United States v. Nathaniel Newhouse

Opinion

FILED UNITED STATES COURT OF APPEALS AUG 24 2012

MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 10-50565

Plaintiff - Appellee, D.C. No. 2:08-cr-01147-DDP-1 Central District of California, v. Los Angeles

NATHANIEL NEWHOUSE, ORDER Defendant - Appellant.

Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.

The Memorandum disposition filed on June 15, 2012 is amended as follows:

On Page 4, line 16, insert the following text:

<

inquiry. The district court properly evaluated “the persuasiveness of

the justification[s]” offered by the prosecutor and concluded that

Newhouse failed to carry his burden. Purkett v. Elem, 514 U.S. 765,

768 (1995).>>

An amended Memorandum disposition is filed concurrently with this order. With this amendment, all judges have voted to DENY the petition for panel

rehearing. The petition for panel rehearing is DENIED. No further petitions shall

be entertained. FILED NOT FOR PUBLICATION AUG 24 2012

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

Plaintiff - Appellee, D.C. No. 2:08-cr-01147-DDP-1

v. AMENDED MEMORANDUM* NATHANIEL NEWHOUSE,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding

Argued and Submitted May 10, 2012 Pasadena, California

Defendant-appellant Nathaniel Newhouse (“Newhouse”) was convicted

following a jury trial of possession with intent to distribute the prescription street

drugs oxycodone, hydromorphone, and hydrocodone in violation of 21 U.S.C. §

841 (a)(1). On appeal, Newhouse challenges the district court’s denial of his

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. motion to suppress evidence and his Batson motion. We have jurisdiction under

18 U.S.C. § 1291 and we AFFIRM.

We review the district court’s denial of Newhouse’s motion to suppress de

novo. United States v. Forrester, 512 F.3d 500, 506 (9th Cir. 2008). Newhouse

argues that he was arrested when Drug Enforcement Agents (“DEA”) positioned

their vehicles to block his vehicle from exiting the parking lot, and approached his

vehicle with their weapons drawn while one agent stated “stop.” We agree.

Newhouse’s freedom of movement was restricted entirely at the moment the agents

approached his vehicle at gunpoint and subjected him to official orders. United

States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974).

The arrest did not violate Newhouse’s Fourth Amendment rights, however,

because it was supported by probable cause. Newhouse was arrested following

DEA agents’ surveillance of a pharmacy where pharmacists had alerted the DEA to

an unusual number of prescriptions for oxycodone filled by patients associated

with Dr. Efrain Sanchez. Agents observed three persons each fill two prescriptions

for popular street drugs containing oxycodone and hydrocodone prescribed by Dr.

Sanchez, and depart together with a fourth person who did not fill any

prescriptions. At least one of the individuals appeared to have multiple, additional

prescriptions in his possession. Agents followed the individuals to the parking lot

2 of a donut shop fourteen miles away where, one hour later, they observed a

rendezvous with two other vehicles. The individual who did not fill any

prescriptions delivered a white paper bag that appeared to be a pharmacy bag to

Mr. Newhouse. Considering the totality of the circumstances, the agents

collectively possessed “reasonably trustworthy information sufficient to warrant a

prudent person in believing that [Newhouse] had committed or was committing an

offense.” United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1296 (9th Cir.

1988); see also United States v. Bernard, 623 F.2d 551, 560-61 (9th Cir. 1979).

The district court’s denial of Newhouse’s Batson motion is reviewed for

clear error. Felkner v. Jackson, 131 S. Ct 1305, 1307 (2011) (per curium).

Because Batson challenges turn “largely on [the district court’s] evaluation of

credibility,” the district court’s “determination is entitled to great deference.” Id.

(citation and internal quotation marks omitted). Here, the district judge found that

the government’s exercise of a peremptory strike against Juror 27, the sole

African-American member of the venire, was not motivated by racial animus. This

finding was not in error.

The government offered three, race-neutral reasons for striking Juror 27: her

alleged disorientation, her medical issues, and her statement reflecting potential

bias against police officers. The district court discredited the first reason, finding

3 that Juror 27 was oriented despite her failure to remember her juror number on

several occasions. Neither of the government’s additional proffered reasons was

clear pretext, however. Juror 27 admitted to frequently needing powerful

medications for back pain that could affect her judgment and ability to concentrate.

The government’s concern about this issue, despite the district court’s proposal

that Juror 27 could stand whenever her back was bothering her, was not pretextual.

See Rice v. Collins, 546 U.S. 333, 341 (2006). In addition, in light of Juror 27’s

statement that, at some point in the past, she believed that police target young black

men, the government’s concern that she continued to harbor such bias was not

pretextual. See Felker, 131 S. Ct. at 1306. Moreover, the government struck all

three jurors who reported negative experiences with law enforcement, although all

three averred that they believed they could be fair. See Ali v. Hickman, 584 F.3d

1174, 1192 (9th Cir. 2009) (employing comparative juror analysis). Considering

the totality of the circumstances, the district court’s finding that the government

offered non-pretextual, race-neutral reasons for striking Juror 27 was not clearly

erroneous. Nor did the district court clearly err at step three of the Batson inquiry.

The district court properly evaluated “the persuasiveness of the justification[s]”

offered by the prosecutor and concluded that Newhouse failed to carry his burden.

Purkett v. Elem, 514 U.S. 765, 768 (1995).

4 AFFIRMED.