United States v. Smith, Anthony

In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-3395

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY D. SMITH,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-CR-24—J.P. Stadtmueller, Judge.

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ARGUED FEBRUARY 14, 2003—DECIDED APRIL 7, 2003

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Before FLAUM, Chief Judge, and DIANE P. WOOD and

EVANS, Circuit Judges.

FLAUM, Chief Judge. After a jury trial, Anthony Smith

was convicted of being a felon in possession of a 9mm semi-

automatic handgun and of being a felon in possession of

17 rounds of unfired 9mm ammunition, both in violation of

18 U.S.C. § 922(g)(1). On appeal Smith argues that his

indictment should be dismissed because an unauthorized

attorney represented the government in the grand jury

proceedings, and that his conviction should be vacated

because the government unconstitutionally used one of its

peremptory challenges to exclude a prospective juror be-

cause of his race. We affirm.

2 No. 02-3395

I. BACKGROUND

In January 2002 a federal grand jury returned a two-

count indictment against Smith for being a convicted felon

in possession of both a firearm and ammunition in viola-

tion of 18 U.S.C. § 922(g)(1). The details of Smith’s arrest

and trial are not germane to his appeal for he challenges

only the government’s use of an allegedly unauthorized

attorney during his grand jury proceedings and its allegedly

unconstitutional use of peremptory challenges during voir

dire.

During Smith’s grand jury proceedings, the federal

government was represented by Special Assistant United

States Attorney (“SAUSA”) Nelson W. Phillips III. Prior to

his appointment as SAUSA in May 2001, Phillips worked

for the state of Wisconsin as an Assistant District Attor-

ney for Milwaukee County. One of the conditions of Phil-

lips’s appointment stated that he would serve the federal

government without federal compensation; instead, Phillips

continued to receive an annual salary paid by the state

of Wisconsin while reporting to and acting under the di-

rection of the United States Attorney for the Eastern

District of Wisconsin. Before trial Smith moved to dis-

miss the indictment against him on the grounds that

Phillips’s salary arrangement violated federal law and

rendered Phillips an unauthorized government attorney

whose appearance before the grand jury violated Fed. R.

Crim. P. 6(d).

Smith arrives at his conclusion by the following logic. The

Federal Rules of Criminal Procedure limit participation

in grand jury proceedings to certain individuals, and Rule

6(d)(1) provides that “attorneys for the government” are

among those who may be present. Under Rule 54(c) an

“attorney for the government” may include “an authorized

assistant of a United States Attorney,” and 28 U.S.C.

§ 543(a) authorizes the Attorney General of the United

No. 02-3395 3

States to “appoint attorneys to assist United States attor-

neys when the public interest so requires.” Attorneys duly

appointed under § 543 are therefore qualified “attorneys

for the government” who are permitted to appear before

a grand jury according to Fed. R. Crim. P. 6(d)(1).

However, 28 U.S.C. § 548 requires that the Attorney

General “shall fix the annual salaries of . . . attorneys

appointed under § 543 of this title at rates of compensa-

tion not in excess of the rate of basic compensation pro-

vided for in Executive Level IV.” Herein lies the problem,

according to Smith. Although Phillips was duly appointed

under § 543, his annual salary is not paid by the federal

government, but by the state of Wisconsin. Since Phillips

receives no federal salary, Smith argues that the Attorney

General cannot be said to have “fix[ed] his annual salary”

as required by § 548, and therefore Phillips’s appoint-

ment is invalid. If Phillips’s appointment under § 543 is

invalid, then he is not an authorized “attorney for the

government” under Fed. R. Crim. P. 6(d)(1) and should not

have appeared to represent the government before the

grand jury.

Smith moved the district court to dismiss the indictment

against him without prejudice under the theory that the

government’s violation of §§ 548 and 543 deprived the trial

court of jurisdiction over his case. The district court denied

Smith’s motion to dismiss after determining that Phil-

lips’s appointment under § 543 was valid and finding

that § 548 neither prohibited the state of Wisconsin from

paying Phillips’s salary nor required the federal govern-

ment to do so.

During voir dire, the government exercised six, and

Smith ten, peremptory challenges toward prospective ju-

rors. The government eliminated four white and two

black prospective jurors with its challenges, and Smith

objected to the government’s dismissal of both of the black

4 No. 02-3395

individuals as unconstitutional under Batson v. Kentucky,

476 U.S. 79 (1986). As is required under Batson to rebut

a prima facie showing that a peremptory challenge was

exercised on the basis of race, the government explained

that it eliminated one juror, Ms. Tanyette Cockcroft, based

on her lip piercing, tattoos, and liberal arts background,

and the other juror, Mr. Marvin Fann, because he made

mistakes on his juror questionnaire that suggested an

inability to follow simple instructions. Over Smith’s objec-

tion the district court ruled that the government met

its burden under Batson to provide a race-neutral reason

for challenging the contested jurors, and that Smith had

not shown that the government’s reasons were pretextual.

On appeal Smith insists that the government’s use of

its peremptory challenge against Mr. Fann amounted to

unconstitutional race discrimination.

II. DISCUSSION

A.

Smith argues that his indictment should be dismissed

without prejudice because at all times during his grand

jury proceeding the government was represented by an

unauthorized attorney, namely SAUSA Phillips. Both the

government and Smith agree that Phillips was duly ap-

pointed to his post by the Attorney General of the United

States as required by 28 U.S.C. § 543, but Smith contends

that Phillips’s failure to receive an annual salary fixed

by the Attorney General and paid by the federal govern-

ment violated 28 U.S.C. § 548, thereby invalidating his

appointment under § 543. With Phillips’s appointment

thus flawed, Smith argues, Phillips was never an autho-

rized “attorney for the government” and should not have

been present during the grand jury proceedings. The nar-

row question now before us is whether the fact that Phil-

lips’s annual salary was set at zero by the Attorney Gen-

No. 02-3395 5

eral while Phillips continued to receive his state salary

from Wisconsin has any effect on Phillips’s status as an

authorized SAUSA.1 We review this question of statutory

interpretation and construction de novo. United States

v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002).

Smith contends that § 548 requires appointed SAUSAs

like Phillips to receive an annual salary fixed by the

Attorney General of the United States and paid by the

federal government, but the government maintains that

§ 548 only requires the Attorney General to fix the an-

nual salary of United States attorneys at or below a cer-

tain level and does not require the federal government

to pay the annual salary. In advancing his argument, Smith

relies primarily on the statutory language of § 548, that

the Attorney General “shall fix the annual salaries” of

SAUSAs, but also submits that as a matter of public

policy it is unwise for attorneys who represent the fed-

eral government to receive their salaries from another

1

The legal dispute over who must sign an SAUSA’s paycheck

appears to be a question of first impression in this and other

circuits, although it is not uncommon for states to lend their

prosecutors to the federal government for appointment as

SAUSAs while continuing to pay their salaries. The Ninth Cir-

cuit considered a related challenge to the validity of an SAUSA’s

appointment under § 543 and subsequent appearance before a

grand jury in United States v. Navarro, 160 F.3d 1254 (9th Cir.

1998). However, the critical question in that case was whether

an appointment term limit required by the Intergovernmental

Personnel Act applied to SAUSAs appointed under § 543, and

not whether an SAUSA was required to be paid from the federal

coffers. Nevertheless, we find instructive to this case the com-

ment of the court that “nothing in that history suggests an in-

tention to weaken the Attorney General’s authority to seek the

aid of SAUSAs in an attempt to further protect the people of the

United States against what has sometimes seemed to be a tidal

wave of crime.” Navarro, 160 F.3d at 1257.

6 No. 02-3395

source. Neither of Smith’s arguments convince us that

the current practice of appointing and compensating

SAUSAs like Phillips runs afoul of the law or public policy.

Section 548 states that the United States Attorney

General “shall fix the annual salaries” for SAUSAs “at

rates of compensation not in excess of the rate of basic

compensation provided for in Executive Level IV.” Smith

argues that since the language “shall fix” is mandatory, the

fact that Phillips received no federal salary is a clear

violation of the statute. We disagree. Section 548 plainly

requires the Attorney General to fix salaries at or be-

low a certain level; this evidences a desire to establish a

maximum salary cap for SAUSAs, not a minimum wage.

In this case the Attorney General did “fix” Phillips’s an-

nual federal salary, at exactly zero dollars ($0). Strange

as an annual salary of zero dollars may seem, there is

nothing in § 548 to prohibit this result. In fact, the ab-

sence of language in the statute speaking to the issue

of exactly how much government attorneys are paid and

by whom indicates that Congress did not intend to specifi-

cally regulate this area. Section 548 is a general salary

provision awarding the Attorney General some discretion,

up to a designated pay ceiling, to determine the salaries

of the government attorneys whom he or she supervises.

Moreover, there is nothing in § 548 that would lead us to

conclude that government attorneys, including SAUSAs,

are prohibited from receiving income from other sources.

This is not to say that a government attorney may accept

any amount of compensation from any source without

restriction; however, other statutes addressing the topic

of a federal employee’s receipt of income from outside

sources do not cast doubt on the propriety of SAUSA

Phillips receiving his salary from the State of Wisconsin

in this case. See, e.g., 18 U.S.C. § 209(a) (limiting federal

employees’ receipt of income from “any source other than

the Government of the United States, except as may be

No. 02-3395 7

contributed out of the treasury of any State, county or

municipality” and penalizing private persons and en-

tities who make such payments to federal employees in

violation of the statute), and § 209(c) (making section

inapplicable to “a special Government employee or to an

officer or employee of the Government serving without

compensation”); see also Ethics in Government Act, 5

U.S.C. App. §§ 501 (limiting outside earned income) and

502 (limiting outside employment).

Smith urges us to write a rule in this case requiring

that all government attorneys be paid for their services

solely by the federal government. He insists this is neces-

sary to protect the integrity of the office of the United

States Attorney and shield it from unsavory and improp-

er influences. Smith doubts that other statutory safe-

guards, like the requirements that the Attorney General

appoint each attorney and supervise his or her practice,

and that all government attorneys must swear an oath to

faithfully execute his or her duties, are sufficient de-

fenses. We do not disagree that our judicial system might

look very different if private persons and special interest

groups directly paid the salaries of purportedly neutral

government attorneys; indeed, we would be concerned

about the potential for corruption, fraud and prosecutorial

misconduct that Smith describes. But that is not the

legal landscape we are viewing under the current stat-

utory scheme, nor is it the situation we are facing here

by allowing duly appointed SAUSA Phillips to submit to

the authority of the Attorney General of the United States,

to follow the policies and procedures of the United States

Attorney for the Eastern District of Wisconsin, and to

receive his salary from his former employer, the state

of Wisconsin, while serving his appointment to the fed-

eral government.

Since Phillips was duly appointed by the power granted

to the Attorney General under § 543, we hold that Phil-

8 No. 02-3395

lips’s salary arrangement during his tenure as SAUSA

was permissible under § 548 and that he was an author-

ized government attorney at all times during Smith’s

grand jury proceedings and trial. Because we find that

Phillips was authorized to represent the government be-

fore the grand jury, we need not reach the issue wheth-

er a grand jury appearance by a government attorney

whose appointment is defective under § 543 deprives the

trial court of jurisdiction and requires dismissal of the

tainted indictment even after the defendant was con-

victed at trial.

B.

Smith next urges us to vacate his conviction because

the government exercised a peremptory challenge based

on the race of a prospective juror. In Batson v. Kentucky,

476 U.S. 79 (1986), the Supreme Court held unconstitu-

tional the use of peremptory challenges on the basis of

race and established a procedure for trial judges to use

to evaluate whether a peremptory challenge was discrim-

inatorily motivated. Id. at 96. A defendant must first show

that the challenged juror belonged to a cognizable racial

group and that the prosecutor removed the juror because

of his race. The burden then shifts to the prosecution to

provide a race-neutral reason for challenging the con-

tested juror. If the trial court decides that the govern-

ment’s proffered explanation is legitimate, the burden

shifts again to the defendant to show that it was in fact

pretextual. The Supreme Court emphasized in Batson that

trial judges should consider “all relevant circumstances” in

making their determinations and should be in the best

position to decide, given their “experience[ ] in supervising

voir dire,” whether the peremptory challenges were im-

permissibly based on race. 476 U.S. at 97.

We review the district court’s factual findings related to

Smith’s Batson challenge for clear error. Tinner v. United

No. 02-3395 9

Ins. Co. of America, 308 F.3d 697, 703 (7th Cir. 2002);

United States v. Jordan, 223 F.3d 676, 686 (7th Cir. 2000).

We will not reverse the determination of the district

judge unless the reason given for the challenge is “com-

pletely outlandish” or there is other clear evidence that

proves it wrong. See Tinner, 308 F.3d at 703 (quoting

United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir.

1998)).

In this case we find no clear error in the district court’s

determination that the government did not use its peremp-

tory challenge against Mr. Fann because of his race. The

government explained, in response to Smith’s objection

during voir dire, that it excused Mr. Fann because he

had made several mistakes on his juror questionnaire

that suggested an inability to follow simple instructions.

Smith asserts that this reason is pretextual because

other white jurors who made mistakes on their question-

naires were not also struck. Though Smith correctly states

that a comparison of similarly situated jurors is an appro-

priate factor for the trial judge to consider in determin-

ing discriminatory intent, it is only one of many permis-

sible factors, and in this case it is not determinative.

See Coulter v. Gilmore, 155 F.3d 912, 921 (7th Cir. 1998);

Miller-El v. Cockrell, 123 S.Ct. 1029, 1032 (2003) (examin-

ing discriminatory intent through comparison of venire

members of different races). The record here shows that no

other juror made as many mistakes on his or her question-

naire as Mr. Fann: two other jurors made two errors each

and four jurors made one error each, but Mr. Fann made

seven errors on his questionnaire.

We also note for comparison’s sake the fact that the

government used its final peremptory challenge to strike

a white juror rather than the one black juror remaining

in the pool. Though this fact alone does not defeat Smith’s

Batson claim, it is additional evidence that the govern-

ment did not act with racially discriminatory intent in

10 No. 02-3395

selecting the jurors for Smith’s trial. See Batson, 476 U.S.

79, 97 (stating that a pattern of strikes against black

jurors might lead to an inference of discrimination). See

also United States v. Marin, 7 F.3d 679, 686 n.4 (7th Cir.

1993) (noting that government’s empaneling of other

minority jurors bolstered credibility of government’s race-

neutral explanation for striking the contested minority

juror); United States v. Nichols, 937 F.2d 1257, 1264

(7th Cir. 1991) (finding it relevant that black jurors were

seated while government still had peremptory challenges

available).

The government’s reasons for using its peremptory

challenges need not rise to the level justifying the use of

a challenge for cause. Batson, 476 U.S. at 97. During voir

dire the government stated that “Mr. Fann’s performance

on his questionnaire” provided the reason for exercising

its peremptory challenge. The district judge accepted

this explanation, and given the evidence in the record

supporting the government’s reasons, we do not find the

court’s determination to be clearly erroneous.

III. CONCLUSION

The district court properly determined that SAUSA

Phillips was an authorized attorney for the government

during Smith’s grand jury proceedings and that the gov-

ernment did not unconstitutionally exercise its peremptory

challenge toward Mr. Fann. AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-7-03