United States v. Theola Blackmon

1The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1322
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Kashaun L. Lockett, also known as *
Gangsta, *
*
Appellant. *
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Submitted: November 19, 2009
Filed: April 14, 2010
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Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Kashaun L. Lockett appeals his conviction, following a jury trial, for conspiracy
to distribute and to possess with intent to distribute 50 grams or more of a mixture
containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.
Following his conviction, the district court 1 sentenced Lockett to 120 months
imprisonment. On appeal, Lockett challenges the sufficiency of the evidence
presented by the government in support of his conviction, the district court’s denial

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2Batson v. Kentucky, 476 U.S. 79, 96-98 (1986) (providing a three-part analysis
for determining whether a party impermissibly struck a potential juror on account of
race).
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of Lockett’s mistrial motion premised on a claim that the government’s questioning
of one witness was improper and highly prejudicial, and the district court’s denial of
his Batson 2 challenge to the government’s use of a peremptory strike against a juror.
We affirm.
I.
Because Lockett challenges the sufficiency of the evidence, “[w]e recite the
facts in the light most favorable to the jury’s verdict.” United States v. Stevens, 439
F.3d 983, 986 (8th Cir. 2006). At trial, three witnesses—Elizabeth Leader, Heather
Krause, and Kenneth Jones—testified about their relationships with Lockett, Lockett’s
drug activities, and Lockett’s connection to Percy Grant, who was indicted along with
Lockett. As Lockett’s appeal focuses on the testimony of these three witnesses, we
discuss the substance of their testimony.
Leader testified that she was involved in a romantic relationship with Grant
beginning in April 2007. According to Leader, Grant frequently sold crack cocaine
at the Royal Oaks Apartments in Des Moines, Iowa. Lockett often visited Grant and
Leader in Des Moines, and on three or four occasions, Lockett joined Grant in selling
crack cocaine at the Royal Oaks Apartments.
Krause testified that she sold drugs for Grant and acted as a “go-between,”
setting up drug transactions for Grant. The relationship between Krause and Grant
started as a business relationship but developed into a friendship and was “heading
down [the] road” to a romantic relationship. Grant introduced Lockett to Krause. In
November 2007, Krause drove around Des Moines with Grant and Lockett, selling
crack cocaine. At some point, they ran out of crack cocaine and decided to travel to

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Omaha for more. Krause and Grant dropped Lockett off at a house in Omaha where
Lockett believed he could obtain crack cocaine. Several minutes later when Krause
and Grant returned to pick up Lockett, Lockett indicated he was successful in
obtaining the additional crack cocaine. On November 29, 2007, Krause, Grant, and
Lockett left a Des Moines motel to pick up Grant’s father. Before leaving, Lockett
retrieved a bag of crack cocaine that he had hidden near a tree at the motel. Lockett
handed the crack cocaine to Grant. Grant gave it to Krause and told her to put it inside
her bra. Following a traffic stop and Krause’s arrest for marijuana possession, Krause
told police that she was concealing crack cocaine on her person and that Lockett had
handed the crack cocaine to her. In her testimony, Krause admitted that she lied to
police at the time of her arrest to protect Grant.
Jones testified that, in March 2008, he moved back to Omaha from Las Vegas
to be closer to family. After moving back to Omaha, Grant, who is Jones’s cousin,
contacted Jones about purchasing crack cocaine. Lockett accompanied Grant to a
meeting that Grant had arranged with Jones. Both Grant and Lockett informed Jones
that they had been successful in selling crack cocaine in the Des Moines area. At that
first meeting, Jones sold one ounce of crack cocaine to Grant and one-half of an ounce
of crack cocaine to Lockett. In subsequent transactions, Jones sold to Lockett an
additional two ounces of crack cocaine, a quarter of a pound of marijuana, and two or
three ecstacy pills.
While questioning Jones at Lockett’s trial, the government asked, “Do you have
any concerns regarding your own personal well-being and that of others close to you
in connection with your testimony?” (Trial Tr. 394.) Lockett’s counsel objected to
this question, and the district court sustained the objection. Lockett then moved for
a mistrial, arguing the question was improper and warranted a mistrial because it
raised a suspicion that threats were made by Lockett to the safety and well-being of
the witnesses. The district court agreed that the question was improper but denied the
mistrial motion. Instead, the district court told the jury that the question was

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improper, ordered it stricken from the record, and directed the jury “to entirely
disregard that question or any inference of any kind that [it] might otherwise draw
from such a question being asked.” (Id. 396.) At the conclusion of the government’s
case, Lockett moved for a judgment of acquittal, claiming the government failed to
present sufficient evidence for conviction. The district court denied this motion.
Lockett brings this appeal.
II.
A.
Lockett argues that there was insufficient evidence presented to support his
conviction, and therefore the district court should have granted his motion for
judgment of acquittal. “We review the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the government, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003). Under this strict
standard, we will reverse only where no reasonable jury could have found the accused
guilty beyond a reasonable doubt. United States v. Sanders, 341 F.3d 809, 815 (8th
Cir. 2003).
In order to convict a defendant of conspiracy, the government must prove (1)
the existence of an agreement to achieve an illegal purpose, (2) the defendant’s
knowledge of the agreement, and (3) the defendant’s knowing participation in the
agreement. United States v. Johnson, 439 F.3d 947, 954 (8th Cir. 2006). The
agreement does not have to be a formal, explicit agreement; a tacit understanding will
suffice. Id.
In this case, Lockett argues that the government failed to meet its burden of
showing that he knew of the conspiracy or intentionally joined in it. Lockett claims
that Leader’s testimony merely established that Lockett knew Grant, not that Lockett

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was aware of Grant’s involvement with drug transactions at the time. As for Krause’s
testimony, Lockett maintains that, at most, it establishes that Lockett was aware that
Grant was selling crack cocaine but did not show Lockett was a member of a
conspiracy to distribute crack cocaine with Grant. Finally, Lockett argues no
reasonable juror could credit Jones’s testimony because of Jones’s extensive criminal
history and because Jones’s motivation for testifying was his hope that he would
receive a reduced sentence in exchange for cooperating with the government.
The evidence presented by the government refutes Lockett’s claims. Drawing
reasonable inferences from Leader’s testimony, a reasonable jury could conclude that
on multiple occasions, Lockett joined with Grant to sell crack cocaine at the Royal
Oaks apartments in Des Moines. Krause’s testimony provides additional evidence of
the conspiracy. Specifically, Krause testified that she, Grant, and Lockett drove
around Des Moines selling crack cocaine, that Lockett acquired additional crack
cocaine at a house in Omaha, and that Lockett retrieved a quantity of crack cocaine
from where he had hidden it beneath a tree and then gave it to Grant.
Notably, Lockett does not argue that Jones’s testimony was insufficient to
establish the elements of the drug conspiracy, rather Lockett attacks Jones’s credibility
as a witness. Jones’s testimony clearly demonstrates the existence of the agreement
to distribute drugs, Lockett’s knowledge of the agreement, and Lockett’s participation
in the agreement. To the extent Lockett challenges Jones’s credibility, we defer to the
jury’s credibility determination. See United States v. Kenyon, 397 F.3d 1071, 1076
(8th Cir. 2005). Therefore, we reject Lockett’s argument that there was insufficient
evidence to support his conviction.
B.
Lockett next argues the district court erred in denying his motion for a mistrial
based on improper questioning by the government’s attorney. It is generally within

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the discretion of the district court to decide whether the fairness of a trial has been
compromised by prejudicial testimony. United States v. Urick, 431 F.3d 300, 304 (8th
Cir. 2005). As such, the district court’s decision to deny a motion for a mistrial is
reviewed for an abuse of discretion. Id. Admission of a prejudicial statement is
normally cured by striking the testimony and instructing the jury to disregard the
remark. Id. When the evidence of guilt is substantial, we may find that the allegedly
improper testimony was harmless. United States v. Nelson, 984 F.2d 894, 897 (8th
Cir. 1993).
We do not question the district court’s characterization of the government’s
question to Jones about whether he feared for his safety in testifying as improper.
Having thoroughly reviewed the trial record, however, we find that the corrective
actions of the district court—instructing the jury that the government’s question was
improper, striking the question from the record, and directing the jury to disregard the
question and any inference that could be drawn from it—were adequate to cure the
prejudicial effect of the question. If residual prejudice survived this curative
instruction from the court, that prejudice is harmless when compared to the substantial
evidence of Lockett’s guilt. See id. Thus, we affirm the denial of the motion for
mistrial.
C.
Finally, Lockett contends the district court erred in denying his Batson
challenge to the government’s use of a peremptory strike against “ST,” the sole
African-American juror on the venire panel. We review the district court’s Batson
ruling for clear error. United States v. Bolden, 545 F.3d 609, 614 (8th Cir. 2008), cert.
denied, 130 S. Ct. 796 (2009). In conducting this review, we note that “the ultimate
burden of persuasion regarding racial motivation rests with, and never shifts from, the
opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 768 (1995).

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Courts evaluate Batson challenges under a three-step test. First, the
defendant must make a prima facie case that the prosecution’s strike was
motivated by race; second, the prosecution must offer a race-neutral
reason for the strike; and third, taking into account all the evidence, the
trial court must find whether or not the prosecutor was motivated by
purposeful discrimination.
Kahle v. Leonard, 563 F.3d 736, 739 (8th Cir. 2009) (quotation omitted).
During voir dire, the government asked the prospective jurors if any had
philosophical or religious objections to sitting in judgment of another person. ST
stated, “I don’t feel that it’s my right to sit in judgment of another person.” (Trial Tr.
41.) After further questioning, ST indicated that, despite her statement, she could be
fair and impartial but that jury service “would weigh on me on my conscience.” (Id.
42.) The government sought to strike ST for cause, but the district court rejected the
request. The government then used its third peremptory strike to remove ST. When
Lockett raised his Batson challenge, the government explained that ST’s comments
demonstrated that it would be difficult for her “to fairly judge the facts and reach a
verdict that would be favorable to the United States.” (Id. 58.) The district court
agreed that the response provided a reasonable, race-neutral basis for the
government’s use of the peremptory strike.
We agree that the government offered a race-neutral basis for striking juror ST,
and Lockett has not shown that the basis was a pretext for purposeful discrimination.
Further, the fact that the district court denied the government’s motion to strike ST for
cause does not necessarily preclude the government from using its peremptory strike
on that same juror for the identical reasons so long as those reasons are race-neutral.
Cf. White v. Luebbers, 307 F.3d 722, 728 (8th Cir. 2002) (recognizing, by way of
example, that a potential juror could be subjected to the government’s use of its
peremptory strike when that potential juror could not be removed for cause after being

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rehabilitated by the defense). Therefore, we conclude that the district court did not
clearly err in denying Lockett’s Batson challenge.
III.
Accordingly, we affirm Lockett’s conviction.
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