U.S. v. Horsley

• Decision Date: 06 February 1989
• Docket Number: No. 86-3316,86-3316
• Citation: 864 F.2d 1543
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin Jerome HORSLEY, Earl Howard McDonald, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

864 F.2d 1543

UNITED STATES of America, Plaintiff-Appellee, v. Marvin Jerome HORSLEY, Earl Howard McDonald, Defendants-Appellants.

No. 86-3316.

United States Court of Appeals Eleventh Circuit.

Feb. 6, 1989.

Samuel R. Mandelbaum, Tampa, Fla., for Horsley.

Timothy Allen Hunt, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for McDonald.

Whitney L. Schmidt, Asst. U.S. Atty., Tampa, Fla., for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, VANCE and COX, Circuit Judges.

PER CURIAM:

I.

In this appeal, Marvin Jerome Horsley and Earl Howard McDonald challenge their convictions for possession of cocaine with intent to distribute, see 21 U.S.C. Sec. 841(a)(1) (1982), on two grounds. One of the grounds is frivolous ¹ and is not worthy of discussion. The other, based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has merit and requires that we remand the case to the district court for further proceedings.

The appellants, who are black, contend that during the selection of the jury that tried the case, the prosecutor purposefully discriminated against them by peremptorily challenging the only black on the venire. They therefore claim that the district court denied them the equal protection of the laws as guaranteed by the due process clause of the fifth amendment ² when it overruled their objection to the seating of the jury.

The jury was selected in the following manner. First the court qualified a venire of thirty-two persons. Only one of the thirty-two veniremen, Clarence Beckham, was black. The court then examined the venire and, when it finished, invited counsel to undertake their own additional examination of the veniremen. The prosecutor declined the invitation; defense counsel accepted it and made a brief inquiry of several veniremen. The court thereafter entertained challenges for cause; none were made.

The parties exercised their peremptory challenges at side bar; the Government had six challenges, and the defendants had ten. The parties presented their challenges--one by one with the Government proceeding first--by addressing the twelve veniremen seated in the jury box; as strikes were made, the challenged venireman was replaced by the next venireman in line (from the twenty not in the box).

The Government struck Clarence Beckham with its second peremptory challenge. At this point, the defense expressed concern that appellants were to be tried by an all-white jury and objected to what appeared to be a racially discriminatory use of the peremptory challenge by the prosecutor. Accordingly, defense counsel asked the court to request that the prosecutor give his reasons for exercising his peremptory challenge against Beckham. Since Beckham's answers to the district court's questions, during voir dire, did not differ in substance from those provided by white jurors whom the prosecutor did not strike, ³ the court ruled that the defendants were "entitled to something on the record." The obvious implication of the court's action is that it inferred from the circumstances that the prosecutor had struck Beckham because he was black in order purposefully to deprive appellants of the possibility of having any blacks impaneled to try the case. The court then requested the prosecutor to set forth a non-racially discriminatory reason for striking the black juror. The prosecutor responded, "I don't have any particular reason. I just got a feeling about him as I have about Mr. Gonzalez and several others." ⁴

Before swearing in the jury, the district court revisited the defendants' objection to the striking of Beckham in light of the Supreme Court's opinion in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which had been handed down the preceding day. The court asked the prosecutor if he had anything to add to his previous justification for striking Beckham, and the prosecutor answered in the negative. Upon reconsideration, the district court retreated from its earlier position and reversed its earlier ruling that the circumstances permitted an inference of purposeful discrimination. The court did so because it interpreted Batson as holding that a prima facie case of purposeful discrimination can be established only when the prosecutor has engaged in a pattern of peremptory strikes against a minimum of three or four black veniremen. ⁵ Because such a pattern could not be established in the case at hand--the venire contained only one black juror--the court concluded that the prosecutor's use of the peremptory challenge against Beckham did not rise "to the stature of a constitutional violation." Horsley and McDonald contend that the district court misconstrued the requirements of Batson. We agree.

II.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court overruled Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), to the extent that it had held that a prosecutor's exercise of peremptory challenges in a given case, standing alone, could not permit an inference of purposeful discrimination. See Batson, 476 U.S. at 93-96, 106 S.Ct. at 1721-22. ⁶ The Batson court reasoned that Swain's requirement had "placed on defendants a crippling burden of proof" and had rendered prosecutors' peremptory challenges "largely immune from constitutional scrutiny." Id. at 92-93, 106 S.Ct. at 1720-21 (citation omitted). Under Batson's analysis, a defendant who belongs to a cognizable racial group may establish a prima facie equal protection violation by showing that the prosecutor exercised peremptory challenges against members of the defendant's race and that this "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. at 96, 106 S.Ct. at 1723. Once a prima facie case is established, the burden shifts to the prosecutor to come forward with a racially "neutral explanation related to the particular case to be tried." Id. at 98, 106 S.Ct. at 1723 (citation omitted). The trial court then must decide on the basis of all the evidence whether a denial of equal protection will result if it overrules the defendant's objection to the prosecutor's exercise of the challenge. Id. at 98, 106 S.Ct. at 1723-24.

Initially, we hold that the vague explanation offered by the prosecutor in the instant case was legally insufficient to refute a prima facie case of purposeful racial discrimination. While the reasons given by the prosecutor "need not rise to the level justifying exercise of a challenge for cause," see Batson, 476 U.S. at 97, 106 S.Ct. at 1723, the prosecutor must nevertheless "give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." Id. at 98 n. 20, 106 S.Ct. at 1723 n. 20 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)). The prosecutor's explanation in the present case, "I just got a feeling about him," obviously falls short of this requirement. As the Batson court concluded, "If [such] general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause 'would be but a vain and illusory requirement.' " Id. at 98, 106 S.Ct. at 1723 (quoting Norris v. Alabama, 294 U.S. 587, 598, 55 S.Ct. 579, 583-84, 79 L.Ed. 1074 (1935)).

As noted above, after the prosecutor failed to articulate a sufficient explanation for striking Beckham, the district court reversed its earlier ruling that the circumstances permitted an inference that the prosecutor had purposely discriminated against the appellants by striking the one juror who was of their same race, or in the vernacular of Batson, that the appellants had established a prima facie case of purposeful discrimination. The district court...