United States of America v. Bandak Wiyual Deng, also known as Jal Wiyual Deng

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-2550
___________________________
United States of America
Plaintiff - Appellee
v.
Bandak Wiyual Deng, also known as Jal Wiyual Deng
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Central
____________
Submitted: March 18, 2025
Filed: July 9, 2025
____________
Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
____________
BENTON, Circuit Judge.
The government charged Bandak Wiyual Deng with being a drug user in
possession of a firearm. 18 U.S.C. § 922(g)(3). After voir dire, he objected to the
peremptory strikes of two prospective jurors. The district court1 upheld the strikes.
1 The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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At trial, Deng tried to introduce parts of his interview with law enforcement. The
district court refused to admit them. Deng moved for a judgment of acquittal,
arguing that section 922(g)(3) violates the Second Amendment. The district court
denied the motion. The jury convicted Deng. He appeals. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.
I.
Law enforcement officers suspected Deng of involvement in a shooting at a
park on February 10, 2022. Surveillance video showed an individual matching his
characteristics exit the driver’s side of a car with what appeared to be a gun. The
car, a black Ford Taurus, lacked a license plate or paper registration tag. Des Moines
Police Detective Danny White searched the area of the shooting, discovering a 9-
millimeter round that appeared to be a misfire. At the officers’ request, a
confidential informant tried to buy a gun from Deng. During the recorded
conversation, Deng told the informant that he could not sell the gun then because he
needed it for a funeral on February 26. Deng also mentioned a previous shooting,
and indicated that he put the wrong bullets in the gun.
On the morning of the funeral, law enforcement officers stopped Deng, who
was driving a black Ford Taurus with no license plate or paper registration tag. With
his consent, officers searched the car, finding marijuana. They also found a gun
under the dashboard—a Smith & Wesson 40-caliber pistol, loaded with three 9-
millimeter rounds.
Later that day, after giving Deng Miranda warnings, Detective White and FBI
Special Agent Ben Carter interviewed him. There, Deng admitted to using drugs
since 2012, including marijuana and cocaine in the last few days. During the
interview, Detective White had trouble communicating to Deng about where officers
found the gun in his car. Going back and forth with Deng, Detective White
eventually described the gun’s location as “more forward” than the console. Deng
acquiesced, saying “All right” multiple times. Deng denied that the gun in the car

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was his. But he later admitted touching it and test-firing it into a lake. Deng also
said he had only three bullets in the gun.
The government charged Deng with being a drug user in possession of a
firearm. 18 U.S.C. § 922(g)(3) (“It shall be unlawful for any person who is an
unlawful user of or addicted to any controlled substance . . . to . . . possess in or
affecting commerce, any firearm or ammunition.”).
After voir dire, the government exercised its peremptory strikes against
Prospective Jurors 6 and 15. Deng objected that the strikes violated the Equal
Protection Clause. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). The district
court overruled his objections.
The government introduced into evidence only parts of Deng’s interview.
Deng moved to admit other parts under the rule of completeness. See Fed. R. Evid.
106. The district court did not admit them. During trial, Deng offered parts of the
interview when cross-examining Detective White. The district court ruled that they
were inadmissible hearsay. See Fed. R. Evid. 802.
After the government rested, Deng moved for a judgment of acquittal, arguing
that section 922(g)(3) violated the Second Amendment. The district court denied
the motion.
The jury convicted Deng. He appeals. This court reviews district court
decisions on peremptory strikes for clear error. Moran v. Clarke, 443 F.3d 646, 651
(8th Cir. 2006). This court reviews evidentiary rulings for abuse of discretion.
United States v. Canales, 857 F.3d 963, 965 (8th Cir. 2017). This court reviews a
denial of a motion for a judgment of acquittal de novo. United States v. Aungie, 4
F.4th 638, 643 (8th Cir. 2021).

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II.
The Equal Protection Clause prohibits peremptory strikes of prospective
jurors “solely on account of their race.” Batson, 476 U.S. at 89. To determine
whether the government impermissibly struck a prospective juror on account of the
juror’s race, courts use a three-part test. “First, the party objecting to the strike must
make a prima facie showing that the strike was racially motivated.” United States
v. Maxwell, 473 F.3d 868, 871 (8th Cir. 2007). “The burden then shifts to the
striking party to present a race-neutral explanation for the strike.” Id. “Once the
striking party offers a race-neutral explanation for the strike, the objecting party may
come forward with a reason or reasons why the proffered explanation is really a
pretext for discrimination.” Id. The standard the government must meet is
“extremely low.” Moran, 443 F.3d at 652. The ultimate burden to prove that the
strikes were motivated by purposeful racial discrimination is always with the party
opposing the strike. Maxwell, 473 F.3d at 871. On appeal, this court “looks at the
same factors as the trial judge, but is necessarily doing so on a paper record.”
Flowers v. Miss., 588 U.S. 284, 303 (2019). “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.” Id.
Deng immigrated to the United States from Ethiopia as a child. Prospective
Juror 6 immigrated to the United States from the Dominican Republic. Prospective
Juror 15 was an African American man. The government argues that these facts
alone do not make a prima facie showing that its strikes were racially motivated.
Deng counters that these facts made a prima facie case. He adds that this court has
declined to assess the sufficiency of a prima facie case when the district court
conducted step two of the Batson test. Yes, this court has indicated that failure to
make a prima facie showing is moot after the government responds with a race-
neutral explanation. United States v. Hill, 31 F.4th 1076, 1082 (8th Cir. 2022)
(explaining that previous statements by the Supreme Court and this court on this
question were “arguably in dicta”). However, this court can affirm the district

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court’s rulings without addressing this issue. This court thus need not decide
whether Deng failed to make a prima facie showing.
A.
Deng objected that the government struck Prospective Juror 6 because of her
race and her status as an immigrant. The government responded that it believed that
the defense would argue at trial that law enforcement should have used photographs
of the gun to better communicate with Deng at his interview. Prospective Juror 6
sometimes communicated at work with employees who did not speak English as a
first language. The government expressed concern that “because of her
circumstances,” Prospective Juror 6 might “start blending” Deng’s situation with her
experience translating to non-English speakers. After hearing from and questioning
Deng’s counsel, the district court upheld the government’s strike because it was
“based on the fact that English is not her first language, that she has unique
experience in that area, and it’s fair for the Government to strike her based on that
concern.”
On appeal, Deng highlights that the trial transcript nowhere shows that
English was not Prospective Juror 6’s first language. But even assuming the district
court “erroneously attributed” an argument that the government did not make, the
record shows that the district court “properly considered the actual reasons given by
the government.” Maxwell, 473 F.3d at 873 n.3. The district court considered the
government’s argument that, due to her experience translating to people for whom
English was not a first language, Prospective Juror 6 would be sympathetic to Deng’s
defense that there were miscommunications when law enforcement interviewed him.
Before ruling on Deng’s objection to the peremptory strike, the district court asked
Deng’s counsel if he intended to pursue a defense that Deng “does not speak English
as his first language and that there may have been translation or misunderstandings
because of that.” Deng’s counsel expected to “criticize law enforcement’s effective
communication with the defendant.” It is a valid race-neutral reason to peremptorily
strike a prospective juror because she may, due to her work experiences, sympathize

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with an argument. United States v. Johnson, 905 F.2d 222, 222 (8th Cir. 1990)
(upholding the peremptory strikes of prospective jurors struck “because of their
employment with the Division of Family Services, based on the belief they would
be sympathetic to Johnson’s defense”).
On appeal, Deng includes that he never asked Prospective Juror 6 if she used
photos to communicate with people. During voir dire, Deng’s counsel asked jurors,
including Prospective Juror 6, about their experiences working with people who do
not speak English as a first language. He asked another juror: “Do you ever use
pictures or anything like that to make sure that you’re talking about the same thing?”
But to Prospective Juror 6, he merely asked about “a strategy” she used to
communicate with non-English speakers, and she did not say that she used pictures.
However, later, trying to show that the government’s race-neutral reason for striking
Prospective Juror 6 was pretext, Deng’s counsel asserted: “The fact that she uses
pictures to communicate with people who speak a different language is not a reason
to strike her, especially under these circumstances.” Also, Deng never tried to show
pretext by arguing that Prospective Juror 6 was “similarly situated” to jurors who
the government did not strike. Elmahdi v. Marriott Hotel Services, Inc., 339 F.3d
645, 651–52 (8th Cir. 2003). The ultimate burden is on the opponent of the
peremptory strike. On this record, Deng “failed to carry his burden of demonstrating
pretext.” Maxwell, 473 F.3d at 873. The district court did not clearly err in
overruling Deng’s objection.
B.
Deng objected that the government struck Prospective Juror 15 because of his
race. The government offered the race-neutral explanation that Prospective Juror 15
“couldn’t remember any details about” a jury case he said that he served on. The
government elaborated that it understood “a lot of jurors don’t want to be here, but
the concern was it just seemed like that is hard to accept that somebody’s 40 years
old, doesn’t have any memory of a prior jury service.” Concern that a prospective
juror may be uninterested in the case, based on his responses during voir dire, is a

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valid race-neutral reason to peremptorily strike him. United States v. Davis, 871
F.2d 71, 72 (8th Cir. 1989) (upholding a peremptory strike justified in part by the
government’s concern that “venire members who failed to answer questions were
not listening or were uninterested in the case”); United States v. Warren, 788 F.3d
805, 813 (8th Cir. 2015) (“Passivity, inattentiveness, and confusion are common race
neutral reasons for striking jurors.”); United States v. Iron Crow, 970 F.3d 1003,
1007 (8th Cir. 2020) (upholding a peremptory strike of a juror who “appeared
‘disinterested’ and was ‘very hard to engage’”).
Responding to the government’s explanation, Deng’s counsel said that other
jurors also could not remember details of their jury cases. The district court upheld
the strike, saying that Prospective Juror 15, unlike other jurors, could not tell the
court whether the jury case “was criminal or civil, how long ago it was, where it was,
or anything else about it.”
On appeal, Deng emphasizes that, during voir dire, Prospective Juror 15 did
tell the court where his prior jury service was—Oskaloosa, Iowa. Prospective Juror
15 also told the court that the jury case was “a while ago, a long time.” Deng argues
that Prospective Juror 15 was similarly situated to Prospective Juror 20.
One way that Deng can show pretext is to point to “similarly situated” jurors
of other races who were not struck. See Elmahdi, 339 F.3d at 651–52. Prospective
Juror 20, like Prospective Juror 15, told the court that the jury case was “a long time
ago” in Black Hawk County, Iowa. Likewise, she could not remember whether it
was civil or criminal. But, unlike Prospective Juror 15, Prospective Juror 20 also
told the court that the jury case “was settled out of court.” “Even fine race-
neutral distinctions between [jurors] are a permissible basis for strikes.” Edwards
v. Roper, 688 F.3d 449, 455 (8th Cir. 2012). The district court highlighted the
difference when upholding the strike: “No. 20 . . . said it was many years ago, in
Black Hawk County, and the case settled before she had a chance to deliberate.”
Although the district court misstated part of the government’s argument, the record

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shows that the district court “properly considered the actual reasons given by the
government.” Maxwell, 473 F.3d at 873 n.3.
The “evaluation of the prosecutor’s state of mind based on demeanor and
credibility lies peculiarly within a trial judge’s province.” United States v. Pherigo,
327 F.3d 690, 696 (8th Cir. 2003) (internal quotations omitted). This court affords
a district court “a great amount of deference in its pretext determination.” Id. True,
the difference between Prospective Juror 15 and Prospective Juror 20 is fine, but this
court has upheld decisions based on similarly fine differences. See, e.g., Edwards,
688 F.3d at 454–55 (distinguishing between two jurors who both expressed
frustration about experiences of family members with law enforcement); United
States v. Scott, 26 F.3d 1458, 1466 (8th Cir. 1994) (distinguishing between jurors
who said merely that they previously served on a jury, and a juror who added that
the jury he served on acquitted a defendant); Taylor v. Roper, 577 F.3d 848, 866
(8th Cir. 2009) (distinguishing between a juror who immediately expressed her
opposition to the death penalty, and a juror who tentatively expressed his opposition
and acknowledged “pros and cons”); United States v. Morrison, 594 F.3d 626, 633
(8th Cir. 2010) (upholding a decision because, though other jurors had some of the
same qualities as the struck prospective juror, no other one juror had all those
qualities); Martin v. Symmes, 820 F.3d 1012, 1013 (8th Cir. 2016), reaffirming 782
F.3d 939, 948 (8th Cir. 2015) (holding that the opposing party failed to satisfy his
burden of showing pretext because he did not identify “one juror who shared each
of the qualities that the government cited as a reason for dismissing” the juror) (later
vacated on other grounds and remanded by Martin v. Smith, 577 U.S. 1187 (2016)).
Here, the government asked “individual follow-up questions in order to
explore” how much individual jurors remembered their previous jury cases.
Flowers, 588 U.S. at 313. This is not a case where the government focused on
specific jurors and tried “to find some pretextual reason—any reason” to strike them.
Id. at 310. On the record here—in light of the “great amount of deference” to a
district court’s assessment of a prosecutor’s credibility—this court holds that the
district court “did not clearly err in finding that the reason stated was not merely

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pretextual.” Pherigo, 327 F.3d at 696. The district court did not clearly err in
denying Deng’s Batson challenge.
III.
Deng argues that the district court abused its discretion in its evidentiary
rulings. He insists that parts of the interview supporting his defense should have
been admitted under the rule of completeness. Fed. R. Evid. 106. Alternatively, he
argues that the parts of the transcript he sought to introduce during cross-
examination were not hearsay because they were not statements introduced for the
truth of the matter asserted. Fed R. Evid. 801. Rather, Deng argues he offered to
introduce them during cross-examination to impeach Detective White. See Valdez
v. Watkins Motor Lines, Inc., 758 F.3d 975, 981 (8th Cir. 2014). As another
argument, Deng asserts that he offered them for their effect on the listener, Detective
White. See White Commc’ns, LLC v. Synergies3 Tec Services, LLC, 4 F.4th 606,
613 (8th Cir. 2021). Deng argues that the district court mistakenly focused on
whether the parts of the interview were “self-serving.” See United States v. Thiel,
619 F.2d 788, 781 (8th Cir. 1980) (indicating, in dicta, that whether an out-of-court
statement is “selfserving” does not factor into whether the statement is hearsay).
This court need not decide whether the rule of completeness applies here, or
whether the parts of the interview are hearsay. If the district court erred at all, it was
harmless error. This court “will not reverse an erroneous evidentiary ruling if the
error was harmless.” United States v. Love, 521 F.3d 1007, 1009 (8th Cir. 2008).
An error is harmless if “no substantial rights of the defendant were affected
and . . . the error did not influence or had only a very slight influence on the verdict.”
United States v. Eagle, 498 F.3d 885, 888 (8th Cir. 2007). Deng argues his
substantial rights were affected because the unadmitted parts of the interview were
central to his argument. Deng claims that although he may have possessed a gun,
the government could not prove he knowingly possessed the Smith & Wesson

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hidden in the car. See 18 U.S.C. § 924(a)(8) (punishing only those who “knowingly”
violate section 922(g)).
However, refusing to admit the parts of the interview at most only very
slightly influenced the jury’s verdict. At trial, two law enforcement officers,
including Detective White, testified about the surveillance footage of the shooting
and about the confidential informant’s interaction with Deng. The government
played clips of the conversation between the informant and Deng, including where
Deng mentioned loading the wrong ammunition into the gun and needing the gun
for a funeral. Other officers testified about stopping Deng, searching the black Ford
Taurus he was driving, and finding marijuana and the Smith & Wesson. Detective
White testified about finding a 9-millimeter round near where the shooting took
place. He testified how the round appeared to be a misfire, and that using a 9-
millimeter round in a 40-caliber gun can cause misfiring. He also testified that the
three 9-millimeter rounds found in the Smith & Wesson were the same as the round
found near the scene of the shooting. Deng cross-examined the government’s
witnesses.
Detective White testified about his interview with Deng. Detective White
testified that Deng said that he had the black Ford Taurus since summer of 2021.
Detective White informed the jury that Deng said he touched “that gun” that officers
found in his car. He added that Deng said he got the gun in the summer of 2021 and
had test-fired it into a lake. According to Detective White, Deng said there were
only three bullets in the gun.
Detective White also described the difficulty communicating with Deng about
where the gun was found. Detective White explained:
[W]e had kind of a back-and-forth conversation about where . . .
this gun was found. Trying to explain where it was was kind of difficult
at the time. I was telling him that it was, you know, in front of the center

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console, underneath the dash, and he would come back with, “Okay. In
the center console, where the weed was.”
And then I’d say, “No. It’s forward than that.” And then he would
say, “Oh, underneath my front seat.”
And I’d have to explain further, “No, it’s underneath your center
console, forward under the dash. There’s a spot there.” And he
eventually said, “All right.”
Deng could have cross-examined Detective White about this confusion. He began
to, but truncated that line of questioning after the district court refused to admit parts
of the interview. He did ask Detective White: “Did you ever show him a picture of
the weapon in question?” Detective White responded, “No, sir.”
Detective White also testified that in the interview Deng asked him what type
of gun was found in the car. During cross-examination, Deng elicited more details
about this confusion, but abandoned this line of questioning after the district court
refused to admit parts of the interview. Cf. United States v. Yarrington, 634 F.3d
440, 448–49 (8th Cir. 2011) (highlighting that defendant “had already elicited
testimony . . . on cross-examination” as one reason error was harmless).
The government’s evidence “amply supported” Deng’s conviction for
possessing a firearm as a drug user. See United States v. Burch, 809 F.3d 1041,
1047 (8th Cir. 2016). “The record is replete with other evidence that would allow
the jury to conclude that” Deng knowingly possessed the Smith & Wesson gun found
in his car. See United States v. Wilcox, 50 F.3d 600, 603 (8th Cir. 1995). This court
concludes that if any error occurred, it was harmless error.
IV.
Deng facially challenges the constitutionality of 18 U.S.C. § 922(g)(3). In
United States v. Veasley, 98 F.4th 906, 918 (8th Cir. 2024), this court rejected a
facial challenge to section 922(g)(3). Deng asks this court to reconsider its precedent

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after United States v. Rahimi, 602 U.S. 680 (2024). However, since Rahimi, this
court has rejected facial challenges to section 922(g)(3). See, e.g., United States v.
Cooper, 127 F.4th 1092, 1094 n.1 (8th Cir. 2025). This court affirms the denial of
Deng’s motion for a judgment of acquittal.
* * * * * * *
The judgment is affirmed.
SHEPHERD, Circuit Judge, dissenting.
I respectfully dissent. In my view, the district court clearly erred in denying
the Batson2 challenge as to Juror 15 because (1) any issue with Deng’s prima facie
showing on Batson step one is moot, and (2) the district court made clearly erroneous
factual findings when ruling on the Government’s race-neutral reason for striking
Juror 15, a black juror who was struck by the Government because “he couldn’t
remember any details” about his prior jury service. Thus, I would reverse and
remand for a new trial.
Because the Government raises the issue, this appeal squarely presents the
question of whether a failure to make a prima facie showing under Batson becomes
moot after the Government responds with a race-neutral explanation for the strike.
Like the majority acknowledges, “this [C]ourt has indicated” that the answer to this
question is yes. See e.g., ante, at 4; United States v. Young, 129 F.4th 459, 466-67
(8th Cir. 2025) (noting that the defendant did not make a prima-facie showing but
declining to affirm on that basis as the failure was “arguably moot”); United States
v. Hill, 31 F.4th 1076, 1082 (8th Cir. 2022) (similar); United States v. Walley, 567
F.3d 354, 357 (8th Cir. 2009) (noting that, while it was “doubtful” the defendant
made a prima-facie showing, “once the [G]overnment responded with a race-neutral
explanation and the district court ruled” on it, “the preliminary prima facie issue
2 Batson v. Kentucky, 476 U.S. 79 (1986).

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became moot”). Thus, I would first conclusively answer the question in the
affirmative and adopt a clear rule for litigants in light of our repeated hints.
Since Deng’s failure to make a prima-facie showing was moot, I would hold
that the district court clearly erred in denying the Batson challenge as to Juror 15.
Juror 15, one of only two black potential jurors, was struck by the Government
because he could not recall any details about his prior jury service. But Juror 20, a
white juror, only stated recollection of where her prior jury service occurred; she
could not recall what type of case it was, merely stating that “[i]t was settled out of
court.” When asked follow-up questions about their service, both Juror 15 and Juror
20 said, “I don’t remember,” and acknowledged that it had been a long time since
they served.
I believe the record demonstrates the district court committed clear error. See
Walley, 567 F.3d at 357 (reviewing denial of a Batson challenge for clear error).
The court specifically stated that it was permissible to strike Juror 15 because he
“[could ]not tell [the court] whether [his prior jury service] was criminal or civil,
how long ago it was, where it was, or anything else about it.” This, in the district
court’s view, distinguished Juror 15 from Juror 20, “who said [her service] was many
years ago, in Black Hawk County, and the case settled before she had a chance to
deliberate.” But Juror 15 specifically knew where his prior service was: “Oskaloosa,
Iowa,” and so stated. He also, like Juror 20, recalled that his service was “a while
ago” without giving a specific date. While this Court has upheld “very fine
distinctions between jurors,” United States v. Morrison, 594 F.3d 626, 633 (8th Cir.
2010), I know of no instance in which we have ever upheld the denial of a Batson
challenge based on a district court’s clearly erroneous fact finding that was directly
contradicted by the record, see ante at 7. I cannot agree with the majority’s
conclusion that, after misstating the factual record, “the district court ‘properly

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considered the actual reasons given by the [G]overnment’” when ruling on the
strike.3 Ante, at 8 (citation omitted).
As the Supreme Court has reiterated, the similarly situated analysis does not
require jurors to be “identical in all respects” for a Batson challenge to have merit
because “potential jurors are not products of a set of cookie cutters.” Miller-El v.
Dretke, 545 U.S. 231, 247 n.6 (2005). This Court has also acknowledged that
“‘similarly situated’ for purposes of [a Batson challenge] does not require similarity
in all respects.” Smulls v. Roper, 535 F.3d 853, 865 (8th Cir. 2008) (en banc)
(citation omitted). In my view, the “prosecutor’s . . . reason for striking a black
panelist[, Juror 15,] applie[d] just as well to an otherwise-similar nonblack” panelist,
Juror 20. Miller-El, 545 U.S. at 241. “[T]hat is evidence tending to prove purposeful
discrimination,” id., and to hold otherwise would make Batson nothing more “than
a dead letter,” Hill, 31 F.4th at 1088 (Loken, J., concurring).
The district court should have sustained the Batson challenge, and I would
reverse and remand for a new trial. See Avichail ex rel. T.A. v. St. John’s Mercy
Health Sys., 686 F.3d 548, 552 (8th Cir. 2012) (“A constitutional violation arising
from the racially[]motivated exercise of a peremptory strike is a structural defect in
a trial that requires automatic reversal.”). Thus, I respectfully dissent.
______________________________
3 After the district court ruled on the Batson challenge, Juror 20 was ultimately
struck from the panel by the Government. But this subsequent strike does not cure
the clearly erroneous factual findings made at the time of the Batson challenge
regarding Juror 15. Moreover, the Government hinged its argument—both before
the district court and this Court—on the merits of its nondiscriminatory reason for
striking Juror 15: that Juror 15 was not, as a matter of fact, similarly situated to Juror
20. Because the facts state otherwise, I would reverse.

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