U.S. v. Kimbrel

• Decision Date: 03 July 2008
• Docket Number: No. 07-5221.,No. 06-6426.,06-6426.,07-5221.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert KIMBREL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

532 F.3d 461

UNITED STATES of America, Plaintiff-Appellee, v. Robert KIMBREL, Defendant-Appellant.

No. 06-6426.

No. 07-5221.

United States Court of Appeals, Sixth Circuit.

Argued: June 12, 2008.

Decided and Filed: July 3, 2008.

ARGUED: Karimbumkara Jayaraman, Law Offices of K. Jayaraman, Memphis, Tennessee, for Appellant. Jennifer Lawrence Webber, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: Karimbumkara Jayaraman, Law Offices of K. Jayaraman, Memphis, Tennessee, for Appellant. Daniel T. French, Assistant United States Attorney, Memphis, Tennessee, for Appellee. Robert Kimbrel, Memphis, Tennessee, pro se.

Before: KEITH and SUTTON, Circuit Judges; ACKERMAN, District Judge.^*

OPINION

SUTTON, Circuit Judge.

Robert Kimbrel challenges his convictions and sentence for two firearms-related crimes on several grounds, including a Batson challenge. We vacate and remand for a new trial.

I.

Memphis police officers stopped Kimbrel for driving a car with expired registration tags. After discovering marijuana in the car, the officers arrested Kimbrel, and while conducting a safety sweep of the vehicle they discovered a semiautomatic pistol with obliterated serial numbers. A federal grand jury indicted Kimbrel for being a felon in possession of a firearm, see 18 U.S.C. § 922(g), and for possession of a firearm with obliterated serial numbers, see id. § 922(k).

During voir dire, defense counsel exercised peremptory strikes against several potential jurors, all but one of whom were white. When defense counsel moved to strike another white juror, Lori Anne Goetz, the government raised an objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After hearing from the parties, the court sustained the objection, finding that the government had established a prima facie case of discrimination and that Kimbrel, "the party with the burden of persuasion regarding a nondiscriminatory basis[,] ha[d] failed" to produce a facially neutral justification for striking Goetz. JA 219. The jury convicted Kimbrel on both counts, and the court subsequently sentenced him to 262 months of incarceration and five years of supervised release.

II.

A.

Kimbrel challenges his convictions on several grounds, but one of them—his sufficiency-of-the-evidence claim—deserves consideration before the others. If he is right about that, nothing else (in this case) matters because the Double Jeopardy Clause would bar re-prosecution. See Joseph v. Coyle, 469 F.3d 441, 453-54 (6th Cir.2006).

While sufficiency challenges receive priority treatment, they do not receive easy treatment. A defendant mounting a sufficiency challenge bears a "heavy burden," United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.1986) (internal quotation marks omitted), because he must show that, "after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That burden, as Kimbrel acknowledges, is still heavier here because he failed to move for an acquittal at the close of all the proof, meaning that he must show a "manifest miscarriage of justice," United States v. Abdullah, 162 F.3d 897, 903 (6th Cir. 1998) (internal quotation marks omitted), or, as we have otherwise expressed the point, he must show that "the record is devoid of evidence pointing to guilt," id. (internal quotation marks omitted).

Kimbrel cannot shoulder this burden. He challenges both firearm-possession convictions on the same ground: that he never possessed the gun. Two pieces of evidence undermine that contention. David Pritchard, a prosecuting attorney who met with Kimbrel and his counsel in a proffer session, testified that after signing a proffer letter acknowledging that his statements could be used against him at trial, Kimbrel admitted he had possessed a firearm in March 2003 while a convicted felon. And one of the Memphis police officers involved in Kimbrel's arrest, Officer Charles Teeters, testified that while he was sitting in his squad car—with Kimbrel sitting behind him in the back seat—he saw his partner, Officer Charles Smith, recover a handgun while kneeling near the driver's seat of Kimbrel's car.

Nor, contrary to Kimbrel's contention, does this amount merely to "tenuous circumstantial evidence" that does not suffice to prove that he possessed the gun. Br. at 45. In the first place, Kimbrel's own admission that he possessed a gun at that time is not tenuous or circumstantial. In the second place, the government may indeed prove possession of a firearm by circumstantial evidence, which is why we will not overturn a felon-in-possession-of-a-firearm conviction "merely because [the jury] had to draw reasonable inferences to find [the defendant] guilty." United States v. Arnold, 486 F.3d 177, 181 (6th Cir.2007) (en banc). Had Kimbrel raised his insufficiency claim properly below, it would be difficult to say that no rational juror could have inferred that Kimbrel possessed the gun on the date of the arrest. But we need not even say that: In the light cast by Teeters' and Pritchard's testimony, it is clear that the trial record is hardly "devoid of evidence pointing to guilt," Abdullah, 162 F.3d at 903 (internal quotation marks omitted), meaning that Kimbrel's insufficiency claim must fail.

B.

Kimbrel next argues that the district court applied the wrong legal standard in sustaining the government's Batson objection to one of his peremptory challenges. Because this argument concerns an alleged mistake of law, it makes no difference whether we review this Batson challenge for clear error, as we have sometimes said, see United States v. Copeland, 321 F.3d 582, 599 (6th Cir.2003), or review it de novo. In either event, a mistake of law generally satisfies clear-error, de-novo or for that matter abuse-of-discretion review. See Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir.2003).

Batson applies to peremptory challenges based on race or gender. See United States v. Mahan, 190 F.3d 416, 424 (6th Cir.1999). And it applies to peremptory challenges by the government and by criminal defendants. See Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).

The same three-step inquiry governs challenges to peremptory strikes in each setting. See Mahan, 190 F.3d at 424 & n. 1. At step one, the party opposing the strike must establish a prima facie case of race or gender discrimination. See United States v. Watford, 468 F.3d 891, 911-12 (6th Cir.2006). As here, that required the government to show that "the relevant circumstances raise an inference that the proponent of the strike excluded prospective jurors from the petit jury because of their race." Id. at 912. At step two, the proponent of the strike (here Kimbrel) must proffer a facially valid, race-neutral explanation for the challenge. See id. At step three, if the proponent has produced a facially valid explanation for the strike, the trial court must decide whether the opponent has proved purposeful discrimination. See id. To do so, the court must "assess the [proponent's] credibility under all of the pertinent circumstances, and then ... weigh the asserted justification against the strength of the [opponent's] prima facie case under the totality of the circumstances." Paschal v. Flagstar Bank, 295 F.3d 565, 574 (6th Cir.2002) (internal quotation marks omitted).

In addressing (and reviewing) a Batson challenge, two points deserve emphasis. Although the burden of production switches after step one and again after step two, "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (emphasis added); see also McCurdy v. Montgomery County, 240 F.3d 512, 521 (6th Cir.2001). And the trial court may not short circuit the process by consolidating any two of the steps. See Purkett, 514 U.S. at 768, 115 S.Ct. 1769; United States v. McFerron, 163 F.3d 952, 955 (6th Cir.1998).

Two cases illustrate these principles. In Purkett, the Supreme Court held that the trial court cannot inquire at step two—where the proponent's burden is merely to provide a facially valid explanation—whether the tendered explanation is "plausible" or even "minimally persuasive." See 514 U.S. at 768, 115 S.Ct. 1769 (internal quotation marks omitted). The strike proponent can fail at step two only if "a discriminatory intent is inherent in [its] explanation" for the strike. Id. (internal quotation marks omitted and emphasis added). To rule otherwise, the Court explained, would impermissibly shift the burden of persuasion from the strike opponent to its proponent. See id.

In McFerron, after the government opposed McFerron's peremptory strike and established its prima facie case, the district court evaluated McFerron's proffered explanations for striking each of the five prospective jurors at issue. See 163 F.3d at 953-54. In each instance, without first acknowledging that McFerron had produced facially valid explanations, the court assessed the persuasiveness of McFerron's justifications and rejected each one as pretextual. See id. In reversing the conviction, we explained that the district court had conflated the second and third steps and, in the process, placed the burden of persuasion on the strike proponent. See id. at 955. Because McFerron had come forward with reasons for the strikes that were not facially discriminatory, the district court erred by not proceeding immediately to step three, where Batson and Purkett make clear that the burden remains on the strike opponent. See id. The record in McFerron, moreover, removed any doubt about the district court's improper allocation of the burden of persuasion: It stated repeatedly that McFerron, the...