U.S. v. Joe, s. 90-5005

• Decision Date: 04 March 1991
• Docket Number: Nos. 90-5005,90-5006 and 90-5022,s. 90-5005
• Citation: 928 F.2d 99
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Morgan A. JOE, Sr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James E. BAYLOR, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alton L. SKEETER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 99

928 F.2d 99

UNITED STATES of America, Plaintiff-Appellee, v. Morgan A. JOE, Sr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James E. BAYLOR, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Alton L. SKEETER, Defendant-Appellant.

Nos. 90-5005, 90-5006 and 90-5022.

United States Court of Appeals Fourth Circuit.

Argued Oct. 2, 1990.

Decided March 4, 1991.

Robert Dale Seabolt, Mays & Valentine, Richmond, Va., Frederick Thomas Stant, Jr., Clark & Stant, P.C., Virginia Beach, Va., argued, for defendants-appellants; Wayne Lustig, Edward E. Scher, Mays & Valentine, Richmond, Va., on brief, for defendant-appellant Joe; Stephen C. Swain, S. Geoffrey Glick, Clark & Stant, P.C., Virginia Beach, Va., on brief, for defendant-appellant Baylor; Thomas B. Shuttleworth, Judith M. Cofield, Shuttleworth, Ruloff, Giordano & Kahle, P.C., Virginia Beach, Va., on brief, for defendant-appellant Skeeter.

Robert William Wiechering, Asst. U.S. Atty., Norfolk, Va., argued, for plaintiff-appellee; Henry E. Hudson, U.S. Atty., James A. Metcalfe, Asst. U.S. Atty., Norfolk, Va., C. Patrick Hogeboom, III, Gordon Kromberg, U.S. Dept. of Justice, Washington, D.C., on brief, for plaintiff-appellee.

Before CHAPMAN and WILKINS, Circuit Judges, and STAMP, District Judge for the Northern District of West Virginia, sitting by designation.

WILKINS, Circuit Judge:

Morgan A. Joe, Sr., Alton L. Skeeter, and James E. Baylor, Jr. appeal their convictions resulting primarily from their participation in a kickback scheme involving United States Navy contracts. ¹ The principal error assigned by defendants Joe and Skeeter is the alleged exercise by the government of its peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We conclude that the district court failed to make the factual determinations necessary for this court to review the Batson issue and remand the cases of Joe and Skeeter to the district court for further proceedings. We affirm Baylor's conviction.

I.

Joe and Skeeter, who are black, were vice presidents of Systems Management American Corporation ("SMA"). The Small Business Administration awarded contracts to SMA on behalf of the Navy that included a provision that limited the amount of profit SMA could earn. In order to circumvent this contractual profit limitation, Joe and Skeeter conspired with subcontractors and suppliers who, in return for business from SMA, submitted invoices inflated by ten percent for the services and goods provided to SMA. SMA paid these invoices and thereby increased its overhead costs reimbursed by the government. The amount by which the invoices were inflated was then funnelled to Joe, Skeeter, and other coconspirators. Baylor, who is white, was vice president and general manager of Baylor Corporation, a subcontractor that transacted business with SMA, and was one of those involved in the kickback scheme.

Prior to voir dire, each juror completed a questionnaire requesting general background information. Additionally, each juror completed a Federal Court Juror Qualification Questionnaire that solicited the juror's age, address, race, and occupation. The court made this information available to the parties prior to empaneling the jury. During voir dire, the district court and the attorneys questioned the prospective jurors individually.

The attorneys agreed to follow a procedure different from that traditionally followed in criminal trials in selecting a jury. The clerk drew the names of thirty prospective jurors and placed them on a list. This number was sufficient to constitute a twelve-member panel after the defendants exercised their twelve peremptory challenges and the government exercised its six peremptory strikes. The government and defendants alternated striking from the list. Of the thirty individuals chosen, nineteen were white and eleven were black. Four alternate jurors were selected in a similar fashion: the clerk drew eight names at random and placed them on a list, and the government and defense each exercised two strikes.

In exercising its eight peremptory challenges, the government struck six black jurors including five from the panel and one alternate. The only white juror the government struck from the panel was George Bell, a prospective juror whom the government had unsuccessfully challenged for cause. Six black jurors initially were seated on the petit jury. Several jurors seated were excused during the course of the trial and replaced by alternates. The jury that ultimately deliberated and returned its verdicts of guilty included five black members.

Prior to the jury being sworn and the trial commencing, defendants moved to dismiss the jury on the basis that the government exercised its peremptory strikes in a racially discriminatory manner. The district court refused to hold a hearing and summarily denied the motion. The court required, however, that the government meet with a court reporter the day after the jury was selected, out of the presence of the court and defendants, and dictate to the court reporter its reasons for striking the six black jurors. Without reviewing the proffered explanations, the court sealed the record containing the reasons submitted by the government.

At the conclusion of a seven-week trial, defendants renewed their Batson motion. They requested that the trial court address the question of whether they had presented a prima facie case for a Batson violation and, if so, review the reasons articulated by the government to determine if the explanations were racially neutral. The trial court did not rule on whether the events during voir dire constituted a prima facie case under Batson or whether the reasons articulated by the government were racially neutral. Despite its resistance to addressing this issue, the district court opened the sealed record, permitted defendants to review the enclosed explanations, and allowed the parties to present their arguments for the record. The court then affirmed its earlier denial of defendants' motion apparently on the basis that since black jurors were seated and participated on the jury no Batson violation could occur.

II.

The exercise of peremptory challenges by the government in a racially discriminatory manner violates a defendant's right to equal protection. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A defendant may establish a prima facie case under Batson by showing 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. at 96, 106 S.Ct. at 1723 (citation omitted). A defendant may rely upon the fact that the nature of peremptory strikes permits those who are inclined to discriminate to do so. A defendant must show facts sufficient to raise an inference of intent by the government to discriminate based on all of the relevant circumstances. Id.; United States v. Grandison, 885 F.2d 143, 146 (4th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1990). Although the presence of members of a defendant's race on a jury may weigh against a finding of discrimination, a defendant is not automatically foreclosed from establishing a prima facie case of discrimination under Batson even when members of the defendant's racial group were...