U.S. v. McCoy, s. 95-10285

• Decision Date: 29 August 1996
• Docket Number: 95-10286,Nos. 95-10285,s. 95-10285
• Citation: 96 F.3d 1452
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Michael Wayne McCOY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frederick W. DILLE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1452

96 F.3d 1452

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Wayne McCOY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Frederick W. DILLE, Jr., Defendant-Appellant.

Nos. 95-10285, 95-10286.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 1996.

Decided Aug. 29, 1996.

Before: O'SCANNLAIN and LEAVY, Circuit Judges; HUFF, ^* District Judge.

MEMORANDUM ^**

Appellants Michael Wayne McCoy and Frederick W. Dille, Jr. appeal their convictions on various mail fraud, securities fraud, bank fraud, and RICO charges. They each allege that the prosecution engaged in purposeful discrimination during jury selection in violation of Batson v. Kentucky, 476 U.S. 79 (1986). They also challenge various evidentiary rulings made by the court. In addition, Dille unilaterally argues that (1) alleged prosecutorial misconduct during closing argument constituted plain error, (2) the district court erred in denying his motion for a new trial on grounds of juror misconduct, and (3) the district court erred in imposing a two-level increase in his base offense level based on abuse of a position of trust. We affirm on all except the sentencing issue.

I

McCoy and Dille both argue that the district court erred in denying their motion to quash the jury panel. ¹ In denying the motion, the district court ruled that the prosecution did not violate Batson during jury selection. The court's finding that purposeful racial discrimination did not occur during jury selection is a finding of fact which we review for clear error. United States v. Contreras-Contreras, 83 F.3d 1103, 1106 (9th Cir.1996); United States v. Bauer, 84 F.3d 1549, 1555 (9th Cir.1996). We are not persuaded that the court clearly erred.

In Batson, the Supreme Court held that the Equal Protection Clause forbids prosecutors from using peremptory challenges to exclude potential jurors solely on account of their race. The appellants have the burden of proving purposeful discrimination under Batson. Bauer, 84 F.3d at 1554. As we noted in Bauer, the Supreme Court has outlined "a three-step process for evaluating allegations that the prosecution used peremptory challenges in violation of the Equal Protection Clause." Id. at 1554.

Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.

Id. (quoting Purkett v. Elem, 115 S.Ct. 1769, 1770-71 (1995)). In order to make out a prima facie case, the defendants must show that

(1) the defendant is a member of a cognizable racial group; (2) the prosecution has removed members of such a racial group; and (3) circumstances raised an inference that the challenges were motivated by race.

United States v. Wills, 88 F.3d 704, 715 (9th Cir.1996) (quoting Turner v. Marshall, 63 F.3d 807, 812 (9th Cir.1995)). If the defendants fail to make their prima facie showing, the government is "not required to articulate a race-neutral basis for its peremptory challenges...." Id. In addition, "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Contreras-Contreras, 83 F.3d at 1104 (quoting Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion)).

As an initial matter, we note that this court has never applied Batson in a case in which the government did not use peremptory challenges to exclude members of a certain racial group. In addition, other circuit courts which have addressed the question have suggested that Batson would not apply in such a context. See, e.g., Wills, 88 F.3d at 715 ("Under Batson, a prosecutor's racially discriminatory use of peremptory challenges constitutes a violation of equal protection.") (emphasis added); United States v. Blackmun, 66 F.3d 1572, 1575 n. 3 (11th Cir.1995) ("no authority suggests Batson extends to the area of challenges for cause"), cert. denied, 116 S.Ct. 1365 (1996); United States v. Bergodere, 40 F.3d 512, 515-16 (1st Cir.1994) ("the defendant must show that the challenge was peremptory rather than for cause, thus bringing into play the Supreme Court's admonition that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate") (quoting Batson, 476 U.S. at 96) (internal quotation marks omitted), cert. denied, 115 S.Ct. 1439 (1995). However, even assuming arguendo that Batson applies in such a situation, we conclude that the district court's factual finding that purposeful discrimination did not occur is not clearly erroneous.

With respect to Juror Clark, the district court stated that:

Then the questions were asked of Mr. Clark. And he was a contractor. It was the Court's intention to try, as I did, to retain Mr. Clark as a juror. I did say that I was going to wait for defense counsel to inquire. However, when Mr. Clark did say that he had a concern at four weeks, that caused me to then inquire if it went over four weeks, it was going to be a problem. He said that it would, and he, basically, said that he could not sit if the case was going to go over four weeks. And, of course, although while we hope it does not, I cannot guarantee any juror how long the trial is going to last.

I also believe that it would have not been evenhanded of me if I had, at that point, said, "well, you are going to have to sit, Mr. Clark," where, on less inquiry, I excused other jurors on their statements that they either had employment or businesses that would cause them to not be as attentive to the trial as they should or to seek the hardship discharge.

For these reasons, because I do not believe that the challenge was racially motivated, I am going to deny the motion under Batson.

Appellants have failed to demonstrate that this finding was clearly erroneous. Accordingly, we reject their Batson challenge with respect to juror Clark. ²

With respect to Juror Hayes, the district court concluded that the prosecution had offered a race-neutral explanation for any attempt which it may have made to keep Hayes off the jury. The government explained that it did not want Hayes on the jury in part because Hayes' son was a minister, and because the wife of one of the appellants was a minister. The court thus ruled that "the Court cannot ascribe racial motive in the exercises of the challenge where, in fact, there has been a rational explanation for the withdrawal of the challenge to Ms. Herrera." Appellants have again failed to demonstrate that this finding is clearly erroneous. Moreover, appellants' implicit argument that the government should be forced to exercise its peremptory challenges so as to allow the defense an opportunity to seat minority jurors is also meritless. See United States v. Canoy, 38 F.3d 893, 901 (7th Cir.1994) (rejecting similar claim on grounds that "we certainly do not read Batson to impose a duty on the government to utilize all of its peremptory strikes in order to ensure that members of a racial minority are seated on the jury").

Finally, with respect to Juror Mingo, we note that the appellants admit that "[t]here was concededly no definitive resolution as to Mr. Mingo's race or ethnicity." Accordingly, the appellants cannot establish that Mingo was a member of any cognizable racial group removed by the prosecution, and they have thus failed to make out their prima facie case. See Wills, 88 F.3d at 715.

For the foregoing reasons, we reject appellants' Batson claims.

II

McCoy also challenges the district court's decision to allow Gerald Lyles, Vice-President of Lyles Diversified, Inc., a company with which McCoy had previously been associated in a general partnership, to testify regarding his prior business dealings with McCoy. McCoy argues that the evidence was irrelevant under Fed.R.Evid. 401 and inadmissible character evidence under Fed.R.Evid. 404(b). He also argues that even if the evidence was admissible, it was unfairly prejudicial under Fed.R.Evid. 403. ³ We review the district court's evidentiary rulings during trial for an abuse of discretion. United States v. Manning, 56 F.3d 1188, 1196 (9th Cir.1995) (citation omitted). The court did not abuse its discretion.

In December 1990, the California Department of Corporations ("DOC") began an investigation into McCoy's business dealings. The DOC concluded that MMA was selling unregistered securities, and issued a cease and desist order in May 1991. William Bickford, DOC's attorney, then requested additional information from McCoy regarding MMA's operations. In response, McCoy submitted a number of documents, including a document containing the following paragraph:

Prior to the formation of MMA, Mr. McCoy participated in a joint venture with Lyles Diversified Services for the sole purpose of factoring accounts receivable. After six months of operation, Lyles Diversified decided the business was not in their scope and dissolved the joint venture. Mr. McCoy initiated a note with Lyles Diversified for the cost of funding the project. Due to Mr. McCoy's good faith, Lyles Diversified had continued to back MMA as a positive referral source which has led to specific profitable dealings with other financial entities.

According to the prosecution, this paragraph was inaccurate,...