United States v. McAllister

• Decision Date: 06 September 2012
• Docket Number: No. 11–5932.,11–5932.
• Citation: 693 F.3d 572
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Darin Lee McALLISTER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

693 F.3d 572

UNITED STATES of America, Plaintiff–Appellee,

v.Darin Lee McALLISTER, Defendant–Appellant.

No. 11–5932.

United States Court of Appeals,Sixth Circuit.

Argued: June 5, 2012.

Decided and Filed: Sept. 6, 2012.

ARGUED:Daniel D. Warlick, Nashville, Tennessee, for Appellant. Steven S. Neff, United States Attorney's Office, Chattanooga, Tennessee, for Appellee. ON BRIEF:Daniel D. Warlick, Benjamin C. Mezer, Nashville, Tennessee, for Appellant. Steven S. Neff, United States Attorney's Office, Chattanooga, Tennessee, for Appellee.

Before: KEITH, McKEAGUE, and DONALD, Circuit Judges.

KEITH, J., delivered the opinion of the court in which DONALD, J., joined, and McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 586–88), delivered a separate opinion concurring in part and dissenting in part.

OPINION

DAMON J. KEITH, Circuit Judge.

Defendant–Appellant Darin Lee McAllister appeals his jury conviction of fifteen counts of wire fraud and three counts of bankruptcy fraud. McAllister, a former FBI agent, was convicted after fraudulently making material misrepresentations on loan documents to obtain real estate loans for rental properties, and making material misrepresentations on official documents during bankruptcy proceedings. At trial, McAllister raised a Batson challenge to the Government's peremptory strike of the only two African–Americans in the petit jury pool. At the district court's instruction, the Government offered race-neutral reasons for striking the jurors. The district court then summarily accepted those reasons, concluding the Batson analysis by stating, “All right.” On appeal, McAllister argues that the district court erred in its treatment of his Batson claim. McAllister also claims the district court erred in excusing a defense witness from testifying after the witness notified the court of his intention to invoke the Fifth Amendment in response to all questions asked by the defense. Finally, McAllister argues that he was denied the right to a fair trial due to alleged judicial and prosecutorial misconduct, and that he received ineffective assistance of counsel. For the following reasons, we AFFIRM in part, and REMAND the case to the district court for further findings.

I.

On May 19, 2010, McAllister was charged with fifteen counts of wire fraud, in violation of 18 U.S.C. § 1343; one count of bank fraud, in violation of 18 U.S.C. § 1344; and three counts of bankruptcy fraud, in violation of 18 U.S.C. § 151(3). During voir dire, the Government used peremptory challenges to strike the only two African–American prospective jurors—Jurors Willie Ewing and Jaminthia Pillow. The district court asked all prospective jurors about their employment status. Juror Ewing indicated to the court that he was unemployed. The following colloquy ensued between the prosecutor and Juror Ewing:

AUSA: Has anybody else ever worked at a bank? Anybody?

Juror Ewing: Third Nashville.

AUSA: And how long ago was that?

Juror Ewing: [19]72, when I got out of the service.

AUSA: Oh, okay. What branch of the service were you in?

Juror Ewing: Military police.

AUSA: Okay. And how long were you in the service?

Juror Ewing: [19]68 to [19]72.

AUSA: And did you have any law enforcement experience after that?

Juror Ewing: No. Just security.

AUSA: Okay. What did you do? What do you mean by security?

Juror Ewing: I mean after I left the bank, I got into security with South Central Bell and two or three other security companies.

AUSA: Okay, Thank you.

The Government used its peremptory challenge to remove Juror Ewing from the jury.

When the Government questioned Juror Pillow, she revealed that she had a prior criminal conviction on charges of giving false information to law enforcement in the pursuit of an official investigation. Shortly thereafter, the Government used a peremptory challenge to remove her. Having had both African–Americans in the petit jury pool removed, the defense counsel immediately raised a Batson challenge, requesting that the Government “at least explain” its decision to strike Jurors Ewing and Pillow. The district court responded that it was unnecessary for the Government to explain striking Pillow.

After the jury was impaneled, the district court held a hearing in response to defense counsel's Batson concerns. The following is an excerpt from the hearing:

Court: [AUSA Gary Humble], I am going to give you the opportunity to state your reasons for striking Willy Jerome Ewing.... There were two African American ... potential jurors, and you struck both of them.

In the case of Ms. Pillow, she stated that she had had a criminal conviction for an offense.

I'm going to ask you to pay attention to what I'm saying, Mr. Humble.

... In regard to Ms. Pillow, I don't think you need to make a statement because she stated that she had been convicted of a felony involving deception. So I'm not going to ask you to explain that.

...

But in regard to [Willy Ewing], I'll ask you to explain your reasons for striking him.

AUSA Humble: Your Honor, the main reason is that he was unemployed. And I wanted to talk to [AUSA Steven Neff] to see what other reasons that we had. That's the first thing that came to my mind. [Conferred with Mr. Neff]

...

In addition to being unemployed, I have here in my notes that he was in the [Military Police] from [1968] to [1972]. And there was a concern that he would identify with the defendant.

Court: All right.

AUSA Humble: And I would also note for the record, although the record may be clear on this, that there was the initial group of jurors. And at that point when we made the strike, there was still one African American left in the pool.

Court: All right.

AUSA Humble: Thank you, Your Honor.

At trial, the evidence revealed that McAllister worked in Los Angeles as an FBI agent and moved to Tennessee in 2005 when he transferred to the FBI's Nashville office. McAllister purchased a home in Nashville valued at $1.5 million. His monthly mortgage payments were approximately $7,500, while his gross monthly income was $8,000. Approximately eighteen months after moving to Nashville, McAllister sought to obtain loans to purchase rental properties. A loan officer for SunTrust Bank, Wes English, processed McAllister's loan documents. At the closing, McAllister signed loan documents that contained several falsehoods. The forms falsely represented that McAllister was an entertainment company executive at “DOJ Productions” who earned $42,000 per month. In the loan application, the address for DOJ Productions was listed as the same address as the Department of Justice in Nashville. At McAllister's behest, his tax preparer sent a letter to the bank, indicating that McAllister had been self-employed in the music industry for the preceding two years—thereby satisfying the requirements for the type of loan McAllister sought. McAllister's defense theory was that English falsified the documents and that McAllister did not read the documents before signing them. SunTrust Bank granted McAllister fifteen loans and wired the money to the escrow account of the attorney handling the closings for McAllister's real estate purchases.

McAllister also applied for a $100,000 unsecured line of credit from SunTrust Bank, which he obtained in July 2006. In his application for the line of credit, McAllister falsely represented that he earned an annual salary of $500,000, and that he was the president of his wife's record company, Judah Records.

Because McAllister was unable to repay his loans, the bank foreclosed on some of his rental properties, and sold others in a short sale. McAllister filed for bankruptcy in July 2009. The record reveals that McAllister made false representations during his bankruptcy proceedings. In his Statement of Financial Affairs, McAllister falsely represented that he had no rental income, that he had no foreclosures, and that he had no property transfers (e.g., a short sale)—all falsehoods which proved to be material and formed the basis for his convictions for bankruptcy fraud.

A jury convicted McAllister of all counts of wire fraud and bankruptcy fraud, but did not reach a verdict on the bank fraud charge.¹ McAllister was sentenced to 48 months of imprisonment and ordered to repay $775,142.83 in restitution.

II.

1. Batson Challenge

McAllister argues that the district court erred by denying his Batson challenge after the prosecutor struck the only two African–American prospective jurors.

This court “review[s] a district court's determination of a Batson challenge with great deference,' under a clearly erroneous standard.” United States v. Cecil, 615 F.3d 678, 685 (6th Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 1525, 179 L.Ed.2d 343 (2011); see also Miller–El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)( Miller–El I ) (“In the context of direct review ... the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.” (internal quotation marks omitted)). “On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). “Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations.” Miller–El I, 537 U.S. at 339–40, 123 S.Ct. 1029. However, “deference does not imply abandonment or abdication of judicial review,” for deference, by definition, does not preclude relief. Id. at 340, 123 S.Ct. 1029.

The Equal Protection Clause does not entitle a defendant to a petit jury composed in whole or in part of his own race, Batson v. Kentucky, 476 U.S. 79, 85, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); however, it does guarantee “that the State will not exclude members of [the defendant's] race from the jury venire on account of race or on...