U.S. v. Thompson

• Decision Date: 10 September 1987
• Docket Number: No. 86-5195,86-5195
• Citation: 827 F.2d 1254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clyde Major THOMPSON, aka Clyde Johnson; Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1254

827 F.2d 1254

56 USLW 2180

UNITED STATES of America, Plaintiff-Appellee, v. Clyde Major THOMPSON, aka Clyde Johnson; Defendant-Appellant.

No. 86-5195.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 7, 1987.

Decided Sept. 10, 1987.

Judith S. Feigin, San Diego, Cal., for plaintiff-appellee.

Mario G. Conte and Verna J. Wefald, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

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

Before SNEED, KOZINSKI and THOMPSON, Circuit Judges.

KOZINSKI, Circuit Judge:

In this case we must answer some of the questions left open by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The most important of these is whether the district judge abused his discretion by conducting an in camera, ex parte examination of the prosecutor's motives for excluding blacks from the jury.

Facts

On July 1, 1985, two employees of Security Pacific National Bank in San Diego left the branch where they worked and crossed the street. It was early in the morning and the two were following their daily routine of servicing Security Pacific's Automatic Teller Machines (ATMs) that dispense cash and perform other banking functions. The machines, together with a nearby safe, usually held well over $100,000.

The bank employees had just begun closing down the machines, when one of them sensed someone standing behind him. He turned and saw a man who proved to be defendant Thompson. The employee said, "Sir, I'm sorry, this machine is closed. Please use the machine around the corner." Defendant responded to this courtesy by putting a gun to the employee's head and shoving him inside the building where the ATMs were housed. After much screaming and verbal abuse, the defendant and an accomplice left, taking with them $136,000 in twenty-dollar bills.

Right about that time, Thompson began to spend freely. Between the robbery and his arrest he bought a van (almost entirely with twenty-dollar bills), insurance, clothing and remote control helicopters. He was also generous with his friends and relatives. Indeed, by the time police finally caught up with him, he had only $6500 left. Thompson was then arrested and read his rights. He made a full confession, the voluntariness and accuracy of which he does not challenge.

At trial, Thompson's lawyer opened his argument by conceding: "Clyde Thompson confessed to this bank robbery, and I'm here to tell you, yes, he did it." The jury agreed, and returned a guilty verdict, apparently rejecting Thompson's claim that, but for the active solicitation of a former bank employee, he never would have robbed the bank.

Issue

Thompson's trial began on December 12, 1985, with the selection of a jury. In keeping with the custom of the federal courts, the judge alone conducted voir dire; each side was then given a number of peremptory challenges. This appeal was taken because Thompson is black and the government used four of its peremptory challenges to exclude all four blacks in the venire. Immediately after the jury was sworn, Thompson's lawyer moved for a mistrial. The court allowed the government to put its reasons for the disputed peremptory challenges on the record, albeit in camera and out of the presence of the defendant and his lawyer. After hearing out the prosecutor, the court denied the motion for mistrial, and the case proceeded. The defendant did not learn what the prosecutor had said until he received a transcript in preparation for this appeal. Relevant portions are set out in the margin. ¹

The defendant argues that this procedure violated his fifth amendment right to due process and his sixth amendment right to a fair and impartial jury. He also contends that his conviction must be reversed even if this procedure did not violate his rights, because the transcript reveals that the prosecution used its peremptory challenges in a racially discriminatory way. The government disputes each of these points but argues that, even if we accept their validity, they amount to no more than harmless error.

Discussion

It has been established for over a century that a "State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded." Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 1716, 90 L.Ed.2d 69 (1986) (citing Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880)). Until recently, however, proof that a prosecutor peremptorily challenged all blacks on a particular venire was insufficient to show purposeful exclusion. Under Swain v. Alabama, 380 U.S. 202, 227, 85 S.Ct. 824, 839, 13 L.Ed.2d 759 (1965), a defendant wishing to raise the issue had to show that a prosecutor used peremptory challenges systematically, over some period of time, to exclude blacks from juries. Swain was still good law at the time of Thompson's trial and, the defense having made no such showing, we cannot fault the district judge for denying a mistrial. Indeed, he showed remarkable prescience in asking the prosecutor to state her reasons at all.

Since the trial, however, Swain has been overruled, Batson, 106 S.Ct. at 1725 n. 25; and Batson has since been held retroactively applicable to all cases, like this one, pending on direct appeal, Griffith v. Kentucky, --- U.S. ----, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). We must, therefore, carefully review and apply Batson's teachings to Thompson's case.

Batson allows a defendant to overcome what Swain called the "presumption in any particular case ... that the prosecutor is using the State's challenges to obtain a fair and impartial jury...." Swain, 380 U.S. at 222, 85 S.Ct. at 837. To do this, a defendant must first show that "he is a member of a cognizable racial group." Batson, 106 S.Ct. at 1723. Then he must show circumstances that raise a necessary inference of purposeful discrimination, for example, a pattern of striking veniremen of the defendant's race, or the prosecutor's comments during voir dire. Id.

If the defendant can make these two showings, he establishes a prima facie case and the burden then shifts to the prosecutor to present a neutral explanation for his challenges. The prosecutor may not rely on assumptions or intuition that a challenged juror would be partial to the defendant because he is of the same race, nor may the prosecutor simply rely on an assertion of good faith. He "must articulate a neutral explanation related to the particular case to be tried." Id. The Supreme Court did not say, however, when a defendant must raise his objection nor what procedures the court must follow after a defendant objects. Id. at 1724.

A. Timeliness of Objection

The government argues that defendant's objection came too late on two separate accounts. First, it claims that because defendant did not base his argument on the equal protection clause until appeal, his conviction can be reversed only if manifest injustice would result. It is true that at trial Thompson objected to the exclusion of blacks from the jury only on sixth amendment grounds. ² But at least Thompson raises the equal protection argument now, which is more than Batson did. See Batson, 106 S.Ct. at 1729 (Stevens, J., concurring); id. at 1732 (Burger, C.J., dissenting). Moreover, Thompson informed the district court and opposing counsel of the precise nature of his objections, including those pertaining to the district court's method of probing the prosecution's motives. Only his legal theory is different on appeal. Because the law was in a state of flux at the time of trial, and because the prosecution has shown no prejudice, we conclude that Thompson may raise his equal protection claim on this appeal without the need to show manifest injustice.

The government also argues that Thompson's objection came too late because he did not raise it until just after the jury was sworn. We are unpersuaded. The pattern of the prosecution's peremptory challenges might not have been apparent until the jury was selected, so the objection could not, in any case, have been raised much earlier. While it may have been the better practice to raise the objection just after the jury was selected but before it was sworn, the government suffered no prejudice from the delay. Since it was Thompson who moved for a mistrial, double jeopardy would not have barred a new trial. See United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971).

B. Ex Parte Procedures

The government concedes that Thompson made out a prima facie case under Batson, shifting to it the burden to articulate the reasons for its peremptory challenges. The question presented to us is therefore a narrow one: whether the district judge erred by permitting the Assistant United States Attorney to state her reasons to him ex parte and then ruling on the objection without divulging the reasons to defense counsel. In resolving this issue we must consider and reconcile two fundamental principles of our criminal justice system. The first is that the district judge has broad discretion to fashion and guide the procedures to be followed in cases before him. See, e.g., United States v. Toomey, 764 F.2d 678, 682 (9th Cir.1985) (district judge has considerable discretion in voir dire), cert. denied, 474 U.S. 1069, 106 S.Ct. 828, 88 L.Ed.2d 799 (1986); United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986) (district judge has discretion whether to hold a hearing on motion to suppress). The second principle is that adversary proceedings are the norm in our system of criminal justice, United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985), and ex parte proceedings the disfavored exception.

We start with the first of these propositions. Wisdom and experience teach us that district judges must have the broadest latitude in presiding...