2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-13-2010

USA v. Alston

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4034

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Recommended Citation

"USA v. Alston" (2010). 2010 Decisions. Paper 1348.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1348
 Judge Scirica completed his term as Chief Judge on May 4, 2010. *

 Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth **

Circuit Court of Appeals, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-4034

 

UNITED STATES OF AMERICA

v.

ANTHONY T. ALSTON

a/k/a Anthony Golson

Anthony T. Alston,

Appellant

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 04-cr-00515)

District Judge: Honorable Louis H. Pollak

 

Submitted Under Third Circuit LAR 34.1(a)

April 20, 2010

Before: SCIRICA , AMBRO, and ALARCÓN , Circuit Judges * **

(Opinion filed: May 13, 2010)

 

OPINION

 
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 1

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

2

AMBRO, Circuit Judge 

A jury found Anthony Alston guilty of interfering with interstate commerce by

robbery (in violation of 18 U.S.C. § 1951), carrying and using a firearm during a crime of

violence (in violation of 18 U.S.C. § 924(c)), and possessing a firearm as a convicted

felon (in violation of 18 U.S.C. § 922(g)). The District Court sentenced him to 30 years’

imprisonment. Alston now challenges his conviction and sentence. We affirm both.1

I.

This case arises from a robbery of a jewelry store, owned by Alex Patlakh, in

December 2003. Patlakh was serving Alston at the store counter when a third man

buzzed to enter the store. This third man entered and pointed a gun at Patlakh, but fled

when Patlakh told him the police had been notified. Patlakh then accused Alston of

knowing the third man, pulled out a gun, and ordered Alston to the floor. According to

Patlakh, Alston grabbed money from the counter and started shooting at Patlakh, striking

him in the arm. Patlakh also fired his gun, injuring Alston. When Patlakh ran out of

ammunition, he ran to the back of the store to get another gun. Alston followed and the

two continued fighting.

The police arrived to find Alston throwing money out of his pockets, and Patlakh

holding a gun. In Alston’s pockets, the police found a phone bill addressed to Patlakh
 Alston’s other two contentions—that the jury instruction on interstate commerce was 2

erroneous, and that his Fifth and Sixth Amendment rights were violated when the District

Court sentenced at the mandatory minimum based on facts not found by a jury—are

raised only to preserve them for possible Supreme Court review. He concedes they are

foreclosed by, respectively, United States v. Urban, 404 F.3d 754 (3d Cir. 2005), and

Harris v. United States, 536 U.S. 545 (2002). See also Almendarez-Torres v. United

States, 523 U.S. 224 (1998). Therefore, we do not discuss these claims further.

3

and over $650 cash. In a trash can at the back of the store, they found a nine-millimeter

gun that had been stolen from Alston’s landlord. The police later determined that three of

the cartridge cases found at the scene came from this gun.

At trial, Alston testified that he was an innocent bystander, caught in the crossfire

between Patlakh and the third man. Alston claimed he did not have a gun at the store, did

not take money from the counter, and that the cash found in his pockets was his. As for

the money he was throwing out of his pockets when the police arrived, he claimed that

Patlakh had stuffed it into Alston’s jacket to frame him. The jury found him guilty.

II.

Alston makes three primary arguments on appeal: (1) the Government exercised

peremptory challenges on the basis of race; (2) a witness’s improper reference to Alston’s

parole status warranted a mistrial; and (3) the District Court abused its discretion in

excluding evidence that the gun used by Patlakh had been stolen. We address each in

turn.2

A.

Alston argues that the Government struck potential jurors from the jury pool on
 “[A]ny issue regarding the existence of a prima facie showing of discrimination 3

becomes moot where, as in this case, the prosecutor offers an explanation of the

peremptory challenge before the district court has expressly addressed the prima facie

issue.” United States v. Uwaezhoke, 995 F.2d 388, 392 (3d Cir. 1993) (alteration and

quotation marks omitted).

4

account of their race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Specifically,

Alston challenges the strikes of Jurors 38 (a black female) and 136 (a black male). (App.

120, 233.) 

Under the three-step Batson procedure, (1) a defendant can establish a prima facie

case for unlawful discrimination by pointing to evidence that gives rise to an inference

thereof; (2) the burden shifts to the Government to state race-neutral reasons for

exercising its strikes; and (3) the District Court must then decide whether the defendant

has shown purposeful discrimination. Batson, 476 U.S. at 96–98. 

Here, the Court bypassed step one and asked the Government to state its grounds

for exercising the strikes. (App. 233.) The Government explained that it struck Juror 38 3

because she frowned throughout jury selection and appeared to give the prosecutor “a

dirty look” when he made eye contact with her. (App. 234.) It struck Juror 136 because

he had not “crack[ed] a smile” or chatted with the other jurors, and was staring at the

prosecutor. (Id.) The Court credited these explanations, ruling that it was “satisfied with

[the prosecutor]’s recital as to the Jury.” (App. 235.)

Alston argues that the District Court was required to make specific findings

concerning the jurors’ demeanors, but failed to do so. However, it is evident the Court
 Alston’s reliance on Snyder v. Louisiana, 552 U.S. 472 (2008), is unpersuasive. 

4

There, the Government gave two race-neutral reasons for striking a juror—demeanor and

student-teaching obligations—and the trial court denied the Batson claim without

explanation. Id. at 478–79. The Supreme Court reversed because it could not determine

from the record which of the two neutral reasons the trial court accepted. See id. at 479

(because “the record d[id] not show that the trial judge actually made a determination

concerning [the juror’s] demeanor,” the Court could not “presume that the trial judge

credited the prosecutor’s assertion that [the juror] was nervous”). 

Unlike in Snyder, we properly may “presume that the trial judge credited the

prosecutor’s assertion” regarding the jurors’ demeanors, because demeanor was the only

race-neutral reason given. Id. (Further, we note that defense counsel in Snyder disputed

both of the Government’s explanations, id. at 478, whereas here defense counsel did not

dispute the prosecutor’s explanation at all.)

5

credited the prosecutor’s explanation as to both jurors, and we give deference to this

decision. See Hernandez v. New York, 500 U.S. 352, 365 (1991) (“[E]valuation of the

prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial

judge’s province.”) (internal quotation marks and citation omitted). Before the District

Court, Alston did not challenge the Government’s race-neutral reasons. He bore the

burden of persuading the Court that the Government’s reasons were pretextual, yet he

made no attempt to do so (and does not on appeal). In this context—where one raceneutral reason was given and the defense did not argue the reason was pretextual—we

cannot say the Court erred in failing to comment specifically on the jurors’ demeanors.

4

Thus, we affirm the Court’s rejection of Alston’s Batson claim. 

B.

The District Court ruled in limine that the Government could not introduce at trial

evidence that Alston was on parole when he was arrested for the robbery. However, a
6

Government witness referenced Alston’s parole status during her testimony, which Alston

argues warranted a mistrial. “We review the denial of a motion for a mistrial based on a

witness’s allegedly prejudicial comments for an abuse of discretion.” United States v.

Lore, 430 F.3d 190, 207 (3d Cir. 2005). 

The improper comment came during the Government’s direct examination of

Alston’s landlord, from whom the gun used in the robbery was stolen:

Q. And how did -- how was it that [the defendant] became a tenant of

yours? Can you just describe what happened?

A. Uhm, let’s see, during the time he was working at Spaghetti Warehouse

he was saying that he was on parole or something like that, he had --

Defense Counsel: Objection, Your Honor.

The Witness: I’m sorry.

Defense Counsel: Can I see the Court at sidebar? 

The Court: Jury will disregard that statement. We have no

foundation anyhow[,] so it’s to be disregarded.

(App. 517.) At the end of the direct examination, defense counsel asked for a conference

at sidebar and moved for a mistrial based on the witness’s statement. (App. 527–28.) 

The Court denied the motion, reasoning that the Government did not intend to elicit the

testimony, the response was an “unfortunate consequence,” a curative instruction had

been given, and the statement did not taint the entire case. (App. 529–30.)

Three factors guide our review: “(1) whether [the witness’s] remarks were

pronounced and persistent, creating a likelihood they would mislead and prejudice the

jury; (2) the strength of the other evidence; and (3) curative action taken by the district

court.” Lore, 430 F.3d at 207. Applying these factors, we have no trouble concluding the
 Alston’s brief to us asserts the District Court prohibited him from introducing this 5

evidence through a “testifying ATF agent,” but the record shows the defense attempted to

introduce the testimony through Muto. (App. 606.)

7

landlord’s remark did not warrant a mistrial. First, the remark was not “pronounced and

persistent,” but instead a singular reference. Second, the evidence against Alston was

strong: a gun used to fire several shots during the robbery had been stolen from Alston’s

landlord and was found in a trash can in the back of the store (where Alston admits the

third man did not go); Alston was seen throwing money from his pockets when the police

arrived; and the police found Patlakh’s telephone bill in Alston’s pockets, along with a

large amount of cash. Moreover, the jury was already aware that Alston had a criminal

history, as it was an element of the felon-in-possession charge. Third, the Court

immediately gave a curative instruction, and noted that the witness’s statement was

without foundation. Thus, we easily conclude the Court did not abuse its discretion in

denying a mistrial.

C.

At trial, Patlakh testified that he purchased his gun about ten years earlier from a

gun store in Philadelphia. Alston sought to present evidence, through testimony from the

purported registered owner of the gun, a Mr. Muto, that this gun had been stolen in 1996

from Muto’s truck. The Court did not allow the evidence, a ruling we review for abuse 5

of discretion. See United States v. Saada, 212 F.3d 210, 220 (3d Cir. 2000).

On appeal, Alston argues that this testimony would have (1) established Patlakh’s
8

motive to lie about what happened in the jewelry store (to avoid prosecution for

possession of a stolen gun), and (2) supported “Mr. Alston’s description of [Patlakh] as

an aggressive vigilante who had attacked Mr. Alston for no reason.” (Appellant’s Br.

25.) We do not agree, as the links needed to reach these conclusions are too tenuous. As

the Government pointed out at trial, Muto did not know who had stolen his gun or what

happened to the gun after it was stolen. (App. 608.) Accordingly, even if Muto had been

permitted to testify that his gun was stolen, that testimony would not have established that

Patlakh stole the gun or that he knew the gun was stolen. (App. 609.) Moreover, Alston

has not explained how Muto’s alleged possession of a stolen gun supports his theory that

Patlakh was an “aggressive vigilante.” Thus, we cannot conclude the Court abused its

discretion in excluding this evidence.

* * * * *

For these reasons, we affirm Alston’s conviction and sentence.