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United States v. Brown

May 10, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
KEVIN C. BROWN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:00-CR-98-RL--Rudy Lozano, Judge.

Before Rovner, Diane P. Wood, and Evans, Circuit Judges.

The opinion of the court was delivered by: Diane P. Wood, Circuit Judge

Argued February 15, 2002

After threatening his ex-girlfriend and her brother with a fully loaded assault rifle, Kevin Brown was convicted of being a felon in possession of a firearm and ammunition and sentenced to 87 months' imprisonment. On appeal, he challenges the federal prosecutor's use of peremptory challenges to strike three African-American women, the district court's refusal to admit evidence that a witness had declined to take a voice stress test, and the government's failure to turn over to the defense in discovery a firearms trace report. We find no fault with any of these actions and therefore affirm.

I.

In 1996, Brown's girlfriend, Joilyn Moore, gave birth to their son Deantaye. The two soon broke up and maintained only infrequent contact. In early 2000, Brown moved in with his mother, who lived across the street from Joilyn, and he began to see Deantaye again. On February 27, 2000, Brown cut Deantaye's hair at the home of Joilyn's mother. At that time, Joilyn asked Brown if he would come over the next day and take a prescription to be filled for Deantaye. Later in the evening, Joilyn returned to her apartment alone.

That night, the door buzzer for Joilyn's apartment rang several times, but Joilyn ignored it because she was not expecting anyone. Minutes later, Brown began banging on her door and said he was there to pick up Deantaye's prescription. Joilyn refused to open the door and told him the prescription was at her mother's house. Brown accused Joilyn of lying, demanded to know who else was in the apartment, and eventually stormed off after warning her that she had better not come outside.

Joilyn (who had no telephone) went to a neighbor's apartment to alert her brother, Kelly Moore, to the situation. When Kelly arrived in his Suburban, Joilyn met him at his car and started to tell him what had happened. At that point, Brown drove through the apartment alley and got out of his car. Kelly told Joilyn to hide behind his Suburban and he and Brown began to argue. Kelly testified that Brown reached into his car and displayed a rifle covered by a sheet. In response, Kelly pulled back his shirt to reveal a 9 mm. pistol, which he was licensed to carry. After a few tense minutes of negotiation, the men agreed to put their weapons in their cars and fight hand-to-hand. When Kelly ran at Brown, Brown rushed to his car and called someone on a cell phone. With Brown thus distracted, Joilyn ran into her apartment building and called her aunt, who in turn notified the police.

When Officer John Basaldua arrived at the scene, he saw a black male sitting in the Suburban and Brown standing next to his car. At that time, Brown bolted. After a two block chase and brief struggle, Basaldua apprehended Brown. Thomas Pawlak, the second officer on scene, was following half a block behind and witnessed Basaldua activate his siren and turn down the alley. He also saw Kelly standing next to the Suburban and Brown's car, parked about 10 yards away. Kelly flagged down Pawlak and told him that Brown had threatened him with an assault rifle. The passenger window of Brown's car was rolled down, and a fully loaded assault rifle lay on the front seat.

II.

Brown's first challenge is to the government's decision to exercise three of its six peremptory challenges to exclude African-American women. As to Camisha Lane, the Assistant U.S. Attorney alleged that he excluded her because she was an assistant school teacher and the youngest juror seated. The second African-American female, Dorothy Robinson, was initially challenged for cause both because her husband had been convicted in the 1970's of a crime involving a firearm and because she failed to disclose that fact on a written questionnaire. The third peremptory was used to strike Betty Hart. Hart had testified as a trial witness for her mother, who was acquitted of killing Hart's stepfather. The prosecutor also noted that Hart had testified against a former attorney who had defrauded her in a civil case. The district court accepted all three explanations as neutral and nonbiased. The seated jury consisted of five Caucasian females, four Caucasian males, two African-American males, and one Asian-American male.

The prosecution may not use a peremptory challenge to strike a juror on the basis of her race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). To succeed on a Batson claim, the defendant must establish a prima facie case that a challenge has been used to exclude a juror based on race. If the prosecutor then articulates a race-neutral explanation, the trial court will permit the strike unless the defendant establishes that the proffered reason is pretextual. Id. at 98. The prosecutor's race-neutral explanation must be clear and reasonably specific to persuade the district court. Purkett v. Elem, 514 U.S. 765, 768 (1995). We review the district court's decision for clear error. Hernandez v. New York, 500 U.S. 352, 369 (1991).

The government struck Lane because she was a teacher. This court has previously upheld the striking of teachers, who are often thought to be especially sympathetic to defendants. United States v. Smallwood, 188 F.3d 905, 915 (7th Cir. 1999); United States v. Roberts, 163 F.3d 998, 998 (7th Cir. 1998). In Roberts, this court upheld an explanation that an African-American juror was excluded for being a teacher even though a white teacher served on the jury because there was no evidence that defense counsel called that fact to the district court's attention. Roberts, 163 F.3d at 999. Here the Assistant U.S. Attorney specifically proffered that he would strike any teacher in the venire and no teachers were ultimately seated as jurors. In the face of this precedent, we see no clear error in the district court's acceptance of the government's explanation.

The reasons for striking Robinson and Hart appear to us not just race-neutral but close to the threshold necessary to strike for cause. Brown is correct that Robinson's husband's firearms conviction occurred over 20 years ago and that she felt the punishment was fair, but we have no trouble accepting that the prosecutor legitimately feared this past experience could nonetheless color her views. The belief that Hart might be pro-defendant because she had testified for the defense at her mother's murder trial seems ifanything ...


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