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United States v. Floyd Allen Baker, 99-1407 (1999)

Court: Court of Appeals for the Eighth Circuit Number: 99-1407 Visitors: 38
Filed: Nov. 23, 1999
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 99-1407 _ United States of America, * * Appellee, * Appeal from the United States * District Court for the Southern v. * District of Iowa. * Floyd Allen Baker, * [UNPUBLISHED] * Appellant. * _ Submitted: November 19, 1999 Filed: November 23, 1999 _ Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges. _ PER CURIAM. Floyd Allen Baker appeals his conviction for being a felon in possession of a firearm. See 18 U.S.C. § 922(g)
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                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 99-1407
                                      ___________

United States of America,                  *
                                           *
                     Appellee,             * Appeal from the United States
                                           * District Court for the Southern
      v.                                   * District of Iowa.
                                           *
Floyd Allen Baker,                         *      [UNPUBLISHED]
                                           *
                     Appellant.            *
                                      ___________

                                 Submitted: November 19, 1999

                                     Filed: November 23, 1999
                                      ___________

Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

PER CURIAM.

       Floyd Allen Baker appeals his conviction for being a felon in possession of a
firearm. See 18 U.S.C. § 922(g)(1). We affirm.

       Baker first claims the Government's strike of the only black venireperson
violated Batson v. Kentucky, 
476 U.S. 79
(1986). We disagree. The Government
offered five race-neutral reasons for its strike: (1) the venireperson served as the key
witness in the drug prosecution of her husband, (2) her nephew repeatedly avoided
conviction on drug charges, (3) her coworker ran a methamphetamine lab, (4) she
opposed the death penalty, and (5) she served as a juror in a state criminal case in
which the defendant was acquitted. Baker contends these reasons were merely a
pretext for discrimination. As evidence of pretext, Baker points out that the
venireperson's service as a key witness in the drug prosecution of her own husband
made her sympathetic to the Government and that her views on the death penalty were
irrelevant, but we have held that "[p]rosecutors need only support their actions with
reasons that are not inherently discriminatory, regardless of whether the reasons make
sense." See Gee v. Groose, 
110 F.3d 1346
, 1351 (8th Cir. 1997). Baker also points
out the Government did not remove other white panel members who were similarly
situated to the removed black venireperson because of connections to people with drug
habits or because of their service as jurors in cases in which defendants were acquitted.
The other venirepersons were not similarly situated, however, because the black
venireperson was removed for a combination of reasons not attributable to any of the
nonchallenged venirepersons. See Devoil-El v. Groose, 
160 F.3d 1184
, 1187 (8th Cir.
1998), cert. denied, 
119 S. Ct. 1077
(1999). On this record we cannot say the district
court's decision to uphold the Government's strike was clearly erroneous. 
Id. We also
reject Baker's challenge to the sufficiency of the indictment. Because
the indictment refers to Baker as a defendant and recites all the elements of the offense,
the indictment can reasonably be read to charge Baker as a felon in possession of a
firearm. See 18 U.S.C. § 922(g)(1); United States v. O'Hagan, 
139 F.3d 641
, 651 (8th
Cir. 1998) (indictment is sufficient unless no reasonable construction can be said to
charge offense). Likewise, we reject Baker's challenge to the sufficiency of the
evidence because his attack is based on the credibility of the witnesses, which is an
issue reserved for the jury. See United States v. Gomez, 
165 F.3d 650
, 654 (8th Cir.
1999). Baker's claim that the testimony of two Government witnesses who entered plea
agreements in exchange for leniency should have been suppressed is foreclosed by our
decision in United States v. Johnson, 
169 F.3d 1092
, 1098 (8th Cir.), cert. denied, 
1999 WL 423385
(U.S. Oct. 4, 1999) (No. 98-9870) (18 U.S.C. § 201(c)(2) does not prevent
prosecutors from offering leniency in exchange for truthful testimony).

                                            -2-
       Finally, Baker challenges his sentence claiming he should not have received a
four level enhancement for possession of the gun "with knowledge, intent, or reason to
believe that it would be used or possessed in connection with another felony offense."
U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (1998). Again, we disagree.
Although Baker contends the Government did not prove he knew of or intended to use
the gun for a specific robbery, the Guideline "does not require knowledge of the
specific felony to be committed." United States v. Dodge, 
61 F.3d 142
, 146 (2nd Cir.
1995); accord United States v. Nunez, 
146 F.3d 36
, 40 (1st Cir. 1998). Trial testimony
showed that others saw Baker with the gun, and that Baker told one person the gun
would be used for a robbery. This testimony permits a finding that Baker knew the gun
would be used in connection with one or more robberies and supports the four level
enhancement.

      We affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -3-

Source:  CourtListener

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