F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
October 4, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v.
No. 05-3147
SHAK IR ABDUSH-SHAK UR,
formerly known as Leonard Scott
Cunningham,
Defendant - Appellant.
Appeal from the United States District Court
for the District of K ansas
(D.C. No. 04-CR-20132-JW L)
Kim I. M artin, Assistant United States Attorney (Eric F. M elgren, United States
Attorney, on the brief), Kansas City, Kansas, for Plaintiff - Appellee.
M elissa Harrison, Assistant Federal Public Defender (David J. Phillips, Federal
Public D efender, on the briefs), K ansas City, Kansas, for D efendant - Appellant.
Before H E N RY , A N D ER SON and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
On December 2, 2004, Shakir Abdush-Shakur, an inmate at the United
States Prison at Leavenworth, was convicted of attempted murder, and possession
of a handmade knife by a prison inmate, arising out of the M ay 18, 2003 stabbing
of prison Senior Officer Specialist, Timothy M cDonald. On M arch 9, 2005, he
was sentenced to a total of 240 months imprisonment. He appeals from his
conviction alleging various trial errors. W e affirm.
Background
On M ay 29, 2003, Abdush-Shakur was charged in a two-count indictment
with attempted murder and possession of a prohibited object in violation of 18
U.S.C. §§ 1113 and 1791(a)(2), respectively. After several successful motions for
continuance lodged by defense counsel, trial was set for December 9, 2003. O n
December 3, 2003, the government filed a motion for a continuance of the trial
date, followed the next day by the government’s motion to dismiss the indictment
due to the illness of government counsel. On December 8, 2003, the indictment
was dismissed without prejudice over the objection of A bdush-Shakur.
On April 1, 2004, a second indictment charging the same offenses was filed
under the same case number. On M ay 17, 2004, Abdush-Shakur filed a motion to
dismiss the indictment for violation of his right to speedy trial. The court granted
his m otion on June 28, 2004, and dismissed the indictment without prejudice. O n
September 16, 2004, the government filed a third indictment. Although filed
under a new case number the substance remained unchanged. Abdush-Shakur
moved to dismiss the third indictment on October 18, 2004. On October 27,
2004, the district court denied the motion. On November 10, 2004, a superseding
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third indictment was filed adding Abdush-Shakur’s former name of Leonard
Cunningham, but making no other changes.
Prior to trial, Abdush-Shakur filed a Federal Rule of Criminal Procedure
17(c) request for records including those relating to prior altercations between
Abdush-Shakur and Officer M cDonald. The district court denied the motion.
Abdush-Shakur also designated Steve M artin as an expert witness to testify about
the prison environment, which defense counsel argued should play a role in the
jury’s determination of intent. The government filed a motion in limine to exclude
the proffered testimony; it w as granted.
Finally, during voir dire, the government used two of its six peremptory
challenges to exclude two of the three African-A merican jurors from the jury.
Defense counsel’s objection based on Batson v. Kentucky, 476 U.S. 79 (1986),
was overruled by the district court. On December 2, 2004, the jury convicted
Abdush-Shakur of attempted murder and possession of a prohibited object.
Discussion
Abdush-Shakur asserts the district court erred in four respects: 1) by
denying his motion to dismiss the indictment as a violation of the Speedy Trial
Act and his Sixth Amendment and Due Process rights; 2) by excluding the
testimony of his expert witness, Steve M artin; 3) by denying his request for the
production of documents under Federal Rule of Criminal Procedure 17(c); and 4)
by permitting the prosecutor to exclude potential jurors based on race in violation
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of Batson.
I. M otion to Dismiss
Abdush-Shakur argued to the district court that the third indictment should
be dismissed as a violation of the Speedy Trial Act and his Sixth Amendment and
Due Process rights. The district court denied the motions to dismiss. Abdush-
Shakur reasserts his arguments on appeal.
A. Speedy Trial Act
Abdush-Shakur argues the district court erred when dismissing the second
indictment without prejudice for violating the Speedy Trial Act, thus requiring the
third indictment to be dismissed as well. W e “review the district court’s denial of
a motion to dismiss for violation of the [Speedy Trial] Act for an abuse of
discretion, and review the district court’s compliance with the legal requirements
of the Act de novo.” United States v. Lam pley, 127 F.3d 1231, 1244 (10th Cir.
1997). “W e accept the district court’s factual findings in a Speedy Trial Act
order unless they are clearly erroneous.” United States v. Vogl, 374 F.3d 976,
982 (10th Cir. 2004). “[W]hen the statutory factors are properly considered, and
supporting factual findings are not clearly in error, the district court’s judgment
of how opposing considerations balance should not lightly be disturbed.” United
States v. Cano-Silva, 402 F.3d 1031, 1035 (10th Cir. 2005) (quotation omitted).
The Speedy Trial Act is “designed to protect a criminal defendant’s
constitutional right to a speedy trial and to serve the public interest in bringing
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prompt criminal proceedings . . . .” United States v. Apperson, 441 F.3d 1162,
1177-78 (10th Cir. 2006). Congress enacted the Speedy Trial Act in part because
“the Supreme Court had been reluctant to define specific time periods under the
speedy trial guarantee of the Sixth Amendment . . . .” Vogl, 374 F.3d at 982.
W hile the Speedy Trial Act certainly adds protection to a defendant’s already
existing Fifth and Sixth Amendment rights, statutes of limitations remain “the
primary guarantee against bringing overly stale criminal charges.” United States
v. M arion, 404 U.S. 307, 322 (1971) (discussing Sixth Amendment right to a
speedy trial).
The Speedy Trial Act “requires that the trial of a criminal defendant
commence within seventy days of the filing of the indictment, or from the date
that the defendant first appears before a judicial officer, whichever is later.”
United States v. Gomez, 67 F.3d 1515, 1519 (10th Cir. 1995); 18 U.S.C. §
3161(c)(1). 1 Subject to statutory exclusions, “[i]f a defendant is not brought to
trial within the seventy-day deadline, dismissal of the indictment is mandatory.”
1
Section 3161(c)(1) provides in relevant part:
In any case in which a plea of not guilty is entered, the trial of a
defendant charged in an . . . indictment with the commission of an
offense shall commence within seventy days from the filing date (and
making public) of the . . . indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such charge is
pending, whichever date last occurs.
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United States v. Doran, 882 F.2d 1511, 1517 (10th Cir. 1989). 2 The “indictment
shall be dismissed on motion of the defendant.” United States v. Vaughn, 370
F.3d 1049, 1055 (10th Cir. 2004).
Nevertheless, the district court retains broad discretion whether to dismiss
the indictment with or w ithout prejudice. Doran, 882 F.2d at 1518. 18 U.S.C. §
3162(a) provides:
In determining whether to dismiss . . . with or without prejudice, the
court shall consider, among others, each of the following factors: the
seriousness of the offense; the facts and circumstances of the case
w hich led to the dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of justice.
Prejudice to the defendant is among the “other” factors the text of § 3162 directs
the district court to consider. United States v. Taylor, 487 U.S. 326, 334 (1988);
see also id. at 344-46 (Scalia, J. concurring). “[T]he application of the more
severe sanction of dismissal with prejudice . . . should be reserved for more
egregious violations.” Cano-Silva, 402 F.3d at 1035. 3 A violation of the speedy
2
The seventy-day deadline takes into account various excludable events that do
not count against the seventy-day period. See 18 U.S.C. § 3161(h). Thus, for example,
continuances may be excluded from the seventy-day period if the district court makes a
finding on the record that “the ends of justice served by taking [the] action outweigh
the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. §
3161(h)(8)(A); Doran, 882 F.2d at 1515-17. The time exclusions made by the district
court are not at issue on appeal.
3
The Supreme Court recently stated:
This scheme is designed to promote compliance with the Act without
needlessly subverting important criminal prosecutions. The more severe
sanction (dismissal with prejudice) is available for use where
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trial requirement, by itself, is not a sufficient basis for dismissal with prejudice.
Id.
Based on the record before us, the district court did not err by dismissing
the second indictment without prejudice. 4 First, as Abdush-Shakur concedes,
appropriate, and the knowledge that a violation could potentially result
in the imposition of this sanction gives the prosecution a powerful
incentive to be careful about compliance. The less severe sanction
(dismissal without prejudice) lets the court avoid unduly impairing the
enforcement of federal criminal laws - though even this sanction
imposes some costs on the prosecution and the court, which further
encourages compliance. W hen an indictment is dismissed without
prejudice, the prosecutor may of course seek - and in the great majority
of cases will be able to obtain - a new indictment, for even if “the
period prescribed by the applicable statute of limitations has expired, a
new indictment may be returned . . . within six calendar months of the
date of the dismissal.”
Zedner v. United States, 126 S.Ct. 1976, 1984-85 (2006) (quoting 18 U.S.C. §
3288).
4
Under § 3161(d)(1), if an indictment is dismissed upon motion of the
defendant and he is subsequently re-indicted with the same offense, the new
indictment begins a new seventy-day period. See § 3161(c); see also United
States v. Andrews, 790 F.2d 803, 809 n.4 (10th Cir. 1986); United States v.
Brown, 183 F.3d 1306, 1310 (11th Cir. 1999) (“[Section] 3161(d)(1) resets the
periods in which a defendant must be indicted and tried.”); United States v.
Duque, 62 F.3d 1146, 1150 (9th Cir. 1995) (holding the “Speedy Trial Act clock
starts fresh” when the defendant moves to dismiss and is reindicted); United
States v. Giambrone, 920 F.2d 176, 179 (2d Cir. 1990) (“[W ]hen the indictment is
dismissed on motion of the defendant and there is reprosecution, the 70-day
period provided by § 3161(c) begins anew.”). Thus, because the Second
Indictment was dismissed on Abdush-Shakur’s motion, the Third Indictment
began a new seventy-day period.
However, where the government moves to dismiss the indictment, as it did
with the First Indictment here, and then refiles a second indictment alleging the
same charges, the government does not get a new seventy-day clock. See United
States v. Gonzalez, 137 F.3d 1431, 1433-34 (10th Cir. 1998); United States v.
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attempted murder is a serious offense. Second, contrary to A bdush-Shakur’s
assertion, the delay between his initial appearance and his trial was not
“completely due to the Government.” (Appellant’s Br. at 36.) It is true that the
illness of government counsel contributed to the delay. See Cano-Silva, 402 F.3d
at 1036 (“W henever a Speedy Trial Act violation takes place, it is very likely that
the government has made a mistake of some sort; in order to secure a dismissal
with prejudice a defendant must do more than point to that mistake with rising
indignation.”). However, the government’s behavior in this case was not
egregious. There is no indication the government was dilatory or neglectful in its
prosecution of Abdush-Shakur, or that it otherw ise acted in bad faith. See Taylor,
487 U .S. at 338-39. Indeed, at the hearing on Abdush-Shakur’s motion to dismiss
the Second Indictment, defense counsel agreed “all parties acted professionally.”
(R. Vol. IV at 51.) M oreover, as the district court pointed out, another important
source of delay was three continuances requested by Abdush-Shakur and allowed
by the court, but without the appropriate finding under § 3161(h) which would
Broadwater, 151 F.3d 1359, 1360 (11th Cir. 1998) (“If the government moves to
dismiss a count following a mistrial, it does not get a ‘fresh clock’ on
reindictment; rather, the time is tolled from the dismissal of the original count
until the reindictment.”) (emphasis added); United States v. M enzer, 29 F.3d
1223, 1227-28 (7th Cir. 1994); United States v. Hoslett, 998 F.2d 648, 658 (9th
Cir. 1993); United States v. Leone, 823 F.2d 246, 248 (8th Cir. 1987) (same).
“The reason for this rule is obvious. If the clock began anew, the government
could circumvent the limitations of the Speedy Trial Act by repeatedly dismissing
and refiling charges against a defendant.” Hoslett, 998 F.2d at 658 n.12; see also
United States v. Rojas-Contreras, 474 U.S. 231, 239 (1985) (Blackmun, J.,
concurring) (same).
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have excluded that time from inclusion in the computation of A bdush-Shakur’s
speedy trial calculation. The district judge took much of the blame for the delay; 5
nevertheless, Abdush-Shakur must also shoulder his share of the responsibility for
the delay.
Reprosecution of this case did not negatively affect the administration of
justice. Abdush-Shakur concedes his incarceration throughout the proceedings
was based on his sentence for the commission of another crime. Nor, as the
district court pointed out, would penalizing the government for the delay deter
any similar behavior in the future. 6 W here the delay caused by the government is
unintentional and the district court takes it upon itself to share in the blame for
the delay, the administration of justice is not served by dismissal w ith prejudice.
See United States v. Kottmyer, 961 F.2d 569, 573 (6th Cir. 1992) (“Since the
government’s conduct was apparently unintentional and since the blame w as
shared by the court,” the district court was correct in concluding that “dismissal
with prejudice would only affect the prosecutor in this case and would not serve
the interests of the public.”).
Finally, there is no evidence of sufficient prejudice to Abdush-Shakur to
5
The district court stated it “wasn’t the prosecution’s fault that w e’re here.
It was - it’s my fault that we’re here.” (R . Vol. IV at 87-88.)
6
The district court found: “There is nothing that’s going to deter me from
failure to make appropriate speedy trial findings by allowing this defendant the
windfall of having these charges dismissed.” (R . Vol. IV. at 87-88.)
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require dismissal with prejudice. First and foremost, the fact the defendant was
subsequently found guilty does not qualify as the type of prejudice relevant to the
analysis under § 3162. Additionally, because A bdush-Shakur had ten years
imprisonment remaining at the time of his assault on M cDonald, any delay did not
affect the amount of time he spent confined. W hile he may have been removed
from isolation if the charges had been dismissed, that fact, weighed in the balance
of the circumstances in this case, does not require the dismissal to be with
prejudice. Abdush-Shakur claims a witness to the attack, Latorious W illis, “could
not be found,” but that bald allegation is insufficient to establish prejudice.
(Appellant’s Br. at 38.) There is no evidence “the defendant . . . lost a crucial
witness” because of the delay, nor did he offer any evidence as to how the
absence of this witness testimony prejudiced his case. See United States v.
Saltzman, 984 F.2d 1087, 1094 (10th Cir. 1993) (“[T]he defendant has a burden
under the [Speedy Trial] A ct to show specific prejudice other than that occasioned
by the original filing.”) (emphasis added). Thus, the second indictment was
appropriately dismissed without prejudice and any intervening time between
indictments w as not covered by the Speedy Trial Act.
B. Sixth Amendment Right to a Speedy Trial
Abdush-Shakur claims the delay between his first indictment on M ay 29,
2003, and his third indictment on September 16, 2004, violates his Sixth
Amendment right to a speedy trial. W e think not.
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The Sixth Amendment right to a speedy trial is thus not primarily
intended to prevent prejudice to the defense caused by passage of
time; that interest is protected primarily by the D ue Process Clause
and by statutes of limitations. The speedy trial guarantee is
designed to minimize the possibility of lengthy incarceration prior to
trial, to reduce the lesser, but nevertheless substantial, impairment of
liberty imposed on an accused while released on bail, and to shorten
the disruption of life caused by arrest and the presence of unresolved
criminal charges.
United States v. M acDonald, 456 U.S. 1, 8 (1982).
In determining whether a defendant’s Sixth Amendment right to a speedy
trial has been violated, a court must balance four factors: (1) the length of delay;
(2) the reason for delay; (3) the defendant’s assertion of his right; and (4) any
prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); United
States v. Lugo, 170 F.3d 996, 1002 (10th Cir. 1999). “None of these factors,
taken by itself, is either a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are related factors and must
be considered together with such other circumstances as may be relevant.”
United States v. Gomez, 67 F.3d 1515, 1521 (10th Cir. 1995) (quotation omitted).
It is unusual to find a Sixth Amendment violation when the Speedy Trial Act has
been satisfied. United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002).
“W e need only inquire into the other factors if the period of delay is
‘presumptively prejudicial.’” Lugo, 170 F.3d at 1002 (quoting United States v.
Dirden, 38 F.3d 1131, 1137 (10th Cir. 1994)). In this case, the parties disagree as
to whether the relevant period of delay under consideration was eleven or
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fourteen months. The latter delay, but not the former, might qualify as
presumptively prejudicial. See Gomez, 67 F.3d at 1523 (twelve and one-half
month delay held not prejudicial).
Regardless of the length of delay, the second prong — the reason for the
delay, clearly does not suggest a violation of the Abdush-Shakur’s Sixth
Amendment rights. As discussed above, prior to the government’s request for a
continuance due to the poor health of one of its counsel, Abdush-Shakur himself
requested three continuances, the latest occurring in October of 2003. Delays
attributable to the defendant do not weigh against the government. Dirden, 38
F.3d at 1138. W e find little merit in defendant’s assertion of his Sixth
Amendment right to a speedy trial in the wake of the government’s legitimate
request for a continuance when the defendant has sat on his hands for seven
months and requested several continuances of his own. Finally, as discussed
above, there was little show ing of actual prejudice to A bdush-Shakur. Thus,
Abdush-Shakur failed to establish a violation of his Sixth Amendment right to a
speedy trial based on the total delay in this case. 7
7
Because we find the total delay does not violate Abdush-Shakur’s Sixth
Amendment right to a speedy trial, we need not decide if the eighty day period
between the dismissal of the second indictment and the refiling of the third
indictment counts against his speedy trial right. See United States v. M errick, 464
F.2d 1087, 1090-91 (10th Cir. 1972). W e note the Supreme Court in M acDonald,
held that “[o]nce charges are dismissed, the speedy trial guarantee is no longer
applicable.” 456 U.S. at 8. However, the Court noted that its opinion did not
address the situation where “the Government dismissed and later reinstituted
charges to evade the speedy trial guarantee.” Id. at 10 n.12.
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C. Fifth A mendment Right to D ue Process
Finally, Abdush-Shakur advances a due process argument based on the
delay “between the two dismissals and the re-indictments” as a basis for
dismissal. (Appellant’s Br. at 39.)
“[T]he Due Process Clause has a limited role to play in protecting against
oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789 (1977). To
prevail on such a claim, the defendant must prove (1) the delay resulted in
substantial prejudice to his rights, and (2) the prosecution intentionally delayed
prosecution in order to gain a tactical advantage. United States v. Wood, 207 F.3d
1222, 1234 (10th Cir. 2000); United States v. Comosona, 848 F.2d 1110, 1113
(10th Cir. 1988); see also Lovasco, 431 U.S. at 790 (Fifth Amendment Due
Process Claim must consider both prejudice to the defendant and the reasons for
the delay). W e review this due process claim for clear error as it is a question of
fact. Wood, 207 F.3d at 1234.
In this case, A bdush-Shakur fails to carry his burden on either prong. H e
fails to establish the delay caused him substantial prejudice. Again, Abdush-
Shakur’s “lost witness” claim fails because there is no evidence “the defendant . .
. lost a crucial witness” because of the delay or that the absence of his testimony
prejudiced Abdush-Shakur’s case. (Appellant’s Br. at 38.) “Vague and
conclusory allegations of prejudice resulting from the passage of time and
absence of witnesses are insufficient to constitute a showing of actual prejudice.”
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United States v. Trammell, 133 F.3d 1343, 1351 (10th Cir. 1998). Abdush-Shakur
has also failed to establish the prosecution intentionally delayed to gain a tactical
advantage. He asserts on appeal that the motion to dismiss due to the illness of
government counsel on “the eve of trial” was not a proper reason for dismissal
given the little time remaining on the speedy trial clock and the availability of
alternate government attorneys. (Id. at 41.) Even if there were other counsel
available, such a claim is insufficient to establish that the prosecution was
unfairly abusing the system to gain an advantage. Thus, Abdush-Shakur has
failed to establish a due process violation.
II. Expert W itness
At trial, Abdush-Shakur sought to introduce the expert testimony of Steve
M artin, “a corrections consultant,” who would have testified to the “culture of
violence” in federal penitentiaries and explain why an inmate w ho is
“disrespected” by a corrections officer might retaliate in a violent manner.
(Appellant’s Br. at 18, 19, 20.) The district court excluded the testimony as
irrelevant to any material issue in the case. On appeal, Abdush-Shakur argues the
district court erred in excluding the testimony as it went directly to his motive in
attacking M cDonald, and supported his contention that he only intended to wound
and not kill M cDonald.
“W e review de novo the question of whether the district court employed the
proper legal standard and performed its gatekeeper role in admitting expert
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testimony” but review for abuse of discretion “the court's actual application of
this standard in deciding whether to admit or exclude an expert's testimony.”
United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006). Federal
Rule of Evidence 702 governs the admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and m ethods, and (3)
the witness has applied the principles and methods reliably to the facts
of the case.
Thus, the district court must ensure that expert testimony is both relevant and
reliable. Daubert v. M errell Dow Pharm aceuticals, 509 U.S. 579, 589 (1993).
“Relevance is evaluated based on whether [the evidence] properly can be applied
to the facts in issue.” M cKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004), cert.
denied, 544 U.S. 1048 (2005).
In this case the testimony of M r. M artin was proffered to establish a
generic “culture of violence in prisons.” (Appellant’s Br. at 19.) Specifically, he
would have testified that imprisonment makes a prisoner feel weak, vulnerable,
and subject to exploitation, and thus a prisoner may feel the need to retaliate if
provoked in order to avoid the appearance of w eakness and prevent future
exploitation. W hile the proffered testimony might “show that what M r. Abdush-
Shakur testified about was not unusual given the prison culture that exists in high
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security facilities,” (Appellant’s Br. at 22), it does not excuse his attack on a
corrections officer, nor does it negate any of the elements of the charged crime.
Contrary to Abdush-Shakur’s argument, such testimony does not negate his intent
to kill. Rather it simply highlights a possible motive for his action. There is no
basis in the proffered testimony to support an inference that Abdush-Shakur’s
motivation to retaliate for being disrespected would include assault but not
attempted murder. The expert witness’ testimony certainly does not try to draw
such a line. Consequently, we agree with the district court that the proffered
testimony was not relevant to the issues in this case. Therefore, the district court
did not abuse its discretion in excluding the testimony under Rule 702.
III. Production of Documents
On October 6, 2004, Abdush-Shakur filed a motion pursuant to Rule 17(c)
requesting production of documents pertaining to prior confrontations between
Abdush-Shakur and Officer M cDonald. The district court denied the motion,
holding “the defendant has been unable to articulate how the materials sought . . .
w ould be relevant to the particular charges against him.” (Vol. IV at 138.) O n
appeal, Abdush-Shakur argues the records of prior incidents between himself and
M cDonald were relevant to intent.
W e review the district court’s denial of a motion filed under Rule 17(c) for an
abuse of discretion and “defer to the trial court’s judgment because of its first-hand
ability to view the witness or evidence and assess credibility and probative value.”
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United States v. Gonzalez-Acosta, 989 F.2d 384, 388 (10th Cir. 1993). Thus, we will
only disturb the district court’s ruling if we have “a definite and firm conviction that
the court made a clear error of judgment or exceeded the bounds of permissible
choice in the circumstances.” Id. at 389 (quotation omitted).
Rule 17(c) provides that “[a] subpoena may also command the person to whom
it is directed to produce the books, papers, documents or other objects designated
therein.” Rule 17(c) is “not intended to provide an additional means of discovery,”
but “to expedite the trial by providing a time and place before trial for the inspection
of the subpoenaed materials.” Bowman Dairy Co. v. United States, 341 U.S. 214,
220 (1951). A party seeking a subpoena duces tecum under Rule 17(c) must
establish:
(1) that the documents are evidentiary and relevant; (2) that they are not
otherwise procurable reasonably in advance of trial by exercise of due
diligence; (3) that the party cannot properly prepare for trial without such
production and inspection in advance of trial and that the failure to obtain
such inspection may tend unreasonably to delay the trial; and (4) that the
application is made in good faith and is not intended as a general “fishing
expedition.”
United States v. Nixon, 418 U.S. 683, 699-700 (1974). Thus, “on appeal from the
denial of a Rule 17(c) motion, the movant must show that the subpoenaed document
was relevant, admissible, and specific.” Gonzalez-Acosta, 989 F.2d at 389. Failure
of one of these elements precludes reversal. See United States v. M orris, 287 F.3d
985, 991 (10th Cir. 2002) (affirming district court’s suppression of a subpoena under
Rule 17(c) where defendant arguably established relevance and admissibility, but not
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specificity).
Abdush-Shakur’s characterization of his request as pertaining only to “records
relating to prior incidents between M r. Abdush-Shakar and Officer M cDonald” is
misleading. (Appellant’s Br. at 24.) In his motion, Abdush-Shakur requested all
incident reports for the previous five-year period involving both inmate-on-inmate
stabbings and inmate-on-guard stabbings, the complete personnel records of Officer
M cDonald, a complete copy of his own prison file, and a list of policies and
procedures related to the treatment of the M uslim prison comm unity. In support of
this expansive request, Abdush-Shakur merely stated the requested documents were
“material and integral to the defense” and that they were “evidentiary, relevant, and .
. . requested in good faith.” (R. Vol. I, Doc. 10 at 2.)
W e agree with the district court that this is insufficient to satisfy Rule 17(c).
Abdush-Shakur failed to state in his motion how the requested material related to the
charges against him or how the documents were to be used in his defense.
Conclusory statements do not establish relevance. M oreover, his argument on appeal
— that evidence of his prior altercations w ith M cDonald establish only an intent to
wound — is beyond strange. In any event, as Abdush-Shakur points out, the
government questioned M cDonald about prior altercations. Abdush-Shakur makes
no argument that the government’s questioning was inadequate, that M cDonald lied
about any prior incidents, or that Abdush-Shakur was unable to question M cDonald
about the prior incidents.
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Given M cD onald’s unchallenged testimony, there is no basis to require
production of documents that we have no reason to believe would be anything but
redundant to M cDonald’s testimony. Abdush-Shakur certainly has provided no such
reason. Because we reject Abdush-Shakur’s argument that the requested material is
relevant, we need not address whether the material was admissible, the request
sufficiently specific, or w hether it constituted a “fishing expedition.”
IV. Batson Violation
Abdush-Shakur challenged the government’s use of two of its six peremptory
challenges to excuse two minority venire members, M r. Gallagher and M s. Adams,
alleging the government impermissibly excluded them based on race. The government
asserted it excluded Gallagher because of a prior criminal conviction, and Adams based
on the combination of having a family member in prison, having performed prison
ministry, and for expressing sympathy with inmates. The district court credited the
government’s non-discriminatory reasons for the exclusion and overruled the objection.
Ultimately, one African-A merican juror and eleven Caucasian jurors were empaneled.
Abdush-Shakur concedes that the peremptory challenge of Gallagher was based not on
race, but a prior criminal conviction for marijuana possession. (Appellant’s Br. at 12.)
This leaves only the racial challenge to M s. Adams at issue on appeal.
The Equal Protection clause of the Fourteenth Amendment prohibits the removal
of potential jurors by prosecutors based on their race. Batson, 476 U.S. at 86. W e
analyze a “Batson challenge under the burden-shifting framew ork recently clarified by
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the Supreme Court in Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L.Ed.2d
129 (2005).” United States v. Nelson, 450 F.3d 1201, 1207 (10th Cir. 2006). The
burden-shifting framew ork to be applied under Batson parallels “the burden-shifting
framew ork in cases arising under Title VII of the Civil Rights Act of 1964.” Johnson,
125 S. Ct. at 2418 n.7.
To prevail on his Batson claim, Abdush-Shakur must first establish that “he is a
member of a cognizable racial group, and that the prosecutor has exercised peremptory
challenges to remove from the venire members of the defendant’s race.” Johnson, 125
S. Ct. at 2416. But the defendant’s burden does not stop there. He must also show “that
the totality of the relevant facts gives rise to an inference of discriminatory purpose.”
Id. (quoting Batson, 476 U.S. at 93-94). To accomplish this, the defendant may rely
solely on the facts in his case concerning the selection of the jury. Johnson, 125 S. Ct.
at 2416 n.5 (quoting Batson, 476 U.S. at 95.)
If the defendant makes out his prima facie case, the burden of production shifts to
the prosecutor to present a race-neutral explanation for the strike. Id. at 2416. A race-
neutral explanation is simply any explanation, no matter how implausible, that is “based
on something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352,
360 (1991). The proffered reason need not be “persuasive, or even plausible,” so long
as it is facially valid. Purkett v. Elem, 514 U.S. 765, 768 (1995). W e review de novo
whether a proffered explanation is race-neutral. United States v. Castorena-Jaime, 285
F.3d 916, 927 (10th Cir. 2002); United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir.
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1994).
“‘If a race-neutral explanation is tendered, the trial court must then decide . . .
whether the opponent of the strike has proved purposeful racial discrimination.’”
Johnson, 125 S.Ct. at 2416 (quoting Purkett, 514 U.S. at 767). “This final step involves
evaluating the persuasiveness of the justification proffered by the prosecutor, but the
ultimate burden of persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike.” Rice v. Collins, -- U.S. --, 126 S. Ct. 969, 974 (2006)
(quotation omitted). W e review the district court’s determination of whether intentional
discrimination actually occurred under the clearly erroneous standard, as it is a question
of fact. Hernandez, 500 U.S. at 364; United States v. Davis, 40 F.3d 1069, 1077 (10th
Cir. 1994).
W e acknowledge the Supreme Court has made clear that it “did not intend the
first step [of the Batson inquiry] to be so onerous that a defendant would have to
persuade the judge . . . that the challenge was more likely than not the product of
purposeful discrimination.” Johnson, 545 U.S. at 2417. Nevertheless, the defendant
must still satisfy the requirements of the prima facie case. The fact a single minority
venire member is peremptorily stricken, standing alone, is insufficient to establish the
defendant’s prima facie case. Such a scenario does not “give[] rise to an inference of
discriminatory purpose.” Johnson, 125 S. Ct. at 2416. W e note that both in Batson and
Johnson, the prima facie case w as established where all minority members of the jury
pool w ere stricken by the government. Batson, 476 U.S. at 83; Johnson, 125 S. Ct. at
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2414; see also Nelson, 450 F.3d at 1205 (same); United States v. Chalan, 812 F.2d
1302, 1313-14 (10th Cir. 1987) (same). By citing Batson and Johnson in this manner,
we do not mean to imply that absolute exclusion of all minority members is required to
allow a Batson claim to go forw ard. See Miller-El v. Dretke, 125 S. Ct. 2317, 2325
(2005) (peremptorily striking ten of eleven eligible minority jurors sufficient to
establish a Batson violation). Neither do we hold that striking a single minority venire
member cannot establish the prima facie case where the venire member is the only
minority member of the venire panel. See Heno v. Sprint/United M gmt. Co., 208 F.3d
847, 854 (10th Cir. 2000) (“M s. Heno met her prima facie case [for a Batson violation]
by showing that Sprint used a peremptory to strike the only black juror on the panel.”).
Rather, we only note that the prima facie case articulated by the Supreme Court
contemplates something more than simply establishing the minority status of the
defendant and the exclusion of a single venire member who happens to be of the same
race.
Striking two out of three minority panel members, however, is sufficient to satisfy
a defendant’s prima facie Batson claim, especially when the jurors were apparently the
only two stricken. See United States v. Johnson, 4 F.3d 904, 912-14 (10th Cir. 1993)
(striking two of three black members of a jury sufficient to force government to provide
race-neutral reasons for dismissal). Thus, like the district court, we must consider the
government’s proffered non-discriminatory justifications.
The government asserted below, and now on appeal, that it excluded M s. Adams
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because she 1) had a brother w ho had been incarcerated at the U nited States Penitentiary
at Leavenworth - the scene of the crime; 2) had worked with a prison ministry at
Leavenworth; and 3) said she had “heard a lot of things that go on behind the doors
from the inmates’ point of view.” (R. Vol. IV at 255.) In these circumstances, when
the offense occurred in prison and the victim was a prison official, the incarceration of
panel member’s close relative and experience of the panel member in working with a
prison ministry are, standing alone, legitimate non-discriminatory reasons for exclusion.
Coupled with M s. Adam’s personal familiarity with inmate perspectives at
Leavenworth, the government was w ithin the permissible bounds of peremptory
challenges to exclude her from a case involving the stabbing of a corrections officer by
an inmate at Leavenworth.
Abdush-Shakur’s attempt to prove the government’s justification is a pretext by
comparing M s. Adam’s profile to that of other non-excluded jurors falls short for the
simple reason that he cannot point to a sufficiently similarly situated juror. Based on
the record before us, M s. Adams was unique in her combination of having a close
family member who had been incarcerated at Leavenworth, of working in Leavenworth,
and, m ost im portantly, expressing personal familiarity with inmates’ points of view .
M oreover, we note the government did not exclude all minority members of the
jury. W hile not dispositive, such a fact tips the scales against finding intentional
discrimination on the part of the government. See United States v. Williamson, 53 F.3d
1500, 1510 (10th Cir. 1995) (“[A]lthough the mere presence of members of a certain
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race on the final jury does not automatically negate a Batson violation . . . it can be a
relevant factor, particularly when the prosecution had the opportunity to strike them.”).
Considering all the factors, w e agree with the district court that Abdush-Shakur failed to
meet his burden of establishing the government’s use of peremptory challenges in this
case was motivated by intentional discrimination.
AFFIRME D.
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