               Case: 14-15820    Date Filed: 11/05/2015   Page: 1 of 10


                                                             [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 14-15820
                              Non-Argument Calendar
                            ________________________

                    D.C. Docket No. 8:13-cr-00554-VMC-EAJ-1

UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

versus

ANTHONY LEE ERITY,

                                                           Defendant - Appellant.
                            ________________________

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

                                 (November 5, 2015)

Before MARCUS, WILLIAM PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:

         Anthony Lee Erity appeals his conviction for possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) &

924(a)(2).
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      On appeal, Mr. Erity contends that (1) the district court abused its discretion

by admitting testimony about his prior attempted sale of narcotics; (2) the district

court abused its discretion in instructing the jury regarding his attempted flight; (3)

the district court erred in allowing the government to elicit substantially the same

testimony from its lay witness as its expert witness; and (4) the felon-in-possession

statute, 18 U.S.C. § 922(g), is unconstitutional. For the reasons that follow, we

affirm.

                                           I

      We assume the parties are familiar with the case and summarize the

proceedings and facts only insofar as necessary to provide context for our decision.

      Prior to trial, Mr. Erity filed a motion in limine to preclude the government

from eliciting testimonial evidence that a confidential informant had observed Mr.

Erity sell MDMA1 and that Mr. Erity had offered to sell the drug to the CI. Mr.

Erity argued that any drug-related evidence was not intrinsic to the charged

conduct, that the government could not prove the uncharged conduct, and that the

accusation of a CI was not sufficient to allow prejudicial testimony to be

introduced under Rule 404(b). The district court ultimately denied Mr. Erity’s

motion.


1
  MDMA is the more commonly known name for the controlled substance 3, 4-
methylenedixymethamphetamine. See United States v. Hristov, 466 F.3d 949, 951 (11th Cir.
2006).
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        At trial, Special Agent Michael Coad testified that the CI “believed he could

purchase firearms and possibly narcotics from [Mr. Erity].” D.E. 120 at 158. 2 Mr.

Erity now appeals, arguing that the district court erred in permitting the

government to elicit any testimony that he was involved in the sale of narcotics

because it was irrelevant to the charged offense and was prejudicial in providing

the jury an inaccurate account of his prior involvement with both illegal drugs and

firearms.

        We assume, without deciding, that the admission of Special Agent Coad’s

testimony relating to Mr. Erity’s narcotics involvement was not intrinsic to the

charged offense (possessing a firearm as a felon). An error, however, is harmless

unless it has a substantial influence on the case’s outcome or leaves a grave doubt

as to whether the error affects the outcome. See United States v. Henderson, 409

F.3d 1293, 1300 (11th Cir. 2005). The government has the burden of establishing

that the error was harmless, see United States v. Sweat, 555 F.3d 1364, 1367 (11th

Cir. 2009), and here the evidence at trial shows beyond a reasonable doubt that the

admission of this extrinsic evidence was harmless. See Henderson, 409 F.3d at

1300.




2
 The testimony of Special Agent Coad regarding information he learned from the CI appears to
be hearsay, but Mr. Erity did not object on this basis at trial and does not raise a hearsay
challenge on appeal.
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      The government presented direct evidence that Mr. Erity sold a firearm to

the CI, made admissions to law enforcement about knowingly transporting the

firearm, photographed the firearm, possessed the firearm in his vehicle, and had his

fingerprints on the gun manual located in the firearm container.            Given this

evidence, the extrinsic evidence of narcotics involvement did not substantially

affect the outcome.

                                          II

      Mr. Erity also argues that the district court abused its discretion in

instructing the jury regarding flight. He argues that, because flight is an admission

by conduct, the jury should have been instructed on flight no differently than any

other admission or confession. According to Mr. Erity, the district court failed to

inform the jury that they must consider the evidence “with great care,” as it was

required to do for admissions.      The jury instruction regarding flight read as

follows:

             Intentional attempts to flee by a person when a crime has been
      committed is not, of course, sufficient in itself to establish the guilt of
      that person, but intentional attempts to flee under those circumstances
      is a fact which, if proved, may be considered by the jury in light of all
      the other evidence in the case in determining the guilt or innocence of
      that person.

             Whether or not the Defendant’s conduct constituted an attempt
      to flee is exclusively for you, as the jury, to determine. And if you do
      so determine that the attempted flight showed a consciousness of guilt
      on the Defendant’s part, the significance to be attached to that
      evidence is also a matter exclusively for you as a jury to determine.
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              I do remind you that in your consideration of any evidence of
       attempted flight, if you should find that there was attempted flight,
       you should consider that there may be reasons for this which are fully
       consistent with innocence. And, may I suggest to you that a feeling of
       guilt does not necessarily reflect actual guilt of a crime which you
       may be considering.

D.E. 85 at 16. We review the legal correctness of a jury instruction de novo, but

we defer to the district court on questions of phrasing, absent an abuse of

discretion. See United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000).

       Though circumstantial, evidence of flight is generally admissible to establish

a defendant’s guilt. See United States v. Borders, 693 F.2d 1318, 1324-26 (11th

Cir. 1982). Giving a jury instruction on flight is not an abuse of discretion where

the evidence could lead a reasonable jury to conclude that the defendant fled to

avoid apprehension for the charged crime. See United States v. Williams, 541 F.3d

1087, 1089 (11th Cir. 2008). With respect to phrasing, a flight instruction is not

erroneous if it informs jurors that it is up to them to determine whether the

evidence proved flight and properly explains the potential weaknesses in the

relevant chain of inferences. See Borders, 693 F.2d at 1328. 3 Further, we have

upheld flight instructions of varying degrees of specificity. See, e.g., Borders, 693

F.2d at 1327-28; Williams, 541 F.3d at 1089.

3
  The four inferences are “(1) from the defendant’s behavior to flight; (2) from flight to
consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the
crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt
of the crime charged.” United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977).
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      In this case, the evidence permitted the jury to conclude that Mr. Erity’s

flight was motivated by consciousness of guilt. The jury heard evidence that after

he was indicted Mr. Erity told a friend that he planned to move to Canada to avoid

prosecution. Mr. Erity talked of obtaining a fake driver’s license, passport, and

social security card, and wanted to use his friend’s identity to leave the United

States. Further, in an audio-recording Mr. Erity spoke of his plans to obtain false

identification to leave the country after fingerprint evidence had been found against

him with respect to the charged felon-in-possession offense. This evidence may

have permitted the jury to conclude that Mr. Erity was planning on leaving the

country for reasons other than guilt, but “the reason for a defendant’s flight is a

question for the jury.” United States v. Wright, 392 F.3d 1269, 1279 (11th Cir.

2004).

      In short, the district court did not abuse its discretion by giving the flight

instruction. The instruction was extremely similar to the flight instruction upheld

in Borders; Mr. Erity’s contrary argument is not supported by our precedent.

                                         III

      Mr. Erity further asserts that the district court erred in allowing the

government’s lay witness, Robert Saye, to testify about matters falling within the

parameters of Federal Rule of Evidence 702. Because Mr. Saye testified as a lay

witness about “secreter” status and the lack of fingerprint evidence, Mr. Erity


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argues, the testimony did not comply with the standards set out in Rule 702. Mr.

Erity further contends that the testimony was materially indistinguishable from that

of the government’s expert witness, and was offered solely to bolster the expert

testimony.

      The admissibility of lay opinion testimony is reviewed for abuse of

discretion. See United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011).

Improper lay opinion testimony is generally subject to a harmless error analysis.

Henderson, 409 F.3d at 1300. Because Mr. Erity did not object to Mr. Saye’s

testimony at trial, however, and raises these Rule 702 arguments for the first time

on appeal, we review only for plain error. See United States. v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir. 2005).

      Plain error occurs when there is (1) an error; (2) that is plain; (3) that affects

substantial rights; and (4) which seriously affects the fairness of the judicial

proceedings. See United States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir.

2014). “An error is ‘plain’ if controlling precedent from the Supreme Court or the

Eleventh Circuit establishes that an error has occurred.” Id. “A substantial right is

affected if the appealing party can show that there is a reasonable probability that

there would have been a different result had there been no error.” United States v.

Bennett, 472 F.3d 825, 831-32 (11th Cir. 2006).




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      We assume, without deciding, that Mr. Saye’s lay opinion testimony

regarding “secreter” status was improper. When the government asked Mr. Saye

to explain, based on his ten years of crime scene investigative work, how someone

could touch an item and not leave a fingerprint, Mr. Saye responded “[t]hat’s

possible because 80 percent of the human population is a secreter, 20 percent of the

population is not a secreter.       If you’re not a secreter, you’re not leaving

fingerprints.” D.E. 121 at 75 (alterations added). Mr. Saye went on to explain that

“[a] secreter is [when] you release oils from your skin. But if you’re not a secreter,

you’re not releasing those oils. Therefore, you’re not leaving anything behind.”

Id. at 75–76 (alterations added).

      Mr. Erity has not shown that his substantial rights were affected by Mr.

Saye’s testimony or that there were serious effects on the fairness of the judicial

proceedings. An expert for the government also testified, in far greater detail, that

it was possible for someone to touch an item and not leave a fingerprint, and spoke

about factors that might affect whether the fingerprints might be useable for

identification. Because Mr. Saye’s testimony was duplicative of properly admitted

evidence, any negative inferences were harmless and, therefore, Mr. Saye’s

testimony regarding “secreter” status did not rise to the level of plain error. See

Coquina Investments v. TD Bank, N.A., 760 F.3d 1300, 1314 (11th Cir. 2014).

                                         IV


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      The last argument Mr. Erity makes—one that he presents for the first time

on appeal— is that 18 U.S.C. § 922(g) is unconstitutional. Mr. Erity asserts that §

922(g) is unconstitutional because the subsection dealing with possession of a

firearm or ammunition does not limit the use of the statute to “interstate or foreign

commerce,” and does not define what “commerce” means. He further argues that

this subsection of the statute goes beyond Congress’ power under the Commerce

Clause because it fails to require that the possession of a firearm by a felon

substantially affects interstate commerce, in effect regulating mere possession.

According to Mr. Erity, the Supreme Court’s decision in United States v. Lopez,

514 U.S. 549 (1995), requires that the criminalization of possession of a firearm by

a felon have a substantial effect on interstate commerce to fall within Congress’

Commerce Clause powers.

      We review the constitutionality of statutes de novo. See United States v.

Phaknikone, 605 F.3d 1099, 1107 (11th Cir. 2010) (citation omitted). However, an

identical constitutional challenge to 18 U.S.C. § 922(g) has already been rejected

by this Court in United States. v. Wright, 607 F.3d 708, 715–16 (11th Cir. 2010),

and we are bound by prior panel decisions unless or until they are overruled by the

Supreme Court or by this Court sitting en banc. See United States v. Vega-

Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (citation and internal quotation

omitted).


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      We have interpreted § 922(g) to indicate “a Congressional intent to assert its

full Commerce Clause power.” United States v. Nichols, 124 F.3d 1265, 1266

(11th Cir. 1997). As such, § 922(g) is not facially unconstitutional simply because

it uses the word “commerce” rather than “interstate or foreign commerce.” Id.; see

also Wright, 607 F.3d at 715. We have also concluded that § 922(g) prohibits

possession of a firearm that has a minimal nexus to interstate commerce, and that

this minimal nexus test does not violate the Supreme Court’s ruling in Lopez. See

United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996).

      Mr. Erity’s arguments are foreclosed by our precedent. No plain error was

committed.    See Wright, 607 F.3d at 715; Vega-Castillo¸ 540 F.3d at 1236;

Nichols, 124 F.3d at 1266; McAllister, 77 F.3d at 390.

                                         V

      For the forgoing reasons, we affirm Mr. Erity’s conviction.

      AFFIRMED.




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