United States v. Hobbs , 190 F. App'x 313 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4744
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY CHASE HOBBS,
Defendant - Appellant.
No. 05-4745
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEREMY KRATZER,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-04-11)
Submitted: July 6, 2006 Decided: July 19, 2006
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nora H. Hargrove, Wilmington, North Carolina, for Appellant Ricky
Chase Hobbs; Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C.,
Wilmington, North Carolina, for Appellant Jeremy Kratzer. Wan J.
Kim, Assistant Attorney General, Jessica Dunsay Silver, Angela M.
Miller, UNITED STATES DEPARTMENT OF JUSTICE, Civil Rights Division,
Appellate Section, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
A jury convicted Ricky Chase Hobbs and Jeremy Kratzer of
conspiring to drive an African-American family to leave town in
violation of 18 U.S.C. § 241 (2000). Hobbs and Kratzer appeal,
arguing that the district court made several reversible errors.
After carefully reviewing the record in this case, we find no
reversible error. Accordingly, we affirm.
The African-American Edwards family moved to Nine Mile -- a
previously predominantly Caucasian neighborhood in North Carolina
-- in 1999. Shortly after the family’s arrival, Hobbs and Kratzer
participated in conversations with a group of young people
discussing strategies for intimidating the Edwards family so that
they would leave Nine Mile. Hobbs, Kratzer, and many of their
companions would often shout racial epithets and throw trash while
driving past the Edwards house.
In addition, Hobbs and Kratzer talked with their companions
about hanging a noose on the Edwards’s doorknob, putting a dead
raccoon or possum on their doorstep, and placing a burning cross in
their yard. Kratzer and Hobbs even discussed the best way to
construct a burning cross: nailing together two-by-fours and
dousing them with gasoline. In the weeks following these
conversations, a burning cross appeared in the Edwards’s backyard,
and members of the conspiracy hung a noose from the Edwards’s
doorknob, and threw a dead raccoon in the Edwards’s yard.
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Frightened by these events, the Edwards family eventually moved
away from Nine Mile.
At trial, co-conspirators Joshua Hancock and Philip Foy both
testified that, in their minds, they had reached an understanding
with both Hobbs and Kratzer to intimidate the Edwards family. The
jury convicted Hobbs and Kratzer of violating 18 U.S.C. § 241, and
the court sentenced each to 21 months’ imprisonment.
Hobbs and Kratzer argue that the evidence presented at trial
was insufficient to support their convictions. Viewing the
evidence in the light most favorable to the Government, we must
affirm the convictions if “any rational trier of fact could have
found the elements of the crime beyond a reasonable doubt.” United
States v. Uzenski, 434 F.3d 690, 700 (4th Cir. 2006). Here, the
government presented ample evidence -- both direct and
circumstantial -- that Hobbs and Kratzer were members of a
conspiracy to intimidate the Edwards family into leaving Nine Mile.
Accordingly, the district court did not err when it denied the
defendants’ motion for a directed verdict of acquittal.
Next, Hobbs and Kratzer assert that they are entitled to a new
trial because the prosecutor improperly commented on their failure
to testify. During closing argument, counsel for the Government
stated, “The defense hasn’t called a single witness to refute the
government witnesses’ testimony about these conversations.” We
have recognized on numerous occasions that a prosecutor’s mention
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of a defendant’s failure to refute evidence does not violate a
defendant’s right against self-incrimination. See, e.g., United
States v. Francis, 82 F.3d 77, 78 (4th Cir. 1996); United States v.
Percy, 765 F.2d 1199, 1204 (4th Cir. 1985). In our view, the
prosecutor’s comment in this case clearly was not “manifestly
intended to be [] or . . . of such a character that the jury would
naturally and necessarily take it to be a comment of the failure of
the accused to testify.” United States v. Anderson, 481 F.2d 685,
701 (4th Cir. 1973). Thus, we reject this argument.
Hobbs and Kratzer additionally contend that they are entitled
to a new trial because of a prosecution comment suggesting that the
defendants had admitted guilt. During closing argument, the
prosecutor said, “You heard another contention from counsel,
something along the lines of other people might be just as guilty
as my client.” Hobbs and Kratzer objected, pointing out that they
had not admitted any guilt. The district court sustained the
objection, and counsel for the Government then said, “let me
correct the misimpression, if I left you with one. I’m not
suggesting that counsel has argued that their clients aren’t
guilty. . . . They’ve made very forceful arguments in favor of
their client.” The Government concedes that the prosecutor
mischaracterized defense counsel’s argument. However, we cannot
find that this minor error “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.”
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United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). As a
result, Hobbs and Kratzer do not qualify for a new trial.
Hobbs and Kratzer also challenge the district court’s decision
sustaining the Government’s Batson challenge to the defense’s use
of a peremptory challenge during jury selection. Batson analysis
proceeds in three steps: 1) the party raising the challenge must
make a prima facie showing of racial discrimination in the jury
selection process, then 2) the burden shifts to the challenged
party to articulate a race-neutral reason for the strike, and 3)
the court must determine whether the challenging party has carried
its burden of showing that unlawful discrimination played a role in
the decision to strike a potential juror. See Batson v. Kentucky,
476 U.S. 79, 96-98 (1986); see also Georgia v. McCollum, 505 U.S.
42, 59 (1992) (holding that Batson applies to a defendant’s
decision to strike potential jurors).
Here, the Government raised a Batson challenge after defense
counsel struck a potential alternate juror; the Government noted
that the defense had “struck every single black member of the
pool.” The court replied, “I know that,” and then inquired into
defense counsel’s rationale for striking four jurors during the
course of jury selection and, finding the defense explanation
unsatisfactory, ultimately sustained the Government’s challenge.
Hobbs and Kratzer maintain that, because the record does not
indicate the race of prospective jurors, the Government could not
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have made a prima facie case that the defense used its peremptory
challenges in a racially discriminatory manner.
In the Batson context, we give “great deference” to a district
court’s findings “regarding whether a prima facie showing has been
made.” United States v. Lane, 866 F.2d 103, 105 (4th Cir. 1989).
In this case, the district court found that the Government had made
out a prima facie case that the defense was using its peremptory
challenges in a racially discriminatory fashion; the court further
found that the defense was unable to offer a satisfactory “race-
neutral explanation” for its decision to strike the potential
jurors in question. Hernandez v. New York, 500 U.S. 352, 359
(1992). When a district court has reached the second step in the
Batson analysis -- requiring the challenged party to provide a
race-neutral explanation -- “the preliminary issue of whether the
defendant had made a prima facie showing becomes moot.” Id.; see
also Lane, 866 F.2d at 105 (“[T]his court will not address the
question of whether the [challenging party] established a prima
facie showing to satisfy Batson where the [challenged party]
articulated reasons for his strikes.”). Because the district court
reached the second step of the Batson analysis, we need not decide
whether the Government made out a prima facie case of
discrimination.
Finally, Hobbs and Kratzer argue that the district court erred
in allowing Joshua Hancock to testify that, in his mind, he had an
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understanding with both Hobbs and Kratzer “that things should be
done to try and scare the Edwards family.” Hobbs and Kratzer
assert that this testimony was a legal opinion bearing on the
ultimate issue for the jury to decide. This argument has no merit.
The Federal Rules of Evidence permit the admission of lay opinion
testimony that is “rationally based on the perception of the
witness,” Fed. R. Evid. 701, even if it “embraces an ultimate
issue to be decided by the trier of fact.” Fed. R. Evid. 704(a).
Here, Hancock’s testimony described whether, in his mind, he had an
understanding with Hobbs and Kratzer to intimidate the Edwards
family. This testimony was highly relevant and was admissible
under the federal rules. Thus, the district court did not abuse
its discretion in admitting Hancock’s testimony.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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