United States v. Fitzgerald

542 F. App'x 30
CourtCourt of Appeals for the Second Circuit
DecidedOctober 21, 2013
DocketNo. 12-4994-cr
StatusPublished
Cited by5 cases

This text of 542 F. App'x 30 (United States v. Fitzgerald) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Fitzgerald, 542 F. App'x 30 (2d Cir. 2013).

Opinion

SUMMARY ORDER

Defendant-Appellant Javel Taylor (“Taylor”) appeals from a judgment of the United States District Court for the Southern District of New York (Gardephe, J.), entered November 30, 2012. Taylor was convicted, after a jury trial, of one count of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846, and one count of distribution of a controlled substance, in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. We assume the parties’ familiarity with the facts of the case and the issues presented for appellate review.

Taylor raises four claims on appeal: (1) that the district court erred in denying Taylor’s claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) that the district court’s admission of certain background evidence was erroneous under Rules 404(b) and 403 of the Federal Rules of Evidence; (3) that the evidence of an unlawful agreement on the conspiracy count was insufficient; and (4) that the district court erred in instructing the jury on an aiding and abetting theory of liability when Taylor was portrayed as a principal at trial. We find all four claims to be without merit.

I. Batson Claim

First, Taylor cannot demonstrate that the district court erred in concluding that the Government did not violate Taylor’s equal protection rights during jury selection. The trial court uses a three-step process for analyzing a claim under Bat-son:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

United States v. Douglas, 525 F.3d 225, 238 (2d Cir.2008) (quoting Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)) (internal citations omitted). Taylor argued to the district court that the Government used peremptory strikes to exclude three of four African-American jurors in the venire. The district judge expressed uncertainty about whether two of the three jurors identified by the defense were, in fact, African-American, but assuming that they were, credited the Government’s race-neutral explanations for [32]*32the strikes. Taylor argues that the district court erred in concluding that the Government’s stated reasons for its challenges were not pretexts for racial discrimination.

“[T]he trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.” Hernandez, 500 U.S. at 364, 111 S.Ct. 1859. Therefore, the court’s “finding as to whether the prosecutor’s reason was race-neutral may be overturned only if that finding is clearly erroneous.” Douglas, 525 F.3d at 239. “Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” United States v. English, 629 F.3d 311, 319 (2d Cir.2011) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)) (internal quotation marks omitted).

Here, the district court noted that the three jurors who had been removed by the Government “were among the most disengaged in the process,” a factor that we have previously credited as a valid race-neutral explanation. See Messiah v. Duncan, 435 F.3d 186, 200 (2d Cir.2006) (“A prosecutor may reasonably have qualms about a panelist who fails to pay attention during voir dire.”). The court observed specifically that one of the challenged jurors gave “monosyllabic responses” and that another appeared not to have “understood all of the questions before he answered.” See Green v. Travis, 414 F.3d 288, 300 (2d Cir.2005) (“[T]he unfavorable demeanor of a venireperson has been held to be a race-neutral explanation for a peremptory challenge.”). We discern no clear error in these determinations, nor can we identify error in the court’s conclusion that the government’s reasons for striking the third juror — because her employment could lead her to identify with the defendant and because she enjoyed watching CSI, a police forensic drama — were not pretextual. See United States v. Farhane, 634 F.3d 127, 157-58 (2d Cir.2011) (“[I]t was plausible for the prosecutor to think that a juror who regularly watched television shows in which forensic science conclusively solved crimes might be more inclined to demand such evidence in order to convict.”). Accordingly, Taylor’s claim is without merit.

II. Admission of Prior Acts as Background Evidence

Taylor next argues that the district court erred in permitting an undercover officer to testify about an unconsummated drug sale several weeks before the charged conduct, in supposed violation of Rules 404(b) and 403. “We accord a district court’s evidentiary rulings deference, and reverse only for abuse of discretion.” United States v. Cuti, 720 F.3d 453, 457 (2d Cir.2013). “To find such abuse, we must conclude that the trial judge’s evi-dentiary rulings were arbitrary and irrational.” United States v. Mercado, 573 F.3d 138, 141 (2d Cir.2009). Here, the district court did not abuse its discretion in concluding that the testimony was admissible.

During the challenged testimony, the officer stated that a few weeks prior to the March 2011 transaction, he received a cell phone number for an individual known as “J” and placed an order for crack cocaine. Once the officer arrived at the location where he had arranged to meet “J,” he called the same number again and Taylor subsequently approached with “what appeared to be crack cocaine in his hand.” Once he saw the officer, however, Taylor decided not to consummate the transaction and ran into a stairwell.

[33]*33The evidence of this prior occurrence was relevant background to the charged March 2011 transaction. “To be relevant, evidence need only tend to prove the government’s case, and evidence that adds context and dimension to the government’s proof of the charges can have that tendency.” United States v. Williams, 585 F.3d 703, 707 (2d Cir.2009).

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Cite This Page — Counsel Stack

Bluebook (online)
542 F. App'x 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fitzgerald-ca2-2013.