UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO TEXIDORE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00179-MOC-1)
Submitted: August 30, 2012 Decided: September 13, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Ann L. Hester, Assistant
Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roberto Texidore was convicted by a jury of possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and sentenced to thirty-seven months’
imprisonment. On appeal, Texidore argues that the district
court erred in overruling his objection to the government’s use
of its peremptory challenges to strike an African-American woman
and a woman of Asian extraction. He also contends that
statements made by the government during closing argument
shifted the burden of proof and violated his due process rights.
We conclude there is no error and affirm the judgment.
Texidore contests the district court’s decision to
deny his challenge, under Batson v. Kentucky, 476 U.S. 79
(1986), to the Government’s use of its peremptory strikes. The
use of a peremptory challenge for a racially discriminatory
purpose offends the Equal Protection Clause. Id. at 84-90. The
trial court’s resolution of a Batson challenge is largely a
credibility determination, to which we give “great deference,”
reviewing the district court’s findings for clear error. United
States v. Green, 599 F.3d 360, 377 (4th Cir. 2010); United
States v. Farrior, 535 F.3d 210, 221 (4th Cir. 2008).
Courts employ a three-step process to determine
whether a peremptory strike was racially motivated. First, a
defendant must make a prima facie showing that the government
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exercised the strike on the basis of race. Batson, 476 U.S. at
96-97. Second, the burden shifts to the government to offer a
racially neutral explanation for removing the jurors in
question. Id. at 97-98. Third, once the race-neutral
explanation is offered, the district court must decide whether,
in light of all relevant evidence, the defendant has proved
purposeful discrimination. Id. at 98. A movant may show
purposeful discrimination by demonstrating that the opposing
party’s explanation is a mere pretext for racial discrimination.
Farrior, 535 F.3d at 221.
Our review of the record reveals that the district
court did not clearly err in crediting the government’s
proffered reasons for striking the jurors in question and
finding those reasons legitimate and nondiscriminatory. Thus,
Texidore failed in his burden to prove intentional
discrimination, and the district court did not err in denying
Texidore’s Batson challenge.
Texidore next asserts that the prosecutor committed
reversible misconduct during closing argument when he speculated
to the jury as to why Texidore did not test certain evidence for
DNA. Whether a statement made in closing argument has
unconstitutionally tainted the outcome of the case is a question
of law, which this court reviews de novo. United States v.
Collins, 415 F.3d 304, 307 (4th Cir. 2005). Improper remarks
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during the government’s closing argument constitute a reversible
due-process violation only if the remarks “so prejudiced the
defendant’s substantial rights that the defendant was denied a
fair trial.” United States v. Wilson, 624 F.3d 640, 656 (4th
Cir. 2010), cert. denied, 132 S. Ct. 451 (2011). To obtain a
new trial, Texidore must demonstrate both that a statement was
improper and that it caused prejudice. United States v. Smith,
441 F.3d 254, 264 (4th Cir. 2006).
With these standards in mind, we have thoroughly
examined Texidore’s assertions of misconduct. We conclude that,
even assuming that the prosecutor’s comments were improper, they
did not deprive Texidore of a fair trial, given their relatively
isolated nature, the relative strength of the other evidence in
the case, and the court’s instructions to the jury. Wilson, 624
F.3d at 656-57; Collins, 415 F.3d at 309 (discussing factors
courts consider in evaluation of prejudice).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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