United States of America v. Kevin C. Brown

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2491
United States of America,
Plaintiff-Appellee,
v.
Kevin C. Brown,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:00-CR-98-RL--Rudy Lozano, Judge.
Argued February 15, 2002--Decided May 10, 2002
Before Rovner, Diane P. Wood, and Evans,
Circuit Judges.
Diane P. Wood, Circuit Judge. After
threatening his ex-girlfriend and her
brother with a fully loaded assault
rifle, Kevin Brown was convicted of being
a felon in possession of a firearm and
ammunition and sentenced to 87 months’
imprisonment. On appeal, he challenges
the federal prosecutor’s use of
peremptory challenges to strike three
African-American women, the district
court’s refusal to admit evidence that a
witness had declined to take a voice
stress test, and the government’s failure
to turn over to the defense in discovery
a firearms trace report. We find no fault
with any of these actions and therefore
affirm.
I
In 1996, Brown’s girlfriend, Joilyn
Moore, gave birth to their son Deantaye.
The two soon broke up and maintained only
infrequent contact. In early 2000, Brown
moved in with his mother, who lived
across the street from Joilyn, and he
began to see Deantaye again. On February
27, 2000, Brown cut Deantaye’s hair at
the home of Joilyn’s mother. At that
time, Joilyn asked Brown if he would come
over the next day and take a prescription
to be filled for Deantaye. Later in the

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evening, Joilyn returned to her apartment
alone.
That night, the door buzzer for Joilyn’s
apartment rang several times, but Joilyn
ignored it because she was not expecting
anyone. Minutes later, Brown began
banging on her door and said he was there
to pick up Deantaye’s prescription.
Joilyn refused to open the door and told
him the prescription was at her mother’s
house. Brown accused Joilyn of lying,
demanded to know who else was in the
apartment, and eventually stormed off
after warning her that she had better not
come outside.
Joilyn (who had no telephone) went to a
neighbor’s apartment to alert her
brother, Kelly Moore, to the situation.
When Kelly arrived in his Suburban,
Joilyn met him at his car and started to
tell him what had happened. At that
point, Brown drove through the apartment
alley and got out of his car. Kelly told
Joilyn to hide behind his Suburban and he
and Brown began to argue. Kelly testified
that Brown reached into his car and
displayed a rifle covered by a sheet. In
response, Kelly pulled back his shirt to
reveal a 9 mm. pistol, which he was
licensed to carry. After a few tense
minutes of negotiation, the men agreed to
put their weapons in their cars and fight
hand-to-hand. When Kelly ran at Brown,
Brown rushed to his car and called
someone on a cell phone. With Brown thus
distracted, Joilyn ran into her apartment
building and called her aunt, who in turn
notified the police.
When Officer John Basaldua arrived at
the scene, he saw a black male sitting in
the Suburban and Brown standing next to
his car. At that time, Brown bolted.
After a two block chase and brief
struggle, Basaldua apprehended Brown.
Thomas Pawlak, the second officer on
scene, was following half a block behind
and witnessed Basaldua activate his siren
and turn down the alley. He also saw
Kelly standing next to the Suburban and
Brown’s car, parked about 10 yards away.
Kelly flagged down Pawlak and told him
that Brown had threatened him with an
assault rifle. The passenger window of
Brown’s car was rolled down, and a fully
loaded assault rifle lay on the front
seat.

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II
Brown’s first challenge is to the
government’s decision to exercise three
of its six peremptory challenges to
exclude African-American women. As to
Camisha Lane, the Assistant U.S. Attorney
alleged that he excluded her because she
was an assistant school teacher and the
youngest juror seated. The second
African-American female, Dorothy
Robinson, was initially challenged for
cause both because her husband had been
convicted in the 1970’s of a crime
involving a firearm and because she
failed to disclose that fact on a written
questionnaire. The third peremptory was
used to strike Betty Hart. Hart had
testified as a trial witness for her
mother, who was acquitted of killing
Hart’s stepfather. The prosecutor also
noted that Hart had testified against a
former attorney who had defrauded her in
a civil case. The district court accepted
all three explanations as neutral and
nonbiased. The seated jury consisted of
five Caucasian females, four Caucasian
males, two African-American males, and
one Asian-American male.
The prosecution may not use a peremptory
challenge to strike a juror on the basis
of her race. Batson v. Kentucky, 476 U.S.
79, 89 (1986). To succeed on a Batson
claim, the defendant must establish a
prima facie case that a challenge has
been used to exclude a juror based on
race. If the prosecutor then articulates
a race-neutral explanation, the trial
court will permit the strike unless the
defendant establishes that the proffered
reason is pretextual. Id. at 98. The
prosecutor’s race-neutral explanation
must be clear and reasonably specific to
persuade the district court. Purkett v.
Elem, 514 U.S. 765, 768 (1995). We review
the district court’s decision for clear
error. Hernandez v. New York, 500 U.S.
352, 369 (1991).
The government struck Lane because she
was a teacher. This court has previously
upheld the striking of teachers, who are
often thought to be especially
sympathetic to defendants. United States
v. Smallwood, 188 F.3d 905, 915 (7th Cir.
1999); United States v. Roberts, 163 F.3d
998, 998 (7th Cir. 1998). In Roberts,
this court upheld an explanation that an
African-American juror was excluded for

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being a teacher even though a white
teacher served on the jury because there
was no evidence that defense counsel
called that fact to the district court’s
attention. Roberts, 163 F.3d at 999. Here
the Assistant U.S. Attorney specifically
proffered that he would strike any
teacher in the venire and no teachers
were ultimately seated as jurors. In the
face of this precedent, we see no clear
error in the district court’s acceptance
of the government’s explanation.
The reasons for striking Robinson and
Hart appear to us not just race-neutral
but close to the threshold necessary to
strike for cause. Brown is correct that
Robinson’s husband’s firearms conviction
occurred over 20 years ago and that she
felt the punishment was fair, but we have
no trouble accepting that the prosecutor
legitimately feared this past experience
could nonetheless color her views. The
belief that Hart might be pro-defendant
because she had testified for the defense
at her mother’s murder trial seems
ifanything even more justified. Since
these explanations are race-neutral and
far more than mildly persuasive, we
reject Brown’s Batson challenge.
III
At trial, Brown sought to cross-examine
Kelly about his failure to appear for a
scheduled voice stress test with
Detective Cheryl Cooper. The district
court sustained the prosecution’s
objection to this line of questioning,
ruling that evidence of Kelly’s refusal
to take the test was irrelevant and that
its prejudicial aspect would outweigh any
probative value.
Brown contends that the district court
abused its discretion by preventing him
from informing the jury, through either
cross-examination of Kelly or Cooper’s
testimony, of Kelly’s failure to appear
for the test. While this court has had no
occasion to consider the use of a voice
stress test in the criminal setting, such
tests resemble a polygraph. Veazey v.
Communications & Cable of Chicago, Ltd.,
194 F.3d 850, 859 n.8 (7th Cir. 1999). A
trial court’s decision on whether to
admit a witness’s polygraph results is
granted considerable deference. United
States v. Lea, 249 F.3d 632, 638 (7th
Cir. 2001). Furthermore, a defendant’s

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refusal to take a polygraph rarely is
considered probative evidence of deceit
at trial or sentencing. United States v.
Pitz, 2 F.3d 723, 730 (7th Cir. 1993).
Results of polygraphs or voice stress
analyzers generally are peripheral to the
core issues of a case so long as the
defendant has other opportunities to
impeach the witness in question. United
States v. Pulido, 69 F.3d 192, 205 (7th
Cir. 1995). Under our deferential abuse
of discretion standard on evidentiary
rulings, see United States v. McCulley,
178 F.3d 872, 875 (7th Cir. 1999), the
district court’s Rule 403 balancing
analysis is easily sustainable. Voice
stress tests are if anything less
reliable than polygraphs, and the
evidence was simply that Kelly failed to
show up for the interview without
explanation, not that he had
affirmatively refused to take the test.
The jury therefore could have read more
into this than there was. At the same
time, Brown had ample opportunity to
cross-examine Kelly on his failure to
cooperate with Cooper’s investigation as
well as to point out other perceived
inconsistencies in his description of his
encounter with Brown. Compare United
States v. Olson, 978 F.2d 1472, 1480 (7th
Cir. 1992) (no abuse of discretion where
"plethora of impeachment evidence"
outside of polygraph available to
challenge witness testimony). Thus, even
if this evidence had some minimal
probative value, the district court did
not abuse its discretion by excluding it.
IV
Brown’s final contention relates to his
post-trial discovery that the Bureau of
Alcohol, Tobacco, and Firearms had
provided the prosecution with a firearms
trace report of the rifle found in his
car. Brown filed a motion for a new trial
or an evidentiary hearing regarding this
new evidence. The district court reviewed
the trace report in camera, found that it
contained no information favorable to
Brown, and denied the motion.
Brown alleges on appeal that he is
entitled to a new trial because the
government failed to turn over the trace
report in response to his discovery
requests. Even if the government did
withhold the report, however, Brown is

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entitled to a new trial only if he can
establish that the report is favorable to
him and material to an issue at trial.
United States v. Hartbarger, 148 F.3d
777, 786 (7th Cir. 1998). In his post-
trial motion, Brown theorized that
Kelly’s name might appear on the trace
report. That, however, is not the case.
Brown still believes that the report is
material because it contains the name of
the last owner of the gun before it was
stolen. With that information, Brown
could determine if Kelly has any
connection with that person or any
previous owner. If so, that would
increase the likelihood that Kelly
possessed the weapon and planted it in
Brown’s car.
This is far too speculative a showing of
materiality to support reversal. On its
face, the trace report is not favorable
to Brown; there is no indication that
Kelly knew or had any connection to the
last name on the report. A criminal
defendant is not entitled "to embark upon
an unwarranted fishing expedition through
government files." United States v.
Phillips, 854 F.2d 273, 278 (7th Cir.
1998). Evidence is not considered
"favorable to the accused" if that
evidence standing alone "could not have
affirmatively helped the defendant."
United States v. Grintjes, 237 F.3d 876,
880 (7th Cir. 2001). Simply because the
trace report, if turned over, would have
given Brown another lead to investigate
does not mean that it was favorable
evidence that the government must
automatically disclose. Id.
Even if we were generously to construe
the trace report as favorable, it is not
material because there is no reasonable
probability that the result of the
proceeding would have differed had it
been turned over. Id. at 881. Even if
Kelly had some connection to the person
from whom the gun was stolen, the jury
would still have confronted testimony
that Kelly was sitting in his vehicle
when Basaldua drove off in pursuit of
Brown and that when Pawlak, who was
driving a half a block behind Basaldua,
pulled up, Kelly was standing next to the
vehicle and nowhere near Brown’s car.
Besides this, the whole idea that Kelly,
upon receiving a call that his sister
needed help, would bring with him two
weapons only one of which he was licensed

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to carry, engage in a lengthy standoff
with an unarmed Brown, and then in the
ten seconds or so between the departure
of Basaldua and Brown and the arrival of
Pawlak, rush over to Brown’s car to plant
the rifle and then back to his own
vehicle, is preposterous. Under the
circumstances, the district court’s
determination that the failure to
disclose the trace report did not require
a new trial was not an abuse of
discretion.
V
For the foregoing reasons, the judgment
of the district court is Affirmed.

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