[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 09, 2007
No. 06-14117 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00281-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC RONDELL GABE,
a.k.a. Derrick Minor,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 9, 2007)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Eric Rondell Gabe appeals his convictions for possession of a firearm by a
felon, possession of a controlled substance, and possession of a firearm in relation
to a drug trafficking crime. Gabe argues that the district court erred when, during
jury selection, it sustained the objection by the government under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and seated jurors Gabe had
challenged. We affirm.
I. BACKGROUND
A federal grand jury indicted Gabe for possession of a firearm in violation of
18 U.S.C. sections 922(g) and 924(e), possession of a controlled substance in
violation of 21 U.S.C. section 844, and carrying a firearm in relation to a drug
trafficking crime in violation of 18 U.S.C. section 924(c). Gabe pleaded not guilty.
At trial, Gabe used all ten of his peremptory challenges to remove white members
of the venire. The government raised a Batson objection. Defense counsel
provided allegedly race-neutral reasons for each of the challenges, including prior
jury service, business ownership, familiarity with officers of the court, a carjacking
encounter, and military experience.
The district court questioned defense counsel regarding the basis of the
peremptory challenges, including the disparity between defense counsel’s use of
challenges for white venire members with prior jury service, but not of black
venire members with prior jury service. The district court determined that, at least
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as to six of the jurors, defense counsel had used his peremptory challenges in a
manner that purposefully discriminated against white members of the venire. To
remedy the discrimination, the trial court ordered that six of the ten struck jurors be
seated on the jury. No objection was made to that remedy until this appeal.
II. STANDARD OF REVIEW
“We review the district court’s resolution of a Batson challenge under the
clearly erroneous standard.” Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co.,
Inc., 236 F.3d 629, 635 (11th Cir. 2000). “A district court’s findings regarding
whether a peremptory strike was exercised for a discriminatory reason largely
involve credibility determinations and are therefore entitled to great deference.”
United States v. Tokars, 95 F.3d 1520, 1530 (11th Cir. 1996). When an issue is
raised for the first time on appeal, we review for plain error. United States v.
Rahim, 431 F.3d 753, 756 (11th Cir. 2005).
III. DISCUSSION
Gabe raises two issues. First, he argues that the district court erred by
sustaining the Batson objection of the government. Second, he maintains that the
district court erred when it seated the challenged jurors. We address each issue in
turn.
A. The District Court Did Not Clearly Err When It Sustained the Batson Objection
of the Government.
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Criminal defendants are prohibited from using peremptory challenges to
engage in purposeful discrimination on the basis of race. Georgia v. McCollum,
505 U.S. 42, 59, 112 S. Ct. 2348, 2359 (1992). There are three steps in the review
of a defendant’s peremptory challenges under Batson v. Kentucky. See
McCollum, 505 U.S. at 59, 112 S. Ct at 2359. First, the government must establish
a prima facie case of unlawful discrimination. Batson, 476 U.S. at 93-97, 106 S.
Ct. at 1721-23. Second, when a prima facie case has been established, the burden
shifts to the defendant to provide a race-neutral basis for the challenges. Id. at 94-
98, 106 S. Ct. at 1721-24. Third, the district court determines whether, under the
totality of the circumstances, purposeful discrimination occurred. Id. at 98, 106 S.
Ct. at 1724.
Gabe does not dispute that the government established a prima facie case,
nor do the parties dispute that Gabe provided allegedly neutral bases for the
challenges. The only issue is whether the district court erred in its finding of
purposeful discrimination.
The district court did not clearly err when it determined that several of
Gabe’s race-neutral explanations were not credible. The district court, for
example, found that some of the challenges were patently discriminatory where
members of both races had prior jury experience but only members of one race
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were challenged. We have upheld a finding of discrimination where the party
purportedly challenged a black venire member because she was from an urban area
but did not challenge white venire members who were from urban areas. United
States v. Stewart, 65 F.3d 918, 926 (11th Cir. 1995). We have also held, in the
context of a defendant’s challenge to the use of peremptory challenges by the
government, that “failing to strike a white juror who shares some traits with a
struck black juror does not itself automatically prove the existence of
discrimination,” but noted that “where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id.
B. It was Not Plain Error for the District Court to Seat the Challenged Jurors.
Gabe argues for the first time on appeal that the remedy of seating the
challenged jurors was error. Gabe fails to explain how it was error, much less
plain error, for the district court to remedy the Batson violation by seating the
unlawfully challenged jurors. This argument fails.
IV. CONCLUSION
Gabe’s convictions are
AFFIRMED.
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