United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1378

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United States of America, *

*

Appellee, *

*

v. *

*

James Jones, * 

* 

Appellant. *

___________ Appeals from the United States

District Court for the

No. 09-1492 Eastern District of Missouri.

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United States of America, *

*

Appellee, *

*

v. *

*

Cornelius Raymond Johnson, *

*

Appellant. *

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Submitted: December 18, 2009

Filed: April 9, 2010

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1

The Honorable William Jay Riley became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on April 1, 2010.

2

The Honorable E. Richard Webber, United States District Judge for the Eastern

District of Missouri.

3

Batson v. Kentucky, 476 U.S. 79 (1986). 

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Before RILEY,1

 Chief Judge, WOLLMAN and MELLOY, Circuit Judges. 

___________

RILEY, Chief Judge.

A jury convicted James Jones (Jones) and Cornelius Raymond Johnson

(Johnson) of possession with intent to distribute cocaine base. Jones and Johnson

appeal their convictions, claiming the government presented insufficient evidence at

trial to support the jury’s verdicts. Johnson also contends the district court2

 erred in

denying his Batson3

 jury selection challenge. We affirm.

I. BACKGROUND

On June 12, 2008, a grand jury returned a two-count indictment against Jones

and Johnson. Count I alleged Jones possessed with intent to distribute more than fifty

grams of a mixture or substance containing a detectable amount of cocaine base, in

violation of 21 U.S.C. § 841(a)(1). Count II alleged Johnson possessed with intent to

distribute more than five grams of a substance containing cocaine base, in violation

of 21 U.S.C. § 841(a)(1). On November 12, 2008, the case proceeded to trial. The

government presented testimony from six witnesses, including four police officers and

a forensic chemist with the St. Louis Metropolitan Police Department. We summarize

the relevant testimony.

Officer Blake Witzman (Officer Witzman) testified that in May 2008 he was

working on a Community Response Team and his duties included investigations into

drug activity. On the evening of May 14, 2008, Officer Witzman received
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information from a source that two individuals, “James” and “Cornelius,” were selling

narcotics in front of the residence located at 4570 Davison in St. Louis, Missouri. The

source provided Officer Witzman with a physical description of the two men and

described the method the men used to conduct the drug sales. The source stated the

men were standing on the porch together, and while one man would stay on the porch

as a lookout, the other would conduct drug transactions with individuals who drove

on the street in front of the house. 

Officer Witzman notified four other officers about the information he received,

and the officers decided to meet two blocks east of 4570 Davison in an effort to

remain covert. The officers parked their vehicles and continued on foot until they

stopped behind a fence located across the street from the residence. Officer Witzman

observed several vehicles stopped in front of the residence and at least ten individuals

talking to the vehicles’ occupants. Officer Witzman saw two individuals standing on

the front porch who matched the description the source had provided. Officer

Witzman recognized Johnson, whom he had seen around the neighborhood. 

After approximately five minutes, Officer Witzman observed Johnson approach

the passenger side of a vehicle and have a brief conversation with the occupants.

Johnson then walked to the passenger side of a second vehicle and leaned inside

before returning to the porch. A short time later, Officer Witzman saw Jones

approach a dark colored Impala and lean into its driver side window. Officer

Witzman testified the driver extended his arm and handed Jones several plastic

baggies containing large chunks. When Jones took the plastic baggies, someone in

the vicinity yelled, “Police,” and the individuals in front of the residence scattered.

Jones took the plastic baggies, folded them inside his shirt, and ran toward the porch.

Officer Witzman testified Johnson, who was standing on the porch, ran into the

4570 Davison residence, and Jones followed Johnson inside. Officer Witzman and

Officer Damon Willis (Officer Willis) pursued Johnson and Jones inside the
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residence. Officer Witzman followed Jones into a bathroom and observed Jones lean

over a toilet, open his shirt, and discard the baggies into the toilet. Officer Witzman

ordered Jones to lie down on the ground and place his hands behind his back, and

Jones complied. Officer Witzman secured Jones, retrieved four baggies from the

toilet, and packaged them in an evidence envelope. Officer Witzman testified the

baggies contained a distribution amount of crack cocaine. 

Officer Willis testified he helped Officer Witzman conduct surveillance of the

Davison residence and recited testimony similar to that given by Officer Witzman.

Officer Willis further testified that as Officer Witzman followed Jones into the

bathroom, Officer Willis pursued Johnson, who was attempting to exit the back door

of the residence. Officer Willis ordered Johnson to get down on the ground and then

took Johnson into custody. Officer Willis conducted a pat down of Johnson and

retrieved several clear plastic bags containing pieces of a rock-like substance, which

was later determined to be crack cocaine. Officer Willis testified the amount of crack

cocaine he retrieved from Johnson appeared to be a distribution amount, and the

packaging of the cocaine was a common method of transfer from seller to buyer. 

Lashaun Kegler (Kegler) was a resident of 4570 Davison on May 14, 2008.

Kegler testified she was inside her home when two men ran into her home, followed

by the police. Kegler stated she had not invited the men into her home on that day or

on any other occasion. 

Margart Owens (Owens), a forensic chemist with the St. Louis Police

Department Crime Laboratory, testified she analyzed the items police seized from

Johnson and Jones. Owens determined the substance taken from Johnson was cocaine

base with a gross weight of 6.58 grams. Owens reported the substance taken from

Jones consisted of cocaine base with a gross weight of 234.98 grams. 
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On November 17, 2008, a jury found Jones and Johnson guilty of possession

with intent to distribute cocaine base as charged in the superseding indictment. The

district court sentenced Jones to 240 months imprisonment, and Johnson to 120

months imprisonment. Jones and Johnson appeal, claiming the government failed to

present sufficient evidence at trial to sustain their convictions. Johnson also argues

the district court erred in denying Johnson’s Batson challenge. 

II. DISCUSSION

A. Sufficiency of the Evidence

Jones and Johnson contend the district court should have granted their motions

for judgment of acquittal because there was insufficient evidence to support the jury’s

verdicts. “‘We review the sufficiency of the evidence de novo, viewing evidence in

the light most favorable to the government, resolving conflicts in the government’s

favor, and accepting all reasonable inferences that support the verdict.’” United States

v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009) (quoting United States v. Bower, 484

F.3d 1021, 1025 (8th Cir. 2007)), cert. denied, 130 S. Ct. 1308 (2010). “‘[W]e will

uphold the verdict if there is any interpretation of the evidence that could lead a

reasonable-minded jury to find the defendant guilty beyond a reasonable doubt.’”

United States v. Nolen, 536 F.3d 834, 842 (8th Cir. 2008) (quoting United States v.

Cole, 525 F.3d 656, 661 (8th Cir. 2008)). 

1. Johnson’s Argument

Johnson argues Officer Willis, Officer Witzman, and Kegler “provided

unreasonable testimony that clearly does not support conviction on the charge set out

in the indictment.” Johnson claims that on May 14, 2008, he was a visitor at 4570

Davison when “he heard a commotion and the police ordered everyone to get on the

floor.” Johnson maintains Officer Witzman had “harassed” Johnson in the past, and

during the May 14, 2008 encounter, Officer Witzman “tried to coerce [Johnson] into

divulging information about firearms crimes.” Johnson alleges, when he failed to
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provide such information, the officers charged him with possession of cocaine base

with intent to distribute. 

Johnson implies Officer Witzman’s and Officer Willis’s testimony that “they

could see clearly activity occurring more than 150 [feet] away,” is unreasonable.

Johnson theorizes the officers could not have concluded Johnson was distributing

cocaine base because the officers could not hear Johnson’s conversation or see

“exchanges of any kind.” Johnson also insists it is inexplicable how the officers could

“cover the distance” from the officers’ surveillance position to the 4570 Davison

residence before Johnson “could jump off the porch and runaway [sic],” or Jones

could hide or flush the cocaine base Jones allegedly possessed. Johnson further

contends Kegler’s testimony that Johnson had never been in Kegler’s house is

unreasonable because Johnson was able to render an “exact layout” of the interior of

her home. 

Johnson is essentially challenging the credibility of the witnesses. “Assessing

witness credibility is the job of the jury and absent extraordinary circumstances . . . ,

we will not review that assessment.” United States v. Wesseh, 531 F.3d 633, 637 (8th

Cir. 2008); see also United States v. Johnson, 519 F.3d 816, 822 (8th Cir.) (noting

“the jury’s credibility determinations are ‘virtually unreviewable on appeal’” (quoting

United States v. Singh, 494 F.3d 653, 660 (8th Cir. 2007))), cert. denied, 129 S. Ct.

199 (2008). Johnson’s counsel had an opportunity to attack the credibility of the

government’s witnesses at trial, and the jury nevertheless accepted the witnesses’

testimony as true. See United States v. Hill, 249 F.3d 707, 714 (8th Cir. 2001). Upon

a thorough review of the record, we find no basis upon which to disturb the jury’s

credibility findings. 

2. Jones’s Argument

Jones acknowledges Officer Witzman testified he observed Jones discard

several small baggies containing cocaine base into a toilet; however, Jones contends
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this evidence is insufficient to demonstrate Jones intended to distribute the cocaine

base. We disagree. To establish the offense of distribution of a controlled substance,

in violation of 21 U.S.C. § 841(a)(1), the government is required to establish the

defendant (1) “knowingly and intentionally distributed a controlled substance,” and

(2) “knew the item was a controlled substance at the time of distribution.” Hernandez,

569 F.3d at 896; see also United States v. Boyd, 180 F.3d 967, 979 (8th Cir. 1999).

 “An intent to distribute contraband may be established with circumstantial

evidence,” United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir. 1994), “including

such things, as quantity, purity, and presence of firearms, cash, packaging material,

or other distribution paraphernalia,” United States v. Lopez, 42 F.3d 463, 467 (8th Cir.

1994). In fact, “‘[i]ntent to distribute may be inferred solely from the possession of

large quantities of narcotics.’” Boyd, 180 F.3d at 980 (quoting Ojeda, 23 F.3d at

1476). “‘The underlying theme of such cases is that defendant possessed a quantity

which was more than he would possess for his own use.’” Id. (quoting Lopez, 42 F.3d

at 467). 

In this case, Officer Witzman testified he seized 234.98 grams of a substance

containing cocaine base from a toilet where Jones had deposited it. Officer Witzman

testified such a large quantity of cocaine base constituted a distribution amount. This

alone would be sufficient circumstantial evidence for the jury to conclude Jones

possessed with intent to distribute the cocaine base. See id.

Viewing the record in the light most favorable to the government, there is

substantial evidence to support the jury’s verdict. The district court did not err in

denying Jones’s and Johnson’s motions for judgment of acquittal. 
4

The government had earlier attempted to strike Juror Number 30 and Juror

Number 39 for cause, citing the same reasons. 

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B. Batson Challenge

During voir dire, the government used peremptory challenges to excuse three

African-Americans from the venire. Johnson raised a Batson objection, noting the

government excused three of the four remaining African-Americans on the panel. The

district court found Johnson and Jones demonstrated a prima facie case of racial

discrimination because the government used three of its six peremptory challenges to

excuse African-Americans from the venire panel, creating a pattern. The district court

then provided the government with an opportunity to provide a race-neutral

explanation for the peremptory challenges. 

The government stated it exercised a peremptory challenge to strike Juror

Number 8 because the juror has a sister-in-law who works as a correctional officer in

the county jail, and correctional officers “are constantly under investigation by FBI,

by city police and other law enforcement for the importation of controlled substances

into the institution.” The government justified its peremptory challenges as to Juror

Number 30 and Juror Number 39, stating both jurors adamantly indicated, in answer

to the court’s question, a belief that African-Americans are treated unfairly in the

criminal justice system.4

 The government added that it used a peremptory challenge

to excuse Juror Number 20, a Caucasian female, for the same reason. 

The district court considered the reasons proffered by the government and

found the government had provided a race-neutral explanation for excusing Juror

Number 30 and Juror Number 39, and Johnson failed to show purposeful

discrimination. As to Juror Number 8, the district court stated the government’s

justification for using a peremptory challenge was “tenuous, tangential, and extremely

fashioned,” but found the government provided a race-neutral explanation. The

district court then found Johnson failed to show purposeful discrimination and denied

Johnson’s Batson challenge.
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In Batson v. Kentucky, 476 U.S. 79, 84 (1986), the Supreme Court reaffirmed

“it is a violation of the Equal Protection Clause for the government to use a

peremptory challenge to strike a prospective juror solely on the basis of race.” United

States v. Bolden, 545 F.3d 609, 613 (8th Cir. 2008), cert. denied, 130 S. Ct. 796

(2009). Courts considering a Batson challenge apply a three-step analysis: (1) the

defendant must make a prima facie showing that the government issued a peremptory

challenge on the basis of race, (2) the government must offer a race-neutral reason for

the strike, and (3) the court must determine whether the defendant has shown

purposeful discrimination. See Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S. Ct.

1203, 1207 (2008). “On appeal, a trial court’s ruling on the issue of discriminatory

intent must be sustained unless it is clearly erroneous.” Id. 

In the present case, the district court followed the three-step process Batson

requires. The district court found, based upon a pattern, that Johnson made a prima

facie showing the government issued peremptory challenges on the basis of race. The

district court then gave the government an opportunity to provide a race-neutral

justification. After the government provided its reasons for the strike, the district

court found the government’s reasons were race-neutral and no Batson violation

occurred. 

A district court’s denial of a Batson challenge should be upheld when the

government’s reasons for the strikes are nondiscriminatory, even when those reasons

may not support striking a juror for cause. See United States v. McKay, 431 F.3d

1085, 1092 (8th Cir. 2005). Further, “[i]f there is no inherently discriminatory intent

in the prosecutor’s explanation, ‘the reason offered will be deemed race neutral.’”

United States v. Roebke, 333 F.3d 911, 913 (8th Cir. 2003) (quoting Purkett v. Elem,

514 U.S. 765, 768 (1995)). The district judge is directly immersed in the trial with a

much better perspective than ours to determine whether purposeful discrimination

exists, and we typically defer to that determination. After careful review of the record
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and the government’s stated reasons for exercising its peremptory challenges, we

conclude the district court did not clearly err in finding the government provided a

race-neutral justification for its strikes or in holding Johnson failed to prove

purposeful discrimination.

III. CONCLUSION

We affirm the judgment of the district court.

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