U.S. v. Leslie, 83-3719

• Decision Date: 10 April 1985
• Docket Number: No. 83-3719,83-3719
• Parties: , 17 Fed. R. Evid. Serv. 1298 UNITED STATES of America, Plaintiff-Appellee, v. Eugene LESLIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 366

759 F.2d 366

53 USLW 2562, 17 Fed. R. Evid. Serv. 1298

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

No. 83-3719.

United States Court of Appeals, Fifth Circuit.

April 10, 1985.

Rehearing En Banc Granted May 14, 1985.

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

John P. Volz, U.S. Atty., Howat A. Peters, Jr., Harry W. McSherry, Jr., Fred P. Harper, Jr., Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

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

Before BROWN, WILLIAMS and GARWOOD, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Eugene Leslie challenges his drug conviction on three grounds: the prosecutor improperly used all of his peremptory challenges against black veniremen, the plea agreement letters between the government and various government witnesses were incomplete and improperly vouched for the credibility of those witnesses, and Leslie was denied the opportunity to impeach the testimony of a government witness. We find merit in Leslie's first claim, and we reverse and remand on that claim. In all other respects, we affirm.

I.

Leslie, a black man, was indicted, tried, and found guilty of conspiring to distribute narcotics in violation of 21 U.S.C. Sec. 846 (1982), and of possessing narcotics with the intent to distribute them in violation of 21 U.S.C. Sec. 841(a)(1) (1982). After the voir dire and after the district court excused veniremen for cause, the United States Attorney exercised each of his six peremptory challenges permitted by Fed.R.Crim.P. 24(b) against black veniremen. These six black veniremen were the only blacks on Leslie's jury panel of thirty-six. The prosecutor also used his sole peremptory challenge permitted by Fed.R.Crim.P. 24(c) to excuse the only black person on the panel of alternates. Immediately after both parties exercised their peremptory challenges, Leslie moved for a mistrial and argued that the pattern in which the prosecutor employed his peremptories demonstrated that the prosecutor's conduct was racially motivated. Leslie urged the district court to invoke its discretionary authority over the conduct of the trial to grant his motion. The prosecutor stated that he did not exercise his peremptory challenges for racial reasons, and he offered to explain, in camera, his reasons for striking the black veniremen. The district court denied Leslie's motion for a mistrial, stating that a prosecutor need not offer any explanation for the manner in which he exercises his peremptory challenges. As a result, Leslie was tried before and convicted by an all-white jury.

Leslie was indicted with at least six other people: Fernando Giron, Thomas Gray, Claude Griffin (Griffin), and Griffin's wife, son, and daughter. Gray and Griffin pled guilty and agreed to testify for the government in the case against Leslie and Giron, who were tried together. In connection with their plea arrangements with the government, Gray and Griffin executed standard plea agreement letters that the government provided. These plea agreement letters were admitted into evidence over Leslie's objection.

Consistent with their plea agreements, Gray and Griffin testified against Leslie and Giron at the trial. On the second day of the trial, after Gray, Griffin, and others had given devastating testimony against Giron, Giron agreed to plead guilty. The case against Leslie proceeded. The day after Giron had agreed to plead guilty, the government called Giron to testify against Leslie. In his direct testimony, Giron indicated that he occasionally had delivered cocaine to and had received payments from Leslie. In Leslie's vigorous cross-examination, Leslie sought to establish that Giron was biased against Leslie and had agreed to plead guilty and testify against Leslie only to curry favor with the prosecutor and the sentencing judge. Specifically, Leslie sought to have Giron concede that the government would not accept Giron's guilty plea unless Giron agreed to testify against Leslie. Giron made no such concession and testified that at the time the agreement was consummated he did not know he would be called as a government witness in Leslie's case.

Leslie then sought to impeach Giron's testimony by calling Giron's attorney, James Moriarty, as a witness. The court conducted a hearing outside the jury's presence and asked Moriarty a series of questions concerning the plea agreement. Moriarty testified that the two critical aspects of the plea agreement were that Giron would testify in the case against Leslie and that Giron would plead guilty to one count of his two-count indictment. He also testified that he had specifically asked Giron: "Are you [Giron] willing to testify in this case against Leslie?" and that Giron's response was "Yes." Finally, Moriarty testified that he believed his client understood all aspects of the plea agreement. The district court did not allow Leslie to call Moriarty as a witness at trial, in part, because it did not find Giron's and Moriarty's testimony to be in substantial conflict.

In this appeal Leslie raises three claims. Initially, he argues that we should invoke our supervisory authority to ensure that federal prosecutors do not employ peremptory challenges to strike only black veniremen. Second, he claims that the district court improperly admitted the plea agreement letters into evidence because the letters were both under- and over-inclusive and because they improperly bolstered the credibility of the government witnesses. Third, he asserts that the district court erroneously denied him the opportunity to impeach Giron's testimony and demonstrate Giron's bias by calling Moriarity as a witness. We address each contention in turn.

II.

1. THE SUPERVISORY POWER CLAIM

Racial discrimination in the selection of grand and petit jurors is a disturbingly familiar and recurring problem in our criminal justice system. The Supreme Court has stated that the systematic exclusion of persons based upon the persons' race from the grand jury pool, the petit jury pool, or the petit jury through the prosecutor's use of peremptory challenges violates a defendant's equal protection rights guaranteed by the Fourteenth Amendment. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (petit jury--peremptory challenges); Strauder v. West Virginia, 100 U.S. 303, 10 Otto 303, 25 L.Ed. 664 (1880) (grand and petit jury pools). In this case, Leslie concedes that he cannot satisfy the literal requirements of Swain by demonstrating that federal prosecutors in New Orleans systematically employed peremptory challenges to exclude blacks from petit juries in multiple cases over a period of time. He nevertheless argues that since this case, unlike Swain, involves a federal prosecution, this Court should use its supervisory authority over federal district courts and federal prosecutors to correct practices compromising the integrity of the judicial process and prevent prosecutors from striking veniremen solely because of the veniremen's race. He argues that the exclusion of blacks from the petit jury in his case undermines public confidence in the judicial system, impinges upon judicial integrity, and is manifestly unfair.

A. The Supreme Court's Exercise of Its Supervisory Power

The so-called supervisory power doctrine was articulated formally over four decades ago in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), ¹ and has been interpreted to permit federal courts ² to formulate procedural rules not specifically required by the Constitution or federal statutes. United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983). McNabb involved a prosecution for the murder of a federal agent. A failure by the arresting officers to follow proper detention and interrogation procedures led the Court to reverse the convictions. The Supreme Court rested its decision upon its supervisory power over the lower federal courts. Initially, the Court recognized that:

while the power of [the] Court to undo convictions in state courts is limited to the enforcement of those "fundamental principles of liberty and justice" ... which are secured by the Fourteenth Amendment, the scope of [the Court's] reviewing power over convictions brought ... from the federal courts is not confined to ascertainment of Constitutional validity.

Id. 318 U.S. at 340, 63 S.Ct. at 642. ³ "Judicial supervision of the administration of criminal justice in the federal courts", the Court reasoned, "implies the duty of establishing and maintaining civilized standards of procedure and evidence. Such standards are not satisfied merely by observance of those minimal historic safeguards for securing trial by reason which are summarized as 'due process of law' and below which we reach what is really trial by force." Id. In reversing the defendant's convictions, the Court announced the duty of courts "as agencies of justice and custodians of liberty" to preserve the integrity of the judicial process and guard against practices employed in cases such as McNabb. Id. at 347, 63 S.Ct. at 616.

Subsequent to McNabb, the Supreme Court has repeatedly exercised its supervisory power over lower federal courts in a wide variety of cases to reverse a conviction which was supported by false evidence, Mesarosh v. United States, 352 U.S. 1, 14, 77 S.Ct. 1, 8, 1 L.Ed.2d 1 (1956); Communist Party of the United States v. Subversive Activities Control Board, 351 U.S. 115, 125, 76 S.Ct. 663, 668, 100 L.Ed. 1003 (1956), to curtail improper practices by federal attorneys, United States v. Hale, 422 U.S. 171, 180 & n. 7, 95 S.Ct. 2133, 2138 & n. 7, 45 L.Ed.2d 99 (1975); Grunewald v. United States, 353 U.S. 391, 422 & 424, 77 S.Ct. 963, 983 & 984, 1 L.Ed.2d 931 (1957); Jencks v. United States, 353 U.S. 657, 668 & 672, 77 S.Ct. 1007, 1013 & 1015, 1 L.Ed.2d 1103 (1957); Roviaro v. United States, 353...