U.S. v. Roberts

Decision Date19 September 1990
Docket NumberNo. 88-6185,88-6185
Citation913 F.2d 211
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Cynthia Diane ROBERTS, Johnny Binder, Jr., and Martha Marie Preston, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

David Cunningham, Houston, Tex., (Court-appointed), for Roberts.

Kent A. Schaffer, Houston, Tex., for Binder.

Will Gray, David R. Bires, Houston, Tex., for Preston.

Mel R. Pechacek, Paula C. Offenhauser, Asst. U.S. Attys., Gulf Coast Drug Task Force, Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, RUBIN, and DAVIS, Circuit Judges.

GEE, Circuit Judge:

Today we decide--among other points of error--whether the government's use of four peremptory strikes to exclude black veniremembers violated the defendants' constitutional rights under Batson v. Kentucky 76 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and whether an ex parte communication between the district court's case manager and the jury violated the defendants' fifth and sixth amendment rights. We find no reversible error by the district court and therefore affirm their convictions.

Appellants Cynthia Diane Roberts, Johnny Binder, Jr., and Martha Marie Preston appeal their convictions for aiding and abetting the distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Defendant Binder also challenges his conviction for aiding and abetting the maintenance of a place for the purpose of manufacturing "crack" cocaine in violation of 21 U.S.C. Sec. 856--the "crackhouse law." The three defendants jointly allege that the district court erred in denying their Batson motion--a motion challenging the government's use of peremptory strikes to exclude black veniremembers--and allege that an ex parte communication between the district court's case manager and the jury violated their constitutional rights under the Fifth and Sixth Amendments. Preston and Binder challenge the sufficiency of the evidence supporting their aiding and abetting convictions. We find nothing in the record supporting any of the defendants' points of error and therefore affirm.

Facts and Procedural History

The government indicted Roberts, Preston, Binder and twenty-five others for conspiracy to possess cocaine with intent to distribute (in both crack form and as a powder base) in violation of 21 U.S.C. Sec. 846 and Sec. 841(a)(1). Preston and Binder, the two lead defendants in the case, were separately indicted for engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848; for maintaining a facility for the manufacture and distribution of "crack" cocaine in violation of 21 U.S.C. Sec. 856; for aiding and abetting the possession of cocaine with intent to distribute; and for aiding and abetting the distribution of cocaine. Preston was separately indicted for the use of a communication facility in violation of 21 U.S.C. Sec. 843(b) and for attempting to influence a government witness in violation of 18 U.S.C. Sec. 1512. Binder was separately indicted for conspiracy to defraud the United States Government in violation of 18 U.S.C. Sec. 371 and for witness tampering in violation of 18 U.S.C. Sec. 1512. The indictments resulted from an intensive four year undercover investigation into a Houston cocaine trafficking network, an investigation which led to a series of Houston Police Department and Drug Enforcement Agency ("DEA") controlled buys of cocaine and to raids on Houston nightclubs and other establishments suspected of operating as crackhouses. 1

All three appellants pled not guilty and were tried before a jury. The jury found Roberts guilty on one count of aiding and abetting the distribution of cocaine on or about December 17, 1986 and acquitted her of the remaining charges. The district court sentenced her to four years in the custody of the Attorney General and three years special parole, with the condition that she be placed in the prison closest to Houston having a drug treatment facility.

The jury found Preston guilty of aiding and abetting the distribution of cocaine on or about February 2 and on February 25, 1987, and of witness tampering. The court sentenced her to twenty years in the custody of the Attorney General, three years special parole and imposed a $60,000 fine for each count of aiding and abetting, with the sentences to run consecutively. The court further sentenced her to twenty-one months incarceration, two years supervised release and assessed a $20,000 fine for the witness tampering count, to run concurrently with the aiding and abetting sentences.

The jury convicted Binder of aiding and abetting the distribution of cocaine on or about December 17, 1986 and of aiding and abetting the maintenance of a place for the purpose of manufacturing, distributing and using "crack" cocaine on May 23, 1987, at 8515 Hearth Street, acquitting him of the remaining counts. The district court sentenced him to twenty years in the custody of the Attorney General, three years special parole, and imposed a $100,000 fine on each count, with the sentences to run consecutively. From these convictions, the defendants appeal.

The Batson Challenge

The three defendants, each of whom is black, contend that the government violated their Fifth Amendment rights by using its peremptory challenges to exclude blacks from the jury in the manner condemned by Batson v. Kentucky. Each defendant made timely objections to the prosecution's peremptory strikes of four black veniremembers. The government eventually used four of its seven peremptory strikes to exclude blacks from the jury. The government used the remaining three challenges to exclude non-blacks. Two blacks were ultimately selected as members of the jury.

To prevail on a Batson claim, defendant must allege a prima facie case of discrimination. To meet this burden, the defendant must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove from the venire members of his race. Batson, 476 U.S. 79 at 95, 106 S.Ct. 1712 at 1722. The prosecution denied any systematic exclusion of blacks, noting the presence of two black women on the jury. 2 The district court ruled, however, that the defendants had established a prima facie Batson case.

Once a defendant establishes a prima facie Batson case, the burden shifts to the prosecution to offer a race neutral explanation for striking the black veniremembers. Batson, 476 U.S. 79 at 96, 106 S.Ct. 1712 at 1722-23; United States v. Moreno, 878 F.2d 817, 820 (5th Cir.1989). Such an explanation need not rise to the level justifying exercise of a challenge for cause, but need only give a "clear and reasonably specific explanation of his legitimate reasons for exercising the challenges." United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989), aff'd on remand, 889 F.2d 559 (5th Cir.1989). Here, the district court conducted a formal hearing on the defendants' Batson motion and found the government's explanations sufficient to uphold the peremptory strikes.

The issues presented in a Batson motion primarily turn on evaluations of credibility and therefore we review the district court's finding that the government committed no Batson error under a clearly erroneous standard. See United States v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir.1988). Giving proper deference to the district court's decision, we conclude that the defendants' Batson challenge is without merit. Unlike the jury in Batson, the jury here ultimately held two black jurors. Moreover, our review of the record discloses a sufficient basis for the government's peremptory challenges of the three black veniremembers and the one black alternate veniremember excluded from the jury.

The prosecution struck juror number eight, a black woman, because of her disinterested demeanor, her inattentiveness, and her reluctance to serve on a jury because she worked nights and was responsible for the care of her small grandchild during the day. Intuitive assumptions about a potential juror's interest and attitudes can be acceptable as a neutral explanation for a peremptory challenge. See United States v. Moreno, 878 F.2d 817, 821 (5th Cir.1989). Here, the district court found a neutral basis in the government's explanation and we do not disturb its ruling.

The prosecution excluded juror number eleven, a black woman, because of her involvement in the political campaigns of Anthony Hall and of the late Mickey Leland and her statement that she was inclined to believe representations made to her by persons whose political candidacy she supported. The defendants listed Mr. Hall as a potential defense witness. Juror eleven also had been exposed to pre-trial publicity concerning the case. The district court found that these explanations offered sufficient justification for her exclusion from the jury and so do we.

Juror number fourteen, a black man, stated during voir dire that he would not consider tape recordings as evidence in a criminal case, even though they were lawfully obtained, because such evidence violated a defendant's "rights." Senator Craig Washington, counsel for one of the defendants, questioned juror fourteen during a sidebar conference and the juror recanted, agreeing with every statement made by Senator Washington regarding tape recorded evidence. The government maintains that this shift in view was insincere because the juror was in awe of Senator Washington and answered the sidebar questions in a submissive deference to the senator. We agree with the district court that the government could reasonably question this juror's ability to view the evidence presented impartially and find no Batson violation.

The government struck a prospective alternate juror, number thirty-six, a black woman, because she knew defendant Cynthia Roberts and had heard her sing at a local...

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