U.S. v. Davis
| Decision Date | 08 December 2004 |
| Docket Number | No. 03-41026.,03-41026. |
| Citation | 393 F.3d 540 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John K. DAVIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph R. Batte (argued) and Keith Fredrick Giblin, Asst. U.S. Attys., Beaumont, TX, for Plaintiff-Appellee.
Thomas John Burbank (argued), Burbank & Hamm, Beaumont, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas.
Before REAVLEY, WIENER, and BENAVIDES, Circuit Judges.
Defendant-Appellant John K. Davis appeals his conviction for bribery, mail fraud, money laundering, and conspiracy to commit those offenses. Davis raises four issues on appeal. First, Davis claims that the district court improperly overruled Davis's challenges to the government's allegedly race-based use of peremptory strikes. Second, he argues that the court inappropriately denied his motion to dismiss the indictment on the basis of the government's breach of the plea agreement between Davis and the government. Third, Davis contends that the trial court limited his counsel's cross-examination of a government witness with regard to that witness's plea agreement in violation of the Confrontation Clause of the Sixth Amendment. Finally, Davis asserts that the trial court improperly denied Davis's motion for mistrial based on the jury's improper consideration of extrinsic evidence.
Having reviewed the record and considered the briefs on appeal, we reject Davis's arguments and affirm his conviction.
During Davis's tenure on the city council for the City of Beaumont, Texas, government officials began investigating Davis for his alleged receipt of money in return for favorable city council decisions regarding the regulation of sexually-oriented businesses. During the investigation, the government obtained evidence that Davis and Mayor David Moore had taken bribes from Terry Samuel, a building contractor who had performed work for the City.
After being approached by government agents, Davis agreed to cooperate with the government investigation and signed a plea agreement. Using Davis's information, the government obtained a conviction against Samuel. However, after his conviction, Samuel offered government agents information incriminating Davis in a bribery transaction that Davis had repeatedly denied any knowledge of. Because Davis had not been honest in the statements he gave the government, the government deemed him in breach of his plea agreement and indicted him and Mayor Moore.
On November 26, 2002, after a trial, the jury returned a verdict of guilty against Davis and Moore.
During jury selection, the government used peremptory strikes to remove four of the five African-Americans on the strike panel. Davis and Moore objected to the government's strikes, arguing that they were race-based. After argument by both sides, the district court determined that the government's strikes were not race-based and overruled Davis's objection.
In reviewing the district court's determination, we must give great deference to the district court because "findings in this context largely turn on an evaluation of the credibility or demeanor of the attorney who exercises the [peremptory] challenge." United States v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir.1993). Thus, we review only for clear error. Id.
The Due Process clause of the Fifth Amendment prohibits the use of peremptory strikes on the basis of race. Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); United States v. Montgomery, 210 F.3d 446, 453 (5th Cir.2000). The party challenging a peremptory strike carries the burden of persuasion in proving that the strike was purposefully discriminatory. Bentley-Smith, 2 F.3d at 1373. Federal courts address Batson challenges under a three-step process. First, the claimant must make a prima facie showing that the peremptory challenges were race-based. Second, if the prima facie threshold has been met, the burden of production shifts to the party accused of discrimination to articulate race-neutral reasons for the peremptory strikes. Finally, the trial court must determine whether the claimant has carried his burden of proving purposeful discrimination. Bentley-Smith, 2 F.3d at 1373; Montgomery, 210 F.3d at 453; United States v. Wallace, 32 F.3d 921, 925 (5th Cir.1994); see also Batson, 476 U.S. at 96-98, 106 S.Ct. 1712.
Here, the district court applied the proper framework to Davis's Batson challenge. First, the court heard the defendants' prima facie challenge to the government's peremptory strikes. Counsel for Davis and Moore argued that, in light of the fact that the government had eliminated eighty percent of the African-Americans on the strike panel and the fact that both Davis and Moore were African-American, the strikes were race-based. Second, the court allowed the government to proffer race-neutral explanations for striking those individuals. The government gave valid race-neutral reasons for striking all four jurors. Juror 14 had answered one of the questions on the voir dire questionnaire untruthfully in failing to acknowledge that her son had been convicted of assault. Juror 22 knew both defendants very well. She had attended church with Davis, and her children had gone to school with Davis. Furthermore, she knew one of the defense witnesses. Juror 52 had grown up in Moore's neighborhood and had attended school with Moore's brother, who was a potential witness in the case. Juror 43 was a long-time friend of Moore's and had attended elementary, junior high, and high school with Moore. Defense counsel rebutted by arguing that other jurors had similar connections to the defendants or witnesses but were not stricken. However, the court properly found unpersuasive the defense counsel's argument that the government's proffered reasons were pretextual-each juror stricken could be distinguished from other jurors on the strike panel as having more meaningful connections to the individuals in the case. Thus, the court rejected the defendants' objections. Because we find no clear error in that ruling, we uphold it.
Davis contends that the government breached his plea agreement in indicting him and that, therefore, his indictment should have been dismissed. We reject Davis's argument.
On November 3, 1999, Davis agreed to cooperate with the government in its investigation of the bribery scheme in which city officials were accepting payment for favorable ordinances. The next day, prosecutors executed a "proffer letter" providing that none of Davis's statements made pursuant to the proffer agreement would be used against him in any criminal case, but that the government could pursue any investigative leads suggested by the information provided by Davis. The proffer letter specifically provided that the clause allowing investigation of leads provided by Davis was to "eliminate the necessity for a ... hearing at which the government would have to prove that the evidence it would introduce at trial is not tainted by any statements or other information provided by [Davis] during this `off the record' proffer or discussion."
Prosecutors debriefed Davis pursuant to his proffer agreement. Davis admitted that he had accepted money for his assistance on matters relating to the regulation of sexually-oriented businesses. He also told prosecutors he had delivered $6,000 in cash to Moore at Samuel's request so that Moore would speak on behalf of Samuel before the City's Small Business Revolving Loan Committee. He did not mention personally receiving any substantial amount of money from Samuel.
On November 5, the government entered into an official plea agreement with Davis. Under that agreement, Davis agreed to plead guilty to one count of bribery and "provide complete and truthful information and testimony." The agreement also provided that failure to do so could render the agreement unenforceable and result in prosecution and use of Davis's statements against him. Finally, the plea agreement stated that it constituted the entire plea agreement, that it superseded any other agreements, and that no other promises had been made between the defendant and the government. At the plea hearing, Davis acknowledged that he had read and fully understood all the terms of the agreement and affirmed that there were no other promises made to him.
During the remainder of the investigation, Davis claimed that he had received no money from Samuel except for "soda water" money, either for his birthday or other special occasions, in the amount of $500 on each occasion, and that he had received insurance commissions on policies taken out by Samuel.
After obtaining subpoenaed bank records from Samuel's bank, agents asked Davis about two cashier's checks that Samuel's bank had issued on Samuel's behalf shortly after he received a loan from the Small Business Revolving Loan Committee. One check was written out to Audwin Samuel for $21,000, and the other to Danny Fowler for $9,000. Despite repeated questioning on several occasions, Davis denied having any knowledge of the two checks and denied ever receiving any part of the money. When confronted with evidence of the $21,000 check, Davis speculated that Samuel sent the money to Audwin Samuel for payment of attorney fees or rent on one of Moore's buildings. Davis later denied knowledge of the check before a grand jury and at trial.
After the jury found Samuel guilty, he decided to cooperate with federal agents. He disclosed that after he had received the loan from the Loan Committee, Davis instructed him to send $30,000 in pay-off money. According to Samuel, Davis instructed him to write out two checks: one for $21,000 to Audwin Samuel for "attorney's fees" and another for $9,000 to Danny Fowler for ...
To continue reading
Request your trial
-
U.S. v. Mckenzie
...witnesses against him is a constitutional right secured by the Confrontation Clause of the Sixth Amendment.” United States v. Davis, 393 F.3d 540, 548 (5th Cir.2004) (citing United States v. Mayer, 556 F.2d 245, 248 (5th Cir.1977)). It thus follows that a judge's discretionary authority “co......
-
United States v. El-Mezain
...assessed the witnesses' testimony any differently had they been allowed to learn the witnesses' true identities. See United States v. Davis, 393 F.3d 540, 548 (5th Cir.2004) (holding that to demonstrate prejudice the defendant “must show that a reasonable jury might have had a significantly......
-
United States v. Lockhart
...Sixth Amendment rights. We review the district court's limitation of cross-examination for an abuse of discretion. United States v. Davis , 393 F.3d 540, 548 (5th Cir. 2004) (citing United States v. Gordon , 780 F.2d 1165, 1175 (5th Cir. 1986) ). When a defendant alleges that the district c......
-
Nunez v. Lumpkin
... ... (3) told the jury, without foundation, that he was a ... pedophile, a predator, a liar, and “not like the rest ... of us[;]” ... (4) asked the jury to “send a message” to Cameron ... County and the State of Texas that pedophiles are not ... claims already rejected in state proceedings.'” ... Auvenshine v. Davis , No. 4:17-CV-294-Y, 2018 WL ... 2064704, at *2 (N.D. Tex., May 3, 2018) (quoting ... Harrington v. Richter , 562 U.S. 86, 102) ... ...
-
Trials
...materially breached proffer agreement, allowing government to submit testimony regarding proffer interview statements); U.S. v. Davis, 393 F.3d 540, 546-47 (5th Cir. 2004) (defendant’s failure to disclose information materially breached plea agreement, allowing government to indict defendan......