United States v. Hill

31 F.4th 1076

UNITED STATES of America, Plaintiff - Appellee

v.Robert HILL, also known as Robbie, also known as Frijol, Defendant - Appellant

No. 21-1026

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2022

Filed: April 21, 2022

Tiffany Gulley Becker, Kenneth Tihen, Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO, for Plaintiff - Appellee.

Robert Hill, Pro Se, Greenville, IL, Kevin Michael Whiteley, Saint Louis, MO, for Defendant - Appellant.

Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.

GRUENDER, Circuit Judge.

A jury convicted Robert K. Hill of conspiring to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846 and possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Hill appeals, arguing that one of the Government's peremptory strikes violated Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the district court¹ abused its discretion in admitting expert testimony, and that the evidence was insufficient to support his conviction for possessing a firearm as a convicted felon. We affirm.

I.

In May 2013, St. Louis County police executing a search warrant discovered a "large quantity of firearms" in a residence owned by Hillestate, Inc., whose registered agent, president, secretary, and sole board member was a "Robert Hill." Video surveillance showed Hill coming and going from the residence. A criminal-history search revealed that a "Robert K. Hill" had been convicted of a state felony in St. Louis County circuit court in 1998.

In February 2016, Hill attempted to flee when approached by police but was caught. A search incident to arrest revealed that he was carrying four cell phones as well as a backpack containing a large quantity of cash and a document that law enforcement identified as a drug ledger. The cash was later counted and totaled $77,748.30.

Law enforcement applied for and received a warrant to wiretap phones used by Hill and his associates. Over the next several months, law enforcement intercepted numerous incriminating text messages and telephone conversations. For example, after intercepting a conversation in which Hill asked one of his associates for help with a "little job," law enforcement tracked the associate and arrested him with heroin in his possession. The associate "gave [law enforcement] the layout of [Hill's] drug trafficking organization" and "indicated that he wished to further cooperate and mitigate his charges." Shortly thereafter, the associate was murdered.

Other intercepts indicated that a middleman was brokering deals for the sale of "cars," which is code for heroin or cocaine, between Hill and individuals from Chicago, one of whom was subsequently apprehended with approximately three kilograms of heroin in his possession. The middleman later testified that he had brokered deals for Hill in which Hill would purchase two to four kilograms of heroin at a time and that, independently, Hill was purchasing twenty kilograms of cocaine at a time from a source in Texas.

Eventually, law enforcement introduced an undercover officer into communication with Hill. The undercover officer offered to sell Hill three kilograms of heroin for $10,000. Hill accepted the offer and sent one of his associates to the designated location, where law enforcement arrested him with $10,000 in cash on his person.

In July 2017, Hill was arrested on an indictment for drug and firearm offenses. A superseding indictment charged Hill with one count of conspiracy to distribute and possess with intent to distribute one or more kilograms of heroin and 500 or more grams of cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 841(b)(1)(B)(ii), 846, and one count of possessing a firearm as a convicted felon, see 18 U.S.C. § 922(g)(1). Hill pleaded not guilty and asserted his right to represent himself.

The case proceeded to trial. During voir dire, the Government asked if any of the venirepersons "would not be able to adjudge [cooperating-witness] testimony fairly." Venireperson 1 stated that "if [the witness is] throwing [the defendant] under the bus to save himself, I don't think that's right." As relevant here, venirepersons 8 and 10 indicated that they agreed. The Government inquired further:

Juror 10, ... Juror 1, ... and Juror 8[,] ... I want to probe a little bit there. So what you're saying is you don't think you could even listen to that person's testimony? And even if it was corroborated by other evidence and other materials, that you don't think you could even listen to anything that person has to say?

Venireperson 1 spoke up first. "[Y]ou could always listen to it," he explained, "but I mean your mind is always going to wonder if he's just, you know, saying stuff to make himself sound better and him sound worse." But when the Government asked if he could at least consider the testimony alongside other evidence, venireperson 1 replied, "Yeah." Likewise, venireperson 8 replied, "I'd still be able to listen and consider it, yes." Venireperson 10 replied, "Yes, ma'am."

Later, the Government revisited the issue of cooperating witnesses in connection with recordings of wiretapped conversations. "If the [cooperating] witness's testimony was borne out by wiretap conversations," the Government asked, "could you consider that?" Venireperson 1 replied, "Sure"; venireperson 8 replied, "Yeah"; and venireperson 10 replied, "Yeah, I could."

The Government exercised one of its peremptory strikes on venireperson 10, who was black. Hill announced a Batson objection to the strike, explaining that venireperson 10 was an "African-American individual[ ] and there's no really substantial reason for striking [her]." Hill did not identify any similarly situated nonblack venirepersons whom the Government elected not to strike.

The district court called on the Government to respond. After noting "for the record ... that [Hill's statement] is not a sufficient prima facie Batson showing" and thus "does not ... require a race-neutral reason," the Government stated that, "in the alternative, [it] would offer the following in terms of the rationale for its strike[ ]": "Juror Number 10 indicated that she could not listen to the cooperating witness's testimony. And while Jurors Number 1 and 8 were rehabilitated on that issue, she did not indicate a similar rehabilitation." Venirepersons 1 and 8 were not black, and the Government had not stricken either of them.

To this, Hill said simply, "10 wasn't specifically asked anything." When the court corrected him, Hill said, "Well, she wasn't asked a followup." The Government responded, "All the jurors that had responded in the positive were asked the followup." The district court then overruled Hill's Batson objection without comment.

At trial, the Government presented excerpts from the conversations that law enforcement had intercepted. Lieutenant Curtis Sullivan testified as an expert witness to the meaning of drug code and slang used in the conversations. The jury found Hill guilty on all counts.

Hill appeals. Represented by newly appointed counsel, he argues that the district court clearly erred in overruling his Batson objection, that the district court abused its discretion in admitting parts of Lt. Sullivan's testimony, and that the evidence was insufficient to support his conviction for possessing a firearm as a convicted felon.

II.

We begin with Hill's claim that the Government violated Batson by striking venireperson 10 because of her race. Ordinarily, we review for clear error a district court's finding that a peremptory strike was not based on race. Miller v. United States , 135 F.3d 1254, 1257 (8th Cir. 1998).

" Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race." Snyder v. Louisiana , 552 U.S. 472, 476, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). First, the party objecting to the strike "must make a prima facie showing that [the strike] has been exercised on the basis of race." Id. Second, "if that showing has been made, the [opposing party] must offer a race-neutral basis for striking the juror in question." Id. at 476-77, 128 S.Ct. 1203. Third, "in light of the parties’ submissions, the trial court must determine whether the [objecting party] has shown purposeful discrimination." Id. at 477, 128 S.Ct. 1203. "[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from[,] the party opposing the strike." United States v. Hampton , 887 F.3d 339, 342 (8th Cir. 2018).

Here, Hill concedes that he never presented a prima facie case of discrimination.

According to the Government, that concession is sufficient to dispose of the Batson issue on appeal. The Government reasons that if the party raising a Batson objection fails to present a prima facie case, then the district court should overrule the objection immediately instead of proceeding to the second step in the Batson procedure where the party defending the strike must proffer a race-neutral explanation. See J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 144-45, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Thus, although the district court overruled Hill's objection later, apparently on the ground that Hill had not carried his burden at step three of the Batson procedure, the district court could have overruled the objection earlier, on the ground that Hill had not presented a prima facie case at step one. Cf. Brown v. Frey , 806 F.2d 801, 804 (8th Cir. 1986) ("Pro se litigants are not excused from compliance with substantive and procedural law ...."). And we have stated in other contexts that we can affirm on any basis supported by the record. See, e.g. , United States v. Baez , 983 F.3d 1029, 1041 (8th Cir. 2020). Therefore, the Government concludes, Hill's concession that he never presented a prima facie case of discrimination is fatal to his Batson argument on appeal.

We disagree...