U.S. v. Andrade, s. 85-5031
| Citation | 20 Fed.R.Evid.Serv. 570,788 F.2d 521 |
| Decision Date | 14 April 1986 |
| Docket Number | 85-5032,Nos. 85-5031,s. 85-5031 |
| Parties | 20 Fed. R. Evid. Serv. 570 UNITED STATES of America, Appellee, v. Joseph Maria ANDRADE, Appellant. UNITED STATES of America, Appellee, v. Benjamin Calvin RILEY, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Andrew Birrell, Neal J. Shapiro, Minneapolis, Minn., for appellants.
Peter M. Connors, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before ROSS, Circuit Judge, BRIGHT, Senior Circuit Judge and BOWMAN, Circuit Judge.
Joseph Andrade and Benjamin Riley appeal from a final judgment entered in the district court 1 in accordance with a jury verdict finding them guilty of mail fraud, wire fraud, and conspiracy in violation of 18 U.S.C. Secs. 1341, 1343 and 371 (1982). For reversal, Andrade and Riley argue that: 1) they were denied certain constitutional rights by the government's use of peremptory challenges to exclude black prospective jurors from the jury panel; 2) there was insufficient evidence to convict them of the crimes they were charged with; and 3) the district court erred in denying their motions for severance on the grounds that they were misjoined and/or prejudicially joined. Additionally, Andrade argues individually that the prosecutor made an improper objection which constituted prosecutorial misconduct and that the district court erred in admitting into evidence an FBI agent's notes taken during an interview with Andrade. For the reasons discussed below, we affirm their convictions.
On June 6, 1984, appellants Andrade and Riley were indicted by a federal grand jury in a multicount wire fraud, mail fraud, and conspiracy indictment along with codefendants, Walter Little, Curtis Bell, Vanasa Ford, Judy Copeland, Joshua Ivory, and Samuel Powers. The codefendants were accused of participating in a scheme devised by Little to defraud several commercial airlines. The scheme consisted of obtaining airline tickets by means of the unauthorized use of various credit card numbers. The tickets so obtained were then either sold, used, or cashed-in.
Appellant Andrade was accused of obtaining buyers for the fraudulently obtained tickets and charged with two counts of mail fraud, eight counts of wire fraud, and one count of conspiracy. Appellant Riley, an airline employee, was accused of giving cash refunds for some of the fraudulently obtained tickets and charged with one count each of mail fraud, wire fraud, and conspiracy. The remaining codefendants were charged with other activities connected with the scheme, for example, obtaining the credit card numbers, ordering the tickets, or taking delivery of the tickets. Following the indictment the codefendants were scheduled for a joint trial.
A joint pretrial motion hearing was conducted. Among other matters, the severance motions of Andrade and Riley were heard and denied. Prior to trial, five of the codefendants, Little, Bell, Ford, Copeland, and Powers pled guilty to various counts. The joint trial of the remaining defendants, Andrade, Riley, and Ivory commenced on November 5, 1984.
During voir dire the government used two of its peremptory challenges to strike the only two black persons from the jury panel. Because all three defendants were black, Andrade objected. At a bench conference, Andrade's counsel admitted to having previously represented one of the black venirepersons and conceded that the government had a proper reason to strike her. However, he maintained that the government's use of its peremptory challenge of the other black person was based solely on race and therefore in violation of defendants' constitutional rights. Appellant Andrade moved for a mistrial on this ground and Riley joined the motion.
The government opposed the motion and explained the reason it struck the remaining black venireperson, after expressly stating that it had no obligation to do so. The prosecutor stated that he struck the black male because he lived in the same neighborhood where about three-quarters of these airline tickets were mailed, or at least a good half of them were mailed. The court requested briefs and affidavits on the issue. After these were submitted the court denied the motion for a mistrial.
The case proceeded to trial which lasted ten days. The trial record, construed in the light most favorable to the government reveals the following pertinent facts. Sometime prior to 1984, Walter Little devised the scheme to defraud certain commercial airlines. Little obtained credit card numbers from Joshua Ivory who worked at a Montgomery Wards store in Minnesota and Samuel Powers who worked at J. Riggins and Company, a clothing store in Minnesota. Using the credit card numbers taken from charge receipts or carbons of charge receipts, Little ordered, or had others order for him, airline tickets by phone and mailed to his address or to the address of others. Little either used, sold, or cashed-in these tickets which had been fraudulently obtained by the unauthorized use of credit card numbers.
At trial, representatives of ten airlines testified that the tickets entered as exhibits in this case were issued by their telephone ticket offices and were purchased by use of credit cards. They testified that payment on each ticket had been refused and that the individual airlines suffered the consequent loss. Approximately 43 credit card holders testified or provided by stipulation that their credit card numbers had been used to order airline tickets without their authorization, shortly after they had made purchases at the Montgomery Wards and J. Riggins stores where Ivory and Powers worked.
Two of the codefendants who pled guilty prior to trial testified. Vanasa Ford testified that she ordered several tickets using credit card accounts that she didn't own and that she took delivery of the mailed tickets for Walter Little. Curtis Bell testified that he lived with Little or visited him daily during the period covered in the indictment. Bell stated that he picked up tickets at the airport for Little and allowed Little to use his bank account to deposit airline refund checks.
There was evidence that Andrade obtained customers to purchase the tickets that Little had fraudulently obtained. At trial 13 people testified that they had obtained half-price airline tickets through Andrade. Andrade testified at trial and admitted that he got the buyers for Little but denied any criminal knowledge or intent.
According to the government's evidence appellant Riley participated in the scheme by reissuing cash airline tickets for tickets purchased with credit cards and in some instances by giving cash refunds for the fraudulently obtained tickets. Three refund drafts issued by Riley turned up in an account under Little's control. Riley did not testify at trial but the gist of his defense was that he mistakenly reissued cash tickets or refunds with no knowledge of Little's scheme. It was established at trial that Riley knew Little and used to live next door to him.
The jury convicted both appellants and Ivory of all counts charged against them in the indictment. Following the denial of post-trial motions, Andrade was sentenced to a term of imprisonment of 15 months on each count to be served concurrently, and Riley was sentenced to a term of imprisonment of 20 months on each count to be served concurrently. Ivory was also sentenced, but only the appeals of Andrade and Riley are now before this court.
The first issue in this appeal is raised by both Andrade and Riley. They contend that the prosecutor violated their fourteenth amendment right to equal protection and their sixth amendment right to trial before an impartial jury drawn from a fair cross-section of the community by intentionally excluding blacks from the jury solely because of their race. The government maintains that the district court's refusal to grant a mistrial on these grounds was proper because the appellants failed to establish either a systematic exclusion as required in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) or an exclusion for an impermissible reason, and further because this court in its en banc decision of United States v. Childress, 715 F.2d 1313, (8th Cir.1983) (en banc), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984) concluded "that there [was] no sixth amendment exception to the equal protection analysis in Swain." Id. at 1318.
To rebut the government's contention that the appellants' arguments are controlled by Swain and Childress, appellants argue that Swain does not apply to this case because the prosecutor stated his reasons on the record, that Swain is under attack, and that this court should reconsider Childress in light of recent developments in this area. 2
Because of the record in this case we need not undertake a re-examination of the law of peremptory challenges. To do so at this time would be imprudent and unnecessary. 3 We have previously suggested that
the potential for racially motivated misuse of the government's peremptory challenges might be minimized if the trial court exercised its "supervisory powers over the trial of criminal cases ... [by requiring] the prosecutor to discharge his [or her] duties in a fair, even, and constitutional manner, and thus ensure that no potential juror is denied the privilege of serving upon a jury solely because of his [or her] race."
Childress, supra, 715 F.2d at 1321 (citations omitted). Having reviewed the record in this case, it is apparent to us that the district court did so here.
The record reflects that prior to the exercise of each side's peremptory challenges defense counsel for Andrade raised the issue of the impropriety of the government using its peremptory challenges to strike all black prospective jurors. In response, the prosecutor stated for the record that no decision would be made based on...
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