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                                                        [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11476
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:16-cr-00309-WSD-JFK-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                  versus

JEFF NORTH,

                                                        Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (March 4, 2019)

Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Jeff North appeals his convictions for carjacking, discharging a firearm

during a crime of violence, and possessing a firearm as a convicted felon in

violation of 18 U.S.C. §§ 922(g), 924(c), and 2119(1). After careful consideration,

we affirm.

                                           I.

      In the early morning hours of March 23, 2015, Officer Willie Williams

observed a black van turning onto a street. Once the van finished turning, Officer

Williams noticed a blood-soaked man standing on the sidewalk. The man, Johnny

Dansby, claimed that North shot him twice and then stole his van. When Officer

Williams stopped the van, he found North sitting in the driver’s seat, Dansby’s

wallet and identification in the van, and a revolver wrapped in duct tape

underneath the driver’s seat. The revolver contained two spent shell casings.

      A federal grand jury indicted North on one count of carjacking, in violation

of 18 U.S.C. § 2119(1), one count of discharging a firearm during and in relation to

a crime of violence in violation of § 924(c), and one count of being a felon in

possession of a firearm in violation of § 922(g). North went to trial on December

5, 2017. After the for-cause strikes, the jury venire consisted of thirteen African

Americans, two Asian Americans, one Hispanic American, and twelve Caucasians.

North was given ten preemptory strikes and the government six. Each side had an

additional strike for the selection of alternates. North used eight of his ten strikes


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on non-African Americans. The government used four of its six strikes on African

Americans. The empaneled jury was majority African American.

      At the close of jury selection, North’s counsel lodged a Batson v. Kentucky,

476 U.S. 79, 106 S. Ct. 1712 (1986), challenge. Counsel argued the government’s

decision to use two-thirds of its peremptory strikes on African Americans was

prima facie evidence of racial discrimination. The district court found that the

statistics alone were not enough to make out a prima facie case but nonetheless

asked the government to explain its rationale for striking each of the four African

American potential jurors. The government explained it struck two jurors because

they were too young, one juror because she seemed disinterested in the

proceedings, and one juror because he had three kids, was not married, and

“appeared to be irritated” when asked whether he was married. The court found

that the government’s reasons were not pretextual and overruled the Batson

objection.

      After the jury was seated, the government began its case-in-chief. The

government called Danby and Michael McCarriagher, a forensic examiner, to

testify, as well as other witnesses. When Dansby testified, North’s counsel sought

to introduce records of Dansby’s prior conviction in 2008 for filing a false police

report based on a carjacking that never took place. The district court sustained the

government’s objection that the conviction records constituted inadmissible


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extrinsic evidence under Federal Rules of Evidence 404(b) and 608, and the

records were not admitted.

      The government then called McCarriagher to testify about the results of a

gunshot residue test. North’s counsel objected on Confrontation Clause grounds.

Counsel contended that since McCarriagher did not personally conduct the gunshot

residue test, he could not testify about the test’s results without violating North’s

right to confront witnesses against him. The district court overruled the objection

because although McCarriagher did not conduct the test himself, he personally

supervised and observed the trainee who did. In addition, McCarriagher

participated in the testing process as part of his supervisory duties.

      The jury convicted North on all three counts. The district court sentenced

him to three hundred months imprisonment. North timely appealed.

                                          II.

      North argues on appeal that the district court erred in three ways: first, by

rejecting his Batson challenge to the government’s decision to strike four African

American jurors; second, by permitting McCarriagher to testify in violation of

North’s Sixth Amendment rights; and third, by excluding evidence of Dansby’s

2008 conviction under Federal Rule of Evidence 404(b). Each of these arguments

fails to persuade.




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                                           A.

      “We review a district court’s denial of a Batson challenge for clear error,

according the district court’s determination on the ultimate question of

discriminatory intent great deference on appeal.” United States v. Hughes, 840

F.3d 1368, 1381 (11th Cir. 2016) (quotation marks, citation, and alteration

omitted). Even assuming North put forth sufficient statistical information to make

out a prima facie case of racial discrimination, the district court did not clearly err

when it found the government’s proffered explanation for each strike was not

pretextual and that race did not infect the jury selection process.

      North argues that the government’s explanations were clearly pretextual

because it failed to strike other jurors who shared the same characteristics. It is

true, of course, that “a court may find intent to discriminate when the reason

provided for striking a juror applies with equal force to a juror that the same party

declined to strike, who is outside the protected group of the stricken juror.” Id. at

1382 (emphasis added). Here, however, the record reflects that the government

declined to strike other African American jurors for being young and single. The

government explained that it preferred jurors who “had families” and “kids” and

therefore had a “strong interest in the quality of the community.” The district court

did not clearly err when it determined that after striking the other jurors for

“substantially greater” concerns, the government was entitled to use their


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remaining two strikes on some of the younger jurors, as opposed to all of them, and

that the government’s explanation on this point did not amount to pretext.

      Neither did the district court clearly err when it accepted the government’s

rationale for striking a third African American juror because she seemed

disinterested in the proceedings. The juror in question “did not participate in the

oath,” kept her eyes closed, and had to be asked to stand up by the marshals. North

does not argue that any other jury venire member behaved in this manner. The

district court therefore reasonably accepted that the government struck this juror

not because of her race but because of her ambivalence, which the government

took as a sign that she would not “carefully analyze the law” at trial. See United

States v. Cordoba-Mosquera, 212 F.3d 1194, 1197–98 (11th Cir. 2000) (per

curiam).

      Last, the district court did not clearly err when it accepted that the

government struck a fourth African American juror because he had three children,

was unmarried, and “appeared to be irritated” when asked about his marital status.

Although there is some tension between the government’s decision to strike this

juror and its stated preference for jurors with children, this is not enough to

overturn a district court’s determination against pretext where, as here, the

government also faulted the juror for being agitated during questioning. This is not

an improbable explanation, and there is something to be said about the


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government’s concern that the juror’s agitation in response to its questioning could

potentially bias the juror in favor of the defense. See Madison v. Comm’r, Ala.

Dep’t of Corr., 761 F.3d 1240, 1251 (11th Cir. 2014) (“More importantly, each of

the state’s race-neutral reasons is supported by the record and has some basis in

accepted trial strategy, at least arguably so.” (quotation marks omitted)).

      In addition, the final jury had a greater share of African Americans than the

jury venire. See United States v. Ochoa-Vasquez, 428 F.3d 1015, 1045 (11th Cir.

2005); see also Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., 236 F.3d

629, 637 (11th Cir. 2000) (“[A]n inference of discrimination based on the number

of jurors of a particular race may arise where there is a substantial disparity

between the percentage of jurors of one race struck and the percentage of their

representation on the jury.”). We therefore cannot say the district court clearly

erred when it overruled North’s Batson objection.

                                          B.

      “We review a preserved Confrontation Clause claim de novo.” United

States v. Curbelo, 726 F.3d 1260, 1271–72 (11th Cir. 2013). North contends the

district court should not have permitted McCarriagher to testify about the results of

the gun residue test because he did not conduct the test himself or “receive the

samples into the lab.” This argument is without merit.




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       McCarriagher testified he received the package containing the evidence to

be tested and that the seal was unbroken at the time of delivery, meaning the

package had not been tampered with. He additionally testified that although he

didn’t personally conduct the analysis, he oversaw and supervised the trainee who

did. As part of his supervision, McCarriagher set up the testing instruments,

ensured the data obtained was valid, and checked that the trainee’s notes and

opinions were consistent with the instrumental data—all before the trainee wrote

his report. In other words, as the district court stated, “McCarriagher not only

observed, but participated in the testing.” This is more than enough to distinguish

this case from Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705 (2011),

and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009), where

either no one was called to testify about the report’s contents, Melendez-Diaz, 557

U.S. at 311, 129 S. Ct. at 2532, or the person testifying neither performed nor

observed the test reported in the certification, Bullcoming, 564 U.S. at 652, 131 S.

Ct. at 2710.

       The district court therefore did not err when it permitted McCarriagher to

testify as to the results of the gun residue test. See Bullcoming, 564 U.S. at 666,

131 S. Ct. at 2718 (Part IV of the opinion of Ginsburg, J., in which Scalia, J., joins)

(“New Mexico could have avoided any Confrontation Clause problem by asking

Razatos to . . . testify to the results of his retest rather than to the results of a test he


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did not conduct or observe.” (emphasis added)), 564 U.S. at 672–73, 131 S. Ct. at

2722 (Sotomayor, J., concurring) (distinguishing Bullcoming from “a case in

which the person testifying is a supervisor, reviewer, or someone else with a

personal, albeit limited, connection to the scientific test at issue”).

                                           C.

      We review a district court’s evidentiary rulings for an abuse of discretion.

See United States v. Taylor, 417 F.3d 1176, 1179 (11th Cir. 2005) (per curiam).

North argues the district court should have admitted into evidence Dansby’s 2008

conviction records because they were not inadmissible under Federal Rule of

Evidence 404(b). This argument, however, is belied by North’s own statement on

appeal that he sought to admit the conviction records to prove that Dansby “lied

when he reported that []North carjacked him,” just as Dansby lied when he told the

police he was carjacked in 2008. What is this if not an attempt to use extrinsic

evidence to prove that someone acted in conformance with prior bad conduct?

This is the very act Rule 404(b) prohibits. Fed. R. Evid. 404(b)(1). In addition,

trial counsel successfully used the facts underlying the conviction to impeach

Dansby on cross-examination. The district court therefore did not abuse its

discretion in declining to admit into evidence Dansby’s record of conviction.

      AFFIRMED.




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