U.S. v. Bentley-Smith
Decision Date | 20 September 1993 |
Docket Number | No. 91-3427,BENTLEY-SMITH and E,91-3427 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Thomasdsil M. Elledge, Jr., a/k/a Ken Elledge, Defendants-Appellants. |
Court | U.S. Court of Appeals — Fifth Circuit |
Cyrus J. Greco and Peter T. Dudley, Greco & Greco, Baton Rouge, LA, for Thomas Bentley-Smith.
Edsil M. Elledge, Jr., pro se.
John P. Calmes, Jr., Baton Rouge, LA, for Edsil M. Elledge, Jr.
Howard P. Stewart, Environmental Crimes Section, Washington, DC, James S. Lemelle, Asst. U.S. Atty., Baton Rouge, LA, Jeffrey P. Kehne, Appellate Section, Edward J. Shawaker, Asst. Sec. Chief, Appellate Section, Environment & Natural Resources Div., Washington, DC, for U.S.
Appeals from the United States District Court for the Middle District of Louisiana.
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
Following a jury trial, Ken Elledge and Thomas Bentley-Smith were convicted of conspiring to illegally transport hazardous waste and illegally transporting hazardous materials. Bentley-Smith was also convicted of storing hazardous material without a permit. The defendants raise several issues in this appeal. Finding no reversible error, we affirm.
During early 1983, the Louisiana Department of Agriculture (LDA) sought to dispose of twelve drums of herbicide containing 2, 4, 5-Trichlorophenoxyacetic acid (2, 4, 5-T) and 2, 4-Dichlorophenoxyacetic acid (2, 4-D)--a combination of chemicals commonly known as agent orange. At all relevant times, 2, 4-D and 2, 4, 5-T were both listed as hazardous wastes by the Environmental Protection Agency. See 40 C.F.R. Sec. 261.33. Several of the drums contained liquid herbicide, others contained herbicide that had solidified and separated into layers, and at least one drum contained contaminated soil and debris. In May of 1985, Ken Elledge, the program coordinator for LDA's pesticide waste program, contacted T.H. Agriculture and Nutrition Company (THAN) to see whether it would accept them. 1 Robert Wells, who served as vice-president of THAN, agreed to accept the drums. Wells contacted Paul Zimmerman in the Baton Rouge office of Chemical Waste Management (CWM) to arrange for transport of the drums.
On September 23, 1985, Elledge and Thomas Bentley-Smith, a Project Manager for CWM, met at an LDA warehouse and loaded the drums into a rental truck. Although all of the drums contained a chemical In September of 1990, Elledge, Bentley-Smith, Zimmerman, and Wells were indicted for violations of RCRA. All four men were charged with conspiring to transport hazardous wastes without a hazardous waste manifest and with transporting and causing the transportation of hazardous waste without a hazardous waste manifest in violation of 42 U.S.C. Sec. 6928(d)(5). Bentley-Smith alone was charged with storing hazardous waste without a permit in violation of 42 U.S.C. Sec. 6928(d)(2)(A). One week before trial, Zimmerman pled guilty and testified against the others. Wells was subsequently acquitted by the jury. Elledge and Bentley-Smith were convicted on all counts.
identified as a hazardous waste under the Resource Conservation and Recovery Act (RCRA), 2 no manifest was prepared for the shipment. 3 Bentley-Smith then transported the drums to unit 102 of a mini-warehouse facility in Baton Rouge called David's Mini Storage. The drums remained in unit 102 for about 17 months, until Zimmerman's administrative assistant notified CWM management.
During the jury selection, the defendants used eight of their thirteen peremptory challenges to strike all of the black members of the venire. The government objected to the defendants' proposed strikes on equal protection grounds. After extensive argument by both sides, the district court determined that the defendants' strikes had offended the potential jurors' equal protection rights. The court specifically rejected the defendants' reasons for striking three of the black jurors as pretextual. 4 The district court then reseated the entire venire and directed the attorneys to repeat the peremptory strike process. The defendants were instructed, however, that they could not use peremptory challenges to strike the three black jurors in question. One of these three jurors, George Williams, served on the jury.
It is settled that the Fifth Amendment prevents criminal defendants from using peremptory strikes on the basis of race. Georgia v. McCollum, --- U.S. ----, ----, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992). 5 It is equally settled that the prosecution has standing to assert the equal protection rights of excluded jurors. Id. --- U.S. at ----, at 2357. The district court's determination that a party has used peremptory strikes in a discriminatory manner is a finding of fact and thus cannot be overturned by this Court absent clear error. Hernandez v. New York In the instant case, defendants used their peremptory challenges to strike all blacks from the jury pool. The defendants concede that this demonstrated a prima facie case of racial bias and that the burden then shifted to the defendants to provide race-neutral reasons for the strikes. However, the defendants claim that the district court erred in determining that the defendants applied their peremptory strikes in a racially discriminatory manner.
--- U.S. ----, ----, 111 S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991). The district court's determination is entitled to great deference, since findings in this context largely turn on an evaluation of the credibility or demeanor of the attorney who exercises the challenge. See Batson v. Kentucky, 476 U.S. 79, 98 n. 21, 106 S.Ct. 1712, 1724 n. 21, 90 L.Ed.2d 69 (1986); Hernandez, --- U.S. at ----, 111 S.Ct. at 1869. Where a finding of fact is based upon an incorrect legal standard, the finding loses the insulation of clearly erroneous review. Pavlides v. Galveston Yacht Basin, 727 F.2d 330, 339 n. 16 (5th Cir.1984)
The defendants first argue that the district court improperly allocated the burden of proof in reaching its decision. The Supreme Court has outlined a three-step process for determining whether preemptory strikes have been applied in a discriminatory manner. First, the claimant must make a prima facie showing that the peremptory challenges have been exercised on the basis of race. Second, if this requisite showing has been made, the burden shifts to the party accused of discrimination to articulate race-neutral explanations for the peremptory challenges. Finally, the trial court must determine whether the claimant has carried his burden of proving purposeful discrimination. See Batson, 476 U.S. at 93-98, 106 S.Ct. at 1721-24; McCollum, --- U.S. at ----, 112 S.Ct. at 2359 ( ).
The "shifting burden" described in the Batson framework is one of production only. The ultimate burden of persuasion always lies with the party making the claim of purposeful discrimination. At the second stage of the Batson framework--where the party accused of discrimination must articulate a race-neutral explanation for the peremptory challenges--the issue is merely the facial validity of the explanation. "Unless a discriminatory intent is inherent in the ... explanation, the reason offered will be deemed race neutral." Hernandez, --- U.S. at ----, 111 S.Ct. at 1866. In the instant case, the defendants argue that the district court erred by improperly shifting the burden of persuasion onto the defendants--and requiring the defendants to prove that the strikes were not racially motivated.
We cannot agree. Although the defendants are able to parse out quotations from the district court that appear to support their argument, an examination of the whole transcript tells a different story. Contrary to the defendants' suggestions, it appears that the district court correctly understood the three-part analysis required by Batson.
The district court specifically noted that, under Batson, after the government makes a prima facie showing of discrimination, the burden shifts to the defendant to advance a neutral explanation for the challenge. The court also stated that once the defendants give their explanations, the government has the opportunity to show that defendants' claims are pretextual. The district court's holding followed extensive discussion on this issue by all parties, with the defense presenting their explanations for the peremptory challenges and the prosecution attempting to show that the defendants' proffered reasons were pretextual.
At that point, the Batson framework required the district court to determine whether the prosecution had established purposeful discrimination. In a typical peremptory challenge inquiry, the decisive question will normally be whether a proffered race-neutral explanation should be believed. See United States v. Johnson, 941 F.2d 1102, 1108 (10th Cir.1991). There will seldom be any evidence that the claimant can introduce--beyond arguing that the explanations are not believable or pointing out that similar That is exactly what the government did in this case. A review of the entire record convinces us that the district court did not shift the burden of persuasion to the defendants. Rather, the district court listened to the defendants' proffered explanations and to the response of the prosecution, and simply reached a decision that the defendants' explanations for three of the peremptory strikes were pretextual.
claims can be made about non-excluded jurors who are not minorities.
Next, the defendants argue that the district court erred in concluding that intuitive judgment could not be a race-neutral reason for the challenged peremptory strikes. At the chambers conference discussing the Batson question, the court opined that "[s]...
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