            Case: 19-12084   Date Filed: 03/27/2020   Page: 1 of 5



                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12084
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:18-cr-80139-WPD-2


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus


JIMY JOSEPH,

                                                         Defendant-Appellant.

                       ________________________

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

                             (March 27, 2020)



Before LUCK, LAGOA and BLACK, Circuit Judges.

PER CURIAM:
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      Jimy Joseph appeals his convictions for conspiring to export firearms to

Haiti without a license, in violation of 18 U.S.C. § 371, and fraudulently and

knowingly attempting to do so, in violation of 18 U.S.C. § 554. He asserts the

district court manifestly abused its discretion by denying his motion to strike the

jury venire after several potential jurors made comments related to school

shootings and stricter gun laws. He also contends the district court abused its

discretion in permitting non-expert testimony about how he “appeared” to

understand a conversation about firearms regulations. After review, we affirm in

part, and vacate and remand for the limited purpose of correcting the judgment.

                                  I. DISCUSSION

A. Jury Panel

      “We review the district court’s determination whether to strike an entire jury

panel for manifest abuse of discretion.” United States v. Trujillo, 146 F.3d 838,

842 (11th Cir. 1998). To demonstrate error in the denial of a motion to strike the

panel, the defendant must overcome the presumption of juror impartiality by a

showing of “actual bias.” United States v. Khoury, 901 F.2d 948, 955 (11th

Cir.1990).

      In Khoury, this Court reviewed the district court’s denial of a motion to

strike a jury panel in a drug-related case, where a potential juror said that her son

had been charged with a crime and murdered in a drug-related incident, and she


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cried before the other jurors. Id. The district court removed the juror but did not

strike the panel. Id. This Court affirmed, holding the defendants had not

demonstrated actual bias—that is, “either an express admission of bias, or proof of

specific facts showing such a close connection to the circumstances of the case that

bias must be presumed”—and noted this was not a case where the juror’s remark

constituted an opinion as to the guilt or innocence of the defendants or related to

their knowledge of the case. Id.

      The district court did not manifestly abuse its discretion by denying Joseph’s

motion to strike the jury venire because he did not show actual bias or the

presumption of bias. As with Khoury, the jurors’ statements did not reflect an

opinion on the guilt or innocence of Joseph or specific knowledge of the case. See

id. Rather, all of the jurors stated they could be impartial, which results in a

presumption of impartiality that Joseph has not overcome. None of the empaneled

jurors made any concerning statements about the Parkland shooting or firearms

that could be construed as expressed admissions of bias. Unlike the juror’s

statement in Khoury about her son’s connection to drugs in a drug-related case, the

jurors’ comments are at best only connected to Joseph’s case through the

involvement of the same firearm, the AR-15—an aspect tangential to Joseph’s

failure to obtain the proper licenses. See id.




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B. Evidentiary ruling

      We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Wenxia Man, 891 F.3d 1253, 1264 (11th Cir. 2018). Lay witness

testimony must be rationally based on the witness’s perception. Fed. R. Evid. 701.

Such testimony must be based on first-hand knowledge or observation. United

States v. Marshall, 173 F.3d 1312, 1315 (11th Cir. 1999). By contrast, under

Federal Rule of Evidence 704(b), expert witnesses are prohibited from stating an

opinion on whether the defendant did or did not have the mental state or condition

that constitutes an element of the crime charged. Fed. R. Evid. 704(b). This Court

has affirmed the district court’s denial of the admission of expert testimony when

the expert testified the defendant “intended to have real sex with a minor” and

“intended to act out a fantasy.” United States v. Stahlman, 934 F.3d 1199, 1220

(11th Cir.), cert. denied, __ S. Ct. __, 2019 WL 6107893 (Nov. 18, 2019).

      The district court did not abuse its discretion in allowing the witness’s

testimony as it was based on her rational perception that Joseph appeared to

understand their conversation about firearms regulations. Because the Government

did not qualify the witness as an expert, her testimony was subject to the

restrictions in Rule 701, not Rule 704, and therefore, Joseph’s comparison to Rule

704 is unfounded. Fed. R. Evid. 701, 704. Further, the witness’s testimony was




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based on her rational perception, as she limited her response to her observation of

Joseph’s appearance and did not stray into his intentions or state of mind.

                                II. CONCLUSION

      The district court did not abuse its discretion by denying Joseph’s motion to

strike the jury panel or in permitting testimony about how Joseph “appeared” to

understand a conversation about firearms regulations. Thus, we affirm Joseph’s

convictions. However, the judgment incorrectly reflects the nature of Joseph’s

offense for Count 4. It incorrectly states that Count 4 was a violation for

smuggling goods into the United States under 18 U.S.C. § 554(a). However,

§ 554(a) only covers the exportation of goods. Accordingly, on this basis alone,

we vacate and remand for the limited purpose of the district court correcting the

judgment.

    AFFIRMED IN PART, VACATED AND LIMITED REMAND IN
PART.




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