United States v. Jimmie L. Wilson

884 F.2d 1121, 1989 U.S. App. LEXIS 13796, 1989 WL 104337

• Court: Court of Appeals for the Eighth Circuit
• Decided: September 13, 1989
• Docket: 87-2280
• Status: Published

Opinions

BRIGHT, Senior Circuit Judge.

Jimmie L. Wilson, a black male, in appealing from a judgment of his criminal conviction attacks the district court’s determination that the Government did not violate the dictates of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court held that the Government had rebutted Wilson’s prima facie case of race discrimination in the selection of the jury panel in his criminal prosecution. After en banc consideration,¹ we hold that the Government failed to rebut Wilson’s prima facie case of purposeful race discrimination because it did not offer a racially neutral explanation for striking Charlie Brooks, a black venireman. Accordingly, we reverse and remand for a new trial.

I. BACKGROUND

In 1984, a grand jury indicted Wilson for defrauding the United States government by knowingly disposing of property mortgaged to a government agency, in violation of 18 U.S.C. §§ 371, 841, and 658. In 1985, a jury in the United States District Court for the Eastern District of Arkansas found Wilson guilty. Wilson appealed, alleging, among other issues, that the Government’s use of its six peremptory challenges to strike six blacks from the jury panel violated his constitutional rights. This court affirmed the conviction in all respects. See United States v. Jimmie L. Wilson, 806 F.2d 171 (8th Cir.1986). In that opinion the court noted that, at the time of decision, the Supreme Court’s recent decision in Batson v. Kentucky did not apply to Wilson’s case, and that he failed to establish a case of discrimination under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 reh’g denied, 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965), the prevailing law at the time.

After the decision, the Supreme Court decided Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), which held that Batson applied to cases which had not become final on direct appeal before the issuance of Batson. Because Wilson’s appeal fell within this category, this court vacated its prior decision and remanded the case to the district court for a Bat-son hearing. United States v. Jimmie L. Wilson, 815 F.2d 52 (8th Cir.1987).

II. BATSON HEARING

On July 13 and 30, 1987, the district court held a Batson hearing. The court found that Wilson had established a strong prima facie case of racial discrimination because the Government had used all six of its peremptory challenges to exclude six blacks from the jury panel. The court then offered the Government the opportunity to offer a “neutral explanation ... not based upon race” to account for the strikes. (Tr. 5).

“[UJnder Batson, the striking of a single black juror for racial reasons violates the equal protection clause, even though other black jurors are seated, and even when there are valid reasons for the striking of some black jurors.” United States v. Battle, 836 F.2d 1084, 1086 (8th Cir.1987). We, therefore, only address the Government’s explanation for striking Charlie Brooks. We need not and do not address the Government’s explanation for striking the other five black veniremen. Nor do we reach Wilson’s other allegations of error during the Batson hearing.

The Government introduced testimony that Wilson was a well-known civil rights activist in the Lexa area and that great racial strife existed in the area. Wilson worked as a farmer and lawyer in the Lexa/Helena area of eastern Arkansas.

The Government struck Brooks, a black man who lived in Lexa, but did not strike Agnes Ginn, a white woman, who also lived in Lexa. During voir dire, both Brooks and Ginn denied knowing Wilson. The Government testified it struck Brooks because it had been aware of allegations of possible jury tampering by Wilson’s friends and feared Wilson’s friends would contact Brooks. In testimony at the Batson hearing on remand, one of the prosecutors explained the strike as follows:

A: [prosecutor] The next one was Charlie Brooks. This was a strike that I remember [the other prosecutor] and I discussing. The address that he gave was Lexa. Lexa is a rather broad area down in Phillips County, but it also encompasses — that route also encompasses where Mr. Wilson and Mr. Weaver lives. There was also, I think, another person from Lexa or that area. They did not indicate that they knew Mr. Wilson. It was kind of hard — Mr. Brooks was black. It is kind of hard for me to believe that he lives in an area as active as Mr. Wilson has been in community affairs and activisms and so forth that he would not know Mr. Wilson.

My concern about him was the possibility that some of Mr. Wilson’s friends would contact Mr. Brooks down there in that community. We have seen that happen before in certain cases and that was the concern I had and I was definitely for striking Mr. Brooks.

I do not think that the other person who lived in the area would have been subject to any extramural contacts by any of Mr. Wilson’s friends.

(Tr. 177-78).

Q. [defense counsel] Weren’t there whites from Lexa?

A. [prosecutor] Mr. Wilson’s friends aren’t — given the situation down in Phillips County — aren’t going to be contacting whites on behalf of Mr. Wilson.

Q. How do you know he doesn’t have any white friends?

A. I don’t know that he doesn’t, but my assumption would be that they would have contacted Mr. Brooks.

Q. So you did not expect Wilson’s friends to contact whites?

A. I mean, that’s something you can’t rule out, but you wouldn’t be expecting, given — I mean, Phillips County is not— you know, it’s probably a special case, but—

Q. How special is that case?

A. There appears historically to be problems down there between the races.

(Tr. 198-94).

Q. Will you admit that because of the large number of blacks in the Lexa area and because of Wilson’s reputation it was necessary for you to more closely scrutinize the black panel members than the white panel members; yes or no? A. With regard to Lexa area, it was the connection with Mr. Wilson which was the problem; not so much race.

Q. Well, did you not—

A. I mean, race is just a — race sets it up like being member of a lodge.

(Tr. 209-10)

* * * *

Q. The distinguishing factor between Mr. Brooks and Ms. Ginn would be their race; isn’t that correct?

A. The distinguishing relationship — you mean the difference between Ms. Ginn and Mr. Brooks was that there are more likely to be extramural contacts with Mr. Brooks. Which you can say given the situation down there, would be because he’s black opposed to—

Q. Why?

A. It’s a close-knit community down there.

(Tr. 212-13).

At the conclusion of the hearing, the district court found that the prosecutors “exercised the peremptory challenges ... for the very reasons they testified to in the hearing,” and “credited] their testimony in that regard.” (Tr. 281). The court further found that “race was not in any way a factor” in the exercise of the peremptory challenges. (Tr. 281).

III. DISCUSSION

In Batson, the Supreme Court held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the [government’s] case against a black defendant.” 476 U.S. at 89, 106 S.Ct. at 1719. Under Batson in order to establish an equal protection violation, “a defendant must first establish a prima facie case of purposeful discrimination in selection of the jury panel.” United States v. Battle, 836 F.2d at 1085. “In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.” Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. Here, the Government concedes that appellant Wilson established a prima facie case of discrimination. In that regard, it is important to observe that a prima facie case may be made where relevant circumstances indicate an inference of purposeful race discrimination no matter that one or more black persons may remain on the jury. See United States v. Battle, 836 F.2d at 1086.

After a defendant establishes a prima facie case, the burden then shifts to the government to “articulate a neutral explanation related to the particular case to be tried.” Batson, 476 U.S. at 98, 106 S.Ct. at . “[T]he prosecutor must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” Id. at 98 n. 20, 106 S.Ct. at 1724 n. 20 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)).

In Batson, the Court emphasized that “the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged the jurors of the defendant’s race on the assumption — or his intuitive judgment— that they would be partial to the defendant because of their shared race.” 476 U.S. at 97, 106 S.Ct. at 1723. “Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirmpng] [his] good faith in making individual selections.’ ” Id. at 98, 106 S.Ct. at 1724 (quoting Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972)). The defendant must then be given the opportunity to demonstrate that the proffered reasons are pretextual. United States v. George Wilson, 816 F.2d 421, 423 (8th Cir.1987). See also, e.g., United States v. Roan Eagle, 867 F.2d 436, 440-42 (8th Cir.1989) (permissible to strike juror on account of prior jury service that acquitted, close family relationship to a convicted criminal, and, in some circumstances, subjective evaluation).

In reviewing the district court’s findings, we are aware that “ ‘a finding of intentional discrimination is a finding of fact’ ” subject to the clearly erroneous rule, Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)), and that “[s]ince the trial judge’s findings * * * largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. “ ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Anderson v. City of Bessemer City, 470 U.S. at 573, 105 S.Ct. at 1511 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).

In this case, the district court’s credibility finding that the Government struck Brooks for the proffered reason is not at issue. The record clearly shows that the Government struck Brooks because of its belief that Wilson’s friends were more likely to contact Brooks, a black, than Ginn, a white. In this case, we are only concerned with whether the Government met its burden of articulating a racially neutral explanation for striking Brooks.

A review of the transcript, as illustrated by the above excerpts, convinces us that the Government did not present a neutral explanation for striking the black person in question. The Government’s motivation rests on a prosecutor’s assumption that race is “like being a member of a lodge.” Under Batson, such a reason does not qualify as a racially neutral explanation. As stated in Batson, “[t]he core guarantee of equal protection, ensuring citizens that their [government] will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race.” 476 U.S. at 97-98, 106 S.Ct. at 1723.

Where as here the testimony of the prosecutor indicates a stereotypical raeial reason for striking the potential black juror Brooks, the district court’s finding that “race was not in any way a factor” in the Government’s exercise of its challenge receives no support from the record. The prima facie case of discrimination has not been overcome. Thus, the district court’s finding to the contrary is clearly erroneous in this case. Compare United States v. George Wilson, 867 F.2d 486, 488 (8th Cir.1989) (Government “undoubtedly” articulated racially neutral explanations for striking black veniremen).

Where “the trial court decides that the facts establish, prima facie, purposeful discrimination,” as in this case, “and the prosecutor does not come forward with a neutral explanation for his action,” we must reverse the defendant’s conviction. Batson, 476 U.S. at 100, 106 S.Ct. at 1725.

Reversed and remanded for a new trial.

1 . The panel opinion of the court previously filed, United States v. Jimmie L. Wilson, 853 F.2d 606 (8th Cir.1988), was automatically vacated on the granting of the petition for rehearing en banc. United States v. Jimmie L. Wilson, 861 F.2d 514 (8th Cir.1988).