United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1224

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri. 

Diallo Davidson, * 

*

Appellant. * 

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Submitted: January 9, 2006

Filed: June 7, 2006

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Before BYE, HEANEY, and COLLOTON, Circuit Judges.

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COLLOTON, Circuit Judge.

After a trial, Diallo Davidson was convicted of unlawfully possessing a firearm

as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, he

argues that the district court erred in admitting certain testimony and in permitting the

government to exercise its peremptory challenges to exclude two African-American

jurors. He also argues that his sentence was erroneously imposed under the

mandatory sentencing guidelines system that prevailed prior to United States v.

Booker, 543 U.S. 220 (2005). We affirm his conviction, but vacate his sentence and

remand for resentencing.
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I.

According to testimony presented at trial, on January 23, 2004, Detectives Leo

Rice and Tom Sawyer from the St. Louis Metropolitan Police Violent Offender Task

Force were assigned to arrest Davidson and a female companion on warrants for

assault and homicide. They went to Davidson’s residence and observed him getting

into a vehicle, and then followed him in an unmarked vehicle onto Interstate 70.

According to the detectives, when Davidson reached Interstate 70, he accelerated and

began driving at a high speed and weaving in and out of traffic. Despite the officers’

lights and sirens, Davidson continued to flee, exiting the interstate twice, but

immediately re-entering. After several miles, Davidson’s vehicle reportedly hit a

cement median, toppled a freeway sign, crossed the exit ramp, and came to rest in a

grassy area.

After the vehicle came to a stop, Davidson exited, and the chase continued on

foot. According to Detective Rice, as Davidson ran away from the vehicle, he was

holding his waistband. Rice testified that Davidson next climbed over a fence, still

holding his waistband, and then stumbled and fell. Rice said that as Davidson

stumbled, a “dark-colored weapon” fell from his waistband, but that Davidson quickly

scooped it up and continued running. (T. Tr. at 116). Eventually, the detectives saw

Davidson pass through a window of an unoccupied residence. When Davidson exited

the residence four seconds later, he was placed under arrest. After Davidson’s arrest,

the residence was searched, and a firearm was discovered in the window.

A grand jury returned a one-count indictment against Davidson, and he entered

a plea of not guilty. During voir dire at the ensuing jury trial, five jurors were stricken

for cause, and there were then twenty-eight members of the panel available for the

jury, six of whom were African-American. The defense struck ten potential jurors,

including one African-American female juror, and the government struck six,

including two African-American female jurors. The defendant challenged the
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government’s exercise of its peremptory strikes with respect to the two AfricanAmerican jurors, Jurors 5 and 25, as an alleged violation of the equal-protection

component of the Fifth Amendment. See Batson v. Kentucky, 476 U.S. 79 (1986);

United States v. Elliott, 89 F.3d 1360, 1364 & n.3 (8th Cir. 1996).

Without ruling on whether the defense had established a prima facie case of an

equal protection violation, the district court permitted the government to explain its

reasons for choosing to strike those jurors. The government stated that it struck Juror

5 because she seemed nervous and “off” and because she was a renter, and that it

struck Juror 25 because she was single, a renter, and employed by a counseling center,

which the government perceived as increasing the likelihood that she would be

sympathetic toward criminal defendants. The court accepted these reasons as

legitimate race-neutral reasons that were not pretextual, and denied the defendant’s

Batson challenges.

Prior to trial, the court also considered Davidson’s motion in limine requesting

that the government be prevented from introducing certain evidence at trial, including

evidence that Davidson was wanted for homicide and assault when he was pursued

by the police on January 23. The district court denied the motion, and at trial,

Detective Rice testified that he and Detective Sawyer were looking for Davidson, a

female, and a vehicle “pursuant to a ‘wanted’ for homicide and an unrelated assault.”

(T. Tr. at 101). The jury was given a cautionary instruction that this evidence was not

to be considered in determining whether Davidson carried out the acts involved in the

crime charged in the indictment. (Jury Instruction No. 8).

During its deliberations, the jury twice indicated that it was unable to reach a

verdict, but after the court instructed the jury to continue deliberating, the jury

eventually returned a verdict, and found Davidson guilty. At sentencing, the district

court arrived at a United States Sentencing Guidelines range of 77-96 months’
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imprisonment. The court, believing itself bound by the mandatory guidelines prior

to Booker, imposed a sentence of 96 months’ imprisonment.

II.

Davidson argues that the district court erred in denying his challenge, based on

Batson, to the government’s two peremptory strikes of African-American

venirepersons. Once the government responds to a Batson challenge with a raceneutral explanation for its strike, the objecting party must prove that the explanation

is a pretext for discrimination, and it may support its claim by showing that the

characteristics of the stricken venireperson are shared by a non-minority venireperson

who is not stricken. Miller-El v. Dretke, 125 S. Ct. 2317, 2325 (2005). Ultimately,

the district court must determine whether the objecting party has proved that the

strikes were motivated by purposeful discrimination, and we review that determination

for clear error. See United States v. Blaylock, 421 F.3d 758, 769 (8th Cir. 2005).

In this case, Davidson argues that two of the jurors stricken by the government

were eliminated for racially discriminatory reasons. As to the first, Juror 5, the

government explained that it was concerned about her demeanor – it believed that she

“seemed very, very uncomfortable and physically not attentive and somewhat ‘off’”

(T. Tr. at 74) – and about the fact that she was a renter. The government similarly

explained its strike of Juror 25 as motivated in part by the fact that she was single and

not a homeowner, and in part by the fact that she worked at a counseling service

center, which the government believed suggested that she was potentially “more likely

to look to the root causes and to empathize with people who are accused of crime than

the population at large.” (T. Tr. at 78). In support of this claim that these reasons are

pretextual, Davidson points to two non-minority jurors whom he believes were

similarly situated but were not stricken. One, Juror 12, was a renter with a high school

education and a shorter employment history than Juror 5. The second, Juror 1, was

another person who lived with a homeowner, like Juror 25, but was not stricken.
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The district court did not clearly err in determining that the government’s use

of its peremptory strikes was not racially motivated. The venirepersons that Davidson

offered as “similarly situated” were in fact similarly situated in only one respect: home

ownership. They did not share the other qualities identified by the government as

motivating the strike, and the reasons the government identified were race-neutral and

appropriate. Body language and demeanor can be appropriate reasons to strike jurors,

e.g., Reynolds v. Benefield, 931 F.2d 506, 512-13 (8th Cir. 1991), and the inference

that Juror 25’s employment might make her more sympathetic to criminal defendants

is similarly valid. United States v. Pherigo, 327 F.3d 690, 695-96 (8th Cir. 2003).

The district court is afforded deference in its determinations of the credibility of the

prosecutor and the race-neutral explanations offered. Id. at 696. We note, moreover,

that the government did not exercise its strikes to eliminate the greatest possible

number of minority jurors, a factor which we have said “negates an allegation of

purposeful discrimination.” Miller v. United States, 135 F.3d 1254, 1257 (8th Cir.

1998).

Davidson also argues that the district court abused its discretion in admitting

evidence that officers were pursuing him on a warrant for murder and assault. During

Detective Rice’s testimony, after the detective indicated he was looking for Davidson,

a female, and a vehicle, the government asked: “Now was that pursuant to a ‘wanted’

for homicide and an unrelated assault? . . . As a separate investigation from what

you’re going to testify to here, correct?” (T. Tr. at 101). Detective Rice answered this

query in the affirmative. The information was not mentioned again, and the jury was

given an instruction cautioning it not to consider the testimony as evidence that

Davidson had committed the crime of unlawful possession of a firearm.

The government argues that the “background” information helped explain to

the jury why Davidson was pursued, but Davidson counters that the information had

little to no probative value, and that the specific details were unfairly prejudicial and

improperly suggested to the jury that he had a criminal propensity. See Fed. R. Evid.
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403, 404(b). There is merit to Davidson’s point that the detail about charges for

which he was wanted had limited probative value, as any legitimate curiosity that

arose in the jury regarding why the detectives were pursuing Davidson probably could

have been satisfied with a less specific explanation that he was wanted on unrelated

charges, without specifying homicide and assault.

We cannot say, however, that evidence was wholly irrelevant. Davidson’s

defense that he was not carrying a firearm during the chase placed in question the

credibility of Detective Rice, who claimed to see Davidson dropping a weapon, and

the full description of why the detectives were there “was relevant . . . to explain the

police conduct and to bolster the officers’ credibility.” United States v. Malik, 345

F.3d 999, 1002 (8th Cir. 2003). 

The question of admissibility thus turns on the balancing of probative value and

the danger of unfair prejudice under Rule 403. Davidson concedes that it was

permissible for the court to permit evidence that he was subject to an active arrest

warrant, and we are concerned only with the incremental danger of unfair prejudice

arising from the identification of the specific crimes for which Davidson was wanted.

The risk of unfair prejudice from this additional detail seems relatively modest, for the

jury already knew that Davidson was wanted for some crime serious enough to trigger

a lengthy high-speed chase. The district court issued a cautionary instruction to the

jury, thus diminishing the risk that the evidence unfairly prejudiced Davidson. See

United States v. Franklin, 250 F.3d 653, 659 (8th Cir. 2001). Evidentiary rulings are

reviewed for abuse of discretion, and we afford deference to the district judge “who

saw and heard the evidence.” United States v. Ziesman, 409 F.3d 941, 951 (8th Cir.

2005) (internal quotations omitted), cert. denied, 126 S. Ct. 579 (2005). While it

certainly would have been reasonable for the district court to limit further the scope

of the “background” testimony based on the balancing test of Rule 403, cf. Malik, 345

F.3d at 1003 (Melloy, J., concurring), we conclude that the danger of unfair prejudice

did not so substantially outweigh the probative value as to dictate the conclusion that
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the district court abused its discretion in permitting the testimony. See United States

v. Rios, 856 F.2d 493, 497 (2d Cir. 1988).

Finally, Davidson contends that he is entitled to resentencing in light of United

States v. Booker, 543 U.S. 220 (2005), which declared the sentencing guidelines

“effectively advisory,” because the district court in this case applied the guidelines in

a mandatory fashion. The government concedes there was error and that the case

should be remanded for resentencing based on the advisory guidelines and 18 U.S.C.

§ 3553(a).

For the foregoing reasons, we affirm Davidson’s conviction, but vacate his

sentence and remand for resentencing in light of Booker.

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