U.S. v. Williams

• Decision Date: 04 June 1991
• Docket Number: No. 89-1773,89-1773
• Citation: 934 F.2d 847
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy WILLIAMS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 847

934 F.2d 847

UNITED STATES of America, Plaintiff-Appellee, v. Roy WILLIAMS, Jr., Defendant-Appellant.

No. 89-1773.

United States Court of Appeals Seventh Circuit.

Argued March 6, 1991.

Decided June 4, 1991.

James L. Santelle, Stephen J. Liccione, Asst. U.S. Attys., Milwaukee, Wis., for plaintiff-appellee.

Richard L. Zaffiro, West Allis, Wis., for defendant-appellant.

Before RIPPLE and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

KANNE, Circuit Judge.

Roy Williams, Jr., a former federal employee with the United States Department of Labor, was convicted of two charges involving bribery. He seeks reversal of his convictions on the basis that: 1) the government used its peremptory challenges to exclude all members of Mr. Williams' race from the jury; and 2) he received ineffective assistance of trial, sentencing, and appellate counsel.

I. JURY SELECTION

Mr. Williams, who is black, argues that the government denied him due process by using its peremptory challenges to exclude blacks from the jury. Mr. Williams contends that the district court erred by not finding intentional discrimination on the part of the prosecutor and by employing an incorrect standard in denying his motion for a mistrial after the jury selection.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that the equal protection clause of the fourteenth amendment prohibits the use of peremptory challenges by the state to exclude blacks from the petit jury. ¹ The Supreme Court set forth an evidentiary framework for assessing whether the use of peremptory challenges rises to a constitutional violation. To establish a prima facie case of purposeful discrimination in the selection of the petit jury, a defendant must show that he is a member of a cognizable racial group and that the prosecutor has removed members of the defendant's race from the venire by use of peremptory challenges. Batson, 476 U.S. at 93-94, 106 S.Ct. at 1721-22. The defendant must show facts and relevant circumstances that raise an inference that the government used the peremptory challenges in order to exclude venire members of his race. Id. at 96, 106 S.Ct. at 1723. Once the prima facie case is established, the burden shifts to the prosecutor to articulate a neutral reason for the exclusion. Batson, 476 U.S. at 94, 106 S.Ct. at 1721-22. Although the explanation need not rise to the level of an exercise of a challenge for cause, the government's burden cannot be satisfied by merely denying any discriminatory motive or by invoking its good faith in making selections. Id. at 97-98, 106 S.Ct. at 1723-24. "[T]he prosecutor must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." Id. at 98 n. 20, 106 S.Ct. at 1724 n. 20 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)).

Whether an improper factor motivated a lawyer's use of a peremptory challenge is a determination which must be made by the district judge--often after an assessment of the lawyer's credibility. A trial judge develops an intuitive sense for evaluating the actions played out in the courtroom. An evaluation--such as determining credibility--is often difficult to make from reviewing a written transcript (or even viewing a video replay). It is the trial judge's sensory perceptions of what occurs during the course of a case, combined with an understanding of the bar and the public gained from experience in the community served by the court, which provides the trial judge with a unique insight. Consequently, on appeal, we give great deference to the findings of the trial court judge which call this insight into play. We will only overturn the trial court's determination that a prosecutor's use of peremptory challenges was not motivated by purposeful discrimination if that determination is clearly erroneous. United States v. Briscoe, 896 F.2d 1476, 1487 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 173, 112 L.Ed.2d 137.

In the present case, the venire consisted of 31 persons, three of whom were black. The prosecution exercised three of its six peremptory challenges to exclude the three blacks. After Mr. Williams' timely motion for a mistrial, the district court asked the government to explain the questioned strikes. The government explained that it challenged Ms. Leester Pope because she had made a statement during the voir dire in which she expressed hesitation about being part of a proceeding that might result in sentencing. The government challenged Mr. Kenneth Little because he had read about this case previously. The government questioned the ability of these two jurors to be impartial throughout the proceedings. Mr. Williams does not allege a systematic elimination of blacks due to intentional discrimination regarding Ms. Pope and Mr. Little. His only dispute is with the exclusion of the third black juror, Ms. Portia Lever. Ms. Lever, the government's fifth strike, is a single mother who works as a meat wrapper. The government's reason for striking her was that as a young single mother, she "might have other concerns." Tr. of Nov. 28, 1988 at 68. The government gave examples of white venire members that it also excluded because of its concern that they would not be able to give their full attention to a week-long trial.

The district court stated that it understood the reasons for the government's strikes regarding Ms. Pope and Mr. Little, but it found the striking of Ms. Lever "a little harder to understand." Id. at 70. The court remarked that she was the fifth strike, and when one gets to the fifth and sixth strikes, it is often a matter of "by guess and by gosh." Id. at 71. The court also noted that both sides selected mainly older people, and Ms. Lever did not fall into that category. The court denied the motion for the mistrial, finding that there was neither race discrimination in the exclusion of Ms. Lever nor an established pattern of discrimination by the government either in this case or in the Eastern District of Wisconsin.

Mr. Williams asserts that he made his prima facie case and that the government did not meet its burden of stating a specific neutral reason for its strike. Mr. Williams points out that nowhere did Ms. Lever express a concern about being a juror. He asserts that the government's justification for the strike does not rise to the level of a neutral reason. The government responds that valid neutral reasons for exclusion may include " 'intuitive assumptions' upon confronting a venireman." United States v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir.1988). The government argues that its intuitive assumption was that, as a single mother, Ms. Lever might not focus her full attention on the trial.

This court has approved of reasons given by the prosecution that include "intuitive assumptions that are not fairly quantifiable." Briscoe, 896 F.2d at 1489 (quoting United States v. Lance, 853 F.2d 1177, 1181 (5th Cir.1988)). Here the government articulated a race-neutral explanation for excluding Ms. Lever. The district court considered that explanation in light of the circumstances of that particular case and concluded that the explanation was credible. Given this court's deference to a trial court's determination of the credibility of the prosecution, we cannot say on this record that the district court's finding was clearly erroneous.

Mr. Williams also argues that the district court relied on an incorrect legal standard in finding that "there [was] no established pattern [of discrimination], either in this case or in this Eastern District." Tr. of Nov. 28, 1988 at 72. In making his decision, the district court judge was influenced by the fact that he had another case before him with a black defendant in which one of the U.S. Attorneys was the same. In that case, seven of the twelve jurors were black. As Mr. Williams correctly points out, Batson overruled the standard enunciated in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which required a defendant to show that the government practiced intentional discrimination in "case after case." Batson, 476 U.S. at 91, 106 S.Ct. at 1720. Rather, Batson permits a defendant to establish a prima facie case based on the factors of his particular case. Id. at 95, 106 S.Ct. at 1722.

The trial judge, however, did not place the Swain burden on Mr. Williams. Mr. Williams' prima facie case was based exclusively on the facts concerning the jury selection in his case. The judge inquired into the prosecution's reason for excluding Ms. Lever. The prosecution proffered a reason for the exclusion, which the trial judge evaluated in light of the circumstances of the case and in light of his personal observation of the proceeding. To bolster his credibility determination that the prosecution's race-neutral explanation was not pretextual, the trial judge considered his prior experience with the same prosecutor.

Consistent with acknowledging the trial judge's special vantage point, we hold that a trial judge may take into consideration a prior pattern or practice of jury selection made by a particular prosecutor as part of the analysis of the credibility of the prosecutor's reasons for exclusion of venire members. See United States v. Mathews, 803 F.2d 325, 332 (7th Cir.1986), rev'd on other grounds, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Of course the trial judge should not rely solely on prior practice but should also evaluate the circumstances presented in the particular case at hand. Here, the record supports the trial judge's credibility determination based on the facts of this case. While influenced by his prior dealing with the same prosecutor, the trial judge's credibility determination was not based solely on whether a pattern of discrimination existed in his district. Affording proper deference to the trial...