[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-14503

Non-Argument Calendar

________________________

D.C. Docket No. 1:17-cr-00144-KD-N-2

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

 versus

CALVIN L. HARRIS, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

________________________

(November 25, 2020)

Before MARTIN, JORDAN, and GRANT, Circuit Judges.

PER CURIAM: 

USCA11 Case: 19-14503 Date Filed: 11/25/2020 Page: 1 of 7
2

Calvin Harris appeals his convictions for conspiracy to carjack, carjacking,

brandishing a firearm during a crime of violence, conspiracy to kidnap, and 

kidnapping. Harris advances two arguments on appeal. First, he says the district 

court abused its discretion by not further investigating the jury’s exposure to 

extrinsic information. Second, he says his conviction for brandishing a firearm 

during a carjacking in violation of 18 U.S.C. § 924(c) is unconstitutional. After 

careful review, we affirm the district court order and affirm Harris’s § 924 

conviction. 

I.

Harris was first tried in February 2018 for charges related to a kidnapping 

and carjacking. That trial ended in a mistrial because the jury failed to reach a 

unanimous verdict. The second trial occurred just one month later. This time the

jury found Harris guilty of conspiracy to carjack, carjacking, brandishing a firearm 

during a crime of violence in violation of 18 U.S.C. § 924(c), conspiracy to kidnap, 

and kidnapping. The crime of violence for the § 924(c) charge was identified as 

“carjacking.” Neither the indictment nor the verdict form indicated that Harris was 

convicted under the residual clause of § 924(c). The government presented the 

same evidence against Harris in both trials, relying largely on the testimony of his

co-defendant. 

After the second trial, the government informed Harris that it received 

USCA11 Case: 19-14503 Date Filed: 11/25/2020 Page: 2 of 7
3

information from a juror’s co-worker who said the juror told him that several 

members of the jury saw Harris in a parking lot near the courthouse writing down 

the tag numbers of the jurors’ automobiles. Harris moved for a new trial on the 

basis that the jury may have relied on this extrinsic information in deciding his 

case. He noted that the jury deliberation ended soon after this incident. The 

district court then questioned the juror whose co-worker had informed the 

government about this incident. The juror said she overheard other jurors 

discussing how they had seen Harris wandering the parking lot and speculating 

whether he would be able to identify them from their license plate numbers. The 

juror said that no one saw Harris write anything down. The juror indicated that

only a few people could have overheard this discussion. Based on this inquiry the 

district court found that the jury had not been exposed to extrinsic information. 

Harris appealed the district court’s denial of his motion for a new trial. This 

Court determined that the district court “clearly erred in finding that no exposure 

occurred” and remanded, directing the district court to “apply the presumption of 

prejudice” and determine whether the government met its burden to show that the 

exposure was harmless. We noted that on remand, the district court would be able 

to conduct a fuller investigation into the exposure that occurred “if in its discretion 

it believes further evidence is necessary.” 

USCA11 Case: 19-14503 Date Filed: 11/25/2020 Page: 3 of 7
4

The district court determined that no further investigation was necessary 

because it already had the information it needed about the nature of the extrinsic 

evidence. The district court also found that the government’s case against Harris 

was not “very strong” because it relied primarily on the credibility of Harris’s codefendant. Nonetheless, the district court determined that the extrinsic evidence 

“was so inconsequential” that it was harmless. 

Harris timely appealed. 

II.

Harris argues that the district court erred by finding that the jury’s exposure 

to extrinsic evidence was harmless. We review such a determination for abuse of 

discretion. United States v. Siegelman, 640 F.3d 1159, 1182 (11th Cir. 2011) (per 

curiam). When determining whether the district court abused its discretion in 

finding extrinsic evidence harmless, this Court looks to “(1) the nature of the 

extrinsic evidence; (2) the manner in which it reached the jury; (3) the factual 

findings in the district court and the manner of the court’s inquiry into the juror 

issues; and, (4) the strength of the government’s case.” Id.

The district court did not abuse its discretion. The extrinsic information 

amounted to nothing more than seeing Harris outside of the courtroom. This 

information reached the jury by way of their own observation and conversation. 

The district court inquired into the incident by speaking with the juror who shared 

USCA11 Case: 19-14503 Date Filed: 11/25/2020 Page: 4 of 7
5

this experience with her co-worker. Nobody contacted the jurors with any 

messages or directives about Harris. See United States v. Khanani, 502 F.3d 1281, 

1291 (11th Cir. 2007) (district court did not abuse its discretion where extrinsic 

evidence was merely juror’s own observation of defendant’s behavior and where 

no one “contacted [juror] with any message or directive”). While the 

government’s case against Harris may not have been overwhelming, the district 

court did not abuse its discretion by finding that the extrinsic information was so 

inconsequential as to be harmless. See Siegelman, 640 F.3d at 1182. 

Harris maintains that the district court should have interviewed the full jury 

or at least the jurors who allegedly saw Harris in the parking lot. Harris suggests 

that the district court needed more information “as to the extent of the external 

information” and whether it scared the jurors. But interviewing additional jurors 

would not have shed any more light on what happened. And jurors are not 

permitted to testify about “the effect of anything” on their vote or “any juror’s 

mental processes concerning the verdict or indictment.” Fed. R. Evid. 606(b)(1). 

Thus the district court was constrained in any inquiry into whether this incident 

caused the jury to render its verdict based on the jurors’ fear of Harris. 

III.

Separately, Harris argues that his conviction of possessing a firearm in 

furtherance of a crime of violence, in violation of § 924(c), is unconstitutional. 

USCA11 Case: 19-14503 Date Filed: 11/25/2020 Page: 5 of 7
6

Harris relies on the Supreme Court’s decision in Davis which held that the residual 

clause of 18 U.S.C. § 924(c) was unconstitutionally vague. United States v. Davis, 

588 U.S. ___, 139 S. Ct. 2319, 2323–24 (2019). We review de novo whether an 

offense is a “crime of violence” under 18 U.S.C. § 924(c). United States v. Bates, 

960 F.3d 1278, 1285 (11th Cir. 2020).1 

Although Davis invalidated the residual clause, § 924(c)(3)(B), it left intact 

the elements clause, § 924(c)(3)(A), which defines a crime of violence as a felony 

that “has as an element the use, attempted use, or threatened use of physical force 

against the person or property of another.” 18 U.S.C. § 924(c)(3)(A); see Davis, 

139 S. Ct. at 2323–24. Here, Harris was charged with the use of a firearm in 

relation to a carjacking in violation of 18 U.S.C. § 2119. 

This Court has held that carjacking in violation of 18 U.S.C. § 2119 is a

crime of violence under the elements clause. In re Smith, 829 F.3d 1276, 1280–81 

(11th Cir. 2016) (per curiam). Thus, Harris’s conviction under § 924(c) meets the 

definition of “crime of violence” set out in the elements clause of the statute and is 

not affected by the Supreme Court’s decision in Davis. Harris offers no evidence 

1 The government points out that Harris only raised his challenge to his § 924(c) 

conviction for the first time on appeal, a scenario that would ordinarily cause us to review the 

district court’s finding under a plain error standard. See United States v. Wright, 607 F.3d 708, 

715 (11th Cir. 2010). This Court has suggested that a challenge to whether an offense is a crime 

of violence under § 924(c) is a challenge to the district court’s jurisdiction which should be 

reviewed de novo. See United States v. St. Hubert, 909 F.3d 335, 340, 344, 346 n.6 (11th Cir. 

2018), abrogated on other grounds by Davis, 139 S. Ct. at 2323. But we need not decide which 

standard applies here because Harris’s challenge to his § 924(c) conviction fails under either.

USCA11 Case: 19-14503 Date Filed: 11/25/2020 Page: 6 of 7
7

that he was convicted specifically under the residual clause nor does he argue that 

the elements clause is itself unconstitutional. His § 924(c) conviction is therefore 

constitutional. 

AFFIRMED.

USCA11 Case: 19-14503 Date Filed: 11/25/2020 Page: 7 of 7