The opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11921
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NIGEL RICHARDSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cr-60129-RAR-1
____________________
Before ROSENBAUM, NEWSOM, and LUCK, Circuit Judges.
LUCK, Circuit Judge:
Nigel Richardson placed delivery orders with two restau-
rants so he could rob their drivers at gunpoint. For his crimes, he
was charged with committing: two counts of Hobbs Act robbery;
two counts of brandishing a firearm during a crime of violence; and
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2 Opinion of the Court 22-11921
one count of being a felon in possession of a firearm. After a four-
day jury trial, Richardson was convicted as charged.
He now appeals his convictions on four grounds. First, as to
the brandishing counts, Richardson argues that Hobbs Act robbery
is not categorically a crime of violence. Second, he contends that
his trial on the felon-in-possession count violated the Grand Jury
Clause because the grand jury didn’t allege he knew about his sta-
tus as a felon. Third, as to the three firearm counts, he asserts that
the evidence was insufficient to show he possessed a firearm. Fi-
nally, Richardson maintains that the district court’s exclusion of ex-
pert psychiatric evidence violated his right to a fair trial. After care-
ful review, and with the benefit of oral argument, we affirm Rich-
ardson’s convictions.
FACTUAL BACKGROUND
The robberies
CC Chinese Cooking—a restaurant in Pembroke Pines,
Florida—received a call at around 8:30 P.M. on June 19, 2018. The
caller placed a delivery order and asked that the delivery driver
“have change for a hundred-dollar bill.”
The driver, Michael Pearce, took the food and went to the
address given by the caller—a house in nearby Miramar. Pearce
testified that two men were waiting for him outside the house.
Both men were black, one being “shorter,” around five-foot-eight,
and the other being “a little bit taller, maybe [five-foot-ten].” “The
shorter one” then “pulled a gun on” Pearce and told him to give
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22-11921 Opinion of the Court 3
the men everything. The gunman, Pearce explained, pointed the
gun at his “chest or above.”
Pearce described the gun as “a black handgun.” He said he
wasn’t “familiar with guns, but it was definitely black, a smaller
handgun.” There was “nothing out of the ordinary about it.” Alt-
hough he couldn’t tell what the gun was made of, it appeared to
him to be a real gun.
Pearce “panicked” and told the two men to take whatever
they wanted. The men patted him down, took everything out of
his pockets, took the food, and then ran off.
About a week later, at around 10:30 P.M. on June 25, a
Miramar Domino’s Pizza received a delivery order over the phone.
The caller’s phone number and delivery address were the same as
those used for the order placed with CC Chinese on June 19.
The Domino’s delivery driver, Even Madero, testified that
two men were waiting for him when he parked his car in front of
the house. He described one of the men as “not that tall, and his
head was covered up with some clothing.” The other man was
“[t]aller.” Madero got out of the car with the four boxes of pizza
that they ordered.
Madero explained that when he approached the two men,
“[t]he shorter one” pointed a gun at Madero’s chest. The gun was
black and “not that big.” Madero said the gun “was made of iron
or steel or whatever material they make it from.” To him, the gun
appeared real.
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4 Opinion of the Court 22-11921
The gunman demanded Madero hand over his wallet, his
phone, and the pizzas, and Madero complied. Later that night, at
11:16 P.M., surveillance footage captured Richardson in a hallway
at his apartment complex. He was carrying four boxes of Domino’s
pizza.
The investigation
Miramar officers learned that the phone number used to call
CC Chinese and Domino’s “was assigned to a texting app called
TextNow.” TextNow informed the officers that the caller’s
username was “Trinidad Tiger” and that his email was “gunman-
laflare@yahoo.com.” With the information from TextNow, the
officers Google-searched the email address and found a Facebook
account for “Trinidad Tiger.”
Officers ran Trinidad Tiger’s Facebook pictures through a
facial recognition software, which matched the photos to Richard-
son. After the match, officers prepared photo lineups to show
Pearce and Madero. The lineups included pictures of Richardson
and five other men. Pearce didn’t select any photo as showing the
gunman. But Madero identified Richardson as the gunman; he
wrote next to Richardson’s photo, “I recognized this person that
pointed me with a gun.” The officers then obtained a warrant to
arrest Richardson at his apartment complex.
After the arrest, Detectives Joe Tomlin and Jonathan Zeller
interviewed Richardson about the robberies. Richardson denied
any involvement. He told the detectives that he lived with his
grandmother in North Miami, and he repeatedly told them that he
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was at her house on June 19 and 25. Richardson also told the de-
tectives that the last time he held a gun was when he visited “Big
Al’s” gun range “like a month” before. He explained that he didn’t
bring his own gun but instead used one that his friend rented.
When asked about his cell phone—an LG phone—Richardson told
the detectives that he “just got it.”
Following the interview, the government obtained a war-
rant to search Richardson’s phone, and Detective Zeller analyzed
it. He found that TextNow was installed on the phone. He also
found “photographs and videos of [Richardson] holding a firearm.”
Two of the photos showed Richardson shirtless in his apart-
ment wearing blue underwear or shorts, black pants, and with a
red bandana. These photos also showed a black handgun holstered
in Richardson’s pants. For these two photos, Detective Zeller was
able to recover metadata from the phone. The data revealed that
these two photos had capture times of June 17, 2018, at 5:07 A.M.
and 5:08 A.M.
The capture time, Detective Zeller explained, indicates the
date and time that someone took the picture on the phone. He
acknowledged that it might be theoretically possible for the cap-
ture time not to reflect the true creation date if someone used their
phone to take “a picture of the picture.” But he also testified that
the data for the two June 17 photos didn’t show they were screen-
shotted or transferred over from another phone.
A similar photo showed Richardson shirtless, wearing blue
underwear or shorts, black pants, and with the same hairstyle, but
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6 Opinion of the Court 22-11921
outside and without a gun holstered. The metadata showed that
the picture was originally taken using an iPhone and had a capture
time of March 30, 2018, at 11:24 A.M. It also listed a “[m]odified”
date of June 15, 2018. Detective Zeller explained that the modified
entry showed this picture was taken on March 30 with the iPhone
but transferred over to Richardson’s newer LG phone on June 15.
Three other photos recovered from the LG phone showed
Richardson holding a black handgun. One of these photos showed
that the gun had an orange, safety-off indicator dot above and be-
hind the trigger. Detective Zeller was unable to recover metadata
for these photos. Also, four videos showed Richardson with a black
handgun. Detective Zeller was unable to recover metadata for
them.
Law enforcement forwarded the photos to Hi-Point Fire-
arms, an Ohio gun manufacturer, to ask whether the gun pictured
with Richardson was a Hi-Point gun. Hi-Point president Joseph
Strassell, who described himself as “[i]ntimately” familiar with Hi-
Point’s firearms and their parts, reviewed the photos. Strassell ver-
ified that the photos of Richardson showed him carrying a Hi-Point
handgun—specifically, Hi-Point’s model C9. The C9 is a black
handgun that expels a projectile through explosive action.
Strassell explained at trial that Hi-Point “work[s] very closely
with law enforcement [to] mak[e its] firearms uniquely identifia-
ble.” He pointed out that a C9 is marked “‘Hi-Point Firearms’ on
the slide” and “has a triangular logo up near the front of the slide.”
But, he explained, those aren’t the only unique features. A C9 also
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has “a large, heavy slide to absorb the recoil . . . . It’s not square
and small.” The C9 has “some scallop serrations” on the back “that
are unique to [Hi-Point] firearms.” The same is true as to the size
and rounded shape of the C9’s magazine shoe. Lastly, the C9’s
safety-off indicator’s location is unique.
Strassell then testified that the pictures of Richardson
showed him with a handgun that has all of the C9’s unique fea-
tures. In one of the June 17 photos, Strassell showed how the gun
had the C9’s unique serrations and magazine shoe. He said that
“the overall shape of the pistol [wa]s very familiar” and “look[ed]
like a Hi-Point C9.” The handgun pictured in Richardson’s other
photos, he continued, also had the C9’s unique features, including
the serrations, the large slide, the magazine shoe’s shape, and the
orange active-firing indicator’s location.
Hi-Point has never approved any replicas, airsoft guns, or BB
guns that look like the C9. Although Hi-Point’s attorneys “actively
search[] for any infringement,” they have never found any unap-
proved replicas on the market.
PROCEDURAL HISTORY
A grand jury indicted Richardson on five counts. Count one
alleged that Richardson committed Hobbs Act robbery as to
Pearce, in violation of 18 U.S.C. section 1951(a). Count two alleged
that Richardson brandished a firearm in furtherance of a crime of
violence, in violation of section 924(c)(1)(A). The indictment iden-
tified the crime of violence as the Pearce Hobbs Act robbery.
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8 Opinion of the Court 22-11921
Counts three and four mirrored counts one and two, but they were
related to the Madero robbery.
Count five alleged that, “[o]n or about June 19, 2018,” Rich-
ardson “possessed a firearm in and affecting interstate and foreign
commerce, having previously been convicted of a crime punisha-
ble by imprisonment for a term exceeding one year, and did so
knowingly, in violation of [s]ection 922(g)(1).” The case proceeded
to trial.
Competency to stand trial and psychiatric evidence
But before the trial began, a number of psychologists as-
sessed whether Richardson was competent to stand trial. One of
them was Dr. Evan Du Bois. Dr. Du Bois evaluated Richardson in
2020 and prepared a report with his opinion that, although Rich-
ardson had a mental health condition, he was competent to pro-
ceed. Dr. Du Bois reported that Richardson told him, “Oh I’ve
taken plea deals in the past so I guess that made me guilty.”
The district court held a competency hearing, and
Dr. Du Bois testified. When Dr. Du Bois was asked if Richardson
discussed his defense strategy, Dr. Du Bois answered, “Some-
what. . . . But from my recollection he had kind of a limited under-
standing of what even happened. And part of that, I think,
stemmed from perhaps mental illness at the time.” Dr. Du Bois
also testified that Richardson had discussed his earlier attempted
robbery conviction “to some degree” and had spoken about having
previous convictions or “taking plea deals in the past.” Based on
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Dr. Du Bois’s report and testimony, the district court found that
Richardson was competent to stand trial.
After Richardson was found competent, the government
moved to exclude any evidence that “Richardson suffered from a
mental condition or diminished capacity that negate[d] the intent
element of the charged offenses, or improperly invoke[d] sympa-
thy.” While psychiatric evidence can be used to support an insanity
defense, the government contended, Richardson did not intend to
raise insanity. Psychiatric evidence, the government argued, could
not be used to negate Richardson’s mens rea because the indict-
ment only alleged general intent crimes, not specific intent crimes.
Richardson responded that Dr. Du Bois’s evaluation was admissi-
ble to “rebut [section 922(g)(1)’s] element . . . of knowledge of pro-
hibited status,” which the government must prove after Rehaif v.
United States, 588 U.S. 225 (2019).
The district court granted the government’s motion. The
competency evidence, it found, would create “a massive [Federal
Rule of Evidence] 403 concern.” The district court explained that
diminished capacity defenses do not apply to general intent crimes,
and the evidence would be misleading because a “snapshot” of
Richardson’s mental health at a particular time would not neces-
sarily reflect “his mental state throughout not only the commission
of this offense but prior to that.” The district court also concluded
that Rehaif “doesn’t change the calculus . . . for letting in dimin-
ished capacity evidence.”
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During the trial, Richardson moved to introduce a stipula-
tion about Dr. Du Bois’s evaluation and competency-hearing testi-
mony:
A doctor at the Federal Bureau of Prisons, who has
previously been accepted as an expert in mental
health by the parties in this case and the Court, per-
formed an evaluation on the defendant to determine
his mental health status.
Based upon the findings, the expert determined that
the defendant has a mental health history, to include
involuntary hospitalization and forced medications
since approximately 2015.
Based upon that evaluation, the doctor testified under
oath and was questioned by the parties in this case.
The doctor testified that the defendant has a limited
understanding of the events that happened partially
stemming from his mental illness at the time.
Further, the doctor testified, upon questioning by the
Government, that the defendant’s mental illness had
an effect on his ability to make rational and informed
decisions without his medication.
Finally, the doctor testified that the defendant only
had some degree of memory about a prior criminal
history and may have incorrectly stated he had ac-
cepted plea deals, plural, in the past.
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The government objected, and the district court sustained the ob-
jection for the same reasons it granted the government’s motion to
exclude Dr. Du Bois’s report and testimony.
Richardson’s motion to dismiss and for judgment of acquittal
Also during trial, Richardson moved to “hold . . . [s]ection
922(g) unconstitutionally vague after the Rehaif ruling as it applies
to this case,” and to dismiss the felon-in-possession count, “which
charges a violation of [section] 922(g) but not a violation of [sec-
tion] 924(a)(2).” The district court denied the motion, finding there
was no basis to dismiss the felon-in-possession count “as unconsti-
tutional or void for vagueness.”
Then, after the government rested, Richardson moved for a
judgment of acquittal under Federal Rule of Criminal Procedure
29. First, as to the firearm counts, Richardson argued that, alt-
hough the government “attempted to prove that the firearm in the
photographs was a real firearm manufactured by Hi-Point,” it
failed to prove that gun was “the same alleged firearm used” in the
robberies. Specifically, as to the felon-in-possession count, Rich-
ardson asserted that although “it’s alleged that [he] possessed the
firearm on June 19th,” there was no proof that the firearm in the
photos was the same as the “alleged firearm used on June 19th.”
Second, Richardson argued that the government failed to
prove he knew about his felon status, citing his mental health con-
dition. And third, Richardson maintained that the district court
should dismiss the felon-in-possession count because it “doesn’t al-
lege a federal action here because it doesn’t charge any violation of
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12 Opinion of the Court 22-11921
[section 924](a)(2),” and “never alleges or accuses [Richardson] of
not knowing that he was a prohibited person, as required in Re-
haif.”
The district court denied the rule 29 motion. The district
court concluded that a reasonable jury could find Richardson com-
mitted each offense. As for Richardson’s challenge to the felon-in-
possession count, the district court relied on United States v. Leon-
ard, 4 F.4th 1134 (11th Cir. 2021), as involving an “almost identical”
indictment that “was found sufficient.”
Richardson rested without presenting a case and renewed
his rule 29 motion. The district court denied that motion too.
Verdict and sentence
The jury found Richardson guilty as charged. The jury
found Richardson guilty of Hobbs Act robbery against both Pearce
and Madero. On the brandishing counts, the jury found that Rich-
ardson brandished, used, carried, and possessed a firearm. It also
found that he performed those acts during, in relation to, and in
furtherance of the Pearce and Madero Hobbs Act robberies. And
on the felon-in-possession count, the jury found that Richardson
knowingly possessed a firearm as a convicted felon.
After the district court imposed a 192-month prison sen-
tence, Richardson appealed his convictions.
DISCUSSION
We divide our analysis in four parts. First, we conclude that
Richardson’s Hobbs Act robbery convictions are valid predicate
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22-11921 Opinion of the Court 13
crimes of violence for his brandishing convictions. Second, as to
the felon-in-possession count, we address why Richardson hasn’t
shown a Grand Jury Clause violation. Third, we explain that a rea-
sonable jury could find Richardson brandished a firearm during his
Hobbs Act robberies and knowingly possessed a firearm as a con-
victed felon. And fourth, we decide that the district court’s exclu-
sion of Dr. Du Bois’s evaluation, testimony, and the proposed stip-
ulation didn’t deny Richardson a fair trial.
Hobbs Act robbery as a crime of violence
Richardson first argues that we must vacate his convictions
for brandishing a firearm in furtherance of a crime of violence be-
cause the district court lacked jurisdiction as to those charges. He
maintains that the only predicate offenses alleged in those counts—
Hobbs Act robberies—do not qualify as crimes of violence under
section 924(c)(3)(A)’s elements clause. Thus, he contends, the in-
dictment didn’t charge an “offense against the United States” under
18 U.S.C. section 3231. We conclude that the district court had
jurisdiction as to the section 924(c) counts because Hobbs Act rob-
1
bery is a crime of violence.
Section 924(c) makes it unlawful for any person to brandish
a firearm “in furtherance of” “any crime of violence.” 18 U.S.C.
§ 924(c)(1)(A). A “crime of violence” is a term of art that means
1
We review de novo whether an offense qualifies as a crime of violence under
the elements clause. Alvarado-Linares v. United States, 44 F.4th 1334, 1341 (11th
Cir. 2022).
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14 Opinion of the Court 22-11921
any felony offense that “has as an element the use, attempted use,
or threatened use of physical force against the person or property
of another.” Id. § 924(c)(3)(A). This definition is known as the ele-
2
ments or use-of-force clause. Brown v. United States, 942 F.3d 1069,
1071 (11th Cir. 2019). To determine whether an offense is a crime
of violence, “[t]he only relevant question is whether [it] always re-
quires the government to prove—beyond a reasonable doubt, as
an element of its case—the use, attempted use, or threatened use
of force.” United States v. Taylor, 596 U.S. 845, 850 (2022).
Here, the jury found Richardson guilty of brandishing a fire-
arm in furtherance of two Hobbs Act robberies. A Hobbs Act rob-
bery is: (1) “the unlawful taking or obtaining of personal property”;
(2) “from the person or in the presence of another, against his will”;
(3) “by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property.” 18 U.S.C.
§ 1951(b)(1). So, the question is whether—to convict a person of
Hobbs Act robbery—the government must prove, beyond a rea-
sonable doubt, that the person used, attempted to use, or threat-
ened to use physical force as required by section 924(c).
We answered that question in In re Saint Fleur, 824 F.3d 1337
(11th Cir. 2016). There, we held that a “conviction for Hobbs Act
robbery . . . clearly qualifies as a ‘crime of violence’ under the use-
of-force clause in [section] 924(c)(3)(A)” because “the elements
2
The other part of the definition, section 924(c)(3)(B)’s residual clause, is un-
constitutionally vague. See United States v. Davis, 588 U.S. 445, 448 (2019).
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22-11921 Opinion of the Court 15
of . . . [section] 1951 robbery . . . require the use, attempted use, or
threatened use of physical force ‘against the person or property of
another.’” Id. at 1340–41 (quoting 18 U.S.C. § 924(c)(3)(A)). Saint
Fleur directly connected the Hobbs Act robbery elements, “as rep-
licated in the indictment,” to the definition of a crime of violence.
Id. at 1341. Twice after Saint Fleur we reaffirmed that Hobbs Act
robbery was a crime of violence. See In re Colon, 826 F.3d 1301, 1305
(11th Cir. 2016) (holding that aiding and abetting Hobbs Act rob-
bery is a crime of violence); United States v. St. Hubert, 909 F.3d 335,
345–46 (11th Cir. 2018) (holding that Hobbs Act robbery is a crime
of violence under our binding precedent in Saint Fleur and Colon).
Richardson, as he must, acknowledges these decisions. But,
he argues, our holdings that Hobbs Act robbery is a crime of vio-
lence under the elements clause did not survive the Supreme
Court’s decision in Taylor. We considered—and rejected—the
same argument in United States v. Solomon, 136 F.4th 1310 (11th Cir.
2025). There, we explained that “our cases—both before and after
Taylor—say that Hobbs Act robbery cannot be accomplished with-
out the use, attempted use, or threatened use of force.” Id. at 1321.
To reach that conclusion, we relied on United States v. Wiley, 78
F.4th 1355 (11th Cir. 2023), which explained that the Supreme
Court’s analysis in Taylor was limited to attempted Hobbs Act rob-
bery. Solomon, 136 F.4th at 1319–20; see Wiley, 78 F.4th at 1363–65.
Thus, the Wiley court said, aiding and abetting a Hobbs Act rob-
bery was a crime of violence “because Taylor did not disturb our
holding that completed Hobbs Act robbery is a crime of violence.”
Wiley, 78 F.4th at 1365. Following Wiley, Solomon reaffirmed that
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16 Opinion of the Court 22-11921
our earlier holding—that a completed Hobbs Act robbery was cat-
egorically a crime of violence under the elements clause—was still
good law post-Taylor. Solomon, 136 F.4th at 1321. Indeed, in a sup-
plemental authority letter, Richardson concedes that Solomon “re-
jected the same challenge” he raises here. We agree that it did.
Felon-in-possession charge and the Grand Jury Clause
Richardson’s second argument on appeal is that the felon-in-
possession count did not cite section 924(a)(2) or allege he knew
about his status as a felon when he possessed the gun. Thus, he
contends, we “cannot be assured from the face of the indictment
that the grand jury found Rehaif’s knowledge-of-status element, as
3
the Fifth Amendment [Grand Jury C]lause requires.”
The Grand Jury Clause “confer[s] a right not to be tried” for
an offense “when there is no grand jury indictment.” Midland As-
phalt Corp. v. United States, 489 U.S. 794, 802 (1989). “A grand jury
can perform its function of determining probable cause and return-
ing a true bill only if all elements of the offense are contained in the
indictment.” United States v. Outler, 659 F.2d 1306, 1310 (5th Cir.
4
Unit B Oct. 1981) (citations omitted) (“There is no question that a
3
We review de novo challenges to an indictment, see United States v. Johnson,
981 F.3d 1171, 1178 (11th Cir. 2020) (citations omitted), including those arising
under the Grand Jury Clause, see United States v. McIntosh, 704 F.3d 894, 900,
903–05 (11th Cir. 2013).
4
We adopted as binding precedent all Fifth Circuit Unit B decisions issued on
any date. See Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
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22-11921 Opinion of the Court 17
grand jury indictment must set forth each essential element of an
offense in order for a resulting conviction to stand.”).
In determining whether an indictment contains each ele-
ment of an offense, we give it “a common sense construction.”
Leonard, 4 F.4th at 1143 (quoting United States v. Jordan, 582 F.3d
1239, 1245 (11th Cir. 2009)). We do not ask if the indictment “could
have been drafted with more clarity.” Id. Instead, it is usually
enough that the indictment tracks the relevant statutory language.
See Jordan, 582 F.3d at 1246.
Here, the indictment tracked the language of sec-
tions 922(g)(1) and 924(a)(2). It alleged that: (1) Richardson “pos-
sessed a firearm”; (2) his possession was “in and affect[ed] interstate
and foreign commerce”; and (3) he had “previously been convicted
of a crime punishable by imprisonment for a term exceeding one
year.” [DE 1 at 4] Cf. 18 U.S.C. § 922(g)(1) (“It shall be unlawful
for any person . . . who has been convicted in any court of[] a crime
punishable by imprisonment for a term exceeding one year . . . [to]
possess in or affecting commerce[] any firearm or ammuni-
tion . . . .”).
Then, after alleging Richardson possessed the gun as a felon,
the indictment alleged that he “did so knowingly.” Cf. id.
§ 924(a)(2) (2018) (“Whoever knowingly violates [section 922(g)(1)]
shall be fined . . . , imprisoned not more than [ten] years, or both.”),
amended by, Bipartisan Safer Communities Act, Pub. L. No. 117-
159, § 12004(c), 136 Stat. 1313, 1329 (2022). “Reasonably read,” the
phrase “did so knowingly” applies to each material element spelled
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18 Opinion of the Court 22-11921
out before it—including Richardson’s felon status. See Leonard, 4
F.4th at 1143.
“Knowingly” modifies the transitive verb “did,” and that
verb’s direct object (“so”) naturally refers back to all that preceded
it: “possessed a firearm . . . , having previously been convicted of a
crime punishable by imprisonment for a term exceeding one year.”
Thus, an ordinary reader would understand that “knowingly”
modifies how Richardson “performed the entire action.” See Flores-
Figueroa v. United States, 556 U.S. 646, 650 (2009) (“In ordinary Eng-
lish, where a transitive verb has an object, listeners in most contexts
assume that an adverb (such as knowingly) that modifies the tran-
sitive verb tells the listener how the subject performed the entire
action, including the object as set forth in the sentence.”). The al-
ternative reading, limiting “did so knowingly” to “possessed” and
nothing more, is precisely the type of strained construction of an
indictment that we’ve repeatedly cautioned against. See, e.g., Leon-
ard, 4 F.4th at 1143 (explaining that we “give [an indictment] a com-
mon sense construction” (quoting Jordan, 582 F.3d at 1245)).
Giving the indictment a common sense construction, it
shows that the grand jury found probable cause that Richardson
“knew both that he engaged in the relevant conduct (that he pos-
sessed a firearm) and also that he fell within the relevant status (that
he was a felon[)].” See Rehaif, 588 U.S. at 227. For that reason, there
was no Grand Jury Clause violation.
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22-11921 Opinion of the Court 19
Richardson makes two arguments to the contrary. First, he
contends that the indictment here mirrors the one we held was fa-
tally deficient in United States v. Martinez, 800 F.3d 1293 (11th Cir.
2015). Second, he argues that, under Stirone v. United States, 361
U.S. 212 (1960), and Russell v. United States, 369 U.S. 749 (1962), the
grand jury’s failure to charge knowledge of status is structural error
that “mandate[s] automatic vacatur.” Neither of these arguments
supports vacating Richardson’s felon-in-possession conviction.
First, Richardson’s indictment doesn’t suffer the same flaw
as the Martinez indictment. The Martinez indictment charged a vi-
olation of 18 U.S.C. section 875(c) for knowingly transmitting a
threatening communication. See 800 F.3d at 1294. Although the
Supreme Court had held that proving a section 875(c) violation re-
quired showing more than that the defendant knowingly sent a
communication, see Elonis v. United States, 575 U.S. 723, 737–39
(2015) (concluding section 875(c)’s “mental state requirement must
[also] apply to the fact that the communication contains a threat”),
the Martinez indictment alleged only that the defendant knowingly
sent an email, without alleging that the defendant knew the email
“contained a threat,” 800 F.3d at 1294. Here, on the other hand,
Richardson’s indictment alleged that he knew he was a felon. The
phrase “did so knowingly” modified the felon-status portion of the
indictment.
Second, Richardson’s reliance on Stirone and Russell—and
his call for structural error—assumes that there was an error. But,
as we’ve explained, there was no Grand Jury Clause violation here.
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20 Opinion of the Court 22-11921
So, even if Richardson was right that Stirone and Russell require “au-
tomatic vacatur” where an indictment did not allege knowledge of
felon status—we’re not saying that he is—they plainly don’t re-
quire automatic vacatur of Richardson’s felon-in-possession con-
viction because his indictment did allege he knew his felon status.
Sufficiency of the evidence on the firearm counts
Although the jury found Richardson guilty on the five
counts alleged in the indictment, he challenges the sufficiency of
evidence only as to the firearm counts. Richardson contends that
the government’s evidence fell short “on the crucial ‘firearm’ ele-
ment” of his brandishing and felon-in-possession convictions.
Pointing to how no firearm was ever recovered, he contends the
government failed to prove that he possessed a “firearm” as defined
5
in 18 U.S.C. section 921(a)(3).
We review de novo whether sufficient evidence supported
a conviction, United States v. Charles, 313 F.3d 1278, 1284 (11th Cir.
2002), drawing all reasonable inferences in the government’s favor,
United States v. Friske, 640 F.3d 1288, 1290–91 (11th Cir. 2011). “The
evidence need not be inconsistent with every reasonable hypothe-
sis except guilt, and the jury is free to choose between or among
5
A “firearm,” as used in the brandishing and felon-in-possession statutes, is
“(A) any weapon (including a starter gun) which will or is designed to or may
readily be converted to expel a projectile by the action of an explosive; (B) the
frame or receiver of any such weapon; (C) any firearm muffler or firearm si-
lencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3).
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22-11921 Opinion of the Court 21
the reasonable conclusions to be drawn from the evidence pre-
sented at trial.” Id. (quoting United States v. Poole, 878 F.2d 1389,
1391 (11th Cir. 1989)).
We first review the evidence supporting Richardson’s con-
viction for possessing a firearm as a convicted felon. Then, we con-
sider his convictions for brandishing a firearm in furtherance of a
crime of violence.
Felon-in-possession count
A reasonable jury could conclude Richardson possessed a
Hi-Point C9, which is a “firearm” as defined in 18 U.S.C. section
921(a)(3). Detective Zeller extracted five photos and four videos
from Richardson’s LG cell phone showing that he flashed a black
handgun. Strassell testified that the gun in the photos was a C9.
He explained that the C9 has many unique features that distinguish
it from other handguns on the market, including its scalloped ser-
rations, the magazine shoe’s shape and size, the active indicator’s
location, and the Hi-Point logo. Strassell then showed how Rich-
ardson’s gun had the C9’s unique features, confirming that the gun
pictured was a C9. He also explained that Hi-Point hasn’t approved
any replicas, including airsoft guns, and the company is not aware
of any infringing products on the market.
That wasn’t enough, Richardson contends, because the gov-
ernment had to show that he possessed the C9 as a felon during the
June 19 robbery. Or, in his words, “viewing the metadata . . . in the
light most favorable to [the government] (i.e., that [a] photo was
taken on June 17th)” doesn’t establish that the C9 “was used in a
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22 Opinion of the Court 22-11921
robbery two days later.” Citing how he wore the same clothes and
hairstyle in a photo with a March 30 capture date, Richardson ar-
gues that the June 17 photos could’ve been pictures of pictures
taken earlier with another phone.
The premise of Richardson’s contention is that the govern-
ment had to show he possessed the firearm as charged on June 19—
but this is wrong. We’ve held that “it suffices if a date reasonably
near [the on-or-about designation] is established” at trial. See United
States v. Grapp, 653 F.2d 189, 195 (5th Cir. Unit A Aug. 1981) (con-
cluding no variance existed where the indictment alleged May 27,
1977, but the trial evidence reflected “the middle of 1977”); see also,
e.g., Russell v. United States, 429 F.2d 237, 238 (5th Cir. 1970) (“It
seems well settled that an allegation as to the time of the offense is
not an essential element of the offense charged in the indict-
ment . . . .”); Winslett v. United States, 124 F.2d 302, 303 (5th Cir.
1941) (“It has been held too often . . . that the date of an alleged
offense as stated in the indictment is not binding so as to limit the
proof to that specific date . . . .”).
The metadata for two of the photos from Richardson’s
phone was sufficient evidence that he possessed a C9 within a rea-
sonable time—two days—of the indictment’s June 19 allegation.
The metadata showed a capture time of June 17, 2018 after
5:00 A.M. The capture time, Detective Zeller testified, reflects the
date that someone took the picture on that phone. The jury was
free to credit that testimony, especially considering Detective
Zeller’s additional testimony that there was no indication that the
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22-11921 Opinion of the Court 23
June 17 photos were screenshots, were transferred over from an-
other phone, or were pictures of other pictures. Plus, the March 30
photo’s metadata listed a modified date of June 15. The metadata
for the two June 17 photos, in contrast, didn’t mention any modi-
fied or download date, which showed that Richardson posed for
them on June 17.
Brandishing counts
Next, we consider whether there was sufficient evidence
that Richardson brandished a firearm in furtherance of the Hobbs
Act robberies. 18 U.S.C. § 924(c). We have held that “lay opinion
is sufficient to establish that a device is a firearm.” United States v.
Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999). That’s true even when,
as here, no firearm is introduced at trial. See id. at 1270–71; United
States v. Woodruff, 296 F.3d 1041, 1049 (11th Cir. 2002); United States
v. King, 751 F.3d 1268, 1274–75 (11th Cir. 2014).
Here, the delivery drivers testified that Richardson robbed
them with a black handgun “at close range”—specifically, pointing
it at their chest or higher. Hunt, 187 F.3d at 1271; cf. King, 751 F.3d
at 1274 (noting how the “weapon [was] thrust directly in [the wit-
nesses’] faces”). The drivers testified that they believed the weap-
ons pointed at them were real guns.
Pearce, for example, explained that there was “nothing out
of the ordinary about” the gun pointed at him. And Madero testi-
fied that he “would swear that it was made of iron or steel or what-
ever material they make it from.” This testimony creates “a rea-
sonable inference that the object in [Richardson]’s hand was a real
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24 Opinion of the Court 22-11921
gun and not a toy.” See Hunt, 187 F.3d at 1271; see also United States
v. Beverly, 99 F.3d 570, 572–73 (3d Cir. 1996) (affirming a section
924(c) conviction, although “the only evidence presented with re-
spect to the firearms charge was the testimony of [a lay witness]
that [the defendant] threatened him with a gun”); United States v.
Taylor, 54 F.3d 967, 975–76 (1st Cir. 1995) (same, relying on three
eyewitnesses’ testimony); United States v. Lankford, 196 F.3d 563,
567–68, 575–76 (5th Cir. 1999) (same, relying solely on one eyewit-
ness’s testimony); United States v. Lawson, 810 F.3d 1032, 1039–40
(7th Cir. 2016) (same, although “the only evidence that there was a
‘firearm’” was one eyewitness’s testimony).
In addition, the C9 matched the drivers’ descriptions of the
gun pointed at them. Because Richardson was pictured carrying
the C9 two days before the first robbery, a reasonable jury could
find he used the same C9 during the robberies instead of a toy rep-
lica.
In response, Richardson argues that neither Pearce nor
Madero could conclusively identify the gun from the robberies as
a real gun. The drivers testified, Richardson contends, that they
were not familiar with guns and that Richardson’s gun only “ap-
peared” or “looked” real. And Pearce was shown pictures of seven
black handguns on cross-examination, including one airsoft, but he
couldn’t identify which ones were real.
But Richardson’s arguments miss the mark. The drivers
didn’t have to testify “to a scientific certainty” that Richardson’s
gun could have fired a projectile through explosive action. Hunt,
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22-11921 Opinion of the Court 25
187 F.3d at 1271. It was enough that the drivers testified Richard-
son’s gun appeared real and that they reacted as if it wasn’t a toy.
See United States v. De Leon-Quinones, 588 F.3d 748, 752 (1st Cir.
2009) (reasoning that evidence showing “the [victims] reacted as if
the gun was real, following [the defendant]’s various orders,” sup-
ported the firearm element); Parker v. United States, 801 F.2d 1382,
1384 (D.C. Cir. 1986) (“The act of threatening others with a gun is
tantamount to saying that the gun is loaded and that the gun
wielder will shoot unless his commands are obeyed.” (quotation
omitted)).
Despite Richardson’s insistence that lay testimony can’t es-
tablish a fact if the witness qualifies his perception of it by saying
something “appeared” or “looked” real, we and other circuits have
accepted such testimony as proof the underlying fact existed. See
United States v. Seastrunk, 580 F.2d 800, 801–02 (5th Cir. 1978) (af-
firming 18 U.S.C. section 2113(d) conviction for robbery with a
dangerous weapon, reasoning victim’s testimony that the defend-
ant displayed what “looked to [her] like a gun butt of an automatic
weapon, dark in color” allowed an inference that the defendant
6
used a gun (emphasis added)). Indeed, the drivers’ testimony that
6
See also United States v. Buggs, 904 F.2d 1070, 1075–76 (7th Cir. 1990) (officers’
lay testimony that “they had seen what ‘appeared to them to be a large pistol[,
i]t appeared to each of them to be a .357 magnum but neither was sure,’” sup-
ported section 924(c) conviction (emphasis in original)); Lawson, 810 F.3d at
1039–40 (eyewitness testimony that “the gun looked like a Cobra .380” sup-
ported section 924(c) conviction although the witness “admitted that [the gun]
‘could have been’ a well-made replica”).
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26 Opinion of the Court 22-11921
the gun “appeared” real was the sort of competent lay opinion tes-
timony the federal rules of evidence contemplate. See Asplundh
Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1196–98 (3d Cir. 1995)
(explaining that “prototypical” lay testimony “relates to the appear-
ance of persons or things,” such that courts have allowed lay testi-
mony to establish, for example, a person’s drunkenness or speeding
in a car).
Psychiatric evidence
Richardson’s final contention on appeal is that the district
court violated his right to a fair trial by excluding Dr. Du Bois’s
evaluation and competency-hearing testimony, and the proposed
stipulation. He argues that this evidence showed his mental con-
dition causes a “lack of memory,” meaning he might’ve forgotten
about his felon status when he possessed the C9. We conclude the
district court’s exclusion of the evidence didn’t violate his right to
7
a fair trial.
Embodied in the right to due process “is the idea that crimi-
nal defendants must be afforded the opportunity to present evi-
dence in their favor.” United States v. Hurn, 368 F.3d 1359, 1362
(11th Cir. 2004). A defendant’s “right to a fair trial is violated” if
excluded evidence “is material in the sense of a crucial, critical,
7
“Whether the exclusion of evidence violated a constitutional guarantee is a
legal question reviewed de novo.” United States v. Litzky, 18 F.4th 1296, 1302
n.2 (11th Cir. 2021) (quoting United States v. Sarras, 575 F.3d 1191, 1209 n.24
(11th Cir. 2009)).
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22-11921 Opinion of the Court 27
highly significant factor.” United States v. Ramos, 933 F.2d 968, 974
(11th Cir. 1991).
When a defendant argues that the exclusion of evidence de-
nied him due process, we apply a two-step framework. First, we
ask whether “th[e] right was actually violated.” Hurn, 368 F.3d at
1362. If yes, we consider “whether th[e] error was ‘harmless be-
yond a reasonable doubt.’” Id. at 1362–63 (quoting Chapman v. Cal-
ifornia, 386 U.S. 18, 24 (1967)).
Richardson’s argument fails at both steps. At step one, Rich-
ardson did not have the right to present Dr. Du Bois’s findings. In
Clark v. Arizona, 548 U.S. 735 (2006), the Supreme Court upheld a
state rule that categorically excluded evidence “about a defendant’s
mental incapacity owing to mental disease or defect” unless he
pleaded an insanity defense. Id. at 756–57, 776. The Court ex-
plained that the “rule serves to preserve the [s]tate’s chosen stand-
ard for recognizing insanity as a defense and to avoid confusing and
misunderstanding on the part of jurors.” Id. at 779. That’s because
“allowing mental-disease evidence on mens rea can . . . easily mis-
lead” a jury. Id. at 776.
We applied this same reasoning to the Insanity Defense Re-
form Act in United States v. Litzky, 18 F.4th 1296 (11th Cir. 2021).
Absent raising an insanity defense, the Act makes psychiatric evi-
dence inadmissible “to excuse conduct.” Id. at 1303 (quoting United
States v. Westcott, 83 F.3d 1354, 1358 (11th Cir. 1996)). Although
the defendant in Litzky disavowed any insanity defense, she at-
tempted to present psychiatric evidence to negate the mens rea of
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28 Opinion of the Court 22-11921
a specific intent crime. Id. We held that excluding the proffered
psychiatric evidence was not a due process violation because the
report did not focus on the defendant’s state of mind during the
alleged crimes. Id. The psychiatric evidence, we found, “would
only confuse the jury and distract from the relevant issues.” Id. at
1305.
Here, like the report in Litzky, nothing about Dr. Du Bois’s
findings spoke to Richardson’s knowledge at the time he possessed
the C9. Dr. Du Bois evaluated Richardson’s competency in 2020,
but the robberies occurred two years earlier, in June 2018.
Dr. Du Bois didn’t evaluate Richardson to determine if he remem-
bered his 2013 conviction during the 2018 robberies. Dr. Du Bois
evaluated whether Richardson’s condition—in 2020—rendered
him “unable to understand the nature and consequences of the pro-
ceedings against him or to assist properly in his defense.” 18 U.S.C.
§ 4241; cf. Litzky, 18 F.4th at 1305 (“[W]hether [the defendant]
knew what she was doing [at the time of the offense,] not whether,
as a general matter, she had mental health issues . . . [,] was the rel-
evant question.”). For that reason, admitting Dr. Du Bois’s report
and testimony “would only confuse the jury and distract from the
relevant issues.” See Litzky, 18 F.4th at 1305.
In addition, the felon-in-possession charge is a general-intent
offense. United States v. Vereen, 920 F.3d 1300, 1308 (11th Cir. 2019);
United States v. Moore, 76 F.4th 1355, 1362 (11th Cir. 2023) (citing
Vereen, 920 F.3d at 1308). “In the vast majority of cases, psychiatric
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22-11921 Opinion of the Court 29
evidence is inadmissible to negate mens rea in general-intent prose-
cutions.” United States v. Bates, 960 F.3d 1278, 1288 (11th Cir. 2020).
Richardson contends that United States v. Russell, 957 F.3d
1249 (11th Cir. 2020), controls our step-one analysis, but it doesn’t.
Russell vacated a felon-in-possession conviction—appealed while
Rehaif was pending—because “[t]he jury was never given the op-
portunity to decide whether [the defendant] knew [about his pro-
hibited status].” Id. at 1254. The district court had excluded any
evidence about the defendant’s subjective state of mind because
the felon-in-possession statute required applying “an ‘objective
standard.’” Id. at 1253.
Here, unlike in Russell, the district court explained to the
jury that Richardson’s knowledge of his felon status was an ele-
ment of the felon-in-possession charge. And the district court did
not exclude all evidence bearing on Richardson’s knowledge of his
felon status in 2018. The district court only excluded the report
and testimony from Dr. Du Bois about Richardson’s mental state
in 2020.
In any event, at step two, any error in excluding
Dr. Du Bois’s findings was harmless beyond a reasonable doubt.
See Hurn, 368 F.3d at 1362–63. The content of Dr. Du Bois’s evalu-
ation was inculpatory rather than exculpatory. Both his report and
testimony mentioned that Richardson remembered his prior con-
viction despite his mental condition because he mentioned that he
had taken plea deals in the past. There was also evidence Richard-
son served thirty-three months in prison for his 2013 conviction,
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30 Opinion of the Court 22-11921
and we’ve said that fact isn’t easily forgotten. Cf. United States v.
Roosevelt Coats, 8 F.4th 1228, 1238 (11th Cir. 2021) (concluding that
a felon generally knows he is a felon because a felony “is simply not
the kind of thing that one forgets” (quotation omitted)).
CONCLUSION
Hobbs Act robbery is a crime of violence. Richardson hasn’t
shown any Grand Jury Clause violation as to the felon-in-posses-
sion count because the indictment alleged that he knew about his
prohibited status. The government’s evidence—the drivers’ testi-
mony and photos of Richardson with his C9 before the robberies—
was sufficient to show Richardson possessed and brandished a fire-
arm. And the district court did not deny Richardson a fair trial by
excluding the expert psychiatric evidence. For these reasons, we
affirm his convictions.
AFFIRMED.