759 F.2d 381 (5th Cir. 1985), 83-3719, United States v. Leslie

Docket Nº:83-3719.
Citation:759 F.2d 381
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eugene LESLIE, Defendant-Appellant.
Case Date:April 19, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 381

759 F.2d 381 (5th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Eugene LESLIE, Defendant-Appellant.

No. 83-3719.

United States Court of Appeals, Fifth Circuit

April 19, 1985

Robert Glass, New Orleans, La., for defendant-appellant.

John P. Volz, U.S. Atty., Howat A. Peters, Jr., Harry McSherry, Fred P. Harper, Jr., Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana, A.J. McNamara, Judge.

[Majority Opinion, 759 F.2d 366, rehearing en banc granted May 14, 1985]

Before BROWN, WILLIAMS and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge, dissenting.

I respectfully dissent from the holding that this case should be remanded for inquiry into the prosecution's reasons for exercising its peremptory challenges against black venirepersons.

Context Facts

Appellant Leslie was charged, along with Fernando Giron, a Honduran, with distributing and conspiring to distribute cocaine. Trial was held in New Orleans. After the first day of trial, Giron pleaded guilty and testified for the government. Other significant witnesses for the government were Claude Griffin, who testified that he had acquired cocaine from Giron and distributed it to Leslie, who then redistributed it, and Thomas Gray, who had transported cocaine from Houston to New Orleans for Griffin, received money from Leslie in exchange for the drugs, and then given the money to Griffin. Giron, Griffin, and Gray are white; Leslie is black.

The record contains no transcript of the voir dire or jury selection process, although it does include the jury list showing those removed for cause and by peremptory challenge. When the court completed excusing venirepersons for cause, the jury panel had been reduced to twenty-eight, of whom six were black. The government used its six peremptory challenges to remove these six blacks, and the defense used its ten peremptory challenges to remove ten whites. Of the four persons comprising the alternate pool, one was black; the government used its alternate peremptory to remove this individual, and the defense used its alternate peremptory to remove a white from the alternate pool. The procedure and order of exercising peremptory strikes are not reflected in the record.

After the peremptories were completed, Leslie's counsel moved for a mistrial. He complained that the government used its peremptories to remove all the blacks from the jury and alternate pools, and that "in this case, Mr. Leslie is a black man in this community; he has standing in the black community. And without a single black on that jury, there is no way to communicate through peers in this community." Leslie's counsel in effect admitted that there was no racially discriminatory "pattern or practice" of striking blacks, did not claim that anything similar had ever occurred before or would occur again, and made no attempt to analyze or comment on the voir dire or the composition of the venire panel in any terms other than who was black and who was white. He stated that "race is the only thing that explains this situation," and urged use of "the Court's discretion." The Assistant United States Attorney who tried the case for the government stated that the excused blacks were "not struck on the basis of race" and offered to give "an in camera reason," which the court declined. The matter was not raised again in the trial court, either by motion for new trial or otherwise.

On appeal, Leslie's brief casts his complaint in the following context:

"Eugene Leslie, a prominent black fight promoter and trainer in the City of New Orleans, was tried by an all white jury ... on cocaine conspiracy and distribution

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charges.... No significant witness against Leslie was black....

"The government's theory was that Claude Griffin ... had bought cocaine from a Honduran, Leslie's co-indictee Fernando Giron, in Houston, Texas. Griffin sold a part of the cocaine to defendant Leslie....

"FBI agents ... intercepted phone calls between Griffin and Leslie. These telephone calls did not mention cocaine. The calls, however, sounded suspicious to FBI ears since Leslie had repetitively and in varying forms asked Griffin whether there was 'anything yet.'

"The defense presented an entirely innocent explanation for the style of the conversations with Griffin: it was typical for Leslie, a black man, to speak in shorthand about things which he and the other individual in the conversation understood....

"Leslie explained the true meaning of his conversations with Griffin in the following manner. Leslie had first met Griffin in Griffin's capacity as an air conditioning repairman and installer. They struck up a friendship; Leslie visited Griffin, and Griffin visited Leslie. At Griffin's house, Leslie met the co-indictee, Fernando Giron, who was from Honduras. Giron had a relative who possessed an old Volkswagen; Leslie had a hobby of reconditioning old cars, and was interested in that Volkswagen. Additionally, Griffin and Giron talked about young Honduran fighters, and the possibility of their coming to the United States for training; Leslie, ever ready for the opportunity to train a champion, was interested in developing that connection.

"....

"Along with the suspicious conversations of Leslie with Griffin, the FBI had recorded similarly suspicious conversations by Griffin with another prominent black man in the city, the funeral director Alton Glapion. Glapion was a closer friend of Griffin's than was Leslie. Griffin had known Glapion for 20 years, Leslie for under two.... Griffin was then involved in major business dealings with Glapion and Glapion was ready, willing and able to put up his funeral home for bond for Griffin; Leslie on the other hand owed Griffin money.... It was the defense theory of the case ... that when Griffin said the oil conversations with Leslie were about cocaine, while the oil conversations with Glapion were about oil, ... that he had made a self-preserving choice; Griffin had given up the innocent Leslie to protect the also innocent Glapion in order to preserve his credibility, and thereby to save himself and his family, who were indicted along with him, from certain annihilation by the government. 1

"....

"... To acquit the defendant Leslie, a black fight promoter from New Orleans, the jury had to be open to the possibility that Leslie had spoken to Claude Griffin, the principal prosecution witness, in a shorthand that was not code for cocaine. There was no black juror to explain to the rest of the jurors in their deliberations that there was nothing irregular about Leslie's speech patterns; to mediate between Leslie's lifestyle and that of the white jurors; or to evaluate the credibility of the defense from the black perspective."

It is implicit in the foregoing that Leslie does not complain that he was tried by a prosecutor or jury that bore any racial animosity

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toward him or blacks generally. 2 Rather, he complains that, because of the peculiar factual setting of this case, he needed one or more black jurors to "translate" his speech and conduct to the rest of the jury; in effect, to vouch for his explanation of the suspicious conversations and activities. 3 It is likewise implicit that Leslie has never contended that the prosecution peremptorily struck black venirepersons because of personal or official hostility toward blacks, or as part of an effort to prevent black citizens from serving on criminal juries. Rather, the prosecution apparently made the strikes simply in an effort to procure, from among those summonsed and not disqualified, a jury which, under the discrete facts of this particular case, would least likely be partial to Leslie, by excluding blacks as individuals either most prone to see their role as that of translator or spokesman for Leslie or perhaps as being particularly susceptible to influence on behalf of one so prominent in the black community. This is also apparent from Leslie's statement in his brief, repeated in substance at oral argument, that:

"Indeed, there is no pattern or practice in the United States District Court for the Eastern District of Louisiana which could be proved up by a systematic and exhaustive examination of the peremptory practices of the prosecutors. Black jurors are no less prosecution oriented in most cases than are jurors of other races."

The Issue

Accordingly, the question here is not whether the prosecution may peremptorily challenge blacks in an effort to deny citizens of that race the right and privilege of serving on criminal juries. Nor is it what character of proof suffices to sustain such a claim, prima facie or otherwise. No such claim is made. Rather, the issue here is whether the prosecution may take race or similar group characteristics into account when it exercises a peremptory challenge for the sole purpose of procuring a jury least likely to be partial to the defense, in light of the discrete facts of the particular case being tried.

Swain v. Alabama

I believe the answer to this question is clearly supplied by part II of the Supreme Court's opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). As in this case, the prosecution in Swain peremptorily struck all six black venirepersons on the jury panel, with the result that the black defendant was tried by an all-white jury. Swain is, of course, a much cited and quoted opinion. But it is perhaps worthwhile to take another look.

So far as it concerned peremptory challenges by the prosecution based on race or similar group membership, Swain distinguished between and dealt separately with two types of such challenges: first, those made for the purpose of the particular case being tried, which it addressed in part II; second, those made "for reasons wholly unrelated to the outcome of the particular case on trial ... to deny the Negro...

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