U.S. v. McMath

• Decision Date: 19 March 2009
• Docket Number: No. 08-2316.,08-2316.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert McMATH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

559 F.3d 657

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

No. 08-2316.

United States Court of Appeals, Seventh Circuit.

Argued January 16, 2009.

Decided March 19, 2009.

Gordon P. Giampietro, Attorney, Michelle L. Jacobs, Attorney, James L. Santelle, Attorney (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Douglas G. Smith, Attorney (argued), Kirkland & Ellis, Chicago, IL, for Defendant-Appellant.

Before BAUER, FLAUM, and WOOD, Circuit Judges.

FLAUM, Circuit Judge.

Robert McMath was convicted in a one-day jury trial of possessing a firearm after being convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced McMath to sixty-three months in prison, which included a two-level enhancement for perjury and obstruction of justice. McMath challenges both his conviction and sentence on appeal. With regard to his conviction, McMath argues that the district court erred when it did not make factual findings pursuant to his Batson challenge and also that remarks made by the prosecutor during closing arguments denied him of a fair trial. With regard to his sentence, McMath challenges the district court's two-level enhancement of his sentence for obstruction of justice.

For the reasons explained below, we remand this case for further proceedings in light of this opinion. Upon remand, the district court should first determine whether it can make factual findings on the Batson issue. If it is unable to do so or finds that McMath's challenge was meritorious, it must vacate McMath's conviction. If the district court is able to make factual findings and holds that the Batson challenge should be denied, the district court should proceed to resentencing in light of our conclusion that the district court's obstruction of justice enhancement relied on a mistaken factual finding.

I. Background

A. Events of May 8, 2007

On the evening of May 8, 2007, Milwaukee police officers Chad Boyack and Cory Washington were on patrol when they observed a Pontiac Bonneville driving above the speed limit. The officers pursued the vehicle and activated their lights and siren. The officers observed the rear passenger (later identified as McMath, an African American male) sitting "between the middle and passenger side" of the vehicle. Both officers noticed McMath moving around in the back of the car. As the vehicles approached the corner of Keefe and Palmer streets, the Bonneville took a fast, hard right turn. As it made the turn, the squad car's lights shone into the Bonneville and both officers observed McMath lift himself up, put both arms toward the back passenger window (which was about half-way open), and toss a gun out of the window.

The Bonneville pulled over about a half-block later and the officers arrested McMath. The officers noticed that the back passenger-side window was still about half-way down. The gun was later recovered from the west side of Palmer Street.

B. Jury Selection

The district court called thirty-six prospective jurors for the voir dire in McMath's case. No jurors were excused for cause. The government exercised one of its peremptory challenges to excuse Juror 7, one of two African-American jurors on the panel. When the clerk announced the jurors selected, McMath's counsel, Mr. Erickson, objected and the prosecutor, Ms. Blackwood, responded. The following excerpt from pre-trial proceedings captures the entire discussion regarding the challenge:

MR. ERICKSON: I have an issue about Juror 7, the African-American.

THE COURT: All right.

MR. ERICKSON: So, I mean, if you want to — do you want me to do it now?

THE COURT: What is the issue?

MR. ERICKSON: Yeah, I was thinking under Batson, obviously he's African-American. He was struck. The only information we had about him is he was retired. He worked at Social Services, janitorial. There's other jurors left on this jury that are retired. Under similar circumstances I think it would be incumbent upon the Government to raise a racially neutral factor at this point.

MS. BLACKWOOD: Your honor, there are two African-Americans that were on the panel; one was struck. There is no pattern of discrimination that's been demonstrated.

MR. ERICKSON: Your honor, even though one is left on, there still, I think, has to be a race neutral factor and there's not here.

MS. BLACKWOOD: Race neutral factor is expression on his face. That's all I can say. He looked angry and not happy to be here.

MR. ERICKSON: I think pretty much the whole jury looked like that.

MS. BLACKWOOD: I disagree. I didn't see that expression.

MR. ERICKSON: There were several people that had the same expression.

THE COURT: The Batson challenge is denied.

The district court did not discuss the matter further and Juror 7 was excused.

C. The Trial and Closing Statements

At trial, the government's case relied almost exclusively on the testimony of Officers Boyack and Washington, who testified to the facts outlined above. McMath took the stand in his defense and testified that he had been drinking that night and that he had dozed off during the car ride with his head against the back driver's-side window. He stated that he awoke when the car took the hard right turn and he "kind of leaned" to the right side. He said that he ended up on the right/passenger side of the car because he was "kind of — wobbly, so I went over that way." He denied throwing a gun out of the rear window and stated that he did not see anyone throw a gun out of the car. On cross, McMath acknowledged that he knew that he would go to prison if he was caught with a gun. He also admitted that he asked an officer during an interview later that night, "If I can prove that the gun isn't mine, I can beat this, right?"

The prosecution's closing statement and rebuttal statement contained two types of remarks now challenged on appeal.¹ First, the prosecutor commented on the credibility of the testifying police officers as well as McMath. In her closing statement, the prosecutor stated that the jury should believe the officers because "[t]hey're not out to get Robert McMath. They're out to get guns off the street and out of the hands of felons, and they saw what they saw." In her rebuttal, the prosecutor also told the jury that the officers would lose their jobs if they lied:

[I]f you want to buy that they came in and perjured themselves to get Robert McMath who they don't know from Adam just to get somebody, that would be immoral; that would be unethical, that would be a million things; that would be the loss of their job. I mean, you know, is that reasonable ... ?

The prosecutor stated that she "knew" McMath did not want to admit his guilt to the jury and that his story was "completely bogus" based on "physics and centrifugal force" in the car.

Second, the prosecutor made statements regarding the lack of DNA evidence in the case. During her rebuttal, the prosecutor stated:

Now, again, you know, this whole specter of fingerprints and DNA evidence and equating that with reasonable doubt; once again, I'm afraid that Hollywood has done a service — disservice to law enforcement because Hollywood makes you believe that you're always going to be expecting to find DNA and fingerprint evidence.

She also implied that one reason the government did this forensic testing was to prevent defense counsel from pointing out the lack of such testing:

Well, I guess we're damned if we do, and we're damned if we don't. Why did they even check for DNA and fingerprint evidence if it doesn't matter. That's what he [defense counsel] says. And yet if we hadn't checked for it he'd be stomping and pounding the podium and yelling about why didn't they check for prints, why didn't they check for DNA; so police do it as a matter of course. Sometimes you're lucky; sometimes you're not.

After closing statements the jury retired to deliberate and returned a guilty verdict on the one-count indictment.

D. Sentencing

The district court sentenced McMath to sixty-three months in prison, which included a two-level increase in his offense level for obstruction of justice pursuant to U.S.S.G. § 3C1.1.

In explaining its decision on the obstruction enhancement, the district court recounted portions of McMath's testimony. The court said that "Mr. McMath's statement regarding his activities in the car, his location in the car, his denial that he had a gun or saw a gun in my view were untrue, perjury, an attempt to obstruct the proceeding and a factual basis for this court to assess the two points under the sentencing guidelines." Significantly, the district court also discussed a photograph of the Pontiac Bonneville that showed that the window on the rear passenger side was open. The district court asserted that McMath had testified that the window was up, and stated that "[t]hat [discrepancy] alone is enough to justify the obstruction points. That alone." At sentencing McMath, the district court told McMath:

[Y]ou did not tell the truth when you took the stand in this case. And if your perjury were not as clear the court might be more inclined to cut you a break. That's one reason why I even asked you if you wished to make a statement. That's one reason why I gave you an opportunity to reflect on what you testified to during the trial. That is one reason why I offered up the photograph [of the car], so that you could observe that when you testified about the window in the back seat of the car being up, the objective proof shows it was not. But you still did not accept responsibility.

However, contrary to the district court's assertion, the trial transcript shows that McMath did not testify that the rear window on the passenger side was closed; rather he testified that the rear window on the driver's side was closed.

II. Discussion

A. Batson Challenge

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) the Supreme Court held...