UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 04-4628
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON LOREL MINTER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (CR-03-253)
Argued: May 27, 2005 Decided: September 8, 2005
Before MOTZ and KING, Circuit Judges, and Eugene E. SILER, Jr., Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished opinion. Senior Judge Siler wrote the opinion, in which Judge Motz and Judge King joined.
ARGUED: Barron Michael Helgoe, Charleston, West Virginia, for Appellant. Stephanie Lou Haines, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia, for Appellee. ON BRIEF: Kasey Warner, United States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). SILER, Senior Circuit Judge:
Jason Minter appeals his conviction and sentence for
possession with intent to distribute five or more grams of cocaine
base in violation of 21 U.S.C. § 841(a)(1), possession of a firearm
in furtherance of drug trafficking in violation of 18 U.S.C.
§ 924(c)(1)(A)(i), and possession of a firearm by a convicted felon
in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). He was
sentenced to 360 months of imprisonment.
Minter timely appeals, asserting that (1) the district court
erred by denying his Batson challenge, see Batson v. Kentucky, 476
U.S. 79 (1986), raised after the Government removed one of two
African-American venire members, (2) the district court abused its
discretion by admitting a firearms expert’s testimony relating to
fingerprinting of guns, (3) the district court erroneously
sentenced Minter under mandatory Guidelines, and (4) additional
errors, although not individually meriting reversal, amount to
reversible error when considered cumulatively. For the reasons
stated hereafter, Minter’s conviction is AFFIRMED, his sentence is
VACATED, and the case is REMANDED to the district court for
resentencing.
2 ANALYSIS
I. Batson Challenge
The district court denied Minter’s objection to the
Government’s use of a peremptory challenge against Kernus Green, a
73 year-old African-American woman, who was one of two African-
American venire members. “A finding by the district court
concerning whether a peremptory challenge was exercised for a
racially discriminatory reason is given great deference by this
court; we review that finding only for clear error.” Jones v.
Plaster, 57 F.3d 417, 421 (4th Cir. 1995) (citing Hernandez v. New
York, 500 U.S. 352, 364-365 (1991)).
As this court has observed:
When making a Batson motion, the defendant must first make a “prima facie” showing of purposeful discrimination. Once [he] establishes a prima facie case of discrimination, the burden shifts to the prosecutor to articulate a race-neutral explanation for the challenge. If the prosecutor satisfies this requirement, the burden shifts back to the defendant to prove that the explanation given is a pretext for discrimination. The ultimate burden always rests with the opponent of the challenge to prove “purposeful discrimination.”
United States v. Grimmond, 137 F.3d 823, 833-34 (4th Cir. 1998)
(internal citations omitted).
To establish a prima facie case, Minter “must show, based on
all ‘relevant circumstances,’ that an inference of discrimination
has been raised that the prosecutor utilized peremptory challenges
to exclude jurors based on their race.” United States v. Lane, 866
F.2d 103, 104 (4th Cir. 1989). Minter objected to the Government’s
3 decision to strike Ms. Green simply by asserting “[i]t seems to be
only racially based as a challenge.” While this objection was
likely “insufficient to trigger an inference of discrimination,”
id., the district court nevertheless requested that the Government
provide its reason for striking Ms. Green. When such reasoning is
provided, this court “will not address the question of whether the
defendant established a prima facie showing to satisfy Batson.”
Id. at 105 (citing United States v. Woods, 812 F.2d 1483, 1487 (4th
Cir. 1987)).
The Government asserted that it struck Ms. Green because “she
didn’t appear to have a good memory,” she “appeared to have a hard
time hearing what the [c]ourt said,” and she “fumbled with [an]
answer.” The burden therefore shifted back to Minter to
demonstrate that the Government’s articulated race-neutral reason
was a pretext for discrimination. See United States v. Joe, 928
F.2d 99, 102 (4th Cir. 1991) (“If the government offers
explanations that are facially neutral, a defendant may
nevertheless show purposeful discrimination by proving the
explanations pretextual.”).
Minter asserted that the Government’s reasoning “applied to a
lot of the jurors, both ones that they left on and ones that they
struck.” The district court considered this argument and
concluded:
I think that reasoning could well apply to a number of jurors, but the Government offered a race-neutral reason
4 for it and I think that that’s sufficient. And it was my observation when she stood to answer questions that she did have some trouble following. Others had equal or greater difficulty with some of the questions who were not African-American. But given that the Government left on Miss Baker, who is African-American, I feel that the Government has demonstrated a race-neutral reason for its strike of Miss Green. So I deny the Batson challenge to the Government’s strike.
The district court was in a position to observe Ms. Green and,
therefore, to make a determination regarding her ability to hear
questions or follow proceedings. The voir dire transcripts do not
indicate that the district court clearly erred in its findings
relating to Ms. Green. Furthermore, the district court also was in
a position to observe the Government:
In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.
Hernandez, 500 U.S. at 365 (quotation omitted).
The district court noted that other jurors had “equal or
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 04-4628
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON LOREL MINTER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (CR-03-253)
Argued: May 27, 2005 Decided: September 8, 2005
Before MOTZ and KING, Circuit Judges, and Eugene E. SILER, Jr., Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished opinion. Senior Judge Siler wrote the opinion, in which Judge Motz and Judge King joined.
ARGUED: Barron Michael Helgoe, Charleston, West Virginia, for Appellant. Stephanie Lou Haines, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia, for Appellee. ON BRIEF: Kasey Warner, United States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). SILER, Senior Circuit Judge:
Jason Minter appeals his conviction and sentence for
possession with intent to distribute five or more grams of cocaine
base in violation of 21 U.S.C. § 841(a)(1), possession of a firearm
in furtherance of drug trafficking in violation of 18 U.S.C.
§ 924(c)(1)(A)(i), and possession of a firearm by a convicted felon
in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). He was
sentenced to 360 months of imprisonment.
Minter timely appeals, asserting that (1) the district court
erred by denying his Batson challenge, see Batson v. Kentucky, 476
U.S. 79 (1986), raised after the Government removed one of two
African-American venire members, (2) the district court abused its
discretion by admitting a firearms expert’s testimony relating to
fingerprinting of guns, (3) the district court erroneously
sentenced Minter under mandatory Guidelines, and (4) additional
errors, although not individually meriting reversal, amount to
reversible error when considered cumulatively. For the reasons
stated hereafter, Minter’s conviction is AFFIRMED, his sentence is
VACATED, and the case is REMANDED to the district court for
resentencing.
2 ANALYSIS
I. Batson Challenge
The district court denied Minter’s objection to the
Government’s use of a peremptory challenge against Kernus Green, a
73 year-old African-American woman, who was one of two African-
American venire members. “A finding by the district court
concerning whether a peremptory challenge was exercised for a
racially discriminatory reason is given great deference by this
court; we review that finding only for clear error.” Jones v.
Plaster, 57 F.3d 417, 421 (4th Cir. 1995) (citing Hernandez v. New
York, 500 U.S. 352, 364-365 (1991)).
As this court has observed:
When making a Batson motion, the defendant must first make a “prima facie” showing of purposeful discrimination. Once [he] establishes a prima facie case of discrimination, the burden shifts to the prosecutor to articulate a race-neutral explanation for the challenge. If the prosecutor satisfies this requirement, the burden shifts back to the defendant to prove that the explanation given is a pretext for discrimination. The ultimate burden always rests with the opponent of the challenge to prove “purposeful discrimination.”
United States v. Grimmond, 137 F.3d 823, 833-34 (4th Cir. 1998)
(internal citations omitted).
To establish a prima facie case, Minter “must show, based on
all ‘relevant circumstances,’ that an inference of discrimination
has been raised that the prosecutor utilized peremptory challenges
to exclude jurors based on their race.” United States v. Lane, 866
F.2d 103, 104 (4th Cir. 1989). Minter objected to the Government’s
3 decision to strike Ms. Green simply by asserting “[i]t seems to be
only racially based as a challenge.” While this objection was
likely “insufficient to trigger an inference of discrimination,”
id., the district court nevertheless requested that the Government
provide its reason for striking Ms. Green. When such reasoning is
provided, this court “will not address the question of whether the
defendant established a prima facie showing to satisfy Batson.”
Id. at 105 (citing United States v. Woods, 812 F.2d 1483, 1487 (4th
Cir. 1987)).
The Government asserted that it struck Ms. Green because “she
didn’t appear to have a good memory,” she “appeared to have a hard
time hearing what the [c]ourt said,” and she “fumbled with [an]
answer.” The burden therefore shifted back to Minter to
demonstrate that the Government’s articulated race-neutral reason
was a pretext for discrimination. See United States v. Joe, 928
F.2d 99, 102 (4th Cir. 1991) (“If the government offers
explanations that are facially neutral, a defendant may
nevertheless show purposeful discrimination by proving the
explanations pretextual.”).
Minter asserted that the Government’s reasoning “applied to a
lot of the jurors, both ones that they left on and ones that they
struck.” The district court considered this argument and
concluded:
I think that reasoning could well apply to a number of jurors, but the Government offered a race-neutral reason
4 for it and I think that that’s sufficient. And it was my observation when she stood to answer questions that she did have some trouble following. Others had equal or greater difficulty with some of the questions who were not African-American. But given that the Government left on Miss Baker, who is African-American, I feel that the Government has demonstrated a race-neutral reason for its strike of Miss Green. So I deny the Batson challenge to the Government’s strike.
The district court was in a position to observe Ms. Green and,
therefore, to make a determination regarding her ability to hear
questions or follow proceedings. The voir dire transcripts do not
indicate that the district court clearly erred in its findings
relating to Ms. Green. Furthermore, the district court also was in
a position to observe the Government:
In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.
Hernandez, 500 U.S. at 365 (quotation omitted).
The district court noted that other jurors had “equal or
greater difficulty with some of the questions who were not African-
American.” If a “proffered reason for striking a black panelist
applies just as well to an otherwise-similar nonblack who is
permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” Miller–El
v. Dretke, ___ U.S. ___, 125 S. Ct. 2317, 2325 (2005). Minter’s
5 claims of discrimination rest heavily upon the district court’s
observation that the Government’s reasoning also could apply to
other jurors who were not African-American. This observation,
however, without additional evidence, is insufficient to support a
finding that race was a motivating factor in the Government’s
decision to strike Ms. Green.
Finally, the district court noted that the Government had not
challenged Ms. Baker, the other African-American venire member. A
district court is “not entitled to allow the presence or absence of
other black jurors to resolve the question of whether [the striking
party] was motivated by race in the exercise of this particular
strike.” Jones v. Plaster, 57 F.3d at 421 (emphasis added). The
district court is, however, “entitled to consider the fact that the
final jury included black citizens.” Id.(emphasis added). The
district court’s observation of the presence of another African-
American juror is not itself impermissible. Ms. Baker’s presence
on the jury did not form the sole basis for the district court’s
denial of Minter’s Batson challenge.
The district court’s denial of Minter’s Batson challenge was
not clearly erroneous, and reversal is not warranted.
II. Fingerprint Testimony
Minter argues that the district court improperly allowed a
firearms expert to provide fingerprint testimony. “A district
6 court is accorded a wide discretion in determining the
admissibility of evidence under the Federal Rules.” United States
v. Abel, 469 U.S. 45, 54 (1984). Furthermore, “[u]nless there is
a reasonable possibility that the improperly admitted evidence
contributed to the conviction, reversal is not required.” United
States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990) (quoting
Schneble v. Florida, 405 U.S. 427, 431 (1972)).
The district court overruled Minter’s objections to Special
Agent Willard’s testimony. Willard testified that he had no
knowledge of the gun or bullets being submitted for fingerprint
analysis, that he had submitted evidence for fingerprinting
approximately fifty times, and that print examiners examined the
items and looked for an identifiable fingerprint. He explained
that “sometimes [the latent print examiner] can get a print that
shows fingerprints but there’s not enough on there to show
characteristics where he can take that fingerprint and compare it
to . . . the fingerprint card.” As a result, it was “possible”
that a firearm could have one hundred fingerprints but no
identifiable prints. Agent Willard admitted that he was not a
certified print examiner, had never been to print school, and did
not know how many points of comparison were necessary to make a
print.
The district court could have reasonably concluded that Agent
Willard’s testimony was based on his own personal participation and
7 observations and was not offered as an expert opinion. The
district court, therefore, did not abuse its discretion in
admitting Agent Willard’s testimony.
III. Sentencing
Minter asserts that the district court sentenced him under the
mandatory Sentencing Guidelines. The Government has not opposed
Minter’s request that his sentence be vacated in light of United
States v. Hughes, 401 F.3d 540, 552 (4th Cir. 2005). Consequently,
we vacate his sentence and remand the case to the district court
for resentencing.
IV. Cumulative Errors
Minter asserts that a number of issues constitute reversible
error when they are considered collectively. He alleges that the
district court erred when it refused to suppress gun and drug
evidence, when it allowed the case agent to remain in the
courtroom, when it admitted Fed. R. Evid. 404(b) evidence, when it
instructed the jury, and when it denied his motion for a new trial.
He also argues that his trial counsel provided ineffective
assistance. Although this court has recognized cumulative error as
a basis for reversal, see United States v. Martinez, 277 F.3d 517,
532 (4th Cir. 2002), Minter only suggests the possibility of error
and does not develop these arguments. Moreover, these “possible
8 errors” provide no basis for reversal, even when considered
cumulatively, because he has not shown that they are errors. We
decline to decide the issue of ineffective assistance of counsel
and leave it up to Minter to raise in a motion to vacate under 28
U.S.C. § 2255. See United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999).
CONCLUSION
Minter’s conviction is AFFIRMED, his sentence is VACATED, and
the case is REMANDED to the district court for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED