U.S. v. Nururdin

• Decision Date: 03 November 1993
• Docket Number: No. 92-2756,92-2756
• Citation: 8 F.3d 1187
• Parties: 39 Fed. R. Evid. Serv. 1143 UNITED STATES of America, Plaintiff-Appellee, v. Rahman NURURDIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1187

8 F.3d 1187

39 Fed. R. Evid. Serv. 1143

UNITED STATES of America, Plaintiff-Appellee, v. Rahman NURURDIN, Defendant-Appellant.

No. 92-2756.

United States Court of Appeals Seventh Circuit.

Argued June 8, 1993.

Decided Nov. 3, 1993.

James A. Shapiro, Asst. U.S. Atty. (argued), Crim. Div., Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

John M. Beal (argued), Chicago, IL, for defendant-appellant.

Before COFFEY and MANION, Circuit Judges, and ALDISERT, Senior Circuit Judge. ^*

COFFEY, Circuit Judge.

Rahman Nururdin ("Nururdin") was indicted on one count of being a convicted felon in possession of a handgun in violation of 18 U.S.C. § 922(g). Hung juries resulted in two mistrials before the defendant was convicted following a third jury trial. He was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), to consecutive terms of 264 months in prison and 5 years probation (supervised release), and ordered to pay a special assessment of $50.00. We affirm.

I. BACKGROUND

Shortly before midnight on October 9, 1991, uniformed Chicago police officers John Foley and James Eldridge were patrolling in their unmarked police car in an inner-city neighborhood when they heard a gunshot. The officers drove toward the sound of the shot and then stopped. The defendant approached them on his ten-speed bicycle, riding in the opposite direction at a high rate of speed. Officer Foley put his arm out the driver's side window, motioned to Nururdin and said, "Come here." The defendant sped up and rode past them. Foley turned the car around and chased the defendant, who, on a well-lit street and with the squad car's headlights on him, reached into the right front pocket of his jacket and pulled out a stainless steel revolver. Officer Eldridge warned his partner that "he's got a gun," and used the police radio to inform backup officers James Sherlock and Jerome Finnegan that he and Officer Foley were chasing a bicyclist who was armed with a gun.

Both Officers Foley and Eldridge then observed the defendant throw the gun that Eldridge had previously seen him withdraw from his right front jacket pocket. The gun bounced off the hood of a parked car, setting off the car's alarm, and landed on the ground next to a tree. The defendant continued riding until the officers were able to block his path and apprehend him. Backup Officers Sherlock and Finnegan arrived and detained the defendant while Eldridge and Foley walked back to pick up the gun they had seen him throw. The gun had four live .30 millimeter rounds in it and one spent .30 millimeter round.

Officers Foley and Eldridge returned to their police car and Eldridge gave Nururdin his Miranda rights. When Eldridge asked the defendant where he got the gun, the defendant replied, "What gun?" Nururdin was then taken to the police station, where Patrolman Eldridge again gave him his Miranda rights. When asked once more about the gun, the defendant told the officers he had just bought it for $80 from a man on the street and was test firing it to see if it worked. About four months later the defendant told agents from the United States Bureau of Alcohol, Tobacco and Firearms ("ATF") that he did not understand why he was being arrested for only having a revolver when there were others in jail with him who had been arrested for having automatic weapons.

The defendant was convicted by a jury of being a felon in possession of a gun. His post-trial motion for a new trial or judgment of acquittal was denied, and he was sentenced on July 10, 1992, under the Armed Career Criminal Act.

II. ISSUES

The defendant raises five issues. He argues that he was denied his constitutional right to an impartial jury and that the district court abused its discretion in denying his challenges for cause during voir dire. He also challenges the trial court's decision to permit the government to cross-examine him regarding his four prior felony convictions, and he argues that there was insufficient evidence to convict him of possessing a gun. Finally, he contends that the trial court erred in sentencing him pursuant to the Armed Career Criminal Act.

III. DISCUSSION

A. Impartial Jury

The defendant, who is black and resides in the inner-city neighborhood in which he was arrested, contends that the trial court erred in denying his motion for a new trial or judgment of acquittal on the grounds that the racial makeup of his jury violated his Fifth and Sixth Amendment right to an impartial jury. ¹ The jury venire included two blacks, but although neither was struck, neither was selected to sit on the trial jury. Thus the petit jurors were all white and, with the exception of one Chicago resident, lived in the suburbs.

The defendant contends that because a black person's life is profoundly different than that of a white person who lives in either Chicago or the suburbs, the jury in his case "did not, and could not have acted as an impartial trier of the facts of this case."

Although the defendant stresses the suburban residency of the majority of the jurors in his case, he ultimately bases his constitutional claim on their race:

"... [I]t is defendant's position that jurors could not be impartial in this case who did not have some understanding of the nature of the relationship between white Chicago police officers and black citizens, generally, in Chicago, and the nature of life and behavior in the black inner city. Virtually all blacks in Chicago understand those issues, and most whites in Chicago, not to mention the suburbs, do not because they have no experience with them."

The defendant cites no case law in support of this proposition, but quotes sociologists and newspaper articles in an effort to demonstrate that "recognized social realities" ² leave white jurors incapable of fairly assessing the credibility of white police officers who arrest and testify against inner city blacks.

The defendant's contention, therefore, is that an all-white jury is incapable of acting impartially in this case because of their lack of understanding of inner-city life and its problems. This argument is untenable in light of the Supreme Court's explicit rulings to the contrary. As we have explained before:

"The Supreme Court has made clear ... that the sixth amendment does not provide the criminal defendant with the right to a petit jury of any particular composition. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).... We are confident that all jurors, black, white, or any other race, creed or color, upon the taking of their oath are equally capable of performing their task impartially."

Teague v. Lane, 820 F.2d 832, 843 (7th Cir.1987), aff'd, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

Any lingering doubts on the matter should have been put to rest by Edmonson v. Leesville Concrete Co., --- U.S. ----, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), in which the Supreme Court bluntly stated:

"If race stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution. Other means exist for litigants to satisfy themselves of a jury's impartiality without using skin color as a test. If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury."

Id. at ----, 111 S.Ct. at 2088.

Finally, we note that just last term, in Georgia v. McCollum, --- U.S. ----, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), the Court reemphasized that it "firmly has rejected the view that assumptions of partiality based on race provide a legitimate basis for disqualifying a person as an impartial juror." Id. at ----, 112 S.Ct. at 2359 (emphasis added).

Accordingly, we hold that the trial court did not err in refusing to find that the jury's racial composition necessarily prevented it from performing its duties in an impartial manner.

B. Challenges for Cause

The defendant next mentions but fails to support his argument that the trial court erred in denying his challenges for cause during voir dire. We have previously held that to preserve his claim, an appellant must provide this court with more than a one-page assertion unsupported by any authority. John v. Barron, 897 F.2d 1387, 1393 (7th Cir.1990), cert. denied, 498 U.S. 821, 111 S.Ct. 69, 112 L.Ed.2d 43 (1990). See also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991); United States v. Mason, 974 F.2d 897, 901 (7th Cir.1992). Nevertheless, given the importance of the issue raised and out of an abundance of caution, we will address his argument despite the very real possibility of waiver.

At issue is the trial court's refusal to dismiss four potential jurors who had a connection to law enforcement: two of the venire members were related to law enforcement officers, a third was an Illinois prison employee, and a fourth was an FBI agent who had once met one of the assistant U.S. Attorneys who prosecuted this case.

The defendant states that because he believed these four jurors could not impartially gauge the credibility of the Chicago police officers who were to testify against him, he was forced to use four of his peremptory strikes to remove them. This in turn prevented him from using his peremptory strikes to try to "secure" on the jury either of the two black venire members.

In reviewing denials of challenges for cause, we "accord great deference to the judgment of the experienced trial judge based on his unique opportunity to assess the credibility of the jurors during voir dire examination, as well as their demeanor throughout the course of the trial." United States v. Barnes, 909 F.2d 1059, 1070-71 (7th Cir.1990).

We think a trial judge has discretion to find that a juror's mere relationship to a law enforcement officer is insufficient to strike for cause. See Brogdon v. Butler, 838 F.2d...