864 F2d 1543 United States v. Horsley

864 F.2d 1543

UNITED STATES of America, Plaintiff-Appellee,
Marvin Jerome HORSLEY, Earl Howard McDonald, Defendants-Appellants.

No. 86-3316.

United States Court of Appeals,
Eleventh Circuit.

Feb. 6, 1989.

Samuel R. Mandelbaum, Tampa, Fla., for Horsley.

Timothy Allen Hunt, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for McDonald.

Whitney L. Schmidt, Asst. U.S. Atty., Tampa, Fla., for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, VANCE and COX, Circuit Judges.



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In this appeal, Marvin Jerome Horsley and Earl Howard McDonald challenge their convictions for possession of cocaine with intent to distribute, see 21 U.S.C. Sec. 841(a)(1) (1982), on two grounds. One of the grounds is frivolous1 and is not worthy of discussion. The other, based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has merit and requires that we remand the case to the district court for further proceedings.


The appellants, who are black, contend that during the selection of the jury that tried the case, the prosecutor purposefully discriminated against them by peremptorily challenging the only black on the venire. They therefore claim that the district court denied them the equal protection of the laws as guaranteed by the due process clause of the fifth amendment2 when it overruled their objection to the seating of the jury.


The jury was selected in the following manner. First the court qualified a venire of thirty-two persons. Only one of the thirty-two veniremen, Clarence Beckham, was black. The court then examined the venire and, when it finished, invited counsel to undertake their own additional examination of the veniremen. The prosecutor declined the invitation; defense counsel accepted it and made a brief inquiry of several veniremen. The court thereafter entertained challenges for cause; none were made.


The parties exercised their peremptory challenges at side bar; the Government had six challenges, and the defendants had ten. The parties presented their challenges--one by one with the Government proceeding first--by addressing the twelve veniremen seated in the jury box; as strikes were made, the challenged venireman was replaced by the next venireman in line (from the twenty not in the box).


The Government struck Clarence Beckham with its second peremptory challenge. At this point, the defense expressed concern that appellants were to be tried by an all-white jury and objected to what appeared to be a racially discriminatory use of the peremptory challenge by the prosecutor. Accordingly, defense counsel asked the court to request that the prosecutor give his reasons for exercising his peremptory challenge against Beckham. Since Beckham's answers to the district court's questions, during voir dire, did not differ in substance from those provided by white jurors whom the prosecutor did not strike,3 the court ruled that the defendants were "entitled to something on the record." The obvious implication of the court's action is that it inferred from the circumstances that the prosecutor had struck Beckham because he was black in order purposefully to deprive appellants of the possibility of having any blacks impaneled to try the case. The court then requested the prosecutor to set forth a non-racially discriminatory reason for striking the black juror. The prosecutor responded, "I don't have any particular reason. I just got a feeling about him as I have about Mr. Gonzalez and several others."4


Before swearing in the jury, the district court revisited the defendants' objection to the striking of Beckham in light of the Supreme Court's opinion in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which had been handed down the preceding day. The court asked the prosecutor if he had anything to add to his previous justification for striking Beckham, and the prosecutor answered in the negative. Upon reconsideration, the district court retreated from its earlier position and reversed its earlier ruling that the circumstances permitted an inference of purposeful discrimination. The court did so because it interpreted Batson as holding that a prima facie case of purposeful discrimination can be established only when the prosecutor has engaged in a pattern of peremptory strikes against a minimum of three or four black veniremen.5 Because such a pattern could not be established in the case at hand--the venire contained only one black juror--the court concluded that the prosecutor's use of the peremptory challenge against Beckham did not rise "to the stature of a constitutional violation." Horsley and McDonald contend that the district court misconstrued the requirements of Batson. We agree.



In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court overruled Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), to the extent that it had held that a prosecutor's exercise of peremptory challenges in a given case, standing alone, could not permit an inference of purposeful discrimination. See Batson, 476 U.S. at 93-96, 106 S.Ct. at 1721-22.6 The Batson court reasoned that Swain's requirement had "placed on defendants a crippling burden of proof" and had rendered prosecutors' peremptory challenges "largely immune from constitutional scrutiny." Id. at 92-93, 106 S.Ct. at 1720-21 (citation omitted). Under Batson's analysis, a defendant who belongs to a cognizable racial group may establish a prima facie equal protection violation by showing that the prosecutor exercised peremptory challenges against members of the defendant's race and that this "and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Id. at 96, 106 S.Ct. at 1723. Once a prima facie case is established, the burden shifts to the prosecutor to come forward with a racially "neutral explanation related to the particular case to be tried." Id. at 98, 106 S.Ct. at 1723 (citation omitted). The trial court then must decide on the basis of all the evidence whether a denial of equal protection will result if it overrules the defendant's objection to the prosecutor's exercise of the challenge. Id. at 98, 106 S.Ct. at 1723-24.

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Initially, we hold that the vague explanation offered by the prosecutor in the instant case was legally insufficient to refute a prima facie case of purposeful racial discrimination. While the reasons given by the prosecutor "need not rise to the level justifying exercise of a challenge for cause," see Batson, 476 U.S. at 97, 106 S.Ct. at 1723, the prosecutor must nevertheless "give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." Id. at 98 n. 20, 106 S.Ct. at 1723 n. 20 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)). The prosecutor's explanation in the present case, "I just got a feeling about him," obviously falls short of this requirement. As the Batson court concluded, "If [such] general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause 'would be but a vain and illusory requirement.' " Id. at 98, 106 S.Ct. at 1723 (quoting Norris v. Alabama, 294 U.S. 587, 598, 55 S.Ct. 579, 583-84, 79 L.Ed. 1074 (1935)).


As noted above, after the prosecutor failed to articulate a sufficient explanation for striking Beckham, the district court reversed its earlier ruling that the circumstances permitted an inference that the prosecutor had purposely discriminated against the appellants by striking the one juror who was of their same race, or in the vernacular of Batson, that the appellants had established a prima facie case of purposeful discrimination. The district court's action was based on the erroneous belief that a prima facie case of purposeful discrimination under Batson could be established only through evidence of a systematic discriminatory use of peremptory challenges. While Batson noted that a pattern of strikes against black jurors might be a relevant circumstance to consider, the Court stated that the example was "merely illustrative." Id. at 97, 106 S.Ct. at 1723. We have held that the number of black jurors struck is not dispositive to the issue of whether a prima facie case has been established. See United States v. David, 803 F.2d 1567, 1567 (11th Cir.1986). Accordingly, we hold that the district court in the instant case erred in foreclosing any consideration of other factors which might have supported an inference of discriminatory purpose, the most obvious of which was the prosecutor's disparate treatment of veniremen who were similar in relevant aspects except race.


We therefore vacate the district court's decision that appellants did not establish a prima facie showing of racial discrimination in the prosecutor's use of his peremptory challenges, and remand for further proceedings consistent with this opinion. If the district court, after considering all of the relevant circumstances, decides that the relevant evidence establishes, prima facie, purposeful discrimination, appellants must receive a new trial.




Appellants argue that the district court erred in refusing to require the prosecutor to reveal the identity of the Government's confidential informant. The Government contends that the informant in this case was a "mere tipster," who neither directly participated in nor witnessed the transaction, and that the Government was therefore under no obligation to reveal his identity. See Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). Assuming, nonetheless, that the informant's involvement was more than that of a mere tipster, we still find no error in the district court's refusal to require the disclosure of his identity because the record contains no indication that his testimony would be helpful to the defense. On the contrary, the appellants' motion seeking disclosure suggests that the informant's testimony would be damaging to the defense. Under these circumstances, disclosure was not required. Id. at 62-64, 77 S.Ct. at 628-30

In addition to challenging their conviction, appellants also challenge their sentences. They contend that the district court gave them the maximum sentence permissible under the statute--15 years in prison--because they exercised their right to go to trial rather than pleading guilty. We can find nothing in the court's colloquy with the appellants prior to trial, nor in the court's colloquy during the sentencing of the appellants, to indicate in any way that the appellants were either being pressured to plead guilty or being punished for not having done so. We therefore reject this claim as well.


The right to the equal protection of the laws expressed in the fourteenth amendment has been found by implication in the due process clause of the fifth amendment, which itself contains no equal protection clause. See Johnson v. Robison, 415 U.S. 361, 364 n. 4, 94 S.Ct. 1160, 1164 n. 4, 39 L.Ed.2d 389 (1974)


Like many of the white jurors, Beckham testified that he was employed, his wife was a housewife, his child was enrolled in college, neither he nor any of his family members or friends had ever been subject to criminal proceedings, he had never been subject to an IRS audit, he had never been involved in a civil law suit, and he did not have any friends in the field of law enforcement, the legal profession, or the medical profession


In contrast to Beckham, whose answers to the judge's questions were the same as those provided by white jurors whom the prosecutor did not strike, prospective juror Daniel Gonzalez testified that a member of his family had been convicted of a crime and served time in prison, that he himself had once been subject to a criminal charge, that he had been a witness in a trial, and that he had several friends who were members of the legal and medical professions


In explaining its decision, the district court stated:

In view of the Supreme Court decision which has come down just yesterday with regard to prosecutorial peremptory challenge of black persons, I wanted our record clear there was only one black person among our thirty-five people [on the venire], and that black person was struck by the prosecution. There was no more than one black person, so as far as establishing a pattern during this jury selection process, the Court finds no cause. There was only one person, which I think is a significant factor. If there were more than one person and both of them were struck, or three people, or four people, then we might be able to establish a pattern.


I don't think that on the basis of what is in this case there is any pattern indicated that this Court could make a finding by design that the prosecutor has eliminated this black person, Mr. Beckham, from the Jury.


The district court was correct in revisiting appellants' objection to the prosecutor's use of the peremptory challenge against Beckham in light of the Batson decision. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (Batson's holding is to be applied to all cases "pending on direct review or not yet final" at the time Batson was decided.)