U.S. v. Davis

• Citation: 809 F.2d 1194
• Decision Date: 15 January 1987
• Docket Number: 85-1288 and 85-1366,Nos. 85-1153,85-1178,s. 85-1153
• Parties: , 22 Fed. R. Evid. Serv. 567 UNITED STATES of America, Plaintiff-Appellee, v. Alicia DAVIS (85-1153), Duane Davis (85-1178), Kenneth Davis (85-1288), Howard Ransom (85-1366), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1194

809 F.2d 1194

55 USLW 2438, 22 Fed. R. Evid. Serv. 567

UNITED STATES of America, Plaintiff-Appellee, v. Alicia DAVIS (85-1153), Duane Davis (85-1178), Kenneth Davis

(85-1288), Howard Ransom (85-1366), Defendants-Appellants.

Nos. 85-1153, 85-1178, 85-1288 and 85-1366.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 29, 1986.

Decided Jan. 15, 1987.

Roy C. Hayes, U.S. Atty., Detroit, Mich., Gary M. Felder (argued), Wayne F. Pratt (argued), for the U.S.

John G. Burns (argued), Woodhaven, Mich., for Alicia Davis.

Raymond Mullins (argued), Ypsilanti, Mich., for Duane Davis.

David J. Esper (argued), Dearborn, Mich., for Kenneth Davis.

Stuart M. Rudick (argued), Detroit, Mich., for Howard Ransom.

Before KEITH and WELLFORD, Circuit Judges, and TODD ^*, District Judge.

KEITH, Circuit Judge.

Defendants Alicia Davis, Duane Davis, Kenneth Davis and Howard Ransom appeal their convictions in the United States District Court, Eastern District of Michigan for conspiracy to distribute heroin, conspiracy The defendants separately raise a host of additional appellate issues, including insufficiency of evidence, double jeopardy, improper joinder, illegal seizure of evidence and outrageous Government conduct. For the reasons set forth below, we affirm the convictions of the defendants on all counts, with the exception that defendant Duane Davis' sentences for the offenses predicate to the charge of operating a continuing criminal enterprise be vacated. ²

                to possess heroin with intent to distribute, and conspiracy to import heroin in violation of the Controlled Substances Act, 21 U.S.C. Sec. 846 (1981), and the Controlled Substances Import and Export Act, 21 U.S.C. Sec. 963 (1981). 1   The defendants collectively contend that the district court erred by allowing Government attorneys to state their reasons for the exercise of peremptory challenges in an in camera proceeding rather than on the record or in the presence of defense counsel.  The issue arose in the context of the defendants' motions for mistrial.  The motions were based on the allegedly racist motivations of the Government in exercising its peremptory challenges.  Defense counsel attacked the Government's peremptory challenges as being intentionally discriminatory against black venirepersons so as to remove all blacks from the jury panel
                

The defendants were the primary participants in a multimillion dollar international heroin trafficking organization. The organization, in operation from October 1979 to August 1982, obtained large quantities of heroin from defendant Ransom in the Netherlands and smuggled the heroin by courier to defendant Duane Davis in Detroit. Defendant Alicia Davis, Duane's wife, recruited a friend to act as a courier of cash and heroin between Ransom in the Netherlands and Detroit. Defendant Kenneth Davis sold the heroin on a wholesale basis to the organization's customers.

I. FACTS

To place the issue firmly in context, the proceedings below are outlined in some detail. After the first trial of defendants Alicia, Duane and Kenneth Davis ended in mistrial in May 1984, a second eight week-long trial commenced later that year. At the start of the jury selection process, the trial court called 86 prospective jurors, all of whom were sworn in and examined by the trial judge. According to the record, nine out of the 86 venirepersons were black. Prospective jurors sat in the jury box and counsel for the parties were given the opportunity to exercise a peremptory challenge or a challenge for cause. Once a juror was challenged, his or her vacant seat in the jury box would then be taken by another prospective juror from a "pool" of venirepersons sitting in the court's gallery.

The record indicates that the Government made no challenges for cause. Defense counsel's single challenge for cause was rejected by the court. Once the opportunity to make peremptory challenges was presented, the Government attorneys struck eight venirepersons, three of them black. Defense counsel struck approximately ten venirepersons, all of them white. At this point in the proceedings, defense counsel objected on the grounds that it was "fairly obvious that the Government [was] making a concerted attempt to exclude any members of the black race from this jury panel." The Government attorney responded by noting that under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Government was entitled to the presumption that it would seek to impanel a fair and impartial jury absent proof to the contrary. See Swain, 380 U.S. at 222, 85 S.Ct. at 837.

The district court took the objection under advisement.

After a second round of peremptory challenges removed approximately 16 venirepersons from the jury panel, defense counsel repeated its objection. Again, the district court took the issue under advisement. After seven additional peremptory challenges by the Government and three challenges by defense counsel, defense counsel raised the exclusion issue a third time, declared that they were not satisfied with the jury as impaneled and explained that they would have continued to challenge the impaneled jurors had they not run out of peremptory challenges.

The Government removed seven out of the nine black venirepersons on peremptory challenges. The remaining two were removed for cause. In response to these facts and the objections raised by defense counsel, the district court outlined a two-step procedure to handle the issue. First, the court would review the facts to see if there was a prima facie basis for a charge of racially motivated exclusion from the jury panel. Second, if the defendants established a prima facie case, the court would require the Government to present reasons for the challenges of the black venirepersons on the record in an non-adversary proceeding. United States District Court Judge Cook emphasized that the court's response was not intended to be a per se rule but rather a procedure specific to the issues and facts of the controversy. Before the proceeding could begin, the Government requested that the explanation of the reasons for the peremptory challenges be held in camera. The district court acceded to the Government's request over defense counsel's strenuous objection. The court, however, decided to wait until after the Government made its presentation to determine whether to disclose part, all, or none of the in camera proceedings on the record.

Our careful review of the sealed transcript of the ensuing in camera hearing confirms that the Government set forth its criteria in evaluating potential jurors and outlined reasons for the exclusion of the 19 venirepersons it excluded, black and white. The district court, after its own review, made a specific finding that the Government did not have a racial motive in the exclusion of black jurors. The court concluded that there was no genuine relationship between exclusion and the juror's race. The court also found the Government's criteria legitimate and reasonable.

As to disclosing on the record what transpired in the in camera proceeding, the district court stated:

The disclosure of the government's reasons for excluding the 19 jurors, including those black persons, would not, in the judgment of this Court, be meritorious. Moreover, this Court does not believe that the publication of the reasons, either in a summary fashion or in a very detailed fashion, such as the exposure and the recitation of the statements of counsel, in open court, would enhance the administration of justice. Of more importance, this Court does not believe that the interests of justice and the rights would be enhanced (sic). The same would be true of the rights of the defendants in this case.

II. DISCUSSION

A. In Camera Proceeding

Each of the defendants contend that by holding the jury exclusion hearing in camera the district court violated their constitutional right to be present at trial. The defendants also contend that their right to be present at trial under Fed.R.Crim.P. 43 was violated. ³ The Supreme Court has noted that the right to presence at trial is largely derived from the Confrontation In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Supreme Court held that under the Fourteenth Amendment a defendant must be present "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." 291 U.S. at 105-106, 54 S.Ct. at 332-333. The Snyder Court continued, noting that "the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. at 107-108, 54 S.Ct. at 333. The Court noted further that a determination of the necessity of a defendant's presence required a careful weighing of the context of the proceeding, as provided by the whole record. Id. at 115, 54 S.Ct. at 336.

                Clause of the Sixth Amendment.   United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985);  see also, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).  However, the Supreme Court has extended the clauses's scope to some contexts which are not confrontational per se.   See Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484;  Faretta v. California, 422 U.S. 806, 819, n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975)
                

Here, the context was a hearing on alleged racial motivations behind the Government's exclusion of blacks from the jury. Both the Supreme Court and this circuit have spoken on the issue of racially motivated juror exclusion, see, Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Booker v. Jabe, 775 F.2d 762 (6th Cir.1985), vacated and remanded --- U.S. ----, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986). Neither court, however, has fashioned any procedural guidelines outside those articulating burdens of proof and persuasion for when these...