U.S. v. Ferguson
| Decision Date | 01 April 1993 |
| Docket Number | Nos. 92-5571,92-5587,s. 92-5571 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. James C. FERGUSON, a/k/a Tee, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James C. FERGUSON, a/k/a Tee, Defendant-Appellant. . Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeals from the United States District Court for the District of South Carolina, at Columbia. Falcon B. Hawkins, Chief District Judge; Charles E. Simons, Jr., Senior District Judge. (CR-91-138-3, CR-91-136)
W. Gaston Fairey, Fairey & Parise, P.A., Columbia, South Carolina, for Appellant.
John Michael Barton, Assistant United States Attorney, Columbia, South Carolina, for Appellee.
John S. Simmons, United States Attorney, Columbia, South Carolina, for Appellee.
Before PHILLIPS, HAMILTON, and LUTTIG, Circuit Judges.
James C. "Tee" Ferguson appeals his conviction and sentence for conspiracy to violate and attempts to violate, the Hobbs Act, 18 U.S.C. Sec. 1951, and the sentence imposed upon his conviction by pleas of conspiracy to possess and possession of cocaine in violation of 21 U.S.C. Secs. 844(a), 846. We affirm the convictions and sentences imposed.
Ferguson's Hobbs Act indictment grew out of Operation Lost Trust, an investigation by the Federal Bureau of Investigation (FBI) to substantiate allegations of corruption in the South Carolina legislature. To facilitate that investigation, the FBI obtained the cooperation of Ron Cobb, a former state legislator turned registered lobbyist, by agreeing not to prosecute him for any prior state or federal crimes-including, specifically, an attempt to finance and purchase a kilogram of cocaine-if he assisted the Bureau.
Pursuant to this agreement Cobb began presenting himself to members of the legislature as a lobbyist for the Alpha Group, a fictitious client ostensibly seeking legalization of parimutuel betting in SouthCarolina and willing to pay for it. When legislators expressed interest in payment for their votes on the bill, the payments and discussions were recorded by the FBI.
Ferguson, a South Carolina legislator, approached Cobb about some money for a car he wanted. Cobb suggested that the Alpha Group might provide some if Ferguson helped secure passage of the bill legalizing parimutuel betting. Over the next few months Cobb made two payments to Ferguson in exchange for his support on the bill.
Ferguson was indicted and tried before a jury on the Hobbs Act violations and convicted on all three. He then entered pleas of guilty or nolo contendere to each of the six counts in the cocaine possession indictment. The district judge handling the Hobbs Act violations imposed concurrent sentences of 33 months on each count, and later the same day a different district judge sentenced Ferguson to 7 months on each of the cocaine possession counts, the sentences to be served concurrently with each other and with the 33 month sentences already imposed for the Hobbs Act violations.
We consolidated the timely appeals from the Hobbs Act convictions and the sentencing decisions of the two district judges that followed. Four claims are presented. First, Ferguson claims the government violated his constitutional rights by peremptorily striking prospective jurors based on race. Second, he contends that the district court improperly instructed the jury with respect to the Hobbs Act violations. Third, he argues that the district court unconstitutionally restricted his cross-examination of the government's principal witness. Finally, he asserts that the district court violated his constitutional rights at sentencing by improperly considering a letter he wrote to United States Senator Joseph Biden. We take these in order.
Initially, Ferguson, who is black, argues that the United States violated his constitutional rights by striking members of the jury venire "solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Batson v. Kentucky, 476 U.S. 79, 89 (1986). 1
Under now-familiar Batson doctrine, a defendant makes out a prima facie case of discrimination by showing that the government peremptorily struck some members of a cognizable racial group from the venire under circumstances raising "an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Id. at 96; United States v. Malindez, 962 F.2d 332, 333 (4th Cir.), cert. denied, 113 S. Ct. 215 (1992). 2 The government must then advance a neutral explanation for its strikes, id. at 97, which the defendant may impeach as pretextual or inadequate. Id. at 97-98; United States v. Joe, 928 F.2d 99, 102 (4th Cir.), cert. denied, 112 S. Ct. 71 (1991).
Where the district court has required the government to explain its strikes, however, we typically forego any inquiry into whether the prima facie case was made and consider only whether the district court correctly evaluated those explanations, always mindful that the burden of demonstrating discrimination remains with the defendant. See, e.g., United States v. Woods, 812 F.2d 1483, 1487 (4th Cir. 1987). In considering this question, we accord the district court's conclusions great deference, Batson, 476 U.S. at 98 n.21, reviewing them solely for clear error. See Lane, 866 F.2d at 106.
Few hard and fast rules govern this difficult evaluative enterprise. Some guidelines have, however, emerged in experience. It is accepted that case-specific factually based explanations must be provided; simple denials of discriminatory purpose or affirmations of good faith are inadequate, as are any explanations based on the assumption of race-based sympathy. Batson, 476 U.S. at 97-98. Surrounding circumstances reflect on the persuasive force of the explanations advanced; explanations that appear plausible when half the minority veniremen are struck seem less so when all have been. Recognition of the latter, however, doesn't reduce the question to one of mathematics. Statistical comparisons are "a poor way to resolve a Batson challenge"; the right secured is the right to a fair selection process, not a right to proportional representation. United States v. Grandison, 885 F.2d 143, 148 (4th Cir. 1989), cert. denied, 495 U.S. 934 (1990). Thus both the seating of one or more minority jurors and the exclusion of a disproportionate number of minority venirepersons are facts "entitled to substantial consideration" on a Batson claim, but neither is dispositive. Joe, 928 F.2d at 103.
With this framework in mind we turn to the specifics of Ferguson's claim. His Batson attack focuses on the government's peremptory exclusions of two black jurors, Sharon Greenwood and Bertha Davis, to both of which he objected in the district court. 3 The government provided facially neutral explanations for the strikes, explanations Ferguson claimed were mere pretexts for invidious discrimination but which the district court accepted. Ferguson now argues that the district court erred in doing so. We evaluate its decisions with respect to the two strikes separately.
The government predicated its peremptory removal of the first black juror in question, Sharon Greenwood, on the alleged animosity and hostility toward the government and lack of candor she betrayed on voir dire. The former justification was founded on the government's observation of Greenwood's nonverbal conduct, while the latter was based on her asserted lack of knowledge concerning Operation Lost Trust, a widely publicized inquiry into corruption among South Carolina public officials (one of whom was Ferguson), despite the fact that she claimed to read three newspapers and watch television news. Both justifications are obviously case specific, and neither is facially inadequate under the standards articulated in Batson and reiterated above. Those threshold criteria having been met, we turn to more contextual evaluation.
As Ferguson notes, the nonverbal expressions of animosity and hostility on which the government allegedly relied in part in dismissing juror Greenwood present difficulties for appellate secondguessing about discrimination, but peremptory challenges long have been based on just such unarticulable minutiae of demeanor, and Batson did nothing to change this fact. See Batson, 476 U.S. at 89. While we agree with Ferguson that a dry reading of the record discloses no overt hostility or animosity on Greenwood's part, we are unwilling to conclude from this dry reading that no such ill will existed. Moreover, the government's more concrete basis for decision, the conclusion that Greenwood wasn't being candid on voir dire concerning her awareness of Operation Lost Trust (or, alternatively and less perniciously, her reading habits), seems entirely reasonable. Accordingly, we find no clear error here.
The government also advanced two reasons for the peremptory exclusion of Bertha Davis, another black member of the venire. First, the Assistant United States Attorney trying the case noted that her behavior-she allegedly stared at Ferguson throughout voir dire-reminded him of an earlier case in which a prospective juror who had acted similarly later proved to be the defendant's most ardent supporter in that jury's deliberations. Second, the government questioned Davis's capacity to understand and apply the law to the facts of the case.
Once again we have a facially neutral allegation of reliance on essentially unreviewable nonverbal conduct (Davis's alleged staring at the defendant). Once again too we have a more objective facially neutral...
To continue reading
Request your trial