PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4825

BRIAN S. GRIMMOND,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Samuel G. Wilson, Chief District Judge.
(CR-93-58)

Argued: December 1, 1997

Decided: March 6, 1998

Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Luttig joined. Judge Motz wrote an opinion concurring
in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: David Leonard Heilberg, LAW OFFICE OF DAVID L.
HEILBERG, Charlottesville, Virginia, for Appellant. Anthony Paul
Giorno, Assistant United States Attorney, Roanoke, Virginia, for
Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,
Kenneth M. Sorenson, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.

_________________________________________________________________
OPINION

WILLIAMS, Circuit Judge:

In April 1993, a federal grand jury indicted Brian Grimmond on
gun and drug charges. Prior to trial, Grimmond, in a series of motions,
moved to (1) dismiss the indictment because the 35-month delay
between his indictment and his arraignment violated his Sixth
Amendment right to a speedy trial; (2) exclude evidence of his prior
crimes, wrongs, or other bad acts; and (3) quash the jury based upon
an alleged violation of Batson. The district court denied all of Grim-
mond's motions and he was subsequently convicted by a jury. Grim-
mond appeals, raising the issues presented in his three unsuccessful
motions. Finding no error, we affirm.

I.

In the spring of 1992, Grimmond and Jamal Heath began selling
crack cocaine on the street in front of Heath's apartment in Langley
Park, Maryland. Almost immediately, the two were the victims of an
attempted armed robbery. Although they did not lose any drugs, both
were shot at during the attempted robbery. Grimmond had two bullets
pass through his clothes without striking him. Heath was shot in the
hand. As a result of this attack, the two purchased a semi-automatic
assault weapon (Mac-11) for protection.

With their Mac-11 hanging in a nearby tree, Grimmond and Heath
returned to selling crack on the street in front of Heath's apartment.
Within days, however, Grimmond's and Heath's drug dealing was
once again interrupted; this time by the police. Officers in the Prince
George's County Police Department found a vial containing several
rocks of crack cocaine, as well as the Mac-11, hidden in the foliage
in front of Heath's apartment.

Based upon their inability to sell crack effectively in Langley Park,
the two decided to move their operation to Charlottesville, Virginia.
Upon their arrival in Charlottesville, the pair pooled their money to
buy crack. In addition to selling crack, the drug was used by Grim-
mond and Heath as a form of currency. Among other things, they

                    2
moved into Doug Kelly's house in exchange for crack, rented cars in
exchange for crack, and even purchased a 9mm semi-automatic pistol
(Tech-9) and a .380 semi-automatic pistol (Lorcin) in exchange for
crack.

On June 27, 1992, Heath, Kelly, and Corey Kinney met J.J.
Feaster. According to Heath, Feaster was giving him looks that made
him feel unsafe. As a result, Heath and his friends decided to go back
to Kelly's house via the neighborhood liquor store. When Heath
arrived at Kelly's house he told Grimmond about the incident with
Feaster, and Kinney added that he thought Feaster was the guy who
had previously assaulted Grimmond's sister. Grimmond and Heath
left Kelly's house with the Lorcin. After locating Feaster, Grimmond
shot and killed him.

That evening, Grimmond, Heath, and Kinney left Charlottesville
and drove to Langley Park, Maryland. After spending the night in
Heath's apartment, the group spent the next day traveling around the
Washington, D.C., area where they visited with family and met sev-
eral of Grimmond's and Heath's drug-dealing associates. Later that
evening, while driving around Washington, D.C., Grimmond asked
Kinney to change seats with him. As Kinney stepped out of the car,
Grimmond shot and critically wounded him. According to Heath, they
had decided to kill Kinney because he "knew too much" about the
Feaster slaying.

Grimmond and Heath were subsequently arrested. On April 22,
1993, they were indicted on federal gun and drug charges. In addition
to the federal indictment, the Commonwealth of Virginia charged
Grimmond and Heath with the murder of Feaster and the District of
Columbia charged them with the attempted murder of Kinney. On
June 3, 1993, Grimmond was convicted of Feaster's murder in Char-
lottesville Circuit Court and sentenced to 45 years. Grimmond was
then transferred to the District of Columbia where on September 16,
1993, he was convicted of assault with intent to kill Kinney. On
November 9, 1993, he was sentenced to a term of twelve years to life.

Heath, for his role in the shooting of Kinney, was convicted on
June 30, 1994, of assault with a deadly weapon. Heath was then trans-
ferred from Washington, D.C., to the Commonwealth of Virginia

                    3
where on October 5, 1995, he was convicted of Feaster's murder. On
December 6, 1995, Heath was sentenced to 20 years. On February 15,
1996, the United States District Court for the Western District of Vir-
ginia issued a writ of habeas corpus ad prosequendum for Grimmond
and Heath. On March 8, 1996, Grimmond and Heath were arraigned
on the federal charges.

In mid-March, Grimmond moved to dismiss the indictment alleg-
ing a violation of his rights to due process and a speedy trial. In a
written opinion, the district court denied Grimmond's motion to dis-
miss. Grimmond later filed a motion in limine to prevent the introduc-
tion of his prior crimes, wrongs, or other bad acts. The district court
denied this motion as well. Finally, after voir dire, Grimmond made
a motion based upon an alleged Batson violation. This motion was
also denied.

Prior to trial, Heath entered into a plea agreement with the Govern-
ment in which he agreed to testify against Grimmond. On July 23,
1996, Grimmond's trial began. In addition to Heath, the jury heard
testimony about Grimmond's criminal activities from Kelly and Kin-
ney. After a short period of deliberation, the jury found Grimmond
guilty of (1) conspiracy to distribute cocaine, conspiracy to carry or
use a firearm during and in relation to a drug trafficking crime, and
conspiracy to possess a firearm by a convicted felon, see 18 U.S.C.A.
§ 371 (West Supp. 1997); (2) conspiracy to distribute cocaine base,
see 21 U.S.C.A. § 841(a)(1), (b)(1)(A)(iii) (West 1981 & Supp.
1997); (3) carrying or using a firearm during and in relation to a drug
trafficking crime, see 18 U.S.C.A. § 924(c)(1) (West Supp. 1997);
and (4) possession of a firearm by a convicted felon, see 18 U.S.C.A.
§ 922(g) (West Supp. 1997).

On appeal, Grimmond raises the same three issues he presented in
his pre-trial motions. Specifically, Grimmond contends that the 35-
month delay between his indictment and his arraignment violated his
right to a speedy trial, that the district court abused its discretion in
allowing the Government to introduce evidence of his prior crimes,
and that the prosecutor's use of a peremptory strike to exclude a black
juror from the jury violated Batson v. Kentucky , 476 U.S. 79 (1986).
We address Grimmond's arguments in turn.

                     4
II.

Grimmond contends that the 35-month delay between his indict-
ment and his arraignment violated his Sixth Amendment1 right to a
speedy trial.2 The Sixth Amendment guarantees that, "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public
trial." U.S. Const. amend. VI. The Supreme Court has identified four
factors that should be balanced in determining whether a defendant
has been denied his Sixth Amendment right to a speedy trial. See
Barker v. Wingo, 407 U.S. 514 (1972). These factors are (1) whether
the delay was uncommonly long; (2) the reason for the delay; (3)
whether the defendant asserted his right to a speedy trial; and (4)
whether prejudice resulted to the defendant. Id. at 530; see also
Doggett v. United States, 505 U.S. 647, 651 (1992) (applying the
four-factor test announced in Barker). In order to prevail on his claim,
Grimmond must establish "that on balance, [the] four separate factors
weigh in his favor." United States v. Thomas , 55 F.3d 144, 148 (4th
Cir. 1995).

The first factor also acts as a threshold requirement. See Doggett,
505 U.S. at 651-52. If the delay is not uncommonly long, the inquiry
ends there. See id. at 652 (stating that"by definition, [a defendant]
cannot complain that the government has denied him a`speedy' trial
if it has, in fact, prosecuted his case with customary promptness");
Barker, 407 U.S. at 530 (noting that "[u]ntil there is some delay
_________________________________________________________________
1 Grimmond also contends that the 35-month delay violated his Fifth
Amendment right to due process. See Doggett v. United States, 505 U.S.
647, 655 n.2 (1992) (stating "that a defendant may invoke due process
to challenge delay both before and after official accusation"). Despite
Grimmond's claim, his right to due process has not been violated. "[I]n
order to establish a due process violation, the defendant must show that
the delay `caused him actual prejudice in presenting his defense.'" Jones
v. Angelone, 94 F.3d 900, 906 (4th Cir. 1996) (quoting United States v.
Gouveia, 467 U.S. 180, 192 (1984)). Here, there is simply no evidence
that Grimmond's defense was impaired by the delay. See post at 9-10.
2 Grimmond does not contend that the 35-month delay violated his
rights under the Speedy Trial Act. See 18 U.S.C.A. §§ 3161-3174 (West
1985 & Supp. 1997) (specifying time limits between arrest, indictment,
and trial, and permissible delays within each period).

                    5
which is presumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance"). Here, the district court
found, and the Government does not dispute, that a 35-month delay
is uncommonly long. We agree. In Doggett, the Supreme Court sug-
gested in dicta that a delay over one year is presumptively prejudicial.
505 U.S. at 652 n.1 (dealing with a delay of eight and one-half years).
If so, a delay of 35 months is a fortiori too long. Satisfied that the
threshold requirement has been met, we turn to consider the remain-
ing three factors.

First, we must consider the Government's reason for the delay. In
so doing, we must keep in mind that "different weights should be
assigned to different reasons." Barker, 407 U.S. at 531. The Supreme
Court recognizes that some reasons for delaying a trial are improper,
e.g., harassment. See United States v. Marion, 404 U.S. 307, 325
(1971). It should go without saying that improper reasons for delaying
a defendant's trial are "weighted heavily against the government."
Barker, 407 U.S. at 531. The Supreme Court also recognizes that
some reasons for delaying a trial are neutral, e.g., an understaffed
prosecutor's office. See Strunk v. United States , 412 U.S. 434, 436
(1973). Although labeled neutral, "the ultimate responsibility for such
circumstances must rest with the government rather than with the
defendant." Barker, 407 U.S. at 531. Finally, the Supreme Court rec-
ognizes that some reasons for delaying a trial are valid, e.g., a missing
witness. See id. Valid reasons for delaying a trial are weighted in
favor of the Government.3 See id.

With that background, we turn to the Government's reason for the
35-month delay. When Grimmond and Heath were indicted in April
of 1993, the federal government was not the only sovereign interested
in the pair's criminal activities. Both had already been charged with
first degree murder in the Commonwealth of Virginia. In addition, the
District of Columbia had charged them each with assault with intent
to kill. When a defendant violates the laws of several different sover-
_________________________________________________________________
3 Of course, finding that the Government's reason is valid does not
mean that the defendant's right to a speedy trial has not been violated.
This is but one factor in the four-factor balancing test. See Barker v.
Wingo, 407 U.S. 514, 533 (1972) (noting that all four factors "must be
considered together").

                     6
eigns, as was the case here, at least one sovereign, and perhaps more,
will have to wait its turn at the prosecutorial turnstile. Simply waiting
for another sovereign to finish prosecuting a defendant is without
question a valid reason for delay. Cf. Thomas , 55 F.3d at 150 (stating
that "[t]he need to allow [the defendant] to be prosecuted by the State
without interference by the federal government . . .[is] an obvious
reason for delaying [the defendant's] federal prosecution").4

Grimmond contends, however, that if it was the Government's pol-
icy to wait until all state prosecutions were completed, he should have
been tried soon after he was sentenced in the District of Columbia on
November 9, 1993. In a different case we might agree. Here, how-
ever, Grimmond was indicted with Heath, whose state prosecutions
were not completed until December of 1995. It is well established that
"[b]arring special circumstances, individuals indicted together should
be tried together." United States v. Brugman , 655 F.2d 540, 542 (4th
Cir. 1981); see also United States v. Shuford , 454 F.2d 772, 775 (4th
Cir. 1971) (same). Of course, a defendant's invocation of his Sixth
Amendment right to a speedy trial would be just the type of "special
circumstance" that would trump the general rule. Absent such a
request, or some other "special circumstance," e.g., evidence that join-
der was improper,5 waiting for another sovereign to finish prosecuting
a codefendant is a valid reason for delay.6 Cf. United States v.
_________________________________________________________________
4 In Thomas we noted that

          [t]o do otherwise would be to mire the state and federal systems
          in innumerable opposing writs, to increase inmate transportation
          back and forth between the state and federal systems with conse-
          quent additional safety risks and administrative costs, and gener-
          ally to throw parallel federal and state prosecutions into
          confusion and disarray.

Id. at 150-51.
5 The test for joinder under Rule 8(b) of the Federal Rules of Criminal
Procedure is whether defendants "are alleged to have participated in the
same act or transaction or in the same series of acts or transactions." Fed.
R. Crim. P. 8(b).
6 Although the concurrence does not disparage our analysis of the sec-
ond Barker factor as dicta, it does not join it either. See post at 19 (stat-
ing that "the Government's reason for at least a portion of the delay is

                     7
Annerino, 495 F.2d 1159, 1162-63 (7th Cir. 1974) (holding that a
delay caused by the Government's desire for a single trial deserves
some deference); see also Barker, 407 U.S. at 531 (stating that the
unavailability of a witness is a valid reason for delaying a trial).

It is undisputed that Grimmond failed to assert his right to a speedy
trial until March of 1996, four months before the start of his trial.7
Grimmond contends that his failure to assert his right earlier should
not be weighted against him, however, because he had no attorney at
the time to counsel him. It is true that this Court may "attach a differ-
ent weight to a situation in which the defendant knowingly fails to
object . . . from a situation in which no counsel is appointed." Barker,
407 U.S. at 529. Nevertheless, we decline to do so here. First, there
is absolutely no evidence that Grimmond requested (or was denied)
counsel on the federal charges. Second, and even more telling, when
Grimmond received the detainer informing him of the federal charges
he had state-appointed counsel representing him on the charges pend-
ing in the Commonwealth of Virginia.8 As such, Grimmond's asser-
tion that he had no attorney at the time to counsel him is simply
incorrect. Based upon the fact that Grimmond did not request counsel
on the federal charges and had counsel on the pending state charges,
we conclude that his failure to assert his right to a speedy trial should
be weighted in favor of the Government.9 See Barker, 407 U.S. at 532
_________________________________________________________________

valid under the rationale of United States v. Thomas, 55 F.3d 144, 148
(4th Cir. 1995)"). We note that the Thomas rationale validates only the
first six and one-half months of the delay. The concurrence conveniently
ignores the twenty-eight and one-half months attributable to the Govern-
ment's desire to try Grimmond and Heath together.
7 The four month delay between Grimmond's arraignment and his trial
is attributable to his own motion to continue the trial date.
8 The concurrence charges that the majority has engaged in improper
fact finding. See post at 20. Of course, we have done no such thing. We
simply noted that Grimmond was represented by state-appointed counsel
when he received notice of the federal charges. Although the concur-
rence may disagree with the legal significance we have attached to that
fact, the fact itself is not in dispute.

9 The concurrence contends that"the appointment of counsel in con-
nection with state charges does not per se defeat a defendant's claim that

                    8
(emphasizing that the "failure to assert the right will make it difficult
for a defendant to prove that he was denied a speedy trial").

The final factor is prejudice. Prejudice "should be assessed in the
light of the interests . . . the speedy trial right was designed to pro-
tect." Id. at 532. These interests include: (1) preventing oppressive
pretrial incarceration, (2) minimizing the anxiety and concern of the
accused, and (3) limiting the possibility that the defense will be
impaired. See Smith v. Hooey, 393 U.S. 374, 378 (1969) (citing
United States v. Ewell, 383 U.S. 116, 120 (1966)); see also Stephen
A. Saltzburg & Daniel J. Capra, American Criminal Procedure 852
(5th ed. 1996) (noting same three interests). Of these, "the most seri-
ous is the last, because the inability of a defendant adequately to pre-
pare his case skews the fairness of the entire system." Barker, 407
U.S. at 532; see also Doggett, 505 U.S. at 654 (same).

The first two interests need not detain us long. Although Grim-
mond was incarcerated during the 35-month period between his
indictment and his arraignment, his pretrial incarceration was a result
of his shooting Feaster and Kinney. When, as here, a defendant is
lawfully incarcerated for reasons not related to the pending charges
and makes no credible showing that either his present or potential
sentence will be substantially affected by the delay, see Hooey, 393
U.S. at 378, we hold that there is simply no way the pretrial incarcera-
tion can be deemed oppressive.10 As to the second interest, Grimmond
_________________________________________________________________
he did not know enough to assert his speedy trial right to federal
charges." Post at 19. The case upon which the concurrence relies for this
proposition, Coleman v. United States, 442 F.2d 150 (D.C. Cir. 1971),
more closely supports our position. Like Grimmond, the defendant in
Coleman was facing state charges when he received the detainer inform-
ing him of the federal charges. See id. at 155. Unlike Grimmond, how-
ever, the defendant in Coleman was not represented by state-appointed
counsel at the time. See id. Because the defendant was "without counsel,"
the D.C. Circuit decided that his failure to assert his right to a speedy
trial should not be weighted against him. See id. The D.C. Circuit
inferred, however, that the appointment of counsel in connection with
state charges could defeat a defendant's claim that he did not know
enough to invoke his right to a speedy trial.
10 The concurrence argues that the Supreme Court's decision in Smith
v. Hooey, 393 U.S. 374 (1969), "undermines" our holding that a defen-

                     9
never expressed any anxiety or concern about the federal charges. We
are not surprised. Grimmond faced the possibility of the death penalty
if convicted of Feaster's murder in Virginia state court. With that
cloud hanging over his head, it is likely that any worries related to his
impending murder trial, not the federal charges.

Finally, we must consider whether Grimmond's defense was
impaired by the delay. We note that Grimmond has not identified any
witness that was unavailable as a result of the delay. Nor has he
alleged that any witness was unable accurately to recall the events in
question. Grimmond does not contend that any exculpatory evidence
was lost. Nor has he identified any evidence that was unavailable
because of the delay. In sum, there is no evidence that Grimmond's
defense was impaired by the delay.

Based on the foregoing analysis of the three interests the Supreme
Court has identified for determining prejudice, we cannot identify any
_________________________________________________________________
dant already incarcerated on unrelated charges must make a "credible
showing" that his pre-trial incarceration adversely affected either his
present or potential sentence. See post at 20. We disagree. In Hooey, the
Supreme Court did not hold, as the concurrence suggests, that pretrial
incarceration is per se prejudicial. See post at 20 (arguing that the defen-
dant in Hooey was not required to make any showing that he was preju-
diced by his pre-trial incarceration). Rather, the Supreme Court simply
rejected the Texas Supreme Court's per se rule that a person already in
prison under a lawful sentence can never suffer from"oppressive" pre-
trial incarceration. 393 U.S. at 378. The Supreme Court noted that, in
some instances, a defendant's present or potential sentence could be
adversely affected by a delay. See id. For example, the pendency of
another criminal charge could affect the former by making a defendant
ineligible for parole, clemency, or a pardon. See id. at 378 & n.8. A delay
could affect the latter by making a defendant ineligible for a concurrent
or partially concurrent sentence. See id. at 378 & n.7. With that guidance,
the Supreme Court remanded the case to the Texas Supreme Court to
determine, in the first instance, whether the defendant was prejudiced by
the delay. See id. at 383. Although the Supreme Court did not expressly
state what kind of showing the defendant would have to make on
remand, we have little difficulty concluding that, at a minimum, the
showing must be credible.

                     10
specific prejudice resulting from the 35-month delay between Grim-
mond's indictment and arraignment. Similarly, "Grimmond acknowl-
edged at a pre-trial hearing that he could not identify any specific
prejudice resulting from the delay." (J.A. at 36.) Accordingly, we con-
clude that the final Barker factor should be weighted heavily in favor
of the Government.

Our review of the four Barker factors convinces us that Grim-
mond's Sixth Amendment right to a speedy trial was not violated.
Although the delay between Grimmond's indictment and his arraign-
ment was uncommonly long, the remaining three factors weigh
against Grimmond. See Thomas, 55 F.3d at 148 (noting that to prevail
a defendant must establish "that on balance,[the] four separate factors
weigh in his favor"). First, the reason for the delay -- to allow the
Commonwealth of Virginia and the District of Columbia to prosecute
Grimmond and Heath without interference by the federal government
-- is indisputably valid. Next, Grimmond did not assert his right to
a speedy trial until 4 months prior to trial. Finally, there is simply no
evidence that Grimmond was prejudiced by the 35-month delay. We
thus affirm the district court's decision to deny Grimmond's Sixth
Amendment claim.11
_________________________________________________________________
11 The concurrence inexplicably denigrates much of our speedy trial
analysis as dicta. See post at 19-21. The analysis the concurrence would
like to eliminate provides, as we demonstrate below, the basis for our
decision to weigh the last two Barker factors in the Government's favor.
Thus, while the concurrence may (and does) argue that the analysis in
question is incorrect, it cannot seriously contend that it is dicta.

First, the concurrence contends that our discussion regarding the sig-
nificance of Grimmond's state-appointed counsel is dicta. Yet, determin-
ing how the third Barker factor should be weighted turns, at least in part,
on whether Grimmond had counsel to advise him of his right to a speedy
trial. See ante at 8-9 (citing Barker , 407 U.S. at 529 (stating that a court
may "attach a different weight to a situation in which the defendant
knowingly fails to object . . . from a situation in which no counsel is
appointed")). Here, it is undisputed that Grimmond was represented by
state-appointed counsel when he received the detainer informing him of
the federal charges. Although the concurrence may disagree with the
legal significance we have attached to that fact, see ante at 8 n.8, it can-
not genuinely argue that the rationale for our holding is dicta.

                     11
III.

Next, Grimmond contends that the district court abused its discre-
tion in allowing the Government to introduce evidence of his prior
crimes. See Fed. R. Evid. 404(b). Although Grimmond fails to specify
what evidence violated Rule 404(b), he presumably objects to the evi-
dence regarding his involvement in the shootings of Feaster and Kin-
ney. A district court's evidentiary rulings are reviewed under the
narrow abuse of discretion standard. See United States v. Sanchez,
118 F.3d 192, 195 (4th Cir. 1997).

Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to
show action in conformity therewith." Rule 404(b), however, does not
end there. It expressly states that evidence of other crimes, wrongs,
or acts is admissible to prove "motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mistake or accident."
Moreover, it is well established that that list"is illustrative rather than
exclusionary." United States v. Powers, 59 F.3d 1460, 1464 (4th Cir.
1995); see also United States v. Stockton, 788 F.2d 210, 219 n.15 (4th
Cir. 1986) (noting that impeachment is a proper use of "other crimes"
evidence, even though not listed in Rule 404(b)). In fact, by its own
terms, Rule 404(b) expressly only excludes evidence of other crimes,
wrongs, or acts when it is used to prove a defendant's bad character
or to "show action in conformity therewith." See, e.g., Powers, 59
F.3d at 1464 (recognizing "Rule 404(b) as an inclusive rule, admitting
_________________________________________________________________
Similarly, the concurrence contends that we need not determine
whether Grimmond's pretrial incarceration was "oppressive" because
Grimmond "has utterly failed to demonstrate any prejudice from the
delay." Post at 19. Whether Grimmond was prejudiced by the delay
turns, at least in part, on whether his pretrial incarceration was "oppres-
sive." See ante at 9 (citing Smith v. Hooey, 393 U.S. 374, 378 (1969)
(noting that the prevention of oppressive pretrial incarceration is one of
the three interests the speedy trial right was designed to protect)). Thus,
despite the concurrence's contentions to the contrary, our conclusion that
Grimmond's pretrial incarceration was not "oppressive" is essential to
our conclusion that Grimmond was not prejudiced by the 35-month
delay.

                   12
all evidence of other crimes or acts except that which tends to prove
only criminal disposition" (internal quotation marks omitted)); United
States v. Russell, 971 F.2d 1098, 1106 (4th Cir. 1992) (same); United
States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988) (same); United
States v. Percy, 765 F.2d 1199, 1203 (4th Cir. 1985) (same).

Grimmond was charged with, among other things, being a felon in
possession. See 18 U.S.C.A. § 922(g) (West Supp. 1997). That
offense has two elements: (1) possession of a firearm and (2) a prior
felony conviction. Although Grimmond's stipulation that he was a
convicted felon barred the Government from introducing evidence of
his predicate felony conviction, see Old Chief v. United States, 117
S. Ct. 644, 649 (1997), the Government still had to prove that he pos-
sessed a firearm. In light of the Government's burden in this case, it
is clear that the Government did not introduce evidence that Grim-
mond shot Feaster and Kinney to prove his bad character or to "show
action in conformity therewith." Fed. R. Evid. 404(b). Rather, the
Government introduced this evidence because it irrefutably estab-
lishes that Grimmond possessed a firearm, an essential element of
§ 922(g).12

It is well established that "[e]vidence of prior bad acts is admissible
if it is . . . necessary to show an essential part of the crime." Powers,
59 F.3d at 1464; see also United States v. Kennedy, 32 F.3d 876, 885-
86 (4th Cir. 1994) (holding that evidence of "other crimes" is admissi-
ble to provide context of the charged offense); United States v.
Masters, 622 F.2d 83, 86 (4th Cir. 1980) (holding that evidence of
other crimes is admissible "when such evidence`furnishes part of the
context of the crime'"). In fact, when "other crimes, wrongs, or acts"
evidence is relevant to establishing an element of the offense, Rule
404(b) is not even implicated. See United States v. Martin, 773 F.2d
579, 582 (4th Cir. 1985) (holding that Rule 404(b) did not bar evi-
dence of income from illegal bookmaking activities when defendant
_________________________________________________________________
12 Grimmond was also charged with carrying or using a firearm during
and in relation to a drug trafficking crime. See 18 U.S.C.A. § 924(c)
(West Supp. 1997). As a result, evidence that Grimmond shot two indi-
viduals also established an essential element of§ 924(c). See Bailey v.
United States, 116 S. Ct. 501, 508 (1995) (stating that the most obvious
understanding of "use" is firing a firearm).

                    13
charged with tax evasion); see also United States v. Swiatek, 819 F.2d
721, 729 (7th Cir. 1987) (holding that Rule 404(b) did not bar evi-
dence of a prior conviction when defendant charged with violating 18
U.S.C.A. § 922(g)); United States v. Lamp , 779 F.2d 1088, 1095 (5th
Cir. 1986) (holding that Rule 404(b) did not bar evidence of income
from illegal narcotics dealing when defendant charged with tax eva-
sion). Because the challenged evidence was used to establish an ele-
ment of the offense with which Grimmond was charged, we hold that
it did not constitute "other crimes" evidence within the meaning of
Rule 404(b).

Although not excluded by Rule 404(b), evidence of Grimmond's
other crimes may nevertheless be excluded if "its probative value is
substantially outweighed by the danger of unfair prejudice." Fed. R.
Evid. 403. Grimmond contends that the Supreme Court's recent deci-
sion in Old Chief, 117 S. Ct. at 644, should guide our analysis. Like
Grimmond, the defendant in Old Chief was charged with violating
§ 922(g). See id. at 647. Fearing unfair prejudice if the jury learned
the nature of his prior conviction, Old Chief sought to stipulate to his
status as a felon. See id. at 647-48. The Government refused to join
the stipulation and the district court agreed, ruling that the Govern-
ment was entitled to introduce evidence of Old Chief's prior convic-
tion. See id. at 648. A sharply divided Supreme Court reversed. The
Court held that a district court abuses its discretion when it refuses to
allow a defendant to stipulate to his status as a felon. See id. at 649.
Relying on Rule 403, the Court stated that the prejudicial effect of
introducing Old Chief's prior conviction substantially outweighed its
probative value. See id. at 650-51. In particular, the Court was con-
cerned about the risks traditionally associated with propensity evi-
dence, "`that a jury will convict for crimes other than those charged
-- or that, uncertain of guilt, it will convict anyway because a bad
person deserves punishment.'" Id. at 650 (quoting United States v.
Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).

Grimmond's reliance on Old Chief is misplaced for several rea-
sons. First, Grimmond was allowed to stipulate to his status as a con-
victed felon. As a result, the Government did not introduce any
evidence concerning his prior felony.13 Second, even if the holding in
_________________________________________________________________
13 Grimmond and the Government stipulated that Grimmond "was con-
victed on December 19, 1985, of a crime punishable by imprisonment for

                     14
Old Chief applied to the "possession" element of § 922(g), which it
does not, there is no evidence that Grimmond offered to stipulate to
possessing a firearm.14 Had Old Chief not been willing to stipulate to
his status as a convicted felon, there is absolutely no question but that
the Government could have introduced direct proof of his prior con-
viction. See, e.g., Swiatek, 819 F.2d at 729 (holding that Rule 404(b)
did not bar evidence of a prior conviction when defendant charged
with violating 18 U.S.C.A. § 922(g)). Because that evidence would
have directly established an element of the offense, there would also
be no question whether its probative value was substantially out-
weighed by its prejudicial effect.

The same can be said of the evidence the Government introduced
to establish that Grimmond possessed a firearm. That evidence
directly established an element of the offense. Perhaps Grimmond's
case was damaged when the jury heard evidence that he shot two indi-
viduals. However, damage to a defendant's case is not a basis for
excluding probative evidence. And for good reason. Evidence that is
highly probative invariably will be prejudicial to the defense. See
United States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (noting that
while evidence "was prejudicial, it was only prejudicial because it
was so highly probative"); 2 Weinstein's Federal Evidence,
§ 404.21[3][b] (2d ed.) (noting that prejudice "under Rule 403 does
_________________________________________________________________
a term exceeding one year in the Superior Court of the District of Colum-
bia." (J.A. at 101.) The parties also stipulated that Grimmond's "right to
possess a firearm [had not been] restored by either the Commonwealth
of Virginia or the United States Government." (J.A. at 102.)
14 We believe that the Supreme Court intended its decision in Old Chief
to be limited to stipulations involving a defendant's status as a convicted
felon. Otherwise, the Court, without explanation, reversed a longstanding
series of cases. See, e.g., Singer v. United States, 380 U.S. 24, 35 (1965)
(stating that "it has never been seriously suggested that [a defendant] can
. . . compel the Government to try the case by stipulation"). It would be
"quite remarkable for [the Supreme] Court both to have held [invalid] a
well-established practice, and to have overruled a long line of precedent,
without having even suggested that it was doing so." United States v.
Ursery, 116 S. Ct. 2135, 2147 (1996). Of course, after stipulating to his
status as a convicted felon Grimmond could have stipulated to the second
element of § 922(g) as well. It's called a guilty plea.

                     15
not mean the damage to a defendant's case that results from the legiti-
mate probative force of the evidence"). It is worth remembering that
the touchstone for excluding evidence under Rule 403 is not preju-
dice, but "unfair" prejudice. Moreover, unfair prejudice must "sub-
stantially" outweigh the probative value of the evidence. We have no
difficulty in concluding that it was not unfairly prejudicial for the
Government to introduce evidence that Grimmond shot Feaster and
Kinney.15 As a result, we hold that the district court acted well within
its discretion in admitting the challenged evidence.

IV.

Finally, Grimmond, who is black, argues that the prosecutor's use
of a peremptory strike to exclude a black juror from the jury violated
Batson v. Kentucky, 476 U.S. 79 (1986). The district court disagreed.
"A finding by the [trial] court concerning whether a peremptory chal-
lenge was exercised for a racially discriminatory reason is given great
deference by this court; we review that finding only for clear error."
Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995); see also
Hernandez v. New York, 500 U.S. 352, 369 (1991) (plurality opinion)
(holding that the findings of the trial court on discriminatory intent in
Batson challenge are reviewed for clear error); Dayton Bd. of Educ.
v. Brinkman, 443 U.S. 526, 534 (1979) (holding that the finding of
intent to discriminate is a factual determination subject to the "clearly
erroneous" standard of review).

When making a Batson motion, the defendant must first make a
"prima facie" showing of purposeful discrimination. See United States
v. Malindez, 962 F.2d 332, 333 (4th Cir. 1992). Once the defendant
establishes a prima facie case of discrimination, the burden shifts to
_________________________________________________________________
15 In United States v. Queen , 132 F.3d 991 (4th Cir. 1997), we noted
the importance of providing a limiting jury instruction when evidence
may be prejudicial. Id. at 997. Here, the district court gave a cautionary
instruction. This Court has held that cautionary instructions "generally
obviate any such prejudice, `particularly if the danger of prejudice is
slight in view of the overwhelming evidence of guilt.'" United States v.
Powers, 59 F.3d 1460, 1468 (4th Cir. 1995) (quoting United States v.
Masters, 622 F.2d 83, 87 (4th Cir. 1980)). Without question, there was
overwhelming evidence of Grimmond's guilt.

                    16
the prosecutor to articulate a race-neutral explanation for the chal-
lenge. See Batson, 476 U.S. at 97. If the prosecutor satisfies this
requirement, the burden shifts back to the defendant to prove that the
explanation given is a pretext for discrimination. See Howard v.
Moore, 131 F.3d 399, 407 (4th Cir. 1997) (en banc). The ultimate
burden always rests with the opponent of the challenge to prove "pur-
poseful discrimination." See Hernandez, 500 U.S. at 360
("`"Discriminatory purpose" . . . implies more than intent as volition
or intent as awareness of consequences. It implies that the decision-
maker . . . selected . . . a particular course of action at least in part
"because of," not merely "in spite of," its adverse effects upon an
identifiable group.'" (quoting Personnel Adm'r v. Feeney, 442 U.S.
256, 279 (1979) (omissions in original) (internal footnote and citation
omitted))); see also Jones, 57 F.3d at 420-21 ("[T]he party challeng-
ing the selection process [must] prove[ ] that intentional discrimina-
tion was a substantial or motivating factor in the decision to exercise
the strike."). The trial court must then determine whether the chal-
lenge was exercised for a racially discriminatory reason. The trial
court's resolution of this issue rests largely on credibility determina-
tions, and therefore, we give its findings great deference. See Jones,
57 F.3d at 421 ("[T]he [trial] court is especially well-suited to resolve
challenges to peremptory strikes of jurors because it has observed
with its own eyes the very act in dispute.").

To make out a prima facie case under Batson, Grimmond had to
raise at least an inference that the Government used its strikes to
exclude potential jurors based on their race. See Batson, 476 U.S. at
96. Grimmond could have done this by showing a pattern of strikes
against prospective black jurors or through the Government's ques-
tions during voir dire. See id. at 97. Instead, Grimmond simply argues
that he is black and so was the prospective juror. It is well established
in this Circuit that a prima facie case of discrimination does not arise
merely because "a racial minority has been struck from the venire."
Malindez, 962 F.2d at 334.

Although the district court found that Grimmond failed to make out
a prima facie case of discrimination, "we will not examine whether
the defendant has met his burden in establishing a prima facie case
where the prosecutor articulates [legitimate] reasons for [the] strikes."
United States v. McMillon, 14 F.3d 948, 952 (4th Cir. 1994) (citing

                     17
United States v. Lane, 866 F.2d 103, 105 (4th Cir. 1989)); United
States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991). Here, the Government
articulated a race-neutral explanation for striking the juror in question.
Specifically, the Government stated that "[s]he appeared . . . to be an
elderly woman who may not be capable of understanding the compli-
cated issues in a drug . . . conspiracy case." (J.A. at 78.) This Court
has held that age is a legitimate race-neutral factor that may be relied
upon by a prosecutor for challenging a potential juror. See Howard,
131 F.3d at 408 (citing United States v. Jackson , 983 F.2d 757, 762
(7th Cir. 1993)). Noting that the juror in question was only 65 years
old, Grimmond suggests that the Government's reason for its strike
is not very persuasive. We find that argument to be without merit. The
Government's "explanation need not be `persuasive, or even plausi-
ble,' as long as it is neutral." Matthews v. Evatt, 105 F.3d 907, 917
(4th Cir. 1997) (quoting Purkett v. Elem, 115 S. Ct. 1769, 1771
(1995)); see also Jones, 57 F.3d at 420 ("To satisfy this burden, the
party need offer only a legitimate reason for exercising the strike, i.e.,
one that does not deny equal protection; the reason need not be wor-
thy of belief or related to the issues to be tried or to the prospective
juror's ability to provide acceptable jury service.").

Because the Government provided a race-neutral explanation for
the challenged strike, the burden shifted to Grimmond to prove that
the explanation given is a pretext for discrimination. See Batson, 476
U.S. at 98. This, Grimmond has simply failed to do. As a result, we
hold that the district court did not err in concluding that the Govern-
ment's striking of the challenged juror did not violate Batson.

V.

For the foregoing reasons, Grimmond's convictions are affirmed.

AFFIRMED

DIANA GRIBBON MOTZ, concurring in the judgment:

I concur in the judgment.

I agree that we must reject all of Grimmond's appellate arguments.
His speedy trial claim is without merit because, even though the 35-

                     18
month delay was uncommonly long, he has utterly failed to demon-
strate any prejudice from the delay and offered no credible explana-
tion for his failure to invoke his speedy trial right until shortly before
trial; moreover, the Government's reason for at least a portion of the
delay is valid under the rationale of United States v. Thomas, 55 F.3d
144, 148 (4th Cir. 1995). Thus, Grimmond has not shown that, taken
together, the four Barker v. Wingo, 407 U.S. 514 (1972), factors
weigh in his favor. Grimmond's evidentiary and Batson claims are
equally meritless. The disputed evidence does not offend Fed. R.
Evid. 404(b) because Grimmond's shooting of Feaster and Kinney
established that Grimmond possessed a firearm, an essential element
of one of the charged offenses. Grimmond's strongest appellate con-
tention -- that this evidence was cumulative and thus unfairly preju-
dicial under Fed. R. Evid. 403 in view of the other evidence that he
possessed a gun -- is not frivolous; however, Grimmond never pres-
ented this argument to the district court. As for the Batson claim,
because Grimmond failed to present a prima facie case, it too fails.
For these reasons, Grimmond's convictions must be affirmed.

I write separately simply to note that much of the discussion in the
majority opinion is dicta. For example, the majority suggests that a
defendant cannot claim that he failed to invoke his speedy trial right
because he lacked understanding of this right where the defendant had
"state-appointed counsel representing him on the charges pending" at
the time he "received the detainer informing him of the federal
charges." Ante at 8. However, the appointment of counsel in connec-
tion with state charges does not per se defeat a defendant's claim that
he did not know enough to assert his speedy trial right to federal
charges. See, e.g., Coleman v. United States, 442 F.2d 150, 154-55
(D.C. Cir. 1971) (appellate court recognizes that defendant had been
represented by counsel and that "continuous representation" thereafter
was statutorily mandated, but nonetheless concludes that because the
defendant had no "meaningful access to" that counsel, trial court had
"no basis for assuming" defendant "had the ability or the information"
to waive his speedy trial right by failing to demand it). Certainly,
where a defendant can demonstrate that his state counsel did not or
could not assist him in invoking his federal speedy trial right, his fail-
ure to invoke it should not be weighed against him. Id.; see also
Barker, 407 U.S. at 529.

                     19
Grimmond has forsaken any such demonstration here and thus
presented no reason for the district court not to weigh against him the
late assertion of his speedy trial right. However, Grimmond's failure
to make such a showing does not give an appellate court liberty to
make a factual "determinati[on]" that Grimmond "had [state] counsel
to advise him of his right to a speedy trial" on federal charges. Ante
at 11 n.11. Far from being necessary to the holding of this case, such
appellate factual "determinati[ons]" are forbidden. See Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) ("appellate
courts must constantly have in mind that their function is not to
decide the factual issues de novo") (internal citation and quotation
omitted).

With respect to assessing the degree of prejudice to a defendant
resulting from an uncommonly long delay, I disagree with the majori-
ty's unnecessary suggestion that "there is simply no way . . . pretrial
incarceration can be deemed oppressive" if a defendant is "lawfully
incarcerated for reasons not related to the pending charges and makes
no credible showing that either his present or potential sentence will
be substantially affected by the delay." Ante at 9. The very case upon
which the majority relies for this proposition, Smith v. Hooey, 393
U.S. 374 (1969), undermines the majority's suggestion.

In Smith, the Supreme Court recognized that"[a]t first blush it
might appear that a man already in prison under a lawful sentence is
hardly in a position to suffer from undue and oppressive incarceration
prior to trial," but concluded that "delay in bringing such a person to
trial on a pending charge may ultimately result in as much oppression
as is suffered by one who is jailed without bail upon an untried
charge." Id. at 378 (internal quotations omitted). The Court explained
that the existence of an outstanding criminal charge may substantially
affect the length or conditions under which a defendant serves his
sentence while he awaits trial. Id. The petitioner in Smith, a federal
prisoner, made no "showing" at all -- "credible" or otherwise -- that
his own "present or potential sentence" would "be substantially
affected by the delay" in bringing him to trial in state court. Ante at
9. Nevertheless, the Supreme Court concluded that because "an out-
standing untried charge (of which even a convict may, or course, be
innocent) can have fully as depressive an effect upon a prisoner as
upon a person who is at large," it had to reverse a state court's refusal

                     20
to entertain the petitioner's claim that his state speedy trial rights had
been denied. Smith, 393 U.S. at 379 (emphasis added). Thus, nothing
in Smith supports the majority's suggestion that a prisoner must make
a "credible showing that either his present or potential sentence will
be substantially affected by the delay" in order to demonstrate preju-
dice for speedy trial purposes.

Moreover, this erroneous suggestion is totally unnecessary to our
holding. As I noted at the outset, Grimmond neglected to demonstrate
any prejudice resulting from the delay. Although, in his appellate
brief, Grimmond seems to assume he has established"actual preju-
dice," Grimmond never argues that his pretrial incarceration was
oppressive, and therefore prejudicial. The majority, however, need-
lessly makes this argument for Grimmond only then to knock down
its own argument by determining that Grimmond failed to make a
"credible showing" that his sentence was "substantially affected" by
the delay. In view of the total deficiency in Grimmond's proof of
prejudice, the majority's factual "determin[ation]" as to "whether pre-
trial incarceration was `oppressive'" is no more "essential" to its hold-
ing than it is appropriate for an appellate court. See Anderson, 470
U.S. at 573.

Nor do I see any need for us to opine as to the limits the Supreme
Court "intended" for its rationale in United States v. Old Chief, 117
S.Ct. 644 (1997). The majority needlessly proclaims that it believes
the Court "intended" Old Chief to"be limited to stipulations involving
a defendant's status as a convicted felon" under 18 U.S.C.
§ 922(g)(1). Ante at 15 n.14. Although the Supreme Court in Old
Chief confined its holding to proof of convicted felon status under
§ 922(g)(1), we do not yet know whether the Old Chief rationale also
properly applies to other elements of § 922(g) offenses. 117 S. Ct. at
651 n.7. Of course, we need not reach that question here, because, as
the majority itself notes, Grimmond offers no evidence that he ever
agreed to stipulate to anything other than his status as a felon, and the
government agreed to enter into that stipulation.

                     21
