United States v. Vann, 13–2190.

776 F.3d 746

UNITED STATES of America, Plaintiff–Appellee

v.Rayvell VANN, Defendant–Appellant.

No. 13–2190.

United States Court of Appeals, Tenth Circuit.

Jan. 16, 2015.

Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, NM, for Appellant.

James R.W. Braun, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with him on the brief) Albuquerque, NM, for Appellee.

Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.

Opinion

TYMKOVICH, Circuit Judge.

Rayvell Vann was caught and convicted of carrying illegal drugs on an Amtrak train in New Mexico. He argues that he did not receive a fair trial because (1) the district court improperly denied his challenge to the government's discriminatory strike of a potential juror because of the juror's race; (2) the court improperly allowed expert testimony about the habits of drug traffickers; and (3) closing arguments misstated and embellished the evidence. Vann also contends that the district court erred in permitting him to waive his right to counsel during sentencing and proceed pro se.

We conclude the district court did not err in finding the government's reasons for dismissing the contested juror were racially neutral; the expert's testimony was reliable based on his expertise and experience; and the prosecutor's closing argument was not plainly erroneous. Moreover, we find no error in the district court's decision to let Vann represent himself at sentencing. We exercise jurisdiction under 12 U.S.C. § 1291 and AFFIRM.

I. Background

Vann paid cash for a one-way Amtrak ticket for a two-day train ride from Los Angeles to Kansas City two hours before the train was set to depart. From his post in New Mexico, Agent Kevin Small of the Drug Enforcement Agency was tipped by a confidential source about the unusual circumstances of Vann's Amtrak reservation.

When the train made its regularly scheduled stop in Albuquerque, Agent Small boarded the train and located Vann. After a brief conversation, Agent Small asked to search Vann's bags, and Vann consented. One of the bags contained an out-of-place large pink gift box, and, after some discussion, Vann ultimately admitted that he was transporting codeine and painkiller pills.

Vann was arrested, and a magistrate judge issued Agent Small a warrant to search the gift box. When Agent Small and another federal officer opened the box, they found padding that resembled home-insulation foam. After cutting into the foam, an odor of ether percolated from it, and the officers moved the receptacle outside to finish the process. After they finally opened it, they found two bottles of codeine, twenty-five OxyContin pills, and two jars containing approximately 100 grams of phencyclidine (PCP) apiece.

Upon finding the narcotics, several officers, including Agent Small, interviewed Vann. During the interrogation, Vann admitted to dealing drugs in Nebraska and that he had purchased PCP in Los Angeles. He contended, however, that he had shipped the PCP he purchased via the United Parcel Service and thus did not know PCP was in the box.

He was charged with possession with intent to distribute phencyclidine and codeine. A jury found Vann guilty of both charges. At sentencing, Vann excused his attorneys and proceeded pro se, and the district court ultimately sentenced him to fifteen years in prison.

II. Analysis

Vann raises four separate issues on appeal. First, he claims that the district court committed legal error during jury selection because it improperly administered the three-part test under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), after the government used a peremptory strike against the sole African–American member of the venire. Second, Vann contends that the district court abused its discretion by allowing Agent Small to testify as an expert at trial. Third, he argues the district court plainly erred when it failed to sua sponte object to alleged misstatements by the prosecution during closing arguments. And fourth, he asserts error in the district court's decision permitting him to waive his right to counsel during sentencing.

We address, and ultimately reject, each of these arguments.

A. Batson

Vann first argues that the district court erred in rejecting a Batson challenge at trial and in a motion for a new trial.

In the seminal case Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court made clear that the purposeful exclusion of a juror on the basis of race runs afoul of equal-protection principles in violation of a criminal defendant's constitutional rights. As a result, it is impermissible for the prosecution, or any litigant for that matter, to use its challenges to strike a prospective jury member due to his or her race. Id. at 85–86, 106 S.Ct. 1712.

Batson challenges are subject to the familiar burden-shifting framework that the Supreme Court further explained in Johnson v. California, 545 U.S. 162, 169–70, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) :

First, the party challenging the strike as racially motivated “must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” Id. at 168, 125 S.Ct. 2410 (quoting Batson, 476 U.S. at 93–94, 106 S.Ct. 1712 ). If the district court moves on to steps two and three, as it did here, the “preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

Second, if the proponent of the Batson challenge meets its initial burden on the prima facie case, then “the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes.” Id. (quoting Batson , 476 U.S. at 94, 106 S.Ct. 1712 ). The standard here is not high: “Although the prosecutor must present a comprehensible reason, ‘[t]he second step of this process does not demand an explanation that is persuasive, or even plausible’; so long as the reason is not inherently discriminatory, it suffices.” Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (quoting Purkett v. Elem, 514 U.S. 765, 767–68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) ).

Finally, “ ‘if a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination.’ ” Johnson, 545 U.S. at 168, 125 S.Ct. 2410 (quoting Purkett, 514 U.S. at 767, 115 S.Ct. 1769 ). “This final step involves evaluating the ‘persuasiveness of the justification’ proffered by the prosecutor, but ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ ” Rice, 546 U.S. at 338, 126 S.Ct. 969 (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769 ); see also United States v. Nelson, 450 F.3d 1201, 1207 (10th Cir.2006).

We are concerned here only with the third step because each side concedes that its opponent met the burdens imposed at the first and second steps. The district court's obligation at step three is to consider “all of the circumstances that bear upon the issue of racial animosity.” Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ; see also Miller–El v. Dretke, 545 U.S. 231, 251–52, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (“[T]he rule in Batson ... requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it.”). As our review of the district court's application of Batson is a matter of process, we cannot assume that the district court evaluated the prosecutor's credibility simply by virtue of its eventual ruling denying the Batson challenge. Snyder, 552 U.S. at 479, 128 S.Ct. 1203.¹

Turning to the record, we recognize that the district court's handling of the Batson challenge was streamlined. That said, at steps one and two, the Batson undertaking largely followed the blueprint. Indeed, after defendant raised the Batson challenge, the prosecution provided several nonracial reasons for striking the 49–year–old African–American juror:

Your Honor, for starters, I had [this juror] singled out as a potential peremptory challenge prior to seeing him or knowing his ethnicity. [Co-counsel] can corroborate that.

What I didn't like about him, and the racially neutral reason as to why I am striking him, with race being no consideration, is, number one, he didn't fill out the questionnaire. And I prefer having jurors that are educated, that have a stake in society, preferably with kids. He doesn't even list an occupation, he's seemingly unemployed. During the question-and-answer process, he seemed a little dazed and disengaged.

So for those reasons, that's my basis for striking him. I mean, especially—I can present this questionnaire to the Court. It's not filled out. No, there's no indication that he has any type of family or any type of job.

App. Vol. V at 453–54.

The prosecution next submitted the questionnaire as evidence, and the district court prematurely noted that “I will rule on your Batson argument. Nonracial reasons were given that make sense.” Id. at 454. Usually, the district court would invite defense counsel to offer countervailing reasons as a rebuttal immediately following the government's proffer of its nondiscriminatory reasons. This exchange would typically precede the district court's ultimate decision on whether the given nondiscriminatory reason for the strike was genuine.

In this case, however, defense counsel recognized it was yet to be heard and requested an opportunity to rebut the government's proposed reasons—the district court freely granted this request. Answering the call, defense counsel commented “[the juror] did respond when he was asked about prior juror service. He seemed attentive, articulate. I think there's—we think the reasons offered by the government are disingenuous.” Id. After that, the district...