                                                       [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-15614         ELEVENTH CIRCUIT
                                                      FEB 16, 2012
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

                D. C. Docket No. 1:09-cr-00063-JRH-WLB-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

     versus

HENRY MAX RUSHEN,


                                                       Defendant-Appellant.

              _________________________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
              _________________________________________

                            (February 16, 2012)

Before TJOFLAT, EDMONDSON, and CARNES, Circuit Judges.


PER CURIAM:
       Henry Max Rushen appeals his convictions and 144-month total sentence

for armed robbery of a federally insured credit union, 18 U.S.C. § 2113(a), (d), and

carrying, using, and brandishing a firearm during a crime of violence, 18 U.S.C. §

924(c)(1)(A)(ii). No reversible error has been shown; we affirm.

       We first address Rushen’s argument that the district court erred in denying

his Batson1 challenge to the government’s use of peremptory strikes against four

African-American venire members.2 We review for clear error a district court’s

determination that peremptory strikes were exercised in a race-neutral way.

United States v. Edouard, 485 F.3d 1324, 1341 (11th Cir. 2007).

       Under the three-step Batson analysis, (1) the party objecting to the strike

“must make a prima facie showing that the peremptory challenge is exercised on

the basis of race”;3 (2) the striking party then has the burden to “articulate a

race-neutral explanation for striking the jurors in question”; and (3) the “court

must determine whether the objector has carried its burden of proving purposeful


       1
           Batson v. Kentucky, 106 S.Ct. 1712 (1986).
       2
        At trial, Rushen objected to five of the government’s peremptory strikes. Because he
challenges only four of these strikes on appeal, he has abandoned his challenge to the
government’s fifth strike. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003).
       3
         Because the district court ruled on the ultimate issue of intentional discrimination, the
issue of whether Rushen established a prima facie case is moot. See United States v. Houston,
456 F.3d 1328, 1336 (11th Cir. 2006).

                                                 2
discrimination.” United States v. Allen-Brown, 243 F.3d 1293, 1297 (11th Cir.

2001). Any plausible reason can satisfy the striking party’s burden, including

reasons deemed “superstitious, silly, or trivial,” as long as the reason is race-

neutral. United States v. Walker, 490 F.3d 1282, 1293 (11th Cir. 2007). “[I]f the

prosecutor’s stated reason for striking black venire members applies with equal

force to white venire members, and the similarly situated white members are not

struck, that is evidence tending to prove purposeful discrimination at Batson’s

third step.” United States v. Houston, 456 F.3d 1328, 1338 (11th Cir. 2006).

      In response to Rushen’s Batson challenge, the government explained that it

struck the four venire members because they watched reality legal television

shows such as “Judge Mathis,” “Judge Hatchett,” and “the People’s Court,” which

the government distinguished from fictional legal shows such as “CSI” and “Law

and Order.” In addition, the government explained that it struck one of the four

venire members because she had worked for the Internal Revenue Service (“IRS”),

and another because she appeared disinterested in the proceedings. The district

court determined that the government’s proffered reasons were race-neutral.

      Rushen argues that the government’s reason for striking these venire

members was pretextual because it applied with equal force to six white venire




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members who also watched legal television shows but who were not struck.4 We

will assume -- without deciding -- that Rushen preserved this argument by

sufficiently raising it below.5 Although these six venire members watched legal

television shows, they stated that they watched fictional legal shows, and did not

specify that they watched “Judge Mathis,” “Judge Hatchett,” or “the People’s

Court.” Thus, because these white venire members were not similarly situated to

the stricken venire members, Rushen fails to demonstrate evidence of purposeful

discrimination. See Houston, 456 F.3d at 1338.

       Next, Rushen challenges the admission of evidence of his cocaine use on

the morning of the robbery under Federal Rules of Evidence 404(b) and 403.

Because Rushen failed to object contemporaneously to the evidentiary ruling at

trial, our review is only for plain error. See United States v. Turner, 474 F.3d

1265, 1275 (11th Cir. 2007).




       4
         On appeal, Rushen argues that a total of eight white venire members watched legal
television shows. But because he failed to identify two of these venire members below, we will
not consider them part of his argument. See Houston, 456 F.3d at 1338. For the same reason, we
also will not consider Rushen’s argument, raised for the first time on appeal, that the
government’s reason for striking the former IRS employee applied with equal force to a white
government employee who was not struck. See id.
       5
        Although Rushen did not raise this basis for his Batson objection at trial, he did so in his
motion for new trial.

                                                 4
      Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” Fed.R.Evid. 404(b). But evidence of other uncharged crimes may be

admissible if it “pertain[s] to the chain of events explaining the context, motive,

and set-up of the crime,” and is “linked in time and circumstances with the

charged crime, or forms an integral and natural part of an account of the crime, or

is necessary to complete the story of the crime for the jury.” Edouard, 485 F.3d at

1344 (alteration omitted). Even if admissible under Rule 404(b), evidence must

still satisfy the admissibility requirements of Rule 403. See id.

      Under Rule 403, otherwise relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury . . . .” Fed.R.Evid. 403. “But ‘Rule

403 is an extraordinary remedy, which should be used only sparingly,’ and the

balance ‘should be struck in favor of admissibility.’” Edouard, 485 F.3d at 1344

n.8 (alterations omitted).

      We see no plain error in the district court’s determination that evidence of

Rushen’s cocaine use was admissible. The evidence was necessary to complete

the story of the crime because it rebutted Rushen’s arguments that he had been too

tired to rob the credit union after working the night shift and that he did not need

                                          5
money because he had just been paid that morning. Thus, the evidence was

admissible under Rule 404(b). See Edouard, 485 F.3d at 1344. Moreover, the

highly probative value of this evidence outweighed its prejudicial impact such that

the evidence was also admissible under Rule 403.

      Rushen also argues that the green latex gloves -- obtained from his

employer as demonstrative evidence -- should have been excluded under Rule 403

because they had the potential to confuse the jury and were unfairly prejudicial.

Because Rushen challenged the district court’s evidentiary ruling at trial, we

review it for abuse of discretion. United States v. Drury, 396 F.3d 1303, 1315

(11th Cir. 2005).

      Two robbery witnesses described the robber as wearing green gloves similar

to those obtained from Rushen’s employer. Thus, the gloves were probative of

Rushen’s identity as the robber. In addition, the court minimized the risk of jury

confusion by issuing a limiting instruction. Based on this record, we cannot

conclude that the district court abused its discretion in admitting the gloves into

evidence.

      We also reject Rushen’s claim that there was insufficient evidence for the

jury to conclude that he was the man who robbed the credit union. We review

challenges to the sufficiency of the evidence de novo, viewing the evidence in the

                                          6
light most favorable to the government. United States v. Jones, 601 F.3d 1247,

1267 (11th Cir. 2010). Several witnesses identified Rushen as the robber. Two

robbery witnesses identified Rushen out of a photographic lineup as the robber

and a third witness picked Rushen out of a lineup as the man she saw pulling out

of the credit union parking lot just after the robbery. Five other witnesses, each of

whom had known Rushen for years, also identified Rushen as the robber based on

a still photograph from the credit union’s surveillance video. In addition, three of

Rushen’s fellow inmates testified that Rushen had confessed to committing the

robbery while he was in jail awaiting trial. This evidence was sufficient to support

the jury’s verdict.

      We now address Rushen’s sentencing argument. He argues that the district

court erred in applying a two-level enhancement for obstruction of justice,

pursuant to U.S.S.G. § 3C1.1. “When a district court imposes an enhancement for

obstruction of justice, [we] review[] the district court’s factual findings for clear

error and its application of the sentencing guidelines to those facts de novo.”

United States v. Uscinski, 369 F.3d 1243, 1246 (11th Cir. 2004).

      Under section 3C1.1, a two-level sentencing enhancement is required when

a defendant “provid[ed] a materially false statement to a law enforcement officer

that significantly obstructed or impeded the official investigation or prosecution of

                                           7
the instant offense[.]” U.S.S.G. § 3C1.1, comment. (n.4(g)). To establish that a

defendant’s false statement significantly obstructed or impeded the investigation

or prosecution, “the government must present evidence of what action it took that

it would not have taken” but for the defendant’s untruthfulness. United States v.

Banks, 347 F.3d 1266, 1271 (11th Cir. 2003).

      We conclude that the obstruction of justice enhancement was warranted in

this case. Rushen provided a typed alibi statement to police, in which he denied

his involvement in the robbery and detailed his alleged whereabouts on the day of

the robbery. The district court concluded -- and we agree -- that the Rushen’s alibi

statement was false and material.

      Although the district court did not make specific factual findings about

whether Rushen’s alibi statement “significantly obstructed or impeded” the

investigation, such findings are unnecessary when, as in this case, the court “both

adopts a presentence investigation report [(“PSI”)] that contains specific findings

and the defendant fails to request that the court make more specific findings.”

United States v. Wayerski, 624 F.3d 1342, 1352 (11th Cir. 2010). Moreover,

when the record reflects clearly the basis for the enhancement, we need not

remand to the district court for additional findings. Uscinski, 369 F.3d at 1246

(concluding that a section 3C1.1 enhancement was warranted when the defendant

                                         8
“did not simply deny his guilt, but instead concocted a false, exculpatory story that

misled the government”).

      Here, the record establishes that the police spent significant investigation

resources conducting interviews at the four local convenience stores listed in

Rushen’s alibi statement and reviewing a surveillance video from one of the

stores. It also called two witnesses for the sole purpose of rebutting Rushen’s alibi

statement, spending prosecution resources it would not otherwise have had to

spend.

      AFFIRMED.




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