United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
matter is before the Court on defendant Sherman Johnson,
Jr.'s (“Johnson”) Motion for a New Trial
(Filing No. 146). See Fed. R. Crim. P. 33(a). For
the reasons stated below, the motion is denied.
an African-American male, and his co-defendant Sarkis
Labachyan's (“Labachyan”) jury trial began on
May 8, 2018. Johnson and Labachyan were charged with (1)
possession of five kilograms or more of a mixture or
substance containing cocaine and (2) conspiracy to possess
with intent to distribute five kilograms or more of a mixture
or substance containing cocaine. See 21 U.S.C.
§ 841(a)(1) and (b)(1) and 846.
voir dire, the government used three of its six peremptory
strikes on the only jurors in the jury pool who were racial
minorities. Pursuant to Batson v. Kentucky,
476 U.S. 79 (1986), Johnson challenged the government's
peremptory strikes as violations of the Equal Protection
Clause of the Fourteenth Amendment. After hearing the
government's stated reasons for the strikes, the Court
overruled the Batson challenges.
jury found Johnson and Labachyan guilty of both charges.
Johnson filed the present motion on May 28, 2018, renewing
his challenges to the government's strike of two jurors:
Juror W, an African-American female, and Juror S, who Johnson
believes was a Latino male.
Equal Protection Clause proscribes striking veniremembers on
the basis of race.” Bell-Bey v. Roper, 499
F.3d 752, 757 (8th Cir. 2007); accord Batson, 476
U.S. at 86 (“Purposeful racial discrimination in
selection of the venire violates a defendant's right to
equal protection because it denies him the protection that a
trial by jury is intended to secure.”).
Batson, a district court applies a three-step
process when a defendant alleges that a prosecutor's
juror strikes are racially motivated.” United
States v. Hart, 544 F.3d 911, 914 (8th Cir. 2008).
The trial court first determines whether the defendant has
made a prima facie showing that a prosecutor's peremptory
strike was based on race. If the defendant satisfies the
first step, the burden then shifts to the prosecutor to
present a race-neutral explanation for striking the juror.
The prosecutor's stated reason need not be persuasive, or
even plausible[, ] as long as it is not inherently
discriminatory. The burden then shifts back to the defendant
at the third step to shoulder his ultimate burden of
establishing purposeful discrimination. The final step
involves evaluating the persuasiveness of the justification
proffered by the prosecutor.
United States v. Robinson, 781 F.3d 453, 461 (8th
Cir. 2015) (quoting Smulls v. Roper, 535 F.3d 853,
859 (8th Cir. 2008) (en banc)).
government concedes Johnson has made a prima facie showing
that the peremptory strikes were based on race, and the Court
will move to the second and third steps for the two
voir dire, the AUSA stated, “I had flagged [Juror W]
before I even knew who she was.” After incorrectly
asserting Juror W had a lack of education when she had a
college degree, the AUSA noted his biggest concerns were (1)
Juror W had only been living in her home for a month, (2) she
rented her home, (3) she just had a child, and (4) she was a
single mother, all of which would result in a “big
burden there.” The AUSA added that Juror W's
questionnaire stated her father had been murdered, but she
remained silent during voir dire, even when the Court asked,
“Have any of you ever been involved in any court in a
criminal matter that concerned you, any member of your family