United States v. Tavaughn Saylor , 626 F. App'x 802 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12174
________________________
D.C. Docket No. 1:13-cr-00161-CAP-JSA-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TAVAUGHN SAYLOR,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 8, 2015)
Before JORDAN and FAY, Circuit Judges, and WALKER, * District Judge.
PER CURIAM:
*
Honorable Mark E. Walker, United States District Judge for the Northern District of
Florida, sitting by designation.
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Tavaughn Saylor appeals his conviction, following a jury trial, for
possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). Mr.
Saylor argues that the district court erred by (1) taking judicial notice that one of
his prior convictions was a felony punishable by more than one year in prison,
without instructing the jury that it was not required to accept the noticed fact, and
(2) failing to remedy an alleged error under Batson v. Kentucky, 476 U.S. 79
(1986). After reviewing the record and the parties’ briefs, and with the benefit of
oral argument, we affirm Mr. Saylor’s conviction.
I
First, we review Mr. Saylor’s argument that the district court erroneously
directed a verdict for the government when it took judicial notice of the felony
nature of one of his prior convictions, under Federal Rule of Evidence 201(f),
without providing a limiting instruction to the jury. We review the district court’s
evidentiary rulings, including a decision on whether to take judicial notice, for
abuse of discretion. See United States v. Marizal, 421 F.2d 836, 837 (5th Cir.
1970). 1 Similarly, we review a district court’s jury instructions under the same
deferential standard, and we reverse only if there is a reasonable likelihood that the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
2
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error affected the defendant’s substantial rights. See United States v. Wright, 392
F.3d 1269, 1277 (11th Cir. 2004).
A
To prove that a defendant is guilty of being a felon in possession of a
firearm, the government must show (1) that the defendant has been convicted in
any court of a crime punishable by imprisonment for a term exceeding one year,
(2) that the defendant was in knowing possession of a firearm, and (3) that the
firearm was in or affecting interstate commerce. See 18 U.S.C. § 922(g)(1); United
States v. Beckles, 565 F.3d 832, 841 (11th Cir. 2009). At issue here is whether the
district court abused its discretion by taking judicial notice of the fact that Mr.
Saylor’s prior conviction was punishable by more than one year.
During Mr. Saylor’s trial, the government asked Detective Andrew Thorne
about Mr. Saylor’s 2009 New York conviction, which was based on a guilty plea
to attempted criminal possession of a weapon in the second degree. The
government asked if the conviction was a felony offense, to which Detective
Thorne responded in the affirmative. Detective Thorne then testified that the New
York state court sentenced Mr. Saylor to one year of imprisonment. The
government asked Detective Thorne whether Mr. Saylor could have received more
than one year in prison, and Detective Thorne answered that “[i]t depends on the
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charge.” When asked about Mr. Saylor’s “particular charge,” Detective Thorne
again replied that Mr. Saylor “was sentenced to one year.” [D.E. 62 at 39]
Before the jurors were brought into the courtroom the next morning of trial,
the government asked the district court to take judicial notice of the fact that Mr.
Saylor’s prior New York conviction was “a violent felony offense that is
punishable by more than a year in prison.” Mr. Saylor objected, arguing that the
district court would be directing a verdict on an element of the charged crime. The
government responded that the “ultimate question” was whether Mr. Saylor was
the same individual who had been convicted in 2009 in New York of attempted
criminal possession of a weapon—something Mr. Saylor disputed at trial. Mr.
Saylor replied that Federal Rule of Evidence 201 allows a district court to take
notice of only adjudicated facts, and because this was a legislative fact, it was not
proper for the district court to take judicial notice. Mr. Saylor never requested that
the district court, under Rule 201(f), instruct the jury that it could disregard the
noticed fact. [Id. at 3-6]
The government provided the district court with a copy of the New York
statute under which Mr. Saylor was convicted. The district court then overruled
Mr. Saylor’s objection. After the jury was called in, at the government’s request,
the district court took judicial notice that a conviction in New York for attempted
criminal possession of a weapon under § 265.03 “is a class D violent felony
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punishable by more than one year.” Mr. Saylor also objected, in part on the same
grounds, during a motion for judgment of acquittal and during the charge
conference. These objections were overruled. [Id. at 6–7, 14-15, 20–21]
B
“[T]he Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The
Clause prohibits a district court from giving an instruction that shifts the burden of
proof to the defendant by means of a burden-shifting or conclusive presumption.
Sandstrom v. Montana, 442 U.S. 510, 524 (1979).
Federal Rule of Evidence 201 provides that a district court may take judicial
notice of an adjudicative fact that is not subject to reasonable dispute because it is
(1) generally known within the court’s territorial jurisdiction, or (2) accurately and
readily determinable from sources whose accuracy cannot reasonably be
questioned. See Fed. R. Evid. 201 (a)–(b). “In a criminal case, the court must
instruct the jury that it may or may not accept the noticed fact as conclusive.” Fed.
R. Evid. 201(f).
Rule 201 does not apply to legislative facts. See United States v. Bowers,
660 F.2d 527, 530 (5th Cir. Unit B Sept. 1981). “Legislative facts are established
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truths, facts[,] or pronouncements that do not change from case to case but apply
universally, while adjudicative facts are those developed in a particular case.” Id.
at 531 (internal quotation marks and citation omitted). When the district court
judicially notices a legislative fact, it need not instruct the jury that it may decline
to accept the noticed fact. See id.
We confronted a similar issue in United States v. Anderson, 782 F.2d 908
(11th Cir. 1986), a case involving an alleged violation of the Racketeer Influenced
Corrupt Organizations Act, 18 U.S.C. § 1961 et. seq., which requires the
commission of two state-law felony offenses. We determined in Anderson that the
felony nature of the predicate state offenses is a legislative fact appropriate for
judicial notice, and that no further instruction was needed. See 782 F.2d at 917.
See also United States v. Clements, 588 F.2d 1030, 1037 (5th Cir. 1979)
(concluding that the district court did not err by instructing the jury on the state law
predicate offense the defendant allegedly violated under 18 U.S.C. § 1955, even
though the government never requested the court to take judicial notice of the
statute).
Mr. Saylor did not in the district court, and does not now on appeal, contest
the accuracy of the district court’s noticed fact. His only argument is that the
district court violated his due process rights by relieving the government of its
burden to prove an element of his charged offense. Under our prior precedent, he
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is wrong. The district court did not abuse its discretion because the felony nature
of a state-law offense is a legislative fact subject to judicial notice. See Anderson,
782 F.2d at 917. Because the fact at issue here was legislative and not
adjudicative, Rule 201 did not apply, and the district court was not required to
instruct the jury that it could decline to accept the noticed fact. See Bowers, 660
F.2d at 530–31.
II
Next, we review Mr. Saylor’s argument that the district court erred in failing
to take remedial action after concluding that the government’s peremptory strike of
a prospective alternate juror, who was a white male, violated Batson. Where a
party alleges a Batson violation, we review jury selection de novo, but we review
the district court’s underlying factual findings for clear error. See United States v.
Campa, 529 F.3d 980, 992 (11th Cir. 2008).
A
Mr. Saylor’s Batson challenge was based on an assertion that the
government used its peremptory strikes to remove jurors based on race and gender.
The record shows that the government exercised all seven of its peremptory strikes
against white persons, five of whom were men. The seventh strike, at issue here,
was against a white male and a prospective alternate. At first, the district court
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overruled the defense’s objection, finding Mr. Saylor had not “laid out any kind of
prima facie case.” [D.E. 61 at 30]
Following a lunch break, the district court said that it had “been reading
some law” and revisited Mr. Saylor’s Batson challenge. [Id. at 34] The district
court did not affirmatively find that Mr. Saylor had met his prima facie burden, but
stated “Well, all right. Well, let me ask the government to proffer a reason for
their strikes then one at a time.” [Id. at 34–35]
The government offered similar reasons for its first six strikes—five
individuals stated that they were not certain that all felons should lose their gun
rights and the sixth stated that she had concerns and/or negative opinions about
federal investigations like the IRS scandal and the Benghazi investigation. The
district court found that the six reasons were “legitimate” and “really the reason the
strike was exercised.” [Id. at 35–40]
The government used its seventh strike on a prospective alternate juror,
Juror 34. The government said that it struck Juror 34—a white male—because he
had a daughter who worked for Homeland Security, and it did not know “how that
was going to play.” Mr. Saylor argued that such a reason was even more
supportive of an inference that the strike was exercised based on gender or race.
The district court never definitively stated how it ruled on the strike, and it never
said whether the government’s proffered reason was credible or not.
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The district court, however, appeared to make statements supporting both
sides of the issue. On one hand, the district court stated “I think [the defendant]
make[s] a pretty valid point as to Juror 34,” [id. at 40]; and “I tend to agree with
[the defendant]. It’s crazy to me to strike a juror because his daughter works for
Homeland Security.” [Id. at 41] On the other hand, the district court also stated “I
don’t have to make that decision [on the government’s strike of the alternate] right
now . . . until one of the two alternates come into the deliberation, which is about a
50/50 chance with the snow coming,” [id. at 42] and noted that the jurors were
“under instructions not to discuss the case with each other.” [Id. at 42]
After making these statements, the district court said that “I will note for the
record . . . on this alternate . . . I have seen some of the dumbest strikes on behalf
of the government,” [id. at 42] and that “I can take judicial notice since I have been
here, there is not a lot of—what’s the word I want—logic to some of their strikes.”
The district court then stated: “So I guess if there is not any logic to the strikes, it is
race neutral. All right.” [Id. at 43]
The district court did not reseat Juror 34, so it effectively allowed the
government’s strike and denied Mr. Saylor’s Batson challenge. The alternate who
was chosen in Juror 34’s place did not deliberate.
On appeal, Mr. Saylor contends that the district court (1) erroneously ruled
that he failed to make a prima facie case of race and gender discrimination, (2)
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made the prima facie issue moot under Hernandez v. New York, 500 U.S. 352
(1991) (plurality opinion), when it asked the government to explain its peremptory
strikes, and (3) erred in finding that a Batson violation was subject to harmless
error review. The government disputes that the district court concluded that Mr.
Saylor made a prima facie case and argues that Mr. Saylor could not have made
such a case based on statistics alone. The government also argues that Mr. Saylor
cannot show that its reasons for striking Juror 34 were pretext for discrimination
and that any error was ultimately harmless, because the alternate juror never sat
with the jury during deliberations. 2
B
Generally, a party may exercise its peremptory challenges on any legitimate
ground related to that party’s view of the potential outcome of the case. See
Batson, 476 U.S. at 89. Striking a juror on the basis of the juror’s race or gender,
2
There is currently an undecided issue in our circuit, and a circuit split elsewhere, about
whether a Batson error is structural or subject to harmless error analysis when the discriminatory
strike is on a prospective alternate and no alternate ends up deliberating. Compare United States
v. Harris, 192 F.3d 580, 587–88 (6th Cir. 1999) (holding that the selection of alternate jurors
“affects the entire conduct of the trial,” and thus, a “district court’s decision” on “the peremptory
challenges of . . . alternate jurors is not subject to harmless error review”), with United States v.
Lane, 866 F.2d 103, 106 n.3 (4th Cir. 1989) (stating—in dicta—that if a discriminatory strike
was made against a prospective alternate juror, and the alternate juror who replaced the struck
juror was never called to serve as a deliberating member of the jury, the defendant “would not
have been prejudiced by the peremptory challenge . . . regardless of the stated reason”), and
Nevius v. Sumner, 852 F.2d 463, 468 (9th Cir. 1988) (holding that a Batson challenge was
harmless, because even though the prosecutor’s reasons for striking a prospective alternate juror
were vague, the replacement juror was never called to serve in the defendant’s case). We also
note that the Supreme Court recently applied a harmless error analysis to a Batson claim. But
that claim was reviewed under AEDPA, and the defendant did not argue the error warranted
automatic reversal. See Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015).
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however, violates the Equal Protection Clause. See id. (race); J.E.B. v. Alabama ex
rel T.B., 511 U.S. 127, 146 (1994) (gender). As a result, the defendant may
challenge the government’s peremptory strikes if they raise an inference of
purposeful discrimination. See Batson, 476 U.S. at 96. A defendant has standing
to present a Batson claim where the government uses race as the sole reason to
exclude a juror, even if the dismissed juror and the defendant are of different races.
See Powers v. Ohio, 499 U.S. 400, 415 (1991).
Batson established a three-step, burden shifting framework for determining
whether peremptory strikes are the result of racial animus. See United States v.
Houston, 456 F.3d 1328, 1335 (11th Cir. 2006). First the defendant must establish
a prima facie case sufficient to raise an inference of discriminatory intent. Second,
the government may rebut the inference by articulating legitimate, race-neutral
reasons for its peremptory strikes. Third, the court must evaluate the credibility of
the government’s proffered reasons in light of all evidence. See id.
At the prima facie case step of the Batson inquiry, the district court must
consider the peremptory strikes used to select alternates together with those used to
select the initial 12 jurors. See United States v. Hill, 643 F.3d 807, 838 (11th Cir.
2011). The prima facie case determination cannot be based on numbers alone, but
should be made in light of the totality of the circumstances. See id. at 839. The
defendant, therefore, “must point to more than the bare fact of the removal of
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certain venirepersons and the absence of an obvious valid reason for the removal.”
United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990) (internal quotation
marks and citation omitted).
In deciding whether a defendant has made a prima facie case under Batson,
the district court should consider any circumstances that support an inference of
discrimination, such as a pattern of strikes against jurors of a given race or gender,
comments by the prosecutor during voir dire suggesting a discriminatory purpose,
and whether venire members of one race or gender were excluded even though
they possessed the same qualities as venire members of a different race or gender
who were chosen. See id. See also United States v. Robertson, 736 F.3d 1317,
1326 (11th Cir. 2013) (holding that the district court could consider the subject
matter of the case being tried and the racial composition of the venire members).
At the second step of the Batson inquiry, the government must provide a
race-neutral explanation for its strikes. See Hill, 643 F.3d at 837. The reason
provided does not need to be “good,” and in fact, can be “irrational, silly[,] or
superstitious.” See id. (internal quotation marks and citation omitted). But it
cannot be discriminatory. See id. The defendant bears the ultimate burden of
persuasion to show that the government’s strike was discriminatory. See Houston,
456 F.3d at 1335.
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During the third step, “the district court’s determination concerning the
actual motivation behind each challenged strike amounts to pure factfinding, and . .
. we will reverse the district court’s determination only if it is clearly erroneous.”
United States v. Stewart, 65 F.3d 918, 923 (11th Cir. 1995). We therefore keep in
mind that the district court’s “assessment of the prosecutor’s credibility” is
“entitled to great deference.” Houston, 456 F.3d at 1337 (internal quotation marks
and citation omitted).
C
We have said that the district court should not require a party to provide
reasons for its peremptory strikes without first finding that the challenging party
has established a prima facie case of discrimination. See Robertson, 736, F.3d at
1326. See also Allison, 908 F.2d at 1537. In Hernandez, where the prosecutor had
offered a reason for its peremptory strikes without first being prompted by the trial
court, the Supreme Court said that, once the government has offered a non-
discriminatory reason for its peremptory strikes and the trial court has ruled on the
ultimate question of discrimination, the preliminary issue of whether the defendant
established a prima facie case becomes moot, and the standard inquiry into the
objecting party’s prima facie case is unnecessary. See Hernandez, 500 U.S. at 359,
372.
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In Stewart, however, we declined to extend this aspect of Hernandez, noting
that Hernandez was a plurality opinion, which was not binding, and that in
Hernandez, the prosecutor had offered reasons for its peremptory strikes without
first being prompted by the court. See Stewart, 65 F.3d at 924. We likewise
decline to extend Hernandez to the circumstances in this case.
The district court here explicitly ruled that Mr. Saylor had not made a prima
facie case that the government used its strike against Juror 34 in a discriminatory
manner. [D.E. 61 at 30] Although we acknowledge that the district court later
asked the government to provide a non-discriminatory reason for its strike, we
think it critical that the district court never changed its prior ruling. See Stewart,
65 F.3d at 923 (giving “great deference to the district court’s finding as to the
existence of a prima facie case”). And even if we were examining the district
court’s finding de novo, we would come to the same conclusion. Mr. Saylor has
pointed to no evidence, either in the district court or on appeal—other than the
number of white and male venire members that the government struck—in making
his prima facie case. This is not sufficient under our precedent. See Hill, 643 F.3d
at 839. See also Allison, 908 F.2d at 1538.
As Mr. Saylor failed to establish that the government violated Batson, there
was no need for the district court to take remedial action. Thus, we need not
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decide whether a Batson error that resulted in the striking of an alternate juror,
when no alternate deliberated, is subject to harmless error analysis.
III
We conclude that the district court did not err in taking judicial notice of the
felony nature of Mr. Saylor’s prior conviction, or in its ruling on Mr. Saylor’s
Batson challenge concerning Juror 34. We thus affirm Mr. Saylor’s conviction.
AFFIRMED.
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