United States v. Darin McAllister

693 F.3d 572, 2012 WL 3854791, 2012 U.S. App. LEXIS 18705
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 6, 2012
Docket11-5932
StatusPublished
Cited by58 cases

This text of 693 F.3d 572 (United States v. Darin McAllister) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Darin McAllister, 693 F.3d 572, 2012 WL 3854791, 2012 U.S. App. LEXIS 18705 (6th Cir. 2012).

Opinions

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 McAl-lister 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 [576]*576reasons, 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.
[577]*577In 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 Hon- or.

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.

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Bluebook (online)
693 F.3d 572, 2012 WL 3854791, 2012 U.S. App. LEXIS 18705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-darin-mcallister-ca6-2012.