U.S. v. Stewart, 92-6988

• Decision Date: 03 October 1995
• Docket Number: No. 92-6988,92-6988
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Scott STEWART, Stevie Hugh Stone, Christopher Liff Daniel, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 918

65 F.3d 918

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Scott STEWART, Stevie Hugh Stone, Christopher Liff Daniel, Defendants-Appellants.

No. 92-6988.

United States Court of Appeals Eleventh Circuit.

Oct. 3, 1995.

J. Louis Wilkinson, Wilkinson & Vinson, Birmingham, AL, for Dennis Scott Stewart.

C. Tommy Nail, McAbee, Nail & Ragsdale, Birmingham, AL, for Stevie Hugh Stone.

Kenneth J. Gomany, Birmingham, AL, for Christopher Liff Daniel.

Jack W. Selden, U.S. Atty., James A. Sullivan, Asst. U.S. Atty., Birmingham, AL, Jessica D. Silver, Gregory B. Friel, U.S. Dept. of Justice, Civ. Rights Div., Washington, DC, for U.S.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and JOHNSON, Senior Circuit Judge.

CARNES, Circuit Judge:

Dennis Scott Stewart, Stevie Hugh Stone, and Christopher Liff Daniel appeal their convictions for conspiracy to violate the civil rights of another, interference with the housing rights of another, and use of fire in the commission of a federal felony. Their three contentions are: that the district court improperly upheld the government's Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenge to one of their jury strikes, in violation of their right to exercise peremptory challenges; that their conviction on three separate counts related to the same incident violated their right not to be placed in jeopardy twice; and, that they were convicted based upon their beliefs and their association with the Ku Klux Klan, in violation of their First Amendment rights. For the reasons that follow, we reject all of their contentions and affirm their convictions.

I. BACKGROUND

In 1991, Linda and Isaiah Ruffin, who are both black, moved their family into a home they had purchased near Horton, a small Marshall County community. The family included their two young daughters and Mrs. Ruffin's 96-year-old aunt. They were some of the first blacks to live in that area, and the young Ruffin girls were among the first black children to attend the local public school in the nearby community of Douglas.

The presence of the Ruffins in the virtually all-white community agitated the membership of the Alabama Empire Knights of the Ku Klux Klan ("Klan"). During the group's meetings, Stevie Hugh Stone, a Klan leader, complained that "niggers" had moved into an all white community where they were not wanted. Christopher Liff Daniel and Dennis Scott Stewart were also Klan members.

At a mid-March 1991 meeting held at Daniel's home, some Klan members, including these three defendants, agreed to burn a cross in the Ruffins' yard. To create an alibi, they planned to attend a March 23, 1991, Klan rally in Sommerville, Alabama, and then to slip away from that rally to undertake the cross burning. On the prearranged date, Daniel, Stone, and Stewart attended the rally. After leaving the rally, those three, along with four other Klan members, Junior Whitlock, Marion Lynn Gibson, J.P. Warren, and Thomas Murphree, arrived at Daniel's trailer. ¹ Stone informed Warren that the group was "fixing to go burn a cross" and would do it "over at those niggers that had moved in." He said that Warren would light the cross as a new Klan member. Daniel retrieved a cross wrapped in burlap with a pointed tip; they loaded it and a can of diesel fuel into Murphree's pickup truck.

Around 11:30 p.m. or midnight, the seven men left for the Ruffins' home in the pickup truck and another vehicle. After stopping to douse the cross with the diesel fuel, they arrived at the Ruffins' property. Warren stuck the cross into the ground in the Ruffins' yard about twelve to fifteen feet from the Ruffins' front door, and he lit it. The Ruffins and two guests were in the house. After hearing a noise, Mr. Ruffin retrieved his gun and went outside to investigate. When he saw the men burning the cross, he began firing his gun. Warren fled in the truck, and the burning cross tumbled over onto the lawn. When Mr. Ruffin stopped shooting, Whitlock drove the second vehicle in front of the Ruffins' home, and from that vehicle Stone fired into the air at least three shots from a .22 caliber pistol. Stone told Whitlock that Stone had "scared the hell out of that guy [Mr. Ruffin]."

The three counts of the resulting indictment that are relevant to this appeal charged that Stone, Stewart, and Daniel knowingly and willfully: conspired to deprive the Ruffins of their civil right to "own, hold and occupy a dwelling without injury, intimidation, and interference because of their race and color," in violation of 18 U.S.C. Sec. 241; attempted to and actually did "injure, intimidate, and interfere" with the Ruffins' occupation of a dwelling because of their race, in violation of 42 U.S.C. Sec. 3631(a); and, used fire during the commission of a federal felony, their Sec. 241 conspiracy, in violation of 18 U.S.C. Sec. 844(h)(1).

II. DISCUSSION

A. THE BATSON ISSUES

The first issue the defendants raise involves the district court's action in sustaining the government's Batson challenge to one of their peremptory strikes. The result of the court's action was that a black female the defendants had attempted to keep off the jury served on it. Arguing that the court's action was not justified under Batson, the defendants contend that it was an improper interference with their right to exercise their peremptory strikes. We do not think so, because we believe that the district court's action in sustaining the government's objection to the peremptory strike was proper under Batson.

1. The Jury Selection Facts

The jury was struck from a group of thirty venire members, four of whom were black. The defendants used three of their peremptory strikes to remove three of the four blacks from the jury. After all of the strikes of both sides had been exercised, one black female, Ms. Carter, was left on the jury. Before the jury was impaneled, however, the government objected that the defendants' strikes of the three other black venire members were racially discriminatory. After requiring the defendants to explain those three strikes, the district court found that two of the three strikes had been sufficiently race neutral in motivation but that the defendants had stricken Ms. Robertson because of her race, and it ordered her seated on the jury.

Because of the mechanics of the process used to select the jury, the district court's action in returning Ms. Robertson to the jury had the ironic effect of displacing Ms. Carter from it. Thus, the net result of the court's action sustaining the government's Batson challenge to the strike of Ms. Robertson was that one black female replaced another on the jury.

2. The Batson Inquiry

In Batson, the Supreme Court held that a prosecutor's use of peremptory strikes in even a single case to remove blacks from the jury on account of their race violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). That principle was extended to defense peremptory strikes in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). The Supreme Court has established a framework for evaluating Batson challenges. "[I]f the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants[ ] must articulate a racially neutral explanation for peremptory challenges." Id. at 59, 112 S.Ct. at 2359. Once the Batson challenger demonstrates a prima facie case of discrimination and the opposing party offers an explanation for the challenged strikes, "the trial judge determines, in light of all the facts and circumstances, whether the [Batson challenger] has established the existence of purposeful discrimination." United States v. Jiminez, 983 F.2d 1020, 1023 (11th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 330, 126 L.Ed.2d 276 (1993).

When we review the resolution of a Batson challenge, we give great deference to the district court's finding as to the existence of a prima facie case. See United States v. Moore, 895 F.2d 484, 486 (8th Cir.1990) ("The trial judge ... is in by far the best position to make the Batson prima facie case determination.... De novo review of the record by this Court would be inappropriate...."); see also Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Once past the prima facie case step, the district court's determination concerning the actual motivation behind each challenged strike amounts to pure factfinding, and for that reason we will reverse the district court's determination only if it is clearly erroneous. See Hollingsworth v. Burton, 30 F.3d 109, 112 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 944, 130 L.Ed.2d 888 (1995); United States v. Diaz, 26 F.3d 1533, 1542 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 952, 130 L.Ed.2d 895 (1995).

We reject the defendants' suggestion that a stricter standard of appellate review should apply to cases where the Batson issue involves defense strikes instead of prosecution strikes. A defendant's misuse of the power of the court to deny a citizen her right to participate on a jury because of race is as reprehensible as a prosecutor's, and the effect on the excluded juror is the same. Moreover, a district court's superior ability as a Batson factfinder stems from two advantages it has over an appellate court: the positional advantage of being there among the facts as they unfold, and of seeing and hearing the explanations as they are given; and the experiential advantage of regularly being in the business of factfinding, which an appellate court is not. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985) ("The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the...