U.S. v. Gibson

• Decision Date: 04 March 1997
• Docket Number: No. 96-2324,96-2324
• Citation: 105 F.3d 1229
• Parties: UNITED STATES of America, Appellee, v. John E. GIBSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1229

105 F.3d 1229

UNITED STATES of America, Appellee, v. John E. GIBSON, Appellant.

No. 96-2324.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 18, 1996.

Decided Jan. 30, 1997.

Rehearing Denied March 4, 1997.

David E. Woods, O'Fallon, MO, argued, for Appellant.

Kenneth R. Tihen, Asst. U.S. Atty., St. Louis, MO, argued, for Appellee.

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and LONGSTAFF, ^* District Judge.

LONGSTAFF, District Judge.

Appellant John E. Gibson was charged with one count of conspiracy to distribute and possession with intent to distribute in excess of one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846, and two counts of distributing heroin, in violation of 21 U.S.C. § 841(a)(1). Following a trial, a jury returned a verdict finding Gibson guilty on all counts. On May 16, 1996, the district court ¹ sentenced Gibson to 240 months of imprisonment. In this direct appeal, Gibson challenges his conviction on seven grounds and his sentencing on one ground.

I.

The evidence at trial indicated that Gibson was involved in the transportation of Mexican black tar heroin from Los Angeles, California to St. Louis, Missouri for distribution. Steven Gibson, the appellant's nephew and a former resident of St. Louis who was then living in Atlanta, Georgia, was also involved in the distribution and transportation of the heroin.

John Gibson, a resident of Denver, Colorado, and Steven Gibson made arrangements for transporting substantial sums of United States currency from St. Louis to Los Angeles by using three female couriers. The couriers would fly to Los Angeles where John Gibson would purchase black tar heroin using the money brought by the couriers. John Gibson would then package the heroin for transportation by the couriers back to St. Louis.

The three couriers testified at trial regarding the conspiracy. In addition, there was a controlled purchase of heroin made from John Gibson in late October of 1993 and another made on May 2, 1994. Surveillance was conducted on these purchases by law enforcement authorities and photographs were taken. The purchaser of the heroin in the controlled buys, Bernard Boles, testified at trial regarding the controlled buys and other drug transactions. Phone conversations between Boles and John Gibson were recorded. In addition, the evidence at trial included hotel records, phone toll records, clone pager intercepts, telephone pen register records, "sky pager" records and car rental receipts.

II.

Gibson first contends that the Government violated his constitutional right to equal protection of the laws by exercising its peremptory challenges to exclude two African American venire persons. The district court permitted the Government six peremptory challenges and Gibson ten peremptory challenges in selecting twelve jurors to hear the case. Of the jurors eligible after strikes for cause, two were African-American and thirty were white. The Government removed the two African-American jurors, No. 11 and No. 17, with two of its peremptory challenges.

After the Government made its peremptory strikes, Gibson made a Batson objection to the Government's peremptory challenge to Jurors No. 11 and No. 17. The Government responded by asserting that it struck Juror No. 11 because she had indicated that she had been the victim of a rape and had received unfair treatment by law enforcement officials regarding the incident. The Government indicated that it struck Juror No. 17 because he was a renter, he had a low education level, he was employed in jobs that indicated that he would not have a great stake in the community, he was single with three children, and he appeared uninterested. After the Government gave its explanations for striking the two jurors, Gibson did not argue that the reasons provided by the Government were pretextual or that similarly situated whites were not struck. The district court concluded that the reasons put forth by the Government were valid, nondiscriminatory reasons for striking the jurors and allowed the Government's peremptory strikes to Jurors No. 11 and No. 17.

In Batson v. Kentucky, 476 U.S. 79, 88, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986), the Supreme Court held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." In evaluating claims of discrimination under Batson:

First, the defendant must make a prima facie showing the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991); United States v. Feemster, 98 F.3d 1089, 1091 (8th Cir.1996). Because the evaluation of the prosecutor's state of mind lies within a trial judge's province, a district court's finding on whether a peremptory challenge was exercised for a racially discriminatory reason is reversed only if clearly erroneous. United States v. Darden, 70 F.3d 1507, 1531 (8th Cir.) (citations omitted), cert. denied, --- U.S. ----, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996); United States v. Carr, 67 F.3d 171, 175 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 1285, 134 L.Ed.2d 230 (1996).

The Government's peremptory strike of Juror No. 11 was clearly for a race-neutral reason. Juror No. 11 had been the victim of a serious crime and expressed her dissatisfaction with law enforcement officials' treatment of the situation. Likewise, the Government's reasons for its peremptory strike of Juror No. 17 were nondiscriminatory. First, the Government indicated that it exercised its peremptory challenge on Juror No. 17 because he did not have a significant stake in the community. ² See United States v. Atkins, 25 F.3d 1401, 1406 (8th Cir.) (juror lacking an attachment to the community was validly stricken from the jury by the government), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 322 (1994); United States v. Jackson, 914 F.2d 1050, 1052-53 (8th Cir.1990) (government seeking jurors with commitment to the community is race-neutral reason for exercising its peremptory challenges). Second, the Government stated that Juror No. 17 appeared uninterested in the trial proceedings. See Usman v. United States, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990) ("intuitive assumptions that are not fairly quantifiable" are valid, race-neutral reasons); United States v. Swinney, 970 F.2d 494, 496 (8th Cir.) (Government may exercise its peremptory strikes "using intuitive guesses about jurors' attitudes towards the Government and the subject matter of the case, relying on the jurors' ... general demeanor, and personal traits"), cert. denied, 506 U.S. 1011, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). Third, the Government indicated that Juror No. 17 was not well educated. See United States v. Hunter, 86 F.3d 679, 683 (7th Cir.1996) (education level is a valid, nondiscriminatory factor), cert. denied, --- U.S. ----, 117 S.Ct. 443, 136 L.Ed.2d 339 (1996); United States v. Hughes, 911 F.2d 113 (8th Cir.1990) (education level of the juror is a valid characteristic that may be considered by the government). Lastly, the Government stated that it exercised its peremptory strike on Juror No. 17 because he was single yet had three children. See also United States v. Thomas, 971 F.2d 147, (8th Cir.1992) (juror's marital status is a valid characteristic that may be considered by government), cert. denied, 510 U.S. 839, 114 S.Ct. 122, 126 L.Ed.2d 86 (1993); United States v. Prine, 909 F.2d 1109, (8th Cir.1990) (same), cert. denied, 499 U.S. 924, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991).

As a result of the Government's articulated race-neutral reasons for its peremptory strikes, the burden then returned to Gibson to demonstrate pretext. United States v. Elliott, 89 F.3d 1360, 1366 (8th Cir.1996) (citation omitted); United States v. Scott, 26 F.3d 1458, 1467 (8th Cir.), cert. denied, 513 U.S. 1019, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994). As previously indicated, at the trial level Gibson failed to present any arguments that the Government's articulated reasons for striking the jurors were pretextual or otherwise discriminatory. "[W]here the opponent of the peremptory strikes makes no attempt to demonstrate pretext," facially neutral reasons for exercising peremptory strikes will be upheld. Elliott, 89 F.3d at 1366.

For the first time, on appeal, Gibson attempts to demonstrate that the Government's reasons for exercising its peremptory strikes were pretextual by demonstrating that similarly situated white jurors were not struck by the Government. However, a "similarly situated" argument is untimely and cannot be made if it is raised for the first time on appeal rather than at the trial level. Id. at 1367. Based on the foregoing, the Court concludes that the district court did not err in concluding that the Government's use of its peremptory challenges to strike Juror No. 11 and Juror No. 17 were not exercised for a racially discriminatory reason.

III.

Gibson's second argument on appeal is that the district court erred by failing to strike Juror No. 28 for cause. During voir dire, Juror No. 28 indicated that her father worked for the St. Louis City Police Department and after retirement, as a Marshall. In response to a question about her ability to judge a witness' credibility, Juror No. 28 stated that since she grew up around policemen, she may have a tendency to give a little bit more credibility to them. Gibson challenged Juror No. 28 for cause, but the district court denied the...