72 F.3d 1200 (5th Cir. 1996), 94-10185, United States v. Fields

Docket Nº:94-10185.
Citation:72 F.3d 1200
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ray Charles FIELDS, a/k/a
Case Date:January 09, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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72 F.3d 1200 (5th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ray Charles FIELDS, a/k/a "RC", "Big Daddy", Timothy Fields,

Ted Ross, Darron Fields, Clyde McDonald, a/k/a

"Polo", and Terry Richardson, a/k/a

"Freeze", Defendants-Appellants.

No. 94-10185.

United States Court of Appeals, Fifth Circuit

January 9, 1996

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Lawrence B. Mitchell, Roger F. Joyner, Dallas, TX, for Ray Charles Fields & Darron Fields & Timothy Fields.

Timothy Fields, pro se.

John H. Hagler, Dallas, TX, for Ross.

Clyde McDonald, pro se.

Terry Richardson, pro se.

John D. Nation, Dallas, TX, for McDonald.

Steven Mark Strong, Dallas, TX, for Richardson.

Joe C. Lockhart, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Dallas, TX, for Appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before REYNALDO G. GARZA, JOLLY and DUHE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

I.

BACKGROUND

Appellants were convicted of multiple offenses arising out a conspiracy that operated a crack cocaine distribution ring in Dallas, Texas. According to the evidence most favorable to the government, the ring, known as the Fields organization, was headed by Ray Charles Fields ("Ray Fields"). His brothers, Timothy and Darron Fields, helped him run the operation. The Fields organization would buy large amounts of powder cocaine, turn it into crack cocaine, distribute it to salespersons at various sites, and then pick up the money from the salespersons.

Defendant Ted Ross ("Ross") ran two of the Fields organization's crack cocaine distribution sites. One was located on Rupert Street and the other at a car wash. Clyde McDonald ran drugs to various locations. Terry Richardson ("Richardson") delivered money from the distribution sites to a game room, where the money was collected and employees were paid.

The Fields organization distributed more than 1,000 kilograms of crack cocaine before it was broken up by law enforcement. The

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defendants were then tried and convicted of various offenses arising out of their involvement in Fields organization. They now appeal from those convictions on various grounds.

II.

THE DEFENDANTS' BATSON CLAIM

The prosecution exercised four of its peremptory strikes against minority venirepersons. Three were exercised against blacks, and the fourth against a hispanic. The defendants concede that the prosecution gave race-neutral reasons for excusing three of the minority venirepersons. But all the defendants, except for Richardson, claim that the prosecution exercised its peremptory strike against the fourth, a black female, on the basis of race. The prosecution contends that it had race-neutral reasons for striking that venireperson. Specifically, she was young, which made her more likely to identify with the defendants, she avoided eye contact with the prosecutor, and she looked at the defendants in a flirtatious manner.

The Supreme Court has set up a three-step process for examining objections to peremptory challenges on the grounds of race. 1 First, a defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. 2 Second, if the defendant makes such a prima facie showing, the burden shifts to the prosecutor to articulate a race-neutral reason for excusing the juror in question. 3 Third, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. 4

The Supreme Court stated that a race-neutral explanation is an explanation based upon something other than the race of the juror. 5 Such an inquiry should focus upon the facial validity of the prosecutor's explanation. 6 Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason given by the prosecution will be deemed race-neutral. 7 Further, this circuit has recognized that "a prosecutor's explanation for a peremptory strike need not rise to the level of a challenge for cause; it merely must contain a clear and reasonably specific articulation of legitimate reasons for change." 8 We review the district court's determination that the prosecution gave a race-neutral explanation for clear error. 9

Two of the reasons given by the prosecution, the juror's avoidance of eye contact and the juror's age, have been upheld as valid race-neutral reasons by this circuit. 10 The third reason, looking flirtatiously at the defendants, has not previously been passed upon by this circuit. However, we find it to be equally race-neutral. Therefore, we hold that the district court did not err in finding that the prosecution gave race-neutral explanations for excluding the juror.

III.

REFERRAL TO COMMUNITY EXPECTATIONS DURING CLOSING ARGUMENT

All of the defendants, except Richardson, argue that the following portion of the prosecution's closing argument was improper:

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Now, when you convict these defendants, and I think you will because the evidence supports it, all of them, you are not going to stop that problem out there. I don't expect that and you don't expect that. But you know who is going to be glad about that? The neighbors, the high school down the street from Gabriel Gardens Apartments, the business around the corner--

[Defense Counsel] Your honor, I object to reference to community expectations on a particular verdict.

[The Court] Overrule the objection.

[The Prosecutor] The businesses down the street from other Oak Cliff areas, the church down the block from the Metropolitan Apartments. Those are the people that are going to be happy, they will be satisfied, they will know that what's going on down here is the right thing.

It's a neighborhood problem. If we take neighborhoods back by putting these people in jail, we can eventually work our way to solving this problem. But it's got to start right here.

The defendants claim that this argument was an impermissible appeal to the passion and prejudice of the jury. They claim that the prosecution urged the jury to lay the blame for the drug problem on the feet of the defendants, and to end a societal problem by convicting the defendants. They further argue that the argument pressured the jurors to convict by suggesting that the communities most affected by the defendants' actions were expecting a guilty verdict.

In reviewing a claim of prosecutorial misconduct, this Court first determines whether the prosecutor's remarks were improper and, second, whether they prejudicially affected the substantive rights of the defendant. 11 Consideration is given to 1) the magnitude of the prejudicial effect of the statements; 2) the efficacy of any cautionary instruction given; and 3) the strength of the evidence of the defendant's guilt. 12 The magnitude of the prejudicial effect is tested by looking at the prosecutor's remarks in the context of the trial in which they were made and attempting to elucidate their intended effect. 13 At the same time, the district court's on-the-scene assessment of the prejudicial effect, if any, is entitled to considerable weight. 14

The defendants cite no Fifth Circuit cases in which this court found a similar argument to be impermissible, but they do cite several cases from other circuits. First, they cite United States v. Beasley, 15 a case in which the Eleventh Circuit held that the prosecutor's references to the "war on drugs" and to the jury as participants in that war were improper. 16 The court held that those comments were calculated to inflame the jury. However, the Eleventh Circuit refused to reverse the conviction, finding that the comments were not prejudicial to a substantial right of the defendants.

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The defendants next cite United States v. Solivan, 17 a case involving a prosecutor's argument that the jury should tell the defendant and other drug dealers like her that the people of that community did not want drugs in their area. 18 Those comments suggested that, because of the defendant's participation in the drug trade in northern Kentucky, the drug problem facing the community would continue if the jury did not convict her. The Sixth Circuit reversed, holding that it was improper to urge jurors to convict defendants in order to strike a blow against the drug problem faced by society or within their communities.

The defendants also cite United States v. Johnson, 19 a case in which the Eighth Circuit held that a prosecutorial argument that encumbered the defendant with responsibility for the larger societal problem of drugs in addition to his own misdeeds was improper and inflammatory. 20 Finally, they cite United States v. Monaghan, 21 a case in which the D.C. Circuit stated that "[a] prosecutor may not convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking."

This circuit has held that appeals to the jury to act as the conscience of the community are permissible, so long as they are not intended to inflame. 22 This Court upheld as proper the following prosecutor's argument: "You are the arbiters or truth. You are the ones who stand between the citizens of this country and an injustice, crimes that were committed against the nation in which we live." 23 That argument was held to be a mere plea to the jury to do its duty, not an attempt to inflame the jurors. Similarly, this circuit upheld the following argument as proper: "Drugs are a terrible thing and they are ruining the society.... And it's up to you to do something about it and that is...

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