United States v. Francisco Louis
U.S. Court of Appeals for the Eleventh Circuit
United States v. Francisco Louis
Opinion
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10643
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JUNIOR LOUIS,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20252-KMW-1
____________________
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2 Opinion of the Court 23-10643
Before WILLIAM PRYOR, Chief Judge, and GRANT and LUCK, Circuit
Judges.
GRANT, Circuit Judge:
For a ten-day period in April 2020, MetroPCS stores around
Miami were targeted in a string of armed robberies. Francisco
Louis was arrested for those crimes, but the wheels of justice
turned slowly after that—largely because of the Covid-19
pandemic. Whether for excusable reasons or not, the government
missed Speedy Trial Act deadlines for both Louis’s indictment and
his trial. But once the trial moved forward—after a pandemic-
induced delay followed by a few continuances requested by Louis
himself—he was convicted of six counts of Hobbs Act robbery and
sentenced to 218 months’ imprisonment.
On appeal, Louis argues that his indictment and trial
violated both statutory and constitutional guarantees of a speedy
trial. We need not consider the particularities of Louis’s statutory
arguments; he waived Speedy Trial Act protections by not moving
to dismiss on that basis. As for the Sixth Amendment’s speedy trial
guarantee, Louis has not carried his burden because he cannot
show that he was prejudiced by the delays. He also raises several
other challenges, including to the sufficiency of the evidence, the
jury instruction on flight, the allowance of certain testimony, and
the court’s refusal to let him try on shoes in court—“if the shoes do
not fit, the jury must acquit.” These challenges also fail, and we
affirm.
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I.
On April 16, 2020, a masked intruder—later revealed to be
Francisco Louis—arrived at a MetroPCS store in Miami. 1 He was
a thin black man, wearing basketball shorts, a black t-shirt, black
sneakers, black gloves, and a black beanie. After revealing a gun
tucked into his waistband, Louis ordered the store’s clerk to hand
over both his phone and all the cash in the register. He then
followed the clerk to the back of the store, where he took several
iPhones, a tablet, and other assorted merchandise. His haul
complete, Louis drove away in a black Mercedes sedan with a dent
on the rear passenger door.
A few hours later, the same man in the same outfit arrived
at a nearby Metro PCS store. He again displayed the gun in his
waistband and took the money from the register. This time he did
not take additional items, but he set out in the Mercedes for
another MetroPCS. But his plans were foiled, at least
temporarily—the manager at the third store had heard about the
first two robberies and locked the door when he saw Louis peering
through the window. Apparently done for the day, Louis got back
in his Mercedes and headed to Bee Pawn, a nearby pawn shop.
After a two-day hiatus, Louis resurfaced wearing the same
outfit at yet another Miami MetroPCS. He was more aggressive
with the gun this time—pointing it at the clerks and demanding
1 Because Louis challenges the sufficiency of the evidence, we recite the facts
in the light most favorable to the government. See United States v. Doak, 47
F.4th 1340, 1354 (11th Cir. 2022).
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money from the register. He got about $700 and made his escape.
Four days later, Louis held up a Fort Lauderdale MetroPCS store,
his fourth robbery in the spree. He wore a mask, shorts, t-shirt,
sneakers, gloves, and beanie, just like before. But this time he
added a cross-body satchel. With a young child watching from the
back of the store, he drew his gun from the satchel, pointed it at
the clerk, and took the money from the register.
Two days later, Louis hit yet another MetroPCS store. Once
inside, he pulled a gun from his satchel and took cash from both of
the store’s registers before ordering the clerks to the ground and
seizing their phones. The clerks, self-described “sneaker-head[s],”
recognized his shoes as Air Jordans. That same day came the sixth
and final episode of the MetroPCS spree. At one last store, Louis
took money from the register and ordered the clerks to the ground.
He wore the same outfit and brandished the same gun.
Less than two weeks later, Miami-Dade police officers found
the black, dented Mercedes parked at a nearby apartment complex.
Officers watched as Louis got in the car and drove away. He was
wearing a cross-body satchel, a Jordan-branded t-shirt, Jordan
shorts, and Jordan slides. They followed Louis, who led them on a
high-speed chase. He eventually crashed the Mercedes and fled on
foot, discarding evidence as he ran.
Despite his best efforts—which included jumping over
fences and cutting through residential yards—officers soon caught
and arrested the now-shoeless Louis. They recovered his Jordan
slides (youth size 7) and a black beanie he left along the way. And
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they later found the satchel he had carried “hidden in some shrubs”
near a house along his escape route. The satchel held even more
evidence, including a black 9mm handgun, an extended magazine,
cash, and Louis’s debit card. Inside the Mercedes, the police found
multiple phones, a black t-shirt, and black gloves.
Searches of Louis’s bedroom and phone unearthed still
more evidence: a receipt for a Glock semi-automatic 9mm gun
from Bee Pawn, black Jordan sneakers (youth size 6.5), and an
outgoing April 18 text message reading, “I got a iPhone 8 brand
new in box, never opened.” And in one recorded jail call, Louis
directed a friend to tell his mother to throw away all his basketball
shorts. In another, he asked a friend to tell his mother that he had
“been trying to make money, that’s why, sorry.”
Louis was charged with Hobbs Act robbery in May 2020.
After spending several months in state custody on related state
charges, he was transferred to federal prison for his initial
appearance on January 7, 2021. His arraignment was initially
scheduled for two weeks later. But because the government had
moved for, and the district court had granted, four continuances,
he was not arraigned until May 18. Louis did not oppose any of the
government’s motions, each of which was sought because of
“limitations imposed by the COVID-19 pandemic.” The district
court granted the first three continuances in their entirety and the
fourth in large part, again citing the pandemic. For that last filing,
the court explicitly relied on the latest court-wide administrative
order, in which the chief judge stated that it was “generally
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unreasonable to expect the return and filing of an indictment
within the period set forth in 18 U.S.C. § 3161(b).” See Admin. Ord.
2021-33, S.D. Fla. (Apr. 6, 2021) at 4.
A grand jury indicted Louis on April 29, 2021, and he was
arraigned on May 18. By this point, the court-wide administrative
orders had continued all jury trials until July 6, 2021. See id. at 2.
The district court scheduled Louis’s trial to begin on August 2,
2021, citing the “coronavirus pandemic, the present incapacity to
convene a jury or summon witnesses and the parties’ inability to
meaningfully consult with clients and prepare for trial.”
The trial did not begin on that date. But this time, it was
Louis requesting the delays. He filed three consecutive motions to
continue the trial, all of which the court granted, and the trial began
on March 1, 2022—ten months after he was indicted and fourteen
months after he was transferred to federal custody. Louis was
convicted of six counts of Hobbs Act robbery and sentenced to 218
months’ imprisonment. This is his appeal.
II.
We review Speedy Trial Act claims de novo. United States v.
Mathurin, 690 F.3d 1236, 1239 (11th Cir. 2012). Same goes for a
sufficiency-of-the-evidence claim. United States v. Capers, 708 F.3d
1286, 1296–97 (11th Cir. 2013). For a Sixth Amendment speedy trial
claim, we review the district court’s legal conclusions de novo and
its factual findings for clear error. United States v. Ingram, 446 F.3d
1332, 1336 (11th Cir. 2006). And we review a district court’s jury
instructions and evidentiary rulings for abuse of discretion. United
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States v. Williams, 541 F.3d 1087, 1089 (11th Cir. 2008); United States
v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). But when a
defendant fails “to preserve his challenge to an evidentiary ruling
by contemporaneously objecting, our review is for plain error.”
United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007).
III.
Louis raises several issues on appeal. The first two—in
which he claims statutory and constitutional speedy trial
violations—concern the delays between his transfer to federal
custody, his indictment, and his trial. The next two address the
sufficiency of the evidence and the district court’s flight instruction.
And the last two ask whether the district court erred when it
allowed lay identification testimony and denied his proposed
sneaker demonstration. We find none of his arguments persuasive.
A.
The Speedy Trial Act establishes statutory time limits for a
defendant’s criminal case. An indictment must be filed against a
defendant within thirty days of his arrest, and the trial must follow
within seventy days from the indictment. 18 U.S.C. § 3161(b),
(c)(1). But the Act does exclude several “periods of delay” when
computing its time limits. Id. § 3161(h). One of these is a
continuance granted when the court finds that “the ends of justice”
served by the delay outweigh the interests of both “the public and
the defendant in a speedy trial.” Id. § 3161(h)(7)(A). But the court
needs to put its reasoning on the record. Zedner v. United States, 547
U.S. 489, 506–07 (2006).
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Here, both parties agree that the thirty-day time limit for
indictment began on January 7, 2021, when Louis was transferred
from state to federal custody for his initial appearance. He was
indicted 112 days later, on April 29, 2021, and his trial started on
March 1, 2022, 306 days after his indictment. Louis argues that
these delays violated the Speedy Trial Act, and that the district
court failed to put the necessary findings on the record to justify
the delays when it granted the government’s continuances. The
government concedes that the court “did not make explicit
interests-of-justice findings” but says “the record is clear that each
of the four continuances was granted based on limitations in grand
jury time during the Covid-19 pandemic.”
We need not address that claim for a more basic reason:
Louis waived it. A defendant waives his right to dismissal under
the Speedy Trial Act if he fails to “move for dismissal prior to trial.”
18 U.S.C. § 3162(a)(2); see United States v. Ogiekpolor,122 F.4th 1296
,
1311 (11th Cir. 2024). It is true that Louis himself moved to dismiss
under the Act on May 4, 2021, well before trial, but the problem is
that his filing was made pro se rather than by his counsel. And that
means it was invalid under the local rules of the Southern District
of Florida: “Whenever a party has appeared by attorney, the party
cannot thereafter appear or act on the party’s own behalf in the
action or proceeding, or take any step therein, unless an order of
substitution shall first have been made by the Court, after notice to
the attorney of such party, and to the opposite party.” S.D. Fla.
Local R. 11.1(d)(4). Simply put, Louis could not act pro se while he
was represented by counsel.
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To be sure, about a week before Louis filed the invalid pro
se motion, he asked the court to terminate his public defender
because of an irreconcilable conflict—disagreement over the
speedy trial issue. But the district court did not discharge the public
defender from the case and appoint private counsel until nine days
after Louis filed the invalid pro se motion. And Louis’s new counsel
never filed a motion to dismiss for a Speedy Trial violation. In fact,
he sought several continuances to prepare for trial.
The facts here well illustrate the function of the Speedy Trial
Act’s waiver provision. Louis’s primary contention on appeal is
that the district court failed to make explicit findings on the record
in support of its orders continuing his arraignment. But we will
not hold the court responsible for failing to meet the requirements
of a statutory provision that was never invoked. If counsel had
moved to dismiss, the district court may well have put its findings
on the record and explained why it was necessary to continue
Louis’s arraignment. See United States v. Dunn, 83 F.4th 1305, 1318
(11th Cir. 2023). Because Louis never filed a valid Speedy Trial
motion, he waived his right to dismissal under the Act.
B.
The right to a speedy trial is protected not only by statute,
but by the Constitution too. The Sixth Amendment provides that
in “all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial.” U.S. Const. amend. VI. And, unlike in the
statutory context, “a defendant who fails to demand a speedy trial”
does not “forever waive[]” that constitutional right. Barker v.
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Wingo, 407 U.S. 514, 528 (1972). So even having forgone the
Speedy Trial Act’s protections, Louis could still get relief as a
constitutional matter if his trial was “unreasonably delayed.”
Ogiekpolor, 122 F.4th at 1305.
Whether that is true depends on four factors: “(1) length of
[the] delay; (2) the reason for the delay; (3) the defendant’s
assertion of his right, and (4) prejudice to the defendant.” United
States v. Vargas, 97 F.4th 1277, 1286 (11th Cir. 2024) (citing Barker,
407 U.S. at 530). And unless the first three factors weigh heavily
against the government, the defendant is generally required to
show actual prejudice to receive relief. United States v. Davenport,
935 F.2d 1223, 1239 (11th Cir. 1991).
The first factor, the length of the delay, is a “triggering
mechanism”—unless “there is some delay which is presumptively
prejudicial,” the next factors should not even be considered.
Barker, 407 U.S. at 530; see Ogiekpolor, 122 F.4th at 1305. “A delay
exceeding one year is presumptively prejudicial.” Ogiekpolor, 122
F.4th at 1305 (quotation omitted). The delay is calculated from
“the time of arrest or indictment, whichever comes first.” 2 United
2 We recognize that this Court has not been entirely consistent on this point.
In United States v. Dunn, for example, we calculated the delay from the time of
the indictment, even though the arrest preceded it by more than seven
months. 345 F.3d 1285, 1286–87, 1296 (11th Cir. 2003). But that was the
opposite of our approach in several earlier cases where we calculated the delay
from the time of the earlier arrest, not the later indictment. See, e.g., United
States v. Walters, 591 F.2d 1195, 1200–01 (5th Cir. 1979); United States v.
Edwards, 577 F.2d 883, 887–88 (5th Cir. 1978). Under our prior-panel-
precedent rule, those earlier cases control. See Arias v. Cameron, 776 F.3d 1262,
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States v. Knight, 562 F.3d 1314, 1323 (11th Cir. 2009) (quoting United
States v. Walters, 591 F.2d 1195, 1200 (5th Cir. 1979)).
Even when the length-of-delay trigger is satisfied, that first
factor “does not weigh heavily against the government unless the
second factor, the reason for the delay, also weighs against the
government.” Ogiekpolor, 122 F.4th at 1305 (emphasis added).
Deliberate attempts to confound the defense are “weighted heavily
against the government.” Barker, 407 U.S. at 531. More neutral
reasons like “negligence or overcrowded courts” are “weighted less
heavily”—but they still go into the balance. Id. That’s because “the
ultimate responsibility for such circumstances must rest with the
government rather than with the defendant.” Id. Valid reasons, on
the other hand, like “a missing witness,” are generally considered
to justify at least an “appropriate delay.” Id.
1273 n.8 (11th Cir. 2015); see also Bonner v. City of Prichard, 661 F.2d 1206, 1207
(11th Cir. 1981) (en banc) (decisions of the former Fifth Circuit rendered
before October 1, 1981, are binding precedent in the Eleventh Circuit). And
the earlier cases are in harmony with the Supreme Court’s mandate that “[i]n
addition to the period after indictment, the period between arrest and
indictment must be considered in evaluating a Speedy Trial Clause claim.”
United States v. MacDonald, 456 U.S. 1, 7 (1982).
We also appreciate that after his initial arrest on May 6, 2020, Louis was placed
in state custody on state charges. But he was not transferred to federal custody
to face federal charges until January 7, 2021. Because that is when he was first
“subjected to a federal arrest,” we calculate the length of the delay from that
date. See United States v. Brand, 556 F.2d 1312, 1315 (5th Cir. 1977) (emphasis
added).
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Because Louis’s trial took place fourteen months after he
was transferred to federal custody, he meets the length-of-delay
threshold, and we proceed to the remaining Barker factors. The
next factor is the reason for the delay, and we see two: (1) practical
difficulties created by the Covid-19 pandemic, and (2) Louis’s own
requests to continue the trial so that he could better prepare. The
government is responsible for neither. To start, the nearly four-
month delay between Louis’s transfer to federal custody (January
7, 2021) and his indictment (April 29, 2021) can be attributed to the
pandemic, which complicated the task of convening a grand jury—
to put it mildly. See, e.g., Admin. Ord. 2020-76, S.D. Fla. (Oct. 20,
2020); Vargas, 97 F.4th at 1292 (pandemic made empaneling juries
“unfeasible and dangerous” (quotation omitted)).
Nor did the pandemic disappear once Louis was indicted. At
his May 18, 2021, arraignment, the district court scheduled the trial
to begin on August 2, 2021, about two and a half months later,
“because of the current coronavirus pandemic, the present
incapacity to convene a jury or summon witnesses and the parties’
inability to meaningfully consult with clients and prepare for trial.”
Indeed, the pandemic had halted all jury trials in the Southern
District of Florida; they did not resume until July 19, 2021, and even
then “only in a limited fashion.” Vargas, 97 F.4th at 1291; see
Admin. Ord. 2021-33; Admin. Ord. 2021-65, S.D. Fla. (July 8, 2021).
What’s more, Louis himself was directly responsible for the
seven-month delay between August 2, 2021—the original trial
date—and March 1, 2022—the actual trial date. Starting in July
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2021, he sought three consecutive continuances, first citing the
need to investigate the case, next the need to review discovery, and
last the need to contact witnesses. The responsibility for a delay
requested by Louis does not “rest with the government.” Barker,
407 U.S. at 531. For these reasons, the second factor does not weigh
against the government. And that means the first does not weigh
heavily against it. See Ogiekpolor, 122 F.4th at 1306–07.
The third factor—the defendant’s assertion of his right (or
the lack thereof)—also favors the government, but just barely. A
“defendant’s failure to timely assert his constitutional right to a
speedy trial is weighed heavily against the defendant,” while “a
prompt assertion of the right” may weigh heavily against the
government. Vargas, 97 F.4th at 1288. To be sure, at the pre-
indictment stage, Louis’s counsel acknowledged the difficulties the
government faced in obtaining an indictment and did not oppose
any of the government’s motions to continue. But Louis raised the
issue on his own. Even setting aside his invalid pro se filing, that
motion followed a detailed in-court statement from Louis that was
mostly dedicated to his objection that the lengthy delays in his
criminal proceedings had violated his right to a speedy trial. And
his attorney eventually chimed in during the hearing, informing
the court that Louis objected to “any further continuance.” So at
least for the purpose of the Sixth Amendment (which unlike the
Speedy Trial Act does not require a motion to dismiss), Louis
asserted his right.
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For a time. This third factor still cuts against Louis because
even though he invoked his speedy trial right pre-indictment, he
knowingly and voluntarily waived it post-indictment. The first of
his three motions to continue the trial filed by Louis’s new counsel
stated that he understood and waived his Sixth Amendment right
to a speedy trial. And the second and third reminded the court that
Louis had waived the right. It was not until the January 25, 2022,
hearing on the third motion, a little over a month before trial, that
defense counsel told the court that Louis no longer agreed to waive
his right to a speedy trial. All this back-and-forth means the third
factor, like the others, does not weigh heavily against the
government.
Failing to demonstrate that the first three factors weigh
heavily against the government, Louis needs to show actual
prejudice to succeed on his claim. See id. at 1289. He cannot.
Prejudice is “assessed in the light of the interests of
defendants which the speedy trial right was designed to protect.”
Barker, 407 U.S. at 532. The “most serious” of these interests is “to
limit the possibility that the defense will be impaired” because “the
inability of a defendant adequately to prepare his case skews the
fairness of the entire system.” Id. Here the reason for almost half
the delay was so that Louis could—as he requested—prepare for
trial, review discovery, file motions, and contact additional
witnesses. Louis has not pointed to any prejudice from these
delays; if anything, they improved his defense. Nor does he cite any
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actual prejudice from the earlier delays. His Sixth Amendment
speedy trial claim therefore fails.
C.
Louis next challenges the sufficiency of the evidence against
him. In reviewing a sufficiency challenge, we resolve “all
reasonable inferences in favor of the verdict and consider the
evidence in the light most favorable to the government.” United
States v. Doak, 47 F.4th 1340, 1354 (11th Cir. 2022) (quotation
omitted). The “evidence is insufficient only if no reasonable trier
of fact could find guilt beyond a reasonable doubt.” Id. (quotation
omitted).
Louis’s contention that the evidence is not sufficient for a
reasonable jury to convict him is, in a word, remarkable. To start,
he was seen driving the same black Mercedes as the robber, right
down to the rear dent. He was wearing a cross-body satchel—just
like the one worn in the last three robberies—when he was spotted
and fled, first in his dented Mercedes and then on foot. He ditched
the satchel while on the run. When police found it in the bushes
along his flight path, it contained a 9mm handgun matching the
description of the gun in the robberies, ammunition, and Louis’s
debit card. Back at the Mercedes, officers found a black t-shirt and
black gloves inside; just outside the car was a black beanie. A search
of Louis’s bedroom revealed black Jordan sneakers like those worn
in the robberies and a Bee Pawn receipt for the handgun. The serial
number on the receipt matched the serial number on the gun in
the satchel.
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That’s not all. Two days after the first robbery, Louis sent
text messages offering to sell a brand-new iPhone and a Mercedes,
and in recorded jail calls after his arrest, he instructed a friend to
tell his mother to throw away all his basketball shorts. He also
asked the friend to pass along an apology to his mother, along with
word that he was “trying to make money.”
Louis did testify at trial, denying participation in the
robberies and attempting to explain away the evidence connecting
him to the crimes. He claimed that he bought the Mercedes—
already containing black gloves and a satchel—from a “friend of an
associate” at the end of April or beginning of May. And he said that
he bought the gun a few days later from a friend named Jean
Rodriguez, who also provided him with the Bee Pawn receipt. But
this testimony apparently did not sway the jury. Indeed, when a
defendant takes the stand, “he runs the risk that if disbelieved the
jury might conclude the opposite of his testimony is true.” United
States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (quotation
omitted). Just so here.
Our conclusion is short—there was more than enough
evidence to support Louis’s convictions.
D.
We next turn to the jury instructions. Over Louis’s
objection, the court gave the Eleventh Circuit pattern jury
instruction on flight. “Evidence of flight is admissible to
demonstrate consciousness of guilt and thereby guilt.” Williams,
541 F.3d at 1089 (quotation omitted). If the evidence presented
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would allow a reasonable jury to conclude that the defendant “fled
the police to avoid the charged crime,” a district court does not
abuse its discretion in giving the instruction. Id.
Louis argues that the jury could not infer guilt from his flight
because he had other reasons to run (he was driving a stolen car
and had a suspended license). He added that “the flight was not
contemporaneous” with any of the robberies. To be sure, the
probative value of flight evidence “is diminished if the defendant
has committed several unrelated crimes or if there has been a
significant time delay between the commission of the crime” and
“the time of flight.” Id. (quotation omitted). But less probative
does not mean disallowed. And in any event, Louis was
apprehended by police less than two weeks after the last robbery;
he discarded the satchel containing the gun and other evidence
during the chase; and his car was chock-full of evidence connecting
him to the robberies, providing ample reason to run. Because a
jury could reasonably conclude that he fled to avoid capture for the
robberies, the district court did not abuse its discretion in giving the
instruction. See id.
E.
Louis’s last two challenges are to evidentiary rulings. The
first is that Detective Wever’s testimony that Louis appeared to fit
the same “weight, height, build and general description” of the
robber in the surveillance videos was improper lay identification
testimony. Louis’s objection to the testimony at trial was that it
was solicited by a leading question. Because objections “about the
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phrasing of questions” do not preserve an argument that the trial
court “admitted improper opinion testimony,” we review only for
plain error. United States v. Pon, 963 F.3d 1207, 1225 (11th Cir. 2020)
(quotation omitted).
“A plain error is an error that is obvious and is clear under
current law.” United States v. Humphrey, 164 F.3d 585, 588 (11th Cir.
1999) (quotation omitted). To meet that test, Louis must show
(1) an error (2) that is plain and (3) that affects his substantial rights.
United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). If
the first three conditions are met, we then consider whether the
error seriously affects “the fairness, integrity, or public reputation
of judicial proceedings.” Id. (quotation omitted).
The government, for its part, argues that Wever’s testimony
was not identification testimony at all. It was not offered, the
government says, to identify Louis as the masked man in the videos
but to “rebut Louis’s repeated suggestion that the Government
could not prove its case, because victims could not remember
Louis’s height, weight, or age.”
We need not delve into that question because Louis cannot
show a “clear” or “obvious” error either way. See Humphrey, 164
F.3d at 588 (quotation omitted). Opinion testimony must be
“helpful to clearly understanding the witness’s testimony or to
determining a fact in issue.” Fed. R. Evid. 701(b). And “lay opinion
identification testimony may be helpful to the jury where there is
some basis for concluding that the witness is more likely to
correctly identify the defendant from a photograph or video than
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is the jury.” United States v. Ware, 69 F.4th 830, 849 (11th Cir. 2023)
(alterations adopted and quotations omitted). Both “the witness’s
familiarity with the defendant’s appearance” at the time of the
surveillance and whether the defendant had “disguised his
appearance at the time of the offense” are important factors to
consider. United States v. Pierce, 136 F.3d 770, 774–75 (11th Cir.
1998).
These factors support the admission of Wever’s testimony.
First, Wever was more familiar with Louis’s appearance at the time
of the robberies than the jury because he participated in Louis’s
post-arrest interview “less than two weeks after the last robbery,”
while the jury did not get its first look at Louis until the trial
“almost two years later.” See Ware, 69 F.4th at 851. Second,
Wever’s familiarity with Louis may have been especially helpful
because the robber disguised himself with a mask in each of the
surveillance videos. See Pierce, 136 F.3d at 775. Because there was
“some basis for concluding” that Wever was more likely to
correctly identify Louis than the jury, the district court did not
plainly err in admitting Wever’s testimony. See id. (quotation
omitted).
Finally, Louis argues that it was error to deny his request to
try on the Jordan sneakers recovered from his bedroom in front of
the jury. According to Louis, this prevented him “from
conclusively proving to the jury that he was not the robber
captured on the numerous surveillance videos.”
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20 Opinion of the Court 23-10643
Demonstrative evidence, “like any evidence offered at trial,
should be excluded ‘if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.’” United States v. Gaskell, 985 F.2d
1056, 1060 (11th Cir. 1993) (quoting Fed. R. Evid. 403). Louis’s
mantra that “if the shoes do not fit, the jury must acquit” is a non-
starter. Any probative value to his demonstration would have been
minimal because Louis had other ways to argue that the shoes
were too small. In fact, the court told Louis’s attorney that he
could make his point “vigorously” that the shoes found in his closet
were size 6.5 and that Louis wore size 8.
In any event, Louis could not have proved that he was
innocent by showing that the shoes were too small. At most, the
demonstration could have shown that shoes recovered from his
own closet did not fit him—a far cry from “conclusively proving”
that he was not the masked robber. And there was real danger that
Louis could mislead the jury by pretending that he could not fit his
feet into the shoes or otherwise manipulating the demonstration.
The district court did not abuse its discretion in denying him that
opportunity.
* * *
None of Louis’s challenges warrant reversal. We therefore
AFFIRM.
Reference
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