160 F.3d 1096 (6th Cir. 1998), 96-6635, United States v. Allen

Docket Nº:Chris Jermaine ALLEN (96-6635); Corey Antoine Murray
Citation:160 F.3d 1096
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:November 19, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1096

160 F.3d 1096 (6th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Chris Jermaine ALLEN (96-6635); Corey Antoine Murray

(96-6676); Jason Edward Webb (96-6677); Jeffery

Ramone Buckley (96-6679), Defendants-Appellants.

Nos. 96-6635, 96-6676, 96-6677 and 96-6679.

United States Court of Appeals, Sixth Circuit

November 19, 1998

Argued March 11, 1998.

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[Copyrighted Material Omitted]

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Scott T. Wendelsdorf (argued and briefed), Federal Public Defender's Office, Louisville, KY, William Yesowitch (argued and briefed), Frockt & Klingman, Louisville, KY, Steven R. Romines (argued), Lawrence I. Young (briefed), Romines, Weis & Young, Louisville, KY, for Appellants.

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Terry M. Cushing (argued and briefed), Marisa J. Ford (briefed), Office of the U.S. Attorney, Louisville, KY, for Appellee.

Before: KRUPANSKY, NELSON, and BATCHELDER, Circuit Judges.

BATCHELDER, Circuit Judge.

Defendants-Appellants Buckley, Murray, Webb, and Allen, along with co-defendants Johnson and Birdsong, were indicted for conspiracy to affect commerce by armed robbery and the substantive offense of affecting commerce by armed robbery (counts one and two), both in violation of 18 U.S.C.A. § 1951(a) (West 1984 & Supp.1998); for using and carrying a firearm during and in relation to a crime of violence made a crime under § 1951(a) (count three), in violation of 18 U.S.C.A. § 924(c) (West 1976 & Supp.1998); and for interstate transportation of stolen merchandise (count four), in violation of 18 U.S.C.A. § 2314 (West 1970 & Supp.1998). Murray moved to sever his trial from those of the other defendants, but the court denied his motion. Shortly before trial, Webb, Allen, Johnson, and Birdsong each pled guilty to all four counts without a plea agreement. A jury subsequently convicted Buckley and Murray on all counts.

For counts one, two, and four, the court assigned Allen and Webb a total offense level of eighteen; Buckley received a two-point reduction for acceptance of responsibility 1 and was assigned a total offense level of nineteen; Murray was assigned a total offense level of twenty-one. Each Appellant was sentenced accordingly within the applicable range. In addition, pursuant to 18 U.S.C.A. § 924(c), the district court added to each Appellants' sentence a mandatory consecutive sixty-month sentence for count three.

Buckley and Murray appeal their convictions, asserting improper jury selection. Murray also appeals the court's denial of his motion to sever. Webb, Allen, and Murray appeal the imposition of the sixty-month sentence for count three. For the reasons that follow, we AFFIRM the district court. 2

I.

The four Appellants, Johnson, and Birdsong, all African-American males from Indianapolis, Indiana, conspired to and did rob a LeRoy's Jewelry Store ("LeRoy's") in Louisville, Kentucky. Approximately two weeks prior to the robbery, Johnson and Birdsong had stolen a ring from the same store. On February 7, 1996, the defendants carried out their plan and robbed LeRoy's.

Prior to arriving at the store, the defendants discussed the fact that they would use a gun, and decided that Webb would be the one to carry it. When they reached the store, which was located in a shopping mall, the four Appellants entered LeRoy's. Johnson remained outside of the store to watch for security guards and police, and Birdsong remained in the van in the parking lot to aid the group in making a speedy escape. After Allen diverted the attention of one of the clerks by posing as a customer, Buckley reached over an unlocked display case and

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slammed open its door. Webb pulled out a .38 caliber revolver, and Murray, Webb, and Buckley grabbed jewelry from the display case while Allen left the store. The five defendants left the mall and jumped into the waiting van, which headed toward Indianapolis.

Two shoppers in the parking lot witnessed the getaway and reported to the police a partial license plate number and description of the van. Based on this information, the Indiana State Police stopped the van, arrested the six defendants, and recovered the gun and most of the stolen jewelry.

Murray and Buckley were tried together in September 1996. Immediately prior to the jury venire panel entering the courtroom, counsel for Buckley and Murray moved to disqualify the panel because it consisted of 39 Caucasians, 1 American-Indian, and no African-Americans. 3 The court noted the objection, and stated that although it would move forward as planned, during a break, it would ask the jury administrator to come to the courtroom and testify as to how she assembled the panel. A jury was seated and the case was presented.

Prior to submitting the case to the jury, and out of the jury's presence, the court and the parties questioned Sharon Palmer, the jury administrator for the Western District of Kentucky, about the selection process. Ms. Palmer testified that once every four years, the Western District creates a "master wheel" of potential jurors for each geographical "jury division" within the Western District. To accomplish this, the District sends a letter to the Secretary of State of the Commonwealth of Kentucky, instructing that office to create a list for each division by selecting every x-numbered person on the voter registration lists from the counties within the different divisions. See also PLAN OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY FOR THE RANDOM SELECTION OF GRAND AND PETIT JURORS, As Amended ("JURY PLAN"), sec. III-V (approved April 15, 1993, Judge Merritt, 6th Circuit). All of the names selected for the relevant division, in this case, the Louisville Division, are then put into the master wheel. 4 When new persons are needed for the jury pool, the jury administrator directs a court employee to select at random a certain number of names from the master wheel. Juror qualification forms are forwarded to those selected, and upon return-receipt, the names of those people who are not statutorily disqualified are put into a "small wheel" (the "qualified jury wheel"). See JURY PLAN, V-VI.

When Ms. Palmer needs to empanel a jury or juries, she directs someone to draw at random from the small wheel a specified number of names. She issues summonses to the selected persons and assigns them an initial reporting date. Those summoned constitute the jury pool from which she randomly selects panels for the day's trials. Although eventually she has access to jury questionnaires, which include on the backside a check-box for race, Ms. Palmer testified that she has no racial information at the time she issues summonses or selects panels.

Ms. Palmer generally requests that those not chosen from the pool for a panel and those not chosen from a panel for a jury come back on a particular date for which another trial has been scheduled. In addition, if she has selected a panel, or a jury has been selected, for a particular trial and that trial is canceled, Ms. Palmer calls those persons to assign them a new reporting date. Frequently, she will assign the entire panel from a canceled trial to another trial. Persons summoned normally serve for 90 days, although during the time in question, some served an additional 30 days due to the proximity of the next master wheel selection.

The jury pool for the September trial consisted of approximately 250-300 people summoned for jury service since the preceding April. Some of those people were African-American. In the case at bar, the panel used had been randomly selected for an August trial that was subsequently canceled. Ms. Palmer needed more jurors for this case than had been on that panel, so she added people who had been summoned and assigned to

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other recently-used panels, but who had not been seated on a jury and whose names would otherwise have been thrown back in the wheel for re-summoning. According to the judge, it is common practice to add stricken jurors from a prior panel to complete a different venire panel so that fewer jurors need be summoned overall.

During Ms. Palmer's testimony, the court stated that this was the first time he had ever seen a panel so devoid of minorities, and that in his estimation, the percentage of African-Americans in Jefferson County was about 12 percent, and somewhat less in the Western District of Kentucky in the Louisville Division. The court also opined that the voter registration percentage might be a percentage or so less.

After hearing argument on the matter, the court found that the process used produced a random and fair jury sample, both in general and in this particular case, and that people were not being added to or excluded from a panel because of their race. The court therefore overruled Appellants' objection to the jury composition, but noted that it was preserved for appeal.

The jury convicted both Buckley and Murray on all four counts. Murray filed a motion for a new trial, arguing, among other things, that the jury had been improperly selected and that the overwhelming evidence against Buckley prejudicially spilled over into the jury's consideration of Murray's culpability. The trial court denied this motion.

II.

Appellants Buckley and Murray argue that the selection of their jury was not "random" and resulted in an all-white jury venire, in violation of the Jury Selection and Service Act ("JSSA"), 28 U.S.C.A. § 1861 et seq. (West 1994), the Sixth Amendment, and the equal protection component of the Fifth Amendment. Whether a defendant has been denied his right to a jury selected from a fair cross-section of the community is a mixed question of law and fact, which we review de novo. United States v. Miller, 771 F.2d 1219, 1227 (9th Cir.1985); see also United States v....

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