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United States v. Harding

United States Court of Appeals, Eighth Circuit

July 28, 2017

United States of America, Plaintiff- Appellee,
v.
Patrick Harding, Defendant-Appellant.

          Submitted: February 10, 2017

         Appeal from United States District Court for the District of South Dakota - Rapid City

          Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

          COLLOTON, Circuit Judge.

         Patrick Harding was convicted by a jury of unlawful possession of a firearm as a previously convicted felon and possession of a stolen firearm. The district court[1]sentenced him to 20 months' imprisonment. Harding raises several points in a challenge to the judgment. He complains that the district court erred when it overruled his objections to the government's peremptory strikes of two Native-American prospective jurors. He contends that the court should have appointed counsel for two prosecution witnesses and advised them of their Fifth Amendment privilege against self-incrimination. And he argues that the court abused its discretion when it denied his motions for a mistrial and a continuance based on surprise testimony at trial. We conclude that the district court committed no reversible error, and we therefore affirm.

         I.

         In August 2014, Rapid City police officers were called to the Parkway Carwash. Lynda Ruud told the officers that Harding had a Glock .40 caliber handgun in the waistband of his pants. Harding had departed the car wash, and the officers found him at Donald Macpherson's house.

         Officers arrested Harding, and Macpherson consented to a search of his home. Police found a green Menards bag that contained personal documents belonging to Harding, a loaded Glock .40 caliber handgun, an inner waistband holster, a magazine holster, and a loaded extra magazine. The firearm and accessories were later identified as items stolen in May 2014 from a vehicle parked outside the Oasis Lounge, a tavern in downtown Rapid City.

         A grand jury charged Harding with possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of a stolen firearm, in violation of 18 U.S.C. § 922(j). The case proceeded to trial, a jury found Harding guilty on both counts, and the district court imposed sentence.

         II.

         Harding's first issue on appeal concerns the government's exercise of peremptory strikes during jury selection. Harding challenged the government's striking of two Native-American venirepersons, Lloyd Lacroix and Jamie Cottier, as an alleged violation of the equal-protection component of the Due Process Clause of the Fifth Amendment. See Batson v. Kentucky, 476 U.S. 79, 89 (1986); United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007). This claim is governed by a three-step process:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (internal quotations and alterations omitted).

         As the case unfolded at trial, the district court and the parties skipped the first step of the process. After Harding objected to the strikes, the court recognized the prosecutor for a response, and the prosecutor volunteered race-neutral bases for the strikes. The prosecutor did not address whether Harding made a prima facie showing, and the district court made no finding on that point. The district court ultimately determined at step three of the process that Harding had not shown purposeful discrimination. In this situation, the question whether Harding made a prima facie showing is moot. Hernandez v. New York, 500 U.S. 352, 359 (1991). We review the district court's ultimate finding on purposeful ...


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