U.S. v. Brown, 01-10323.

• Decision Date: 31 July 2002
• Docket Number: No. 01-10323.,01-10323.
• Citation: 299 F.3d 1252
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jacqueline Panseta BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

299 F.3d 1252

UNITED STATES of America, Plaintiff-Appellee, v. Jacqueline Panseta BROWN, Defendant-Appellant.

No. 01-10323.

United States Court of Appeals, Eleventh Circuit.

July 31, 2002.

Richard C. Klugh, Jr., Federal Public Defender, Kathleen M. Williams, Federal Public Defender, Miami, FL, for Defendant-Appellant.

John Charlton Shipley, Jr., Anne Ruth Schultz, Kathleen Salyer, Miami, FL, for Plaintiff-Appellee.

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

Before CARNES, HILL and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Jacqueline Panseta Brown appeals her convictions for importation of 500 grams or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 952(a) and 960(b)(2), and possession with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B). Specifically, she challenges the government's use of its peremptory strikes in jury selection, evidentiary rulings by the district court, and the court's denial of a motion to withdraw made by Brown's retained counsel.

I. Background

Brown, a black Jamaican national, was traveling to Bermuda via Miami when U.S. Customs officers discovered cocaine base in the metal frames of her luggage carts. Cocaine base is the form of cocaine from which cocaine hydrochloride, the powdered form of the drug, is derived, and thus is more potent than cocaine hydrochloride. Although Brown claimed to have no knowledge of the presence of the drugs, the government indicted her on charges of importation of cocaine and possession of cocaine with the intent to distribute. The government later returned two superseding indictments, the latter charging Brown with importation of 500 grams or more of a mixture or substance containing a detectable amount of cocaine, and possession with intent to distribute the same. The government eventually proceeded to trial against Brown under the last superseding indictment.

Before the initial indictment against Brown was returned, the court appointed a federal public defender to represent her. Brown, however, retained her own attorney, David Rowe, prior to the superseding indictments, and filed a stipulation to substitute Rowe for the public defender as her counsel of record. The magistrate judge, to whom pretrial matters had been referred by the district court pursuant to 28 U.S.C. § 636, accepted the stipulation, and substituted Rowe as "permanent counsel in this case." Seven weeks later, Rowe filed a motion to withdraw, indicating that Brown no longer wished him to represent her. The motion was denied by the magistrate judge and never appealed to the district court. Brown therefore proceeded to a jury trial with Rowe as her attorney.

Prior to trial, the government had moved in limine to exclude any evidence or argument by Brown that she had been targeted by U.S. Customs on account of her race; the district court deferred ruling on the matter. At trial, after the government exercised its first two peremptory strikes against African-Americans, the defense raised a Batson objection. The government offered as its reason for challenging one of the stricken jurors that she had worked in the felony division of the county clerk's office and therefore might have developed relationships with other charged felons. The second stricken juror had friends who had used cocaine, as well as a nephew who was in prison on a cocaine-related charge.¹ The district court found the government's proffered reasons to be credible and unrelated to race, and accordingly denied Brown's challenge. When the government exercised its third strike against an African-American juror, Brown renewed her challenge. The government offered that the juror in question had been on a prior jury panel that had been unable to reach a verdict. Brown insisted that this explanation was pretextual, but again, her objection was overruled.

At trial, to prove Brown's knowledge of the presence of the cocaine in her luggage carts, the prosecution relied primarily on the testimony of a DEA agent, offered without objection as an expert in the field of drug valuation, that the wholesale value in Bermuda of the cocaine base with which Brown had been found was approximately $217,000. The government argued that an unknowing innocent would not have been entrusted with such valuable contraband. Brown attempted to contradict this estimated value with a copy of a written DEA price list referred to by the drug valuation expert during his cross-examination, but upon which the expert did not rely in forming his opinion as to the value of cocaine base in Bermuda. The district court excluded the written price list and disallowed cross-examination on the information contained therein. The jury convicted Brown on both counts of her indictment, and the court sentenced her to sixty-three months' imprisonment.

II. Discussion

A. The Batson Challenge

In Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court announced the rule that "the State's privilege to strike individual jurors through peremptory challenges [] is subject to the commands of the Equal Protection Clause." In cases involving such an equal protection challenge to jury selection, (1) the party challenging the strike must establish a prima facie case of discriminatory intent in the use of peremptory strikes; (2) the party making the strikes must articulate a non-discriminatory explanation for challenging the jurors; and (3) the court must determine whether the party challenging the strike has met her ultimate burden of proving purposeful discrimination. See Bui v. Haley, 279 F.3d 1327, 1335 (11th Cir.2002). A prima facie case is established where the challenging party establishes "facts sufficient to support an inference of racial discrimination." Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., 236 F.3d 629, 636 (11th Cir.2000). If the explanations of the strikes offered in response are devoid of inherent discriminatory intent, even if not persuasive, the court then proceeds to the ultimate inquiry of whether the objecting party has shown purposeful discrimination. See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

Although this court reviews the constitutional principles of Batson de novo, we accord "great deference" to a district court's ruling on whether the challenging party established a prima facie case. See United States v. Allen-Brown, 243 F.3d 1293, 1296 (11th Cir.2001). We review only for clear error a district court's determinations as to whether the challenged party's proffered explanations are credible. See id. at 1297.

Assuming arguendo that Brown met her initial burden in making her Batson challenges, the district court did not clearly err in finding that the race-neutral reasons offered by the government for its strikes were credible. The court made this determination with knowledge of the government's motion in limine, and Brown introduced no evidence tending to discredit the government's proffered explanations and to establish pretext.

B. The Evidentiary Rulings

We generally review a district court's evidentiary rulings for "clear" abuse of discretion. United States v. Novaton, 271 F.3d 968, 1005 (11th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 2345, 153 L.Ed.2d 173 (2002). Under this standard of review, even an incorrect evidentiary ruling will not be grounds for reversal unless there is a reasonable likelihood that the error affected the defendant's substantial rights. See United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999); see also Fed.R.Evid. 103 ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected...."). Where, however, no contemporaneous objection was made to the challenged ruling, the ruling is reviewed only for plain error. See, e.g., United States v. Siddiqui, 235 F.3d 1318, 1321 (11th Cir. 2000); United States v. Mendez, 117 F.3d 480, 485 (11th Cir.1997); see also Fed. R.Evid. 103 (requiring that a timely objection or motion to strike appear in the record before error will be found in evidentiary rulings, but noting that "[n]othing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court"). Where a party challenges the admission of evidence, "[i]n order to find plain error..., we must find that the admission of this testimony constituted a miscarriage of justice." United States v. Russo, 796 F.2d 1443, 1463 n. 8 (11th Cir.1986).

Brown argues that the district court improperly excluded a DEA drug price list she offered. She also challenges another ruling by the district court, which she frames as the erroneous admission of an unwritten government report. We believe that this latter contention, however, is better understood as a challenge by Brown, on hearsay grounds, to the basis of the DEA agent's expert opinion on drug value. The exclusion of the written price list was the subject of a timely objection by Brown, and we therefore review for abuse of discretion, and the effect of any error on Brown's substantial rights. There is no indication in the record, however, that Brown made any objection or motion to strike in reference to the admitted hearsay,² and accordingly, this evidentiary ruling is reviewed under the plain error standard.

We turn first to the testimony of the DEA agent offered by the government as an expert in drug valuation. The witness had substantial experience investigating narcotics smuggling, including involvement in undercover investigations in which he negotiated narcotics prices with drug dealers. Although he had never been assigned to Bermuda, the agent was accepted without objection as an expert in the field of narcotics evaluation. He...