United States v. Harris

15 F. App'x 317
Court of Appeals for the Sixth Circuit·Decided July 26, 2001·No. No. 00-3474·Published·Cited by 3 cases

Opinion

OPINION

PER CURIAM.

This appeal concerns the district court’s determination that a prosecutor’s exercise of peremptory challenges against African-American members of a jury venire was not racially motivated. For the following reasons, we AFFIRM.

I. BACKGROUND

On August 6, 1997, a federal grand jury sitting in the Northern District of Ohio returned a two-count indictment against defendant-appellant Tyransee A. Harris. Count I charged Harris with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and Count II charged him with being a felon in possession of a weapon, in violation of 18 U.S.C. § 922(g)(1).

When selecting a jury, the prosecutor used two peremptory challenges to strike two African-Americans, seated as numbers 26 and 27, from the venire panel. Defense counsel objected to the strikes on the basis of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecutor then proffered its facially neutral reasons for striking the venire persons. The prosecutor stated the following regarding venire person number 26:

[S]he was not married, had no children, and I generally take people like that off the jury because they consent to being less compassionate about themselves in this particular case, about drugs and firearms on the street. When she answered questions, her attitude also [319]*319seemed to be such that she seemed not to care to be here and may not pay close attention, and it is for those reasons that we chose to strike that juror, but not because of race.

(J.A. at 116.) As to venire person number 27, the prosecutor stated that:

[H]e had no children, even though he did have a nephew involved with the Delaware police force, and we noted he has been an RTA driver and has had problems with RTA bus drivers and their run-ins with the law and background as an RTA bus driver, that he may not be the best candidate for a juror.

(J.A. at 116.) In response, defense counsel stated “Let the record show that there are five African-Americans on the panel of 38 as No. 25, and all those that were struck or excused were excused by the government.” (J.A. at 116.) The court denied Harris’s Batson challenge, stating:

All right. The court notes that the first African-American panel member was No. 25, and No. 25 is, in fact, seated on the jury as No. 12. The next two African-Americans struck by the government actually would have been alternates if they had not been struck as jurors. So under the circumstances, the court will deny the Batson challenge.

(J.A. at 116.)

The jury subsequently found Harris guilty of both counts of the indictment. On February 19, 1998, the district court sentenced Harris to concurrent terms of incarceration of 137 months on Count I, and 120 months on Count II.

Harris appealed his conviction and sentence to this Court, raising suppression, Batson and evidentiary issues. We affirmed the judgment in every respect except the Batson issue. See United States v. Harris (“Hams 7”), 192 F.3d 580, 589 (6th Cir.1999). We noted that the presence of one African-American on the jury does not preclude a Batson challenge. See id. at 587. We also noted that the status of a potential juror as alternate is irrelevant for Batson purposes. See id. at 587-88. We concluded that the district court’s terse analysis of Harris’s Batson challenge was insufficient, and remanded for a determination of whether the prosecutor’s use of peremptory strikes was discriminatory. See id. at 588. A mandate was issued pursuant to our disposition of the case. (J.A. at 11.)

On remand, the district court issued an order requesting that counsel file briefs with the court with their recommendations as to how to proceed. Harris filed a motion for new trial together with a memorandum of law in support of his motion. Harris argued that the Hams I Court ordered the district court to perform an impossible task in making a Batson analysis two years after trial, and that a new trial was the only proper remedy. Alternatively, Harris contended that the record supported the conclusion that under the totality of circumstances the preponderance of the evidence demonstrated that the prosecutor struck the two venire persons because of their race.

The government filed a motion in opposition to Harris’s motion for a new trial, and moved the district court to enter an order detailing its reasons for having denied Harris’s Batson challenge. The government argued that the record supported a finding that no discriminatory intent was involved in the use of peremptory challenges, and that a new trial would be unwarranted under terms of the mandate and under principles of justice. The government argued that its proffered reasons for striking the two jurors, given at the time of the Batson challenge, were valid.

In an order filed April 5, 2000, the district court concluded that the government [320]*320did not engage in purposeful discrimination because the non-discriminatory reasons offered by the prosecutor were reasonable and credible. The district court also noted that the nondiscriminatory animus of the prosecutor was further bolstered by the fact that, had he exercised no peremptories, the African-American venire person who was seated as juror number 12 would not have been so seated. The district court denied Harris’s motion for a new trial.

On April 6, 2000, Harris filed a timely notice of appeal from the order of the district court.

II. DISCUSSION

“The government cannot use its peremptory challenges in a criminal case to exclude members of the venire from the jury solely on the basis of their race.” United States v. Hill, 146 F.3d 337, 340 (6th Cir.1998). In determining whether such a violation occurred, the framework is well-settled: To establish a violation of equal protection under Batson, the defendant must first make a prima facie showing that the prosecutor exercised peremptory challenges based on race. The burden of persuasion then shifts to the prosecution to articulate race-neutral reasons for the strikes. The prosecutor must convey a reason that is “clear and reasonably specific.” United States v. Gibbs, 182 F.3d 408, 438-39 (6th Cir.1999) (citing Batson). The reason given, however, “need not be particularly persuasive, or even plausible, so long as it is neutral.” Hams I, 192 F.3d 580, 586 (6th Cir.1999). Finally, the district court must determine whether the defendant has established purposeful discrimination. See Batson, 476 U.S. at 96-98, 106 S.Ct. 1712.

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United States v. Harris, 15 F. App'x 317 (6th Cir. 2001).

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