U.S. v. Leslie
Citation | 759 F.2d 381 |
Decision Date | 19 April 1985 |
Docket Number | No. 83-3719,83-3719 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eugene LESLIE, Defendant-Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Robert Glass, New Orleans, La., for defendant-appellant.
John P. Volz, U.S. Atty., Howat A. Peters, Jr., Harry McSherry, 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, A.J. McNamara, Judge.
[Majority Opinion, 759 F.2d 366, rehearing en banc granted May 14, 1985]
Before BROWN, WILLIAMS and GARWOOD, Circuit Judges.
I respectfully dissent from the holding that this case should be remanded for inquiry into the prosecution's reasons for exercising its peremptory challenges against black venirepersons.
Appellant Leslie was charged, along with Fernando Giron, a Honduran, with distributing and conspiring to distribute cocaine. Trial was held in New Orleans. After the first day of trial, Giron pleaded guilty and testified for the government. Other significant witnesses for the government were Claude Griffin, who testified that he had acquired cocaine from Giron and distributed it to Leslie, who then redistributed it, and Thomas Gray, who had transported cocaine from Houston to New Orleans for Griffin, received money from Leslie in exchange for the drugs, and then given the money to Griffin. Giron, Griffin, and Gray are white; Leslie is black.
The record contains no transcript of the voir dire or jury selection process, although it does include the jury list showing those removed for cause and by peremptory challenge. When the court completed excusing venirepersons for cause, the jury panel had been reduced to twenty-eight, of whom six were black. The government used its six peremptory challenges to remove these six blacks, and the defense used its ten peremptory challenges to remove ten whites. Of the four persons comprising the alternate pool, one was black; the government used its alternate peremptory to remove this individual, and the defense used its alternate peremptory to remove a white from the alternate pool. The procedure and order of exercising peremptory strikes are not reflected in the record.
After the peremptories were completed, Leslie's counsel moved for a mistrial. He complained that the government used its peremptories to remove all the blacks from the jury and alternate pools, and that Leslie's counsel in effect admitted that there was no racially discriminatory "pattern or practice" of striking blacks, did not claim that anything similar had ever occurred before or would occur again, and made no attempt to analyze or comment on the voir dire or the composition of the venire panel in any terms other than who was black and who was white. He stated that "race is the only thing that explains this situation," and urged use of "the Court's discretion." The Assistant United States Attorney who tried the case for the government stated that the excused blacks were "not struck on the basis of race" and offered to give "an in camera reason," which the court declined. The matter was not raised again in the trial court, either by motion for new trial or otherwise.
On appeal, Leslie's brief casts his complaint in the following context:
It is implicit in the foregoing that Leslie does not complain that he was tried by a prosecutor or jury that bore any racial animosity toward him or blacks generally. 2 Rather, he complains that, because of the peculiar factual setting of this case, he needed one or more black jurors to "translate" his speech and conduct to the rest of the jury; in effect, to vouch for his explanation of the suspicious conversations and activities. 3 It is likewise implicit that Leslie has never contended that the prosecution peremptorily struck black venirepersons because of personal or official hostility toward blacks, or as part of an effort to prevent black citizens from serving on criminal juries. Rather, the prosecution apparently made the strikes simply in an effort to procure, from among those summonsed and not disqualified, a jury which, under the discrete facts of this particular case, would least likely be partial to Leslie, by excluding blacks as individuals either most prone to see their role as that of translator or spokesman for Leslie or perhaps as being particularly susceptible to influence on behalf of one so prominent in the black community. This is also apparent from Leslie's statement in his brief, repeated in substance at oral argument, that:
Accordingly, the question here is not whether the prosecution may peremptorily challenge blacks in an effort to deny citizens of that race the right and privilege of serving on criminal juries. Nor is it what character of proof suffices to sustain such a claim, prima facie or otherwise. No such claim is made. Rather, the issue here is whether the prosecution may take race or similar group characteristics into account when it exercises a peremptory challenge for the sole purpose of procuring a jury least likely to be partial to the defense, in light of the discrete facts of the particular case being tried.
I believe the answer to this question is clearly supplied by part II of the Supreme Court's opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). As in this case, the prosecution in Swain peremptorily struck all six black venirepersons on the jury panel, with the result that the black defendant was tried by an all-white jury. Swain is, of course, a much cited and quoted opinion. But it is perhaps worthwhile to take another look.
So far as it concerned peremptory challenges by the prosecution based on race or similar group membership, Swain distinguished between and dealt separately with two types of such challenges: first, those made for the purpose of the particular case being tried, which it addressed in part II; second, those made "for reasons wholly unrelated to the outcome of the particular case on trial ... to deny the Negro the same right and opportunity to participate in the administration of...
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