U.S. v. Haskell
| Decision Date | 13 November 2006 |
| Docket Number | No. 04-3384.,04-3384. |
| Parties | UNITED STATES of America, Appellee, v. Carl HASKELL, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
K. Michael Warner, AUSA, argued, U.S. Attorney's Office, Kansas City, MO, for Appellee.
Carl Haskell, Florence, CO, pro se.
Elizabeth Unger Carlyle, argued, Lee's Summit, MO, for Appellant.
Before ARNOLD and BEAM, Circuit Judges, and DOTY,1 District Judge.
Carl Haskell appeals his convictions for conspiracy to murder a federal witness and for murdering a federal witness. Finding no error, we affirm.2
In October and November 1997, Cornelius Peoples, Xavier Lightfoot, and Larry Platt committed a number of armed robberies of banks and jewelry stores in Omaha, Nebraska. In December 1997, Lightfoot's romantic partner, John Hogsett, also known as Jovan Ross, contacted the police and the Federal Bureau of Investigation (FBI), telling them about the robberies and the location of the proceeds. On December 12, 1997, Lightfoot was charged in federal court with bank robbery. Lightfoot was arrested and ordered to remain in custody until trial. The government subpoenaed Hogsett to testify at trial. In February 1998, the government disclosed through pretrial discovery that Hogsett would be the primary witness at Lightfoot's July 1998 trial. However, Lightfoot's trial would be postponed.
Cornelius Peoples visited Lightfoot in Leavenworth, and the two devised a plan to kill Hogsett to prevent testimony at Lightfoot's trial. Peoples contacted Curtis Barfield and Anthony Hunter and promised money for locating a killer. Barfield and Hunter located Carl Haskell, who agreed to do the killing for a portion of the money. Barfield and Hunter gave Haskell information about Hogsett, who was killed on June 8, 1998. Haskell was ultimately tried and found guilty of conspiracy to murder a federal witness and murdering a federal witness. He appeals.
Hogsett was murdered on June 8, 1998. Initially, only Lightfoot and Peoples were charged with the murder. During Lightfoot's and Peoples' trial, on October 30, 1999, Platt came forward with his attorney, to give information to the FBI. At that time, Platt identified Hunter as being involved in the murder.
On December 17, 1999, Hunter submitted to an FBI interview and identified witnesses and co-conspirators. Hunter gave the FBI the names of Carl Haskell and Curtis Barfield, as well as the nickname "Little J." The FBI attempted to identify these individuals through photographs. Haskell and Barfield were identified, but it took seven photo arrays for Hunter to identify "Little J" as Quinton Jones on September 18, 2000. In September and October 2000, the FBI interviewed Freddie McIntosh. In October 2000, the FBI interviewed Ronald Smith, Jr. On October 18, 2000, Haskell was indicted for Hogsett's murder. On February 17, 2001, the FBI interviewed Quinton Jones.
Haskell moved to dismiss the charges for pre-indictment delay, and we review for clear error the district court's denial of this motion. United States v. Sturdy, 207 F.3d 448, 452 (8th Cir.2000). To prove a violation of the Fifth Amendment's due process right against unreasonable pre-indictment delay, Haskell "must establish that: (1) the delay resulted in actual and substantial prejudice to the presentation of the defense; and (2) the government intentionally delayed his indictment either to gain a tactical advantage or to harass him." Id. at 451-52. Haskell's argument is unavailing.
Haskell failed to show that the government intentionally delayed the indictment. Haskell points to a ten-month gap between the time Hunter provided Haskell's name to the FBI and the time Haskell was indicted. However, Haskell neglects to note the FBI's diligence in working with reluctant informants and with the Kansas City, Kansas, police to identify potential suspects and witnesses, like Jones, known only by nicknames. Given these circumstances, Haskell has not shown that the government intentionally delayed the indictment, much less that any delay was tactically designed or for harassment purposes. We find no clear error in the district court's refusal to dismiss due to pre-indictment delay.
Prior to trial, Haskell moved to sever his trial from Barfield's, and the district court denied this motion. When the motion to sever is not renewed during trial, we review a pre-trial severance denial for plain error, United States v. Mathison, 157 F.3d 541, 546 (8th Cir.1998),3 and reverse only if there was a misjoinder which had a substantial and injurious effect or influence on the verdict. United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). Haskell moved for severance because Clarence Burnett was expected to testify about statements made by Barfield, and Haskell would be unable to cross-examine Barfield about these statements, since Barfield did not testify.
Burnett was incarcerated in the same prison as Barfield and was known as a person who could help other inmates. At the joint trial, Burnett testified Barfield told him that Hunter had approached Barfield to organize a murder of a federal informant and Barfield had agreed to the murder. Contrary to Haskell's contentions, Burnett's testimony only applied to Barfield and did not implicate Haskell in any way. In fact, Burnett's testimony implying involvement of anyone other than Barfield was limited to Hunter's involvement and a cryptic reference to "they," which could have referred to witnesses, to Hunter, or to someone with whom Barfield conspired to commit the murder. The testimony did not inculpate Haskell or prevent him from presenting a defense. Cf. United States v. Tootick, 952 F.2d 1078, 1081-83 (9th Cir.1991) (). The district court did not plainly err in denying Haskell's severance request.
Haskell alleges that the government used peremptory strikes in a discriminatory manner during voir dire. In Batson v. Kentucky, the Supreme Court recognized that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Court went on to prescribe the process for determining whether peremptory strikes have been used in a discriminatory manner. Initially, the opponent of the peremptory strike must make a prima facie showing that the peremptory strike is being used to exclude jurors in a racially discriminatory manner. Id. at 96-97, 106 S.Ct. 1712. Once the opponent has met this burden, the proponent of the peremptory strike must provide a neutral explanation for the challenge. Id. at 97, 106 S.Ct. 1712. Finally, the trial court has "the duty to determine if the [opponent] has established purposeful discrimination." Id. at 98, 106 S.Ct. 1712. Because the burden of proving discrimination never shifts from the opponent of the peremptory strike, the opponent of the peremptory strike typically is allowed to "put forth evidence probative of pretext" during this third step. Moran v. Clarke, 443 F.3d 646, 652 (8th Cir.2006). The district court's determination of whether the explanation is race neutral is largely a credibility finding, Batson, 476 U.S. at 98, n. 21, 106 S.Ct. 1712, and is reviewed for clear error. United States v. Elliott, 89 F.3d 1360, 1365 (8th Cir.1996).
Haskell objected to the government's use of peremptory strikes against jurors Echols, Dobbs, and Long. We assume, without deciding, that Haskell made a prima facie showing of discrimination. The government, as the proponent of the strikes, explained its reasons for challenging these jurors.
The government's race-neutral reason for striking Echols was that Echols faced a charge of driving on a suspended license. The pending charges would require Echols to make court appearances, and the government inferred from the nature of the charges that Echols likely used drugs or alcohol. The proffered reason for striking Dobbs was that she unequivocally stated that she could not impose a death sentence. Finally, the government's reasons for striking Long were that her views on the death penalty were not strong and that she knew someone involved in the case.
Haskell attempted to rebut these explanations by offering "side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve." Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). If Haskell's comparisons were to show similarities, this evidence would be probative of pretext, id., but each of Haskell's comparisons fails to demonstrate similarities.
First, Haskell compares Echols to a white juror who also had a drug problem. However, this comparison does not account for Echols' upcoming court date, a difference sufficient to defeat any similarity between the two.
Second, Haskell compares Dobbs to a number of white jurors, including Wood and Ellis. When asked by the prosecution, "could you return a sentence of death?" Dobbs responded, "No." The prosecutor followed up this question with, "Not under any circumstances could you do that?" Again, "No." Though Dobbs later softened responses when questioned by defense counsel, no other venire person pointed out by Haskell responded in this manner. For example, white prospective juror Wood, to whom Haskell points in particular, when asked the same question, "could you return a sentence of death?" answered simply, "[y]es." The same is true of prospective juror Ellis.
Finally, Haskell compares Long's views on the death penalty to those of...
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