U.S. v. Bennett, 90-3261

• Decision Date: 25 April 1991
• Docket Number: No. 90-3261,90-3261
• Citation: 928 F.2d 1548
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Derick BENNETT a/k/a Jamaican Derick, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1548

928 F.2d 1548

UNITED STATES of America, Plaintiff-Appellee, v. Derick BENNETT a/k/a Jamaican Derick, Defendant-Appellant.

No. 90-3261.

United States Court of Appeals Eleventh Circuit.

April 25, 1991.

Wm. J. Sheppard, Matthew P. Farmer, Sheppard & White, Jacksonville, Fla., for defendant-appellant.

Mark B. Devereaux, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY and JOHNSON, Circuit Judges, and PECK ^*, Senior Circuit Judge.

JOHNSON, Circuit Judge:

Derick Bennett appeals his conviction on charges of cocaine distribution and retaliation against a government informant.

I. BACKGROUND OF THE CASE

In the spring of 1989, Derick Bennett was involved in cocaine distribution in Jacksonville, Florida. He gave some crack cocaine to a friend named Carolyn Taylor. Taylor then took the drugs to Alexander Gardner and asked him to sell the drugs for her. Gardner, however, was a government informant. Working with law enforcement officers, Gardner gathered information on Taylor, Bennett, and others.

In the fall of 1989, after finding out that Gardner was an informant, Bennett approached Gardner on the street and got into an argument with him. Bennett shot at Gardner, but did not hit him.

Bennett was subsequently indicted on charges of retaliating against a confidential government informant in violation of 18 U.S.C.A. Sec. 1513(a)(2) and distributing five grams or more of cocaine in violation of 21 U.S.C.A. Sec. 841(a)(1). He was convicted on both charges in a three-day jury trial in January 1990 and was later sentenced to serve nineteen years and seven months.

In this appeal, Bennett raises issues regarding the government's use of peremptory strikes in the selection of his jury, the district court's denial of his motion to interview prospective government witnesses, and the district court's grant of the government's motion in limine restricting testimony regarding a government witness's drug-related arrests. Bennett also appeals the district court's application of the sentencing guidelines.

II. ANALYSIS

A. Batson Claim

Bennett is a Jamaican-born African-American. His jury was chosen from a venire consisting of thirty-two persons, five of whom were African-Americans. Of its six peremptory strikes, the government used three to strike African-Americans. The empaneled jury contained two African-Americans. After each government strike against an African-American, Bennett objected to the strike as racially discriminatory in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court requested that the government explain its reasons for striking the prospective jurors. In each instance, the court accepted the government's articulated reasons as racially neutral. Bennett asserts on appeal that the government's reasons were not racially neutral, but instead were pretextual. ¹

Once the defendant makes out a prima facie case of racial discrimination, "the burden shifts to the prosecutor to articulate a clear, reasonably specific and neutral explanation for challenging the black jurors." United States v. David, 844 F.2d 767, 769 (11th Cir.1988). We review the district court's findings of fact as to whether the government's articulated reasons are racially neutral on a clearly erroneous standard. Id. In making its determination, the district court may "consider whether the reasons offered by the government for excluding a black member of the venire also applied to white members." United States v. Alston, 895 F.2d 1362, 1367 n. 5 (11th Cir.1990). Bennett's primary argument is that the district court was clearly erroneous in holding the government's reasons racially neutral because white venire members were selected who had the same characteristics for which the African-American venire members were allegedly struck.

The first African-American the government struck was prospective juror Hunt, a nineteen-year-old, single male, who worked as a custodian and who had a relative working in law enforcement. The government's reasons for striking him were his youthfulness, lack of employment experience, and also the fact that he had an uncle who had been convicted on drug charges. The court found this last reason for striking Hunt especially persuasive. Bennett points out, however, that prospective juror Grandstaff, who was white and was not stricken, was also young, inexperienced, and lacked employment history. Moreover, yet another prospective juror, who cannot be identified in the transcript, also had a close family member who had been convicted of drug offenses, but he or she was not stricken.

Prospective juror Grier, the second African-American whom the government struck, was thirty-eight years old, was employed at a Naval Air Base, had been in the military, and had relatives in law enforcement. The prosecutor's articulated reason for striking him was that his ex-wife had been convicted of narcotics possession within the last year. Bennett again points out that the unidentified prospective juror with a close relative who had likewise been convicted of drug charges was not stricken. Moreover, he points out that those with ties to law enforcement and the military are generally good jurors for the government.

The last African-American the government struck was prospective juror Thomas. When the judge asked the venire generally whether any of them had eaten at the "Pepper Pot," a restaurant where Bennett had worked, Thomas said "no" along with everyone else. However, he later told a marshal during a break that he had heard of the "Pepper Pot" and knew it had a "bad reputation." The government asserted his belated admission of knowledge of the "Pepper Pot" and the fact that he lived near the restaurant as its reasons for striking Thomas. Bennett contends that these reasons are irrational because any venire member who knew of the "Pepper Pot" would be likely to be prejudiced against Bennett and therefore be a pro-government juror.

The fact that a prospective juror has "prior family involvement with drug charges," as was the case with Hunt and Grier, has been deemed a racially neutral reason for the government to strike under Batson. Alston, 895 F.2d at 1367. Though the unidentified prospective juror with this characteristic was not stricken, the record does not reflect this prospective juror's race or whether this prospective juror was eventually empaneled. ² Therefore, the comparison between the unidentified non-stricken prospective juror and the stricken African-American venire members does not nullify the government's purported reason for striking. Moreover, "[t]he attributes relied upon by the prosecutor in striking potential jurors are not always easily compared ... and often require an evaluation of the degree to which the prospective juror manifests the stated attribute.... The trial judge is in a superior position to determine whether white members of the venire who were not struck had a greater, lesser, or the same degree of difficulty in following voir dire questions, or whether a prospective white juror's familiarity with a family drug problem was as significant as that of an excluded black member of the venire." Id. at 1367 n. 5. We must therefore defer to the judgment of the trial court.

Bennett further claims, however, that the government's reasons for striking Grier and Thomas are irrational and therefore must be pretextual. See United States v. Alcantar, 897 F.2d 436, 438 (9th Cir.1990) (stating that "claims about the juror, although true, [may be] so irrational as a reason for striking a juror that they might be pretexts for some undisclosed discriminatory reason"). Bennett claims the reasons are pretexts because Grier's familial association with law enforcement makes him a strong pro-government juror and Thomas's knowledge of the "Pepper Pot" should actually prejudice him against Bennett. These reasons in favor of the government's choosing these prospective jurors, however, must be weighed against the government's articulated reasons for striking them. In Grier's case, that articulated reason is his familial association with someone convicted on drug charges, clearly a weighty and racially neutral reason under Alston, supra. In Thomas's case, the government's reason for striking him was his belated admission that he knew of the "Pepper Pot" and that he lived in the area of the restaurant. ³ Though the sufficiency of these reasons for striking Thomas is not as apparent at first glance as the sufficiency of the reason for striking Grier, a close look at the record aids us in determining that they are. See Alston, 895 F.2d at 1367 n. 5 (noting that the weighing and comparisons a Batson claim requires also necessitate a close reading of the hearing transcript).

From the government's explanation regarding the striking of Thomas, the court appears to have assumed that the government's real reason was that the prospective juror lacked forthrightness. This lack of forthrightness was in the court's mind a sufficiently neutral reason justifying the strike. The court noted that Thomas's comments to the marshal would just as easily have supported a strike by the defendant. ⁴

There is, however, some question as to whether Thomas actually lacked forthrightness. The government had requested as one of its four proposed voir dire questions whether the jurors had eaten at or knew of the "Pepper Pot." ⁵ The court, however, asking the question at the close of voir dire, asked only whether they had eaten at the "Pepper Pot." ⁶ Thomas stated along with the other prospective jurors that he had not eaten there. Later, he relayed to the marshal only that he knew of the restaurant's reputation and lived near it even though he had never eaten there. ⁷ Therefore, Thomas was actually truthful in answering the court's question and fastidiously forthright in relaying his...