U.S. v. Leslie, 83-3719

• Decision Date: 23 March 1987
• Docket Number: No. 83-3719,83-3719
• Citation: 813 F.2d 658
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene LESLIE, Defendant-Appellant.

Page 658

813 F.2d 658

UNITED STATES of America, Plaintiff-Appellee, v. Eugene LESLIE, Defendant-Appellant.

No. 83-3719.

United States Court of Appeals, Fifth Circuit.

March 23, 1987.

Robert Glass, New Orleans, La., for defendant-appellant.

Fred P. Harper, Jr., Howat A. Peters, Jr., Harry McSherry, Asst. U.S. Attys., Sidney M. Glazer, Dept. of Justice, Washington, D.C., John P. Volz, U.S. Atty., New Orleans, La., for plaintiff-appellee.

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before CLARK, Chief Judge, BROWN, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL, and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

This case is now before us on remand from the United States Supreme Court. After our en banc affirmance of appellant Leslie's conviction, United States v. Leslie, 783 F.2d 541 (5th Cir.1986), Leslie petitioned the Supreme Court for writ of certiorari. The Court, on February 23, 1987, entered the following order on Leslie's petition:

"The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Griffith v. Kentucky, 479 U.S. ---- [107 S.Ct 708, 93 L.Ed.2d 649] (1987)." Leslie v. United States, --- U.S. ----, 107 S.Ct. 1267, 94 L.Ed.2d 128 (1987).

Griffith v. Kentucky, --- U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), held that, with respect to complaints of prosecution use of peremptory challenges to strike members of the defendant's race from the jury, Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), applied to cases tried before Batson but still on direct review when Batson was handed down on April 30, 1986. This contrasts to the holding of Allen v. Hardy, --- U.S. ----, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), that Batson is not to be applied on federal habeas to cases where trial and direct review were completed before Batson. We hold that Batson must be applied in this case, for it is indistinguishable from Griffith. In Griffith, as here, the defendant's petition for certiorari was pending in the United States Supreme Court when Batson was handed down. We recognize that Batson, Griffith, and Allen each involved state convictions, and that Batson expressly rests on the equal protection clause of the Fourteenth Amendment, which is applicable to the States but not to the United States, while the case at bar is a federal prosecution. Nevertheless, the Fifth Amendment's due process clause, applicable to the United States, has been construed to implicitly include an equal protection guaranty generally as broad as that of the Fourteenth Amendment. See, e.g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976). Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 1903, 48...