U.S. v. Walker, 05-16756.

• Decision Date: 06 July 2007
• Docket Number: No. 05-16756.,05-16756.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles W. WALKER, Sr., The CWW Group, Inc., a.k.a. The Walker Group, Georgia Personnel Services, Inc., The Augusta Focus, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

490 F.3d 1282

UNITED STATES of America, Plaintiff-Appellee, v. Charles W. WALKER, Sr., The CWW Group, Inc., a.k.a. The Walker Group, Georgia Personnel Services, Inc., The Augusta Focus, Inc., Defendants-Appellants.

No. 05-16756.

United States Court of Appeals, Eleventh Circuit.

July 6, 2007.

Marcia Gail Shein, Law Offices of Marcia G. Shein, P.C., Decatur, GA, Edward T.M. Garland, Donald F. Samuel, Garland, Samuel, Loeb, P.C., Thomas L. Hawker, Kirkley & Payne, LLP, Dorothy Yates Kirkley, Kirkley & Hawker, LLC, Atlanta, GA, for Defendants-Appellants.

Stephen K. Marsh, Augusta, GA, Edmund A. Booth, Jr., Acting U.S. Atty., Savannah, GA, for U.S.

Appeals from the United States District Court for the Southern District of Georgia.

Before EDMONDSON, Chief Judge, and BIRCH and WILSON, Circuit Judges.

WILSON, Circuit Judge:

Charles W. Walker, Sr. was indicted by a grand jury in the Southern District of Georgia for conspiracy, mail fraud, and tax evasion. The indictment charged Walker with misusing his public office for personal gain. Walker is a former Georgia state legislator, newspaper publisher, and businessman. He was charged along with three corporate defendants: The Augusta Focus, Inc. (the "Augusta Focus"), a local newspaper that Walker published; Georgia Personnel Services, Inc. ("Georgia Personnel"), a staffing company owned by Walker that provides temporary workers to hospitals and other companies; and The CWW Group, Inc. (the "CWW Group"), a holding company that owns other companies and is owned by Walker (collectively "Defendants"). Defendants appeal their convictions and Walker appeals his sentence, contending that (1) during jury selection, the district court erroneously disallowed four of Walker's peremptory strikes after finding a Batson¹ violation; (2) honest services mail fraud was improperly charged in the indictment and not supported by sufficient evidence; (3) prosecuting Walker for mail fraud violates basic principles of federalism; and (4) various sentencing enhancements were improperly imposed by the district court. Finding no reversible error as to any of these issues, we affirm.

Background

Walker operated his various businesses while simultaneously serving as a member of the Georgia General Assembly. The 142-count indictment first alleged that Walker, the CWW Group and the Augusta Focus engaged in a scheme to fraudulently obtain profits from businesses that advertised in the Augusta Focus by misrepresenting the newspaper's circulation. The indictment alleged that this scheme amounted to mail fraud in violation of 18 U.S.C. § 1341, and conspiracy to commit mail fraud in violation of 18 U.S.C. § 371. (These charges are henceforth referred to as the "Augusta Focus counts").²

The indictment further alleged that Walker, the CWW Group, and Georgia Personnel engaged in a scheme to misuse Walker's position as a state legislator for private gain by receiving business favors, including a contract to hire Georgia Personnel workers from Grady Memorial Hospital ("Grady"), in return for Walker's help with legislation affecting Grady. These counts (the "Grady counts") charged mail fraud in violation of 18 U.S.C. § 1341, and honest services mail fraud in violation of 18 U.S.C. § 1346.

Defendants were also accused of engaging in a scheme to improperly transact business with a state entity, the Medical College of Georgia ("the Medical College"), by: (a) misrepresenting to the Medical College that Walker did not own a substantial interest in Georgia Personnel or the Augusta Focus when he did; and (b) failing to disclose Walker's transactions with the Medical College on state-mandated financial disclosure reports (the "Medical College counts"). In Georgia, a state legislator is not permitted to engage in business with a state agency except in certain limited circumstances not applicable here.³ The Medical College counts charged mail fraud in violation of 18 U.S.C. § 1341, and honest services mail fraud in violation of 18 U.S.C. § 1346.

The indictment further charged that Walker and the CWW Group engaged in a scheme to steal cash proceeds from annual fundraising events by C.S.R.A. Classic, Inc. ("Classic"), a charity set up by Walker. These forty-six counts (the "Classic counts") charged mail fraud, in violation of 18 U.S.C. § 1341, and conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371. Walker was also charged with mail fraud and honest services mail fraud for misusing his political campaign funds, and with filing a false tax return with the Internal Revenue Service and helping prepare a false charitable tax return, in violation of 26 U.S.C. § 7206(1).

After a jury trial, Walker was acquitted of the tax evasion charges and one of the Grady counts, but was found guilty on all other counts. The corporate defendants were also found guilty on all counts for which they had been charged. At sentencing, the court found that Walker had a criminal history category of I and a base offense level of 6. The court also found that the Augusta Focus and Classic counts should be grouped together under the United States Sentencing Guidelines. The total loss valuation for those counts was between $650,639.65 and $675,639.65, leading to an adjusted offense level of 20.⁴ Further, the district court ruled that the use of sophisticated means, abuse of trust, misrepresentation of a charity, and supervisory role Guidelines enhancements applied. This led to a total offense level of 29, which resulted in a Guideline sentence range of 87 to 108 months. The district court exceeded the advisory Guidelines and sentenced Walker to 121 months, finding that the Guideline sentence did not sufficiently represent the criminal conduct involved.⁵ With that background, we examine each issue presented for our review.

Discussion

I. The Batson Challenges

Defendants first contend that the district court erred by sustaining the government's challenge to four of their peremptory strikes during jury selection in violation of Batson v. Kentucky. They also challenge the district court's remedy to correct the Batson violations by reinstating the four struck jurors and refusing to give Defendants four new peremptory strikes to compensate for the reinstated jurors.

Jury selection began with a pool of approximately seventy venire members and only lasted one day. The venire was drawn randomly from all six divisions of the Southern District of Georgia. The prospective jurors had earlier completed a questionnaire that asked them about any prior knowledge of the case. The questionnaire asked for information geared to determine their impartiality by learning their preferred news sources and other habits.

The court began jury selection with individual voir dire of the thirty-three potential jurors who had been exposed to pre-trial publicity or had suggested that they could not be impartial. After some of them were excused for cause, forty-seven of the original seventy jurors remained in the pool. Of these, forty-two were randomly selected to create a new pool of twenty-eight potential jurors, eight potential alternate jurors and six more "just in case." The twenty-eight potential jurors consisted of twelve white males, six white females, one black male, eight black females, and one Indian male. The potential alternates who remained in the pool consisted of four white males, two white females, and two black females. Defendants exercised all twelve of their peremptory challenges while the government used six of its eight challenges. Defendants used all of their strikes against white males, removing ten of twelve white males from the pool of potential jurors and two white males from the alternate pool. If jury selection had ended there, these peremptory strikes would have resulted in a jury of two white males, five white females, one black male and four black females, and an alternate pool of two white males, and two white females.⁶

The government and Defendants then objected to each other's peremptory challenges on the ground that they violated the principles set forth in Batson v. Kentucky. Prior to hearing each party's Batson argument, the court excused the six extra venire members.⁷ The court then proceeded to consider the Batson challenges.

The government used all of its strikes against minorities. The court evaluated the government's strikes, and found them to be constitutional.⁸ Then, the court asked Defendants to provide neutral explanations for each of their strikes. For jurors Lamb, McKinney, Wellman and Palmer, Defendants explained that they were struck because they watched conservative news shows, listened to conservative radio commentators, or listened to Christian Gospel radio stations. They argued that these programs tend to be critical of Democrats and expressed concern that the jurors would not be completely impartial in a case involving Walker, an African-American Democratic politician. In rebuttal, the government argued that since a minister and two female jurors who watched conservative news shows were not struck, the reasons given for these strikes were pretextual. For jurors Hoats and Spitz, Defendants claimed that they were struck because, as regular readers of a local newspaper, the Augusta Chronicle, they were familiar with the case. Defendants also claimed that these jurors were not fully forthcoming during questioning. The government challenged this explanation by comparing these jurors to a female juror who also had prior knowledge about the case and was not struck. Finally, Defendants explained that they struck juror Heape on the ground that he was a member of the Confederate Sons of America and that they struck juror Kennedy because he was a lawyer and former criminal investigator. The government did not rebut these explanations. After due consideration, the district court found these eight strikes of white males to be valid.

In contrast, the court found that Defendants' four other peremptory strikes of...