                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4744



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RICKY CHASE HOBBS,

                                            Defendant - Appellant.



                            No. 05-4745



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JEREMY KRATZER,

                                            Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-04-11)


Submitted:   July 6, 2006                  Decided:   July 19, 2006


Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Nora H. Hargrove, Wilmington, North Carolina, for Appellant Ricky
Chase Hobbs; Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C.,
Wilmington, North Carolina, for Appellant Jeremy Kratzer. Wan J.
Kim, Assistant Attorney General, Jessica Dunsay Silver, Angela M.
Miller, UNITED STATES DEPARTMENT OF JUSTICE, Civil Rights Division,
Appellate Section, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




                                2
PER CURIAM:

     A jury convicted Ricky Chase Hobbs and Jeremy Kratzer of

conspiring to drive an African-American family to leave town in

violation of 18 U.S.C. § 241 (2000).                  Hobbs and Kratzer appeal,

arguing that the district court made several reversible errors.

After carefully reviewing the record in this case, we find no

reversible error.          Accordingly, we affirm.

     The African-American Edwards family moved to Nine Mile -- a

previously predominantly Caucasian neighborhood in North Carolina

-- in 1999.     Shortly after the family’s arrival, Hobbs and Kratzer

participated     in    conversations       with      a     group     of   young   people

discussing strategies for intimidating the Edwards family so that

they would leave Nine Mile.              Hobbs, Kratzer, and many of their

companions would often shout racial epithets and throw trash while

driving past the Edwards house.

     In addition, Hobbs and Kratzer talked with their companions

about hanging a noose on the Edwards’s doorknob, putting a dead

raccoon or possum on their doorstep, and placing a burning cross in

their yard.         Kratzer and Hobbs even discussed the best way to

construct   a    burning      cross:     nailing     together        two-by-fours   and

dousing   them      with    gasoline.          In   the    weeks     following    these

conversations, a burning cross appeared in the Edwards’s backyard,

and members of the conspiracy hung a noose from the Edwards’s

doorknob,     and    threw    a   dead    raccoon         in   the   Edwards’s    yard.


                                           3
Frightened by these events, the Edwards family eventually moved

away from Nine Mile.

      At trial, co-conspirators Joshua Hancock and Philip Foy both

testified that, in their minds, they had reached an understanding

with both Hobbs and Kratzer to intimidate the Edwards family.               The

jury convicted Hobbs and Kratzer of violating 18 U.S.C. § 241, and

the court sentenced each to 21 months’ imprisonment.

      Hobbs and Kratzer argue that the evidence presented at trial

was   insufficient    to   support     their   convictions.       Viewing   the

evidence in the light most favorable to the Government, we must

affirm the convictions if “any rational trier of fact could have

found the elements of the crime beyond a reasonable doubt.” United

States v. Uzenski, 434 F.3d 690, 700 (4th Cir. 2006).                Here, the

government    presented       ample    evidence     --    both    direct    and

circumstantial   --    that    Hobbs    and    Kratzer   were    members   of    a

conspiracy to intimidate the Edwards family into leaving Nine Mile.

Accordingly, the district court did not err when it denied the

defendants’ motion for a directed verdict of acquittal.

      Next, Hobbs and Kratzer assert that they are entitled to a new

trial because the prosecutor improperly commented on their failure

to testify.   During closing argument, counsel for the Government

stated, “The defense hasn’t called a single witness to refute the

government witnesses’ testimony about these conversations.”                     We

have recognized on numerous occasions that a prosecutor’s mention


                                        4
of a defendant’s failure to refute evidence does not violate a

defendant’s right against self-incrimination.           See, e.g., United

States v. Francis, 82 F.3d 77, 78 (4th Cir. 1996); United States v.

Percy, 765 F.2d 1199, 1204 (4th Cir. 1985).             In our view, the

prosecutor’s comment in this case clearly was not “manifestly

intended to be [] or . . . of such a character that the jury would

naturally and necessarily take it to be a comment of the failure of

the accused to testify.” United States v. Anderson, 481 F.2d 685,

701 (4th Cir. 1973).       Thus, we reject this argument.

     Hobbs and Kratzer additionally contend that they are entitled

to a new trial because of a prosecution comment suggesting that the

defendants had admitted guilt.            During closing argument, the

prosecutor   said,   “You    heard   another   contention    from   counsel,

something along the lines of other people might be just as guilty

as my client.”     Hobbs and Kratzer objected, pointing out that they

had not admitted any guilt.          The district court sustained the

objection, and counsel for the Government then said, “let me

correct the misimpression, if I left you with one.                  I’m not

suggesting that counsel has argued that their clients aren’t

guilty. . . . They’ve made very forceful arguments in favor of

their   client.”     The    Government    concedes   that   the   prosecutor

mischaracterized defense counsel’s argument.           However, we cannot

find that this minor error “so infected the trial with unfairness

as to make the resulting conviction a denial of due process.”


                                      5
United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993).              As a

result, Hobbs and Kratzer do not qualify for a new trial.

      Hobbs and Kratzer also challenge the district court’s decision

sustaining the Government’s Batson challenge to the defense’s use

of a peremptory challenge during jury selection.              Batson analysis

proceeds in three steps: 1) the party raising the challenge must

make a prima facie showing of racial discrimination in the jury

selection process, then 2) the burden shifts to the challenged

party to articulate a race-neutral reason for the strike, and 3)

the court must determine whether the challenging party has carried

its burden of showing that unlawful discrimination played a role in

the decision to strike a potential juror.         See Batson v. Kentucky,

476 U.S. 79, 96-98 (1986); see also Georgia v. McCollum, 505 U.S.

42,   59   (1992)   (holding   that   Batson   applies   to    a   defendant’s

decision to strike potential jurors).

      Here, the Government raised a Batson challenge after defense

counsel struck a potential alternate juror; the Government noted

that the defense had “struck every single black member of the

pool.”     The court replied, “I know that,” and then inquired into

defense counsel’s rationale for striking four jurors during the

course of jury selection and, finding the defense explanation

unsatisfactory, ultimately sustained the Government’s challenge.

Hobbs and Kratzer maintain that, because the record does not

indicate the race of prospective jurors, the Government could not


                                      6
have made a prima facie case that the defense used its peremptory

challenges in a racially discriminatory manner.

     In the Batson context, we give “great deference” to a district

court’s findings “regarding whether a prima facie showing has been

made.”    United States v. Lane, 866 F.2d 103, 105 (4th Cir. 1989).

In this case, the district court found that the Government had made

out a prima facie case that the defense was using its peremptory

challenges in a racially discriminatory fashion; the court further

found that the defense was unable to offer a satisfactory “race-

neutral explanation” for its decision to strike the potential

jurors in question.     Hernandez v. New York, 500 U.S. 352, 359

(1992).   When a district court has reached the second step in the

Batson analysis -- requiring the challenged party to provide a

race-neutral explanation -- “the preliminary issue of whether             the

defendant had made a prima facie showing becomes moot.”            Id.; see

also Lane, 866 F.2d at 105 (“[T]his court will not address the

question of whether the [challenging party] established a prima

facie showing to satisfy Batson where the [challenged party]

articulated reasons for his strikes.”). Because the district court

reached the second step of the Batson analysis, we need not decide

whether    the   Government   made       out   a   prima   facie   case   of

discrimination.

     Finally, Hobbs and Kratzer argue that the district court erred

in allowing Joshua Hancock to testify that, in his mind, he had an


                                     7
understanding with both Hobbs and Kratzer “that things should be

done to try and scare the Edwards family.”       Hobbs and Kratzer

assert that this testimony was a legal opinion bearing on the

ultimate issue for the jury to decide.   This argument has no merit.

The Federal Rules of Evidence permit the admission of lay opinion

testimony that is “rationally based on the perception of the

witness,”    Fed. R. Evid. 701, even if it “embraces an ultimate

issue to be decided by the trier of fact.” Fed. R. Evid. 704(a).

Here, Hancock’s testimony described whether, in his mind, he had an

understanding with Hobbs and Kratzer to intimidate the Edwards

family.     This testimony was highly relevant and was admissible

under the federal rules.    Thus, the district court did not abuse

its discretion in admitting Hancock’s testimony.

     For the foregoing reasons, the judgment of the district court

is

                                                          AFFIRMED.




                                 8
