USA v. Walton, s. 99-2638
| Decision Date | 14 June 2000 |
| Docket Number | Nos. 99-2638,s. 99-2638 |
| Parties | (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEBORAH WALTON and KENNETH MARSALIS, Defendants-Appellants. & 99-2640 |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 320--John F. Grady, Judge. [Copyrighted Material Omitted]
Before CUDAHY, COFFEY and KANNE, Circuit Judges.
On June 4, 1998, Defendants-Appellants Deborah Walton ("Walton") and Kenneth Marsalis ("Marsalis") were indicted and charged in a two count indictment, charging each of them with conspiring to carry and take away and carrying and taking away, with intent to steal, approximately $90,500.00 from a Citibank branch's automatic teller machine ("ATM").1 Walton and Marsalis were both convicted on each count by a jury, and their separate motions for a new trial were summarily denied. The court on June 17, 1999 sentenced Walton to ten months' imprisonment on each count and ordered each of her sentences to run concurrent with each other. The court sentenced Marsalis to twenty-seven months' imprisonment on each count, and also ordered each of his sentences to run concurrent with each other. Each of them were also sentenced to three years supervised release and ordered to pay restitution in the amount of $90,500.00. The court directed that the order of restitution be paid jointly and severally by Walton, Marsalis and Golliday.
Marsalis appeals, arguing that the judge: (1) erred when he found that the government's peremptory strike of a prospective juror was not based on racial discrimination; (2) abused his discretion when he excluded evidence regarding a similar ATM theft at the same location that occurred just four months prior to the instant offense and (3) abused his discretion when he denied his motion for a new trial based on the government's failure to produce the remaining telephone records that he requested until the second day of trial. Walton also appeals, arguing that the court committed error when in its restitution order, it directed that she be held jointly and severally liable for the full amount of restitution. We AFFIRM Marsalis' conviction and sentence, AFFIRM Walton's conviction, and REVERSE AND REMAND Walton's sentence with respect to the order of restitution.
At approximately 10:32 p.m. on June 7, 1996, Marsalis, Walton and Golliday drove in separate cars to the Citibank branch located at 8650 South Stony Island in Chicago, Illinois, to commit a theft from the bank's drive-up ATM. Acting as the "look-out," Walton parked her car nearby so that she could flash her headlights as a warning should she observe anything that might interfere with the execution of the crime as planned. According to the plan, Golliday entered the bank's premises to access the bank's interior ATM and engaged the bank security guard in conversation and distracted him, claiming that she was having trouble retrieving money from the machine. With the guard's attention diverted to Golliday's problem, Marsalis drove-up to the ATM located outside the bank, gained entry into the machine and stole approximately $90,500.00.
The theft was not discovered until the next morning when a bank security guard noticed that the drive-up ATM door was open. The FBI and the company responsible for replenishing the ATM, Wells Fargo, discovered upon investigation that the evidence pointed to an "inside job" as there were no signs of forcible entry into the ATM and the ATM's burglar alarm system was turned off. Also, the bank's surveillance video tapes were reviewed and revealed that about the time of the theft, Golliday can be observed on the video in the interior ATM area occupying the attention of the bank security officer and focusing her eyes in the direction of the drive-up ATM. Still photos of Golliday were taken from the video tape and copies of her picture were distributed throughout the local Wells Fargo branch that was responsible for servicing the ATM. Thereafter, a secretary at Wells Fargo recognized Golliday as a former Wells Fargo employee, resulting in Golliday being arrested and charged with the theft.
When FBI agents questioned Golliday about the crime, she readily confessed to her involvement in the episode, agreed to cooperate and identified the other partners involved as Marsalis and Walton, both of whom were also former Wells Fargo employees. She went on to describe how they jointly planned and carried out the heist and based on this information, Marsalis and Walton were arrested. Prior to issuing the indictment and upon request by the government, the grand jury issued a subpoena for various telephone records, including the home phone records of Marsalis, Walton and Golliday which reflected an unusually high number of calls placed between the defendants on the day of the theft. Prior to trial, defense counsel requested and the government produced the subpoenaed telephone records, but neglected to produce the phone records relating to the government's investigation into a prior ATM theft at the same address that occurred just four months earlier. After another request by defense counsel for these particular records, the prosecution turned over the remaining phone records on the second day of trial.
During jury selection, the government exercised a peremptory strike upon a prospective African- American juror, explaining that they based their strike on her "inattentiveness" during the proceedings. In an attempt to ascertain whether the government's strike was race-neutral in light of the fact that both Marsalis and Walton are also African-American, the court sua sponte conducted a voir dire concerning the asserted reason given by the government in support of its strike. In response, the government offered the testimony of the FBI agent assigned to the case whose observations formed the basis of the government's strike. After hearing the case agent's testimony and the arguments of counsel, the court concluded that the government's peremptory strike of the juror was race-neutral.
At trial, Marsalis and Walton offered to introduce evidence relating to the February 1996 unsolved ATM theft but the court refused to admit the offer, ruling that it was irrelevant and might conceivably be prejudicial to the defendants as it might serve to suggest that the defendants also committed the unsolved ATM theft. Following their convictions, Marsalis filed a motion for a new trial based on the government's tardy production of the missing phone records, which was in turn denied by the court. As previously mentioned, the court proceeded to sentence Walton and Marsalis to ten and twenty- seven months' imprisonment respectively, and held Walton, Marsalis and Golliday each jointly and severally liable for restitution in the amount of $90,500.00. Marsalis and Walton appealed.
On appeal, Marsalis claims that: (1) the judge erred when he found that the government's peremptory strike of the African-American juror was not pre-textual for racial discrimination; (2) the court abused its discretion when it excluded evidence of a prior ATM theft at the same location that occurred four months prior to the instant offense; and (3) the court abused its discretion when it denied the defendant's motion for a new trial despite the government's failure to produce the remaining telephone records until the second day of trial. Walton on appeal argues only that the court erred when it held her jointly and severally liable for the full amount of the restitution.
Marsalis initially argues that the court erred when it ruled that the government's peremptory strike of a prospective African-American juror based on her "inattentiveness" during the proceedings was proper. Specifically, Marsalis contends that the court "clearly erred by failing to perform a thorough analysis of whether [the] stricken juror . . . was treated differently from similarly-situated prospective jurors," and thus, the prosecution's strike was actually based on race. Under Batson v. Kentucky, 476 U.S. 79, 96- 98 (1986), allegations of racially-based peremptory challenges are evaluated under a three-part analysis:(1) the defendant must make a prima facie showing that the government exercised the challenge because of race; (2) the government must next proceed to articulate a race-neutral reason for the challenge; and thereafter (3) the court must determine whether the defendant has carried his burden of proving purposeful discrimination. See Morse v. Hanks, 172 F.3d 983, 985 (7th Cir.), cert. denied, 120 S. Ct. 129 (1999). Because both Marsalis and the government concede that the first two steps were satisfied, we turn our focus to the third step. United States v. Evans, 192 F.3d 698, 699-700 (7th Cir. 1999) ()
Under the third step of the analysis (whether the defendant has carried his burden of proving purposeful discrimination), "the persuasiveness of the justification becomes relevant" and "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curium). Thus, "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." United States v. Marin, 7 F.3d 679, 686 (7th Cir. 1993) (brackets in original) (citing Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion)).
The court sua sponte conducted a voir dire of the government's asserted reason for the strike and received the testimony of the assigned FBI case agent whose...
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