U.S. v. Ali

• Decision Date: 21 September 1995
• Docket Number: No. 95-1074,95-1074
• Citation: 63 F.3d 710
• Parties: UNITED STATES of America, Appellee, v. Jibri ALI, also known as Charles L. Pirtle, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 710

63 F.3d 710

UNITED STATES of America, Appellee, v. Jibri ALI, also known as Charles L. Pirtle, Appellant.

No. 95-1074.

United States Court of Appeals Eighth Circuit.

Submitted May 18, 1995.

Decided Aug. 18, 1995.

Rehearing Denied Sept. 21, 1995.

Shannon P. O'Connor, Asst. Federal Public Defender, Omaha, NE (argued), for appellant.

Michael P. Norris, Asst. U.S. Atty., Omaha, NE, argued (Nancy A. Svoboda, on the brief), for appellee.

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Jibri Ali, a/k/a Charles L. Pirtle, appeals from a final judgment entered in the United States District Court ¹ for the District of Nebraska upon a jury verdict finding him guilty of violating 18 U.S.C. Sec. 922(g)(1) (felon in possession of a weapon). The district court sentenced defendant to 51 months imprisonment, three years supervised release, a special assessment of $50.00, and restitution in the amount of $525.00. United States v. Ali, No. 8:CR94-0055 (D.Neb. Dec. 12, 1994) (judgment). Defendant appeals on the basis of the following issues: (1) the government's use of a peremptory strike to eliminate an African American venireperson; (2) the instructions to the jury on the elements of the offense and the government's burden of proof; (3) the sufficiency of the evidence to support the jury's verdict; (4) the denial of his motion for a new trial based on newly discovered evidence; and (5) the denial of downward adjustments at sentencing for acceptance of responsibility and minimal or minor role in the offense. For the reasons discussed below, we affirm the judgment of the district court.

Background

Defendant has a 1989 drug-related felony conviction from Nebraska for which he served four years in prison, from August 30, 1989, to August 30, 1993. On April 3, 1994, at approximately 11:00 p.m., defendant was in the front passenger seat of a black Monte Carlo traveling on 33rd Street in Omaha, Nebraska, when the car was pulled over by Omaha Police Officers Jeff Saalfeld and Mike Smith, who were traveling in a marked cruiser. The only other person with defendant in the Monte Carlo was the driver, Demond James, a/k/a Demond Briggs. The police officers stopped the Monte Carlo because it did not have a front license plate and the license plate in the back was registered to a green Oldsmobile. After the two officers approached the car, one on each side, Officer Saalfeld asked the driver for identification. At that time, Officer Saalfeld noticed what appeared to be a gun slightly protruding from underneath defendant's left leg. He indicated to Officer Smith that a gun was present. Officers Saalfeld and Smith then immediately ordered the two men out of the car. Officer Smith, who was on the passenger side of the car, did not see the gun until after defendant stepped out of the car. The gun was a loaded Raven .25 caliber semi-automatic pistol. The officers placed James and defendant under arrest.

Defendant was tried on one count of being a felon in possession of a firearm. 18 U.S.C. Sec. 922(g)(1). Trial commenced on September 7, 1994. During voir dire, the government used a peremptory challenge to strike the only African American on the venire panel. Defendant objected to the government's peremptory challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Batson ). The government explained the challenge on grounds that the prospective juror had stated that her father once had been charged with unlawful possession of a firearm, even though he had a permit for the firearm. The district court overruled defendant's Batson objection.

The trial lasted two days. Officer Saalfeld testified that the Monte Carlo was pulled over in a well-lit area and that, while he and Officer Smith were approaching the car, he did not observe either defendant or James make any movements. He further testified that, while he was standing by the car on the driver's side, he observed the barrel of the gun slightly sticking out from underneath defendant's left leg. Officer Smith testified that, after defendant exited the car, he observed the gun on the front seat of the car where defendant had been sitting. Defendant also testified at trial. He said that, as the Monte Carlo was being pulled over, James pulled the gun from a pocket and shoved it toward him, telling defendant to hide it. Defendant further testified that he did not move, hide, or even touch the gun, but simply froze. He admitted that he did not tell the police that the gun was not his, but explained that he said nothing because he was afraid both for himself and for James. Mike Hanna, an investigator for the federal public defender's office, also testified for the defense. He testified that he had diligently, but unsuccessfully, tried to locate James prior to the trial.

The jury returned a guilty verdict on September 9, 1994. Defendant moved for judgment of acquittal or for a new trial. On November 29, 1994, at a post-trial hearing on defendant's motions, Hanna testified that, after the trial was over, defendant informed defense counsel that James was in the Douglas County Corrections Center. Hanna then located James, who was being held on an unrelated matter, and interviewed James on November 3, 1994. Hanna tape-recorded the interview, and the transcript was received into evidence at the November 29 hearing. In the interview, James said that the gun was not his (James's) and that it was already on the front seat when he (James) got in the car. He said that the gun did not belong to defendant, nor did defendant know it was there. He also stated that the gun was between him and defendant when the police pulled the car over and that he (James) pushed it toward defendant, who refused to hide it. He also stated that he would testify on defendant's behalf. The district court denied defendant's motions for judgment of acquittal or for a new trial, finding the evidence sufficient to support the conviction and the proffered newly discovered evidence merely cumulative in view of defendant's own testimony at trial. United States v. Jibri Ali, No. 8:CR94-0055 (D.Neb. Dec. 2, 1994) (order).

At sentencing, the district court disagreed with the probation officer's recommendation in the presentence investigation report (PSI) that defendant receive a two-level downward adjustment for acceptance of responsibility, under U.S.S.G. Sec. 3E1.1. The district court agreed with the recommendation that defendant not receive a four-level or two-level downward adjustment for being a minimal or minor participant in the relevant criminal activity, under U.S.S.G. Sec. 3B1.2. The district court concluded that defendant's total offense level was 20, for a guideline range of 51 to 63 months. The district court sentenced defendant to 51 months imprisonment, three years supervised release, a special assessment of $50.00, and restitution in the amount of $525.00. Defendant appealed.

Discussion

Batson objection

Defendant argues that the district court erred in denying his Batson objection. Defendant contends that the government's stated reason for striking the only African American venireperson was pretextual. Thus, defendant argues it was clearly erroneous for the district court to conclude that the government had proffered a permissible reason for striking juror 98 and that the prosecutor was not motivated by race.

To satisfy its burden to come forward with a racially neutral explanation for the strike, the prosecutor said

the reason that the United States struck that prospective juror, your Honor, is because she said her father had been charged with having a gun, illegally possessing a gun, when in fact he did have a permit. This is a gun case, your Honor.... [W]e are dealing with whether or not a gun was legally possessed, whether in fact a gun was even possessed by the defendant. And therefore we believe that since she indicated her father had been wrongfully pursued by the law enforcement for having possession of a weapon, ... we felt that her sympathies would be with the defendant in this case and that she would be prejudiced against the United States' position.

Tr. at 151-52.

To support his pretext argument, defendant emphasizes the fact that juror 98 had also stated on voir dire that her father's experience would not affect her objectivity if selected as a juror. Defendant further points out that another prospective juror stated that her brother had been wrongfully ticketed by someone in the Omaha Police Department and yet that juror was not closely scrutinized by the government the way juror 98 was. Finally, defendant contends that there were other facts regarding juror 98's employment history which indicated that she "would [have been] an appropriate juror for the prosecution." Brief for Appellant at 27-28. Defendant argues that these factors, taken together, demonstrate that the explanation provided by the government was a mere pretext for purposeful discrimination and that the district court's finding to the contrary was clearly erroneous.

We think that the government's stated reason for striking juror 98 is precisely the type of proffer that the Supreme Court had in mind when it explained in Batson that, once a prima facie case has been established by the defendant, the prosecutor "must articulate a neutral explanation related to the case to be tried." 476 U.S. at 98, 106 S.Ct. at 1724. In the present case, not only was the government's reason race-neutral, it was also related to the particular case to be tried. As the prosecutor ably explained, juror 98's belief that her father had been wrongfully pursued by law enforcement authorities for unlawful possession of a firearm might cause her to sympathize with the accused, who was standing trial for unlawful possession of a firearm. In our opinion, the government's proffer was not the type of "implausible" or "fantastic" justification that would justify a conclusion by the district court...