USA. v. Patterson

• Decision Date: 01 June 2000
• Docket Number: 97-3159,97-3666,98-1066,97-3683,Nos. 97-3132,97-3163,97-3480,98-3115,98-1991,97-3697,98-2362,98-1265,98-1981,98-1310,s. 97-3132
• Citation: 215 F.3d 776
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Andrew ("Bay-Bay") Patterson, Robert Patterson, Henry Patterson, Andrew L. ("Maine") Patterson, Tyrone Williams, Andre Williams, Durwin Baker, Terry Clark, Willie Connor, Maurice Foster, Gregory Hubbard, Jerry Patterson, Lennell Patterson, Odell Sumrell, and Edgar Williams, Defendants-Appellants. & 98-3625
• Court: U.S. Court of Appeals — Seventh Circuit

Page 776

215 F.3d 776 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Andrew ("Bay-Bay") Patterson, Robert Patterson, Henry Patterson, Andrew L. ("Maine") Patterson, Tyrone Williams, Andre Williams, Durwin Baker, Terry Clark, Willie Connor, Maurice Foster, Gregory Hubbard, Jerry Patterson, Lennell Patterson, Odell Sumrell, and Edgar Williams, Defendants-Appellants.

Nos. 97-3132, 97-3159, 97-3163, 97-3480, 97-3666, 97-3683, 97-3697, 98-1066, 98-1265, 98-1310, 98-1981, 98-1991, 98-2362, 98-3115 & 98-3625

In the United States Court of Appeals For the Seventh Circuit

Argued February 15, 2000

Decided June 1, 2000

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 242--Robert W. Gettleman, Judge. [Copyrighted Material Omitted] Before Posner, Chief Judge, and Easterbrook and Diane P. Wood, Circuit Judges.

Easterbrook, Circuit Judge.

Fifteen defendants appeal their convictions for drug-related offenses. Four of their confederates pleaded guilty and testified for the prosecution at the 20-week trial. More evidence came from tape recordings of incriminating conversations. The jury was entitled to conclude that all 15 appellants were affiliated with the Traveling Vice Lords street gang. Andrew "Bay-Bay" Patterson, one of the gang's "five-star universal elites," was defendants' leader. We use the street name "Bay-Bay" because eight Pattersons were among the defendants, and Bay-Bay's nephew "Maine" Patterson shares the given name "Andrew." Bay-Bay supplied the drugs, while his brothers Robert and Henry supervised their distribution. The operation lasted at least a decade and during its best years grossed more than $40,000 a day in retail sales. Sentences are correspondingly high: the shortest term for any appellant is 210 months' imprisonment, and three of the appellants, including Bay-Bay and Robert, were sentenced to life imprisonment. Because the arguments presented on appeal are self-contained, we omit further details.

I

The district court used a struck-jury system to select the jurors. Members of the venire were screened, and some were excused for cause, until the court had a pool large enough to seat a jury and alternates, taking account of peremptory challenges. In a criminal case the defense is entitled to 10 challenges and the prosecution 6, Fed. R. Crim. P. 24(b), plus up to 3 more to be exercised against alternates, Rule 24(c)(2), and in a multi-defendant case the district court may award extra challenges. It did so here, granting the defendants (collectively) 20 and the prosecutor 12, plus 2 apiece for alternates. Because the judge planned to seat 12 jurors and 8 alternates, the pool had to contain 56 persons, to ensure that if all peremptory challenges were exercised (and the prosecution and defense never challenged the same person) 20 persons would be left. After the initial screening for cause, 63 members of the venire remained, and the district judge put all 63 into the pool for the exercise of peremptory challenges (and any belated challenges for cause). The judge decided not to establish a priority within this pool. All 63 had an equal chance of serving. After peremptory challenges were exercised, some adjustments were made (the judge granted additional challenges because some strikes overlapped), and 31 persons remained, the clerk shuffled the juror cards and drew 12 to be the jurors. Then each side exercised 2 challenges against the residual pool of 19, the clerk shuffled the remaining cards, and 8 alternates were drawn.

Defendants objected to this procedure (and to avoid parsing who objected to what, we treat everyone as objecting to everything). They wanted to know the sequence in which members of the pool would be called to sit on the jury, so that they could concentrate their challenges on those persons most likely to serve. As the district court organized matters, however, every member of the pool was equally likely to sit, so the defense could not target challenges strategically. Moreover, the extra members in the pool diluted the utility of each challenge by the ratio 56/63. The 20 challenges that the defendants initially were allotted had the same practical effect with a 63-person pool as 18 challenges would have had with a 56- person pool. The pool's extra size effectively deducted 2 challenges.

All members of the jury actually seated in the case were impartial. Still, defendants insist that the convictions must be reversed, because they were unable to make the best of their peremptory challenges. As defendants see it, the district judge committed at least four errors in the jury-selection process:

The court created a pool of 63 venire members, instead of the 56 that would exactly equal the number of jurors needed plus the number of challenges. United States v. Ricks, 802 F.2d 731, 737 (4th Cir. 1986) (en banc), declared that excess membership in a struck-jury pool always is reversible error unless the judge unequivocally reveals the order of selection from the pool.

The judge did not list the pool's members in order, which defeated defendants' efforts to target the persons who were most likely to serve. United States v. Underwood, 122 F.3d 389 (7th Cir. 1997), held that a related deficit of information about the order in which jurors would emerge from the pool always is reversible error.

Although Fed. R. Crim. P. 24(c)(1) provides that a "court may empanel no more than 6 jurors, in addition to the regular jury, to sit as alternate jurors," the district judge decided to select 8 alternates. This diluted the effectiveness of the peremptory challenges available to remove potential alternate jurors.

Although Fed. R. Crim. P. 24(c)(2) provides that defendants receive 3 additional peremptory challenges when the district judge seats 5 or 6 alternates, the judge in this case allowed only 2 extra challenges for 8 alternates--a 1-to-4 ratio, instead of Rule 24(c)'s 1-to-2 ratio.

None of these events calls into question the impartiality of the jury eventually selected, which makes it hard to see why there is any real problem. United States v. Martinez-Salazar, 120 S. Ct. 774 (2000), decided after Ricks and Underwood (the cases on which defendants principally rely), stresses that peremptory challenges have served their purpose when the jury finally selected is impartial. Martinez-Salazar rejects any argument that a party is entitled to devote all peremptory challenges to strategic use such as eliminating unbiased jurors who a party believes may (perhaps because of their open minds) favor the other side. A peremptory challenge devoted to removing a juror who should have been disqualified for cause is not, the Court held, equivalent to depriving the party of a peremptory challenge; instead this is one common and proper use of a challenge. Here, as in Martinez-Salazar, the defendants had the prescribed 10 challenges; indeed they had twice that, and if the overflow of the pool meant that they had an equivalent of "only" 18 challenges, that was plenty.

What led to reversal in Underwood was an ambiguity in the district judge's jury- selection protocol that led the defendants to misunderstand the sequence in which members of the pool would be seated on the jury. That misunderstanding led the defendants not to challenge two persons who they thought were so far back in the order that they were unlikely to be seated, but who actually served. If an ambiguity that affected two challenges is reversible error, then failure to establish any sequence, a step that potentially affected all 20 challenges, must be error too. However logical that argument may be, Underwood is no longer authoritative after Martinez-Salazar. Our views in Underwood reflected the belief that defendants are entitled to make maximum strategic use of their peremptory challenges. That same conception of defendants' entitlements led the ninth circuit to hold that "losing" a peremptory challenge in order to remove a juror who should have been excused for cause is reversible error. United States v. Martinez-Salazar, 146 F.3d 653 (9th Cir. 1998). But the Supreme Court took a different tack, observing that Martinez- Salazar did not lose a peremptory challenge but instead used it "in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury." 120 S. Ct. at 782. Just so here. Defendants received their allotment of 10, and to spare. They had full use of all challenges for the purpose of securing an impartial jury. That defendants could not use them to maximum strategic advantage seems to us a benefit rather than a problem.

Formally, at least, the district judge's handling of alternates is more problematic. Rule 24(c)(2) grants 3 extra challenges for 6 alternates; the district judge allowed 2 extra challenges for 8 alternates. This looks like a reduction in the number of challenges provided by the rule, something that did not happen in Martinez-Salazar. Appearances may deceive, because everyone in the pool of potential alternates had passed the first wave of peremptory challenges. Any extra challenges provided for the selection of alternates meant that the defendants (and the prosecutor) had a higher ratio of challenges to alternates than of challenges to principal jurors. Rule 24(c)(2) assumes that jurors will be selected either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated. When the sequence is known, defendants concentrate their challenges on venire members at the front of the queue; Rule 24(c)(2) provides extra challenges for the selection of alternates because otherwise defendants might have no peremptories left when the time arrives to pick alternates. Because the peremptory challenges exercised against the pool of 63 were as likely to excuse would-be alternates as to excuse would-be regular jurors,...