Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.united States of America, Appellee, v. Charles Thirdkill, Appellant, 116 F.3d 481 (8th Cir. 1997)

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U.S. Court of Appeals for the Eighth Circuit - 116 F.3d 481 (8th Cir. 1997) Submitted May 20, 1997. Filed June 6, 1997

Appeal from the United States District Court for the Eastern District of Missouri.

Before MURPHY and HEANEY, Circuit Judges, and ROSENBAUM,1  District Judge.


Charles Thirdkill was convicted by a jury of conspiring to distribute and possess with intent to distribute cocaine and heroin, and he was sentenced to 188 months in prison. The only issue raised by Thirdkill on appeal is whether the United States' use of preemptory challenges to strike two African-American panel members from the jury was unconstitutional under Batson v. Kentucky, 476 U.S. 79 (1986). After the district court2  seated the all white jury, Thirdkill raised his Batson challenge and Judge Limbaugh placed the burden on the prosecution to offer a race neutral explanation for the strikes. The prosecutor stated he struck the first juror because she was sleeping or nodding off during voir dire, and the second because he indicated that he had heard defendant's name and that his experience in the recording industry led him to have concerns about the authenticity of audio tape recordings. The district court was satisfied by the explanations and concluded that there was no Batson violation. Finding no errors of law or fact, we affirm the judgment.


The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota, sitting by designation


The Honorable Stephen N. Limbaugh, United States District Judge for the Western District of Missouri