                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5026


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOHN FITZGERALD LEGRAND,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:10-cr-00052-CCB-1)


Argued:   May 15, 2012                     Decided:   June 8, 2012


Before GREGORY, DUNCAN and DIAZ, Circuit Judges.


Affirmed by unpublished opinion.        Judge Duncan wrote    the
opinion, in which Judge Gregory and Judge Diaz concurred.


ARGUED: Ray M. Shepard, SMITH, GILDEA & SCHMIDT, LLC, Towson,
Maryland, for Appellant.   Paul E. Budlow, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.   ON BRIEF:
Rod J. Rosenstein, United States Attorney, Harry M. Gruber,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.



                                 1
DUNCAN, Circuit Judge:

             A jury convicted John Legrand on all eleven counts for

which   he   was    indicted         arising       from   three    armed    robberies      in

Maryland and Pennsylvania.                   These counts included conspiracy,

robbery, possession of a firearm in furtherance of a crime of

violence,    being       a    felon    in    possession      of    a    firearm,    witness

tampering, obstruction of justice, and witness retaliation, in

violation of 18 U.S.C. §§ 1951, 924(c), 922(g), 1512(c), 1513,

and   1512(b),     respectively.               On    appeal,      Legrand   argues     that

multiple constitutional violations tainted his convictions, and

thus asks that we vacate them and order a new trial.                                For the

reasons that follow, we reject Legrand’s challenges and affirm.



                                               I.

             We    set       forth    the    facts      relevant    to    the     issues   on

appeal in roughly chronological order.                       We begin by describing

the events and investigation that led to Legrand’s arrest and

indictment.        We        then    proceed       to   describe       relevant    pretrial

proceedings.             Finally,       we     detail      the      relevant       evidence

introduced against Legrand at trial.



                                               A.

             The three armed robberies at the heart of this case

took place over ten days in January 2008.                          On January 12, two

                                               2
assailants robbed a gas station on Belair Road in Baltimore,

Maryland.       On January 21, a single assailant robbed a Pizza Hut

in    Dover,    Pennsylvania.             On    January    23,    a    single   assailant

robbed a Burger King on Pulaski Highway, outside of Baltimore.

               After Officer Joseph Ruth responded promptly to the

robbery of the Burger King, a witness described the assailant

and directed Ruth to the street where the person had last been

seen.     Upon reaching the street, Ruth observed a man matching

the    description        enter     the    front       passenger       seat   of    a   Jeep

Liberty.        Ruth approached the Jeep Liberty and turned on his

cruiser’s emergency lights.                At this point, the driver took off,

and a high-speed chase ensued.                   Ruth was eventually able to stop

the vehicle and arrest the driver, but was unable to apprehend

the passenger, who fled on foot.

               Police       identified         the     driver     as    Errol      Fulford,

Legrand’s nephew.            Police also identified the owner of the Jeep

Liberty as Martha Talley, Legrand’s mother.                             Talley informed

officers       that   she     had   lent        her    vehicle    to    Legrand.         Upon

processing      the     vehicle,      police         discovered    fingerprints         on   a

bottle   inside       the    car    and    on    its    front    passenger-side         door.

Police matched these fingerprints to Legrand.

               Upon     further     investigation,         police       discovered       that

Legrand was a convicted felon who recently completed parole.

Legrand’s       former       parole       officer,        Phil    Rossetti,        informed

                                                3
investigators    that     Legrand    was    using        a    cell    phone   with    the

number 443-***-1700 (the “1700 cell phone”) and living at 7700

Fredkert    Avenue,    Apt.    B,   Baltimore,       Maryland.          Investigators

obtained the records for this phone, which showed that someone

had used it in the area of the Pulaski Highway Burger King at

the time of the January 23 robbery.

            Based on this information, police arrested Legrand for

the robbery of the Burger King as he arrived, with his minor

daughter, at the office of his former parole officer.                           During

his   booking,   police    asked     Legrand       for       his   phone    number;   in

response, Legrand provided the number for the 1700 cell phone.

Legrand did not, however, have possession of the cell phone at

the time.

            Following      Legrand’s        arrest,          police    escorted       his

daughter to the 7700 Fredkert Avenue residence at her request,

so she could retrieve her belongings before police released her

to her mother.        Officers entered the residence with her.                    While

she collected her belongings, one of the officers called the

1700 cell phone, which rang inside the apartment.

            Officers    then    applied      for    a    warrant       to   search    the

apartment at 7700 Fredkert Avenue.                 In the affidavit supporting

the application, officers included, along with other evidence,

the fact that the 1700 cell phone had rung inside the apartment.

A judge issued the warrant and officers searched the apartment,

                                        4
collecting the cell phone with the 1700 number, another cell

phone, and multiple notices of past-due bills.

               Months later, as Legrand was awaiting trial in state

court, investigators asked Maria DiAngelo, the assistant manager

on duty at the Burger King the night of January 23, to try to

pick the assailant from a lineup.                   Legrand was present in this

lineup    as    person      number    six.        DiAngelo    picked    person      number

four,    and    signed      the    following      written     statement:      “I    chosen

[sic]    number      four    for    the   sole     reason    I    remember    the    whole

night.     When I saw his face, I had a gut feeling in his eyes

that told me he was the man.                 No other one made me feel scared

like number four did.             I’m positive it was him.”            J.A. 417.

               The following day, an officer informed DiAngelo she

had   picked     the    wrong      man.      DiAngelo     responded     by   disclosing

that, contrary to her signed statement, she had been deciding

between    two       individuals,      number      four     and   number     six.     The

officer then informed her that had she picked number six, she

would have been right.

               Subsequent to DiAngelo’s participation in the lineup,

the State of Maryland dismissed charges against Legrand in favor

of the United States.              After further investigation and Fulford’s

confession      to     government     investigators,         a    federal    grand    jury

indicted Legrand on eleven counts, for crimes related to the



                                              5
robberies of the Burger King, the gas station on Belair Road,

and the Pizza Hut in Dover, Pennsylvania.



                                          B.

            Legrand      made    three    pretrial        challenges     relevant        to

this appeal: a motion to suppress the evidence obtained from his

apartment, a motion to exclude identification evidence in the

form   of    testimony      by    DiAngelo,        and      a   challenge          to   the

government’s use of a peremptory challenge to strike an African

American juror.       We will describe each in turn.



                                          1.

            Legrand      based    his    motion      to    suppress     the    evidence

obtained    from   his    apartment      on    the    ground     that    the       warrant

authorizing    the     search     was    infirm.           He   contends      that      the

supporting    affidavit       contained    information          gathered      by    police

after they illegally entered his apartment with his daughter and

called the 1700 cell phone.              The government responded that the

officers’     entry    into      the    apartment         was   legal   because         the

daughter’s    presence     created       exigent     circumstances,           i.e.,     the

need to assure the preservation of evidence.                     Hearing the sound

of the ringing cell phone while in the apartment, the government

argued, was equivalent to observing evidence in plain view.                             The

government further argued that even if the officers improperly

                                          6
obtained the fact of the presence of the 1700 cell phone in the

apartment, the warrant was still valid because the remainder of

the affidavit contained sufficient evidence to support it.

             The         district        court        denied        Legrand’s       motion     to

suppress.        In doing so, it eschewed the government’s exigent

circumstances argument in favor of its alternative contention.

The district court held that even after excising the fact of the

presence of the 1700 cell phone in the apartment, the affidavit

submitted      by    the     officers       contained             sufficient       evidence    to

support the warrant.              In so holding, the district court relied

on our decision in United States v. Moses, 540 F.3d 263 (4th

Cir.   2008),       in    which     we    held        that    a    warrant     issued    for    a

residence subsequent to an illegal entry remains valid so long

as sufficient untainted evidence was presented in the warrant

affidavit to establish probable cause.                         Id. at 271.



                                                 2.

             In addition to his motion to suppress, Legrand filed a

motion in limine to exclude testimony by DiAngelo identifying

him as the person who robbed the Burger King on January 23.

Legrand based his motion on the government’s proffer that it

intended    to      elicit    testimony          from        DiAngelo       that    during    the

lineup   she       was     considering       two        men,       number    four--whom       she

ultimately     picked--and          number       six.         The    government       proffered

                                                 7
that it would then elicit testimony from one of the officers

involved in the lineup that Legrand was number six.                                  Legrand

argued that this identification--coming after DiAngelo had (1)

approved a sworn statement that she was “positive” that number

four was the assailant, and (2) discussed the lineup with an

officer who had informed her that she chose incorrectly--was

inherently unreliable and thus a violation of his right to due

process.

            Subsequent to the filing of this motion in limine, the

government       announced      that    it        no     longer     planned    to     elicit

testimony indicating that Legrand was number six in the lineup.

Instead,    the    government         would       only    elicit       testimony     to   the

effect    that    DiAngelo      was    not    positive          when   she   chose    number

four, apparently in an attempt to dull the effect on the jury of

her sworn statement identifying a person that was not Legrand.

The government assured the district court that DiAngelo would

not be asked to “identify[] the defendant in any way.”                                    J.A.

369.     In response, Legrand’s attorney did not press his motion

in     limine,    instead       stating,      “we        will     wait   and   hear       that

testimony and we will cross-examine her as we see appropriate on

that topic.”        Id.      The district court responded, “All right.

Fine.     Then I will not make any ruling on this matter unless and

until I need to.”         Id.



                                              8
             DiAngelo         ultimately        testified      as     the     government

proffered she would, describing her thought process in choosing

person    number       four,    and    explaining       that    she   was     unsure    of

choosing between person number four and person number six.                             The

government did not attempt to identify Legrand as person number

six.     Legrand did not object to DiAngelo’s testimony at trial.



                                           3.

             After      the    district    court       disposed      of   the   pretrial

motions, jury selection began.                  The district court called sixty

jurors for potential service in the trial.                     Five of these jurors

were African American.              The government struck one of the African

American jurors for cause, leaving four.                       The government then

used a peremptory challenge to strike one of the four remaining

African    American      jurors,       Juror    339.      On    the   form      potential

jurors     were    asked       to     complete,    Juror       339    had     listed    no

occupation, and failed to answer any of the questions presented.

In   response     to    the    government’s       striking      of    Juror     339,   the

following exchange occurred:

       [Legrand’s counsel]: So I’m just making the Batson
       challenge for the record, your Honor. There were four
       African Americans on the panel.     The government has
       struck 339, who is African American. I took a look at
       my notes. I don’t think I have any information about
       him. I don’t think we have an occupation or anything
       relating to him.    So it’s 25 percent of the African
       Americans on the panel. I just want to preserve that.


                                            9
     THE COURT: So they struck one out of four?

     MR. VITRANO: Four, correct.

     . . .

     THE COURT: [To the government.] Do you want to put any
     reason on the record for striking Number 339?

     [The   government]:   Your  Honor,   my   understanding
     of Batson is that the burden is on the defense to show
     that there is a pattern of strikes for a particular
     specified class, not a percentage. 1 In other words, if
     there was one person on the panel of a particular race
     that was struck, that is not a pattern. But here, we
     have one out of four. So the government’s position is
     that the defense has not even come close to meeting
     any kind of burden. So really, the inquiry should go
     no further.

     THE COURT: Okay.   I always ask because sometimes the
     government wants to go ahead anyway.      But I think
     you’re right.    I don’t think a prima facie case is
     made by the fact that out of the four African
     Americans remaining on the panel that would be
     considered for the 12, one of those, and as was
     pointed out, we have no information about, not even an
     occupation, was struck by the government.     Whereas,
     the government did not exercise its strikes against
     three other African Americans that they could have. So
     I deny the motion.

J.A. 358-59.

            The three remaining African American jurors ultimately

served on the jury.




     1
         It is undisputed that the government misstated the law.


                                 10
                                        C.

           We now turn to the testimony of Fulford, Legrand’s

nephew and      accomplice.         Fulford,      then    serving     a    sentence   in

state prison for his role in the Burger King robbery, testified

that he had assisted Legrand in each of the three robberies.                          He

provided       extensive     testimony--with              his     direct     testimony

occupying over 100 pages of trial transcript--in this regard.

For example, Fulford testified that on the evening of January

23, 2008--the night of the Burger King robbery--Legrand visited

him at his house and asked for help in “doing a robbery that

night, because he [Legrand] needed his bills paid.”                          J.A. 800.

Fulford agreed to help Legrand in this robbery because “he had

been there for me when my rent was slow. . . . .                          So he needed

help, I’m there.         I didn’t have no problems with it.”                 J.A. 801.

Fulford drove the Jeep Liberty belonging to Legrand’s mother

that   night     while     Legrand    was    in     the    passenger        seat.     He

described how Legrand had initially suggested robbing a clothing

store but changed his mind upon arrival at the store, when he

observed   multiple        police     cars     in    the        vicinity.      Fulford

testified that Legrand ultimately settled on robbing the Burger

King on Pulaski Highway and that he waited in the Jeep Liberty

while Legrand committed the robbery.                      Fulford testified that

Legrand returned from the Burger King, tossed his gun into the

vehicle, and proceeded to pick up cash from the ground outside

                                        11
the vehicle that he had dropped.                     Fulford then described the

police chase that ultimately ended in his arrest and Legrand’s

escape.

              Fulford’s testimony about the Burger King robbery was

supported     by    ample        additional       evidence.      The    testimony    of

Officer     Ruth,        who     arrested    Fulford,       corroborated      Fulford’s

testimony about the chase following the robbery.                         The physical

evidence collected from the Jeep Liberty--particularly Legrand’s

fingerprints        on     the     front     passenger-side      door--corroborated

Fulford’s testimony that Legrand had been in the passenger seat.

Legrand’s participation in the Burger King robbery was further

supported by cell phone data showing that the 1700 cell phone, a

phone   linked      to     Legrand       through     the    testimony    of   multiple

witnesses, was (1) used in the vicinity of the Burger King at

the time of the robbery, and (2) used to make calls to various

police stations and detention centers shortly after Fulford’s

arrest.       Finally,         there   was    the   damning     testimony     of   other

members of Legrand’s family, who described Legrand’s confession

to his participation in the robbery with Fulford.

              Fulford also described the robbery of the gas station

on   Belair    Road      on    January     12,    2008.      Legrand    suggested   the

robbery during a visit that evening.                       Fulford described how he

and Legrand entered the gas station, asked the attendant for a

pack of cigarettes, and then pulled a gun and demanded money

                                             12
when the attendant turned back around.                   Fulford testified that

he held the gun while Legrand reached into the cash register to

grab the money.         Fulford’s testimony as to the robbery of the

Belair Road gas station was supported by video surveillance from

the gas station clearly showing Fulford and Legrand committing

the robbery in the manner described by Fulford.

              Finally, Fulford testified about the robbery of the

Pizza Hut in Dover, Pennsylvania, on January 21.                         Legrand had

suggested      to    Fulford     robbing       “an   easy   spot    up     there   in

Pennsylvania.”        J.A. 860.    Legrand had been casing this area for

quite a while and told Fulford that he was confident that it was

a prime spot for a robbery.              Fulford explained that when he and

Legrand arrived in Dover they drove past the Pizza Hut, and

Legrand decided it would be the target of the robbery.                       Fulford

waited   in    the    Jeep     Liberty    while      Legrand   robbed     the    site.

Fulford’s testimony was supported by the testimony of a Pizza

Hut   employee        who     positively       identified      Legrand      as     the

perpetrator, and cell tower data that (1) linked the 1700 cell

phone to the Dover area at the time of the robbery, and (2)

showed that the phone had received a call from a Dover pay phone

shortly after the robbery, a call Fulford testified to making.

              The    jury    convicted     Legrand     on   all    eleven    counts.

Legrand timely appealed.



                                          13
                                             II.

               On appeal, Legrand repeats the issues he raised in the

district court.       He asserts police violated the Fourth Amendment

by searching his apartment pursuant to an invalid warrant, that

the    government     violated        the    Fifth       Amendment      by    introducing

DiAngelo’s       testimony      regarding          the    lineup,       and     that     the

government violated the Sixth Amendment by striking Juror 339

based    on     the   juror’s     race.            We    first    address       Legrand’s

evidentiary challenges together before proceeding to the claim

related to jury selection.



                                             A.

               “[T]here   can    be     no       such    thing    as    an    error-free,

perfect trial . . . .”           United States v. Hasting, 461 U.S. 499,

508 (1983).        Pursuant to this concession to reality, appellate

courts will not reverse a conviction due to an error at trial if

it is “clear beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error.”                               Neder

v.    United    States,   527    U.S.       1,     18   (1999).        In    appeals    from

criminal convictions, harmless error analysis serves the purpose

of assuring that “unfair convictions are reversed while fair

convictions are affirmed.”             Sherman v. Smith, 89 F.3d 1134, 1138

(4th Cir. 1996) (en banc).



                                             14
          The   Supreme    Court        has   “recognized   that   most

constitutional errors can be harmless.”         Neder, 527 U.S. at 8.

In consequence, we have held that a district court’s denial of

both a motion to suppress alleging Fourth Amendment violations

and a motion to exclude an in-court identification are subject

to harmless error analysis.   See United States v. Ford, 986 F.2d

57, 60 n.2 (4th Cir. 1993) (motion to suppress); Satcher v.

Pruett, 126 F.3d 561, 566 (4th Cir. 1997) (motion to exclude in-

court identification). 2


     2
       We do not conduct a harmless error analysis for Legrand’s
challenge to the process of jury selection in this case.
Constitutional errors not susceptible to harmless error analysis
are those that affect the framework within which the trial
proceeds, rather than simply being an error in the trial process
itself.    These “structural” errors require automatic reversal.
United States v. Poole, 640 F.3d 114, 118 (4th Cir. 2011).
Although this court has not yet considered the issue, most
circuit courts have held that the use of peremptory challenges
in jury selection in a racially discriminatory manner, as
Legrand alleges here, is a structural error. See, e.g., Winston
v. Boatwright, 649 F.3d 618, 627-28 (7th Cir. 2011); Forrest v.
Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005); Tankleff v.
Senkowski, 135 F.3d 235, 248 (2d Cir. 1998); Ford v. Norris, 67
F.3d 162, 170-71 (8th Cir. 1995); United States v. Thompson, 827
F.2d 1254, 1261 (9th Cir. 1987).        Indeed, in its decision
barring the use of peremptory challenges in jury selection in a
racially discriminatory manner, the Supreme Court ordered that
the conviction be reversed if the defendant, on remand,
demonstrated such an error, “without pausing to determine
whether the improper exclusion of jurors made any difference to
the trial’s outcome.” Davis v. Sec’y for Dept. of Corrections,
341 F.3d 1310, 1316 (11th Cir. 2003) (citing Batson v. Kentucky,
476   U.S.   79,   100  (1986)).     Accordingly,  although  not
conclusively deciding whether such an error is structural, we
will eschew harmless error analysis of this alleged error.


                                   15
                 Errors in the admission of evidence are harmless when,

after       excising      the    challenged     evidence,     there      remains     “an

abundance of other evidence” supporting the verdict.                             United

States           v.     Johnson,    400       F.3d    187,        197     (4th     Cir.

2005); accord United States v. Mobley, 40 F.3d 688, 694 (4th

Cir.       1990)      (reviewing   non-challenged      evidence         introduced   at

trial       to     determine     whether   erroneous       admission      of     certain

evidence was harmless). 3           Without taking a position as to whether

the district court improperly admitted evidence of the search

and DiAngelo’s identification testimony, we find that any error

would have nevertheless been harmless.

                 The challenged evidence--the presence of the 1700 cell

phone in Legrand’s apartment, the past-due bills, and DiAngelo’s

testimony--went only to Legrand’s participation in the robberies

(and not, for example, to his alleged obstruction and witness

intimidation).            As    detailed   above,    the   government       introduced

significant           other   evidence   demonstrating      his    participation     in


       3
       In rare cases, the erroneous admission of evidence--most
often involving a defendant’s confession--will be determined to
have had such a corrosive effect on the jury that it cannot be
rendered harmless by other evidence. See Arizona v. Fulminante,
499 U.S. 279, 296 (1991) (“In the case of a coerced confession .
. . the risk that the confession is unreliable, coupled with the
profound impact that the confession has upon the jury, requires
a reviewing court to exercise extreme caution before determining
that the admission of the confession at trial was harmless.”).
Such circumstances are not present in this case.


                                           16
the robberies.      Indeed, even the specific purpose served by some

of the challenged evidence was duplicated by other evidence.

The presence of the 1700 cell phone in Legrand’s apartment and

the    past-due     bills,     for     example,      demonstrated        Legrand’s

connection to the cell phone used in the vicinity of the Pizza

Hut and Burger King robberies and Legrand’s financial motive for

the robberies, respectively.            But Legrand himself proved his

connection to the cell phone by listing its number as his own

when he was arrested, and his financial motive was presented

separately    to    the    jury    through     the   testimony     of    Fulford.

Meanwhile, the challenged identification evidence tying Legrand

to the Burger King robbery simply replicates Fulford’s testimony

that   he   was    Legrand’s      accomplice   in    the   robbery,      Legrand’s

family members’ testimony that Legrand confessed to the robbery,

the physical evidence linking Legrand to the Jeep Liberty, and

the cell tower data linking Legrand’s cell phone to the area of

the Burger King.       Thus, “it is clear beyond a reasonable doubt

that the jury would have returned a verdict of guilty” as to all

counts      against       Legrand,     even       absent     the        challenged

evidence.    Johnson, 400 F.3d at 198 (quotation marks omitted).



                                       B.

            We now turn to Legrand’s Sixth Amendment challenge.

Legrand argues that the government used a peremptory strike to

                                       17
remove Juror 339 based only on his race, thus violating the

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

            In   Batson,   the   Court     established    a    burden-shifting

framework for the evaluation of a claim of racial discrimination

in the use of peremptory challenges.            Initially, the burden is

on the party challenging the peremptory strike to make a prima

facie showing of racial discrimination.            We have described the

requirements of a prima facie case thusly:

     To establish a prima facie case under Batson, a
     defendant must show that he is a member of a
     cognizable racial group, and that the prosecutor has
     exercised peremptory challenges to remove from the
     venire members of the defendant’s race. . . . 4 Then,
     the defendant must show that these facts and any other
     relevant circumstances raise an inference that the
     prosecutor used peremptory challenges to exclude the
     veniremen from the petit jury on account of their
     race. Relevant circumstances may include, but are not
     limited to, a pattern of peremptorily striking black
     jurors and the government’s questions during voir dire
     and in exercising its challenges.

United States v. Grandison, 885 F.2d 143, 145-46 (4th Cir. 1989)

(quotation    marks,    citations,   and    alterations       omitted).   Only

after a party has made out a prima facie case is the striking

party required “to come forward with a neutral explanation for

challenging black veniremen.”        Id. at 146.




     4
         These two factors are not in dispute.


                                     18
             In   reviewing       a     district      court’s    conclusion       as    to

whether a party has made a prima facie case, we do not second-

guess lightly:

      The trial judge plays a pivotal role in determining a
      prima facie case.    He or she has the opportunity to
      observe voir dire and the prosecution’s exercise of
      its peremptory challenges.   The trial judge also has
      the experience to identify a prima facie case of
      purposeful discrimination. . . .    [A] trial judge’s
      finding of intentional discrimination is a finding of
      fact . . . .     Such findings are entitled to great
      deference, and will not be disturbed by this court
      unless clearly erroneous.

Id.   (quotation     marks,       citations,          and    alterations        omitted).

Here, the district court concluded that Legrand had failed to

make out a prima facie case because the only circumstance he put

forth in support of his claim of discrimination was that the

government    had    struck       one    of    four    African    American        jurors.

Further,    the   district       court       noted    that   weighing     against       the

claim of discrimination were the facts that (1) Juror 339 had

refused to provide requested information, and (2) the government

did   not   strike   any    of    the    remaining      African    American        jurors

despite     its   ability        to     do     so.      These     were     appropriate

considerations by the district court, and we cannot conclude

that its findings were clearly erroneous.                    See, e.g., id. at 147

(noting     favorably      that       “the    government      could      have    used    a

remaining strike against [the remaining African American jurors]

but three times declined to do so”); United States v. Malindez,


                                              19
962 F.2d 332, 333 n.2 (4th Cir. 1992) (“The fact that 50 percent

(four out of eight) of the Government’s peremptory challenges

were       exercised      against    African        American         veniremen,        standing

alone,      is    insufficient       to   establish         a    prima        facie    case    of

purposeful discrimination . . . .”).

                 Legrand asserts that the district court clearly erred

in   relying        on    an   incorrect      legal     standard,             i.e.,   that     to

establish a prima facie case, Legrand was required to show a

discriminatory           pattern    of    strikes.              It     was,    however,       the

government,         not    the     district        court,       that     articulated         this

admittedly erroneous standard. 5                    The record reflects that the

district         court    merely    considered       the        lack    of     a   pattern     of

discriminatory strikes, among other factors, in concluding that

Legrand had failed to make out a prima facie case.

                 Accordingly,       we    reject      Legrand’s          Sixth        Amendment

challenge to his convictions.




       5
       Legrand also complains of the government’s failure to
proffer a legitimate reason for the peremptory strike when
questioned by the district court.   Although it might have been
helpful for the government to proffer one, Legrand may not use
the lack of such an explanation in trying to make a prima facie
case in the first instance. See Grandison, 885 F.2d at 146.


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                    III.

For the foregoing reasons, Legrand’s convictions are



                                              AFFIRMED.




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