U.S. v. Casper

• Decision Date: 11 February 1992
• Docket Number: No. 91-5227,91-5227
• Citation: 956 F.2d 416
• Parties: UNITED STATES of America v. Darrin CASPER, a/k/a Barry Jackson, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 416

956 F.2d 416

UNITED STATES of America v. Darrin CASPER, a/k/a Barry Jackson, Appellant.

No. 91-5227.

United States Court of Appeals Third Circuit.

Argued Jan. 6, 1992.

Decided Feb. 11, 1992.

David A. Ruhnke (argued), Ruhnke & Barrett, West Orange, N.J. and Thomas R. Ashley, Ashley & Charles, Newark, N.J., for appellant.

Michael Chertoff, U.S. Atty., Edna B. Axelrod, and Eric L. Muller (argued), Office of the U.S. Atty., Newark, N.J., for appellee.

Before COWEN, NYGAARD, and WEIS, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

Darrin Casper challenges the judgment of conviction entered against him following a jury trial. At issue in this appeal is whether the circumstantial evidence presented by the government against Casper for violations of the Travel and Hobbs Acts was sufficient to support the guilty verdict rendered by the jury. In addition, Casper contends that a new trial is required because the government used its peremptory challenges to exclude minority jurors from the petit jury venire in violation of the Equal Protection Clause of the Fourteenth Amendment. We conclude that the evidence was insufficient to convict and will reverse.

I.

On April 30, 1990, Casper and nine others were named in a nine-count indictment in the District of New Jersey. The indictment alleged a variety of RICO, Hobbs Act and Travel Act offenses. The allegations contained in the indictment centered around the door-to-door candy sales business run by codefendant Gerald Winters. Following a trial of nine of the ten defendants, which lasted over two months, Casper was acquitted of all but Counts Five and Six. Count Five alleged a conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951 (1988). Count Six alleged a violation of the Travel Act, 18 U.S.C. § 1952 (1988).

The district court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231. This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). A district court's determination that a defendant has failed to make a prima facie showing of racial discrimination in violation of the Equal Protection Clause will be reversed only if that determination is clearly erroneous. United States v. Grandison, 885 F.2d 143, 146 (4th Cir.1989). As an appellate court reviewing the sufficiency of the evidence presented at trial, we must uphold the verdict of the jury "if there is substantial evidence, taking the view most favorable to the government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Aguilar, 843 F.2d 155, 157 (3d Cir.), cert. denied, 488 U.S. 924, 109 S.Ct. 305, 102 L.Ed.2d 324 (1988).

II.

Casper contends that the government exercised its peremptory challenges against "minority" jurors in contravention of the Supreme Court's holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson and its progeny, the Supreme Court set forth the factors necessary to make a prima facie showing of racial discrimination. First, the defendant must show that the challenged jurors were members of a cognizable racial or ethnic group. ¹ United States v. DiPasquale, 864 F.2d 271, 277 (3d Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). Then the defendant must show that the relevant facts and circumstances of the case raise an inference that the prosecution used its peremptory challenges to exclude members of the venire from the petit jury on account of their race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Relevant circumstances include "(1) the fact that peremptory challenges permit a prosecutor predisposed to discriminate to do so; (2) any other pattern of discriminatory conduct; and (3) any prosecutorial statements." United States v. Clemons, 843 F.2d 741, 746 (3d Cir.), cert. denied, 488 U.S. 835, 109 S.Ct. 97, 102 L.Ed.2d 73 (1988). ² If the defendant makes out a prima facie case, the burden shifts to the prosecution to come forward with some neutral explanation for challenging black members of the venire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

A race neutral explanation means an explanation based on something other than the race of the juror. Hernandez v. New York, --- U.S. ----, 111 S.Ct. 1859, 1966, 114 L.Ed.2d 395 (1991) (plurality). At this stage the issue focuses on the facial validity of the prosecutor's explanation. Thus unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. Id.

The Batson Court stated that explanations must be "clear and reasonably specific." 476 U.S. at 98 & n. 20, 106 S.Ct. at 1724 & n. 20. Explanations based on a prosecutor's mere "good faith" or "intuition" do not suffice. Id.; See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (per curiam) ("I just got a feeling about him" is insufficient). The government's explanation, however, need not rise to the level of just cause, Batson, 476 U.S. at 97, 106 S.Ct. at 1723, nor need it be "quantifiable" to be race neutral. See United States v. Lance, 853 F.2d 1177, 1181 (5th Cir.1988). A district court may also choose to accept the prosecution's explanation as race neutral where it rests upon the prosecution's evaluation of a venireperson's credibility and demeanor. See id. (prosecutor's observation of eye contact and demeanor was significant and constituted neutral explanation of peremptory exclusion); United States v. Hughes, 911 F.2d 113, 114-15 (8th Cir.1990) (challenges based on education, sarcastic responses, appearance, and background, were reasonably neutral).

The trial judge plays "a pivotal role" in determining whether a prima facie case has been established. Clemons, 843 F.2d at 745. See also Batson, 476 U.S. at 97, 98 n. 21, 99 n. 22, 106 S.Ct. at 1723, 1724 nn. 21, 22; United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987); United States v. Allen, 814 F.2d 977, 978 (4th Cir.1987); United States v. Mathews, 803 F.2d 325, 330 (7th Cir.1986), rev'd on other grounds, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). A trial judge's finding as to intentional discrimination or lack thereof is a finding of fact. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. We review for clear error. United States v. Clemons, 892 F.2d 1153, 1157 (3d Cir.1989).

There will seldom be much direct evidence of discriminatory intent. Such invidious intent does not rear its ugly head for everyone to see; instead it hides behind the cloak of pretext. Consequently, the trial judge's finding of discrimination largely turns on evaluation of the credibility and demeanor of the attorney who exercises the challenge. Hernandez, 111 S.Ct. at 1870. This evaluation lies "peculiarly within a trial judge's province." Id. Because trial judges' experiences, instincts, and first-hand observations are so crucial, a reviewing court ordinarily should afford their findings "great deference." Id. at 1869.

Here the district court found that the defendants have failed to satisfy even the threshold requirement of showing a prima facie case of discrimination. This notwithstanding, the prosecutor placed on the record his race neutral reasons as to each black venireperson excluded. First, the prosecution excluded one venireperson because he expressed a preconceived opinion as to the legality of tape recording conversations without the knowledge of the speaker. See United States v. Roberts, 913 F.2d 211, 215 (5th Cir.1990) (juror's preconceived notions of the legality of tape recordings even though he later changed his mind is a race neutral reason). Second, it excluded two venirepersons because it considered their responses in the voir dire evasive and inarticulate. See United States v. Ruiz, 894 F.2d 501, 506 (2d Cir.1990) (juror's inarticulateness is a race neutral reason). Third, it excluded a venireperson who had hearing problems because it planned to introduce tape recording evidence during the trial. See United States v. Dawn, 897 F.2d 1444, 1447 (8th Cir.1990) (juror's vision and health problems are race neutral reasons); United States v. Alston, 895 F.2d 1362, 1367 (11th Cir.1990) (hearing problems). Finally, the prosecution excluded another venireperson because she was a relative of a local politician who had recently been unsuccessfully prosecuted for extortion. See United States v. Bennett, 928 F.2d 1548 (11th Cir.1991) (familial association with someone convicted of a crime is a race neutral reason).

For each of the government's explanations, the evidence fully supports the district court's finding of no discriminatory intent. That a defendant can point to facts consistent with a prima facie case is of no importance when we are reviewing a district court's findings under the "clearly erroneous" standard. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). The prosecution provided valid reasons for all of the challenges made to black jurors and the district court, having the opportunity to gauge the prosecutor's credibility in defending his actions, chose to credit those explanations. We hold that the district court did not clearly err.

III.

Counts Five and Six were based on the same incident: the unsuccessful attempt, in Cypress, Texas, to burn an unoccupied van owned by Anthony Spatola. At trial, the government contended that the attempt to burn the van was meant to punish Spatola for competing with the Winters organization in the sale of candy in the Houston area and to prevent Spatola from continuing such competition with Winters. Because the resolution of Casper's allegation as to the insufficiency of the evidence turns on the particular facts of this case and the evidence presented at trial, we set forth in some detail the events leading up to and concerning the attempted burning of...