                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 06-14651
                                                                November 9, 2007
                            Non-Argument Calendar             THOMAS K. KAHN
                          ________________________                CLERK

                   D. C. Docket No. 05-00527-CR-T-23-MAP

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

JAMAIL JAMES HOGAN,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                              (November 9, 2007)

Before ANDERSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Jamail Hogan appeals his convictions for carjacking with serious bodily

injury, a violation of 18 U.S.C. §§ 2119, 2119(2) and 2; conspiracy to obstruct

commerce by robbery, a violation of 18 U.S.C. § 1951; obstruction and attempted
obstruction of commerce by robbery, a violation of 18 U.S.C. §§ 1951, 2; carrying,

brandishing, and discharging a firearm in relation to a crime of violence, a violation

of 18 U.S.C. §§ 924(c)(1)(A) and 2; and possession of a firearm by a convicted

felon, a violation of 18 U.S.C. § 922(g)(1). On appeal, Hogan asserts the following

claims: (1) that the district court deprived him of an impartial jury when it refused

to propound to the venire proposed questions relating to his status as a convicted

felon and his race; and (2) that the district court erred by permitting victims to

testify, as lay witnesses, to the similarity between the criminal perpetrators’ clothing

and clothing which was seized from him and introduced into evidence as part of the

government’s case.1 After careful review, we affirm.

      We review for abuse of discretion a district court’s refusal to ask proposed

voir dire questions. See United States v. Chastain, 198 F.3d 1338, 1347-48 (11th

Cir. 1999). We review a district court’s evidentiary rulings for a clear abuse of




       1
            We reject Hogan’s additional argument, that the prosecutor engaged in improper argu-
ment during closing arguments. The district court offered to provide a curative instruction to the
jury, a curative instruction that would have insured the jury was not left to speculate on the issue of
whether Hogan’s co-defendant, who was tried separately, had confessed to his own involvement in
the charged crimes. Hogan refused the district court’s offer, thereby effectively inviting any alleged
error relating to the motion for mistrial, of which he now complains. Cf. United States v. Harris,
443 F.3d 822, 823-24 (11th Cir. 2006) (if a defendant induces or invites the district court into
making an error, we will not review the error on appeal). In any event, even if we were to address
the claim, Hogan has not shown prejudice to his substantial rights, as we would require him to do
if he had preserved, and not improperly invited, this claim. See. United States v. Wilson, 149 F.3d
1298, 1301 (11th Cir. 1998) (discussing requirements of a claim for prosecutorial misconduct).

                                                  2
discretion, and will reverse only if the resulting error affects substantial rights. See

United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir. 2002).

      The facts relevant to our analysis of Hogan’s claims are these. On February

22, 2006, in a superseding indictment, Hogan and Bryan Smith, who is Hogan’s

half-brother, were charged with: (1) conspiring to obstruct commerce by robbery, in

violation of 18 U.S.C. §§ 1951 and 2 (Count One); (2) carjacking with serious

bodily injury, in violation of 18 U.S.C. §§ 2119, 2119(2) and 2 (Count Two); (3)

three counts of carrying and brandishing a firearm during and in relation to a crime

of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(A)(ii), and 2

(Counts Three, Eight, and Ten); (4) three counts of obstructing commerce by

robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Counts Four, Six, and Nine); (5)

three counts of carrying and discharging a firearm during and in relation to a crime

of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(A)(iii), and 2

(Counts Five, Seven, and Twelve); and (6) attempting to obstruct commerce by

robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Count Eleven). Hogan pled not

guilty to all charges and proceeded to a jury trial, after which he was sentenced to a

242-year term of imprisonment.2



       2
        After the district court granted the co-defendants’ motion to sever trial, Smith also pro-
ceeded to a separate jury trial, after which he was sentenced to a total 140-year term of
imprisonment.

                                               3
      Prior to the trial, Hogan filed proposed voir dire questions, pursuant to Rule

24(a)(2) of the Federal Rules of Criminal Procedure.        The proposed questions

included these:

       17. You will hear . . . Hogan has previously been convicted of an
       offense that is punishable by a year or more in prison, in other words a
       felony offense. . . .

       19. Does anyone here feel that a person who has been convicted of
       a felony in the past should not be trusted or believed? . . .

       24. Is there anyone who feels that because Mr. Hogan has been
       convicted of a felony in the past, it would be more difficult for them
       to decide this case only on the evidence or lack of evidence presented
       at trial? . . . .

       33. Does anyone feel that African Americans are more likely to
       commit violent crimes?

       34. Does anyone feel that the defendant’s race makes it more likely
       that he is guilty?

      During jury selection, the court read the indictment to the venire panel,

including Count 13 which charged Hogan as a felon in possession of a firearm.

Also, the court elicited the jurors’ personal experiences with crime. Moreover, the

court instructed and inquired:

       It is the duty of a juror . . . not to be influenced or swayed, or
       governed by any prejudice, any undue sympathy, or any other undue
       sentiment that does not respond fairly to the evidence and the law. . . .
       to be impartial, to be fair minded, to treat persons on an equal footing
       and as equals before the law. . . . [I]t is the duty of a juror to at all



                                          4
       times be unbiased and unprejudiced, and impartial, and dispassionate
       in his or her decision in the case.

       Given that, . . . are there any of you who have any reason to doubt
       your ability to serve as jurors and render a fair and impartial decision
       in this particular case? Anyone to my left believe that they–whether
       for reason of conscience, or scruples or otherwise cannot serve as
       juror under the circumstances that I suggested? Anyone to my left?
       Anyone over here to my right?

No one responded affirmatively.

      After asking its own questions, the district court requested additional voir

dire questions from the parties. Hogan requested his proposed questions numbered

17, 19, and 24, all of which related to his felon status. The government responded

that the district court need only determine whether a potential juror could follow

instructions because the instructions would explain how to view the felony

conviction. The district court denied Hogan’s request.

      Hogan also requested his proposed questions 33 and 34, both of which

related to race. The district court denied the request, and Hogan responded that he

wanted to court to frame “the question any way that the court is comfortable to

attempt to ferret out racial prejudice.” The district court responded:

       The question really goes, the way it is framed, to the -- it incorporates
       the concept of likelihood and I think that is ambiguous and I don’t
       know whether it means frequency or proclivity, or some sort of
       discounted percentage of the population as a whole. It sounds to me
       like something that doesn’t have to do with the integrity of the juror in
       considering a defendant on his or her own merits.

                                           5
Hogan suggested that the court personalize the inquiry, but the court stated:

       I just don’t see this as a productive inquiry. To go back and inquire of
       a juror whether she was assaulted by a -- to identify the ethnicity of
       racial attributes of the assailant seems to me to be unnecessarily
       provocative and suggestive, and to a certain extent almost accusatory,
       particularly when it comes from me.

Hogan offered no other suggestions.

      The government’s case detailed five violent, armed robberies, which took

place in five different locations in or around Winter Haven, Florida over the course

of six days in November and December of 2005, and one of which resulted in the

death of a clerk who was shot during the robbery of his convenience store. The

government presented testimony from law enforcement officers and private citizens,

along with forensic evidence and exhibits, which implicated Hogan in the series of

robberies.

      Specifically, Deputy John Burcham testified that he stopped a white,

four-door, Chevy Cavalier, driven by Hogan, for speeding on December 2, 2005 at

11:00 p.m. At the scene, Deputies Steven Mills and Thomas Tompkins testified

that they found rounds of .380 caliber ammunition in Hogan’s lap and another

round in his pocket. Paula Maney, a crime scene technician, collected the clothes

Hogan was wearing at his arrest, including a “Dirty South” sweatshirt jacket and

black sneakers. Detective Ken Raczynski testified that a search of the Cavalier



                                          6
revealed two .380 caliber ammunition rounds, a side-handled baton, a red

sweatshirt, a .380 caliber firearm, a Mechanix glove, a camouflage glove, a ski

mask, a black and white bandana, a “do rag,” jean shorts, and a backpack.

Detective Travis Avery testified that a search of Hogan’s residence revealed a

camouflage glove, hooded jacket, red sneakers, a white baseball cap, .380 caliber

ammunition, a blue latex glove, a red bandana, white tennis shoes, a white ski cap, a

cream ski cap, and a white nylon stocking cap or do rag. All of the foregoing seized

items were admitted into evidence during the detectives’ testimony.

      Suvi Cyriac, a store clerk for Speedy Food Market, testified that on

November 26, 2005, two men entered the Market and one of them put a gun to his

head, ultimately fracturing his jaw. One of the robbers also fired shots at him as

they robbed the store. The government asked Cyriac if the red sneakers worn by

one of the robbers were similar to the ones found in Hogan’s residence and

admitted into evidence during Detective Avery’s testimony. Hogan objected to this

line of questioning, arguing that the government had not established if Cyriac was

testifying from memory. Cyriac then said that he did not recall the red sneakers

from his memory, but that the surveillance images refreshed his recollection. The

government again asked Cyriac to compare the red sneakers, thereby lodging

another objection from Hogan, who asserted that the question called for improper



                                         7
lay opinion testimony in violation of Rule 701 of the Federal Rules of Evidence.

The district court overruled the objection, and Cyriac testified that the shoes

admitted into evidence were similar to the ones worn by one of the robbers.

       Next the government asked Cyriac if the men had anything on their hands.

Hogan objected to the line of questioning under Rule 701, stating:

       . . . the 701 violation is the witness is being asked to offer a lay
       opinion essentially identifying evidence that was recovered from my
       client's house as being the same or similar to what was not in his
       memory about the events that occurred but rather what is being seen
       in a video or in a photograph.

Hogan continued, “[it] violates 701 because it is not helpful to the jury. The jury is

as capable as this witness at making that comparison when [the government] directs

their attention to that at whatever point.” The government countered that Hogan’s

cross-examination could highlight any weakness in the testimony, leaving its weight

and credibility to be determined by the jury. Hogan responded that the objection

stemmed from the witness having no independent recollection of a particular piece

of evidence, but the government nonetheless led the witness to conclude that the

evidence was the item depicted in the image.        The district court overruled the

objection, finding that the witness had already testified that he had a vivid

recollection of the events and that the witness was qualified to testify, under Rule

701.



                                          8
      The government repeated its question, and Cyriac responded that he had seen

a glove during the robbery. Then, the government asked if the glove was the glove

admitted into evidence. Hogan again objected based on Rule 701 and insufficient

foundation and knowledge.      The court overruled the Rule 701 objection, but

required further foundation. Cyriac then testified that he saw a “really dark color”

glove. The government asked how he would describe the glove in evidence; Hogan

objected again. The court sustained the objection, and Cyriac never answered the

question.

      Alice Bodley, a store clerk at Island Foods, and Della Ehrhart, a store clerk at

the Circle K, also testified for the government. They stated that, on November 27,

2005 (the night after the Speedy Food Market robbery), two men with a gun robbed

their respective stores. Bodley and Ehrhart both testified, without objection from

Hogan, that the perpetrators wore clothing similar to that which had been submitted

into evidence.

      The government also called Raj Bhaskran, a store clerk at Bill’s Market,

which was robbed on December 2, 2005. Bhaskran testified that two men robbed

the store and shot his co-worker, Remesh Desai, who ultimately died from the

gunshot.    Without objection, Bhaskran stated the perpetrators wore clothes and

carried items that were the same as those admitted into evidence. He testified that,



                                          9
although the faces were covered, he recognized Hogan because Hogan frequented

the store for lunch as an employee of a nearby company, Homes of Merit.

        The government also called Lynn Ernst, a senior crime laboratory analyst for

the Florida Department of Law Enforcement (“FDLE”), who testified that shoe

prints recovered from the crime scenes could have been made by the shoes

recovered from Hogan when he was arrested. John Romeo, another crime analyst

for FDLE, testified that some of the casings found at the crime scenes came from

the firearm recovered from the Chevy Cavalier Hogan was driving when he was

arrested.

        At the conclusion of the government’s case-in-chief, Hogan moved for a

judgment of acquittal as to Counts Two and Three which was denied. The district

court read to the jury the following stipulation:

        [T]he parties have stipulated . . . that . . . Hogan was previously
        convicted of a crime punishable by imprisonment for a term
        exceeding one year. You may accept that stipulation as a proven fact .
        . . This prior conviction is to be considered by you only with respect
        to Count 13. Specifically, you may not consider the prior conviction
        in deciding whether the United States has proved beyond a reasonable
        doubt that . . . Hogan committed the crimes . . . in Counts 1 through 7
        and 9 through 12.

        Moreover, at the conclusion of the evidence, the district court instructed the

jury:




                                           10
       A separate crime or offense is charged in each count of the indictment.
       Each charge and the evidence pertaining to it should be considered by
       you separately. The fact that you may find the defendant guilty or not
       guilty as to one of the offenses charged should not [a]ffect your
       verdict as to any other offense charged. I caution you, members of the
       jury, that you are here to determine from the evidence in this case
       whether the defendant is guilty or not guilty. The defendant is on trial
       only for the specific offenses alleged in the indictment.

      The jury found Hogan guilty on Counts One through Seven and Nine through

Thirteen. At his sentencing hearing, Hogan faced a 7-year mandatory minimum

term on Count      Three and 25-year mandatory minimum terms on Counts Five,

Seven, Ten, and Twelve, and, based on an offense level of 43 and a criminal history

category III, an advisory Guidelines range of 242 years’ imprisonment. The district

court sentenced Hogan to a 242-year term of imprisonment, which consisted of the

following consecutive terms: 240 months each for Counts One, Four, Six, Nine and

Eleven; 300 months for Count Two; 120 months for Count Thirteen; 84 months for

Count Three; and 300 months each for Counts Five, Seven, Ten, and Twelve. This

appeal followed.

      First, Hogan challenges the district court’s refusal to ask the jury the voir dire

questions he proffered concerning potential bias against convicted felons and

African Americans.     Hogan says that the failure to ask his requested questions

deprived him of a fair and impartial jury, in violation of his due process rights. We

are not persuaded.

                                          11
      “The constitutional standard of fairness requires that the criminally accused

have a panel of impartial, indifferent jurors.” Murphy v. Florida, 421 U.S. 794, 799

(1975).       The Supreme Court has held that due process required examination of

potential jurors on the issue of racial bias when requested at the criminal trial of an

African American activist.       Ham v. South Carolina, 409 U.S. 524, 526 (1973).

Subsequently, the Court indicated a preference that racial prejudice be inquired into

if requested, but has suggested that the inquiry is constitutionally mandated only if

“special circumstances” exist where there are “substantial indications of the

likelihood of racial . . . prejudice affecting the jurors,” such as when racial issues

are “inextricably bound up with the conduct of the trial.” Rosales-Lopez v. United

States, 451 U.S. 182, 189-91 (1981) (affirming federal conviction where general

impartiality questions were propounded). Likewise, we have recognized that Ham

presented special circumstances -- the defendant was an African American activist -

- where racial issues were inextricable; therefore, specific voir dire related to racial

bias was required. See Featherston v. United States, 491 F.2d 96 (5th Cir. 1974)

(affirming dismissal of habeas motion which alleged that the district court

improperly refused voir dire regarding racial prejudice where general impartiality

questions, which included reference to color of skin, were propounded).3


          3
           In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

                                              12
      As for requests for questions concerning bias against felons, we have noted

the importance of discovering such bias against felons during voir dire. United

States v. Corey, 625 F.2d 704, 706-08 (5th Cir. 1980). However, we also have

concluded that a district court is not required to ask a defendant’s proposed

questions related to this issue and may adequately cover the issue through general

questions. Id.

      In the instant case, the court advised the venire that Hogan was a felon,

instructed them that he must be treated equally before the law and to consider the

conviction only in relation to Count Thirteen.      The district court then received

assurances that the jurors could still impartially decide the case. Cf. United States

v. Bennett, 368 F.3d 1343, 1351-52 (11th Cir. 2004) (rejecting challenge to district

court’s refusal to ask specific voir dire question about bias against felons, where the

district court had advised the venire that the defendant was charged with being a

felon in possession of a firearm and generally inquired about the jury’s

impartiality). Moreover, the court elicited the venire members’ past experiences

with crime, a question which provided a basis for Hogan to request specific

individual inquiry into bias against felons if he felt it was appropriate, but he did




close of business on September 30, 1981.


                                           13
not. On this record, we are satisfied the district court did not abuse its discretion in

refusing to ask Hogan’s questions about bias against convicted felons.

      We also discern no abuse of discretion in the district court’s refusal to ask

Hogan’s proffered questions about race.         The district court characterized the

questions as addressing general likelihood to commit crime and not racial prejudice,

and the court found the questions to be “provocative and suggestive, and to a certain

extent almost accusatory, particularly when it comes from me.” At no point during

the proceedings did Hogan argue that special racial circumstances existed which

required specific inquiry into racial bias, nor did the government or Hogan allude to

any special circumstances, motivations, or tension which would be remotely

attributable to the race of the victims or Hogan. Cf. Rosales-Lopez, 451 U.S. at 189-

91.   Although the court did not mention race during its voir dire, the court

instructed the venire members that they must consider Hogan on “equal footing”

and “equal before the law” and must “at all times be unbiased and unprejudiced,

and impartial.”   Immediately following these instructions, the court specifically

inquired and received assurances that all jurors could follow these instructions. In

short, the record does not demonstrate circumstances which demand inquiry beyond

the general questions posed and the assurances of impartiality. Accordingly, the




                                          14
court’s instructions, when coupled with its questions, reasonably insured that felon

or racial prejudices would be revealed.

      We are not persuaded by Hogan’s second argument either. Under Rule 701,

a lay witness may testify to opinions or inferences “(a) rationally based on the

perception of the witness, (b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue, and (c) not based on scientific,

technical, or other specialized knowledge within the scope of Rule 702.” Fed. R.

Evid. 701. In 2000, subsection (c) was added to eliminate the risk that Rule 701

would be used to avoid the reliability requirements of Rule 702. See Fed. R. Evid.

701, Advisory Committee Notes (2002).          Notably, the Notes state that the

amendment was not intended to affect the type of evidence contemplated by

adoption of Rule 701 relating to “the appearance of persons or things,” and other

similar points. Id.

      Rule 403 excludes relevant evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Fed. R. Evid. 403. We have noted that Rule

403 should be used “sparingly.” Tinoco, 304 F.3d at 1120. Thus, when analyzing




                                          15
Rule 403 issues, we view “the evidence in a light most favorable to its admission,

maximizing its probative value and minimizing its undue prejudicial impact.” Id.

       Having reviewed the record and the briefs of the parties, we discern no abuse

of discretion in the district court’s evidentiary rulings under Rule 701, which

plainly contemplates lay witnesses offering testimony to the similarity of clothing

based on their firsthand perceptions, nor do we find that Hogan has shown any

unfairly prejudicial impact from the testimony requiring its exclusion under Rule

403.

       AFFIRMED.




                                         16
