United States of America, Appellee, v. Alfred James Clark, Appellant.
No. 04-1882
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Filed: May 26, 2005
Submitted: December 15, 2004
Appeal from the United States District Court for the District of Minnesota.
WOLLMAN, Circuit Judge.
Alfred James Clark appeals from his conviction on charges of being a felon in possession of a firearm and ammunition in violation of
I.
The St. Paul police responded to a series of 911 calls made from Clark‘s apartment. In December 2001, the first call was made by Loretha Cager, the daughter of Sherry Clark (Sherry), Clark‘s wife. Clark had severely beaten Sherry, had pointed a gun at her head and threatened her, and had fired a round at the floor. Ms. Cager reported the domestic violence and stated that the man involved might still be armed. Clark was arrested and held on state charges, but was released on bond when Sherry bailed him out and signed an affidavit denying that he had assaulted her. In March 2002, Sherry called 911, stating that Clark was again threatening her, despite the no-contact order in place against him. When the police arrived, they noticed that the apartment was in disarray but that nobody was home. An hour later, Sherry called again from the apartment, stating that Clark had destroyed the apartment and threatened her, and relating that he had fired a gun at her several
Clark was charged in a four-count indictment. Counts one and two charged him with being a felon in possession of ammunition and a handgun in violation of
On the first day of trial, jury selection proceeded in usual course, with each party exercising peremptory strikes. The government struck six men and one woman; the defendant struck nine women and two men. The empaneled jury was composed of six men and six women, with a seventh man as the alternate. After the selected jurors’ names had been read into the record, the remaining members of the jury pool excused, and the jury given preliminary instructions, defense counsel raised a gender-based Batson challenge. See Batson v. Kentucky, 476 U.S. 79 (1986). The following morning, the district court solicited comments from both sides related to the Batson challenge. It did not require the government to attempt to justify its strikes. Rather, the court noted the “practical problem” that the issue had not been raised until the remaining jurors had been dismissed, commented that the jury was in fact balanced, and proceeded to trial with the then-empaneled jury.
The jury returned a guilty verdict on counts 1 and 2, but could not reach a verdict on counts 3 and 4. After a series of communications between the court and the jurors, the district court dismissed counts 3 and 4 without prejudice and accepted the partial verdict.
Following numerous delays and several changes of counsel, Clark was sentenced on April 7, 2004. Applying the United States Sentencing Guidelines Manual (U.S.S.G.), the district court established Clark‘s base offense level as 24 in light of his prior convictions.
II.
A.
Clark first argues that the district court improperly rejected his gender-based Batson challenge to the prosecution‘s peremptory strikes. A gender-based peremptory strike resting on impermissible stereotypes constitutes a violation of the Constitution‘s equal protection clause. J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 140 n.11 (1994). A timely raised challenge contending that a strike was based on race or gender requires the district court to apply a three-part burden-shifting test to determine if the strike violates the equal protection clause. U.S. Xpress Enters., Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 812 (8th Cir. 2003). Such a challenge is untimely, however, if it is not “made at the latest before the venire is dismissed and before the trial commences.” United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994).
Clark‘s counsel did not raise the Batson challenge until after the venire had been dismissed, as noted by the district court‘s statement that it “didn‘t hear about the issue until [it] had already let the other jurors go.” Accordingly, the motion in this case was untimely and Clark has waived the challenge.
B.
Clark next contends that he was denied his right to be present at all stages of his trial, a right that is grounded in the confrontation clause of the Sixth Amendment, Blackwell v. Brewer, 562 F.2d 596, 599 (8th Cir. 1977), in the due process clause of the Fifth and Fourteenth Amendments, United States v. Gunter, 631 F.2d 583, 589 (8th Cir. 1980), and in Rule 43 of the Federal Rules of Criminal Procedure. The defendant bears the burden to show that he was absent during a particular stage of the trial. United States v. Leisure, 377 F.3d 910, 915 (8th Cir. 2004), vacated and remanded, 125 S. Ct. 1065 (2005) (remanded for reconsideration of an unrelated sentencing issue in light of United States v. Booker, 125 S. Ct. 738 (2005)). Clark was absent during two meetings between the judge and trial counsel in which jury notes were read and discussed and during an in-chambers conference and brief hearing regarding a note from an individual juror. Although Clark‘s brief implies that he may also have been absent when the jury reported that it had not reached a unanimous verdict and when an Allen charge was given, see Allen v. United States, 164 U.S. 492 (1896), the government counters that because Clark was present earlier the same afternoon in the courtroom and the transcript did not indicate that he had departed, he was very likely present and had at the very least failed to prove absence. Govt. Brief at 44.
- the initial appearance, the initial arraignment, and the plea;
- every trial stage, including jury impanelment and the return of the verdict; and
- sentencing.
C.
Clark also appeals from the denial of his pretrial motion to suppress the firearms that officers retrieved from their search of the attic closet. He argues that his wife did not have authority to consent to a search of the closet. We review the facts supporting the district court‘s denial of the motion to suppress for clear error and review its legal conclusions de novo. United States v. Oates, 173 F.3d 651, 656 (8th Cir. 1999).
The Fourth Amendment does not prohibit entry into a person‘s home when voluntary consent has been obtained, either from the person whose property is searched or from someone with common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). In assessing the reasonableness of a search based on consent, we ask “whether the facts available would have justified a reasonable officer in the belief that the consenting party had authority over the premises.” United States v. Czeck, 105 F.3d 1235, 1239 (8th Cir. 1997). The officer‘s conclusion that the consenting individual had authority to consent need not always be correct, but must always be reasonable. Rodriguez, 497 U.S. at 185-86.
It was reasonable for the officers to believe that Sherry had authority to consent to the search of the attic closet. The house belonged to Sherry and Clark, and the unlocked closet was attached to the bedroom they shared. See United States v. Moran, 214 F.3d 950, 951-52 (8th Cir. 2000). The items inside the closet were not clearly labeled or specifically identified as belonging only to Clark. See id.; Czeck, 105 F.3d at 1239 (noting that everything in the room except the toolbox, which the officers obtained a warrant to search, appeared to belong to the person consenting). We agree with the magistrate judge that Sherry‘s statement that Clark hid things in the closet did not establish that she lacked access to the space or that Clark had exclusive access to it. See Report and Recommendation of July 1, 2002, at 9.
D.
Finally, Clark argues that the sentencing enhancements that the district court applied under the sentencing guidelines for obstruction of justice,
United States v. Booker, 125 S. Ct. 738 (2005), decided in the wake of Blakely, 124 S. Ct. 2531, established that it is unconstitutional for the district court to impose enhancements under a mandatory federal sentencing guidelines scheme based on facts not established
Clark was sentenced to 180 months’ imprisonment, which falls within the applicable range of 151 to 188 months. The district court stated that it agreed with the calculation in the presentence investigation report,4 and it did not indicate a desire to further reduce the sentence below the applicable guidelines range. Sentencing Tr. at 37. The district court instead stated that Clark “represents a substantial danger to the community” and concluded that “a sentence toward the bottom end of this guideline range is just not going to adequately take into account the punishment that is necessary for him, and the protection of the community when he gets out.” Id. at 40. Accordingly, because the record as a whole does not establish a reasonable probability that Clark would have received a more favorable sentence under an advisory guidelines scheme, he has not met his burden of demonstrating prejudicial error under Olano, and thus he is not entitled to be resentenced. See Pirani, slip op. at 13.
The conviction and sentence are affirmed.