Submitted: February 10, 2017
from United States District Court for the District of South
Dakota - Rapid City
LOKEN, COLLOTON, and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
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 courtsentenced 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
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.
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.
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.
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).
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