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United States v. Johnson

United States District Court, D. Nebraska

June 26, 2018

UNITED STATES OF AMERICA, Plaintiffs,
v.
SHERMAN JOHNSON, JR. and SARKIS LABACHYAN, Defendants.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge

         This 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.

         I. BACKGROUND

         Johnson, 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.

         During voir dire, the government used three of its six peremptory strikes on the only jurors in the jury pool who were racial minorities.[1] 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.

         The 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.[2]

         II. DISCUSSION

         “The 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.”).

         “Under 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)).

         The 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 challenged jurors.[3]

         A. Juror W

         During 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 or ...


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