United States v. Estimable , 437 F. App'x 23 ( 2011 )

09-4106-cr
United States v. Thompson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 12th day of September, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 09-4106-cr
17
18 MARQUIS ESTIMABLE, BREEYAN SCOTT,
19 Defendants,
20
21 JAMES THOMPSON,
22 Defendant-Appellant.
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24
25 FOR APPELLANT: Joel N. Krane, Law Office of Joel N.
26 Krane, Rochester, New York.
27
28 FOR APPELLEE: Joseph J. Karaszewski, Assistant United
29 States Attorney, for William J. Hochul,
30 Jr., United States Attorney for the
1 Western District of New York, Buffalo,
2 New York.
3
4 Appeal from a judgment of conviction in the United
5 States District Court for the Western District of New York
6 (Larimer, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 AFFIRMED.
11
12 Defendant-Appellant James Thompson appeals from a
13 conviction for possessing with intent to distribute 50 grams
14 or more of cocaine base, in violation of 21 U.S.C. §§
15 841(a)(1) and 841(b)(1)(A), and of possessing a firearm in
16 furtherance of a drug-trafficking crime, in violation of 18
17 U.S.C. § 924(c). Thompson challenges his conviction on the
18 grounds that the district court erred in (1) refusing his
19 request to strike a juror for cause; (2) rejecting his
20 challenges under Batson v. Kentucky, 476 U.S. 79 (1986); and
21 (3) instructing the jury.
22
23 “We review a district court’s rejection of a
24 defendant’s for cause challenge to a juror for abuse of
25 discretion. Indeed, there are few aspects of a jury trial
26 where we would be less inclined to disturb a trial judge’s
27 exercise of discretion, absent clear abuse, than in ruling
28 on challenges for cause in the empaneling of a jury.”
29 United States v. Nelson, 277 F.3d 164, 201-02 (2d Cir.
30 2002) (internal quotation marks, citations, and alterations
31 omitted). When, as here, a juror is challenged for actual
32 bias, the district judge has broad discretion because a
33 finding of actual bias “is based upon determinations of
34 demeanor and credibility that are peculiarly within a trial
35 judge’s province.” Wainwright v. Witt, 469 U.S. 412, 428
36 (1985).
37
38 The potential juror had been the subject of an apparent
39 attempted car jacking five years earlier. Because the juror
40 evinced no sign of bias, and because she expressed
41 confidence that she could be fair and impartial, the fact
42 that the two would-be car thieves were the same race as
43 Thompson is insignificant. In any event, the potential
44 juror did not end up on the jury that convicted Thompson,
2
1 and without establishing that the resulting jury was not
2 impartial, Thompson cannot show that he was prejudiced. See
3 United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994).
4
5 A trial court’s determination under Batson as to
6 whether a peremptory challenge was made with discriminatory
7 intent is a factual determination that should be set aside
8 only if “clearly erroneous.” Hernandez v. New York, 500
9 U.S. 352, 369 (1991).
10
11 The district court’s rejection of Thompson’s two Batson
12 challenges was not clearly erroneous. The non-
13 discriminatory rationales offered by the government--
14 negative experience with police and lack of attentiveness
15 and interest during voir dire--are well-recognized in this
16 Circuit. See United States v. Rudas, 905 F.2d 38, 41 (2d
17 Cir. 1990) (“The Government had a basis for believing that
18 Colon might be prejudiced against law enforcement officers
19 and thus not be an impartial juror.”); id. (“[T]he
20 Government’s concern about a juror’s inattentiveness is a
21 good reason for its exercising a peremptory challenge.”);
22 see also United States v. White, 552 F.3d 240, 252 (2d Cir.
23 2009) (“[T]he government’s concern about a juror’s
24 inattentiveness or angry demeanor constitutes an acceptable
25 reason for the exercise of a peremptory challenge.”); Brown
26 v. Kelly, 973 F.2d 116, 121 (2d Cir. 1992) (“An impression
27 of the conduct and demeanor of a prospective juror during
28 the voir dire may provide a legitimate basis for the
29 exercise of a peremptory challenge.”).
30
31 Next, Thompson advances several claims of error as to
32 the district court’s jury instructions. We review the
33 propriety of jury instructions de novo, bearing in mind that
34 “[r]eversal is required only if the instructions, viewed as
35 a whole, caused the defendant prejudice.” United States v.
36 Naiman, 211 F.3d 40, 50-51 (2d Cir. 2000). The district
37 court did not err. Thompson argues that, as to joint and
38 sole possession, the district court instructed the jury that
39 it was required to find some form of possession. Not so;
40 the court emphasized repeatedly that the Government was
41 required to prove possession beyond a reasonable doubt.
42 Contrary to Thompson’s other assertions on appeal, the
43 court: appropriately instructed the jury that proximity to
44 the narcotics at issue was but one factor in determining
3
1 whether Thompson possessed those narcotics, cf. United
2 States v. Rios, 856 F.2d 493, 496 (2d Cir. 1988); made no
3 error in instructing the jury as to reasonable doubt, having
4 emphasized that the jury could find reasonable doubt based
5 on a lack of evidence; and properly instructed that the jury
6 was not to consider the validity of the search warrant for
7 Thompson’s Cadillac, see, e.g., Untied States v. Lustig, 163
8 F.2d 85, 88 (2d Cir. 1947) (observing that “where property
9 seized under a search warrant [i]s offered in evidence
10 against a defendant, the question whether it [i]s admissible
11 [i]s one for the court, and not for the jury”), or in
12 instructing the jury as to aiding and abetting liability,
13 see Untied States v. Mucciante, 21 F.3d 1228, 1234 (2d Cir.
14 1994) (“[I]t is well established that a trial judge may
15 properly give an aiding and abetting instruction even if the
16 indictment does not expressly charge a violation of 18
17 U.S.C. § 2.”).
18
19 Finally, though Thompson adverts briefly on appeal to
20 the testimony of a government witness that she had
21 identified Thompson in a “mug shot,” he raises this argument
22 only in passing and without citation to a single case or
23 articulation of the basis for this claim of error. But
24 “[i]t is a settled appellate rule that issues adverted to in
25 a perfunctory manner, unaccompanied by some effort at
26 developed argumentation, are deemed waived.” Tolbert v.
27 Queen’s Coll., 242 F.3d 58, 75 (2d Cir. 2001) (internal
28 quotation marks omitted). Under such circumstances, we
29 decline to address this argument.
30
31 We have considered Thompson’s remaining arguments and
32 find them to be without merit. For the foregoing reasons,
33 the judgment of conviction is AFFIRMED.
34
35
36 FOR THE COURT:
37 CATHERINE O’HAGAN WOLFE, CLERK
38
4