United States v. Theortres Parham, United States of America v. Thomas Charles Johnson, A/K/A T.C. Johnson

16 F.3d 844

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 7, 1994
• Docket: 93-1365, 93-1376
• Status: Published

Opinions

BEAM, Circuit Judge.

Theortres Parham and Charles Johnson appeal their convictions and sentences for conspiracy to vote more than once. Parham and Johnson are politically active black men who were both deputy registrars in Phillips County, Arkansas. Parham was a candidate for mayor of Helena, Arkansas in 1990. Par-ham and Johnson were accused of casting multiple votes for Parham in a scheme involving absentee ballots. They assert selective prosecution, Batson violations and error in the district court’s refusal to depart downward in sentencing. We affirm the convictions but remand to the district court for consideration of Parham’s and Johnson’s motions to depart downward under U.S.S.G. § 5K2.0.

I. BACKGROUND

Parham and Johnson were each charged with one count of conspiracy to commit acts of multiple voting and conspiracy to provide false information in voting in violation of 18 U.S.C. § 371 and with 18 counts of knowingly and willfully voting more than once in violation of 42 U.S.C. § 1973i(c) and (e) and 18 U.S.C. § 2. Parham and Johnson moved to dismiss the indictment, asserting that they had been selectively prosecuted. They also moved for discovery on that issue. The district court found that they had not proved a prima facie case of selective prosecution and thus denied their motions.

Parham and Johnson proceeded to trial. At voir dire, the government exercised peremptory challenges to strike several black venirepersons from the jury. After the jury had been sworn, and the panel had been dismissed, Parham and Johnson raised Bat-son objections.¹ The district court overruled their objections as untimely, but allowed the government to make a record on the reasons for striking the jurors.

At trial, the government attempted to prove that Parham and Johnson forged absentee ballots in order to vote more than once. A handwriting expert testified that voter signatures on the absentee ballots had been forged. Parham and Johnson conceded that there were procedural irregularities in some of the absentee ballot forms, but testified that they had not signed anyone else’s names to the forms. At the conclusion of the trial, one count of multiple voting was dismissed for insufficient evidence, and the jury acquitted Parham and Johnson on the remaining 17 counts. They were convicted only on the conspiracy charge.

At sentencing, Parham and Johnson argued that the acquitted counts should not be counted as relevant conduct for sentencing purposes. The district court agreed, noting that to enhance the sentence on the basis of the acquitted conduct would amount to “a tail which wags the dog.” Memorandum Opinion and Order, No. LR-CR-92-72 at 4 (Jan. 28, 1993); Sentencing Transcript at 60. Consequently, the district court did not consider conduct for which Parham and Johnson had been acquitted in sentencing.² Parham and Johnson also requested a downward departure, which the district court denied. The district court stated: “I think as far as the base offense level, absent a motion from the Government to depart, I think I am bound by them. I don’t think I can depart sua sponte. I think there must be a motion by the Government before I can depart.” Sentencing Transcript at 10. The district court later stated, “I think this is the minimum sentence I can give these defendants.” Sentencing Transcript at 64. Parham and Johnson were each sentenced to ten months, five of which were to be spent in a halfway house in Little Rock.

II. DISCUSSION

1. Selective Prosecution

Parham and Johnson must establish a prima facie case of selective prosecution before discovery of materials requested in connection with the claim can be compelled. United States v. Hintzman, 806 F.2d 840, 846 (8th Cir.1986). To establish a prima facie case, a defendant must demonstrate: 1) that he has been singled out for prosecution while others similarly situated have not been prosecuted for similar conduct and 2) that the government’s action in thus singling him out was based on an impermissible motive such as race, religion, or the exercise of constitutional rights. United States v. Matter, 818 F.2d 653, 654 (8th Cir.1987). The defendant’s burden is a heavy one, and because we afford broad discretion to .prosecuting authorities, we require a showing of intentional and purposeful discrimination. Id. at 654-55. Absent this prima facie showing, the prosecution is presumed to have been undertaken in good faith. Id. at 655. Since determination of a prima facie case of selective prosecution is essentially a factual inquiry, we review the district court’s determination on the establishment of a prima facie case of selective prosecution only for clear error. United States v. Gutierrez, 990 F.2d 472, 475 (9th Cir.1993).

Applying that high standard, we are unable to find that the district court erred in finding that Parham and Johnson did not establish a prima facie case of selective prosecution. In support of their motion, Parham and Johnson presented the affidavits of several persons outlining observations of numerous voter irregularities in eastern Arkansas.³ We do not belittle or demean the significance of the acts outlined in the affidavits. The acts certainly warrant investigation, if not prosecution. However, egregious as they are, the acts summarized in the affidavits are not sufficiently similar to the acts of voter fraud for which Parham and Johnson were prosecuted to constitute a prima facie case of selective prosecution. Parham and Johnson were in effect charged with forging names on absentee ballots. They presented no evidence that other’s acts of absentee ballot forgery or fraud were tolerated without prosecution. Where a defendant cannot show anyone in a similar situation who was not prosecuted, he has not met the threshold point of showing that there has been selectivity in prosecution. Compare Attorney General of United States v. Irish People, Inc., 684 F.2d 928, 946 (D.C.Cir.1982) (no selectivity where defendant could not point to others who had violated Foreign Agents Registration Act and had not been prosecuted), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983) with United States v. Gordon, 817 F.2d 1538, 1540 (11th Cir.1987) (selective prosecution found where others had not been prosecuted for the same offense), rev’d in part on other grounds, 836 F.2d 1312 (11th Cir.1988).

2. Batson Violations

Parham and Johnson argue that they were denied equal protection in the government’s use of three peremptory challenges to exclude three black venirepersons from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Parham and Johnson made their Batson challenge only after the jury was impanelled and the venire had been dismissed. They proffered no excuse for the delay. The district court denied the motion on the ground of timeliness. Although, in this circuit, we have not yet set out the precise point beyond which a Batson objection will be untimely, we have noted that a timely objection allows the trial court to remedy the discrimination prior to the commencement of trial. United States v. Dobynes, 905 F.2d 1192, 1196 (8th Cir.), cert. denied, 498 U.S. 877, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990). We now agree with those circuits that have held that a Batson objection must be made at the latest before the venire is dismissed and before the trial commences.⁴ United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989), cert. denied, 494 U.S. 1084, 110 S.Ct. 1818, 108 L.Ed.2d 948 (1990); Government of Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3rd Cir.1986) (failure to make objection at the close of voir dire constitutes waiver). Accordingly, we agree that the Batson motion in this case was untimely.

Parham and Johnson further argue that, even if their Batson challenge was not timely, the objection was treated as timely because the district court required the government to state its reasons for the strikes on the record. See, e.g., Reynolds v. Little Rock, 893 F.2d 1004, 1009 (8th Cir.1990) (an untimely motion treated as timely). We disagree. A review of the record here shows that the district court did not treat the motions as timely, but merely allowed the parties to make a record on the issue. The district court specifically and repeatedly stated that the objections were overruled as untimely, and only instructed the government to make a record and made an alternative holding for purposes of preserving the issue for appeal. Also, the government expressly stated that it did not intend to waive any timeliness objections by stating its reasons for the peremptory strikes. Transcript at 20. Because we hold the Batson challenge was not timely, we need not reach the merits of the stated reasons for the strikes.

3. Downward Departure

We have jurisdiction to review a sentencing court’s failure to depart downward only when the district court is not aware of its authority to depart. See United States v. Hall, 7 F.3d 1394, 1396 (8th Cir.1993); United States v. Evidente, 894 F.2d 1000 (8th Cir.), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990). This is such a case. The court stated that it could not depart absent a government motion-and later stated, “I think this is the minimum sentence I can give these defendants.” We find that conclusion may have been erroneous. A government motion is only required for departure for substantial assistance to the government under U.S.S.G. § 5K1.1. No government motion is required under U.S.S.G. § 5K2.0, which allows a district court to depart if it finds aggravating or mitigating circumstances of a kind, or to a degree, not adequately considered by the Sentencing Commission in formulating the Guidelines. 18 U.S.C. § 3553(b). Here, Par-ham and Johnson requested a departure on several grounds including: that the case was atypical, it was not a commonly prosecuted crime, and the conspiracy was not completed. Sentencing Transcript at 8-10. Parham and Johnson also requested electronic monitoring or probation, stating that they were good candidates for those penalties. Sentencing Transcript at 46 and 51. The court repeatedly referred to the bizarre nature of the case and expressly noted the long period of disenfranchisement of African-American voters in Phillips County, Arkansas.⁵ Sentencing Transcript at 56-57 and 62.

Factors warranting departure under section 5K2.0 may well exist in this case. This is for the district court to determine in the first instance. We have not ruled out the possibility of departure based on a single act of aberrant behavior. United States v. Simpson, 7 F.3d 813, 820 (8th Cir.1993). Also, although family ties and responsibilities and employment record are not ordinarily relevant in determining whether to grant a downward departure, extraordinary circumstances may support departure from the guideline range. Id. at 819; see also United States v. One Star, 9 F.3d 60 (8th Cir.1993); United States v. Big Crow, 898 F.2d 1326, 1331 (8th Cir.1990); cf. United States v. White Buffalo, 10 F.3d 575 (8th Cir.1993) (departure under section 5K2.0 not warranted where defendant had no dependents to support). The district court may also consider the government’s conduct in a decision to grant a downward departure. Simpson, 7 F.3d at 820. Also, we note that the factors warranting departure in a particular case do not exist in isolation. Id. The totality of those individual circumstances may well converge to create the unusual situation not contemplated by the Commission. Id. Because the record does not show whether facts warranting such a departure exist, either singly or in combination, we remand this issue to the district court for further consideration.

III. CONCLUSION

For the reasons stated above, we affirm the convictions of Parham and Johnson and remand to the district court for further consideration of their motions for downward departure.

1 . Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Fourteenth Amendment is violated when a prosecutor uses a peremptory challenge to strike a potential juror on account of his or her race.

2 . The government has not appealed that finding.

3 . These irregularities are serious and pervasive. The affidavits contained evidence of numerous incidents including: episodes where black handicapped or elderly voters were refused assistance although whites were helped; rejection of black absentee ballots by white clerks; white poll-watchers questioning and photographing black voters; challenge of black absentee ballots because the ballots had been sent to the same address, while white absentee ballots sent to the same address were not questioned; casting of absentee ballots by non-resident whites or by parents for grown children; segregation of black and white pollwatchers; previous condonation of violation of proximity to poll rules for white violators and strict enforcement of proximity rules for blacks; allowing white candidates to stay in polling place while black candidates were asked to leave; and harassment and intimidation of black voters, including armed intimidation. Parham and Johnson also presented evidence that repeated complaints had been made to both local and federal officials.

4 . We express no opinion on whether a Batson challenge must or should be made at any earlier point.

5 . We agree with the district court that such voter discrimination is well established in Arkansas. See Whitfield v. Democratic Party of Arkansas, 902 F.2d 15 (8th Cir.1990) (en banc).