                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-2646
                         ___________________________

                              United States of America,

                         lllllllllllllllllllll Plaintiff - Appellee,

                                             v.

                                    Patrick Harding,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

                      Appeal from United States District Court
                    for the District of South Dakota - Rapid City
                                    ____________

                            Submitted: February 10, 2017
                                Filed: July 28, 2017
                                  ____________

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

       Patrick Harding was convicted by a jury of unlawful possession of a firearm
as a previously convicted felon and possession of a stolen firearm. The district court1
sentenced him to 20 months’ imprisonment. Harding raises several points in a

      1
       The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.
challenge to the judgment. He complains that the district court erred when it
overruled his objections to the government’s peremptory strikes of two Native-
American prospective jurors. He contends that the court should have appointed
counsel for two prosecution witnesses and advised them of their Fifth Amendment
privilege against self-incrimination. And he argues that the court abused its
discretion when it denied his motions for a mistrial and a continuance based on
surprise testimony at trial. We conclude that the district court committed no
reversible error, and we therefore affirm.

                                          I.

       In August 2014, Rapid City police officers were called to the Parkway
Carwash. Lynda Ruud told the officers that Harding had a Glock .40 caliber handgun
in the waistband of his pants. Harding had departed the car wash, and the officers
found him at Donald Macpherson’s house.

       Officers arrested Harding, and Macpherson consented to a search of his home.
Police found a green Menards bag that contained personal documents belonging to
Harding, a loaded Glock .40 caliber handgun, an inner waistband holster, a magazine
holster, and a loaded extra magazine. The firearm and accessories were later
identified as items stolen in May 2014 from a vehicle parked outside the Oasis
Lounge, a tavern in downtown Rapid City.

       A grand jury charged Harding with possession of a firearm as a previously
convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of a stolen
firearm, in violation of 18 U.S.C. § 922(j). The case proceeded to trial, a jury found
Harding guilty on both counts, and the district court imposed sentence.




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                                           II.

       Harding’s first issue on appeal concerns the government’s exercise of
peremptory strikes during jury selection. Harding challenged the government’s
striking of two Native-American venirepersons, Lloyd Lacroix and Jamie Cottier, as
an alleged violation of the equal-protection component of the Due Process Clause of
the Fifth Amendment. See Batson v. Kentucky, 476 U.S. 79, 89 (1986); United States
v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007). This claim is governed by a three-
step process:

      First, a defendant must make a prima facie showing that a peremptory
      challenge has been exercised on the basis of race; second, if that
      showing has been made, the prosecution must offer a race-neutral basis
      for striking the juror in question; and third, in light of the parties’
      submissions, the trial court must determine whether the defendant has
      shown purposeful discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (internal quotations and alterations
omitted).

       As the case unfolded at trial, the district court and the parties skipped the first
step of the process. After Harding objected to the strikes, the court recognized the
prosecutor for a response, and the prosecutor volunteered race-neutral bases for the
strikes. The prosecutor did not address whether Harding made a prima facie showing,
and the district court made no finding on that point. The district court ultimately
determined at step three of the process that Harding had not shown purposeful
discrimination. In this situation, the question whether Harding made a prima facie
showing is moot. Hernandez v. New York, 500 U.S. 352, 359 (1991). We review the
district court’s ultimate finding on purposeful discrimination for clear error, giving
considerable deference to the court’s assessment of the prosecutor’s credibility.
United States v. Pherigo, 327 F.3d 690, 695-96 (8th Cir. 2003).

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      The prosecutor gave these reasons for the strikes: He said that Lacroix worked
with Harding at Dakota Paneling, where Lacroix was a supervisor, and that Lacroix
knew Harding. He stated that Cottier was a registered nurse and was a member of a
venire in the recent case of United States v. High Wolf. In response to questions from
the court, the prosecutor clarified that Cottier had been excused from service in High
Wolf, and that the prosecutor was drawing on Cottier’s responses during voir dire in
the past.

      The district court found that Lacroix stated during voir dire that he knew
Harding and worked at the same plant location, so there was “[n]o problem striking
Mr. Lacroix.” As to Cottier, the court found:

      There’s not sufficient evidence for me to grant the Batson challenge
      with regard to Ms. Cottier. Counsel for prosecution and defense have
      a right to strike jurors for any reason or for none as long as it’s not based
      on an impermissible reason, gender, race, and the other factors. But here
      I don’t believe that there’s sufficient evidence of any systematic
      exclusion of Native people or any impermissible jury selection
      techniques on the part of the government, so I am going to deny the
      challenge.

       Harding argues on appeal that the district court clearly erred in denying his
challenge to the strikes. But he makes no argument regarding the strike of Lacroix,
and we find no clear error in the district court’s finding that there was “no problem”
with that strike. That LaCroix knew and worked with Harding was a permissible
race-neutral reason to strike him, United States v. Iron Moccasin, 878 F.2d 226, 229
(8th Cir. 1989), and Harding mounts no argument to establish that race was the true
purpose. Harding himself struck a Native American because the venireperson gave
answers suggesting that she would give preference to law enforcement. The mere fact
that Lacroix, too, was Native American does not approach the showing necessary to
establish clear error by the district court.


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       Harding makes a brief argument that the district court erred in allowing the
strike of Cottier. His complaint is that there is not “a sufficient record for appellate
review” because Cottier said nothing during voir dire, and neither the prosecutor nor
the district court relied on her behavior in the courtroom to justify the strike. But a
strike need not be premised on a juror’s statements or reactions during voir dire.
Occupation, cited by the prosecution here, is a permissible reason. United States v.
Velazquez-Rivera, 366 F.3d 661, 666 (8th Cir. 2004); Hall v. Luebbers, 341 F.3d 706,
713 (8th Cir. 2003). A venireperson’s answers in prior court sessions known to the
prosecutor and to the court, although not detailed in the record here, are also a race-
neutral basis for a strike. See Stenhouse v. Hobbs, 631 F.3d 888, 895 (8th Cir. 2011).
These facially valid explanations shifted the burden to Harding to show that the
prosecution’s stated reasons were a pretext for race. Purkett v. Elem, 514 U.S. 765,
767-68 (1995). The prosecutor’s justifications here were not implausible or fantastic;
indeed, the prosecutor in Velazquez-Rivera stated that he struck a Hispanic juror
because “she was a nurse and he followed a rule of striking teachers and nurses.” 366
F.3d at 666. Merely establishing that the government’s strike eliminated the
remaining self-identified Native American does not compel a finding of clear error.
For all we know, the prosecution would have been happy to seat the Native American
whom Harding struck, and the government did not strike a fourth venireperson who
identified as non-Caucasian. The district court had an adequate basis to find that
there was no purposeful discrimination.

       Harding next argues that the district court deprived him of a fair trial by
refusing either to appoint counsel for two prosecution witnesses or to advise the
witnesses of their Fifth Amendment privilege against self-incrimination. A trial court
sometimes will accord these benefits to a witness in order to protect the rights of the
witness. E.g., United States v. Rogers, 549 F.2d 490, 494 (8th Cir. 1976). But a
defendant lacks standing to challenge the district court’s decision on this matter,
because the privilege at issue belongs to the witness, not to the party on trial. See
Rogers v. United States, 340 U.S. 367, 371 (1951); United States v. Skolek, 474 F.2d

                                          -5-
582, 584 (10th Cir. 1973) (per curiam). Harding’s disagreement with the district
court’s exercise of discretion vis-à-vis the witnesses therefore affords him no basis
to challenge the conviction.

        Harding’s third point on appeal is that the district court erred by denying his
motions for a mistrial and a continuance. The mistrial motions were based on two
alleged violations of the government’s duty to disclose exculpatory information under
the rule of Brady v. Maryland, 373 U.S. 83 (1963), and subsequent decisions. The
first time, Harding argued that the government failed to inform him that Brown, the
security guard at the Oasis Lounge, would testify that he saw Harding lean over and
rummage through the glove compartment of the vehicle from which the Glock firearm
was stolen. Brown did not convey this information in his statement to police on the
night of the theft. When Harding objected at trial, the prosecution explained that
Brown had told the government during a lunch break that he saw Harding lean toward
the glove compartment, but that prosecutors were unable to contact Harding’s counsel
during the recess. The government represented that Brown’s testimony about
Harding rummaging through the compartment was a surprise. The court denied the
motion for mistrial, finding that there was no intentional government misconduct.
There was no error in denying a mistrial. The government cannot disclose
information of which it is unaware, and Brown’s testimony inculpated Harding and
was disclosed during trial, so there was no Brady violation. See United States v.
Anwar, 428 F.3d 1102, 1112 (8th Cir. 2005).

       The second motion came in response to Macpherson’s testimony. One
objection was that Macpherson testified unexpectedly that Harding had pulled the
Glock firearm out of the Menards bag and showed it to Macpherson on the day of the
arrest. The district court denied Harding’s motion for mistrial on this ground. The
court found that the government did not know that Macpherson planned to make that
statement, and that Harding was not prejudiced because there was nothing that he
could have done to prevent the testimony. Again, because this evidence implicated

                                         -6-
Harding and did not exculpate him, the Brady rule is not applicable. Harding had an
opportunity to impeach Macpherson based on his failure to mention this incriminating
evidence in previous interviews.

       Harding complains separately that the district court should have granted a
mistrial or a continuance when Macpherson disclosed in trial testimony that he was
a paranoid schizophrenic. The court found that the government was not aware of this
diagnosis before trial, so there was no discovery violation that warranted a mistrial.

       Harding contends, however, that the court should have continued the trial in
light of the surprise so that he could seek Macpherson’s mental health records and
secure an expert to testify about the effect of paranoid schizophrenia on a witness’s
ability to perceive and recall events. Harding had an inkling before trial that
Macpherson had a mental health issue, but Macpherson did not acknowledge mental
health problems in a pretrial interview, and Harding’s counsel felt that she had no
basis to obtain Macpherson’s medical records.

       The court declined to grant a continuance for several reasons. The court
observed that “we have all kinds of people with paranoid schizophrenia who function
in society, so there isn’t even enough for me to say that there’s any reasonable
likelihood that his credibility would be affected.” There was no evidence that
Macpherson was “a treated schizophrenic,” and he appeared in court as “a perfectly
straight-forward adult male standing up to direct and cross-examination about matters
in which he was involved.” The court also remarked that witness Lynda Ruud
corroborated Macpherson’s testimony that Harding possessed the firearm.

       The district court has wide discretion in managing a trial, and we will reverse
based on a refusal to continue the proceedings only when there is an abuse of
discretion that prejudiced the defendant. United States v. Redd, 318 F.3d 778, 782
(8th Cir. 2003). The district court’s decision here was within the range of reasonable

                                         -7-
exercises of discretion. Although Macpherson did not disclose his paranoid
schizophrenia until trial, Harding was able to cross-examine him about the illness and
to suggest to the jury that the illness affected Macpherson’s credibility. The potential
that further investigation would have produced information that materially affected
the jury’s perception of Macpherson’s credibility was too speculative to demand a
continuance. And Macpherson’s testimony about Harding’s possession of a gun was
corroborated by Ruud, so the case did not rise or fall on whether the jury believed
Macpherson alone. For these reasons, we conclude that Harding has not
demonstrated an abuse of discretion that caused him prejudice.

      The judgment of the district court is affirmed.
                     ______________________________




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