court must affirm
unless we find that the district court has made a clear error of judgment, or
has applied the wrong legal standard.” Id. (quotation marks omitted).
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 30 of 34
30 Opinion of the Court 20-12997
Here, the district court did not conduct a balancing test
under Rule 403. Rather, the district court excluded the evidence
as not relevant under Rule 401 in the first place. We thus put
aside whether any of the disputed evidence would have been
excludable under Rule 403—a judgment we decline to make in
the first instance.
The relevance issue under Rule 401 is not an easy one. The
state prosecution was terminated because a state court
determined that Lt. Henry was not credible and had not told the
truth about the speeding or the smelling of marijuana. The state
court based that determination on, among other things,
Lt. Henry’s omitting from his original testimony any mention of
the DEA task force’s involvement. By doing that, Lt. Henry
omitted that the DEA task force had requested that Lt. Henry
follow the Suburban, ascertain a traffic violation, and attempt to
do a traffic stop. This was not some random traffic stop where
Lt. Henry had happened upon a speeding vehicle, but one where
Lt. Henry was directed by the DEA to follow a specific vehicle
and attempt to find a traffic violation. Lewis asserts that this DEA
background, or some portion of it, was arguably relevant to the
issue of Lt. Henry’s credibility about what had happened that day.
In turn, Lt. Henry’s credibility was itself an issue for the jury and
bore on other jury issues too.
Ultimately, we need not decide the relevance issue because
any error in excluding this evidence by the district court was
harmless. Evidentiary errors are not grounds for reversal “unless
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 31 of 34
20-12997 Opinion of the Court 31
there is a reasonable likelihood that they affected the defendant’s
substantial rights.” United States v. Rutgerson, 822 F.3d 1223,
1239 (11th Cir. 2016) (quotation marks omitted); see Fed. R.
Crim. P. 52(a). “Overwhelming evidence of guilt is one factor
that may be considered in finding harmless error.” United States
v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir. 2010) (quotation
marks omitted).
Even if this evidence would have led the jury to find
Lt. Henry not credible and reject all his testimony, the
government still presented overwhelming evidence of Lewis’s
guilt from other witnesses. The DEA video surveilling the East
Point residence showed Lewis place the brown bag into the
Suburban before getting into the passenger seat. Trooper Ennis
testified that he assisted in the traffic stop of the Suburban and
identified Lewis as one of the occupants of the Suburban. At the
traffic stop, Trooper Ennis saw Lt. Henry remove the brown bag
from the Suburban. Lewis has never challenged the authenticity
of his handwritten statement taking responsibility for the contents
of the brown bag that was in the Suburban.
Warren Ferguson testified that on that day he sold five
kilograms of cocaine to Lewis at a “wholesale price,” and
expected that Lewis would be able to sell the cocaine for more on
the street. The video showed Ferguson at the East Point
residence, too. Officer Hannan testified that Lewis confessed at
the jail that: (1) he had the cocaine in the Suburban, (2) he was
transporting the cocaine to Albany, Georgia, to distribute there,
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 32 of 34
32 Opinion of the Court 20-12997
and (3) he had transported cocaine from Atlanta to Albany
previously. Finally, Chemist McManaman testified that the
packages of cocaine weighed more than five kilograms in total.
Taking all of that together, the jury had more than enough
evidence to convict Lewis for conspiracy to possess with intent to
distribute, and possession with intent to distribute, five kilograms
of cocaine—even if it did not believe Lt. Henry’s testimony about
Lewis volunteering himself as owner of the bag. Accordingly,
even if the district court erred, its error did not affect Lewis’s
substantial rights and is not grounds for reversal.
B. Lewis’s Constitutional Challenges
Ordinarily, we review constitutional claims de novo. See
United States v. Harris, 916 F.3d 948, 954, 959 (11th Cir. 2019)
(reviewing de novo defendant’s claim that he was denied his right
to present a complete defense); United States v. Ignasiak, 667 F.3d
1217, 1227 (11th Cir. 2012) (reviewing de novo a claim of denial of
confrontation right). But, because Lewis did not raise any
constitutional objections below, we review these arguments for
plain error. See United States v. Moriarty, 429 F.3d 1012, 1018
(11th Cir. 2005). To establish plain error, a defendant must show
(1) error; (2) that is plain; (3) that affects his substantial rights; and
(4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 1019.
While a district court has discretionary authority to limit
cross-examination, this discretion is limited by the Confrontation
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 33 of 34
20-12997 Opinion of the Court 33
Clause of the Sixth Amendment, which provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend.
VI; United States v. Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009).
In particular, a presumption favors free cross-examination on
possible bias, motive, ability to perceive and remember, and
general character for truthfulness. Maxwell, 579 F.3d at 1295-96.
“Cross-examination, after all, ‘is the principal means by which the
believability of a witness and the truth of his testimony are
tested.’” United States v. Mastin, 972 F.3d 1230, 1239 (11th Cir.
2020) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105,
1110 (1974)).
However, the district court retains wide latitude to impose
reasonable limits on cross-examination based on, among other
things, confusion of the issues. Id. at 1240. The Confrontation
Clause is violated only if a reasonable jury would have received a
significantly different impression of the witness’s credibility had
counsel pursued the proposed line of cross-examination. Id. at
1239-40.
Similarly, while the Constitution “guarantees criminal
defendants a meaningful opportunity to present a complete
defense,” that right “is not absolute, and is subject to reasonable
restrictions.” United States v. Mitrovic, 890 F.3d 1217, 1221 (11th
Cir. 2018). “[I]f the court permits a defendant to present the
essence of his desired argument to the jury, his right to present a
USCA11 Case: 20-12997 Date Filed: 07/14/2022 Page: 34 of 34
34 Opinion of the Court 20-12997
complete defense has not been prejudiced.” Harris, 916 F.3d at
959.
Here, as explained above, any error in excluding evidence
relating to why the state court prosecution ended did not affect
Lewis’s substantial rights. Accordingly, he cannot establish plain
error as to either of his constitutional challenges, and we need not
discuss them further.
CONCLUSION
For the reasons stated above, we affirm Lewis’s convictions
and sentences.
AFFIRMED.