66 F.3d 1572 (11th Cir. 1995), 91-6112, United States v. Blackman

Docket Nº:91-6112.
Citation:66 F.3d 1572
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert BLACKMAN, Marvin Hinsey, Kenny Thompson, Salathiel Calvin Thompson, Defendants-Appellants.
Case Date:October 20, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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66 F.3d 1572 (11th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Robert BLACKMAN, Marvin Hinsey, Kenny Thompson, Salathiel

Calvin Thompson, Defendants-Appellants.

No. 91-6112.

United States Court of Appeals, Eleventh Circuit

October 20, 1995

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[Copyrighted Material Omitted]

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Henry M. Bugay, Miami, FL, for K. Thompson.

Kendall Coffey, U.S. Attorney, Richard D. Boscovich, Marc Fagelson, Harriett Galvin, Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for appellee.

Geoffrey C. Fleck, Gainesville, FL, for Blackman & Hinsey.

Jill K. Traina, Coral Gables, FL, for Salathiel Thompson.

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

Before KRAVITCH and EDMONDSON, Circuit Judges, and EISELE [*], Senior District Judge.

EDMONDSON, Circuit Judge.

In July 1990, the Coral Gables Bank and the First Union bank were robbed. Defendants were arrested in September and indicted on two counts of armed robbery and two counts of using a firearm in the commission of a felony. Defendants Kenny Thompson (Kenny), Salathiel Thompson (Salathiel), and Marvin Hinsel are from the Bahamas; defendant Robert Blackman is a United States citizen. Defendants confessed but later filed a motion to suppress the confessions, claiming they had been coerced.

At the suppression hearing before a magistrate judge 1, defendants claimed that FBI agents surrounded the apartment where Kenny and Salathiel Thompson lived, ordered all four defendants to come out with their hands up, handcuffed them, and arrested them without reading them their rights. Defendants assert that two Bahamian police officers arrived on the scene, pointed a gun at Salathiel, and threatened to kill him if he did not cooperate with the FBI. At the hearing, defendants said they were coerced into confessing by FBI agents who threatened to turn them over to the Bahamian officials if they did not admit to the robberies.

According to the government, law enforcement officials went to the Thompsons' apartment after receiving a lead from Bahamian officials which linked defendants to the robberies. No arrest warrant was obtained. The agents went to the house, not to arrest defendants, but to investigate the robberies; and they handcuffed defendants for safety reasons. According to the agents, while being handcuffed, or immediately thereafter, Salathiel Thompson asked what the agents wanted. When an agent responded "this is involving a bank robbery of the First Union Bank," Salathiel responded "O.K., I will tell you about that." At this point, Salathiel was read his rights and arrested. And, when Salathiel told the agents that the others were involved, the other defendants were read their rights and arrested. All four defendants confessed at the FBI headquarters. The agents denied that defendants were threatened by either the Bahamian police or FBI agents.

The magistrate judge recommended denial of the motion to suppress, and the district court agreed. Defendants were convicted on all charges. 2

I. Batson v. Kentucky:

Before voir dire began, the district judge asked the group of potential jurors if they had "compelling reasons" that would affect their ability to sit as a juror in the case. One juror, Mr. Bentley, said that he would have trouble serving on a jury because he was a deeply religious man who believed "it is wrong to judge a person because judgment belongs to God." Upon questioning from the judge, Bentley added that, if selected, he would do his best to decide the case based on the evidence but "still believed that it is wrong." Upon further questioning from the

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prosecutor, Bentley stated that his religious beliefs would "impair [his] ability to sit in judgment in a criminal case." The court denied the government's request to strike Bentley for cause. When the government used a preemptory strike to remove Bentley, the defense raised a Batson challenge. The court denied the challenge and said, among other things, that defendants had failed to establish a "pattern" of racial discrimination.

To establish a violation under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), defendant must present a prima facie case of purposeful discrimination by showing that the prosecution used preemptory challenges to strike a minority juror and that the circumstances raise an inference of discrimination. United States v. Cure, 996 F.2d 1136 (11th Cir.1993). The government must then demonstrate a racially-neutral basis for its act. Such justification need not rise to the level of a challenge for cause, but must be an articulable basis which bears some relation to the case before the court. United States v. Williams, 936 F.2d 1243, 1245 (11th Cir.1991). Because the trial judge is uniquely situated to evaluate the prosecutor's motives, we review the district court's determination on a Batson challenge under the clearly erroneous standard. Cure, 996 F.2d at 1138.

Defendants claim the trial court misapplied the law by requiring them to show a "pattern" of discrimination. Batson does not require a "pattern" of discrimination, but only the drawing of an inference of racial discrimination through any means. Williams, 936 F.2d at 1245. While defendants correctly state the law, their argument is without effect. After defense counsel advanced the Batson challenge, the trial court asked for the government's reason for striking Bentley. The prosecutor answered that a "pattern" had not been shown to which the court responded, "I understand that. I would still like to have your reasons." The prosecutor replied: "Certainly Judge. The reasons are, as we have discussed before with the court, this man stood up before any questioning began of his own volition and said, 'I cannot be fair.' " The trial court then stated that the "record is clear that [Bentley] has been, at least, ambivalent." After argument from defense counsel, the judge stated that, although he personally believed Bentley would be a fine juror, Bentley was ambivalent. Bentley was struck from the jury.

Through this discussion, the trial court--at least implicitly--found that the government, in fact, had a nondiscriminatory reason for striking Bentley: his assertions during voir dire. And, based on the record of Bentley's statements, the trial court's finding is, at least, not clearly erroneous. Because the district court found that the prosecutor was motivated by a nondiscriminatory reason, we need not address the preliminary question of whether defendant established a prima facie showing nor whether the lower court truly believed (incorrectly) that defense counsel was required to show a pattern of discrimination See Cure, 996 F.2d at 1138. 3

II. Motion to Suppress:

Defendants contend that their confessions flowed from unlawful arrests. That the government lacked probable cause when FBI agents called defendants out of the apartment and handcuffed them is undisputed by the parties. Defendants claim that their detention constituted an arrest because, under the circumstances, a reasonable person would not have believed he was free to walk away. See United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). So, defendants argue their confessions should have been suppressed as the product of an illegal arrest.

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The government argues that the detention was an investigatory detention and did not become an arrest until defendant Salathiel made incriminating statements, at which time the government had probable cause and defendants were arrested and informed of their Miranda rights. Absent probable cause to make an arrest, law enforcement officials may briefly detain a person as part of an investigatory stop if they have a reasonable articulable suspicion based on objective facts that the person has engaged in criminal activity. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1220 (11th Cir.1993). Reasonable suspicion requires more than a hunch; it requires that the totality of the circumstances create, at least, some minimal level of objective justification for the belief that the person engaged in unlawful conduct. Id. at 1221.

The reasonableness of the officers' conduct must be judged against an objective standard: "would the facts available to the officer at the moment of the seizure or search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), cited in Courson v. McMillian, 939 F.2d 1479, 1493 (11th Cir.1991).

In this case, the FBI agents had a reasonable suspicion that the occupants of the apartment committed the two bank robberies. Bahamian officials contacted the FBI about a reliable informant who claimed his friends had committed the robberies. The informant gave a description of the people which matched descriptions given by witnesses to the robberies. On the day of the arrest, the informant met with Agent Boyle, repeated his allegations, and gave Boyle the suspects' address. Agents conducting surveillance at the residence saw a black male matching the description given by the informant go into the apartment. This evidence was sufficient to give the agents a reasonable suspicion to believe defendants were involved in the bank robberies and to conduct an investigatory stop.

No brightline test separates an investigatory stop from an arrest. Instead, whether a seizure has become too intrusive to be an investigatory stop and must be considered an arrest depends on the degree of intrusion, considering all the circumstances. United States v. Roper, 702 F.2d 984, 985 (11th Cir.1983). We have concentrated on the public interest served by the seizure, the nature and scope of the...

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