                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 09-1942
      ___________

United States of America,               *
                                        *
            Plaintiff-Appellee,         *
                                        *
      v.                                *
                                        *
Tareke Lewis,                           *
                                        *
            Defendant-Appellant.        *

      ___________
                                            Appeals from the United States
      No. 09-2036                           District Court for the
      ___________                           Eastern District of Arkansas.

United States of America,               *
                                        *
            Plaintiff-Appellee,         *
                                        *
      v.                                *
                                        *
Anthony Lamont Randle,                  *
                                        *
            Defendant-Appellant.        *

                                   ___________

                             Submitted: January 15, 2010
                                Filed: January 29, 2010
                                 ___________
Before MURPHY and BYE, Circuit Judges, and GOLDBERG,1 Judge.
                            ___________

MURPHY, Circuit Judge.

       Appellants Tareke Lewis and Anthony Randle were convicted by a jury of
aiding and abetting each other in the possession of crack cocaine with intent to
distribute and conspiracy to possess crack cocaine with intent to distribute. 18 U.S.C.
§ 2; 21 U.S.C. §§ 841(a)(1), 846. The district court2 granted their motions for
acquittal on the conspiracy charge. They appeal from their remaining convictions and
argue that the evidence was insufficient, that the court erred by rejecting their
Batson challenge, and that it abused its discretion by not giving their proposed jury
instruction. Lewis also challenges the reasonableness of his sentence. We affirm.

                                           I.

       On August 3, 2005, police executed a search warrant at a house in North Little
Rock, Arkansas. When they arrived, appellant Lewis was on the front porch. Despite
their commands to get on the ground, Lewis fled in a vehicle and was detained two
blocks away.

       Officers found a pair of digital scales in the car and $480 on Lewis' person.
Lewis identified the house as his residence and the car as his own, although it was
subsequently learned that the car was registered to Randle. In the northwest bedroom
of the house, officers found firearms, ammunition, a large quantity of crack cocaine
and cocaine, marijuana, and a set of scales similar to those found in Randle's car at the


      1
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
      2
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.

                                          -2-
time it was being driven by Lewis. Lewis' identification card was found in the
northwest bedroom of the house, and recent mail addressed to Randle was discovered
in another bedroom along with a plate with granular substance on it, a razor, a gun,
and marijuana. Randle listed the house's address on his drivers license.

      During voir dire, DG, an African American woman in the jury pool stated that
she had "heard the name" of a defense witness and that she believed he worked for the
Department of Finance and Administration. She also stated that she had some family
members involved in drug activity, but that she could be an impartial juror. EH, a
second African American panelist, said that she personally knew another defense
witness "from the neighborhood."

       Appellants raised a Batson challenge, arguing that the prosecutor struck DG and
EH because of their race while they were the only remaining African Americans who
could have been impaneled. The prosecutor pointed to another African American in
attendance, but appellants argued that this person was too far down the list to be called
even if both sides were to use every peremptory strike. The prosecutor stated that she
struck DG and EH because of their familiarity with the defense witnesses and because
of DG's family involvement with drugs. The district court accepted the government's
reasons for the strikes and found no Batson violation. After the jury returned a guilty
verdict on the charges of aiding and abetting and conspiracy, the district court entered
a judgment of acquittal on the conspiracy charge.

       On appeal, appellants claim that the evidence was insufficient to sustain the
jury's determination on the aiding and abetting charge, that they were denied equal
protection by the government's exercising peremptory strikes against the two African
American jury prospects, and that the district court abused its discretion in rejecting
their proposed jury instruction. Lewis also challenges his sentence.

                                           II.

                                          -3-
       We review a challenge to the sufficiency of the evidence de novo, considering
the facts and resolving evidentiary conflicts in the light most favorable to the verdict.
United States v. Selwyn, 398 F.3d 1064, 1065 (8th Cir. 2005). A conviction may be
overturned only where "no reasonable jury could have found [appellants] guilty
beyond a reasonable doubt." United States v. Bell, 477 F.3d 607, 613 (8th Cir. 2007).

       To establish that the appellants aided and abetted each other in the possession
of crack cocaine with intent to distribute, the government had to prove that each one
associated himself with the unlawful venture, participated in it as something he wished
to bring about, and sought by his actions to make it succeed. United States v. Santana,
524 F.3d 851, 853 (8th Cir. 2008).

       Evidence linking Lewis and Randle to each other and to the drug trafficking
included the car, which Lewis had access to and claimed to possess although it was
registered to Randle; $480 on Lewis' person while he was driving the car; similar
digital scales in the car and house; and the proximity in the house of drugs, drug
paraphernalia, firearms, ammunition, and identifying documents (mail to Randle and
Lewis' identification card). Lewis identified the house as his residence. While Randle
denied living there, the address was on his license and there was recent unopened mail
to him in the house. There was also evidence that Lewis fled the scene despite a
police order to get on the ground, evidence from which a factfinder might infer
consciousness of guilt. See United States v. Webster, 442 F.3d 1065, 1067 (8th Cir.
2006).

       The jury was also presented with conflicting evidence, including testimony that
Randle lived elsewhere, that Lewis had not attempted to flee, and contradictory
testimony about where Randle's mail and Lewis' identification were found. In
addition chain of custody issues were raised.



                                          -4-
       It is the jury's prerogative to resolve conflicts in the testimony and determine
the credibility of witnesses. United States v. Torres, 552 F.3d 743, 747 (8th Cir.
2009). The question on appeal is whether the evidence was sufficient for a reasonable
jury to find guilt beyond a reasonable doubt, not whether they could have found
appellants not guilty. "If the evidence rationally supports two conflicting hypotheses,
the reviewing court will not disturb the conviction." United States v. Serrano-Lopez,
366 F.3d 628, 634(8th Cir. 2004) (quotation omitted).

      Appellants also argue that there was no direct evidence that either man aided
or abetted the other in knowingly possessing crack cocaine with intent to distribute.
There was no evidence that appellants were seen together, for example, and Lewis was
apparently not a suspect until officers saw him in front of the house when they arrived
to execute the search warrant. "When considering a charge of aiding and abetting,"
however, circumstantial evidence is "intrinsically as probative as direct evidence and
may be the sole support for a conviction." United States v. Opare-Addo, 486 F.3d
414, 417 (8th Cir. 2007) (quotation omitted).

       Although the jury could have concluded otherwise, the evidence was sufficient
for a reasonable jury to conclude that the appellants aided and abetted each other in
drug trafficking.
                                   ___________

       We next address appellants' Batson challenge. The government violates the
Equal Protection clause if it uses a peremptory strike to remove a potential juror solely
because of his or her race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Courts
considering a Batson challenge apply a three step analysis: the defendant must make
a prima facie showing, then the prosecution has an opportunity to offer a race neutral
basis for the strike, and finally the court determines whether the defendant has
established purposeful discrimination. See Snyder v. Louisiana, 128 S.Ct. 1203, 1207



                                          -5-
(2008). We review for clear error the district court's denial of appellants' Batson
challenge. United States v. Bolden, 545 F.3d 609, 614 (8th Cir. 2008).

       The district court did not explicitly decide whether appellants stated a prima
facie case or whether, as appellants alleged, DG and EH were the only remaining
African Americans on the panel who could have been impaneled. When, as here, the
government offered a nondiscriminatory explanation for the strikes and the court
"ruled on the ultimate question of purposeful discrimination, the preliminary prima
facie issue [arguably] became moot." United States v. Walley, 567 F.3d 354, 357 (8th
Cir. 2009). Thus we focus our review on the district court's conclusion that the
government's reasons for striking venire persons DG and EH were nondiscriminatory.
See id.

       The prosecutor explained that she struck EH because she personally knew a
defense witness and struck DG because she knew of a defense witness and had family
involvement in drugs. This court upholds the denial of a Batson challenge if the
government's reasons for the strike were legitimate and nondiscriminatory, even if
they may not have been sufficient to strike the potential juror for cause. See United
States v. McKay, 431 F.3d 1085, 1092 (8th Cir. 2005).

       Appellants argue that the government's proffered reasons for the strikes were
pretextual, but they offer no evidence to undermine the government's defense of its
strike against EH for knowing a defense witness "from the neighborhood." As for
DG, appellants allege that the prosecutor would have asked follow up questions if she
had been concerned about DG's neutrality. The prosecutor asked no venire member
any direct question, however, except for EH who was asked how she knew the
witness.

     Appellants also point to the fact that the prosecutor did not strike other panelists
who had family members involved in drug activity. Evidence that "a prosecutor's

                                          -6-
proffered reason for striking a black panelist applies just as well to an otherwise-
similar nonblack who is permitted to serve" tends to prove purposeful discrimination.
Miller-El v. Dretke, 545 U.S. 231, 241 (2005). There were other potential jurors who
had family involvement in drugs, several of whom were stricken for cause, but
appellants point to no other venire member who recognized a defense witness and was
not stricken.

       Finally, appellants argue that pretext is evident in the prosecutor's
mischaracterization of DG's testimony. The prosecutor stated that DG knew and
worked with the witness when in fact DG had said she was "just familiar with the
name." When the court and defense counsel correctly recalled DG's testimony, the
prosecutor responded that she was nonetheless "uncomfortable" with DG's knowledge
of the witness and her family's involvement in drug use. The district court's resolution
of a Batson challenge is a factual determination entitled to "great deference[,]"
Bolden, 545 F.3d at 614 (quotation omitted), and we conclude that the court did not
clearly err in concluding that these reasons were race neutral.
                                     ___________

       Turning to appellants' challenge to the district court's jury instructions, we
review jury instructions properly objected to at trial for an abuse of discretion to
determine "whether the instructions as a whole accurately and adequately state the
relevant law." United States v. Stymiest, 581 F.3d 759, 763 (8th Cir. 2009) (quotation
omitted). We accord district courts broad discretion in forming jury instructions,
reversing only where an instructional error affected a party's substantial rights. United
States v. Farish, 535 F.3d 815, 821 (8th Cir. 2008).

       The instruction appellants challenge was taken from the Eighth Circuit Model
Jury Instructions. With regard to the presumption of innocence and burden of proof,
appellants sought a substitution or inclusion of the "two conclusions" instruction
derived from 1A Kevin F. O'Malley, et al., Federal Jury Practice and Instructions §

                                          -7-
12.10 (6th ed. 2008) (formerly 1 Edward J. Devitt & Charles B. Blackmar, Federal
Jury Practice and Instructions § 11.14 (3d ed. 1977)) instead of Eighth Circuit Model
Jury Instruction 3.08. While the instructions are substantively similar, the proposed
"two conclusions" instruction states that "[i]f the jury views the evidence in the case
as reasonably permitting either of two conclusions – one of innocence, the other of
guilt – the jury must, of course, adopt the conclusion of innocence."

       The district court rejected appellants' instruction on the ground that Instruction
3.08 "covers essentially all the points" of the "two conclusions" instruction although
the "wording is different[.]" The court did permit appellants' counsel to argue in
closing that the jury should find appellants not guilty if the evidence equally supports
a finding of guilt or innocence, but counsel chose not to make that point in closing.
Appellants nonetheless argue that in light of the weak evidence presented at trial,
objections they raised during the government's closing argument, and the court's
elements instruction,3 the clarity of the "two conclusions" instruction was necessary
to protect appellants' due process rights.

        This court historically approved of the "two conclusions" instruction in dicta.
See United States v. Hollister, 746 F.2d 420, 424 (8th Cir. 1984). Yet "the defendant
is not entitled to a particularly worded instruction where the instruction given by the
trial judge adequately and correctly covers the substance of the requested instruction."
United States v. Williams, 109 F.3d 502, 508 (8th Cir. 1997) (internal quotation and
alterations omitted).

      3
        Appellants objected to the district court's instruction which stated that the
government had to prove that the elements of possession with intent to distribute
"were committed by some person or persons[.]" Appellants argued that the instruction
should have explicitly named Lewis and Randle. Another instruction had stated that
the indictment charged Lewis and Randle with aiding and abetting one another. Given
the clarity of this instruction and the evidence presented at trial, no reasonable juror
could have been confused about whom either defendant was alleged to have aided and
abetted.

                                          -8-
      Instruction 3.08 accurately and correctly covered the substance of appellants'
proposed instruction. It instructed the jury to presume the appellants' innocence, to
begin with "a clean slate," not to view the indictment as evidence, and to keep the
burden on the prosecution to prove guilt beyond a reasonable doubt. Rejecting the
"two conclusions" language was not an abuse of discretion.
                                    ___________

      Appellant Lewis challenges the reasonableness of his sentence. We first assess
whether the district court committed a significant procedural error, such as "failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen
sentence[.]" Gall v. United States, 552 U.S. 38, 50 (2007).

       Lewis concedes that since he raised no objection to the form of the sentence in
the district court, any procedural sentencing errors are reviewed for plain error. See
Fed.R.Crim.P. 52(b). We may reverse his sentence only if the court committed error
"that is plain, . . . that affects substantial rights[, and that] . . . seriously affects the
fairness, integrity, or public reputation of judicial proceedings." United States v.
Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc) (quotation omitted).

        Lewis was sentenced to 150 months of imprisonment. He does not dispute the
calculated guideline range of 135-168 months, nor does he challenge the application
of a statutory minimum of 120 months. Rather, he argues that the district court should
have imposed a downward variance from the correctly calculated range because his
criminal history points accumulated when he was sixteen years old and because of the
disparity in the sentences for crack cocaine and powder cocaine. See Spears v. United
States, 129 S.Ct. 840 (2009); Kimbrough v. United States, 552 U.S. 85 (2007). The
judge's procedural error, Lewis argues, was his failure to address these specific
arguments at sentencing or to explain the sentence adequately.

                                            -9-
       "[W]hen a judge decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation." Rita v. United States, 551
U.S. 338, 356 (2007). Lewis concedes that the district court stated that it "carefully
considered" Lewis' sentencing memorandum and the presentencing investigation
report, and that it listened to Lewis' counsel argue for a variance at the sentencing
hearing. The court rejected a firearms enhancement requested by the prosecution and
discussed several factors supporting the sentence pursuant to 18 U.S.C. § 3553(c).
Specifically, the court noted that in rendering its sentence it was concerned about
Lewis' criminal history and his involvement in the drug trafficking. We have
concluded that judicial actions comparable to or less than those taken by the district
court here satisfy procedural reasonableness. See, e.g., United States v. Jones, 563
F.3d 725, 729 (8th Cir. 2009); United States v. Sigala, 521 F.3d 849, 851-52 (8th Cir.
2008).

       Lewis alternatively argues that the court's "passing over [his arguments for a
guideline variance] in silence" resulted in a substantively unreasonable sentence. Our
review of a sentence for substantive unreasonableness is narrow and deferential.
United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc). "Where, as
here, the sentence imposed is within the advisory guideline range, we accord it a
presumption of reasonableness." United States v. Battiest, 553 F.3d 1132, 1136 (8th
Cir. 2009) (quotation and alterations omitted); see also Gall, 552 U.S. at 51. While
a district court does not abuse its discretion when it does consider the crack/cocaine
disparity in sentencing, Kimbrough, 552 U.S. at 110-11, it is not required to do so.
Battiest, 553 F.3d at 1137. The district court considered Lewis' arguments for a
downward variance but appropriately exercised its discretion in rejecting them.

                                         III.

      Accordingly, we affirm the judgments of the district court.
                     ______________________________

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