                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 03 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10311

              Plaintiff-Appellee,                D.C. No. 2:10-cr-456-LDG-VCF

  v.
                                                 MEMORANDUM*
JASON WILEY,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Lloyd D. George, District Judge, Presiding

                        Submitted September 10, 2013**
                            San Francisco, California

Before: WALLACE, FISHER, and BERZON, Circuit Judges.

       Wiley was convicted of nine counts of interference with commerce by

robbery and one count of conspiracy to interfere with commerce by robbery, in



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of 18 U.S.C. § 1951, and ten counts of use of a firearm during a crime of

violence, in violation of 18 U.S.C. § 924(c). Wiley now appeals his convictions.

We review whether the challenged convictions were based on insufficient evidence

by asking whether, construing the evidence in the light most favorable to the

Government, a rational trier of fact could have found the elements of the crime

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).

We review the exclusion of expert testimony by the district court for abuse of

discretion. United States v. Rincon, 28 F.3d 921, 923 (9th Cir. 1994). We have

jurisdiction under 28 U.S.C. § 1291, and affirm.

      Wiley argues that six of the robberies he conducted did not interfere with

interstate commerce. The vast majority of the alcoholic beverages sold by five of

the businesses Wiley robbed was manufactured outside the state of Nevada. The

other challenged business, a hotel, served out-of-state guests. The depletion of the

resources of such interstate businesses affects interstate commerce. United States

v. Rodriguez, 360 F.3d 949, 955 (9th Cir. 2004). (“Robbery of an interstate

business, on the other hand, typically constitutes sufficient evidence to satisfy the

Hobbs Act’s interstate commerce element.”). There was sufficient evidence for a

rational factfinder to conclude that Wiley’s robberies affected interstate commerce.

      Wiley contends that interstate commerce is only affected if a store closes

early because of a robbery. That is not the law of the Ninth Circuit, which requires
only a de minimis effect on interstate commerce, like the depletion of an interstate

business’ resources. United States v. Phillips, 577 F.2d 495, 501 (9th Cir. 1978).

      Wiley also challenges all of his convictions based on the district court’s

exclusion of expert testimony on the accuracy of eyewitness identification. The

sole eyewitness who testified was present at only one of the robberies and had seen

Wiley several times before. Wiley’s attorney cross-examined her, and the district

court gave comprehensive jury instructions on eyewitness testimony. Moreover,

Wiley’s co-conspirator, who testified against Wiley, identified him in surveillance

footage of the same robbery as to which the eyewitness testified. We therefore

hold that the district court did not abuse its discretion by excluding the expert

testimony. Rincon, 28 F.3d at 925-26 & n.6. Even if the district court had abused

its discretion, Wiley suffered no prejudice from that exclusion. Howard v. Clark,

608 F.3d 563, 575 (9th Cir. 2010) (noting that federal defendants are not

necessarily prejudiced by the exclusion of testimony from

eyewitness-identification experts).

      AFFIRMED.
                                                                              FILED
                                                                              OCT 03 2013
United States v. Wiley, No. 12-10311                                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS




BERZON, Circuit Judge, concurring:



      I agree with the memorandum disposition, except that I would not hold that

the district court did not abuse its discretion in excluding the expert testimony

concerning eyewitness identification. Instead, I would simply hold that Wiley

suffered no prejudice from that exclusion, for the reasons stated in the

memorandum disposition.
