                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2304
                         ___________________________

                             United States of America

                                        Plaintiff - Appellee

                                          v.

                                 Marlon Iron Crow

                                      Defendant - Appellant
                                   ____________

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

                              Submitted: June 19, 2020
                               Filed: August 14, 2020
                                   ____________

Before KELLY, ERICKSON, and STRAS, Circuit Judges.
                           ____________

ERICKSON, Circuit Judge.

     A jury convicted Marlon Iron Crow of second-degree murder in violation of
18 U.S.C. §§ 1111(a) and 1153. Iron Crow appeals, asserting the district court1
committed reversible error in four particulars: (1) by denying his Batson v. Kentucky,

      1
       The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.
476 U.S. 79 (1986), challenge; (2) by failing to dismiss the indictment or grant him
a new trial because of alleged government misconduct; (3) by not entering a judgment
of acquittal or granting him a new trial because of an alleged dearth of evidence
against him; and (4) by denying his request for a downward variance. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. Background

      A federal grand jury returned an indictment charging Iron Crow with second-
degree murder for his involvement in the November 11, 2015, death of Craig
Charging Crow. Iron Crow moved to dismiss the indictment, alleging the government
had intimidated a witness during its investigation. The district court denied the
motion and the case proceeded to trial. During voir dire the prosecution struck one
of two Native Americans on the venire, and Iron Crow raised a Batson challenge.
The district court considered and denied Iron Crow’s Batson challenge.

       Among the witnesses at trial was Nicole Morsette, Iron Crow’s half-sister. She
described a marathon of heavy drinking at her Porcupine, South Dakota, home
involving Iron Crow, her boyfriend, and herself. During the morning of November
10, 2015, Iron Crow arrived at Morsette’s house to repair a floor. Somehow the
group got diverted and started drinking around 9:00 in the morning, and continued
on through most of the day. The next morning Charging Crow and another guest
arrived at breakfast time. The drinking resumed and continued throughout the day.
At some point in the late afternoon or early evening Charging Crow joked that he
could “knock out” Iron Crow. Iron Crow then challenged Charging Crow to “try it.”
Iron Crow initiated a fistfight with Charging Crow that resulted in Charging Crow
falling to the ground. Morsette testified that once Charging Crow was on the ground
Iron Crow continued to punch him and ultimately resorted to kicking and stomping
him.



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       During cross-examination Morsette admitted to making inconsistent statements
during an earlier interview with investigators, telling them that it was actually
Charging Crow who initiated the fight. She explained on redirect examination that
she had been drinking the day of that interview, and that she had felt threatened by
the government’s investigation as well as pressure from her family to lie to
investigators. A sober observer, Morsette’s twelve-year-old son, L.T., largely
corroborated Morsette’s trial testimony, testifying that he saw Charging Crow back
away from Iron Crow during the fight. He also added detail to Morsette’s version of
events by relating that he saw Iron Crow put on his boots and adjust Charging Crow’s
body before stomping Charging Crow’s chin. After the stomping Morsette directed
Iron Crow to leave her home, which he did.

        When efforts to revive Charging Crow proved futile, Morsette’s boyfriend
dialed 911 and officers and an ambulance were dispatched to the scene. Charging
Crow was transported to the hospital where he was declared dead on arrival. Brian
Levenson, the nurse who treated Charging Crow, testified that Charging Crow died
either from a subarachnoid hemorrhage that began when his head hit the floor or from
asphyxiation on his own vomit. Levenson also testified that he observed minor
injuries around Charging Crow’s lip and chin, which could have been caused by the
intubation while en route to the hospital. Dr. Donald Habbe, a forensic pathologist,
performed an autopsy on Charging Crow. He testified the cause of death was a
subarachnoid hemorrhage, which he suspected had occurred because of a lacerated
basilar artery near the base of Charging Crow’s brain. He informed the jury that this
was a rare injury, but one that can occur when an intoxicated individual sustains a
blow to the head. Dr. Habbe also testified that bleeding he discovered just under
Charging Crow’s scalp was caused by the application of blunt force, possibly with a
fist or a boot.

      Iron Crow contended that he acted in self-defense. The jury found the
government had proven the absence of self-defense beyond a reasonable doubt and

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returned a guilty verdict. After the district court denied Iron Crow’s post-trial
motions for acquittal and for a new trial, it sentenced Iron Crow to a within-
Guidelines sentence of 240 months’ imprisonment. This appeal followed.

II. Discussion

      A. Batson

       We review the denial of a Batson challenge for clear error. United States v.
Hampton, 887 F.3d 339, 342 (8th Cir. 2018). “Since the trial judge’s findings in the
context under consideration here largely will turn on evaluation of credibility, a
reviewing court ordinarily should give those findings great deference.” Batson v.
Kentucky, 476 U.S. 79, 98 n.21 (1986). Deference is particularly appropriate when
the trial judge finds that an attorney credibly relied on a juror’s demeanor when
exercising the strike. Snyder v. Louisiana, 552 U.S. 472, 479 (2008).

      When a Batson challenge is raised, it is the duty of the trial judge to decide
whether the reasons offered by the prosecutor are the real reasons or whether they are
mere pretext for a strike made on the basis of race. Flowers v. Mississippi, 139 S. Ct.
2228, 2244 (2019). “The ultimate inquiry,” the Supreme Court recently reiterated,
“is whether the State was motivated in substantial part by discriminatory intent.” Id.
(quotation marks omitted); see also Hernandez v. New York, 500 U.S. 352, 365
(1991) (“In the typical peremptory challenge inquiry, the decisive question will be
whether counsel’s race-neutral explanation for a peremptory challenge should be
believed.”).

       The reason proffered here for the challenged strike was that the juror appeared
“disinterested” and was “very hard to engage.” Because these reasons relate to the
juror’s demeanor, they fall within the Snyder admonition that particular deference
should be given to the trial judge’s ability to determine whether the demeanor could

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“credibly be said to have exhibited the basis for the strike attributed to the juror by
the prosecutor.” Snyder, 552 U.S. at 477. While Iron Crow claims that other
members of the venire failed to answer questions posed by the lawyers, our precedent
requires more than this. In United States v. Hampton, our court held under analogous
circumstances that there was no clear error in denying the defendant’s Batson
challenge when the defendant had failed to demonstrate “other non-responsive jurors
were similarly-situated to [the struck juror], i.e., that they exhibited similar body
language and disinterest in serving on the jury during voir dire.” 887 F.3d at 343.
So too with Iron Crow. The district court did not commit clear error in denying the
Batson challenge.

      B. Government Misconduct

       Iron Crow appeals two decisions involving claims of government misconduct:
(1) the district court’s denial of his motion to dismiss the indictment for alleged
witness intimidation, and (2) its denial of Iron Crow’s motion for a new trial based
on prosecutorial misconduct during the trial. We review a denial of a motion to
dismiss an indictment by reviewing the district court’s factual findings for clear error
and its legal conclusions de novo. United States v. Louper-Morris, 672 F.3d 539, 559
(8th Cir. 2012). For government conduct to warrant dismissal of an indictment it
must “shock the conscience of the court.” United States v. Horton, 756 F.3d 569, 576
(8th Cir. 2014) (quotation marks omitted). A district court’s denial of a motion for
a new trial is reviewed for abuse of discretion. United States v. Sigillito, 759 F.3d
913, 932 (8th Cir. 2014). To warrant a new trial, the alleged misconduct must have
been so prejudicial as to have deprived the defendant of a fair trial. United States v.
Barrera, 628 F.3d 1004, 1007 (8th Cir. 2011).

       Iron Crow points to the following alleged government conduct as improper:
(1) intimidation of Morsette during a pre-trial interview; (2) elicitation of false
testimony; (3) misstatements of law during voir dire; and (4) improper vouching and
attempts to lead Morsette at trial.

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       Iron Crow’s witness intimidation claim is based on Morsette’s testimony that
she felt threatened during the government’s investigation. Morsette noted that she
did not “go through this kind of stuff every day of my life” and that she was
frightened when the prosecutor told her that she would “hate to see [her] go away.”
However, Morsette also testified she “felt relieved” when she visited with the
prosecutor. Given Morsette’s equivocal testimony on this issue, the district court did
not err by denying the motion to dismiss the indictment and allowing each side an
opportunity to explore the circumstances of the pre-trial investigation. This solution
appropriately allowed the jury to weigh whether Morsette’s testimony had been
influenced by any unease she felt during the investigation.

       To obtain relief based on a claim that the government elicited false testimony
Iron Crow must show: (1) the prosecution used perjured testimony; (2) it knew or
should have known the testimony was perjured; and (3) there was a reasonable
likelihood that the perjured testimony could have affected the verdict. United States
v. West, 612 F.3d 993, 996 (8th Cir. 2010). Iron Crow submitted a post-trial affidavit
from his daughter in which she asserted that she heard L.T. say he lied on the stand
when he stated that Morsette and her boyfriend “helped” Charging Crow. Iron
Crow’s daughter also claims she heard Morsette admit to lying on the stand “about
being drunk.” While we are not entirely certain which testimony Iron Crow purports
these statements proved false, solving this mystery is unnecessary because Iron Crow
has not produced any evidence that the government knew or should have known of
the use of perjured testimony. Nor has he demonstrated that the testimony could have
affected the verdict. The district court did not err when it denied Iron Crow’s claim
based on the elicitation of false testimony.

       Iron Crow’s other claims of government misconduct present closer questions.
A careful review of the transcript reveals that the prosecutor made inappropriate
comments about mens rea during voir dire which invaded the province of the court
to instruct the jury. The prosecutor also used inappropriate leading questions at
various points and attempted to testify through and vouch for Morsette. To its credit,

                                         -6-
the district court often checked the prosecutor’s penchant to bend the rules by
sustaining defense counsel’s objections and giving the jury rather forceful curative
instructions. It is ultimately because of the district court’s attention to and correction
of these matters that we conclude that even if the prosecutor acted improperly at trial,
we cannot find that these actions—considered separately or together—prejudiced Iron
Crow to such an extent as to render his trial fundamentally unfair. See United States
v. Swift, 623 F.3d 618, 623 (8th Cir. 2010) (holding that “even if the [prosecutor’s]
comments were improper, [defendant] was not deprived of a fair trial” on account of
the district court’s curative instruction).

      C. Evidence Sufficiency

      We review de novo the denial of Iron Crow’s motion for judgment of acquittal,
viewing the trial evidence in the light most favorable to the verdict, and affirming if
any rational jury could have found Iron Crow guilty beyond a reasonable doubt.
United States v. Vega, 676 F.3d 708, 721 (8th Cir. 2012). To convict Iron Crow of
second-degree murder, the jury had to find he (1) is a Native American who (2)
unlawfully killed Charging Crow, (3) with malice aforethought, (4) in Indian country.
See United States v. Cottier, 908 F.3d 1141, 1146 (8th Cir. 2018).

       The evidence, when taken in the light most favorable to the verdict, was
sufficient to convict Iron Crow: Morsette and L.T. each testified that Iron Crow
started a fight with Charging Crow that led to Iron Crow punching and stomping
Charging Crow while he was on the ground, and ended in Charging Crow’s death.
Crediting this testimony, a reasonable jury could find that Iron Crow acted with
malice aforethought–that is, with reckless and wanton behavior that he was aware
risked death or serious bodily harm. See Id.

      Iron Crow makes much of Dr. Habbe’s testimony that Charging Crow may
have died immediately after his head hit the ground, before any stomping or kicking
occurred. He draws from this testimony two arguments: (1) the post-fall kicking and

                                           -7-
stomping is inappropriate evidence to consider when determining mens rea because
Charging Crow might already have been dead, and (2) the second-degree murder
charge must fail because without the kicking and stomping causing the death of
Charging Crow, the facts would not sustain a conviction for second-degree murder.
The first argument misapprehends mens rea evidence. Even if Charging Crow died
prior to the last punch or kick, it was permissible for the jury to use these blows, even
if postmortem, to reasonably infer that Iron Crow acted with malice aforethought.
See Model Crim. Jury Instruction 6.18.1111A-1 (Judicial Comm. on Model Jury
Instructions for the Eighth Circuit 2017) (“In determining whether [the victim] was
unlawfully killed with malice aforethought, you should consider all the evidence
concerning the facts and circumstances preceding, surrounding and following the
killing which tend to shed light upon the question of intent.”). Regardless of whether
the acts in question occurred after the death of Charging Crow, they are still relevant
as to Iron Crow’s mens rea at the time the death-inducing acts took place.

        With regard to Iron Crow’s second argument, the jury was confronted with a
question of fact as to the timing of Charging Crow’s death. Both sides vigorously
presented and argued to the jury their version of the facts. The evidence when viewed
in a light most favorable to the verdict, that Charging Crow was alive when kicked
and stomped, is sufficient to support the conviction. Because the other
elements—that Iron Crow is a Native American and that the crime took place in
Indian country—were also sufficiently established, the district court appropriately
denied the motion for judgment of acquittal.

       We review Iron Crow’s appeal of the denial of his motion for a new trial for
abuse of discretion. United States v. Stacks, 821 F.3d 1038, 1044 (8th Cir. 2016).
The motion was based on the weight of the evidence and is therefore “generally
disfavored.” Id. Granting such motions “is reserved for exceptional cases in which
the evidence preponderates heavily against the verdict.” Id. at 1045 (quotation marks
omitted). This is not such a case. It is true that Morsette changed her story a number
of times before testifying at trial. While the evidence contained inconsistencies, they

                                          -8-
were the kind of grist that juries regularly grind in finding the facts of a case, not the
type that warrants a new trial. See United States v. Clayton, 787 F.3d 929, 935–36
(8th Cir. 2015) (upholding denial of motion for new trial where jury was justified in
believing witnesses despite their prior inconsistent statements).

      D. Sentencing

      Iron Crow’s final argument is that his sentence of 240 months’ imprisonment
was substantively unreasonable. We review the substantive reasonableness of a
sentence under a deferential abuse-of-discretion standard. United States v. Robison,
759 F.3d 947, 950 (8th Cir. 2014).

        Iron Crow’s sentence was within his Guideline range of 235–293 months, and
is therefore presumed reasonable. Id. Iron Crow contends the district court gave too
little weight to the purported post-trial deterioration of his mental health, and to the
fact that Iron Crow had only one prior criminal history point. Iron Crow’s critiques
of the district court’s weighing of the various sentencing factors do not show his
sentence was substantively unreasonable. See United States v. Hall, 825 F.3d 373,
375 (8th Cir. 2016) (“[T]he mere fact that the court could have weighed the
sentencing factors differently does not amount to an abuse of discretion.”). The
district court acknowledged these mitigating circumstances at sentencing, but decided
to give more weight to the severity of Iron Crow’s conduct. See Robison, 759 F.3d
at 951 (holding sentence was substantively reasonable where “[t]he district court . .
. considered [defendant]’s arguments at sentencing and determined that they were
outweighed by the gravity of [his] conduct”). There was no abuse of discretion.

III. Conclusion

      We affirm Iron Crow’s conviction and sentence.
                     ______________________________



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