USA v. Latavis Deyonta Mackroy, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13397
Non-Argument Calendar
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D.C. Docket No. 6:13-cr-00306-GAP-DAB-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LATAVIS DEYONTA MACKROY,
a.k.a. Tay,
LINELL DEVON LOWE,
a.k.a Bookies,
a.k.a. Bokiss,
Defendants-Appellants.
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Appeals from the United States District Court
for the Middle District of Florida
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(February 11, 2016)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Latavis Mackroy and Linell Lowe appeal their convictions for conspiring to
disrupt interstate commerce by robbery, in violation of 18 U.S.C. § 1951, and
aiding and abetting the use of a firearm in a crime of violence, in violation of 18
U.S.C. §§ 924(c)(1)(A)(ii) and 2. Both Mackroy and Lowe contend that the
district court erred in denying their Batson1 challenge to the Government’s use of
preemptory strikes and that the district court failed to properly instruct the jury
regarding the mens rea element for aiding and abetting the use of a firearm in a
crime of violence. In addition, Lowe contends the district court clearly erred when
it denied his motion for judgment of acquittal because the government failed to
establish interference with interstate commerce element. After review,2 we affirm.
The district court did not err in accepting the government’s explanation for
striking Jurors 10 and 28, both black females. The Government gave race-neutral
bases for each of the two strikes. The district court agreed with the Government’s
assessment of Juror 10’s attitude and found the Government’s explanation of its
1 Batson v. Kentucky, 476 U.S. 19 (1986).
2 Where a party alleges a Batson violation, we review jury selection de novo, but review
the district court’s underlying factual findings for clear error. United States v. Campa, 529 F.3d
980, 992 (11th Cir. 2008).
We review de novo the legal correctness of a jury instruction, but defer to the district
court on questions of phrasing, absent an abuse of discretion. United States v. Prather, 205 F.3d
1265, 1270 (11th Cir. 2000). If an objection is not preserved, plain error review applies. United
States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
“We review de novo the denial of a motion for judgment of acquittal, viewing the
evidence in the light most favorable to the government and drawing all reasonable inferences in
favor of the jury’s verdict.” United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015).
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basis for striking Juror 28 to be both race-neutral and sincere. See Purkett v. Elem,
514 U.S. 765, 769 (1995) (clarifying that a peremptory strike satisfies the three-
step Batson test if the trial court finds that the proffered reason for the potentially
discriminatory strike is both race-neutral (step two) and genuine (step three)).
Mackroy and Lowe have failed to provide a basis upon which to disagree with the
district court’s determination, to which we must defer. See Snyder v. Louisiana,
552 U.S. 472, 477 (2008) (“[A] trial court’s ruling on the issue of discriminatory
intent must be sustained unless it is clearly erroneous.”).
We decline to address the propriety of the challenged jury instruction. Upon
conferring with the Government and agreeing to the Government’s proposing the
now-challenged instruction, Mackroy and Lowe invited any error. See United
States v. Carter, 776 F.3d 1309, 1323 (11th Cir. 2015) (quotation omitted)
(“[W]here a defendant agrees to the court’s proposed instructions, the doctrine of
invited error applies, meaning that review is waived even if plain error would
result.”); United States v. James, 642 F.3d 1333, 1337 (11th Cir. 2011) (holding
that invited error doctrine applies to a jury instruction submitted to the district
court by the party challenging the instruction).
We also disagree with Lowe’s objection to the sufficiency of the evidence
regarding interference with interstate commerce. The Government presented
evidence that Lowe stole goods the victim was offering for sale, stole currency
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belonging to the victim, a multinational company, and caused the victim to
temporarily close the affected store. There is at minimum a realistic probability
that Lowe’s conduct affected interstate commerce. United States v. Kaplan, 171
F.3d 1351, 1354 (11th Cir. 1999) (“[T]he government need only show a realistic
probability of an effect, or some actual de minimis effect, on commerce to bring
the extortion within the reach of the Hobbs Act.”).
AFFIRMED.
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