U.S. v. Carmichael

• Decision Date: 05 March 2009
• Docket Number: No. 07-11400.,07-11400.
• Citation: 560 F.3d 1270
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leon CARMICHAEL, Sr., a.k.a. Beaver Leon Carmichael, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

560 F.3d 1270

UNITED STATES of America, Plaintiff-Appellee, v. Leon CARMICHAEL, Sr., a.k.a. Beaver Leon Carmichael, Defendant-Appellant.

No. 07-11400.

United States Court of Appeals, Eleventh Circuit.

March 5, 2009.

G. Richard Strafer, G. Richard Strafer, P.A. Miami, FL, James K. Jenkins, Maloy & Jenkins, Atlanta, GA, for Carmichael.

James B. Perrine, A. Clark Morris, Montgomery, AL, for U.S.

Appeal from the United States District Court for the Middle District of Alabama.

Before TJOFLAT and MARCUS, Circuit Judges, and VINSON^*, District Judge.

TJOFLAT, Circuit Judge:

I.

On November 19, 2003, a Middle District of Alabama grand jury returned a one-count indictment against Leon Carmichael, Sr. and Freddie Williams charging them with conspiracy to possess with intent to distribute over 3,000 kilograms of marijuana.¹ A superceding indictment, returned on August 17, 2004, reasserted this conspiracy charge as Count 1 and added a second count against Carmichael, charging him with conspiracy to launder the proceeds of the marijuana conspiracy.² The defendants pled not guilty to these charges and went to trial before a jury on June 6, 2005.

The Government, in its case-in-chief, presented several witnesses, including two drug traffickers, Gary Wayne George and Patrick Denton, who repackaged and sold marijuana for Carmichael. By the time of his arrest by Drug Enforcement Administration ("DEA") agents on November 17, 2003, Denton packaged and sold between 200 and 500 pounds of marijuana per week and gave the proceeds to Carmichael.

DEA agents arrested Denton at his home, where they had gone for the purpose of executing a search warrant. While the agents were executing the warrant, Carmichael telephoned Denton to say that he was coming over. At that point, Denton decided to cooperate with the agents. After giving Denton some instructions, the agents left Denton's residence to set up a surveillance. Carmichael arrived shortly thereafter and instructed Denton to go to Williams's house to help Williams repackage marijuana. Denton left for Williams's house, arriving there after first meeting with the DEA agents, who equipped him with audio and video devices. Once at Williams's house, Denton joined Williams in repackaging marijuana. They worked together until Williams received a phone call and left. After he departed, the DEA agents entered the residence with a search warrant and seized 574 pounds of marijuana. Later in the day, the agents arrested Carmichael and Williams and took them to the DEA headquarters for processing. When the agents were alone with Williams, they sought his cooperation. He responded by commenting, "[i]f I name names my children will be killed."

The jury found the defendants guilty as charged on June 17, 2005, after eight days of trial. On March 28, 2007, the district court sentenced Carmichael to concurrent prison terms of 480 months on Count 1 and 240 months on Count 2, to be followed by a term of supervised release of five years.³ On March 29, 2007, Carmichael filed a notice of appeal, challenging both of his convictions and his Count 1 sentence.

In his brief on appeal, Carmichael asks that we reverse his convictions and grant him a new trial on several grounds. Only one merits extended discussion. We dispose of the others with brief comment in the margin, along with Carmichael's appeal of his Count 1 sentence.⁴

The ground that merits discussion is the district court's denial of the motion Carmichael made on June 6, 2005, immediately prior to jury selection, which challenged under the Jury Selection and Service Act of 1968 ("JSSA"), 28 U.S.C. §§ 1861 et seq., and the Sixth Amendment the validity of the venire that had been summoned to try the case. The district court deferred ruling on the motion until the trial was over and, then, only if Carmichael was found guilty. After the jury returned its verdict, the court referred the motion to a magistrate judge, who held an evidentiary hearing and issued a report recommending that the district court deny the motion. The court adopted the magistrate judge's recommendation, and in a lengthy opinion and order, rejected Carmichael's challenges. United States v. Carmichael, 467 F.Supp.2d 1282 (M.D.Ala.2006). We turn now to Carmichael's appeal of that order.

II.

In evaluating Carmichael's appeal, we first discuss the way the Middle District of Alabama selected juries at the time Carmichael's case came to trial. Under the Middle District of Alabama's jury plan ("the Jury Plan"), first every four years the court's Jury Administrator⁵ randomly selected a pool of not less than five percent of registered voters in each of the Middle District's twenty-three counties. This list was known as the Master Jury Wheel. Second, the Jury Administrator randomly selected a percentage of the Master Jury Wheel for a shorter list, known as the qualified jury wheel ("QJW"). Third, the Jury Administrator mailed preliminary juror questionnaires to those selected for the QJW. When the questionnaires were returned, the chief judge or his designee determined whether each potential juror was qualified, exempt, or excused from service. Under 28 U.S.C. § 1865(b), a person is presumed to be qualified unless he or she fits into one or more of five enumerated exceptions.⁶

As need arose, the Jury Administrator used the QJW to randomly select jury pools of around 200 individuals. He mailed the pool members jury packets and summonses. Upon receiving summonses, individual pool members could request to be excused or deferred from service by showing undue hardship or extreme inconvenience pursuant to 28 U.S.C. § 1866(c).⁷ Excused jurors were granted an excusal for two years, at which time they were re-added to the QJW. Deferred jurors were removed from the summons list and placed into a deferred maintenance pool, separate from the QJW. Those jurors not excused or deferred were randomly placed on jury panels, which were provided to attorneys before jury selection.

Prior to a successful jury challenge in 2001, in United States v. Clay, 159 F.Supp.2d 1357 (M.D.Ala.2001), the Jury Administrator granted almost all requests for deferral of jury service. The Jury Administrator then placed deferred jurors into a deferred maintenance pool and re-summoned them as soon as their deferrals expired. In this manner, deferred jurors were added to the summons list along with those randomly selected from the QJW. Because white jurors requested deferral approximately twice as often as black jurors, jurors in the deferred jury pool were disproportionately white. The total pool of summoned jurors was therefore disproportionately white as well. The Jury Administrator heightened this effect by placing previously deferred jurors at the top of the summons list, thereby increasing the likelihood that these jurors would be included in the venire. In Clay, the district court held that this arrangement violated the JSSA. Clay, 159 F.Supp.2d at 1370. After Clay, the Middle District amended its plan to limit the percentage of previously deferred jurors summoned to any given pool to 15% and to require that previously deferred jurors be scattered randomly throughout the summons list.

In 2001, the Middle District created a new jury wheel. The Jury Administrator randomly selected a group of 99,604 voters for the Master Jury Wheel. The Jury Administrator then randomly selected 25,000 names from the Master Jury Wheel and mailed these jurors questionnaires. Those who were determined to be qualified made up the QJW, which was supplemented several times through additional mailings over the next four years. In 2001, African Americans constituted 20.74% of the QJW, despite the fact that they constituted 30.47% of the Middle District's population.

As he summoned pools from the 2001 QJW, the Jury Administrator continued to grant almost all deferral requests, placing deferred jurors into the deferred maintenance pool. Pursuant to the post-Clay plan, the Jury Administrator was limited to re-summoning 15% or less of the jurors for each pool from the deferred maintenance pool, even if this meant that jurors whose deferrals had expired were not summoned. A new Jury Administrator, who took office in March 2005, accidentally violated this 15% limit in four of the last five jury pools drawn from the 2001 four-year cycle. One of these pools was the pool drawn for Carmichael's trial; because of the Jury Administrator's mistake, 24.5% of the pool was drawn from the deferred maintenance pool.

Furthermore, because of a technical glitch, on five occasions throughout the life of the 2001 QJW, the Jury Administrator accidentally transferred persons from the deferred maintenance pool back onto the QJW, from which they could be summoned without regard to the 15% limit. In total, the Jury Administrator accidentally transferred 1,093 deferred jurors onto the QJW, 460 of whom were ultimately chosen for jury service. Seven previously deferred jurors who were accidentally transferred from the deferred maintenance pool to the QJW were chosen for the pool drawn for Carmichael's trial.

As a result of these combined errors, the percentage of previously deferred jurors drawn for Carmichael's pool was 26.67%, 11.67% above the 15% limit. African American's made up 16% of Carmichael's jury pool.

III.

Carmichael challenged the venire summoned to hear his case under the JSSA and under the fair cross-section requirement of the Sixth Amendment. We review the district court's resolution of each of these issues in turn.

A.

The JSSA provides that "all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the district or division wherein the court convenes." 28 U.S.C. § 1861. By its terms, the JSSA provides remedies only for a "substantial failure to comply" with its requirements. 28 U.S.C. § 1867(d). A JSSA violation is considered "substantial"...