United States v. George Lambert ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4431
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE ALLAN LAMBERT,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:19-cr-00085-MR-WCM-1)
Submitted: May 14, 2021 Decided: June 1, 2021
Before WILKINSON, DIAZ, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William D. Auman, AUMAN LAW OFFICES, Asheville, North Carolina, for Appellant.
William T. Stetzer, Acting United States Attorney, Amy E. Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Allan Lambert appeals after a jury convicted him of assault resulting in
serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6), 1153 (Count 3); and assault
with a dangerous weapon with intent to do bodily harm, in violation of 18 U.S.C.
§§ 113(a)(3), 1153 (Count 4). Finding no reversible error, we affirm the district court’s
judgment.
I.
Lambert first argues that the district court erred in rejecting his Batson1 challenge
to two of the Government’s peremptory strikes. The Equal Protection Clause prohibits the
use of peremptory challenges based solely on race or gender. Batson, 476 U.S. at 86; J.E.B.
v. Alabama ex rel. T.B., 511 U.S. 127, 128-29 (1994). Great deference is given to a district
court’s determination of whether a peremptory challenge was based on a discriminatory
motive, and we review the court’s ruling for clear error. United States v. Dinkins, 691 F.3d
358, 379-80 (4th Cir. 2012). Generally, a Batson challenge consists of three steps: (1) the
defendant makes out a prima facie case of discrimination; (2) the Government offers a race-
neutral explanation for the strike; and (3) the trial court decides whether the defendant has
carried his burden and proved purposeful discrimination. Purkett v. Elem, 514 U.S. 765,
767-68 (1995). However, “we will not examine whether the defendant has met his burden
in establishing a prima facie case where the prosecutor articulates reasons for his strikes.”
United States v. McMillon, 14 F.3d 948, 952 (4th Cir. 1994).
1
Batson v. Kentucky, 476 U.S. 79 (1986).
2
A defendant may show purposeful discrimination by demonstrating that the
opposing party’s explanation is a mere pretext for racial discrimination. United States v.
Farrior, 535 F.3d 210, 221 (4th Cir. 2008), abrogated on other grounds by Rodriguez v.
United States, 575 U.S. 348 (2015). However, pretext alone is insufficient to succeed on
a Batson challenge; the defendant still must show “that race was the real reason for the
strike.” McMillon, 14 F.3d at 953. To make this showing, the “defendant may rely on all
relevant circumstances to raise an inference of purposeful discrimination.” Golphin v.
Branker, 519 F.3d 168, 179 (4th Cir. 2008) (internal quotation marks omitted). “The
outcome of a typical Batson challenge turns largely on an evaluation of credibility and
whether counsel’s race-neutral explanation for a particular challenge is believed.” Dinkins,
691 F.3d at 379. The “district court is particularly well-suited to resolve challenges to
peremptory strikes of jurors, as it has first-hand knowledge of the very act in dispute.”
United States v. Green, 599 F.3d 360, 377 (4th Cir. 2010).
We conclude that the district court did not clearly err in rejecting Lambert’s Batson
challenge. As to Prospective Juror 3, the Government provided a more than adequate
reason for striking her—she had heard about the case and knew the victim. Although
striking her removed the last Native American from the jury pool, there were no other
jurors left in the jury pool that had such knowledge of the case after Prospective Juror 6
was struck for cause. 2 And, as the Government correctly notes, the Sixth Circuit has
2
Lambert does not argue that the district court erred in striking Prospective Juror 6
for cause.
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concluded that a prospective juror’s potential knowledge of a case is a sufficient race
neutral reason to overcome a Batson challenge. See United States v. Barker, 69 F. App’x
208, 211 (6th Cir. 2003).
The district court also did not clearly err in rejecting Lambert’s Batson challenge as
to Prospective Juror 13A. The Government asserted two race-neutral reasons for striking
her: her sporadic work history, which made the prosecutor concerned that she could not
pay attention to the testimony, and her acquaintance with another juror. Taken together,
those reasons provided a valid, race-neutral rationale for striking this juror. See Dinkins,
691 F.3d at 381 (The Government’s explanation need not be plausible or persuasive “so
long as discriminatory intent is not inherent in the explanation” and may rely on a
prospective juror’s employment.). And we discern no reason to believe that the provided
reasons were pretext for impermissible discrimination. Therefore, we conclude that the
district court did not clearly err in rejecting Lambert’s Batson challenge.
II.
Next, Lambert contends that there is insufficient evidence to support his convictions
and, thus, the district court erred in denying his motion for judgment of acquittal. “We
review the denial of a motion for judgment of acquittal de novo.” United States v. Savage,
885 F.3d 212, 219 (4th Cir. 2018). In assessing the sufficiency of the evidence, we
determine whether there is substantial evidence to support the convictions when viewed in
the light most favorable to the Government. Id. “Substantial evidence is evidence that a
reasonable finder of fact could accept as adequate and sufficient to support a conclusion of
a defendant’s guilt beyond a reasonable doubt.” United States v. Rodriguez-Soriano, 931
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F.3d 281, 286 (4th Cir. 2019) (brackets and internal quotation marks omitted). In making
this determination, we may not resolve conflicts in the evidence or evaluate witness
credibility. Savage, 885 F.3d at 219. “A defendant who brings a sufficiency challenge
bears a heavy burden, as appellate reversal on grounds of insufficient evidence is confined
to cases where the prosecution’s failure is clear.” Id. (internal quotation marks omitted).
To convict Lambert on Count 3, the Government was required to establish “(1) an
intentional assault that (2) result[ed] in serious bodily injury, committed (3) by an Indian
and (4) within Indian Country.” United States v. Littlewind, 595 F.3d 876, 884 (8th Cir.
2010) (internal quotation marks omitted). A serious bodily injury is one that involves “a
substantial risk of death”; “extreme physical pain”; “protracted and obvious
disfigurement”; “or protracted loss of impairment of the function of a bodily member,
organ, or mental faculty.” 18 U.S.C. §§ 113(b)(2), 1365(h)(3). Count 4 “required proof:
(1) of an assault, (2) with the use of a dangerous weapon, (3) with the intent to do bodily
harm, (4) by an Indian, and (5) within Indian Country.” Littlewind, 595 F.3d at 884; see
also United States v. Sturgis, 48 F.3d 784, 786 (4th Cir. 1995).
We conclude that the Government met its burden. We may not disturb the jury’s
necessary finding that Lambert’s assertion of self-defense was not credible. Moreover, the
objective evidence is consistent with the victim’s testimony, as Lambert’s testimony only
explains two of the victim’s three wounds. While the Government did not offer testimony
from the victim’s treating physicians, this does not foreclose a finding that the victim
suffered a serious bodily injury. The jury saw the victim’s injuries and the victim testified
that he suffered severe pain. Moreover, an EMT testified that the victim’s wounds were
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life threatening. Finally, the nature of the victim’s injuries permits the inference that
Lambert intended to do bodily harm. Accordingly, we affirm Lambert’s convictions.
III.
Finally, Lambert argues that the district court erred in ordering him to reimburse his
court-appointed counsel. Courts are authorized to require repayment of funds for appointed
counsel upon a finding that “funds are available for payment from or on behalf of a person
furnished representation.” 18 U.S.C. § 3006A(f). In United States v. Moore, we held that
“the district court must base the reimbursement order on a finding that there are specific
funds, assets, or asset streams (or the fixed right to those funds, assets or asset streams) that
are (1) identified by the court and (2) available to the defendant for the repayment of the
court-appointed attorneys’ fees.” 666 F.3d 313, 322 (4th Cir. 2012). “[A] repayment order
may be based on identified funds and assets, even if those assets will not become liquid
until a future date, such as the escrow payment from an upcoming sale of real property, the
scheduled disbursement of proceeds from a trust, or continuing payments under a
promissory note or contract.” Id. at 324. Additionally, § 3006A(f) “requires a finding of
a defendant’s ability to make payments as a condition precedent to an order of
reimbursement.” Id. at 322. This “finding must be based on evidence before the court . . .
and not on speculation or hypothesis.” Id.
Generally, in considering an order for reimbursement, “we review the district
court’s legal determinations de novo, and its factual findings for clear error.” Id. at 320.
However, because Lambert did not object to the reimbursement order, we review for plain
error. To succeed on plain error review, Lambert must show that “(1) an error was made;
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(2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United States
v. Ramirez-Castillo, 748 F.3d 205, 212 (4th Cir. 2014).
We conclude that Lambert cannot establish plain error. While Lambert now attacks
the district court’s finding that he was entitled to distributions from the tribe as speculative,
his latest disbursement was listed in the PSR, and Lambert did not object to this portion of
the PSR. See United States v. Mondragon, 860 F.3d 227, 233 (4th Cir. 2017) (“[T]he
defendant bears an affirmative duty to show that the information in the [PSR] is unreliable,
and articulate the reasons why the facts contained therein are untrue or inaccurate.”
(internal quotation marks omitted)). Thus, the district court sufficiently identified that
stream of assets from which Lambert could reimburse his appointed counsel’s attorney’s
fees. While he argues that the district court’s findings were not specific enough because it
did not discuss his prospects for future employment, negative net worth, and the amount
of money he would need to sustain himself after his release, our cases vacating
reimbursement orders focused on the lack of any findings, not findings that lacked such
specificity. See United States v. Hall, 495 F. App’x 319, 326 (4th Cir. 2012) (No. 10-4995)
(argued but unpublished); United States v. Pegues, 493 F. App’x 396, 401 (4th Cir. 2012)
(No. 11-4960); United States v. Stafford, 489 F. App’x 673, 675 (4th Cir. 2012) (No. 11-
4956) (same). “At a minimum, courts of appeals cannot correct an error pursuant to plain
error review unless the error is clear under current law.” United States v. Harris, 890 F.3d
480, 491 (4th Cir. 2018) (brackets and internal quotation marks omitted). Thus, on plain
error review, we must reject Lambert’s challenge to the reimbursement order.
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IV.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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