U.S. v. Beasley

• Decision Date: 17 February 1995
• Docket Number: No. 94-2586,94-2586
• Citation: U.S. v. Beasley, 48 F.3d 262 (7th Cir. 1995)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark E. BEASLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 262

48 F.3d 262

UNITED STATES of America, Plaintiff-Appellee, v. Mark E. BEASLEY, Defendant-Appellant.

No. 94-2586.

United States Court of Appeals Seventh Circuit.

Argued Dec. 14, 1994.

Decided Feb. 17, 1995.

John Vaudreuil (argued), Larry Wszalek, Office of U.S. Atty., Madison, WI, for plaintiff-appellee.

Mark A. Eisenberg, Madison, WI (argued), for defendant-appellant.

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

In May 1994, a federal jury convicted Mark E. Beasley of interstate transportation of a firearm with the intent to commit a bank robbery, in violation of 18 U.S.C. Sec. 924(b). Beasley argues that he was denied his Sixth Amendment right to trial by an impartial jury. Specifically, Beasley contends that the district court judge should have allowed Beasley's challenge of a prospective juror, Kathleen Brogan, and excused her from jury duty for cause. Brogan had a connection to law enforcement: her son was a police officer, her brother was Chief of Police for the Town of Madison, and her husband was a dispatcher for the state police. However, Brogan gave no indication during voir dire that her connections would influence her impartiality in the case. Because of Brogan's answers and the wide discretion given trial judges during voir dire, we hold that the Sixth Amendment has not been violated in this case. Additionally, Beasley argues that the judge abused her discretion in not providing reasons for denying Beasley's motion to strike three prospective jurors for cause. We disagree and hold that the judge's reasons are apparent from the context of her questions and the prospective jurors' answers.

I. Background

In December 1993, Federal Bureau of Investigation (FBI) agents tape-recorded telephone conversations between Beasley and a police informant, in which Beasley discussed his plan to rob an automated teller machine in the City of Madison, Wisconsin. Subsequently, Beasley was arrested. In Beasley's car, FBI agents found a semi-automatic pistol, body armor, disguises, police radio scanners, and other electronic equipment. The grand jury indicted Beasley for interstate transportation of a firearm with the intent to commit a bank robbery, in violation of 18 U.S.C. Sec. 924(b).

The district court judge conducted voir dire of potential jurors for trial. Initially, Judge Crabb asked several questions addressed to the group of potential jurors. Then, the prospective jurors introduced themselves and the judge asked each of them specific questions. Also, upon Beasley's request, the judge asked additional questions of certain prospective jurors, including Brogan, the challenged juror who ultimately sat in the trial, to determine their impartiality. Beasley made a motion to strike three jurors for cause in addition to his ten peremptory challenges, which Judge Crabb denied.

A. Questions Asked of the Prospective Jury Group

After administering the oath, the district court judge asked the group of prospective jurors a series of questions. First, Judge Crabb asked whether any of the jurors had particularly strong feelings about firearms, belonged to any firearms-oriented organizations, or knew someone injured by a firearm. Several jurors responded and they were excused. None of the three challenged jurors responded in the affirmative.

Judge Crabb also asked whether the jury instructions, including the presumption of innocence, the burden of proof, and the defendant's right not to testify, would trouble any of the prospective jurors. None of the prospective jurors responded that it would.

After the prospective jurors introduced themselves, Judge Crabb asked whether any of them would be more or less likely to believe the testimony of a law enforcement officer over that of any other witnesses just because they were in law enforcement. None of the prospective jurors responded that they would.

Judge Crabb also asked whether the prospective jurors would accept her instructions on the law and sit with absolute fairness and impartiality. None of the challenged prospective jurors responded that they could not sit with impartiality.

As well as asking questions addressed to the group of potential jurors, the judge questioned each individual juror on certain matters. Kathleen Brogan was challenged and was subjected to questioning regarding her connection to law enforcement.

B. Specific Questions Asked of Kathleen Brogan

The transcript of voir dire reveals that juror Brogan was individually questioned by the judge regarding her impartiality:

Prospective Juror Brogan: My name is Kathleen Brogan. I'm 51 years old. I'm married, I have five grown children. I am a clerical support worker at MATC. My husband is a dispatcher for the State Patrol.

The Court: And where do your children work? What kind of jobs do they do?

Prospective Juror Brogan: My oldest son is a sergeant with the Dane County Sheriff's Department. My second son is a printer. My third son is a chef. My fourth son is a graduate student. And my youngest son is an agent in the United States Air Force.

The Court: Would the fact that your son is with the sheriff's department make it difficult for you to be impartial in a criminal case?

Prospective Juror Brogan: I don't think so.

(Tr. Vol. 9 at 1-A-27).

Later, the court asked whether any of the prospective jurors, their relatives, or close friends, had worked for the local, county, state, or federal government. (Tr. Vol. 9 at 1-A-52). A number of prospective jurors responded yes, including Brogan:

The Court: Ms. Brogan.

Prospective Juror Brogan: I have a daughter-in-law who is a sergeant at the University Police Department, and I also have a brother who works as the Town of Madison Police Chief.

The Court: And would that affect your ability to be fair?

Mr. Eisenberg: I'm sorry I couldn't hear who was the police chief.

Prospective Juror Brogan: My brother.

The Court: Is the police chief, or works for them?

Prospective Juror Brogan: Is the police chief.

The Court: Of the Town of Madison?

Prospective Juror Brogan: Yes. ¹

The Court: Okay. Mr. Timm....

(Tr. Vol. 9 at 1-A-52).

During a bench conference, Beasley requested further questioning of certain prospective jurors, including Brogan, who he alleged had close connections with law enforcement. ² Accordingly, the district court judge asked the following questions:

The Court: Okay. I want to ask some follow-up questions to some of you who have close relationships with people who are police officers. And what I'm trying to get at is that when you're related to a police officer or see one frequently, sometimes you start talking shop, you talk about arrests, you talk about people who are investigated, are charged, are convicted; and I want to know whether in that process you talk about these people in a way that will make it difficult for you to give a fair trial to the defendant in this case.

(Tr. Vol. 9 at 1-A-70). The court continued:

The Court: I guess what I am trying to get at is whether at some point you tend to generally put yourself in sort of the good guy's position as opposed to the bad guy's and you're out to get the bad guys. Sometimes that gets to be sort of a theme among law enforcement people; that they're sort of holding back the tide of crime and whatever. And that's somehow, or sometimes that's the way people like that talk.

And it's one thing if you talk that way, and it's another thing if you can separate those kind of thoughts from your mind to think about this particular case and what happened here.

Ms. Brogan, I think you have a brother who's a police chief and a son who's a police officer. Do you talk shop?

Prospective Juror Brogan: Occasionally.

The Court: And do you talk about--I mean not necessarily using those terms, but do you talk about bad guys and the problems that your brother and son have?

Prospective Juror Brogan: We talk about the problems, but I like to think I have an open mind about things like this. And I form my own opinions.

The Court: Okay. Mr. Timm....

(Tr. Vol. 9 at 1-A-70, 71).

C. Beasley's Response to Voir Dire

Beasley moved to strike three jurors for cause: Kathleen Brogan, Scott Timm, and William Levy. ³ The judge denied this motion. Beasley then exercised his ten peremptory challenges under Fed.R.Crim.P. 24. Included in the ten were Levy and Timm. Brogan was not included, and she ultimately sat on the jury that convicted Beasley. On appeal, Beasley states that he did not have enough peremptory challenges to strike Brogan, but would have if he could. Beasley argues that his conviction should be reversed under the Sixth Amendment because Brogan, who sat on the jury, should have been stricken for cause.

II. Analysis

A. Sixth Amendment Right to an Impartial Jury

The Sixth Amendment reads, in relevant part, that "the accused shall enjoy a right to a speedy and public trial by an impartial jury...." U.S. Const. amend. VI. The Supreme Court interprets the Sixth Amendment to require that only those jurors who actually sat on the case be evaluated for impartiality.

Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) analyzed the Sixth Amendment's requirement of an impartial jury. In Ross, the state trial court should have dismissed a prospective juror for cause, but did not. The defendant exercised a peremptory challenge to remove the prospective juror. No other jurors were challenged. The Court held that the Sixth Amendment was satisfied because "[a]ny claim that the jury was not impartial ... must focus not [on the challenged juror who was removed by peremptory strike], but on the jurors who ultimately sat." Id. at 86, 108 S.Ct. at 2277. "[W]e reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury." Id. at 88, 108 S.Ct. at 2278. "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result...