U.S. v. Fike

Decision Date07 May 1996
Docket NumberNo. 93-1797,93-1797
Parties44 Fed. R. Evid. Serv. 479 UNITED STATES of America, Plaintiff-Appellee, v. Mary Jane FIKE, Eddie Franklin Douglas, Edd C. Douglas, Altonio O'Shea Douglas, Elbert Douglas, Jr., James Weldon Campbell, Burvon King, Orpheus Hill, Arthur Jackson Douglas, Chauncey Mosley, Cynthia Tamplin, Wesley James Wilson, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Richard Alley (Court-appointed), Ft. Worth, TX, for Mary Fike.

William H. Ray (Court-appointed), Fort Worth, TX, for Elbert Douglas.

John W. Sweeney, Jr., Douglas, Kressler & Wuester, Fort Worth, TX, for Arthur Jackson Douglas.

Charles A. Friedman (Court-appointed), Ft. Worth, TX, for Edd C. Douglas.

Louis Edward Sturns (Court-appointed), Arlington, TX, for Cynthia Tamplin.

Michael P. Heiskell (Court-appointed), Johnson, Vaughn & Heiskell, Fort Worth, TX, for James Campbell.

Robert Ford (Court-appointed), Fort Worth, TX, for Wesley Wilson.

Michael Logan Ware (Court-appointed), Fort Worth, TX, for Burvon King.

Michael Berg (Court-appointed), Fort Worth, TX, for Orpheus Hill.

Donald S. Gandy (Court-appointed), Fort Worth, TX, for Altonio O'Shea Douglas.

Gerald H. Goldstein, Cynthia Hujar Orr, Goldstein, Goldstein & Hilley, San Antonio William W. Chambers (Court-appointed), Ft. Worth, TX, for Chauncey Mosley.

TX, John Linebarger, Ft. Worth, TX, for Eddie Franklin Douglas.

J. Michael Worley, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Fort Worth, TX, for appellee.

Willie Abrams, Dennie Courtland Hayes, Baltimore, MD, Gary L. Bledsoe, Bledsoe, Brown, Evans & McCullough, Austin, TX, amicus curiae: NAACP (Eddie Franklin Douglas).

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

Before DAVIS and PARKER, Circuit Judges, and BUNTON 1, District Judge.

ROBERT M. PARKER, Circuit Judge:

Appellants were convicted of participating in a conspiracy to manufacture and distribute cocaine base (crack cocaine) in Fort Worth. The conspiracy distributed approximately five kilograms of crack cocaine each week for eighteen months during 1991-92. A twenty-count indictment was returned against twenty-four defendants. Of these, seventeen were tried in a consolidated trial. After a seven week trial, twelve were convicted of at least one count and now present grounds of error in this appeal. (The counts of conviction and sentences of each appellant are set out in chart form in Appendix A to this opinion.)

The Batson 2 challenge

a. Factual background

All seventeen defendants were African-American. Of the 147 persons on the venire panel, four were African-American. One African-American was moved from the back of the panel to the front to place her within "striking range," with the agreement of the prosecutor. Prior to voir dire, Appellants orally moved to quash the panel, contending that African-Americans were underrepresented. The district court denied the motion but allowed as timely written motions on the same grounds. Two African-Americans served on the petit jury finally selected.

Defense counsel asked during voir dire if the venire members would "have a concern" if an all white jury was selected in this case. Williams, an African-American venireman said, "Yes, based on the practice of the U.S. Justice System." Although no follow-up questions were put to Williams, the prosecutor struck him. Appellants made a Batson motion, alleging that the prosecution's peremptory strike against Williams was racially motivated. The district court found that a prima facie case of discrimination had been made and asked the prosecutor to respond by articulating its reasons for striking Williams. The prosecutor stated that Williams had been struck because he

expressed concerns about past practices of the government--of the U.S. Judicial System. Your honor, we felt that that would increase the burden of proof on the government that would start us off--while not a legal strike, but it would start us off in a position with that particular juror where we might have a greater burden of proof or that he might look at our system whereas most of the prosecuting group is not a minority, that that was a permissible peremptory challenge that we felt that he would not serve as good as others.

The main thing, Your honor, were his comments concerning the judicial system. We want jurors that have faith in and are--the greater faith, the better as far as the government is concerned, in the judicial system.

The district court found the reason credible and race-neutral.

b. Standard of review

The trial court's decision on the ultimate question of discriminatory intent is a finding of fact which is accorded great deference on appeal. Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395 (1991).

c. Was the Government's articulated reason race neutral?

The Government's explanation must be facially valid. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Purkett v. Elem, --- U.S. ----, ----, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). The requirement that the reason be legitimate does not mean that it be persuasive or even plausible, but that it does not deny equal protection. Id. Appellants do not argue that the articulated reason was not credible. Rather, they argue that it was not race-neutral because the prosecutor projected a general distrust of the justice system by African-Americans on an African-American juror who voiced concern about past problems with the U.S. justice system. The distinction drawn by Appellants between past concern and present concern is not self-evident in Williams' answer, quoted above, and adds no strength to their argument.

Appellants rely primarily on United States v. Bishop, 959 F.2d 820 (9th Cir.1992), in which the Ninth Circuit held that the prosecutor's articulated reason for striking an African-American venire member was inadequate under Batson. The prosecutor explained that he struck the individual because she was poor and lived in a poor, violent area of Los Angeles where residents are anesthetized to violence and probably believe police "pick on" African-American people. The defendant established that the correlation between residence in that area of town and being African-American was very high and that the prosecutor's reason was a "surrogate for racial bias." The court held that the reason was not race-neutral because it was a generic reason and a group-based presumption that a poor African-American person could not fairly try an African-American defendant. As in this case, two African-Americans served on Bishop's jury.

Appellants contend that the prosecutor's reason was a generic reason, a group-based presumption, and a surrogate for racial bias. The Government responds that a group-based presumption or bias was not projected onto Williams because he personally articulated his distrust of the U.S. Justice system. In support of the trial court's findings, the Government also points out that the prosecutor agreed to allow one African-American venire member to be moved to the front of the panel and that two African-Americans served on the petit jury. Additionally, the Government used some strikes on whites.

Appellants next assert that a white venire member, identified as Juror Number 4, articulated concerns similar to Williams' and was not struck by the prosecutor. That argument is specious because she was excused prior to the Government's exercise of peremptory challenges.

Finally, Appellants argue that Wilson's articulated concern is precisely the concern voiced in Batson: "Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Batson, 476 U.S. at 87, 106 S.Ct. at 1718. Their logic does not persuade us. Batson does not forbid striking a juror who holds a particular opinion about the U.S. justice system. Rather, it forbids striking jurors based on their race.

Under the "great deference" standard of review, the district court's decision must stand. Even though we find Bishop 's reasoning persuasive, it is easily distinguishable from this case because Williams' stated concern about the justice system removes the specter of generic reason or group based presumption. The prosecutor struck Williams because of a personal attitude expressed during voir dire, not because he assumed, based on race, that Williams held that attitude.

SELECTION OF THE VENIRE PANEL

Appellants complain that the district court erred in denying their motion to quash the venire panel for violation of the fair cross section requirement, their constitutional right to equal protection, the Jury Selection Act, and the Jury Plan for the Northern District of Texas.

a. Fair cross section argument

In order to prove a fair cross section violation the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). The district court held that Appellants failed to establish the second prong of a prima facie fair cross section violation because the evidence adduced at the hearing showed that African-Americans have been fairly and reasonably represented on venires in the Fort Worth division. Appellants presented evidence that the African-American population in the Fort Worth division is approximately 10.4%. That figure, which represents the percentage of African-Americans in the gross population of the division, is irrelevant for Sixth Amendment purposes, however, because the pertinent inquiry is the...

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