United States v. Don Juan Maxwell
473 F.3d 868
8th Cir.
2007
Check Treatment
Docket

*1 car, items did car, America,

not demonstrate that he UNITED owned the STATES Appellee, and that he was not the driver of the vehicle.

Although physical mere proximity is in MAXWELL, Appellant. Don Juan sufficient to posses establish constructive No. 06-1631. sion, jury Bradley could find that had United States Court of Appeals, control over the firearm it since was seized Eighth Circuit. immediately from location below his seat it was found protruding where from under Sept. Submitted: plain neath in view. See United Filed: Jan. Johnson, (8th 647-48 Cir.

1994) (finding passenger controlled a fire

arm gun protruded when bag from within him).

two feet of Ormerod testified that

Bradley’s repeated movements to reach

down or check the area where the firearm suggested

was found attempting he was to

hide it. See United States v. Maloney, 466 Cir.2006). gun was loaded,

fully Bradley resisted Ormer- scene,

od attempted flee the

being custody taken into with the assis

tance of a taser. See United States v.

Walker, 846-47 Cir.

2005) (body that appeared movements an attempt

be a weapon hide and fleeing support

the scene an inference of construc possession).

tive We conclude the evi presented by

dence

sufficient to support jury’s verdict that

Bradley had constructive of the

gun.

Accordingly affirm judgment we

the district court. *2 Reginald

Raymond Meyer, Martin L. Woodward, Harris, argued, James G. Office, Louis, MO, St. Attorney’s Plain- tiff-Appellee. Witherspoon, argued,

Brian S. Federal Louis, Office, MO, Defender’s Public St. Defendant-Appellant. Greenville, IL, Maxwell, pro Don Juan se. BRIGHT, WOLLMAN,

Before BOWMAN, Judges. Circuit BOWMAN, Judge. Circuit jury guilty A found Don Juan Maxwell intent of two counts ap- On distribute controlled substance. argues peal, Maxwell the District erred in his Batson2 chal- Court1 alleged lenge, government which in a peremptory racially used its strikes discriminatory remove three manner to the five African-American veniremembers. affirm. We five African-Americans on a There were thirty-one persons from which the panel Maxwell’s trial. jury was to be selected for dire, used three After voir challenges to peremptory its seven three of the four African-American strike defense used from the venire. The males strike the challenge to peremptory from the venire. female African-American remaining male The one African-American The defense made jury. seated on objection, arguing that timely Batson use of strikes its from ve- remove African-Americans racially and therefore motivated nire was Kentucky, Stephen Limbaugh, Unit- 2. Batson v. Honorable N. Judge Dis- the Eastern ed States District 90 L.Ed.2d of Missouri. trict rights. violated Maxwell’s constitutional nor the Court defense observed Juror 26’s “smirking chuckling,” The District found that Maxwell had Court court credit- government’s observations, presented stating facie of racial dis- ed the case that it would response, “dispute” crimination. them. Id. at articulated 74-75. its *3 striking the three veni- African-American Finally, the

re members. it Juror struck 25 because he was em- as a ployed teacher and because gov- the government

The it explained that struck ernment believed that he strong lacked Juror 29 because one of his immediate the community, ties to as he in had lived family facing drug charges members was only his residence four months. The Dis- expressed and an opinion because he the trict Court remarked that Juror 5 and government interpreted favoring as the le- 12 had in Juror each resided his respective galization drugs. of certain The defense “for a period home short of time” and Juror similarly countered that 21 was a neither was struck govern- the situated white woman whom the government ment. Id. at 69. The re- ment did not strike from the venire. The sponded that and Juror 5 Juror 12 had government responded noting that Ju- living respective each in been his home for ror 21 similarly was not situated because roughly years, two unlike Juror who juror’s member, father, family this her had in only had lived his home four for months. murder, been convicted not government The argued further that nei- with intent to distribute controlled sub- teacher, ther 5 nor Juror Juror was a Moreover, government stance. stated making jurors these dissimilar to Juror that it did not strike Juror it because addition, In government it noted that juror’s believed that the during statement Juror college professor struck who voir dire that she did not “think fa- [her African-American, was not and Juror got ther] treated hard enough” because teacher who was not African-American somebody got only “[h]e murdered and he living and had in who been her residence years,” four position. favorable to its year. than a less Trial Tr. at 26. hearing government’s After explana- government The stated that it struck tions, expressed the District Court skepti- Juror 26 government because the observed government’s cism reasons him “chuckling smirking” during ques- and Juror 26 25: tioning regarding credibility police very, I think these very, very are inade- testimony government that the —behavior quate two African- viewed as antagonistic position. to its Id. American males when defendant is addition, at 68. be- an African-American male and when we lieved strong that Juror 26 lacked ties to only have one African-American who’s the community because the had lived jury----I also male on the am very, in his only current residence two months very concerned having about counsel employed and had job been at current his my judgment rather lame excuses year. one responded defense two peremptory those strikes.... juror’s had not alleged observed the antagonistic behavior and Nevertheless, that the District at 75. Id. the District Court Court had not afforded the government’s defense an credited race-neutral ex- opportunity inquire into the re- planations and denied Maxwell’s Batson action. Although neither challenge, the District noting specifically that it would findings great those integrity” “give courts defer counsel’s [government] “honor 21, 106 n. of Juror ence.” 476 U.S. at 98 S.Ct. 1712. to the observations respect Therefore, we review the District Court’s demeanor. Id. negative error, ruling for clear United argues that the Dis- appeal, Maxwell On finding clearly erred trict Court Cir.), striking the explanations for (2003), according 157 L.Ed.2d 300 veniremembers three African-American great findings, deference to the court’s concluding and in were Roebke, States v. engage purpose- government did (8th Cir.2003), keeping in mind that ful race discrimination. persuasion regard “the ultimate burden properly that the District Court responds *4 with, ing racial motivation rests and never challenge. rejected Maxwell’s strike, party opposing shifts from” the the Batson, Supreme the Court described Purkett, 768, 514 at 115 U.S. S.Ct. analysis determining three-part a Here, struck a the used three party impermissibly a whether of its seven strikes to remove juror on account of the potential 96-98, three of the five African-American venire at 106 S.Ct. race. 476 U.S. First, objected to these objecting to the strike members. Maxwell party the strikes, government came forward showing a facie that the and the must make 96-97, explanations at race-neutral for each racially motivated. Id. with strike was that it government explained The then shifts The S.Ct. 1712. burden strike. 106 to present appeared to a race- struck Juror 29 because he striking party to the legalization drugs Id. at favor the of and because explanation neutral for the strike. 97-98, striking facing one of his immediate relatives was 106 S.Ct. 1712. Once the drug charges. charged state Maxwell was party explanation offers a race-neutral offenses, strike, objecting party may drug-related come with several explanation for why or reasons therefore the forward with a reason nondiscrim really pretext appropriate a the strike was proffered explanation is Scott, inatory. McKay, States v. 431 v. for discrimination. United States Cir.2005) (8th Cir.) 1085, 1458, (concluding (noting that 1092 26 F.3d 1467 conspiracy drug of that objecting party an bears the burden juror’s family members a race-neutral case because the establishing pretext once denied, offered), drug convicted of offenses was cert. had been explanation has been 1019, 584, reason for appropriate, L.Ed.2d an 513 115 S.Ct. 130 U.S. — denied, (1994). strike), -, 127 Finally, the court must cert. U.S. 498 district (2006). In re objecting to 166 L.Ed.2d 48 party whether the S.Ct. determine government’s explanation, to the prov- sponse carried the burden of the strike has argued Maxwell that Juror was similar the strikes were motivated ing Batson, not struck ly situated to Juror but was purposeful race discrimination. 21, however, 1712; government. at 106 S.Ct. see Purkett Elem, 765, 767, similarly situated because she had 514 U.S. S.Ct. (1995) curiam). family member who was convicted a close (per 131 L.Ed.2d 834 murder, drug And Juror not a offense. recognized Court has Supreme comments father that she believed her a district court’s Bat- findings underlying harshly enough for his credibility punished was not analysis depend largely on son in Max potential reflected no bias reviewing has directed crime evaluations and Darden, favor, Juror 29’s comments United well’s whereas Cir.1995), legalization of drugs about the tended favor Maxwell. Because Maxwell failed to L.Ed.2d 569 government’s proffered establish argues that the Maxwell District were pretext reasons for the strike did him an opportunity Court not afford discrimination, the did race District Court develop the record Juror 26’s not err in Maxwell’sBatson chal record behavior. A review of the belies lenge respect with Juror 29. challenged this assertion. The defense government’s body-language explanation, and the considered District Court and re 26 because the lacked struck Juror jected the The District argument. Court’s community, to the strong ties and because findings “great on this issue are entitled to juror’s body language suggested to the deference,” no reason and we see to dis significant that he held doubts turb them. See at 696. credibility police tes about the officers’ gov Because failed to counter Maxwell at timony. The absence explanations ernment’s race-neutral legitimate, tachment is a race-neutral rea persuasive pretext, evidence District juror. son See United States *5 in reject Court committed no clear error (8th Cir.1994) Atkins, 1401, 1406 25 F.3d ing challenge with re Maxwell’s that (recognizing party may strike a spect Juror 26. who “lacks an attachment veniremember community”), or to the commitment cert. explained denied, 953, 371, 513 115 S.Ct. 130 struck employed Juror 25 because he was (1994); Day, L.Ed.2d 322 United States v. teacher, as a which the be (8th Cir.1991) (same), 979 might lieved make the biased in fa denied, cert. 114 S.Ct. of ju vor Maxwell. The inference a that Additionally, L.Ed.2d 868 employment might ror’s make the juror’s body may and language demeanor more to a criminal sympathetic defendant legitimate, serve as race-neutral reasons to valid, is a for striking race-neutral reason potential juror. strike United States v. See, juror. e.g., (concluding id. at 696 Davidson, (8th Cir.) 449 F.3d 852-53 that employment drug in the industry is a (“Body language ap and demeanor can be striking potential ground race-neutral jurors.”), propriate reasons to strike — case). Moreover, juror in a drug gov U.S.-, ernment this applied consistently rationale (2006); L.Ed.2d 451 v. Mar- States race, regard without striking two tinez, Cir.1999) other veniremembers who were employed (affirming where district court concluded as teachers and were not African-Ameri negative that body a veniremember’s lan- Atkins, can. See 25 F.3d at 1406 (stating guage permissible, was a race-neutral rea- government’s that use strike). gov consistent of son for government’s peremptory ernment as a reason employment per Although neither the nor District Court emptory supported directly strikes race-neutral attorney Maxwell’s witnessed Ju- strikes). behavior, motivation In addition ror the court to con expressly 26’s cred- employment, cerns ited about Juror observation and was in position govern- the best to evaluate the lack of credibility. ment’s See United ties motivated the strike. Hill, Cir.2001); above, As discussed the absence commu- valid, misgivings. proper, with some It is I is a attachment nity trial agree, judge’s to defer to the exercise juror. Consequently, striking a reason for in permit of discretion strikes here failed to that Maxwell has conclude we however, add, question my to stand. I demonstrating pretext carry his burden contrary view that a determination 25.3 respect to Juror judge district would have been free of articulated The reasons error. African-Ameri- striking the three ment for rely trial Appellate judges must on were race neutral can veniremembers seeing in judges vigilant doorkeepers to be The District Court did not appropriate. do not slam the door on prosecutors Maxwell’s Batson clearly err in African-Americans called to serve on a failed to estab- challenge Maxwell because jury by using pretext to mask race dis- pur- government engaged lish litany approved crimination. in its use of race discrimination poseful strikes recited in this and other cases Accordingly, af- strikes. we should not stand where the reason or rea- judgment firm of the District Court. given pretextual.

sons are BRIGHT, concurring the result. result.

I concur court that de- agree

I with the district striking of Af- objection to the

fendant’s by the prose- veniremen rican-American America, UNITED STATES of made out a facie case cution Appellee, against African-Americans discrimination *6 jury. selecting DODD, Joseph also known as Moreover, of the rec- my examination Shakespeare, Appellant. ord, provided by explanations I view the jurors prosecutor striking No. 06-2397. as weak. question Appeals, United States Court ju- judge The district noted Eighth Circuit. very, “I 25 and think these are rors Nov. 2006. Submitted: inadequate reasons for strik- very, very Filed: Jan. able, judge, ...” trial who is an ing. jurist, and fair-minded ac- experienced, views, prosecutor’s although

cepted the challenge, the smirk on behalf of ruling Dis- observe the smile or on the Batson 26.”). erroneously jurors trict Court attributed the Because the rec- 25 or either explanation negative-body-language ment’s properly that the District Court ord shows striking Juror 26 to the given by the the actual reasons considered striking separate Juror 25. The reasons employ- 25'— when, during de- apparently arose issue deter- lies—-and ment and lack of argument government’s ex- fense’s that those reasons were race neutral mined pretextual, con- planations were the defense say pretextual, we cannot in these and not government's various race-neutral fused the District Court’s con- circumstances that the jurors. two See Trial See, e.g., clearly erroneous. clusion was (“The government Transcript at 71 did not (standard re- at 695 inquire jurors 25 or 26 as to seek to view). not, and I must admit I did not whether or