United States v. Nathaniel Newhouse ( 2012 )

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:
<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NOT FOR PUBLICATION AUG 24 2012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
UNITED STATES OF AMERICA, No. 10-50565
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
Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.
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
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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
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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).
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AFFIRMED.
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