United States v. Smith , 357 F. App'x 555 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4398
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDERICK J. SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00032-RLW-1)
Submitted: December 1, 2009 Decided: December 18, 2009
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Michael A.
Jagels, Special Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frederick J. Smith appeals from his jury convictions
for possession with intent to distribute marijuana and
possession of a firearm in furtherance of a drug trafficking
crime. On appeal, he challenges the sufficiency of the evidence
supporting his convictions and the denial of his challenge
pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). We affirm.
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690(2008). We review a sufficiency of the evidence challenge by
determining whether, viewing the evidence in the light most
favorable to the Government, any rational trier of fact could
find the essential elements of the crime beyond a reasonable
doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir.
2005). We will uphold the jury’s verdict if substantial
evidence supports it and will reverse only in those rare cases
of clear failure by the prosecution. Foster, 507 F.3d at
244-45. We do not review the credibility of the witnesses and
assume that the jury resolved all contradictions in the
testimony in favor of the government. Id. at 245.
To convict a defendant of possession with the intent
to distribute, the Government must prove knowing possession of a
controlled substance with the intent to distribute. Collins,
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412 F.3d at 519. To establish a 18 U.S.C. § 924(c)(1) (2006)
violation, the Government must present evidence “indicating that
the possession of [the] firearm furthered, advanced, or helped
forward a drug trafficking crime.” United States v. Lomax, 293
F.3d 701, 705 (4th Cir. 2002).
Smith first contends that he did not possess either
the marijuana or the firearm. Possession may be actual or
constructive. United States v. Rusher, 966 F.2d 868, 878 (4th
Cir. 1992) (possession of a controlled substance). When the
Government seeks to establish constructive possession, it must
prove that the defendant intentionally exercised dominion and
control or had the power and the intention to exercise dominion
and control over the item in question. United States v. Scott,
424 F.3d 431, 435-36 (4th Cir. 2005). Possession may be
established by circumstantial evidence. United States v.
Schocket, 753 F.2d 336, 340 (4th Cir. 1985).
Here, viewing the evidence in the light most favorable
to the Government, the marijuana and firearm were in plain view
in a car in which Smith was the only occupant. Smith was also
found with marijuana and a substantial amount of cash on his
person, despite being unemployed. Finally, Smith fled from the
police, leading them on a dangerous high-speed chase. The
combined evidence was easily sufficient for the jury to reach
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the conclusion that Smith was in possession of both the
marijuana and the firearm.
Next, Smith argues that there was insufficient
evidence to prove that the gun was used in furtherance of a drug
trafficking crime. Whether a firearm served such a purpose is a
question of fact. Lomax, 293 F.3d at 705. A series of factors
that might lead a reasonable finder of fact to conclude the
existence of a connection between a defendant’s possession of a
firearm and his drug trafficking crime include, but are not
limited to: “the type of drug activity that is being conducted,
accessibility of the firearm, the type of weapon, whether the
weapon is stolen, the status of the possession (legitimate or
illegal), whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the gun is
found.” Id.Here, Smith was found with cash proceeds and a
significant amount of marijuana, some of which was packaged for
individual sale; the semi-automatic firearm was loaded, within
reaching distance, and sitting on top of a large bag of
marijuana; and an expert witness testified that the firearm was
likely used in furtherance of drug trafficking. Given the Lomax
factors, the evidence was sufficient to support the firearm
conviction. See id. at 706 (noting that court may arrive at
common sense conclusion that when someone is found with both
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drugs and a firearm, the gun is present to further drug
trafficking).
Turning to Smith’s Batson challenge, Smith contends
that the Government improperly exercised two peremptory strikes
against black jurors when the reasons given applied with equal
or greater force to unchallenged white jurors. Specifically,
the first juror at issue was dismissed due to illness--she was
allegedly coughing, sweating, and sniffling. The second juror
was dismissed on the basis of his unemployed status. In
district court, Smith did not point to any white jurors who were
sick or unemployed and were not stricken. Even on appeal, Smith
notes that “the record is silent on these points,” but contends
that “other members of the panel may well have had a cold or
been unemployed.” (Appellant’s Br. at 20).
The Equal Protection Clause forbids the use of a
peremptory challenge for a racially discriminatory purpose. See
Batson v. Kentucky, 476 U.S. 79, 86 (1986). We afford great
deference to a district court’s determination of whether a
peremptory challenge was exercised for a racially discriminatory
reason and review the district court’s rulings on that point for
clear error. Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.
1995).
Generally, a Batson challenge consists of three steps:
(1) the defendant makes a prima facie case of racial
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discrimination; (2) the Government offers a race-neutral
explanation for its strikes; and (3) the trial court decides
whether the defendant has carried its burden and proved
purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 767
(1995). The second step of the Batson inquiry does not require
that the Government’s proffered rationale for the strike be
persuasive or even plausible. Purkett, 514 U.S. at 768. All
that is required is that the reason be race-neutral. Id. at
768-69.
At the third step, the “defendant may rely on all
relevant circumstances to raise an inference of purposeful
discrimination.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)
(internal quotation marks omitted). While the defendant need
not “point to an identical juror of another race who was not
peremptorily challenged,” direct comparisons between similarly
situated venire-persons of different races are probative.
Golphin v. Branker, 519 F.3d 168, 179 (4th Cir.), cert. denied,
129 S. Ct. 467 (2008). The ultimate burden to demonstrate
purposeful discrimination remains always with the opponent of
the strike. See Batson, 476 U.S. at 96-98; United States v.
McMillon, 14 F.3d 948, 953 & n.4 (4th Cir. 1994) (defendant must
show that the Government’s stated reason was pretextual and that
race was “real reason” for strike).
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Here, the Government’s proffered reasons for striking
the prospective jurors--illness and unemployment--were clearly
race-neutral and are permissible bases upon which to strike.
See Smulls v. Roper, 535 F.3d 853, 866 (8th Cir. 2008)
(occupation is a legitimate race-neutral reason to strike),
cert. denied, 129 S. Ct. 1905 (2009); United States v. Lane, 866
F.2d 103, 106 (4th Cir. 1989) (numerous factors, including
potential juror’s “general appearance and demeanor” may properly
influence prosecutor’s decision to strike). Because the
Government provided race-neutral explanations for its strikes,
the burden shifted to Smith to prove that the explanations given
were pretext for discrimination and that race was the real
reason for the strikes. McMillon, 14 F.3d at 953. This Smith
failed to do. He relies only on conjecture that the panel “may”
have included others similarly situated. Such suppositions,
without any support whatsoever, are insufficient to show clear
error on the part of the district court.
Based on the foregoing, we affirm Smith’s convictions.
We deny Smith’s motion to file a pro se supplemental brief. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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