US v. Charlton

• Decision Date: 01 April 2010
• Docket Number: No. 08-1797.,08-1797.
• Parties: UNITED STATES of America, Appellee, v. Trevor CHARLTON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

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UNITED STATES of America, Appellee,
v.
Trevor CHARLTON, Defendant, Appellant.

No. 08-1797.

United States Court of Appeals, First Circuit.

Heard October 6, 2009.

Decided April 1, 2010.

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COPYRIGHT MATERIAL OMITTED

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Mark E. Howard, with whom Kacavas Ramsdell & Howard, PLLC, was on brief for appellant.

Robert E. Richardson, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.

TORRUELLA, Circuit Judge.

Trevor Charlton ("Charlton"), an African-American, was convicted by a jury of one count of being a felon in possession of a firearm,¹ in violation of 18 U.S.C. § 922(g)(1).² The district court enhanced Charlton's sentence pursuant to the

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Armed Career Criminal Act ("the ACCA"), 18 U.S.C. § 924(e).³

On appeal, Charlton makes two claims. First, Charlton contends that the empanelment of the jury that convicted him was tainted by racial discrimination in violation of the Constitution and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90, L.Ed.2d 69 (1986). Second, Charlton argues that the district court's imposition of the ACCA enhancement violated his Constitutional rights because the government did not plead or prove beyond a reasonable doubt the requisite predicate convictions, nor did Charlton admit those convictions. Finding that the district court committed no error in granting the government's peremptory strike at issue in this case, we affirm Charlton's conviction. Furthermore, finding that we are bound by the United States Supreme Court ruling in Almendárez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and our own precedent in United States v. Richards, 456 F.3d 260, 262 (1st Cir.2006), cert. denied, 550 U.S. 905, 127 S.Ct. 2097, 167 L.Ed.2d 816 (2007), we affirm Charlton's sentence.

I. Facts and Procedural History

A. Incident (2004) and Indictment (2004)

As we observed in 2007, when this case was first before us, the events leading to Charlton's arrest are generally undisputed, and their substance is not at issue on this appeal either. We thus will present these events even more briefly than we did in our prior opinion in this matter. See United States v. Charlton, 502 F.3d 1, 2-4 (1st Cir.2007).

During the evening of July 25, 2004, while investigating a shooting, police in Brockton, Massachusetts found a loaded firearm wrapped in a white shirt on a porch near where Charlton was standing with four other men. Later that night, after first offering various denials, Charlton admitted to the police that he possessed the firearm, owned the white shirt, and had recently stabbed a man.

On September 29, 2004, a grand jury sitting in Boston, Massachusetts, returned a one-count indictment against Charlton, charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

B. First Trial (2006) and Charlton's Denied Motion to Dismiss (2006)

On March 13, 2006, Charlton's first trial began. Seven days later, on the government's motion and over Charlton's objection, the district court declared a mistrial after the jury repeatedly declared it was deadlocked.

On May 23, 2006, Charlton filed a motion to dismiss the indictment against him on the ground that "further prosecution would violate the Double Jeopardy clause of the Fifth Amendment to the United States Constitution." On June 12, 2006, the district court denied Charlton's motion. United States v. Charlton, 2006 U.S. Dist. LEXIS 97012, at *14 (D. Mass., June 12, 2006). On August 10, 2007, we affirmed. Charlton, 502 F.3d at 6.

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C. Second Trial—Jury Selection (2007)

On December 3, 2007, Charlton's second trial began, and jury selection commenced. Because this was a non-capital felony case, the government possessed six peremptory challenges to prospective jurors and Charlton had ten. See Fed.R.Crim.P. 24(b)(2). Each side also possessed one additional peremptory challenge for the two prospective alternate jurors. See Fed.R.Crim.P. 24(c)(4)(A).

The district court qualified the venire, which consisted of fifty-five potential jurors. The district court and defense counsel argued about the precise number of African-Americans in the jury pool, which defense counsel stated was seven and the district court at one point estimated was twelve.⁴

1. Peremptory Challenges—Round One

The district court proceeded by seating the first twelve potential jurors, which the defense noted included two African-Americans. The government then exercised three of its peremptory challenges, striking Juror No. 23, one of the two African-Americans. Next, the defense exercised five of its peremptory challenges, after which the defense objected to the government's peremptory challenge of Juror No. 23, stating: "she's one of the two black jurors seated in the jury, and I think one of the few black jurors in the jury pool." The government attorney, when asked by the district court if he "wanted to give a reason for the record," responded: "It has nothing to do with the race, just she's an attorney, and I do not want an attorney on the jury." The district court accepted this explanation and excused Juror No. 23.

2. Peremptory Challenges—Round Two

The district court then seated eight new potential jurors, including one African-American. The defense then exercised two of its five remaining peremptory challenges. The government followed by exercising one of its three remaining peremptory challenges, striking Juror No. 37, the newly called African-American. The defense again objected, stating: "This is the second African-American that's being challenged. Our client is entitled to a fair jury. If she's off, there will be one African-American on the jury, and I'm pressing that." The government, when asked by the district court why he was striking the prospective juror, responded:

She's a member of the clergy. It has nothing to do with race.... Whether she was black, white, Hispanic, Asian, male or female, I'd be challenging her because I think members of the clergy tend to be more sympathetic towards people and less likely to judge them, and I note for the record the first two that I challenged last time happened to be white males.

The district court accepted this explanation, stating: "I do know that, typically speaking, prosecutors challenge clergy. I mean, that's the way they do it, so I'm not going to call this a black challenge."

After then determining that there was a maximum of two African-Americans in the remaining jury pool,⁵ the district court,

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referring to one of those prospective jurors, asked the government: "She is African-American, and I'm not striking three, so will you withdraw your peremptory challenge?" The government agreed to withdraw its peremptory challenge against Juror No. 37

3. Peremptory Challenges—Rounds Three Through Six

In the third round, the district court seated two new potential jurors, one of which the defense struck. In the fourth round, the district court seated one new potential juror, which the defense struck. At this point, the defense had one remaining peremptory challenge and, because it had withdrawn its previous peremptory challenge, the government had three. In the fifth round, the district court seated one new potential juror, which the defense struck, exhausting its peremptory challenges.

In the sixth round, the district court seated one new potential juror, Juror No. 43, an African-American. The government exercised one of its three remaining peremptory challenges, striking Juror No. 43. The government, without prompting from the district court, provided the following explanation, to which the defense did not object:

Your Honor, this is a juror who indicated that she's got a son who went to prison for possession of a firearm. Therefore I'm going to exercise a peremptory as to her. And I just do want to make a record that I understand the Court's position, but for whatever it's worth, I do think it's unfair that the government is precluded, for reasons that have absolutely nothing to do with race, from challenging people that under any other circumstance would be unremarkable anyway. That's why I'm challenging this juror.

At this point, the defense had no remaining peremptory challenges and the government had two.

4. Peremptory Challenges—Final Rounds

The district court then seated the final juror, after which the district court called the first two candidates for the alternate slots. The government exercised its sole peremptory challenge for the two prospective alternate jurors, striking Juror No. 47, who was not African-American. The government, without prompting from the district court, provided the following explanation, to which the defense did not object: "This is the other individual who indicated in this case that a cousin, I believe, is in jail for possession of a firearm." Afterwards, the district court seated one new potential alternative juror, to which neither party objected.

Of the twelve jurors who were ultimately empaneled, two—one of the first twelve prospective jurors to be called from the jury pool and Juror No. 37—were African-American.

D. Second Trial—Stipulation (2007), Conviction (2007), Sentencing (2008), and Appeal (2008)

At trial, the parties stipulated to the fact that, prior to July 25, 2004, Charlton was

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convicted of a crime punishable by imprisonment for a term exceeding one year. The jury trial concluded after seven days on December 10, 2007, resulting in the conviction of Charlton

A presentence investigation report ("PSI report"), dated May 6, 2008, documented Charlton's prior criminal history, including three felony convictions under Massachusetts law. Concluding that these convictions subsumed either a violent felony or an applicable serious drug offense committed on occasions different from one another, the...