U.S. v. Forbes

• Decision Date: 29 April 1987
• Docket Number: No. 86-3530,86-3530
• Citation: 816 F.2d 1006
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ella Louise FORBES and Lillie Mae Berry, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1006

816 F.2d 1006

UNITED STATES of America, Plaintiff-Appellee, v. Ella Louise FORBES and Lillie Mae Berry, Defendants-Appellants.

No. 86-3530.

United States Court of Appeals, Fifth Circuit.

April 29, 1987.

Donald R. Johnson, Baton Rouge, La., (court-appointed), for Ella Louise Forbes.

Richard M. Upton, Baton Rouge, La. (court-appointed), for Berry.

Ian F. Hipwell, Asst. U.S. Atty., Stanford O. Bardwell, U.S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Louisiana.

Before GARZA, WILLIAMS, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

The jury convicted defendants-appellants Lillie Mae Berry and Ella Louise Forbes of acting together to intercept a government benefits check addressed to Forbes' brother, Jackie Harrell, and to forge an endorsement on the check in an attempt to cash it. 18 U.S.C. Secs. 2, 371, 495 & 1702. Both appellants argue that the prosecutor's peremptory challenges to three black venirepersons violated their equal protection and Sixth Amendment rights; Forbes also asserts that there was insufficient evidence that she lacked authority to cash the check.

Facts and Proceedings Below

The facts are not complicated. Like his sister, Ella Louise Forbes, Jackie Harrell lived in Baton Rouge. At the time of the events at issue, April 1986, Harrell had a disability and consequently had been receiving Supplemental Security Income (SSI) checks from the Social Security Administration. However, Harrell had been in the East Baton Rouge Parish Prison since February 1986, and he had instructed his wife to cash his SSI checks for him while he was in prison. ¹ The April 1986 SSI check was made payable to Harrell and sent to a Baton Rouge address where he had previously lived. The record does not reveal how, but the check fell into the possession of Forbes, rather than Harrell's wife, who had moved to a different address.

On April 10, 1986, Forbes and her friend, Lillie Mae Berry, took the check to "Cashier's of Louisiana," a check-cashing establishment. There Berry signed the back of the check "Jackie Harrell" and attempted to cash it. She claimed to be Jackie Harrell, but had no identification. The teller filled out a "check identification card" based on information provided by Berry, posing as Harrell. Upon investigation, it was discovered that this information was not wholly accurate--for example, the social security number provided by Berry was two digits different than the number printed on the check. Suspecting that the check had been stolen, the teller surreptitiously telephoned the United States Secret Service. When a Secret Service agent arrived at Cashier's, he questioned Berry and Forbes and then arrested them.

The grand jury indicted Forbes and Berry together on three counts. The first count charged them with conspiracy to violate 18 U.S.C. Sec. 1702 ² and Sec. 495. ³ Count two charged Berry with violating section 1702, and charged Forbes with aiding and abetting that offense, 18 U.S.C. Sec. 2. Count three charged Berry with violating section 495, and charged Forbes with aiding and abetting that offense.

After a one-day trial, the jury found Forbes and Berry guilty on all three counts. They were sentenced to concurrent one-year terms on each count, and as to each defendant a special assessment of $50 was levied on each count.

Discussion

The principal question on appeal is whether the prosecution violated the equal protection rights of these black defendants by using its peremptory challenges to strike three black venirepersons.

I. Peremptory Challenges

There were thirty-one persons on the venire; five of them were black. The prosecutor used three of his six peremptory challenges to strike black venirepersons. He used two more challenges on white venirepersons and left one challenge unused. The resulting jury was composed of ten whites and two blacks. The ratio of black persons to white persons on the jury was virtually identical to that on the venire--one in six.

Just before the unchosen venire members were dismissed, counsel for Forbes objected to the prosecutor's use of his peremptory challenges: ⁴ "The basis of the motion that I'm making ... is that the U.S. Attorney has used the majority of his peremptory challenges to excuse black jurors...." Counsel interpreted Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), then just over two months old, to require the prosecutor to offer a racially neutral explanation any time he peremptorily struck a black venireperson. The district court responded, "I don't know that the law is quite as severe as you have stated it to be, but I think it would be well for [the prosecutor] to put on the record his reasons for making these challenges...."

The prosecutor explained why he had struck two of the black venirepersons. The first of these had two sons in legal trouble; apparently one son had written some hot checks. The prosecutor struck the second black because she sat with her arms crossed during voir dire and impressed him as being hostile to serving on the jury. The prosecutor suspected that she might manifest this hostility by retaliating against the government's case simply because the government had called her for jury duty. Having explained two strikes, the prosecutor stopped because, as he told the court, he did not interpret the motion of Forbes' counsel to require him to explain further since the majority of the three unexplained challenges had been exercised against whites. The judge asked Forbes' and Berry's counsel for a response to the prosecutor's interpretation of their motion, and they never objected to the prosecutor's failure to explain his strike of the third black venireperson. Defense counsel only requested the addition of the second or "hostile" black venireperson to the jury, and when the court denied that request, counsel sought no further relief or explanation and in effect acquiesced in the other four prosecution strikes. ⁵ The question is whether these facts show a violation of defendants' equal protection rights.

Batson, the authoritative case on the equal protection question, ⁶ overturned part of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), by holding that generally the prosecution may not use its peremptory challenges to strike venirepersons of the defendant's race solely on the assumption that they would be biased toward defendant merely because he is of the same race. 106 S.Ct. at 1723. Batson granted defendants the right to put the prosecution to an explanation of its peremptory challenges if defendants establish a prima facie case of discrimination.

A prima facie case consists of three somewhat imprecise elements. First, defendant "must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Id. Second, defendant can rely on the fact that peremptory challenges may disguise racial discrimination. Id. Third, "the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Id.; see also Smith v. McCotter, 798 F.2d 129, 132 (5th Cir.1986) (describing the elements of a Batson prima facie case); United States v. Erwin, 793 F.2d 656, 667 (5th Cir.1986) (same), cert. denied, --- U.S. ----, 107 S.Ct. 589, 93 L.Ed.2d 590 (1986). The Supreme Court vested the district courts with leeway to determine whether a defendant has established a prima facie case. 106 S.Ct. at 1723.

In general, we would hesitate to infer a finding of a prima facie case from the mere fact that the district court has required an explanation from the prosecutor. Indeed, in this case the district court's minute entry states that defendants had not established a prima facie case, though the court also required an explanation. However, appellate review should not become bogged down on the question of whether the defendant made a prima facie showing in cases where the district court has required an explanation. Taking our cue from Batson's repeated analogies to Title VII jurisprudence, 106 S.Ct. 1721 n. 18, 1722 n. 19, 1724 n. 21, we hold that when the prosecution's explanation is of record, we will review only the district court's finding of discrimination vel non. Cf., e.g., U.S. Postal Service Bd. of Gov. v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Merrill v. Southern Methodist University, 806 F.2d 600, 605 n. 6 (5th Cir.1986) (noting in Title VII context that " 'by the time a full-tried case reaches us on appeal, the parties' showing at the preliminary levels of the framework is irrelevant.... We need address only the propriety of the ultimate finding of discrimination vel non.' " (quoting EEOC v. Exxon Shipping Co., 745 F.2d 967, 972 (5th Cir.1984)).

In another of its analogies to Title VII jurisprudence, the Batson Court cited with approval Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 318 (1985). That Title VII case reiterated that Rule 52(a) governs review of the finding of discrimination vel non and stated, "When findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court's findings...." 105 S.Ct. at 1512. The Batson Court seems specifically to have focused on this latter proposition when it held, "Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Batson, 106 S.Ct. at 1724 n. 21.

Under either a "clearly erroneous" or "great deference" standard, there is no basis for upsetting the district court's findings. The appellants admit that the prosecutor supplied an objective...