United States of America, Plaintiff-appellee, v. David Mccoy Bishop, Defendant-appellant.united States of America, Plaintiff-appellee, v. Louis Carnell Jones, Defendant-appellant, 914 F.2d 249 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 914 F.2d 249 (4th Cir. 1990) Argued July 20, 1990. Decided Aug. 9, 1990

Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Hiram H. Ward, Senior District Judge. (CR-89-141-G)

Ellen Ruth Gelbin, Elliot & Pishko, P.A., Winston-Salem, N.C., for appellant Jones; Gordon Hampton Brown, Blackwell, Blackwell, Canady & Thornton, Winston-Salem, N.C., for appellant Bishop; David F. Tamer, Winston-Salem, N.C., on brief. Charles T. Francis, Assistant United States Attorney, Greensboro, N.C., (argued), for appellee; Robert H. Edmunds, Jr., United States Attorney, Greensboro, N.C., on brief.



Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.


David Bishop and Louis Jones appeal their convictions for armed bank robbery and use of a handgun in committing a bank robbery, in violation of 18 U.S.C. § 2113(a) & (d). Bishop and Jones jointly challenge the sufficiency of the evidence to support these convictions and the district court's denial of their Batson challenge to the peremptory strike of a black juror from the venire. Bishop also challenges the determination that he should be sentenced as a career offender. Finding no error, we affirm.

* On June 8, 1989, an armed black male walked into a High Point, North Carolina, bank and shouted, "This is a stick up!" A companion, also a black male, came in behind him, leapt over the bank counter, and began emptying the cash drawers, while the first man to enter called out at intervals the time remaining for the robbery. Among the cash taken from the drawers was some "bait money," with recorded serial numbers. The two men then ran out of the bank, one of them carrying a brown bag, and were seen getting into the back seat of a light blue Chevrolet Nova in which two other black males were waiting in the front seat. The car quickly pulled off, but a witness noted the license plate number.

The police undertook surveillance on a highway headed towards Winston-Salem. Approximately ten minutes after the surveillance was set up, a light blue Chevrolet Nova with the same license number as that reported by the witness drove past. While the police followed the car, a road block was arranged some way down the highway. After the car was finally stopped, the police arrested the four black males inside. The man driving was later identified as Louis Jones and the man in the passenger seat as David Bishop; in the back seat were Darrell King and Allen Lybrand, later identified as the bank robbers. At the time of the stop, a brown vinyl bag was sitting on the front passenger side floor board, between Bishop's legs; the bag contained a large quantity of cash, most of it still packaged in bank money straps and some of it bearing the same serials numbers as the "bait money" taken from the bank. A search of the car also uncovered a .22 revolver and a dark colored stocking similar to that used in the bank robbery. Upon arrest, Jones exclaimed, "I ain't crying. I knew the chances of getting caught when I took them.... At least I ain't going to no state prison."

Lybrand, one of the bank robbers, pleaded guilty and testified for the government at trial. Lybrand explained that he sold drugs for Bishop and had failed to make a full accounting for proceeds. Bishop, Lybrand testified, told him that he could cover the debt by helping with a bank robbery. On the morning of June 8, Jones picked up Lybrand, King, and Bishop. The four men drove around High Point looking for a target and eventually settled on this bank.

The government also presented the eyewitness testimony of Joann Cox, who took the Nova's license number as she saw Lybrand and King run out of the bank and climb into the car. Other government witnesses included Detective Ken Bishop, who described the surveillance, arrest, and discovery of the stolen money; arresting officer A.R. Moore, who recounted Jones' incriminating exclamation; and FBI Special Agent Eric Burkhardt, who matched the serial numbers of the money found in the bag between Bishop's legs with those of the "bait money" taken from the bank. A jury convicted Bishop and Jones of the robbery and handgun charges. The court sentenced both men as career offenders under the United States Sentencing Guidelines to 262 months imprisonment on the armed robbery count and a five-year consecutive sentence on the handgun count. These appeals followed.


Bishop and Jones first challenge the district court's denial of their motion for acquittal, claiming that the government's evidence was insufficient to support their convictions. Their only contention in this regard is that the testimony of Allen Lybrand was "patently incredible" because his memory failed him regarding certain matters about which he should have had a clear recollection. We may not consider a claim that a witness' testimony was incredible, as such a judgment lies within the province of the jury. See Pigford v. United States, 518 F.2d 831 (4th Cir. 1975). But even if we were to accept the proposition that Lybrand's testimony was "patently incredible," the remaining evidence would be wholly sufficient to support these convictions. Giving the government the benefit of all reasonable inferences that could be drawn from the direct and circumstantial evidence, see United States v. Tresvant, 677 F.2d 1018 (4th Cir. 1982), a rational jury could have found guilt beyond a reasonable doubt from, in combination with the other evidence, the evidence that the car and license plate leaving the scene matched the stopped car; the possession of the brown bag of money in bank straps with identified serial numbers; the possession of implements for robbing a bank; and Jones' exclamation at arrest. The evidence was sufficient to support these convictions.


Bishop and Jones next claim that the prosecutor's exercise of a peremptory challenge to strike a black juror from the venire violated equal protection. See Batson v. Kentucky, 476 U.S. 79 (1976).*  There is no merit to this argument.

After the prosecutor struck a black venireman, defense counsel objected, stating only that the venireman was black, and she saw no reason for striking him. The court then asked the prosecutor to explain his use of the peremptory strike. The prosecutor stated that the juror was a "technical man" by training and appeared to be very well educated. The prosecutor elaborated that in his twelve years' experience picking jurors, he had found that people with technical backgrounds had a tendency to want to have all the answers and feed them into a formula before reaching any conclusion. The prosecutor denied that his use of the peremptory strike had anything to do with race. (He had not exercised peremptory strikes against some black jurors who ultimately sat on the petit jury.) The court then asked defense counsel whether she saw any racial implications in this explanation, and she replied, "I don't see any racial implications in his answer. I just don't think it is a sufficient answer to remove a black juror." Noting that under Batson it was the racial implications that mattered, the court ruled that no Batson violation had occurred.

In Batson, the Court held that a defendant could make out a prima facie case of purposeful racial discrimination in selection of the petit jury, in violation of the equal protection clause, by relying solely on evidence regarding a prosecutor's use of peremptory challenges. Batson also established a proof scheme for bringing such challenges. The defendant must establish three elements to make out the prima facie case: (1) that he is a member of a cognizable racial group and that the prosecutor has used peremptory challenges to remove members of his racial group; (2) that the practice of peremptory challenges could permit racial discrimination to occur (this element is presumed in all cases); and (3) that there exist "facts and any other relevant circumstances [that] raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Id. at 96. In evaluating whether a defendant has made a prima facie case, the trial judge should consider all relevant circumstances, such as a pattern of strikes against blacks in a particular venire, or the type of questions and statements a prosecutor uses in voir dire. Id. at 96-97. If the defendant makes out a prima facie case, the burden shifts to the prosecutor to come forward with a "neutral explanation related to the particular case to be tried." Id. at 98. This explanation need not meet the standard required for striking a juror for cause, but neither may it rely on a prosecutor's bare intuitive judgment or on any assumptions that a juror may think or act a certain way because of his race. Once the prosecutor meets this burden, the trial court must decide whether purposeful racial discrimination has occurred. Id. The trial court's finding on that ultimate fact will necessarily involve credibility determinations, so appellate courts must accord great deference to the finding. United States v. Hamilton, 850 F.2d 1038, 1040 (4th Cir. 1988).

We are inclined to agree with the government that Bishop and Jones failed to establish the third element of the Batson test because they asserted nothing more than that the stricken juror was black. We need not so hold, however, because--as even defense counsel conceded--the explanation offered by the government in support of the peremptory strike was racially neutral and related to the case to be tried. The government therefore met its burden under Batson. The district court was permitted to find that no purposeful racial discrimination occurred, and that finding was not clearly erroneous. Accordingly, we hold that there was no violation of equal protection under Batson.


Finally, Bishop challenges the determination that he should be sentenced as a career offender under Sec. 4B1.1 of the Sentencing Guidelines. That section provides:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

At the sentencing hearing, the government relied on the following three convictions named in Bishop's presentence report to support the career offender status: (1) a 1982 heroin possession conviction; (2) a 1977 bank robbery conviction; and (3) a 1968 armed robbery conviction. Bishop challenges the consideration of convictions (1) and (3). The government no longer contends that (1), the heroin possession conviction, was countable under the career offender provision, and seeks instead to uphold Bishop's career offender status on the basis of the other two convictions. The only contested issue Bishop raises, therefore, is whether (3), the 1968 robbery conviction, should count.

Bishop contends that because he was released from incarceration on the 1968 conviction more than fifteen years before the commission of the instant offense, that conviction should not count for career offender purposes. Guideline Sec. 4A1.2(e) (1) provides:

Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.

Bishop was released on parole on September 30, 1974, so he was imprisoned during some of the fifteen-year period preceding the June 8, 1989, commission of these offenses. During his imprisonment on the 1968 conviction, however, Bishop received a six-month sentence for an escape conviction, which sentence was to be served consecutive to the armed robbery sentence. Bishop now claims that at least from June 8 to September 30, 1974, he was serving prison time for the escape conviction, not the armed robbery. Thus, he argues, the armed robbery sentence should not have been counted.

Bishop presented this argument as an objection to his presentence report. In response, the probation officer who prepared the presentence report investigated the possibility that Bishop might have been serving time for the escape conviction during the relevant part of 1974. Under questioning from the court at the sentencing hearing, the probation officer testified that his investigation of records from the North Carolina Department of Corrections "show [ed] [that] Mr. Bishop never served any time on the escape. The sentence was aggregated." Joint Appendix at 516-17. On the basis of this testimony, the district court found as a fact that Bishop was serving out his armed robbery conviction during the relevant part of 1974 and therefore counted that conviction for career offender purposes. The district court's factfinding was not clearly erroneous, and the sentence imposed was a correct application of the Guidelines.


For the foregoing reasons, we affirm Bishop's and Jones' convictions, and we affirm the sentence imposed on Bishop.



We assume the claimed equal protection violation in this federal criminal case arises under the so-called equal protection component of the fifth amendment. See Bolling v. Sharpe, 347 U.S. 497 (1954)