United States v. George Wilson

816 F.2d 421, 1987 U.S. App. LEXIS 5082

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 16, 1987
• Docket: 85-2323
• Status: Published

Opinions

McMILLIAN, Circuit Judge.

George Wilson appeals from a final judgment entered in the District Court for the Eastern District of Missouri¹ upon a jury verdict finding him guilty of possession of a sawed-off shotgun in violation of 26 U.S.C. § 5681(d) (1982). For reversal, Wilson raised several issues, including the claim that the government used a disproportionate number of its peremptory challenges during voir dire to strike black prospective jurors in violation of his sixth amendment right to an impartial jury.

Following Wilson’s trial and while his appeal was pending before this court, the United States Supreme Court decided the case of Batson v. Kentucky, — U.S. -, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Batson ). Batson substantially redefined the evidentiary burden placed on criminal defendants claiming an equal protection violation due to the prosecution’s use of peremptory challenges. Under Batson, a defendant “may establish a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Id. at 1722-23. The Supreme Court expressed no view on the merits of any sixth amendment arguments in Batson, id. at 1716 n. 4, yet we will apply the equal protection analysis of that case in this appeal, despite Wilson’s reliance on a sixth amendment argument.

Following Batson, it remained to be determined whether the new standard announced in that case was to be given retroactive effect to cases pending on direct appeal. We originally issued a decision in this appeal holding that Batson would not be retroactively applied. Finding no other reversible error, we affirmed the judgment. Our opinion was filed November 14, 1986. Wilson's petition for rehearing and for rehearing en banc was denied and the mandate issued January 14, 1987. On January 13, 1987, the Supreme Court held that the rule announced in Batson is to be retroactively applied to all cases not yet final at the time of its decision on April 30, 1986. Griffith v. Kentucky, — U.S. -, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (Griffith). This category of cases includes Wilson’s appeal.

Because this case was not yet final on April 30, 1986, and is thus subject to the holding of Griffith, we have, on our own motion, recalled the mandate and withdrawn the opinion previously filed in this appeal. United States v. Wilson, No. 85-2323 (8th Cir. Jan. 22, 1987) (order). We now order the judgment entered by the district court vacated and we remand the cause for further proceedings on the Bat-son issue only.

On remand, the district court is to determine whether a prima facie case of purposeful discrimination has been established by the prosecutor’s use of peremptory challenges during voir dire to strike prospective black jurors. If so found, the district court is to require the prosecutor to provide a “neutral explanation” for the peremptory strikes. The defendant must then be given the chance to rebut the proffered explanation as a pretext.

If the district court concludes that a Bat-son violation has been established, Wilson is entitled to a new trial.² If the district court determines that no Batson violation has been proved, the district court should enter a new judgment upon the jury verdict of conviction.

Accordingly, the judgment of the district court is vacated and the cause remanded for further proceedings consistent with this opinion.

1 . The Honorable Clyde S. Cahill, United States District Judge for the Eastern District of Missouri.

2 . Such a determination by the district court is an interlocutory order and is not appealable until final judgment has again been entered.