UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5751

MICHAEL DWAYNE VIA,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Chief District Judge.
(CR-95-16-R)

Submitted: October 29, 1996

Decided: November 20, 1996

Before WIDENER, MURNAGHAN, and WILKINS,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jonathan M. Apgar, DAMICO & APGAR, Roanoke, Virginia, for
Appellant. Robert P. Crouch, Jr., United States Attorney, Joseph W.
H. Mott, Assistant United States Attorney, Eric Chappin, Third-Year
Law Intern, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Michael Dwayne Via was convicted after a jury trial on three
counts of distributing cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (1994). In appealing his conviction, Via makes four argu-
ments: (1) the district court clearly erred by denying Appellant's chal-
lenge to the Government's use of a peremptory strike of a potential
black juror under Batson v. Kentucky, 476 U.S. 79 (1986); (2) the evi-
dence was insufficient to support the conviction; (3) the district court
abused its discretion by excluding the introduction of evidence that
would show the Government's confidential informant conducted ille-
gal acts during the period in which he was cooperating with the Gov-
ernment; and (4) he was selectively prosecuted by the federal
government because of his race. For the reasons that follow, we
affirm. For purposes of organization, we discuss the facts chronologi-
cally and then address Via arguments in turn.

Prior to Via's trial, the district court granted the Government's
motion in limine to prohibit Kia Robertson from testifying that Gov-
ernment informant Jeffrey Overstreet had offered her drugs for sex
and Ray Hodges from testifying that Overstreet sold him drugs. The
court granted the motion noting that "[t]he purpose of that rule [Fed.
R. Evid. 608] is to not expand the trial in side issues of trying [to
determine] whether or not the witness committed certain bad acts or
crimes." After jury selection, but prior to the commencement of trial,
Via raised a challenge to the Government's peremptory strike of a
black female juror under Batson v. Kentucky. The basis for the chal-
lenge was that the potential juror was the only African-American per-
son out of a thirty-three person venire and that Via, himself, is black.1
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1 There was another black juror in the jury pool, but he was not avail-
able the day of trial. (J.A. 16).

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When challenged about the strike, the Assistant United States
Attorney (AUSA) stated that he did not consider race when he struck
the potential juror. The AUSA alleged he struck the juror because: (1)
she lacked ties to the community because she was not married, did not
have a family, and did not have children in school; (2) she and
another juror were the only two jurors left in the venire under the age
of thirty-five (she was age twenty-nine); and (3) when he looked at
the juror on one occasion she appeared "unhappy," on another occa-
sion she had a "grim look on her face" as if she was agitated and did
not want to serve on the jury, and at one point when he made eye con-
tact with the juror she looked down and then away from him. The
AUSA's assistant stated that the AUSA did not have a good feeling
about the juror and that two other jurors who appeared disinterested
in fulfilling their duties also were struck by the Government. The dis-
trict court found that Via had made a prima facie showing of discrimi-
nation but that the AUSA had proffered neutral reasons for the strike
and that Via's attorney ultimately failed to show the strike was
racially motivated. Thus, the court denied Via's Batson challenge.

Evidence at trial centered around the testimony of Overstreet, the
Government informant. Via sold cocaine base to Overstreet on Octo-
ber 11, 14, and 25, 1994. Tape recordings of the first two transactions
were played for the jury. Laboratory analysis showed that Via sold
10.53, 11.26, and 10.08 grams of cocaine base to Overstreet respec-
tively. At the conclusion of the two-day jury trial, Via was convicted
on three counts of distributing cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (1994).

I.

When a Batson challenge is made, the trial court must conduct a
three-part inquiry. First, the court requires the opponent of the chal-
lenge to make out a prima facie case of racial discrimination. Second,
if the requisite showing is made, the burden then shifts to the propo-
nent of the strike to come forward with a race-neutral explanation for
striking the juror. The explanation need not be persuasive or even
plausible as long as it is race-neutral. Purkett v. Elem, ___ U.S. ___,
63 U.S.L.W. 3814, 3815 (U.S. May 15, 1995) (No. 94-802). Third,
if steps one and two are met, the trial court must then decide whether
the explanation is pretextual and whether the opponent of the strike

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has met its burden of proving purposeful discrimination. Id.; Batson,
476 U.S. at 96-98. The ultimate burden rests always with the oppo-
nent of the strike to demonstrate purposeful discrimination. Hernan-
dez v. New York, 500 U.S. 352, 364 (1991). Because the findings of
the district court turn largely on credibility determinations, they are
given great deference and reviewed for clear error. Id.

We find that the district court did not clearly err by finding that the
AUSA's articulated reasons for striking the juror were race-neutral:
the juror's youth, that she was separated or divorced--indicating lack
of ties to the community--and the AUSA's "gut reaction" or "sixth
sense to select [or not] jurors." See Purkett, 63 U.S.L.W. at 3815. We
also find that the district court did not clearly err by finding that Via
failed to demonstrate discriminatory intent by the Government.
Hernandez, 500 U.S. at 364.

II.

We must uphold a conviction attacked on the grounds of insuffi-
cient evidence if in "viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson
v. Virginia, 443 U.S. 307, 319 (1979); United States v. Brewer, 1 F.3d
1430, 1437 (4th Cir. 1993). We do not review the jury's decision on
the credibility of witnesses. United States v. Saunders, 886 F.2d 56,
60 (4th Cir. 1989). Via's sole basis for contending that the evidence
was insufficient is that Overstreet's testimony was"inherently incred-
ible." Saunders, 886 F.2d at 60. Because we do not review witness
credibility and because Overstreet's testimony and audiotape record-
ings clearly demonstrated that he bought cocaine base from Via on
three separate occasions, we find that the evidence was sufficient to
support the convictions for distributing cocaine base. Jackson, 443
U.S. at 319.

III.

Via's evidentiary challenge is reviewed for an abuse of discretion.
United States v. Bynum, 3 F.3d 769, 772 (4th Cir. 1993), cert. denied,
510 U.S. 1132 (1994). The trial court is vested with broad discretion
to control the mode of interrogation and the presentation of evidence.

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United States v. Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988). Except
for evidence of conviction of a crime, as provided in Fed. R. Evid.
609, extrinsic evidence of specific instances of conduct may not be
used to impeach a witness' credibility. Fed. R. Evid. 608(b); Bynum,
3 F.3d at 772. The reason for the rule is to avoid holding a series of
mini-trials on witness credibility within the trial itself. Bynum, 3 F.3d
at 772. Accordingly, we find that the district court did not abuse its
discretion because Via attempted to do precisely what Rule 608
forbids--present extrinsic conduct evidence to impeach Overstreet's
credibility.

IV.

Via now claims for the first time that because he was the only
African-American defendant and because he was the only defendant
out of a group of thirty-four who was prosecuted by the federal gov-
ernment, rather than the state, that he was selectively prosecuted
because of race. Because this issue was not raised below, the record
contains no facts regarding the other thirty-three defendants. Ordinar-
ily, an appellate court will not consider an issue not raised in the court
from which an appeal is taken. United States v. Davis, 954 F.2d 182,
187 (4th Cir. 1992) (citation omitted). This flexible rule, however, is
relaxed to prevent manifest injustice, e.g. where fundamental rights
are involved. Id. Without deciding whether fundamental rights are
involved, we address Via's claim.

When concurrent jurisdiction exists to prosecute a crime in state or
federal court, it is not a per se violation of due process to prosecute
a defendant federally. United States v. Smith , 30 F.3d 568, 572, cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3421 (U.S. Nov. 28, 1994) (No.
94-6550). Nonetheless, if the decision to prosecute is deliberately
based upon a constitutionally impermissible factor such as race it may
be barred. Wayte v. United States, 470 U.S. 598, 608 (1985). Selective
prosecution claims are judged according to ordinary equal protection
standards; thus, Via must show that the enforcement had (1) a dis-
criminatory effect and (2) was motivated by a discriminatory purpose.
Id.

We find Via's bare allegation of discrimination, based solely upon
the fact that he was the only person federally prosecuted, does not

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meet his burden under Wayte when considered in light of the fact that
he was on federal supervised release for previous federal drug crimes
when he committed the instant drug offenses.2 Via makes no claim
that the other thirty-three defendants were similarly situated. Thus, we
deny Via's claim of selective prosecution.

Accordingly, we affirm Via's conviction. We dispense with oral
argument because the facts are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED
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2 Via was federally convicted in 1989 for conspiracy to distribute 189
pounds of marijuana and distribution of 140 grams of cocaine.

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