U.S. v. Williams

Decision Date30 August 2001
Docket NumberNo. 00-60587,00-60587
Parties(5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT LESLIE WILLIAMS, Defendant - Appellant
CourtU.S. Court of Appeals — Fifth Circuit

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Appeal from the United States District Court for the Southern District of Mississippi

Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and LITTLE*, District Judge.

BENAVIDES, Circuit Judge:

Robert Leslie Williams ("Defendant"), a former City Councilman of the City of Jackson, Mississippi, appeals his conviction for conspiracy to commit extortion and solicitation of bribery payments relating to the renewal of Time Warner's contract to provide cable television in Jackson. Finding no reversible error in his conviction, we AFFIRM.

I. Factual and Procedural Background

On December 9, 1997, the Jackson City Council voted 4 to 3 to reject Time Warner's proposal to renew its cable franchise. Defendant was one of the four councilmembers that voted against the renewal. Following the December 9 vote of the city council, Sandy McKnight, a maintenance engineer for Time Warner, was contacted by two alleged conspirators, Roy Dixon and a car dealer named Robert Williams.1 Car dealer Williams and Roy Dixon were affiliated with a local radio station where McKnight worked part-time. McKnight agreed to meet the following morning, December 13, 1997, to discuss Time Warner's cable franchise renewal. At the meeting, car dealer Williams sought McKnight's assistance in making contact with the principal negotiator for Time Warner in the franchise renewal discussions with the city. He stated that he could get the franchise renewal processes going again if Time Warner would agree to his terms - a $150,000 payment. When McKnight began to inquire about how the matter could be brought before the council again for another vote, car dealer Williams responded that he could arrange a meeting with someone who could answer such questions. Car dealer Williams specifically instructed McKnight, however, not to mention the $150,000 payment during the subsequent meeting.

Later that same day, McKnight received a page from car dealer Williams directing him to a meeting at the dealer's office at Blackwell Chevrolet. When McKnight arrived, car dealer Williams was present along with Defendant and Dixon. McKnight inquired of Defendant how another vote of the city council could occur. McKnight, as instructed, did not mention the $150,000 payment during the meeting. However, McKnight did ask what would be required in order for Time Warner to get the contract renewal. Defendant responded that if Time Warner agreed to the car dealer's terms then Defendant was not 99%, but 100% sure that Time Warner would get a majority vote of the city council. McKnight reported the meeting to the company's division president. The president told McKnight to inform car dealer Williams that Time Warner's answer was "no." The company then informed the FBI of the meeting.

The FBI requested that McKnight call back car dealer Williams, indicate that negotiations between Time Warner and the city were going poorly, and inquire whether they could still do business. The FBI recorded the telephone call between McKnight and car dealer Williams, in which Williams repeated the essentials of the proposed agreement, including that he could deliver the needed council votes if Time Warner paid him $150,000 in cash.2 McKnight then arranged for car dealer Williams to meet with Agent James Barnes, undercover as the franchise director for Time Warner. Car dealer Williams, along with alleged co-conspirators Dixon and Jackson police officer Robert Love, arrived in a van at Barnes' hotel and picked him up. Defendant was not present during the subsequent van ride, in which the parties discussed car dealer Williams' proposal. During the conversation, recorded by Agent Barnes, Dixon confirmed the terms of the proposal by holding up a sign that read "$150,000."

Shortly thereafter, without explanation, car dealer Williams called Agent Barnes and told him the deal was off. The FBI subsequently arrested all of the co-conspirators, including Defendant.

In a four count indictment, Defendant was charged in Counts 1 and 2 with conspiracy and attempt to commit extortion under color of official right, in violation of 18 U.S.C. § 1951(a). In Counts 3 and 4, Defendant was charged with aiding and abetting others in the corrupt solicitation and acceptance of bribery payments, in violation of 18 U.S.C. § 666(a)(1)(B) and § 2. Counts 1 and 3 related to a potential contract pending before the City Council between Time Warner Cable and the City of Jackson. Counts 2 and 4 concerned a zoning petition for a local strip club pending before the City Council. At Defendant's first trial, the jury was unable to reach a verdict on any of the counts and the court declared a mistrial. The district court ordered a second trial to begin approximately two weeks later. At the second trial, Defendant was convicted on Counts 1 and 3, the Time Warner Cable matter; he was acquitted on Counts 2 and 4. Defendant filed a timely appeal with this Court.

II. Jury Venire

The jury for Defendant's first trial was selected from a venire drawn from the Jackson Division of the Southern District of Mississippi. For the second trial, the judge ordered the venire drawn from the entire Southern District. The district court's asserted reason for expanding the venire was to avoid the media intensity that had occurred in the Jackson Division during the first trial. Defendant asserts two challenges to the district court's action: first, that his due process right to a jury drawn from a fair cross section of the community was violated; and second, that his equal protection right was violated by the expansion of the venire. In considering Defendant's challenges, we review the district court's findings of fact for clear error and its determinations of law de novo. United States v. Alix, 86 F.3d 429, 434 (5th Cir. 1996).

A. Due Process Challenge

Defendant alleges that the underrepresentation of African-Americans on the venire for his second trial violated his right to due process. The Sixth Amendment and the Due Process Clause of the Fifth Amendment require that a jury be drawn "from a fair cross section of the community."3 Taylor v. Louisiana 419 U.S. 522, 527, 95 S.Ct. 692, 696 (1975). To establish a prima facieviolation of the fair cross section requirement:

the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668 (1979). In so far as African-Americans constitute a distinctive group in the community, the first requirement of Defendant's prima faciecase is met. McGinnis v. Johnson, 181 F.3d 686, 689 (5th Cir. 1999). With respect to the second requirement of his prima faciecase, Defendant offers as evidence of underrepresentation the fact that the venire selected from the Jackson Division was comprised of 51 potential jurors, 21 of which were African-American; while the venire for the second trial, selected from the entire Southern District of Mississippi, was composed of 78 potential jurors, only 20 of which were African-American.

In determining whether the venire is a fair and reasonable representation of the community, the relative compositions of Defendant's two venire panels is not relevant. The Duren test instead focuses on whether the representation of African-Americans in the challenged venire was fair and reasonable in relation to the number of African-Americans in the community. The relevant community consisting of those individuals who are eligible to serve as jurors in the Southern District of Mississippi. See Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416 (1953) (holding that a jury list must reasonably reflect "a cross-section of the population suitable in character and intelligence for that civic duty"). Moreover, "[Defendant] must demonstrate . . . not only that [African-Americans] were not adequately represented on his jury but also that this was the general practice in other venires." Timmel v. Phillips, 799 F.2d 1083, 1086 (5th Cir. 1986); see United States v. DeFries, 129 F.3d 1293, 1301 (D.C.Cir.1997) ("Underrepresentation of a cognizable group in a single venire, without evidence of a greater pattern, is insufficient to establish the "systematic exclusion of the group" required by Duren . . . From a small sample size based on one venire it is difficult to determine whether the disparity is random or systemic." (citations omitted)); Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir. 1989) ("Evidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion."); United States v. Miller, 771 F.2d 1219, 1228 (9th Cir.1985) (holding that the Duren Court's use of the plural when describing "venires" from which "juries" are selected indicated that a violation of the underrepresentation element cannot be premised on underrepresentation on a single jury venire).

Defendant provides absolutely no evidence regarding the percentage of African-Americans in the community, nor the composition of other venires drawn from the Southern District. Absent evidence of the percentage of African-Americans in the community, we have no baseline against which to compare the composition of Defendant's venire. See Duren, 439 U.S. at 668 ("[T]he defendant must demonstrate the percentage of the community made up of the group alleged to be underrepresented, for this is the conceptual benchmark for the Sixth Amendment fai...

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