UNITED STATES OF AMERICA v. JAYLAN MILES RA SHAWN GORE
No. 23-3640
United States Court of Appeals for the Sixth Circuit
Argued: June 13, 2024; Decided and Filed: October 8, 2024
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 24a0227p.06
Before: GILMAN, STRANCH, and LARSEN, Circuit Judges.
COUNSEL
ARGUED: Keith A. Yeazel, Columbus, Ohio, for Appellant. Charles L. McCloud, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Keith A. Yeazel, Columbus, Ohio, for Appellant. Mary Beth Young, UNITED STATES ATTORNEY‘S OFFICE, Columbus, Ohio, for Appellee.
OPINION
LARSEN, Circuit Judge. Jaylan Gore was charged with possessing a stolen firearm, in violation of
I.
On August 14, 2022, several burglars stole fifteen firearms from an outdoors store in Obetz, Ohio. A few days later, law enforcement received a complaint about a group of young men with guns gathered around a vehicle in a parking lot. Officers were dispatched to the scene, and as they approached the vehicle, some of the men—including Jaylan Gore—fled to a nearby apartment building. Mikael Waters, who owned the vehicle, was in the driver‘s seat when the officers arrived. The officers arrested Waters, and a search of the vehicle revealed one of the stolen guns. During a monitored phone conversation in jail, Waters revealed that Gore had left the gun in his car. Gore was under felony indictment for two Ohio firearms offenses at the time. Officers later interviewed Gore regarding the burglary. When police asked Gore whether they would find his DNA on the gun found in Waters’ car, Gore admitted that he had “touched” that gun. He also admitted that he knew the gun was stolen.
A federal grand jury charged Gore with possessing a stolen firearm, in violation of
Gore‘s case proceeded to trial. During voir dire, the government exercised a peremptory strike of juror 164, a black man. Gore‘s counsel challenged the strike, noting that juror 164 was “the only person of color left in this panel,” and asked that the government be required to “explain [its] reasons.” R. 57, Trial Tr., PageID 425. The prosecutor explained that juror 164 was only 20 years old and that, “all things being equal,” he thought a juror with “a little bit more life experience” would be better able to evaluate some of the issues in the case. Id. at 426. After
After trial, the jury found Gore guilty on both counts. The district court sentenced Gore to 18 months’ imprisonment on each count, to be served concurrently. Gore timely appealed.1
II.
We consider Gore‘s Second Amendment challenges before turning to his objection to the strike of juror 164.
A.
We review de novo Gore‘s constitutional challenges to
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Questions “central” to this analogical inquiry are “[w]hy and how the regulation burdens the right” to keep and bear arms. Rahimi, 144 S. Ct. at 1898. We are to determine whether the law “comport[s] with the principles underlying the Second Amendment“; we are not in search of “a ‘dead ringer’ or a ‘historical twin.‘” Id. (quoting Bruen, 597 U.S. at 30).
1.
We first consider
The government contends that we may resolve Gore‘s
As the district court reasoned, there is ample historical support for prohibitions on “the purchase or receipt of stolen goods, chattel, and other effects,” and “there is no indication that firearms were exempt from such laws.” United States v. Gore, 2023 WL 2141032, at *4 (S.D. Ohio Feb. 21, 2023). We include just a few examples here. A 1714 New Hampshire statute prohibited buying or receiving, from a person “of whom there is just cause of suspicion, any money, goods, wares, merchandizes, or provisions” that “appear” to be “stolen.” Acts and Laws of His Majesty‘s Province of New-Hampshire: In New England 39–40 (1771) (1714 law). A 1788 New York law, meanwhile, provided that, “if any person shall buy or receive any goods or chattel of any value whatsoever, that shall be feloniously taken or stolen from any other person, knowing the same to be stolen, he or she, shall be taken and deemed an accessary to such felony after the fact.” 2 Laws of the State of New York Passed at the Sessions of the Legislature Held in the Year 1785, 1786, 1787 and 1788, Inclusive 668 (1886) (1788 law). And in 1831, Ohio made it a misdemeanor punishable by three to seven years of imprisonment to “receive or buy any goods or chattels, of the value of fifty dollars or upwards, that shall have been stolen or taken by robbers, knowing the same to be stolen or taken by robbery, with intent to defraud the owner.” 3 Statutes of Ohio and of the Northwestern Territory, Adopted or Enacted from 1788 to 1833 Inclusive 1727 (Salmon P. Chase ed. 1835) (1831 law). Additional examples abound. See Gore, 2023 WL 2141032, at *4 n.1. History “confirm[s] what common sense suggests“: the government may regulate the possession, purchase, and sale of goods that are known or believed to be stolen. See Rahimi, 144 S. Ct. at 1901. We are aware of no evidence that firearms have ever been exempt from such regulations.
Gore brings only a facial challenge to
Section 922(n) makes it “unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport . . . any firearm or ammunition or receive any firearm or ammunition.”2
a.
The parties first dispute whether
Because the plain text of the Second Amendment covers the conduct at issue, the government “bears the burden to ‘justify its regulation‘” by showing that it “fits within” our nation‘s “historical tradition of firearm regulation.” Rahimi, 144 S. Ct. at 1897 (citation omitted). The government has met that burden by pointing to the founding-era practice of pretrial detention, which is “relevantly similar” to
At the outset, we describe the “why” and “how” of
The “why” and “how” of
In the 17th century, colonial authorities in Massachusetts and Pennsylvania reformed their approach to bail. See Funk & Mayson, 137 Harv. L. Rev. at 1835–42. Under this reformed approach, pretrial defendants had a right to bail “by sufficient sureties, except in capital cases where the proof is evident or the presumption great.” Id. at 1842. Eventually, the reformed approach would emerge as the “consensus” rule across the young nation. Matthew J. Hegreness, America‘s Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 925 (2013). But at the time the Bill of Rights was ratified, about half of the States still followed the English model, see Funk & Mayson, 137 Harv. L. Rev. at 1842–43, while the federal government and the remaining States opted for the reformed path, see, e.g.,
Although the reformed rule provided a right to bail as a general matter, the exception for capital offenses was significant. “[A]ll serious crimes at the time of the founding” were punishable by death. Bucklew v. Precythe, 587 U.S. 119, 129 (2019) (citation and internal quotation marks omitted); see, e.g.,
Section 922(n)‘s prohibition is comparable to the founding-era history of pretrial detention “in both why and how it burdens the Second Amendment right.” Rahimi, 144 S. Ct. at 1901. Like pretrial detention,
Gore offers two reasons to doubt the analogy to pretrial detention, but neither ultimately undermines it. First,
That leads to Gore‘s second objection to the pretrial-detention analogy—he suggests that
That is not to say that a mismatch between the founding era‘s “serious” or “capital” crimes and today‘s felonies would necessarily preclude
Ultimately, however, Gore has not brought an as-applied challenge to
B.
We next consider Gore‘s objection to the government‘s peremptory strike of juror 164. Under Batson v. Kentucky, 476 U.S. 79, 89 (1986), a prosecutor may not use “peremptory challenges to exclude members of the venire on account of their race.” United States v. Cecil, 615 F.3d 678, 685 (6th Cir. 2010).3
A Batson challenge involves three steps. Miller-El v. Cockrell, 537 U.S. 322, 328 (2003); Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam). “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race.” United States v. Atkins, 843 F.3d 625, 631 (6th Cir. 2016) (quoting Cockrell, 537 U.S. at 328). If he does so, then at step two the prosecutor “must offer a race-neutral basis for striking the juror in question.” Id. This explanation need not be “persuasive, or even plausible,” so long as it is race neutral. Purkett, 514 U.S. at 768; see also Braxton v. Gansheimer, 561 F.3d 453, 459 (6th Cir. 2009) (explaining that “a prosecutor‘s reasons may be founded on nothing more than a trial lawyer‘s instincts about a prospective juror” (citation omitted)). If the prosecutor offers a “legitimate” (i.e., race-neutral) reason, then at step three the court must decide “the persuasiveness of the justification.” Purkett, 514 U.S. at 769. This requires the court to “assess the [prosecutor‘s] credibility under all of the pertinent circumstances, and then weigh the asserted justification against the strength of the [defendant‘s] prima facie case under the totality of the circumstances.” Cecil, 615 F.3d at 686 (cleaned up). The burden of persuasion remains with the party challenging the strike. Id.
Gore‘s counsel raised a Batson objection to the peremptory strike of juror 164, who was “the only person of color left” in the venire. R. 57, Trial Tr., PageID 425. After the objection, the following exchange ensued:
Government‘s counsel: Your Honor, on juror 164, it‘s simply a lack of life experience. Very young age. Single. From what I can tell, I‘m not sure that he even lives on his own.
And so, to me, I just—whenever—all things being equal, I would rather have a juror that has a little bit more life experience and has done things like rented cars or owned property.
So, that‘s why—all things being equal, the lack of life experience. Because this is a very short case, that some of the issues are about possession, ownership. There‘s a question of who the registered owner of the vehicle was in this case. I just want somebody with a little more life experience to take those issues up. Gore‘s counsel: Your Honor, I think he has a lot of life experience. He‘s a graduate of a military school. He‘s a member of the Army National Guard.
This is a guy that—you know, he‘s willing to put his face in—in the effort there, you know. He‘s the person who can fight and die for his country, and he‘s not allowed to have a drink. You know, that‘s a heck of a lot of life experience for somebody to step up like that, because he‘s a person who volunteered. He‘s not a draftee.
So, I think he does have some life experience, and he has an education.
Government‘s counsel: Your Honor, I would simply say that [Gore‘s counsel] may have a different point of view, but I‘ve offered you a nondiscriminatory reason why I‘m striking this person.
Court: But with the reasons you‘ve given me, though, how is that related to this particular case?
Government‘s counsel: In this case, there is going to be issues of joint possession, constructive possession, somebody else who is a registered owner of a vehicle, and I would just want somebody who has a little bit more life experience and may have owned their vehicles and had vehicles registered in their names.
What I know about him is he‘s 20 years old. He still lives with his parents and has a part-time job.
Court: You didn‘t ask him any questions as to whether he owns vehicles or whether he‘s had vehicles registered in his name.
Government‘s counsel: I‘m simply looking at the questionnaire and what I perceive as a lack of life experience.
Gore‘s counsel: I don‘t see anything in here about a lack of vehicles.
All the jurors are going to hear the same instructions and have to follow them as to possession and joint possession, constructive possession, and actual possession, so—he‘s a high school graduate.
Court: All right. It‘s a close call, but I‘m going to allow you to strike him.
I don‘t find—don‘t believe that the explanations are implausible, fantastic, silly, superstitious, or otherwise reflect pretext, so I‘ll allow you to strike him.
Gore‘s counsel: Your Honor, I would note for the record that‘s the only person of color left on the panel. Court: The record will so reflect. . . .
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Government‘s counsel: Your Honor, let me just complete the record.
I just want the Court to know that when I went through the other questionnaires—like, again, what I took, you know, the relative youth of somebody, there‘s another 20-year-old that I don‘t think they are ever going to make it up here, but that would again be somebody that I would say has very limited life experience. Those are the kind of things that I look at.
In my experience trying cases, I want someone who has just a—more understanding, has lived on their own, has owned property, has purchased vehicles, things like that.
You can think that‘s—you can disagree with it, but I didn‘t go through for discriminatory reasons and single out juror 164. I just wanted to make that record.
Id. at 426–29.
In this case, the district court never made an express finding as to whether Gore had made a prima facie showing of discrimination. That issue became “moot,” however, once the prosecutor “offered a race-neutral explanation for the peremptory challenge[].” Braxton, 561 F.3d at 461 (quoting Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality)). And Gore does not deny that the proffered justifications for striking juror 164—his youth and relative lack of life experience—are race neutral. Gore therefore asks us to review the step-three determination: whether Gore carried his burden of proving that the prosecutor struck juror 164 because of his race. The district court said that this question was “a close call,” but the court ultimately determined that the prosecutor‘s “explanations” were not “implausible, fantastic, silly, [or] superstitious” and did not “otherwise reflect pretext,” so it rejected Gore‘s Batson challenge. R. 57, Trial Tr., PageID 428. We cannot say that this determination was clearly erroneous.
Whether “a prosecutor intended to discriminate on the basis of race” is, at bottom, “a question of historical fact.” Braxton, 561 F.3d at 458 (citation omitted). Striking the only black juror in the venire can be a cause for concern and, if the prosecutor‘s proffered reason bordered on the implausible, might suggest a discriminatory purpose. That, however, was not the case
Gore offers several counterarguments, but none is persuasive. First, he contends, essentially, that the prosecutor‘s concerns with age and life experience were not good reasons for the peremptory strike. The prosecutor anticipated that issues of joint or constructive possession would be relevant at trial because the gun Gore was accused of possessing had been recovered from a car registered to someone else. So the prosecutor “just want[ed] somebody who ha[d] a little bit more life experience and may have owned their vehicles and had vehicles registered in their names.” R. 57, Trial Tr., PageID 427. In Gore‘s view, the prosecutor‘s concern was unfounded because the jurors would be required to follow the law and would receive instructions on the relevant legal concepts. Gore‘s argument, however, does not diminish the credibility or plausibility of the prosecutor‘s justifications. See Cockrell, 537 U.S. at 339 (“Credibility can be measured . . . by how reasonable, or how improbable, the explanations are . . . .“). That Gore believes that jury instructions should have alleviated the prosecutor‘s concerns does not make it implausible that the prosecutor actually had those concerns. And the concerns are not unreasonable: there is a rational connection between a juror‘s age and life experience and the likelihood that he has a well-developed understanding of the social and practical dynamics of vehicle ownership or possession. “[A] prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried.” Batson, 476 U.S. at 89 (citation and internal
Gore next points out that the prosecutor did not ask juror 164 any questions about his age or his experiences with vehicle registration, ownership, or possession during voir dire and did not seek such information in the juror questionnaire. But the prosecutor‘s failure to do so does not “affirmatively show[]” that the justifications were pretextual. Lancaster v. Adams, 324 F.3d 423, 433 (6th Cir. 2003). Age, after all, is a self-explanatory characteristic. True, the prosecutor could have asked specifically about experience with vehicle registration, ownership, or possession, but it was not unreasonable for the prosecutor to infer at the outset that any such experience would have been comparatively limited given juror 164‘s age. And, significantly, Gore does not claim that the prosecutor asked other jurors about such experiences. In fact, the prosecutor engaged in relatively little direct questioning with the jurors. He posed several questions to the venire regarding biases and preconceptions of the criminal justice system, but he had only one back-and-forth exchange with a particular juror—following up on a question about personal beliefs about the Second Amendment. The prosecutor‘s questioning, in other words, was not so detailed about other matters that his failure to ask about this matter suggests a lack of genuine interest.
The cases Gore cites do not alter this conclusion. In Dretke, the Supreme Court stated that a prosecutor‘s “failure to ask” a panelist follow-up questions about his brother‘s conviction for a food-stamp crime “undermine[d] the persuasiveness of the claimed concern.” 545 U.S. at 250 n.8. But the details and relevance of a family member‘s criminal history are less facially discernible than a juror‘s age. Moreover, the circumstances of Dretke were far more suggestive of discriminatory purpose than those here: of the twenty black members of the venire, the prosecutor there struck nine for cause and ten peremptorily, and treated similarly situated black and non-black jurors differently. Id. at 240–41, 247. In United States v. Odeneal, we faulted the prosecutor for failing to ask follow-up questions about an asserted reason for the strike: the prosecutor worried that the juror would be unable to focus because of an ongoing divorce. 517 F.3d 406, 418, 420–21 (6th Cir. 2008). Again, however, the details and relevance of a juror‘s divorce proceedings are not facially obvious—especially because the parties knew of the
As further evidence of pretext, Gore asserts that the issue of the vehicle‘s owner “never even came up” at trial. Appellant Br. at 18. This argument presumes that a prosecutor‘s credibility turns on his ability to perfectly predict how the trial will unfold. That is not a fair expectation. Cf. Cockrell, 537 U.S. at 339 (“Credibility can be measured . . . by whether the proffered rationale has some basis in accepted trial strategy.“). The prosecutor asserted that he was concerned with the fact that police found the gun Gore was accused of possessing in a car he didn‘t own, at a time when he was not present. Those issues did come up at trial. The government‘s first witness testified that the gun was found in Mikael Waters’ car and that nothing in the car connected Gore to the scene. The government‘s second witness explained why he believed that Gore and Waters were in the same friend group, discussed evidence revealing that Gore had left the gun in Waters‘s car, and recounted the interview in which Gore admitted to having “touched” the gun. And in closing arguments, the prosecution urged the jury to find that Gore left the gun “in someone else‘s car,” but the defense argued that the evidence instead showed that two other individuals had left the gun in the car. R. 57, Trial Tr., PageID 504. Whether Gore had put the gun in the car was a (if not the) central factual issue. Given the basic
We owe “great deference” to the district court‘s determination that, although this was a close call, the prosecutor did not strike juror 164 because of his race. Cecil, 615 F.3d at 685 (citation omitted). The court did not clearly err in that factual determination.
We AFFIRM.
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