U.S. v. McKinney
| Decision Date | 17 May 1995 |
| Docket Number | No. 94-10045,94-10045 |
| Citation | 53 F.3d 664 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Othniel McKINNEY, Sr., Lonnie Charles Smith, Donald Earl Wade, Brent Ledean Allen, Carolyn Sue Walker, and Antonio Turner, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Helen Liggett, Asst. Federal Public Defender, Lubbock, TX, for Wade.
A.W. SoRelle, III, (Court-appointed), Underwood, Wilson, Berry, Stein & Johnson, P.C., Amarillo, TX, for Allen.
Edward A. Bartolomei, Antonio, TX, for Walker.
Sam Ogan, Asst. Federal Public Defender, Ira Kirkendoll, Federal Public Defender, Amarillo, TX, for Turner.
Delonia A. Watson, Asst. U.S. Atty., Dallas, TX, Paul E. Coggins, U.S. Atty., Sharon Elaine Readhimer Kimball, Asst. U.S. Atty., Fort Worth, TX, for U.S.
Appeal from the United States District Court for the Northern District of Texas.
Before WISDOM, WIENER, and PARKER, Circuit Judges.
Appellants Othniel McKinney, Sr. (McKinney), Lonnie Charles Smith (Smith), Donald Earl Wade (Wade), Brent Ledean Allen (Allen), Carolyn Sue Walker (Walker), and Antonio Turner (Turner) appeal their criminal convictions and sentences. On July 28, 1993, a superseding indictment was returned against twelve named defendants charging that they, along with nine others who had been previously indicted, conspired to violate various drug laws. All of the conspirators entered guilty pleas, except the six Appellants who were tried together in a two and a half week trial. Although the jury acquitted some of the Appellants on some counts, all six received convictions and sentences ranging from 235 months to life. 1
This case involved two overlapping drug operations that sold cocaine and cocaine base (crack) in Wichita Falls, Texas between 1989 and May 1993. One was run by Appellant McKinney, the other by J.B. Butler (Butler), who pleaded guilty and did not appeal.
McKinney owned several businesses in Wichita Falls including a gameroom/food service called Kinney's Playhouse (the Playhouse) and a used car lot. Cherry Johnson (Johnson), who also pleaded guilty and did not appeal, managed the Playhouse premises, while McKinney came by only occasionally. In the summer of 1989, J.B. Butler moved to Wichita Falls. McKinney was characterized at trial as a major crack dealer in the area when Butler arrived in town. Butler began getting cocaine from Dallas/Fort Worth and reselling it in Wichita Falls. At first, Butler pooled his money with Smith to purchase crack to resell. Appellants Smith and Wade went to Dallas with Butler many times to pick up drugs, and Allen made one Dallas trip with Butler. Butler later began getting cocaine from Florida. Allen, Smith and Wade each got their own supplies of crack on the Dallas trips, as well as selling "fronted" cocaine for Butler.
These three Appellants sold small amounts of drugs directly to users. Johnson sold larger quantities of drugs for both Butler and McKinney out of the Playhouse. McKinney did not know at first that Johnson was selling for Butler and when he found out sometime after November 1991, he complained to Butler that he had not known about it earlier.
Butler also sold crack to McKinney, and referred customers to McKinney when he was out of crack. Once, Butler delivered McKinney's crack to Johnson at the Playhouse, and Johnson paid for it. Three other times he delivered McKinney's drugs to McKinney at Appellant Walker's house. Walker, who was McKinney's girlfriend, was present at two of these transactions and paid Butler for the drugs.
Odessa Harper (Harper), who pleaded guilty and testified against the Appellants, also sold crack for McKinney. Harper testified that she picked up about $700.00 worth of crack from Walker five times a month. Harper also observed wet, unpackaged crack at Walker's home in a Pyrex bowl.
The trial testimony established that others who were involved in selling cocaine in Wichita Falls got most of their crack through Butler or McKinney.
Appellant Turner traveled from his home in Kansas to Wichita Falls to buy cocaine from Butler four times in April and May of 1993, who testified that he met Turner in April 1993. Ronald McDonald (McDonald), a co-conspirator involved with Butler, was present at one buy. Amelia Dickerson accompanied Turner to two of the other buys, actually paying Butler for Turner's drug purchases. Dickerson had gotten drugs from Butler previously and sold them in Kansas and introduced Butler to Turner.
Each of the Appellants challenge the method used by the district court for selecting the venire panel, alleging that it violated the Jury Selection and Service Act, 28 U.S.C. Secs. 1861-1878, and their constitutional rights protected by the Sixth and Fourteenth Amendments to the United States Constitution.
All of the defendants are African-American. The 73 person venire panel included no African-Americans. On October 12, 1993, after Appellants viewed the assembled jury panel, but before they began voir dire of the venire, Walker moved to stay the trial until another venire could be drawn for selection of the jury, and her motion was adopted by her co-defendants. The potential that no African-Americans would be on the venire panel was discussed at the pretrial hearing on September 29, 1993, where the district court advised Appellants to prepare a written motion for filing if it became appropriate. Notwithstanding Appellants' failure to present a sworn motion or an affidavit in support of the motion in compliance with 28 U.S.C. Sec. 1867(d), the district court granted Appellants a hearing "in the interest of justice." The jury clerk was made available to Appellants during a break and testified at the hearing later the same day.
Up until August 1993, the district court drew its venire panels from the voter registration lists in the counties within the Amarillo Division. Effective August 27, 1993, the plan was changed to allow for inclusion in jury wheels the names of those persons who, since 1990, have obtained or renewed a Texas drivers license or a Texas Department of Public Safety personal identification card, in addition to voter lists. This case was the first case tried in the Amarillo Division under the new jury plan.
The plan requires that a computer randomly select a certain number of names, weighted by county population, to whom questionnaires will be sent. When questionnaires are filled out and returned, court clerks decide which people are statutorily unqualified or are entitled to some legal exemption from jury service. The questionnaires ask the respondents to identify their race. If that answer is filled out by the respondent, which is not always the case, the court clerk will know the race of the respondent. However, race is not a factor used in the weeding out process. The resulting group of qualified people is the source from which venire members are summoned. The district court tells the clerk how many people to summon, which is done by random selection, choosing for example, every seventeenth name until the required number is reached.
For the venire at issue, about six thousand questionnaires were sent out. After exclusions of those who were not qualified, those who were exempt, and those who did not return the questionnaire 2, there were about 2,700 names in the qualified jury wheel. Out of that list, 150 people were selected at random and summoned for this venire panel.
Appellants made the following factual allegations in support of their challenge to the venire panel: First, African-Americans comprise about 2.28% of the population in the Amarillo Division of the Northern District of Texas. Second, there is a higher concentration of African-Americans in Potter and Randall Counties than in the other counties in the Northern District of Texas. Even though 60% of the population base for the division resides in Potter and Randall Counties, less than 50% of this venire came from those counties, decreasing the chances of proportional representation for African-Americans. Third, the crimes charged occurred in a different division of the district with a higher percentage of African-American population. By denying Appellants' motion to change venue, the district court diminished the chances of African-Americans serving on the jury. Fourth, the clerk's office had the opportunity to discriminate because the juror information questionnaire gave the jurors' race, and there was no protection against a clerk failing to include respondents in the qualified pool on the basis of race, although the clerk denied under oath that that happened.
The district court concluded that the evidence adduced at the hearing showed that there was no systematic exclusion of minority members from the venire, and denied Appellants' motion to stay. We review this factual determination for clear error.
The Jury Selection and Service Act, 28 U.S.C. Secs. 1861-1878 (the Act) was enacted to provide a statutory remedy to realize the policy that all litigants in Federal Courts entitled to trial by jury have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. 28 U.S.C. Sec. 1861. No citizen can be excluded from federal jury service on the basis of race, color, religion, sex, national origin, or economic status. 28 U.S.C. Sec. 1862. Each United States district court is required to devise and put into operation a plan for achieving these objectives, while complying with the strict parameters set out in the Act. 28 U.S.C. Sec. 1863 A defendant must allege and prove a substantial failure to comply with the provisions of the Act to gain relief. 28 U.S.C. Sec. 1867(a).
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