U.S. v. Clemons, No. 87-3239

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before BECKER and SCIRICA, Circuit Judges and FARNAN; SCIRICA
• Citation: 843 F.2d 741
• Parties: UNITED STATES of America v. Oscar CLEMONS, Appellant.
• Docket Number: No. 87-3239
• Decision Date: 31 March 1988

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843 F.2d 741 56 USLW 2615 UNITED STATES of America
v.
Oscar CLEMONS, Appellant. No. 87-3239. United States Court of Appeals,
Third Circuit. Argued Sept. 15, 1987.
Decided March 31, 1988.

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George E. Schumacher, Federal Public Defender, David G. Rothey (argued), Asst. Federal Public Defender, Pittsburgh, Pa., for appellant.

J. Alan Johnson, U.S. Atty., Constance M. Bowden, Philip A. Ignelzi (argued), Asst. U.S. Attys., Pittsburgh, Pa., for appellee.

Before BECKER and SCIRICA, Circuit Judges and FARNAN, District Judge ^*.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Appellant Oscar Clemons raises several issues relating to his conviction on drug-related charges. Only two points, however, merit in-depth treatment. First, Clemons contends the government violated his fifth and sixth amendment rights when the prosecutor used peremptory challenges to strike the only two blacks on the jury panel. See Batson v. Kentucky, 476 U.S. 79, 88-98, 106 S.Ct. 1712, 1718-24, 90 L.Ed.2d 69 (1986). Second, he argues that the affirmative defense in the Victim and Witness Protection Act of 1982, 18 U.S.C. Sec. 1512(c) (1982), unconstitutionally shifts the burden of proof by relieving the government of proving each constituent element of the crime charged beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 204-05, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281 (1977) (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970)); Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 1883, 44 L.Ed.2d 508 (1975). Founded on the fifth amendment, this precept is based on the due process

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principle long regarded as fundamental--namely, that no individual shall lose his liberty unless the government proves guilt beyond a reasonable doubt. See In re Winship, 397 U.S. at 362-64, 90 S.Ct. at 1071-73; accord Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985) ("bedrock, 'axiomatic and elementary' " principle of due process).

For reasons that follow, we will affirm the judgment of the district court, 658 F.Supp. 1116. We hold that even assuming Clemons established a prima facie case of discrimination stemming from the government's use of peremptory challenges, thereby triggering a Batson inquiry, the prosecutor's explanation for the peremptory strikes comported with the standard subsequently set forth in Batson. In addition, we reject Clemons' attempt to overturn his conviction based on the possible unconstitutionality of 18 U.S.C. Sec. 1512(c) (establishing an affirmative defense to witness tampering if the conduct was lawful and intended to induce truthful testimony). We need not, however, decide the constitutional question. Assuming, for purposes of this appeal, that Sec. 1512(c) unconstitutionally shifts the burden of proving intent to the defendant, any constitutional error was harmless beyond a reasonable doubt. ¹

I. FACTS AND PROCEEDINGS BELOW

Clemons was charged in a nine-count indictment, tried by a jury, and subsequently convicted of: (1) conspiring to possess and distribute cocaine, percodan, preludin, heroin, and dilaudid, 21 U.S.C. Sec. 846 (Count I); (2) possessing with the intent to distribute heroin and cocaine, id. Sec. 841(a)(1) (Counts IV-VII); and (3) knowingly, intentionally and unlawfully intimidating and threatening another person to withhold testimony from an official proceeding, 18 U.S.C. Sec. 1512(a)(1), (2)(A) (Count VIII). The district court sentenced him on July 16, 1985, to concurrent ten-year prison terms, followed by twenty years of special parole. ² On March 23, 1987, the court denied Clemons' requests for judgment of acquittal and for a new trial.

For purposes of this appeal, we need only examine facts relating to his pretrial voir dire challenge and his involvement with a co-conspirator and immunized witness, Gregory Dennis.

A. Jury Selection

Immediately following voir dire, Clemons, who is black, made a timely objection to the government's use of peremptory challenges to exclude the only two black members of the jury panel. Although the Supreme Court had not yet decided Batson, Clemons noted its pendency and the possibility that the Court would reconsider the holding of Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 837-38, 13 L.Ed.2d 759 (1965), in which it required defendants challenging jury selection to establish

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racially discriminatory acts in multiple cases. Similarly, appellant relied on McCray v. Abrams, 750 F.2d 1113, 1124-35 (2d Cir.1984), vacated and remanded, 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986), in which the Second Circuit departed from Swain and established a procedure for challenging racially discriminatory peremptory strikes under the sixth amendment's guarantee that a fair trial necessarily includes a jury comprised of a fair-cross-section of the community. Id. at 1126 (citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)).

The court denied Clemons' request for a hearing, but nevertheless directed the prosecutor to state on the record his reasons for striking the only two blacks from the panel. The prosecutor explained:

My notes indicate that I struck every single person who was nonmarried and young. And both of those people are single, and, of course, not married, and young.

App. at 168.

Eight panel members--numbers 77, 103, 95, 59, 107, 82, 84, and 172--were single. See App. at 18 (jury sheet), 20-63 (jury qualification sheets). Of this group, five--numbers 77, 103, 95, 59, and 107--were considered "young," based on the prosecutor's criterion that anyone under age thirty-five is young. The government used peremptory challenges to strike four of the five "young single" individuals, two of whom were black. The fifth individual, a thirty-four-year-old management-level employee was not challenged, but was ultimately struck by Clemons.

Of the remaining single panel members, two--ages fifty and sixty-three, were both selected, and the third, age fifty-eight, was struck by Clemons. Finally, the government used its remaining challenges to strike three married individuals, one of whom was a news reporter vaguely familiar with the case.

B. Witness Intimidation

At trial, the government presented sufficient evidence that between March, 1981 and August, 1983, Clemons conspired with Ralph Dickinson, Scott Cornish, Donald Bishop, Gregory Dennis, Billy Lee, and others to distribute narcotics in the Uniontown/Brownsville section of Pennsylvania. Cornish, Dennis, Bishop, and two others--all prior felons--testified against Clemons pursuant to a grant of immunity. Our focus is the involvement of Dennis.

Gregory Dennis, who lived in Detroit in 1980-82, testified that his brother, Bishop, introduced him to Clemons. In early 1983, Clemons asked Dennis and Bishop to accompany him to Detroit to obtain heroin from two suppliers Dennis had met during his stay there. According to Dennis, he and Clemons eventually made five or six other trips to Detroit, and on one trip, Clemons showed Dennis the motel where he stayed when he made trips to Detroit with other co-conspirators.

Clemons' Sec. 1512 conviction stems from the following events. On April 27, 1984, the government granted Dennis immunity from prosecution in return for his testimony before the grand jury and in subsequent trials. Dennis testified that on June 9, 1984--after his April grand jury appearance--Clemons approached him in front of his mother's house, where he resided. Clemons said he knew Dennis was scheduled to be a state witness against him and that "his boys wanted to come and do something to [Dennis]...." App. at 397. Dennis said he interpreted the remark to mean that Clemons' boys intended to either "beat me up or hurt me real bad...." App. at 398. In addition, Dennis testified that Clemons also told him that another potential prosecution witness had already reconsidered and refused to testify as promised. Dennis informed the Pennsylvania State Police of the conversation, and said he feared for his life. App. at 398-99, 400.

Clemons again visited the Dennis home on June 25, 1984, asking to speak to Dennis. Dennis remained in the basement, refusing to meet with Clemons, who nonetheless spoke with Dennis's mother Versie. Clemons told Versie Dennis and her companion David Ervin that Dennis probably didn't want to see him because Dennis's

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name was on appellant's arrest papers. He then questioned why Dennis would have testified against him, suggested that some people might want to do something to Dennis, and said that he didn't want to get the people from Detroit "riled up." See App. at 359, 370-71. Versie Dennis testified that Clemons said he "wouldn't do nothing to [her son], but maybe somebody else would." App. at 357. After Clemons left, Versie Dennis asked Gregory Dennis to leave home because she feared that her other children might be injured. App. at 359. After Versie Dennis testified before a federal grand jury, Clemons returned to her home, but she refused to speak with him. App. at 360. On cross-examination, however, Versie Dennis said Clemons never threatened her and that she feared for her family's safety because she had had other unpleasant experiences with the "drug world." App. at 365-67.

II. UNCONSTITUTIONAL USE OF PEREMPTORY CHALLENGES

Until the Supreme Court's decision in Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), defendants challenging a prosecutor's exercise of peremptory strikes as being racially discriminatory were faced with a "crippling burden of proof." Id. 106 S.Ct. at 1720. In Swain, 380 U.S. at 223-28, 85 S.Ct. at 837-40, the Court had held that although a prosecutor's use of peremptory challenges was subject to the equal protection clause, defendants could trigger judicial inquiry into a prosecutor's motives only by showing a long-term pattern of striking blacks. In the two decades following Swain "almost no other defendants...