U.S. v. Tindle

• Decision Date: 20 December 1988
• Docket Number: No. 87-6096,87-6096
• Citation: 860 F.2d 125
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Isaac James TINDLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 125

860 F.2d 125

UNITED STATES of America, Plaintiff-Appellee, v. Isaac James TINDLE, Defendant-Appellant.

No. 87-6096.

United States Court of Appeals, Fourth Circuit.

Argued April 6, 1988.

Decided Oct. 25, 1988.

Rehearing and Rehearing In Banc Denied Dec. 20, 1988.

Terrance G. Reed (Timothy D. Junkin, Henry W. Asbill, L. Barrett Boss, Asbill, Junkin, Myers & Buffone, Chartered, Washington, D.C., on brief), for defendant-appellant.

Ty Cobb, Sp. Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., Donna Helen Triptow, Asst. U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee.

Before MURNAGHAN and CHAPMAN, Circuit Judges, and MacKENZIE, Senior District Judge from the Eastern District of Virginia, sitting by designation.

CHAPMAN, Circuit Judge:

In United States v. Tindle, 808 F.2d 319 (4th Cir.1986) we affirmed the various heroin related convictions of the appellant, but we remanded the case to the district court pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) to decide whether there was any merit to Tindle's claim that blacks were systematically excluded from his trial jury. Following remand, the district court conducted two conferences with the attorneys. The appellant's attorneys filed a motion for a new trial, and thereafter a supplemental pleading and an affidavit. The United States Attorney submitted a public filing outlining his reasons for exercising the peremptory challenges in the case, and he also submitted an in camera filing. Thereafter, the district court heard oral argument and issued a twenty-three page memorandum opinion denying the motion for a new trial, denying the appellant's request for an evidentiary hearing in the case, and finding that the United States Attorney had not systematically excluded black jurors from the trial jury in violation of Tindle's equal protection rights.

The appellant has appealed contending that it was error for the trial judge to allow the government to discharge its burden under Batson with some evidence being submitted to the court in camera, and in failing to provide the appellant with an evidentiary hearing at which he could call the government attorneys and others as witnesses. We find no merit to these claims, and we affirm.

I

The facts underlying Tindle's conviction are more completely outlined in our prior opinion, but they reflect a drug operation that was extensive, that generated large sums of money, and that was accompanied by widespread violence. Tindle, a black male, was indicted with thirteen co-defendants for various narcotic offenses. Prior to trial most of the defendants entered pleas of guilty, and only Tindle, Harris and Gladden went to trial. Several days into the trial, both Harris and Gladden changed their pleas to guilty.

In the United States District Court for Maryland attorneys select jurors from a list of venire members provided by the Clerk of Court. This list contains the name, age, address, marital status and employment of the prospective juror. The list does not contain any indication as to race. In exercising peremptory challenges the attorneys strike from the list. At Tindle's trial the defendants were granted three extra peremptory challenges for a total of thirteen and the United States was allowed six under Fed.R.Crim.P. 24(b). The trial judge conducted the voir dire of the venire and then permitted the attorneys to leave the courtroom to discuss and decide how to exercise their challenges. The peremptory challenges were made by striking the name of the challenged venire person from the list. When the attorneys returned to the courtroom they submitted to the courtroom deputy clerk their separate list showing their peremptory challenges. The remaining venire persons were called and became the trial jury.

The list of prospective jurors submitted to counsel by the courtroom deputy clerk contained thirty-one names. The defendants struck thirteen, the government struck six. Of its six peremptory challenges, the government used five to strike black jurors, and the jury, which tried Tindle, was entirely white. Upon remand the trial judge concluded that this use of five peremptory challenges against black jurors made out a prima facie case of discrimination under Batson. At this point, the trial judge advised the United States Attorney that the burden had shifted to him to come forward with a racially neutral explanation for challenging each black juror. The record disclosed that the government had exercised its peremptory challenges as follows:

Juror No. 78--John A. Smallwood, Sr., a black.

Juror No. 91--Riley Brothers, Jr., a black.

Juror No. 102--Walter H. Johnson, Jr., a black.

Juror No. 54--Dennis J. Sesplankis, a white.

Juror No. 295--Veronica Bell, a black.

Juror No. 314--Arlene A. Granderson, a black.

The government submitted an affidavit of Lt. William Merritt of the Metropolitan District of Columbia Police Department, who was the case agent in the investigation and prosecution of this case, and he was present at the prosecution table throughout the trial. He participated with the government attorneys in selecting the jury and deciding which members of the venire to strike. Lt. Merritt is black and is a twenty-year veteran of the police department, and in his affidavit he swears that at no time was race mentioned as a factor in the exercise of the government's peremptory challenges, and that he agreed with the challenges as exercised. His affidavit also states that he would not be a party to any effort to use race as a factor to eliminate black jurors. Merritt's affidavit also explains the reasons for exercising most of the peremptory challenges used by the government and such reasons are racially neutral.

Before the district judge, the government attorney explained his strategy in selecting the jury and his use of his challenges. He also submitted to the judge in camera the notes used by him in the selection of the jury, and certain other sensitive information that he relied upon in selecting the jury. He asserted that this information, if made public, could embarrass and endanger individuals, including venire persons, and that certain of the information was work product.

The district court found in its order that the reasons advanced by the government articulated a neutral explanation for each of the peremptory challenges, and that these explanations were clear, reasonably specific and met the prosecution's burden under Batson of rebutting the defendant's prima facie case. The court also concluded that these explanations were not pretextual.

The defendant's presentation was marked by a confusion as to the race of certain jurors and as to which side had exercised the challenge. The defendant also submitted an affidavit of one David Hughes dated April 1, 1987, more than three years after the trial, in which he swore that Mr. Cobb, the Assistant United States Attorney trying the case, advised Hughes that he had purposely struck all of the blacks from the jury. In these matters the trial judge determines issues of credibility, and it is easy to see why no weight was given to this affidavit. Hughes was co-conspirator of Tindle, he had been used by Tindle to launder large sums of money, and he had already entered a guilty plea and been sentenced for his part in the offenses covered by the indictment. Hughes gave no indication of why Mr. Cobb, or any other government attorney, would make such a confession to a convicted felon, and why, if this charge were true, he waited over three years to come forward. An earlier Hughes affidavit was attached to a supplemental brief submitted to our court when the first appeal was argued in August, 1985, and it made no mention of such a statement by Mr. Cobb.

At the remand hearing the government explained that it had challenged Juror Veronica Bell, who was black, thirty-five years of age, divorced and employed as a security officer at Mondawmin Mall in Baltimore, because this mall has long been associated by law enforcement officers with narcotics trafficking, and narcotics organizations purchased cutting materials and other supplies at the mall. At a recess prior to jury selection, Juror Bell was observed conversing with individuals associated with the co-defendant Harris. This explanation was found by the district court to be neutral, not pretextual and true. We agree.

Arlene Granderson was a black female, forty-five years of age and employed at the Department of Health and Human Services. The government explained its strike of her because her name closely resembled that of Anthony Grandison, who had been a defendant in a trial involving the murder of two government witnesses. The Grandison trial had been handled by Assistant United States Attorney Cobb, the same person representing the government in the Tindle case. We agree with the district judge that this was a neutral and non-pretextual reason to challenge.

Juror Riley Brothers, Jr. was a black, thirty-six years of age and a bus driver working for the Washington Metropolitan Transit Authority. He lived in Suitland, Maryland and Tindle's telephone records indicated a large number of calls to participants in Tindle's narcotics operation in Suitland. Also, Juror Brothers was similar in size and appearance to the defendant Gladden, and Gladden had argued that he had been mistakenly identified and was being prosecuted solely because of his size and appearance. We agree with the district judge that this was a neutral and non-pretextual reason for the government to exercise a challenge.

Juror Walter H. Johnson, Jr. was listed as being thirty years of age and a construction laborer residing in Beltsville, Maryland. The master jury list showed him unemployed, but the government thought that he had been employed in an area of Prince George's County near the Tindle narcotics operation. The government did not have a record of Johnson's race and since the selection of the...