U.S. v. Chandler

• Decision Date: 01 February 1994
• Docket Number: No. 92-4017,92-4017
• Citation: 12 F.3d 1427
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dwight P. CHANDLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1427

12 F.3d 1427

UNITED STATES of America, Plaintiff-Appellee, v. Dwight P. CHANDLER, Defendant-Appellant.

No. 92-4017.

United States Court of Appeals Seventh Circuit.

Argued May 3, 1993.

Decided Jan. 3, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 1, 1994.

Robert T. Coleman (argued), Kit R. Morrissey, Asst. U.S. Attys., Crim. Div., Fairview Heights, IL, for plaintiff-appellee.

Renee E. Schooley, Federal Public Defender, Andrea L. Smith (argued), Office of the Fed. Public Defender, East St. Louis, IL, for defendant-appellant.

Before POSNER, Chief Judge, COFFEY, Circuit Judge, and WILLIAMS, District Judge. ^*

COFFEY, Circuit Judge.

A jury convicted Dwight Chandler of two counts of distributing crack cocaine and one count of possessing with intent to distribute crack cocaine, all in violation of 21 U.S.C. Sec. 841(a)(1). The district court sentenced Chandler to concurrent terms of ninety-seven months' imprisonment, to be followed by four years of supervised release. In this appeal Chandler challenges the lawfulness of the prosecutor's use of a peremptory challenge to strike a black man from the venire, the sufficiency of the evidence supporting his conviction, and the district court's computation of his sentence. We affirm Chandler's conviction and sentence.

I. BACKGROUND

In January of 1992 an officer of the O'Fallon, Illinois police department stopped Chandler for a traffic violation. The officer arrested Chandler upon finding a set of stolen license plates in the back seat of the car and some crack cocaine lying on the street just outside the car. Crack cocaine was also found hidden in Chandler's boots. Chandler agreed to pay his debt to society by working undercover for the local police department. His duties were to arrange and make purchases of cocaine while the police observed and recorded the transactions. Chandler's first assignment was to purchase cocaine from a drug dealer in East St. Louis, Illinois named Julius Jackson. Police provided Chandler with a recording device and money to be used in making the purchase. The transaction went off without a hitch. Chandler subsequently arranged a second transaction with Jackson that resulted in the recovery of one-quarter kilogram of cocaine and Jackson's arrest.

Following Jackson's arrest, Chandler kept in contact with police but claimed he was unable to set up another transaction like the one with Jackson. A month or so after Jackson's arrest, a confidential informant told Detective Harper of the Belleville, Illinois police department that Chandler was selling crack cocaine in the Belleville area. Harper had the informant arrange a meeting with Chandler. During this meeting, Chandler sold Harper three grams of crack cocaine and gave Harper his telephone number. About one month later, Harper used this number to contact Chandler and arrange another drug buy. This time, however, Harper arranged for fellow police officers to move in and arrest Chandler if the transaction took place.

Chandler and Elvis Miller, a passenger in his car, met Harper as planned in the parking lot of a restaurant in Belleville. Harper gave Chandler $250 in exchange for 2.8 grams of crack cocaine. Using a prearranged signal, Harper alerted the arresting police units that the purchase had been consummated. As Chandler pulled his car out of the lot, a patrolman activated his red lights and siren and pulled behind him. Chandler slowed his car as if to stop, and then sped away. The patrolman, Detective Harper, and the others followed in hot pursuit. Chandler veered into an alley behind a service station, which turned out to be a dead end. As a result, Chandler was forced to turn back to the front of the station and, as he did, the rear panel of his car collided with the front fender of Harper's vehicle. Chandler kept on going; the police followed and forced Chandler to pull over on a nearby street. The entire chase lasted about five minutes. Chandler and Miller were arrested and, during the search of Chandler's car, a pistol, two vials of cocaine, and the $250 that Harper had given Chandler were recovered.

Chandler was charged by indictment with two counts of distributing crack cocaine and one count of possessing with intent to distribute crack cocaine, all in violation of 21 U.S.C. Sec. 841(a)(1), and one count of carrying a firearm during a drug-trafficking offense in violation of 18 U.S.C. Sec. 924(c). A jury trial followed. During voir dire, the government used a peremptory challenge to strike a black man from the venire. Chandler was ultimately found guilty of the distribution and possession counts and was acquitted of the firearm count by a twelve-member jury that included two black jurors.

The district court computed Chandler's sentence under the United States Sentencing Guidelines. Chandler's criminal history category was I. The base offense level of 26 was increased by two points pursuant to Guidelines Sec. 3C1.2 because the court found that Chandler had recklessly endangered the life of another person in the course of fleeing from the Belleville, Illinois police, and by an additional two points pursuant to Guidelines Sec. 2D1.1(b)(1) because the court found that Chandler simultaneously possessed the pistol that was found in his car and distributed crack cocaine. The court declined to decrease the offense level by two points pursuant to Guidelines Sec. 3E1.1 because it found that Chandler had not accepted responsibility for his offenses. All of this resulted in a sentence of ninety-seven months in prison to be followed by four years of supervised release.

II. DISCUSSION

A. Batson Claim

Chandler, who is black, argues that he was deprived of equal protection of the laws when the prosecutor used his peremptory challenge to exclude the black venireman from the petit jury. The Equal Protection Clause of the Fourteenth Amendment prohibits the exercise of peremptory challenges to exclude venirepersons from the petit jury on account of their race. Batson v. Kentucky, 476 U.S. 79, 85, 106 S.Ct. 1712, 1716, 90 L.Ed.2d 69 (1986). This prohibition extends to the federal government through the Due Process Clause of the Fifth Amendment. United States v. Williams, 934 F.2d 847, 849 n. 1 (7th Cir.1991). In Batson, the Supreme Court set forth an evidentiary framework for assessing whether the exercise of a peremptory challenge violates the Equal Protection Clause. A defendant who suspects that a prosecutor's peremptory challenge to a venireperson is motivated by racial discrimination must make a timely objection to the challenge, 476 U.S. at 99-100, 106 S.Ct. at 1724-25, and then a prima facie showing of purposeful, racial discrimination. Id. at 97, 106 S.Ct. at 1723. Once the defendant makes this prima facie showing, the burden shifts to the prosecutor to come forward with a neutral explanation for the peremptory challenge. Id. The trial court is then obligated to determine whether the defendant has established that the peremptory challenge was motivated by purposeful, racial discrimination. Id. at 98, 106 S.Ct. at 1723.

In this case, the following exchange took place in the district court: The prosecutor expressed her desire to use a peremptory challenge to strike one of the black venirepersons. Chandler's trial counsel asked the prosecutor to give a reason for the challenge. She gave five: (1) the venireman made eye contact with Chandler when asked whether he knew Chandler; (2) he rolled his eyes at some of the court's questions and at other times appeared inattentive; (3) he was young; (4) he was single; and (5) he resided in the same area as Chandler. Chandler's trial counsel responded that she had not seen the venireman make eye contact with Chandler (but conceded that she had not been watching) and noted that the venireman and Chandler were not from the same city (Chandler resided in Belleville, Illinois and the venireman in East St. Louis, Illinois, an adjoining city). There was no further discussion about the black venireman, and the court excused him.

Chandler contends that this exchange was sufficient to preserve a Batson claim for appellate review. We disagree. A timely, specific objection to the use of a peremptory challenge is requisite to a Batson claim. Doe v. Burnham, 6 F.3d 476, 481 (7th Cir.1993); Thomas v. Moore, 866 F.2d 803, 804 (5th Cir.), cert. denied, 493 U.S. 840, 110 S.Ct. 124, 107 L.Ed.2d 85 (1989); see also Batson, 476 U.S. at 99-100, 106 S.Ct. at 1724-25 (prosecutor's use of peremptory challenges evaluated following defendant's "timely objection"). Chandler's trial counsel failed to object to the prosecutor's use of her peremptory challenge. She merely requested that court require the prosecutor to explain why she sought to exclude the black venireman from the petit jury. Perhaps this request was grounded on a suspicion that the prosecutor's peremptory challenge was motivated by purposeful, racial discrimination. So far as we can tell it was not, for Chandler's trial counsel never made that claim in the trial court. We have continually insisted on clear and timely preservation of alleged error in the trial court. See, e.g., United States v. Neely, 980 F.2d 1074, 1084 (7th Cir.1992) (to preserve an issue for appeal, a timely, specific objection on the proper grounds must be made at trial); United States v. Chaidez, 919 F.2d 1193, 1202 (7th Cir.1990) (specific ground for an objection must be identified at trial); United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988) ("To preserve an issue for appellate review, a party must make a proper objection at trial that alerts the court and opposing party to the specific grounds for the objection."). In the context of a Batson claim, this means that a defendant must specifically object to the peremptory challenge on the ground that it is motivated by purposeful, racial discrimination.

Contemporaneous objection is imperative with respect to Batson claims because the trial court...