United States of America v. ANTHONY T. ALSTON a/k/a Anthony Golson Anthony T. Alston

Judge Scirica completed his term as Chief Judge on May 4, 2010.*
Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth**
Circuit Court of Appeals, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4034
UNITED STATES OF AMERICA
v.
ANTHONY T. ALSTON
a/k/a Anthony Golson
Anthony T. Alston,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 04-cr-00515)
District Judge: Honorable Louis H. Pollak
Submitted Under Third Circuit LAR 34.1(a)
April 20, 2010
Before: SCIRICA , AMBRO, and ALARCÓN , Circuit Judges* **
(Opinion filed: May 13, 2010)
OPINION

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction1
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
AMBRO, Circuit Judge
A jury found Anthony Alston guilty of interfering with interstate commerce by
robbery (in violation of 18 U.S.C. § 1951), carrying and using a firearm during a crime of
violence (in violation of 18 U.S.C. § 924(c)), and possessing a firearm as a convicted
felon (in violation of 18 U.S.C. § 922(g)). The District Court sentenced him to 30 years’
imprisonment. Alston now challenges his conviction and sentence. We affirm both.1
I.
This case arises from a robbery of a jewelry store, owned by Alex Patlakh, in
December 2003. Patlakh was serving Alston at the store counter when a third man
buzzed to enter the store. This third man entered and pointed a gun at Patlakh, but fled
when Patlakh told him the police had been notified. Patlakh then accused Alston of
knowing the third man, pulled out a gun, and ordered Alston to the floor. According to
Patlakh, Alston grabbed money from the counter and started shooting at Patlakh, striking
him in the arm. Patlakh also fired his gun, injuring Alston. When Patlakh ran out of
ammunition, he ran to the back of the store to get another gun. Alston followed and the
two continued fighting.
The police arrived to find Alston throwing money out of his pockets, and Patlakh
holding a gun. In Alston’s pockets, the police found a phone bill addressed to Patlakh

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Alston’s other two contentions—that the jury instruction on interstate commerce was2
erroneous, and that his Fifth and Sixth Amendment rights were violated when the District
Court sentenced at the mandatory minimum based on facts not found by a jury—are
raised only to preserve them for possible Supreme Court review. He concedes they are
foreclosed by, respectively, United States v. Urban, 404 F.3d 754 (3d Cir. 2005), and
Harris v. United States, 536 U.S. 545 (2002). See also Almendarez-Torres v. United
States, 523 U.S. 224 (1998). Therefore, we do not discuss these claims further.
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and over $650 cash. In a trash can at the back of the store, they found a nine-millimeter
gun that had been stolen from Alston’s landlord. The police later determined that three of
the cartridge cases found at the scene came from this gun.
At trial, Alston testified that he was an innocent bystander, caught in the crossfire
between Patlakh and the third man. Alston claimed he did not have a gun at the store, did
not take money from the counter, and that the cash found in his pockets was his. As for
the money he was throwing out of his pockets when the police arrived, he claimed that
Patlakh had stuffed it into Alston’s jacket to frame him. The jury found him guilty.
II.
Alston makes three primary arguments on appeal: (1) the Government exercised
peremptory challenges on the basis of race; (2) a witness’s improper reference to Alston’s
parole status warranted a mistrial; and (3) the District Court abused its discretion in
excluding evidence that the gun used by Patlakh had been stolen. We address each in
turn.2
A.
Alston argues that the Government struck potential jurors from the jury pool on

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“[A]ny issue regarding the existence of a prima facie showing of discrimination3
becomes moot where, as in this case, the prosecutor offers an explanation of the
peremptory challenge before the district court has expressly addressed the prima facie
issue.” United States v. Uwaezhoke, 995 F.2d 388, 392 (3d Cir. 1993) (alteration and
quotation marks omitted).
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account of their race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Specifically,
Alston challenges the strikes of Jurors 38 (a black female) and 136 (a black male). (App.
120, 233.)
Under the three-step Batson procedure, (1) a defendant can establish a prima facie
case for unlawful discrimination by pointing to evidence that gives rise to an inference
thereof; (2) the burden shifts to the Government to state race-neutral reasons for
exercising its strikes; and (3) the District Court must then decide whether the defendant
has shown purposeful discrimination. Batson, 476 U.S. at 96–98.
Here, the Court bypassed step one and asked the Government to state its grounds
for exercising the strikes. (App. 233.) The Government explained that it struck Juror 383
because she frowned throughout jury selection and appeared to give the prosecutor “a
dirty look” when he made eye contact with her. (App. 234.) It struck Juror 136 because
he had not “crack[ed] a smile” or chatted with the other jurors, and was staring at the
prosecutor. (Id.) The Court credited these explanations, ruling that it was “satisfied with
[the prosecutor]’s recital as to the Jury.” (App. 235.)
Alston argues that the District Court was required to make specific findings
concerning the jurors’ demeanors, but failed to do so. However, it is evident the Court

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Alston’s reliance on Snyder v. Louisiana, 552 U.S. 472 (2008), is unpersuasive.4
There, the Government gave two race-neutral reasons for striking a juror—demeanor and
student-teaching obligations—and the trial court denied the Batson claim without
explanation. Id. at 478–79. The Supreme Court reversed because it could not determine
from the record which of the two neutral reasons the trial court accepted. See id. at 479
(because “the record d[id] not show that the trial judge actually made a determination
concerning [the juror’s] demeanor,” the Court could not “presume that the trial judge
credited the prosecutor’s assertion that [the juror] was nervous”).
Unlike in Snyder, we properly may “presume that the trial judge credited the
prosecutor’s assertion” regarding the jurors’ demeanors, because demeanor was the only
race-neutral reason given. Id. (Further, we note that defense counsel in Snyder disputed
both of the Government’s explanations, id. at 478, whereas here defense counsel did not
dispute the prosecutor’s explanation at all.)
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credited the prosecutor’s explanation as to both jurors, and we give deference to this
decision. See Hernandez v. New York, 500 U.S. 352, 365 (1991) (“[E]valuation of the
prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial
judge’s province.”) (internal quotation marks and citation omitted). Before the District
Court, Alston did not challenge the Government’s race-neutral reasons. He bore the
burden of persuading the Court that the Government’s reasons were pretextual, yet he
made no attempt to do so (and does not on appeal). In this context—where one race-
neutral reason was given and the defense did not argue the reason was pretextual—we
cannot say the Court erred in failing to comment specifically on the jurors’ demeanors.4
Thus, we affirm the Court’s rejection of Alston’s Batson claim.
B.
The District Court ruled in limine that the Government could not introduce at trial
evidence that Alston was on parole when he was arrested for the robbery. However, a

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6
Government witness referenced Alston’s parole status during her testimony, which Alston
argues warranted a mistrial. “We review the denial of a motion for a mistrial based on a
witness’s allegedly prejudicial comments for an abuse of discretion.” United States v.
Lore, 430 F.3d 190, 207 (3d Cir. 2005).
The improper comment came during the Government’s direct examination of
Alston’s landlord, from whom the gun used in the robbery was stolen:
Q. And how did -- how was it that [the defendant] became a tenant of
yours? Can you just describe what happened?
A. Uhm, let’s see, during the time he was working at Spaghetti Warehouse
he was saying that he was on parole or something like that, he had --
Defense Counsel: Objection, Your Honor.
The Witness: I’m sorry.
Defense Counsel: Can I see the Court at sidebar?
The Court: Jury will disregard that statement. We have no
foundation anyhow[,] so it’s to be disregarded.
(App. 517.) At the end of the direct examination, defense counsel asked for a conference
at sidebar and moved for a mistrial based on the witness’s statement. (App. 527–28.)
The Court denied the motion, reasoning that the Government did not intend to elicit the
testimony, the response was an “unfortunate consequence,” a curative instruction had
been given, and the statement did not taint the entire case. (App. 529–30.)
Three factors guide our review: “(1) whether [the witness’s] remarks were
pronounced and persistent, creating a likelihood they would mislead and prejudice the
jury; (2) the strength of the other evidence; and (3) curative action taken by the district
court.” Lore, 430 F.3d at 207. Applying these factors, we have no trouble concluding the

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Alston’s brief to us asserts the District Court prohibited him from introducing this5
evidence through a “testifying ATF agent,” but the record shows the defense attempted to
introduce the testimony through Muto. (App. 606.)
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landlord’s remark did not warrant a mistrial. First, the remark was not “pronounced and
persistent,” but instead a singular reference. Second, the evidence against Alston was
strong: a gun used to fire several shots during the robbery had been stolen from Alston’s
landlord and was found in a trash can in the back of the store (where Alston admits the
third man did not go); Alston was seen throwing money from his pockets when the police
arrived; and the police found Patlakh’s telephone bill in Alston’s pockets, along with a
large amount of cash. Moreover, the jury was already aware that Alston had a criminal
history, as it was an element of the felon-in-possession charge. Third, the Court
immediately gave a curative instruction, and noted that the witness’s statement was
without foundation. Thus, we easily conclude the Court did not abuse its discretion in
denying a mistrial.
C.
At trial, Patlakh testified that he purchased his gun about ten years earlier from a
gun store in Philadelphia. Alston sought to present evidence, through testimony from the
purported registered owner of the gun, a Mr. Muto, that this gun had been stolen in 1996
from Muto’s truck. The Court did not allow the evidence, a ruling we review for abuse5
of discretion. See United States v. Saada, 212 F.3d 210, 220 (3d Cir. 2000).
On appeal, Alston argues that this testimony would have (1) established Patlakh’s

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motive to lie about what happened in the jewelry store (to avoid prosecution for
possession of a stolen gun), and (2) supported “Mr. Alston’s description of [Patlakh] as
an aggressive vigilante who had attacked Mr. Alston for no reason.” (Appellant’s Br.
25.) We do not agree, as the links needed to reach these conclusions are too tenuous. As
the Government pointed out at trial, Muto did not know who had stolen his gun or what
happened to the gun after it was stolen. (App. 608.) Accordingly, even if Muto had been
permitted to testify that his gun was stolen, that testimony would not have established that
Patlakh stole the gun or that he knew the gun was stolen. (App. 609.) Moreover, Alston
has not explained how Muto’s alleged possession of a stolen gun supports his theory that
Patlakh was an “aggressive vigilante.” Thus, we cannot conclude the Court abused its
discretion in excluding this evidence.
* * * * *
For these reasons, we affirm Alston’s conviction and sentence.

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