U.S. v. Greene

• Decision Date: 30 April 1993
• Docket Number: No. 92-3052,92-3052
• Citation: 995 F.2d 793
• Parties: 37 Fed. R. Evid. Serv. 574 UNITED STATES of America, Appellee, v. Patrick Joseph GREENE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 793

995 F.2d 793

37 Fed. R. Evid. Serv. 574

UNITED STATES of America, Appellee, v. Patrick Joseph GREENE, Appellant.

No. 92-3052.

United States Court of Appeals Eighth Circuit.

Submitted March 18, 1993.

Decided April 30, 1993.

Dean A. Strang, Milwaukee, WI, argued, for appellant.

Lester A. Paff, Asst. U.S. Atty., Des Moines, IA, argued for appellee.

Before MORRIS SHEPPARD ARNOLD, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and KYLE, ^* District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In early 1992, Patrick Joseph Greene was indicted in federal court in Iowa on five counts of drug-related charges. At trial a few months later, he was convicted on four of those counts and acquitted on one. The trial court subsequently sentenced Mr. Greene to 120 months of imprisonment on each count, the terms to run concurrently. Mr. Greene appeals both his conviction and his sentence.

Mr. Greene appeals his conviction on six grounds--that the exclusion, from the grand jury that indicted him and the venire for the petit jury that convicted him, of persons charged but not convicted of felonies violates the constitutional guarantee of equal protection; that the same exclusion violates the constitutional guarantee of juries selected from a fair cross-section of the community; that the trial court should not have excluded as evidence the fact that Mr. Greene rejected a plea agreement; that the trial court should have suppressed certain statements made by Mr. Greene to an agent of the Drug Enforcement Administration (DEA) during discussions on whether and how much Mr. Greene would cooperate with the government; that the trial court should have declared a mistrial after it struck several hearsay statements that had been conditionally admitted; and that the trial court should have granted a judgment of acquittal on one count of conviction, because the government failed to prove venue on that count. We affirm the trial court with respect to all of these issues except for that as to venue. We reverse the trial court on the venue question and remand the case for the entry of a judgment of acquittal as to Mr. Greene's conviction on the count alleging the manufacture of marijuana.

With respect to his sentence, Mr. Greene challenges the trial court's enhancement of base offense by four levels based on a finding that Mr. Greene was an organizer of a criminal activity that involved five or more participants. We affirm the trial court on this question, but remand for resentencing in light of our reversal on the manufacturing count.

I.

The due process clause of the fifth amendment includes a guarantee of equal protection parallel to that in the fourteenth amendment. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). An action that violates the fourteenth amendment guarantee of equal protection when committed by a state actor violates the due process guarantee of the fifth amendment when committed by a federal actor. See, e.g., Johnson v. Robison, 415 U.S. 361, 364-65 n. 4, 94 S.Ct. 1160, 1165 n. 4, 39 L.Ed.2d 389 (1974). Both grand juries and the venires for petit juries are subject to an equal protection requirement with respect to the method of their selection. See, e.g., Cobbs v. Robinson, 528 F.2d 1331, 1334 (2d Cir.1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354 (1976) (grand juries), and Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986) (petit juries).

Under federal law, each federal district court is to have a plan for random selection of grand jurors and the venire of petit jurors. See 28 U.S.C. § 1863(a). Federal law automatically excludes, however, certain classes of persons from eligibility for service as federal jurors. See 28 U.S.C. § 1865(b). One of those classes is persons who have a charge pending against them for the commission of a felony. See 28 U.S.C. § 1865(b)(5).

Mr. Greene contends that this exclusion is not rationally related to a legitimate governmental purpose and therefore violates his equal protection rights. See, e.g., Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972). He makes multiple arguments in this regard. First, he offers several reasons why differentiating in juror eligibility between those who have been charged but not convicted and others who have not been charged contributes nothing toward the likelihood that jurors will be of unquestionable integrity. (The statute also excludes those convicted of felonies whose civil rights have not been restored, but Mr. Greene does not challenge that exclusion.) Second, Mr. Greene asserts that the exclusion of those who have been charged but not convicted tends to eliminate blacks disproportionately from juror pools. (Evidence to this effect was presented in the trial court, was accepted as true by the trial court, and is evidently not seriously disputed by the government.)

With respect to the integrity of jurors, Mr. Greene argues, in essence, that it is irrational to exclude persons who have merely been accused of a felony when persons actually convicted of one are eligible to serve if their civil rights have been restored. See 28 U.S.C. § 1865(b)(5). Mr. Greene also asserts that if unquestionable integrity of jurors is the goal, the exclusion of all persons accused or convicted of certain felonies is unnecessary, since many felonies (traffic offenses, for instance) do not implicate concerns relating to the truthfulness of the person charged or convicted. See, in a related vein, Fed.R.Evid. 609(a)(2). Finally, Mr. Greene argues that the exclusion of persons merely accused of a felony is offensive to the presumption of innocence given to criminal defendants. Even under a test requiring only a rational relationship between the exclusion and the legitimate governmental purpose of assuring the unquestionable integrity of jurors, then, Mr. Greene argues that the exclusion violates the constitutional guarantee of equal protection.

Several appellate courts have held, however, that the exclusion from juror eligibility of persons charged with a felony is rationally related to the legitimate governmental purpose of guaranteeing the probity of jurors. See, e.g., United States v. Foxworth 99 F.2d 1, 4 (1st Cir.1979); United States v. Test, 550 F.2d 577, 594 (10th Cir.1976) (en banc ); and United States v. Lewis, 472 F.2d 252, 256 n. 4 (3d Cir.1973); see also H.R.Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. and Admin.News 1792, 1796. The trial court in this case found that the exclusion was "rationally related to the purpose of trying to achieve a reputable and reliable jury ... whose judgment society can respect."

We agree with the other appellate courts that have ruled on this question and with the trial court in this case. We believe, furthermore, that it is rational to assume that persons currently facing felony charges may be biased against the government; we therefore hold that the exclusion of those persons from eligibility to serve as grand jurors or petit jurors in criminal trials is rationally related to the legitimate governmental purpose of creating a pool of jurors likely to give unbiased consideration to the evidence presented. We also note that a very large percentage of persons charged with felonies are eventually convicted; recognizing this fact in the context of devising a method to choose jurors who are likely to be unbiased does not, we believe, conflict with the respect we give to the presumption of innocence once a particular defendant is brought to trial.

As to the racial impact of the exclusion, Mr. Greene concedes that disparate impact alone is insufficient to trigger the strictest level of scrutiny. See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977), and Washington v. Davis, 426 U.S. 229, 239, 242, 245, 247-48, 96 S.Ct. 2040, 2047, 2049, 2050, 2051, 48 L.Ed.2d 597 (1976). He argues, nonetheless, that the fact that the impact of the exclusion is disproportionately high on blacks should precipitate some intermediate standard of review--i.e., one that is more "exacting" than whether the exclusion is rationally related to a legitimate governmental purpose. Under such a standard, he contends, the exclusion must fall, since the governmental interest in the unquestionable integrity of jurors could be served just as well by the use of strikes for cause.

Mr. Greene is fighting an uphill battle on this question, since it has been addressed many times by the courts. In relation to statutes that are facially race-neutral (as this one is), the Supreme Court has repeatedly applied the rational relationship test unless some evidence of purposeful intent to discriminate has been shown. See, e.g., Village of Arlington Heights, 429 U.S. at 263, 264-66, 97 S.Ct. at 562, 563-64; Washington, 426 U.S. at 246, 96 S.Ct. at 2050-51; and Jefferson v. Hackney, 406 U.S. 535, 546, 548-49, 92 S.Ct. 1724, 1731, 1732-33, 32 L.Ed.2d 285 (1972). Mr. Greene concedes that he has no such evidence to offer. Nor does he argue that the size of the disparity alone is sufficient to allow an inference of intent to discriminate. See, e.g., Village of Arlington Heights, 429 U.S. at 266, 266 n. 13, 97 S.Ct. at 563, 564 n. 13, and Washington, 426 U.S. at 241-42, 96 S.Ct. at 2048. In these circumstances, we are bound by the case law. We therefore affirm the trial court on its holding that Mr. Greene proved no violation of the constitutional guarantee of equal protection.

II.

Both the fifth amendment guarantee of due process and the sixth amendment guarantee of an impartial jury trial require that grand jurors and the venire of petit jurors be chosen from a fair cross-section of the community. See, e.g., United States v. Kleifgen, 557 F.2d 1293, 1295-97 (9th Cir.1977) (fifth...