U.S. v. Cure

• Decision Date: 04 August 1993
• Docket Number: No. 91-6124,91-6124
• Citation: 996 F.2d 1136
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William CURE a/k/a Calvin Coach, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1136

996 F.2d 1136

UNITED STATES of America, Plaintiff-Appellee, v. William CURE a/k/a Calvin Coach, Defendant-Appellant.

No. 91-6124.

United States Court of Appeals, Eleventh Circuit.

Aug. 4, 1993.

Kathleen J. Cooper, Asst. Federal Public Defender, Miami, FL, for defendant-appellant.

Dexter Lehtinen, U.S. Atty., Linda Collins Hertz, Anne M. Hayes, Harry Wallace, Miami, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and COX, Circuit Judges, and HOBBS ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

Appellant William Cure was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). ¹ The district court denied a pretrial motion to suppress all evidence from the vehicle stop which led to the discovery of the weapon. The case was tried before a jury and Cure was convicted. The district court enhanced Cure's prison time pursuant to 18 U.S.C. § 924(e), which provides for an increased sentence for those who have committed three prior crimes. Cure was sentenced to a prison term of 180 months.

Cure raises three issues on appeal: 1) whether the district court erred in denying the motion to suppress evidence; 2) whether the court erred in allowing the prosecution to strike four black venirepersons; and 3) whether the court erred by sentencing Cure on the basis of prior crimes which took place when Cure was sixteen years old. We affirm the district court.

I.

On the night of the vehicle stop, Cure and two friends had gone to a social club. The three men left the club and drove away in a Cadillac. Cure sat alone in the back seat behind the driver. Manuel Alvarez, a Hialeah police officer who saw the car, testified at the suppression hearing that the automobile was travelling without its lights on. Cure, however, testified that the lights were on. Alvarez stated that he flicked his lights on and off, but the driver of the Cadillac did not respond. He began to follow the car, turning on his red and blue lights. While following the car, Officer Alvarez noticed that the occupant in the back seat bent down a few times. After the car pulled over, Officer Alvarez drew his gun and instructed the occupants to place their hands where he could see them. As he moved along the car, he saw a gun in plain view on the floor of the rear passenger section. He immediately returned to his car and called for backup. Officer Gonzalez responded to the call. Gonzalez ordered the occupants of the automobile to exit and he retrieved the gun from the back of the car. The officers ran a computer check which revealed that the automobile was not stolen, but the gun had been reported as stolen property. The owner of the car was cited for driving without a license, but was not cited for failure to use the headlights. Cure testified that Officer Alvarez did not mention the headlights during the stop. Cure, who had given the false name of Fred Moore, was placed under arrest for possession of a stolen weapon and read his Miranda rights.

Cure argues that the alleged traffic offense was a pretext to allow the officer to stop a car containing three black men driving in a high-crime area. He cites the fact that the driver of the car was not given a citation for driving without headlights and contends that the officer was not candid at the suppression hearing because he first stated that he issued the citation for driving without lights, but then admitted that he needed to check his ticket book. At trial, it was established that the driver had not been cited for the headlight offense.

In reviewing a ruling on a motion to suppress evidence, this court must construe the facts in the light most favorable to the prevailing party. Moreover, appellant must show that the district court clearly erred in its findings of fact. United States v. Campbell, 920 F.2d 793, 794-95 (11th Cir.1991) (citation omitted). The government points out that the district court made a factual finding that the officer stopped the automobile because it was driving without headlights and thus, the stop was not pretextual. The district court also found that the officer's testimony describing the stop was credible. ² Cure did not demonstrate that the district court clearly erred. As such, we defer to the court's assessment of the witness's credibility and affirm the denial of Cure's motion to suppress the evidence obtained from the vehicle stop.

II.

At trial, the prosecutor used four of his six preemptory challenges to strike black potential jurors. The defense asserted that these challenges violated the equal protection clause of the United States Constitution because they were racially motivated. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Without finding that the defense had established a prima facie case of discrimination, the district court asked the prosecutor to articulate his reasons for striking the potential jurors. The prosecutor responded that he struck two of them because they recently had served on a jury which rendered a decision adverse to the government. He questioned their ability to assess the evidence in the case. The court noted that the jurors had stated that they served on this previous jury and that the prosecutor had struck two non-black jurors for the same reason.

The prosecutor stated that the third person struck had impressed him as someone whose facial expressions and demeanor indicated that he would not follow the court's instructions and the juror's demeanor suggested that he was discounting this type of case. The district court did not comment on this strike. As to the last black venireperson struck, the prosecutor noted that she was not paying attention and was reading a book instead of following the proceedings. The court agreed with the prosecutor that the venireperson was reading and appeared uninterested in the case. The court further noted that two of the chosen jury members were black. Finally, the court ruled that all of the jury strikes would be allowed.

Appellate courts give great deference to a district court's finding that the government rebutted a prima facie case of discriminatory jury selection and reverse only if the district court's finding is clearly erroneous. See United States v. Bennett, 928 F.2d 1548, 1551 (11th Cir.1991); United States v. David, 844 F.2d 767, 769 (11th Cir.1988). Here, the district court did not state that a prima facie case had been established; however, it asked the prosecutor to articulate reasons for striking the venirepersons. Because it does not affect the outcome, we will assume that Cure had satisfied the requirements for a prima facie case and will review the court's decisions based on a clearly erroneous standard of review. The trial court made findings regarding three of the struck jurors which indicated race neutral reasons for striking them: two had sat on a previous jury which had rendered an adverse decision for the government and one was not paying attention. The court's findings are not clearly erroneous and we affirm its decision to allow these strikes.

Cure argues that the reason given for striking the third venireperson was insufficient to rebut the Batson claim because the prosecutor relied solely upon the juror's demeanor. The prosecutor relied upon both the juror's facial expressions and demeanor. Defense counsel made no offer of proof at the time of her objection to the preemptory challenge; she put forth no evidence suggesting that the juror was not making facial gestures and otherwise indicating that he discounted this type of case. The district court found that the prosecutor had a valid race-neutral reason for striking this person from the jury. In the absence of any proof offered by the defense, we hold that the court's findings were not clearly erroneous and affirm the decision to allow the strike. ³

III.

Finally, Cure argues that two of his prior criminal convictions were improperly considered by the district court to enhance his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Act provides, in pertinent part, that

(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g) of this title for a violent felony or a serious drug offense, or both ... such persons shall be fined not more than $25,000 and imprisoned not less than fifteen years....

(2)(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult....

Cure argues that his prior crimes do not fall within the language of the statute because he was under 17 at the time they were committed and thus, he should be considered a juvenile for purposes of the statute. It is undisputed that the two crimes did not involve the use or carrying of a firearm, knife or destructive device. Therefore, Cure claims that he was not eligible for the sentence enhancement.

The government contends that Cure was adjudicated as an adult for these two offenses so they do not constitute acts of juvenile delinquency. The government further asserts that the statute does not exclude crimes by minors from the definition of violent felony and that the two clauses are in the disjunctive, establishing that they are distinct. Under Florida law, a minor aged 14 or older may be tried as an adult if the circuit court finds that such treatment is appropriate. ⁴ Florida law also specifically states that "the child shall thereafter be handled in every respect as if he were an adult for any subsequent violation of Florida law...." Fla.Stat. § 39.022(5)(d). ⁵

This is an issue of first impression in this circuit. Recently, however, the fourth circuit addressed the issue...