United States v. Adolphus Dixon

401 F. App'x 491
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 29, 2010
Docket10-10313
StatusUnpublished
Cited by2 cases

This text of 401 F. App'x 491 (United States v. Adolphus Dixon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Adolphus Dixon, 401 F. App'x 491 (11th Cir. 2010).

Opinion

PER CURIAM:

Adolphus Dixon appeals his convictions for five counts of armed commercial robbery, 18 U.S.C. § 1951, five counts of using a firearm during a crime of violence, id. § 924(c), and one count of attempted bank robbery, id. § 2113(a), and appeals his ten sentences of imprisonment for life and a sentence of 240 months of imprisonment, all of which are to be served concurrently. Dixon raises four issues on appeal: (1) that the district court erred in overruling his objection that the government used its peremptory challenges in a gender-discriminatory manner; (2) that the district court erred by denying his motion for a mistrial after a witness testified that Dixon’s fingerprint records were in the database of the Federal Bureau of Investigation; (3) that the district court erred in denying his motion in limine to exclude any in-court identifications made by government witnesses who had not made prior out-of-court identifications of him; and (4) *493 that the district court erred in enhancing his sentences, id. § 3559, after he exercised his Fifth Amendment right against self-incrimination. Dixon’s arguments fail. We affirm for the following reasons.

We first consider Dixon’s argument about the peremptory challenges of women by the government. The Supreme Court has established a threshold inquiry for determining whether a prosecutor’s peremptory challenges violated the Equal Protection Clause. See Batson v. Kentucky, 476 U.S. 79, 93-94, 106 S.Ct. 1712, 1721, 90 L.Ed.2d 69 (1986); J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 144-45, 114 S.Ct. 1419, 1429-30, 128 L.Ed.2d 89 (1994) (extending Batson to gender-based claims). “First, the district court must determine whether the party challenging the peremptory strikes has established a prima facie case of discrimination by ‘establishing facts sufficient to support an inference of [gender] discrimination.’ ” United States v. Ochoa-Vasquez, 428 F.3d 1015, 1038 (11th Cir.2005) (quoting Cent. Ala. Fair Hous. Ctr. v. Lowder Realty Co., 236 F.3d 629, 636 (11th Cir.2000)). ‘“[T]he establishment of a prima facie case is an absolute precondition to further inquiry into the motivation behind the challenged strike.’ ” Id. (quoting Lowder, 236 F.3d at 636). In determining whether a prima facie case of discrimination has been established, a court must consider “whether the totality of the circumstances shows a ‘pattern’ that creates an inference of discrimination.” Id. at 1044. In doing so, the court may consider a variety of factors, including (1) “whether members of the relevant [gender] group served unchallenged on the jury”; (2) “whether there is a substantial disparity between the percentage of jurors of a particular [gender] struck and the percentage of their representation on the venire”; and (3) “whether there is a substantial disparity between the percentage of jurors of one [gender] struck and the percentage of their representation on the jury.” Id. at 1044-45 (internal quotation marks omitted). We give great deference to the determination of the district court about whether a prima facie case of discrimination has been established. Id. at 1039.

In the light of the lack of disparity between the percentage of women struck by the government and the make-up of both the venire and the jury, the district court did not clearly err in finding that there was no inference of discrimination on the basis of gender. The government used 67 percent of its peremptory challenges against women, but that percentage was consistent -with both the percentage of women on the venire, which was 17 of 28 or 61 percent, and the percentage of women who served on the jury, which was 8 of 12 or 67 percent. The district court was entitled to find that Dixon failed to prove a pattern of discrimination. We affirm that decision.

We next consider Dixon’s argument about the denial of his motion for a mistrial. Because the “district court is in ‘the best position to evaluate the prejudicial effect of a statement or evidence on the jury,’ ” we review the denial of a motion for a mistrial for abuse of discretion. United States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir.) (quoting United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir.2007)), cert. denied, — U.S. -, 130 S.Ct. 1032, 175 L.Ed.2d 632 (2009). Dixon “must show that his ‘substantial rights [were] prejudicially affected,’ [such that] there is a reasonable probability that, but for the remarks, the outcome of the trial would have been different.’ ” Id. (quoting Newsome, 475 F.3d at 1227). “The mere utterance of the word jail, prison, or arrest does not, without regard to context or circumstances, constitute reversible error per se.” Id. *494 Particularly “where the comment is brief, unelicited, and unresponsive, adding nothing to the government’s case, the denial of a mistrial is proper.” Id.

Dixon’s argument that he was entitled to a mistrial following a witness’s testimony that “[t]he FBI fingerprint database produced [a] fingerprint record” for Dixon fails. That testimony did not necessarily suggest that Dixon had a prior criminal record, and the testimony was a “bi'ief, unelicited, and unresponsive” answer that did not otherwise support the prosecution. In the light of the overwhelming evidence of Dixon’s guilt, and the insignificance of the witness’s remark, we conclude that the district court did not abuse its discretion when it denied Dixon’s motion for a mistrial.

We next consider Dixon’s argument about the denial of his motion about in-court identifications. We review de novo whether an in-court identification violates a defendant’s Fifth Amendment right to due process. United States v. Douglas, 489 F.3d 1117, 1126 (11th Cir.2007). To prevail, a defendant “must convince us that the identification procedure was ‘so imper-missibly suggestive as to give rise to a very substantial likelihood of misidentifieation.’ ” Code v. Montgomery, 725 F.2d 1316, 1319 (11th Cir.1984) (quoting Neil v. Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972)). Even an identification based on a suggestive procedure may still be admitted when the identification is otherwise reliable. Manson v. Brathwaite, 432 U.S. 98, 110-14, 97 S.Ct. 2243, 2251-53, 53 L.Ed.2d 140 (1977).

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Related

Dixon v. United States
179 L. Ed. 2d 488 (Supreme Court, 2011)

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Bluebook (online)
401 F. App'x 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-adolphus-dixon-ca11-2010.