783 F.2d 541 (5th Cir. 1986), 83-3719, United States v. Leslie

Docket Nº:83-3719.
Citation:783 F.2d 541
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eugene LESLIE, Defendant-Appellant.
Case Date:February 20, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 541

783 F.2d 541 (5th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Eugene LESLIE, Defendant-Appellant.

No. 83-3719.

United States Court of Appeals, Fifth Circuit

February 20, 1986

Page 542

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., Sidney M. Glazer, Sara Crisitelli, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, and BROWN, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Leslie appeals his conviction for conspiring to distribute narcotics and possessing narcotics with intent to distribute them, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Rejecting his other complaints, a divided panel of this Court sustained Leslie's contention that the district court erred by failing to inquire into the prosecutor's motives for peremptorily challenging black venirepersons, although there was no claim or showing that the challenges were made for purposes unrelated to the outcome of the particular case being tried or were any part of a systematic practice of excluding blacks from jury service. 759 F.2d 366 (5th Cir.1985). The panel majority rested its holding in this respect "upon our supervisory power over federal district courts and federal prosecutors." Id. at 374. This Court, en banc, disagreeing with the panel's resolution of the peremptory challenge issue, affirms Leslie's conviction. 1

We hold that where in a given trial the prosecutor's peremptory challenges are made for the purpose of procuring a jury more likely than otherwise to convict in that particular case, and are not made for purposes unrelated to the case being tried or as any part of a systematic practice of attempting to exclude blacks from jury service, the challenges are not rendered improper because they are made in whole or in part on the basis of the group affiliations, including race, of the challenged venirepersons. We further hold that where, as here, there is neither claim nor prima facie showing that the prosecutor's peremptory challenges were exercised either as any part of a systematic practice of attempting to exclude blacks from jury service or other than for purposes of the particular case being tried, it is a misuse of whatever supervisory authority we may have in the premises to require judicial inquiry into the prosecution's reasons or motives for its peremptory challenges.

The facts of this case, and the Supreme Court's opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), constitute the framework of our analysis. 2

I.

Context Facts

Appellant Leslie was tried in New Orleans, along with Fernando Giron, a Honduran, on charges of distributing and conspiring to distribute cocaine. After the first day of trial, Giron pleaded guilty and testified

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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. The Assistant United States Attorney stated that those challenged were "not struck on the basis of race" and offered to give "an in camera reason," which the trial court declined. The trial court then inquired of Leslie's counsel why he was entitled to mistrial, to which counsel responded:

"Well, the last Supreme Court decision on the subject said that peremptory challenges without demonstrating a pattern or practice, peremptories which strike all blacks, are within the system. But that doesn't eliminate the Court's discretion.

"And 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."

The trial court denied the motion for mistrial, and Leslie's counsel objected stating, "there is no apparent reason, other than race, for the striking."

The matter was not raised again in the trial court, either by motion for new trial or otherwise. No attempt was ever made to analyze or comment on the voir dire. Nothing was said concerning the composition of the venire panel except in terms of who on it was black and who was white. Leslie never claimed that anything similar had ever before occurred or would likely occur again, or that there was any attempt to utilize peremptory strikes for purposes other than the outcome of the case being tried.

In his initial appellant's brief, Leslie 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 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

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manner. Leslie had first met Griffin in Griffin's capacity as an airconditioning 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.... 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. 3

"....

"... 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."

Fairly construed then, Leslie has not complained that the prosecution's exercise of peremptory challenges here was motivated by anything other than an attempt to enhance the chances that the verdict in this case would be favorable to it. There is no allegation or suggestion that these strikes were any part of an effort to prevent black citizens from serving on criminal juries, or were motivated by any personal desire on the part of the Assistant United States Attorney not to associate with blacks. Rather, Leslie 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...

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