                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 16-2583
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                  RODNEY HOWARD,
                                              Appellant
                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                   (D.C. Crim. Action No. 2:15-cr-00008-001)
                    District Judge: Honorable Mark R. Hornak
                                 ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 22, 2018
                                  ______________

  Before: GREENAWAY, JR., KRAUSE, Circuit Judges, and JONES,* District Judge.

                              (Opinion Filed: April 4, 2018)
                                    ______________

                                       OPINION**
                                     ______________



       The Honorable Judge John E. Jones, United States District Court Judge for the
       *

Middle District of Pennsylvania, sitting by designation.
       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

      Appellant Rodney Howard was convicted of one count of possession with intent to

distribute more than 100 grams of heroin, in violation of 21 U.S.C § 841(a)(1). On appeal,

he contends that the District Court erred by denying his Batson challenge and suppression

motion, as well as by giving an allegedly improper jury instruction regarding consciousness

of guilt. For the reasons set forth below, we will affirm the District Court’s judgment of

conviction.

I. FACTS

      A. HOWARD’S DRUG OPERATION

      Police responded to a fatal shooting in Pittsburgh, PA, in January 2014. An

eyewitness identified Howard as the culprit, and a federal warrant was subsequently issued

for his arrest. Howard fled the scene, causing members of the Western Pennsylvania

Fugitive Task Force (“Task Force”) to search for his whereabouts. After searching for

eight months, the Task Force received information that Howard was located at a duplex on

Clairton Boulevard in Pittsburgh, PA, where he was allegedly dealing heroin.

      Task Force officers commenced surveillance of the residence on September 15,

2014. The next day, they observed a woman—later identified as Howard’s former

girlfriend Cheyanne Arrington—walk to the rear of the duplex, stop under a second-floor

window, and wait while someone from the window dropped an object to her. She then

walked to and entered a nearby restaurant, exited empty handed after a few minutes, and

eventually returned to the Clairton Boulevard duplex.



                                            2
       A day later, Task Force officers observed a man walk up to the same second-story

window, communicate with someone inside, and then enter the duplex through the front

door. A second man later arrived in a vehicle and entered, and both men eventually left

together.

       On September 18, 2014, the Task Force assembled an arrest team. A deputy marshal

knocked on the front door of the duplex and announced that the police were there. The

officers heard only silence from the vacant first-floor apartment, but they heard movement

on the second floor. The officers continued to knock until Howard appeared from a second-

floor window and yelled, “I’m coming out. I’m an innocent man.” App. 219.

       After “30 to 50 seconds” passed without Howard emerging, the officers breached

the door and entered into the duplex, where they found a staircase leading to the second-

floor apartment. App. 220. There, the Task Force team heard movements in the apartment,

which they believed were the sounds of people barricading themselves in the residence.

The deputy marshal gave commands to the people inside to open the door slowly and come

out with their hands up. Howard fully complied, and stated “don’t shoot, don’t shoot” as

he slowly emerged. App. 226-27. The Task Force officers believed that there were still

multiple people upstairs, and they continued to call up until a second person, Arrington,

descended. Both Howard and Arrington were handcuffed in the entryway and detained on

the front porch without incident.

       The officers asked Howard and Arrington whether anyone else was upstairs, but

neither responded. They therefore decided to conduct a protective sweep of the second-

floor apartment. Accordingly, they entered the upstairs apartment, but they did not find

                                            3
anyone else there – instead, in plain view on the kitchen counter, they found several bricks

of heroin, empty stamp bags, and other heroin-processing paraphernalia. Once a warrant

was issued, police officers searched the residence and seized the contraband. In all, officers

recovered approximately 4,700 bags of heroin, as well as tens of thousands of empty bags,

grinders, sifters, dust masks, and cutting agents.

       Howard was indicted in January 2015 on one count of possession with intent to

distribute more than 100 grams of heroin, in violation of 21 U.S.C § 841(a)(1). Before

trial, Howard moved to suppress the evidence. The District Court denied the motion,

crediting the Government’s position that “the information known to Task Force members

at the time was sufficient to believe another individual was in the Residence and that

someone (or someones) posed a danger to those on the arrest scene.” App. 14. Howard

then proceeded to trial.

       B. HOWARD’S BATSON CHALLENGE

       At trial, forty-five prospective jurors were originally included in the venire, four of

whom were African-American: #112, 122, 144, and 161. The pool was reduced to thirty-

two after the District Court asked various voir dire questions, and of those remaining,

twenty-eight were slated as potential jurors and four as alternates. In that process,

Prospective Juror #161 was dismissed for cause for health reasons, and Prospective Juror

#144 was seated as an alternate, with neither side challenging him for cause. Accordingly,

two African-American veniremen—Prospective Jurors #112 and #122—were eligible to

be seated as jurors.



                                              4
       Prospective Juror #112, was called by the District Court for individual voir dire

based on her answers to a questionnaire provided by the District Court. She said that she

had been arrested for drug possession; one of her sons awaited trial on homicide charges;

another son had been convicted of a drug felony; another relative had been convicted of

arson; several family members were drug addicts; and that she herself was the victim of a

crime. After answering that her experiences could “possibly” affect her ability to judge the

case, Prospective Juror #112 then stated that she could put her personal experience aside

to be an impartial juror. App. 526. On this basis, the District Court denied the prosecutor’s

motion to strike Prospective Juror #112 for cause, but invited either party to use a

peremptory strike against her. The prosecutor did so, and peremptorily struck Prospective

Juror #112.

       Conversely, Prospective Juror #122 had no affirmative answers to the District

Court’s voir dire questionnaire. He only spoke briefly to communicate, inter alia, that he

was fifty years old, that he had a high school education, that he was employed by Eat ‘N

Park, and that he was neither married nor had children. The prosecutor also used a

peremptory strike against Prospective Juror #122 on the basis that “he had an odd

demeanor” which made counsel “wonder if he was fully apprehending what was going on,

and if he would be able to deliberate with the other jurors.” App. 642. In response, Howard

raised a Batson challenge, arguing that the prosecutor’s reason was a pretext for racial

discrimination on the premise that the prosecutor had used peremptory strikes to remove

both African-American veniremen from the jury pool.



                                             5
       The District Court denied the challenge. It first found that there was a race-neutral

reason to strike Prospective Juror #112 because she “presented information about the

reality of her life experience and life history” that would have an “impact on her.” App.

646. From this, the District Court concluded that Howard could not establish a pattern of

race-based peremptory strikes because “striking the one remaining African-American . . .

[does not] in and of itself create[] the inference.” App. 649. And although the District

Court disagreed with the prosecutor’s assessment of the extent of Prospective Juror #122’s

“limitations,” the District Court noted that “the purpose of peremptory challenges are for

counsel to use their best judgment as to who should and should not sit on the jury.” App.

654. Accordingly, the District Court concluded that Howard could not make a prima facie

case under Batson.

       The District Court sua sponte supplemented its ruling two days later. Relying on

United States v. Adigun, 609 F. App’x 718 (3d Cir. 2015)1, the District Court articulated as

follows the burden that a defendant must meet to establish a prima facie case under Batson:

              [F]irst [the defendant] must show that he is a member of a
              cognizable racial group and that the prosecutor has exercised
              peremptory challenges to remove from the venire members of
              the defendant’s race.

1
 We note that Adigun is of no moment and has no persuasive value over us because “[t]he
court by tradition does not cite to its not precedential opinions as authority.” Internal
Operating Procedures of the United States Court of Appeals for the Third Circuit, 5.7 -
Citations (January 2017); see also Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 218 n.16
(3d Cir. 2017) (“[W]e are bound by our precedent and our custom not to rely on not
precedential opinions of our Court”); Chehazeh v. Att’y Gen., 666 F.3d 118, 127 n.12 (3d
Cir. 2012) (“Not precedential opinions are, by definition, not binding on this Court, and
our internal operating procedures do not allow us to cite and rely upon those opinions.”).


                                             6
              Second, the defendant is entitled to rely on the fact, as to which
              there can be no dispute, that peremptory challenges constitute
              a jury selection practice that permits those to discriminate who
              are of a mind to discriminate.

              Finally, the defendant must show that these facts and any other
              relevant circumstances raise an inference that the prosecutor
              used that practice to exclude the venire men from the petit jury
              on account of their race.

App. 869.      The District Court also added that it should “consider all relevant

circumstances” when deciding if a requisite showing has been made, including a pattern of

strikes against African-American jurors and the prosecutor’s questions and statements

during voir dire examination. App. 870. Once a prima facie case has been properly made,

the District Court continued, then “the burden shifts to the State to come forward with a

neutral explanation for challenging black jurors” to “articulate a neutral explanation related

to the particular case to be tried” and that the “trial Court will then have the duty to

determine if the defendant has established purposeful discrimination.” App. 870-71.

       Applying this standard, the District Court reiterated that Howard failed to establish

a prima facie case of discrimination. It repeated that “there was no pattern of strikes against

black jurors” and that it found “no other evidence” of race based discrimination after

reviewing the “the entire voir dire process and the questions that were asked.” App. 877,

879. It also noted that the prosecutor had fulfilled her heightened duty as an officer of the

court by striking a prospective juror that she believed could “get in the way of the defendant

getting a fair trial.” App. 879.




                                              7
       The District Court then held that, even if the prima facie case had been made, the

prosecutor provided an adequate race-neutral explanation for the strike because it was

“objectively visible [to the District Court] . . . in the courtroom,” that Prospective Juror

#122 had “a hesitation [or] a difficulty in communicating” when he was reading from the

questionnaire. App. 880. Accordingly, the District Court reaffirmed its denial of Howard’s

Batson claim.

       Howard was convicted of the drug charge in May 2016. This timely appeal

followed.

III. DISCUSSION2

       On appeal, Howard contends that the District Court erred by denying his Batson

challenge and suppression motion, as well as by issuing an allegedly improper jury

instruction regarding consciousness of guilt.

       A. BATSON CHALLENGE

       The Supreme Court has articulated the Batson test as follows:

                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.




2
  The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.

                                                8
Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v. Louisiana, 552 U.S.

476-77 (2008)). Here, Howard contends that the District Court applied the wrong legal

standard because it only considered whether the strikes against Prospective Jurors #112

and #122 constituted a pattern of strikes against African-American veniremen.

       However, we need not consider Howard’s argument regarding his prima facie case

in light of the fact that the District Court appropriately found in the alternative that the

prosecutor provided an adequate race-neutral explanation for striking each juror. We

review this determination for clear error and will affirm unless the District Court’s decision

“is completely devoid of minimum evidentiary support displaying some hue of credibility”

or “bears no rational relationship to the supportive evidentiary data.” United States v.

Uwaezhoke, 995 F.2d 388, 394 (3d Cir. 1993) (quoting Haines v. Liggett Grp., Inc., 975

F.2d 81, 92 (3d Cir. 1992)).

       As to Prospective Juror #112, the record reflects that she equivocated as to whether

she could remain impartial towards the parties before answering that she could. This, by

itself, was sufficient to give the prosecutor pause over Prospective Juror #112’s veracity

and to strike her for cause. See United States v. Mitchell, 690 F.3d 137, 141-42 (3d Cir.

2012) (“Bias that emerges in response to voir dire questioning can lead to excusal of a

juror for cause or may facilitate the parties’ intelligent exercise of peremptory strikes.”). It

therefore follows that there was more than a sufficient basis for the prosecutor to

peremptorily strike Prospective Juror #112 and to quell any challenge that the strike was

pretextual, especially in light of the District Court’s invitation to do so after it denied the

prosecutor’s for cause challenge.

                                               9
       As to Prospective Juror #122, the prosecutor’s basis for the peremptory strike was

that “he had an odd demeanor” which made counsel “wonder if he was fully apprehending

what was going on, and if he would be able to deliberate with the other jurors.” App. 642.

The District Court held that this was an adequate race-neutral reason for the strike because

it was “objectively visible [to the District Court] . . . in the courtroom” that Prospective

Juror #122 had “a hesitation [or] a difficulty in communicating” when he was reading from

the questionnaire. App. 880. That the District Court observed a degree of limitation is of

great import because “[t]he Batson standard . . . places great confidence in the ability of

trial judges to assess whether discrimination is at work based on the evidence at hand.”

Holloway v. Horn, 355 F.3d 707, 728 (3d Cir. 2004); see also Batson v. Kentucky, 476 U.S.

79, 98 n.21 (1986) (“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.”). Thus, the District Court adequately found that the prosecutor

provided an acceptable race-neutral justification for peremptorily striking Prospective

Juror #122. See United States v. Casper, 956 F.2d 416, 418 (3d Cir. 1992) (“A district

court may also choose to accept the prosecution’s explanation as race neutral where it rests

upon the prosecution’s evaluation of a venireperson’s credibility and demeanor.”).

       Accordingly, even had Howard been able to make a prima facie case of

discrimination, we hold that the prosecutor provided an adequate race-neutral explanation

for each strike, thereby properly rebutting Howard’s claim and ending our Batson inquiry.3


3
 Additionally, in his reply brief, Howard requested that this Court review the prosecutors’
notes that the District Court collected. On January 10, 2018, we requested the District
                                             10
       B. SUPPRESSION MOTION

       Howard also challenges the District Court’s denial of his suppression motion,

contending that the Task Force’s protective sweep of the second floor unit violated his

Fourth Amendment rights. “This Court reviews the District Court’s denial of a motion to

suppress for clear error as to the underlying factual findings and exercises plenary review

of the District Court’s application of the law to those facts.” United States v. Perez, 280

F.3d 318, 336 (3d Cir. 2002).

       A protective sweep is permitted, inter alia, when officers possess “articulable facts

which, taken together with the rational inferences from those facts, would warrant a

reasonably prudent officer in believing that the area to be swept harbors an individual

posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 334 (1990).

Here, the District Court relied on five discrete findings to determine that the reasonable

suspicion standard was met: (1) “Task Force members reported hearing a great deal of

noise coming from upstairs, and at least one testified that he thought there were likely

multiple people up there from the amount of noise heard”; (2) “although the Task Force

knew from the noise that people were inside, no one answered the door over the course of

thirty to fifty seconds after they knocked and announced themselves”; (3) “the Task Force

had been briefed that there was a ‘lot of activity’ at the Residence in the days leading up to

the arrest, and [a detective] had recently seen at least two other individuals (in addition to



Court to transmit the notes for our review, and, upon inspection, found no evidence of a
Batson violation. We therefore find that there is no evidence in the notes that the
prosecutors’ proffered reason for striking Prospective Juror #122 was pretextual.
                                             11
Mr. Howard and Ms. Arrington) entering and exiting the Residence”; (4) “the Task Force

members knew that the arrest warrant they had for the Defendant was for homicide and

that the weapon used in that felony was an assault rifle which had yet to be recovered”; and

(5) “although not dispositive, neither Mr. Howard nor Ms. Arrington confirmed for the

Task Force that no one else was present upstairs in the immediate aftermath of their

arrests.” App. 16-17 (footnotes and citations omitted).

       According to Howard, the Task Force officers did not have articulable facts to

support a reasonable belief that dangerous individuals remained inside, and that the

protective sweep was impermissibly conducted based on standard procedure. We disagree

on both accounts. The District Court’s factual findings justify that a “reasonable suspicion”

of danger existed, especially in light of the fact that this requirement “is a less demanding

standard than probable cause and requires a showing considerably less than preponderance

of the evidence.” United States v. White, 748 F.3d 507, 511 (3d Cir. 2014) (quoting Illinois

v. Wardlow, 528 U.S. 119, 123 (2000)); see also Sharrar v. Felsing, 128 F.3d 810, 824 (3d

Cir. 1997) (protective sweep justifiable when “officers had an articulable basis to believe

that a confederate of those apprehended was still at large or within the premises and that a

weapon previously sighted and not yet recovered might be available within the premises”),

abrogated on other grounds by Curley v. Klem, 499 F.3d 199, 209-11 (3d Cir. 2007). We

therefore agree with the District Court that the Task Force acted in light of these facts, and

not pursuant to a standard operating procedure. The sweep was done consistent with the

Fourth Amendment, and we will affirm the District Court’s denial of Howard’s suppression

motion.

                                             12
       C. JURY INSTRUCTIONS

       At trial, the District Court included a jury instruction that circumstantial proof of

evidence having been destroyed—in the form of bleached heroin and stamp bags, as well

as digital scales, being recovered from the trash—could be used to infer consciousness of

guilt. On appeal, Howard objects to this instruction, contending that it should not have

been given in light of an alleged lack of direct evidence that he destroyed heroin, stamp

bags, and digital scales in the apartment just before surrendering to the Task Force. We

review his objection to the jury instruction for abuse of discretion, see United States v.

Hoffecker, 530 F.3d 137, 156 (3d Cir. 2008), and will reverse “only when the district

court’s decision is ‘arbitrary, fanciful, or clearly unreasonable’” or “no reasonable person

would adopt the district court’s view,” United States v. Steiner, 847 F.3d 103, 110 (3d Cir.

2017) (quoting United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)).

       We reject Howard’s contention that the jury instruction’s reliance on circumstantial

evidence was sufficient to make them erroneous. Cf. United States v. Pearlstein, 576 F.2d

531, 541 (3d Cir. 1978) (“In the absence of direct evidence, however, the requisite

knowledge and intent can be demonstrated circumstantially”); United States v. Lopez-

Monzon, 850 F.3d 202, 206 (5th Cir. 2017) (“The necessary knowledge and intent can be

proved by circumstantial evidence.” (quoting United States v. Rodriguez, 993 F.2d 1170,

1175 (5th Cir. 1993))); United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008) (“[T]he

government may defeat a sufficiency-of-the-evidence challenge on circumstantial evidence

alone.”). Here, there was adequate evidence of Howard’s consciousness of guilt, including

testimony from the prosecution’s forensic scientist that Howard’s finger or palm prints—

                                            13
and not Arrington’s—were found on cups and containers that contained the stamp bags or

heroin residue as well as testimony from a drug-trafficking expert that Howard’s behavior

was consistent with an attempt to destroy evidence.4 The District Court therefore did not

abuse its discretion by giving the jury instruction.5

IV. CONCLUSION

       For the reasons above, we will affirm the District Court’s judgment of conviction.




4
  Howard unconvincingly relies on United States v. Hawkes, 753 F.2d 355 (4th Cir. 1985),
as “the path to reversal” in this case. Appellant Br. at 65. Unlike here, in Hawkes, the
Fourth Circuit held that the trial court erred in instructing the jury regarding intentional
flight and consciousness of guilt because there was only tenuous circumstantial evidence
that the defendant had fled the crime. 753 F.2d at 358. Hawkes is therefore inapposite.
5
 Howard also contends that the District Court’s refusal to apply an obstruction of justice
sentencing enhancement evidences the ambivalent nature of the circumstantial evidence.
Such an enhancement, however, is applied when defendants “destroy[] or conceal[] . . .
evidence that is material to an official investigation or judicial proceeding.” U.S.
Sentencing Guidelines Manual § 3C1.1 cmt. n.4(D). The District Court did not apply the
enhancement because the ineffectual attempts to destroy or discard the evidence did not
impact the investigation or prosecution and therefore has no bearing on the appropriateness
of the consciousness of guilt instruction.
                                             14
