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United States v. Hunter

United States Court of Appeals, Seventh Circuit

August 5, 2019

United States of America, Plaintiff-Appellee,
v.
Otis Hunter and Deshawn Evans, Defendants-Appellants.

          Argued April 5, 2019

          Appeals from the United States District Court for the Eastern District of Wisconsin. Nos. 17-CR-29-2 and 17-CR-29-4 - J.P. Stadtmueller, Judge.

          Before Flaum, Kanne, and Scudder, Circuit Judges.

          KANNE, CIRCUIT JUDGE.

         Police arrested five men involved in a string of Milwaukee armed robberies in late 2016. Three of the defendants cooperated with the government and pled guilty. The two remaining defendants, Otis Hunter and Deshawn Evans, proceeded to trial where a jury convicted them. Through counsel, the pair challenges the district court's handling of jury selection and denial of their Batson challenge. They also challenge our circuit precedent and argue that the district court violated the Sixth Amendment's Confrontation Clause when it prevented them from cross-examining government witnesses about the specific prison terms they avoided through their cooperation. After obtaining authorization from the court, Hunter made additional, pro se arguments challenging how the trial court handled witness testimony and whether the government provided sufficient evidence to support his conviction. All challenges are rejected and we affirm.

         I. Background

         Authorities arrested five men in connection with a series of crimes in late 2016: Dominique Rollins, Otis Hunter, Kelly Scott, Deshawn Evans, and Anthony Lindsey. Rollins, Scott, and Lindsey pled guilty and testified for the government, but Hunter and Evans proceeded to trial.

         The government connected the defendants to the following crimes. First, on November 17, 2016, Hunter, Rollins, and Scott committed an armed robbery of a Roman's Food Market. They held up an employee, made him open the cash register, struck him on the head with a pistol, and then took the money and a large quantity of Newport cigarettes. Surveillance footage captured the robbery. Rollins and Scott testified at trial that they robbed the store with Hunter. They also narrated the surveillance footage and identified Hunter and his pistol. At the time of the robberies, Doris Brown-Lindsey's mother and Scott's fiancee-lived at a house on 15th Place where the defendants regularly congregated. She later testified that she saw Hunter with many packs of Newport cigarettes. She also viewed the surveillance footage and identified the robbers.

         Three days later, on November 20, two men committed an armed carjacking of a food delivery driver outside of Aurora Sinai Hospital. The robbers struck the driver on the head with a pistol, took his phone, car keys, and wallet, and fled in his black Cadillac CTS. Surveillance footage captured the robbery. Scott and Lindsey viewed the footage at trial and identified the pair as Hunter and Evans.

         Then on November 22, three men with stocking-covered faces robbed a George Webb restaurant. Two of the robbers brandished pistols. They took $70 in cash and some receipts from the register and held up employees. The three fled the scene in a black Cadillac. As before, surveillance footage captured the robbery. Scott and Lindsey confessed to robbing the restaurant with Hunter and identified Hunter and Scott at trial as the pair who brandished firearms.

         A day after the George Webb robbery, on November 23, police found the black Cadillac CTS parked near the home on 15th Place where the defendants met. Inside the car, they found receipts from the George Webb restaurant and a nylon stocking. DNA recovered from the stocking linked it to defendant Anthony Lindsey.

         On November 25, two men attempted to rob a Walgreens pharmacy at gunpoint. One of the two men brandished a pistol and pointed it at the cashier. When the cashier failed to open the register, the robber struck him on the head with the pistol, knocking him to the ground. The robbers also failed to open the register. They instead attempted to rob the customers as a consolation but recovered no valuables. Surveillance footage captured the attempted robbery. Lindsey, Scott, and Doris Brown viewed the footage at trial and identified the robbers as defendants Hunter and Evans, with Evans brandishing the firearm and striking the cashier. Brown also testified that she overheard Hunter discussing the Walgreen's robbery at her house.

         On December 4, two men carjacked the owner of a Ford Focus. They cornered the victim against the side of the car, one pressed a firearm into the victim's stomach, and they robbed him, taking his credit cards, phone, and wallet before making their escape in his vehicle. About 30 minutes after the carjacking, the robbers used the victim's credit cards at a Foot Locker store. The Foot Locker's surveillance footage from the time of the purchase showed Hunter there, accompanied by a minor. The victim identified the pair as the carjackers through photographs and later identified Hunter in court as the car-jacker who pressed the pistol into his stomach. Brown, Scott, Lindsey, and Rollins each viewed the surveillance footage and identified Hunter.

         On December 5, the stolen Ford Focus turned up parked behind the house on 15th Place. Police arrested Evans, the minor, and Anthony Lindsey in the car. Hunter -on-the-run- was arrested five days later in Ohio. Hunter's vehicle contained new Foot Locker merchandise and multiple Foot Locker receipts dated December 4, which reflected purchases made with the credit cards taken during the Ford Focus carjacking.

         The grand jury returned an 11-count indictment against the five men. Relevant to this appeal, Hunter was charged with conspiracy (18 U.S.C. § 371), robbery of the Roman's Food Market under the Hobbs Act (18 U.S.C. § 1951), carjacking the Cadillac (18 U.S.C. § 2119), robbery of the George Webb restaurant under the Hobbs Act, attempted robbery of the Walgreens under the Hobbs Act, and carjacking the Ford Focus. Hunter was also charged with brandishing a firearm during each of these crimes in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Evans faced charges for conspiracy, carjacking the Cadillac, and the attempted robbery at Walgreens. He was also charged with brandishing a firearm during these crimes.

         Hunter and Evans-who are both African Americans- proceeded to a jury trial. As a preface to jury selection, the court questioned all potential jurors about their experiences testifying under oath in the judicial system and the courts. However, multiple jurors failed to disclose relevant information related to this line of questioning. During jury selection, the government struck several jurors for cause and used its peremptory strikes. The entire jury pool included just three potential African American jurors. The initial voir dire included only two. One of these two, Juror 12, was eventually empaneled.

         The government questioned the other potential African American juror, Juror 7, about an allegedly racially-charged Facebook post on her profile. The government also learned that Juror 7's family had significant contacts with the criminal justice system and she personally had other abject experiences with the courts. Specifically, Juror 7's son has been adjudicated delinquent on multiple occasions, and her ex-husband was occasionally imprisoned following numerous convictions. During one of her ex-husband's arrests, authorities seized her firearm, which she later petitioned a court to recover. Juror 7 had also been through multiple eviction proceedings, a bankruptcy, and received adverse judgments for failing to pay utility bills. Altogether, during the first round of voir dire questioning, Juror 7 never disclosed a number of her contacts with the courts and criminal justice system.

         The government moved to exclude Juror 7 for cause, but the district court denied the motion. Before defense counsel even raised an objection, the district court specifically warned the government that if it moved to strike Juror 7, the court would conduct a Batson hearing. The government nevertheless used one of its peremptory strikes against Juror 7. Before the district court swore in the selected panel, the defendants raised a Batson challenge.

         During the Batson hearing, the government explained that it struck Juror 7 due to her numerous abject engagements with law enforcement and the courts. In response, defense counsel laid out examples that it argued demonstrated the government's disparate treatment of similarly-situated white jurors. It pointed out that the government never attempted to strike three other jurors who also had similar judicial encounters. Moreover, the defense pointed out that Juror 35, a white male, had been recently charged with firearm-related offenses but found not guilty by reason of temporary insanity. Additionally, the defense suggested that the government's questions about Juror 7's Facebook posts demonstrated the impermissible, racial motivation for the strike. For its part, the government explained that it was not previously aware of Juror 35's identity or background and directed the court's attention to a list of potential jurors that the court gave to the parties a week earlier. That list did not include Juror 35. The court determined that it needed to investigate the matter. It ordered the parties to submit same-day briefing on the Batson challenge and adjourned for the day.

          On the second day of trial, the district court determined that the clerk's office failed to include information about Juror 35 and several others in the materials it distributed to the parties.[1] The court allowed the parties to conduct supplemental voir dire for a few jurors, beginning with Juror 5, whom defense counsel identified during its Batson challenge as an example of the government's disparate treatment. On further questioning, despite initially claiming to have never been involved with the courts, Juror 5 admitted that he experienced a foreclosure and a bankruptcy years earlier but claimed he did not understand the court's earlier questions about previous court experience.

         The parties then questioned Juror 35, a white man. The additional questions revealed that Juror 35 suffered from PTSD and was found not guilty by reason of a temporary mental deficiency to three counts related to an incident involving his discharging a firearm. Juror 35 also disclosed a ...


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