U.S. v. David

Citation803 F.2d 1567
Decision Date13 November 1986
Docket NumberNo. 85-8956,85-8956
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lowden DAVID, Defendant-Appellant. Non-Argument Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Ray H. Ledford (Court-appointed), Atlanta, Ga., for defendant-appellant.

H. Allen Moye, Drug Task Force, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, Chief Judge, HATCHETT, Circuit Judge, and HENDERSON *, Senior Circuit Judge.

HATCHETT, Circuit Judge:

A grand jury indicted appellant, Lowden David, for violations of 21 U.S.C. Sec. 846 (conspiracy to possess cocaine with intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1)) and 18 U.S.C. Sec. 1952(a)(3) (use of the United States mails in aid of racketeering). A jury convicted him of violating 21 U.S.C. Sec. 846, but acquitted him of violating 18 U.S.C. Sec. 1952(a)(3). He raises two issues on appeal. We vacate the judgment and remand.

Issue 1: Rule 609, Federal Rules of Evidence

David contends that the district court improperly denied a motion in limine which requested a restriction on the government's right to impeach him with a prior conviction if he took the witness stand. David did not testify. He argues that he was denied a defense to the charges by the court's ruling.

Because David never testified, he has waived review of the court's ruling. A defendant must testify in order to raise and preserve for review the claim of improper impeachment with a prior conviction. Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); United States v. Wolfe, 766 F.2d 1525 (11th Cir.1985).

Issue 2: Peremptory Challenges

During the trial, David objected to the government's use of its peremptory challenges to strike three black jurors: two of the three black jurors on the panel and a black juror from the pool of alternate jurors. One black juror and a black alternate were seated. The district court concluded that David had not made a showing that would entitle him to any relief under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, reh'g denied, 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965).

David filed his brief before the Supreme Court announced in Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a new evidentiary standard for establishing when a prosecutor's use of peremptory challenges violates the Equal Protection Clause.

The government briefed the effect of Batson. The government urges that Batson should not be applied to this case, because this case was tried before Batson was announced. The government also argues that the district court acted properly in finding that no prima facie case of discrimination was shown. The government also argues that merely showing that David is black and that blacks were peremptorily challenged does not establish a prima facie case. Rather, the government argues that David should have articulated "other relevant circumstances" which "raise an inference" of discriminatory intent. Batson v. Kentucky, at ----, 106 S.Ct. at 1723.

The government also argues that the record reflects that the black veniremen were not discharged because of race. This fact is shown because the prosecutor did not strike the third black juror from the panel, though he had a peremptory challenge available to do so. Second, the striking of the black male venireman was consistent with the striking of four other veniremen who were present or former employees of the federal government or the postal service. (Three were struck by the appellant and two by the government.) Finally, the government points out that the black female venireperson who was struck by the government was pregnant and two months into maternity leave from her job. The government argues that this record is sufficient to entitle the district court's conclusions to a presumption of correctness. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

The government cites United States v. Dennis, 786 F.2d 1029, 1048-49 (11th Cir.1986), in which we held that a showing that the prosecutor had used two of his three peremptory challenges to strike blacks from a jury venire did not establish a prima facie case of discrimination. The government points out that though the court was bound by Swain, we also stated we would find no prima facie case of discrimination merely because the prosecutor used two of his three regular strikes to challenge blacks and used his only alternate challenge to strike a black. 786 F.2d at 1049 n. 24.

A. Applicability of Batson

The legal environment has sufficiently changed as a result of Batson. This is a direct appeal of a criminal conviction in the United States Courts. The Supreme Court recently held that the decision in Batson should not be applied retroactively on collateral review of convictions that became final before the Batson opinion was announced. Allen v. Hardy, --- U.S. ----, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). The Court expressed no view on whether the decision in Batson should be applied to cases that were pending on direct appeal at the time the decision was announced. Allen v. Hardy, at ----, n. 1, 106 S.Ct. at 2880, n. 1. The Supreme Court has granted certiorari on the issue of application of Batson to cases pending on direct appeal. See Griffith v. Kentucky, --- U.S. ----, 106 S.Ct. 2274, 90 L.Ed.2d 717 (cert. granted June 2, 1986) and Brown v. United States, --- U.S. ----, 106 S.Ct. 2275, 90 L.Ed.2d 718 (cert. granted June 2, 1986).

The misuse of peremptories issue was raised at trial. When the law changes while cases are pending on appeal, this Court has commonly remanded to the lower court for consideration of the new principle. See Stewart v. Bailey, 561 F.2d 1195, reh'g denied, 565 F.2d 163 (5th Cir.1977); Thurston v. Dekle, 578 F.2d 1167 (5th Cir.1978). This would not be necessary if the appellate court decided that the change should not be applied retroactively.

The government cites Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984) as setting forth three factors to be used in evaluating whether a particular case should be applied retroactively: (1) the purpose to be served by the new standard; (2) the extent or reliance on the old standards by law enforcement officers; and (3) the effect on the administration of justice of a retroactive application of the new standards. Shea v. Louisiana, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985) is the governing authority for application of a new decision to cases pending on direct appeal. In Shea, the Court adopted the distinction urged by Justice Harlan in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (dissenting opinion) between direct appeal and collateral review. See also United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Shea specifically distinguishes Stumes as involving a federal collateral attack upon a state conviction which has become final, in contrast with a pending and undecided direct review of a judgment of conviction. See Shea, 470 U.S. at 57, 105 S.Ct. at 1069, 84 L.Ed.2d at 46.

Even if Solem v. Stumes were applicable, the three factors would favor application of Batson to this case. The purpose of the new standard is to vindicate the guarantee of equal protection; this purpose is served by remand, where a more careful factual inquiry can be made by the district court. 1 The command of equal protection was present before the decision in Batson; Swain "should have warned prosecutors that using peremptories to exclude blacks on the assumption that no black juror could fairly judge a black defendant would violate the Equal Protection Clause." Batson, --- U.S. at ----, 106 S.Ct. at 1725 (White, J., concurring). Prosecutors' reliance on the old evidentiary standard was misplaced if the reliance led to acts of discrimination. In Allen v. Hardy, the Supreme Court linked the justifiableness of reliance on Swain to the burden of proof, Allen v. Hardy, --- U.S. at ----, 106 S.Ct. at 2881; prosecutors reasonably omitted to articulate reasons for striking minorities or to make a record demonstrating neutral reasons. But, in an appeal from the district court, any reliance in the form of failure to keep careful records is of little significance because the time from trial to appeal and remand is short.

Finally, unlike collateral review of final convictions, which Allen holds would be unduly disruptive to the administration of justice, application of Batson to cases pending in the federal system is more likely to have a positive rather than a negative effect on the administration of justice. It provides an early opportunity for the federal courts to work out "the contours of the Court's Equal Protection holding." Batson v. Kentucky, --- U.S. at ----, 106 S.Ct. at 1725 (White, J., concurring). Moreover, it is particularly appropriate for the federal courts, which have had a reservoir of supervisory authority available as a safeguard against misuse of peremptories in individual cases, to apply the mandate of the Equal Protection Clause to cases now pending on appeal. But see U.S. v. Leslie, 783 F.2d 541 (5th Cir.1986) (en banc) (pre-Batson rejection of use of supervisory authority to monitor prosecutor's use of peremptory challenges).

B. The Batson Prima Facie Showing

In Batson, the Supreme Court did not specify the showing necessary to establish a prima facie case of discrimination. The Court stated: "We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." --- U.S. at ----, 106 S.Ct. at 1723. In making this determination, trial judges must be guided by the principles enunciated in Batson.

Despite diligent efforts, ...

To continue reading

Request your trial
128 cases
  • People v. Johnson, S029551
    • United States
    • United States State Supreme Court (California)
    • November 25, 2019
    ...591 N.E.2d 1136 [finding an inference despite the presence of five African Americans on the panel]; see generally U.S. v. David (11th Cir. 1986) 803 F.2d 1567, 1571 ["[T]he command of Batson is to eliminate, not merely to minimize, racial discrimination in jury selection"].) The majority, u......
  • Acres v. State, 3 Div. 843
    • United States
    • Alabama Court of Criminal Appeals
    • February 10, 1987
    ...mind that the command of Batson is to eliminate, not merely to minimize, racial discrimination in jury selection." United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986) (footnote We conclude that the state has completely failed to produce race-neutral explanations for its peremptory s......
  • McAllister v. State, A19A0613
    • United States
    • United States Court of Appeals (Georgia)
    • June 25, 2019
    ...court denied his motion in limine, court would not review argument that motion had been erroneously denied); United States v. David , 803 F.2d 1567, 1568 (11th Cir. 1986) (holding that defendant waived review of ruling denying motion in limine to restrict Government’s right to impeach with ......
  • State v. Walker
    • United States
    • United States State Supreme Court of Wisconsin
    • April 2, 1990
    ......11.4(g), at 434, 435. .         Because the record in this case does not permit us to apply these factors to the case at hand, this issue must be resolved on remand. The record ...David, 803 F.2d 1567, 1571 (11th Cir.1986). A hard and fast rule that no prima facie case could be ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT