[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10558

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee.

versus

MITCHELL LEM FINNEY, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:20-cr-00044-TFM-B-1

____________________

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2 Opinion of the Court 21-10558

Before JORDAN, NEWSOM, and MARCUS, Circuit Judges.

PER CURIAM:

Mitchell Finney appeals from his conviction, following a 

jury trial, for deprivation of rights under color of law resulting in 

bodily injury, in violation of 18 U.S.C. § 242. According to the indictment, the offense occurred when Finney, acting as a Sheriff’s 

Deputy in Clarke County, Alabama, punched and used pepper 

spray on an elderly psychiatric patient who had already been subdued and handcuffed by earlier-arriving officers. On appeal, Finney

argues that: (1) the trial evidence was insufficient for the jury to 

conclude that he caused bodily injury to the victim because there 

was no evidence that the victim subjectively experienced pain; and 

(2) the district court abused its discretion by denying his motion for 

a new trial based on newly discovered evidence of juror misconduct without holding a hearing. After careful review, we affirm.

We review the sufficiency of the evidence de novo, 

“view[ing] the evidence in the light most favorable to the prosecution and draw[ing] all reasonable inferences and credibility choices 

in favor of the jury verdict.” United States v. Joseph, 709 F.3d 1082, 

1093 (11th Cir. 2013). “[W]e must affirm a conviction unless there 

is no reasonable construction of the evidence from which the jury 

could have found the [defendant] guilty beyond a reasonable 

doubt.” Id. We review a district court’s decision to grant or deny 

an evidentiary hearing on a motion for new trial for abuse of discretion. United States v. Schlei, 122 F.3d 944, 990 (11th Cir. 1997).

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21-10558 Opinion of the Court 3

First, we are unpersuaded by Finney’s argument that there 

was insufficient evidence of bodily injury to support his conviction.1 A violation of § 242 requires proof that the defendant, while 

acting under color of law, deprived the victim of his rights. 18 

U.S.C. § 242. If the deprivation results in “bodily injury,” the maximum term of imprisonment increases from one to ten years. Id. 

“[T]he term ‘bodily injury’ means—(A) a cut, abrasion, bruise, 

burn, or disfigurement; (B) physical pain; (C) illness; (D) impairment of a function of a bodily member, organ, or mental faculty; 

or (E) any other injury to the body, no matter how temporary.” 

United States v. Myers, 972 F.2d 1566, 1572-73 (11th Cir. 1992) 

(quotations omitted). 

“[C]ircumstantial evidence may be used to establish an element of a crime, even if the jury could draw more than one reasonable inference from the circumstantial evidence, and in judging sufficiency of the evidence, we apply the same standard whether the 

evidence is direct or circumstantial.” United States v. Langford, 

647 F.3d 1309, 1319 (11th Cir. 2011). “But [w]hen the government 

relies on circumstantial evidence, reasonable inferences, not mere 

speculation, must support the conviction.” United States v. Friske, 

640 F.3d 1288, 1291 (11th Cir. 2011) (quotations omitted).

1 Notably, Finney does not appeal the jury’s conclusion that he violated the 

victims’ rights when he struck and pepper sprayed him; he is only appealing 

the jury’s finding of “bodily injury,” which increases the maximum sentence 

under the statute.

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4 Opinion of the Court 21-10558

Here, there was sufficient evidence for the jury to find that 

Finney caused bodily harm to the victim. As the record reflects, 

the jury heard testimony -- from law enforcement, people who 

have experienced the effects of pepper spray, and an expert -- that 

pepper spray causes eye burning, temporary blindness, difficulty 

breathing, a burning feeling on bare skin, and pain. Finney himself 

testified that being pepper sprayed is “not a good feeling” and that 

the victim’s eyes were “on fire.” Upon hearing this testimony, the 

jury reasonably inferred that the victim experienced pain or organ 

impairment in the form of temporary blindness when he was pepper sprayed and, therefore, suffered “bodily injury.” Langford, 647 

F.3d at 1319; Myers, 972 F.2d at 1572-73.

As for Finney’s claim that the victim experienced fewer effects because he was “drugged and mentally disturbed,” Finney 

presented no evidence to the jury to support this claim. Rather,

several experts testified that the victim felt the effects of pepper 

spray. Similarly, while Finney notes that he was the second officer 

to spray the victim that day, Finney never presented evidence that 

a second spray would not cause pain. Regardless, even if a second 

spray caused more or less pain than the first one, the level of pain 

is irrelevant as to whether there was a bodily injury. Myers, 972 

F.2d at 1572-73. Finney’s citation to cases that warn against making 

assumptions about the dangerousness of pepper spray based on its 

label and advertisements is also irrelevant since the jury did not 

hear evidence of its label and advertisement. Accordingly, we affirm as to Finney’s sufficiency-of-the-evidence argument.

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21-10558 Opinion of the Court 5

We also find no merit to Finney’s claim that the district 

court abused its discretion by denying his motion for a new trial. 

Motions for a new trial are governed by Federal Rule of Criminal 

Procedure 33, which provides that, upon the defendant’s motion, 

“the court may vacate any judgment and grant a new trial if the 

interest of justice so requires.” Fed. R. Crim. P. 33(a). “Motions 

for a new trial based on newly discovered evidence are highly disfavored in the Eleventh Circuit and should be granted only with 

great caution. Indeed, the defendant bears the burden of justifying 

a new trial.” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 

2006) (en banc) (quotations omitted). An evidentiary hearing is not 

required if the record contains all the evidence needed to dispose 

of each ground asserted as the basis for a new trial. United States v. 

Scrushy, 721 F.3d 1288, 1305 n.30 (11th Cir. 2013).

“[A] motion for new trial based on juror misconduct is a 

form of new trial motion for newly discovered evidence.” United 

States v. Bolinger, 837 F.2d 436, 439 (11th Cir. 1988). Accordingly, 

the defendant has “the burden of establishing in [his] motion[] that 

the evidence was in fact newly discovered and that failure to discover it prior to verdict was not due to a lack of due diligence.” 

United States v. Calderon, 127 F.3d 1314, 1351 (11th Cir. 1997). 

Further, to obtain a new trial based on alleged juror misconduct 

during voir dire, “a party must first demonstrate that a juror failed 

to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis 

for a challenge for cause.” United States v. Perkins, 748 F.2d 1519, 

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6 Opinion of the Court 21-10558

1531 (11th Cir. 1984) (quotations omitted). “A relationship between a juror and defendant, albeit a remote one, can form the basis of a challenge for cause.” Id. at 1532. A party seeking a new trial 

based on a juror’s non-disclosure during voir dire must show actual 

bias, which may be shown either “by express admission or by proof 

of specific facts showing such a close connection to the circumstances at hand that bias must be presumed.” Id. (quotations omitted). “A juror’s dishonesty is a strong indication of bias.” United 

States v. Carpa, 271 F.3d 962, 967 (11th Cir. 2001). The inclusion 

of a biased juror on a jury is never harmless. Id. 

However, there is no per se rule requiring the trial court to 

investigate alleged juror misconduct, and “[t]he duty to investigate 

arises only when the party alleging misconduct makes an adequate 

showing of extrinsic influence to overcome the presumption of 

jury impartiality.” United States v. Cuthel, 903 F.2d 1381, 1382-83 

(11th Cir. 1990) (quotations omitted). “A court enjoys substantial 

discretion in choosing the investigative procedure to be used in 

checking for juror misconduct.” Carpa, 271 F.3d at 967 (quotations 

omitted). “The more speculative or unsubstantiated the allegation 

of misconduct, the less the burden to investigate.” Cuthel, 903 F.2d 

at 1383 (quotations omitted). Notably, “a defendant alleging juror 

bias must do more than speculate.” United States v. Sammour, 816 

F.3d 1328, 1339 (11th Cir. 2016) (quotations omitted). “[H]e must 

show clear, strong, substantial and incontrovertible evidence . . . 

that a specific, nonspeculative impropriety has occurred.” Cuthel, 

903 F.2d at 1383 (quotations omitted). 

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21-10558 Opinion of the Court 7

In this case, Finney is not challenging the district court’s ultimate denial of his motion for a new trial, but only that the court 

did so without holding an evidentiary hearing. Nevertheless, the 

district court did not abuse its discretion in declining to hold a hearing on Finney’s juror misconduct claim because the record contained all the evidence needed to dispose of the motion. As the 

record reveals, Finney’s allegation of juror misconduct -- that a female juror had remembered him, held a thirty-year grudge against 

him for not reciprocating her romantic interest, and lied about it --

is purely speculative because he offers no proof of these claims. Rather, his claim is based on a vague statement from his sister, and 

even he admitted that he did not recognize the juror. This situation stands in stark contrast to the court’s removal for cause of another juror who said he’d known Finney’s family his whole life. 

Nor did Finney show that his failure to discover evidence of 

a potential relationship with the juror was not due to his lack of 

due diligence. At trial, Finney declined to question the juror further, and he did not investigate her until after the trial was over

even though he had access to her personal information during the 

trial. He likewise declined the opportunity to present additional 

information about juror misconduct at the sentencing hearing 

when he was given an opportunity to do so by the court. Accordingly, we affirm. 

AFFIRMED.

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