Appendix — Dennis v. United States

Supreme Court, U.S.

») P ELLED

86-1438 FES 2) Be?

pposers ESPANOL AR,

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

BOBBY ROY DENNIS, SR.,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

WILLIAM J. SHEPPARD

SHEPPARD AND WHITE, P.A.

215 Washington Street

Jacksonville, Florida 32202

(904) 356-9661

ATTORNEYS FOR PETITIONER

TABLE OF CONTENTS

PAGE

APPENDIX A

Opinion of the Eleventh

Circuit Court of Appeals

Affirming the Conviction......

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74

APPENDIX B

Opinion of the Eleventh

Circuit Court of Appeals

se Peer re ree ee re eee ee 75-84

APPENDIX C

Opinion of the Eleventh

Circuit Court of Appeals

Affirming the Conviction...... 85-86

APPENDIX D

Opinion of the Eleventh -

Circuit Court of Appeals

Denying Rehearing En Banc..... 87-88

APPENDIX E

Opinion of the Eleventh

Circuit Court of Appeals

Denying Rehearing En Banc..... 89-90

SZHEEEERESZ £-E-

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Bobby Roy DENNIS, Sr., Sharon Denise

Cohen, Clarence Bobby Jennings, Brenda

Jewell Hurley, Defendants-Appellants.

No. 85-3089.

United States Court of Appeals,

Eleventh Circuit.

April 14, 1986.

William J. Sheppard, Courtney L.

Johnson, Jacksonville, Fla., for Dennis.

Brent D. Shore, Jacksonville, Fla.,

for Cohen.

Eugene F. Murphy, Jacksonville Beach,

Fla., for Jennings.

Howard W. Skinner, Jacksonville, Fla.,

for Hurley.

M. Alan Ceballos, Asst. U.S. Atty.,

Jacksonville, Fla., for U.S.

Appeals from the United States

District Court for the Middle District of

Florida.

Before HILL, Circuit Judge, and TUTTLE

and HENDERSON *, Senior Circuit Judges.

HILL, Circuit Judge:

* See Rule 3(b), Rules of the U.S. Court of

Appeals.

This is an appeal from

defendant-appellants' convictions and

sentences on various narcotics-related

charges. The defendants were indicted

along with six other individuals, five of

whom pled guilty and one of whom remained a

fugitive through trial, in a twenty-two

count indictment in September of 1984. The

defendants filed numerous pre-trial

motions, two of which - a motion to

Suppress certain evidence filed by one

defendant and a motion for a continuance

filed by another - are relevant to this

appeal. Both of those motions were denied.

The jury found all four of the

defendants guilty of the offense alleged in

Count One of the indictment, which charged

them with a five year long conspiracy "to

knowingly, willfully and intentionally

distribute and possess with intent’ to

distribute quantities of controlled

substances, including heroin, cocaine,

marijuana, and talwin," in violation of 21

-—2?-

U.S.C. § 846 (1982). Each defendant was

also convicted of one or more substantive

narcotics offenses. In addition, appellant

Bobby Roy Dennis was convicted of engaging

in a continuing criminal enterprise that

yielded him substantial income and

resources, in violation of 21 U.S.C. § 848

(1982), and using a communication facility

to facilitate the conspiracy set forth in

Count One, in violation «f 21 U.S.C. §

843(b) (1982). Appellants Sharon Denise

Cohen and Clarence Bobby Jennings were also

convicted of making false and material

declarations to a federal grand jury, in

violation of 18 U.S.C. § 1623 (1982). The

sentences imposed will be discussed where

relevant below.

FACTS

The evidence at trial established that

appellant Bobby Roy Dennis, Sr.

(hereinafter referred to as "Dennis") and

Johnny Bernard McClenton, a codefendant who

pled guilty and testified at trial, jointly

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supervised and controlled a massive and

highly lucrative five year narcotics

distribution enterprise. The enterprise

enlisted the assistance of a succession of

young women who would package and store the

drugs in their homes or apartments,

frequently in return for the payment of

their rent or other household expenses.

The organization also employed street lever

"lieutenants" who would retrieve the

packaged narcotics from the homes in which

they were processed and stored and deliver

them to street level sellers.

In exchange for financial

remuneration, appellant Brenda Jewell

Hurley (hereinafter referred to as

"Hurley") stored marijuana, cocaine and

heroin in her apartment for several months

in 1982, during which time the enterprise

operated out of that location. Appellant

Sharon Denise Cohen (hereinafter referred

to as "Cohen"), acting as a street level

seller, sold cocaine and heroin out of her

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ow

home. Appellant Clarence Bobby Jennings

(hereinafter referred to as "“Jennings") was

a street level lieutenant.

On the first day of appellants' trial,

the court conducted a lengthy voir dire

examination of potential jurors. In

response to questions from the court that

were directed at learning whether any of

the potential jurors harbored any improper

bias as a result of their opinions about

illicit drugs or had deve loped any

prejudice as a result of their exposure to

any pre-trial publicity concerning’ the

case, five jurors stated that they might

not be able to render an unbiased decision

because of previous experiences unrelated

to the case at bar. Following further voir

dire examination of the panel by the court,

those jurors were excused.

The evidence presented by the

government at trial consisted principally

of the testimony of a host of witnesses who

had been employed in various capacities by

the criminal enterprise. Written plea

agreements between the government and two

of those witnesses were introduced into

evidence by the government over defense

objections. Dennis and Cohen were also

implicated in a diary/financial ledger that

had been kept by one of the street

lieutenants during his tenure with the

Organization and was introduced at trial.

The prosecution's case against Dennis was

further supported by a tape recording of a

telephone conversation that had been

intercepted pursuant to a 1980 court

authorized wiretap. Dennis' pre-trial

motion to suppress the recording had been

denied.

Further facts will be provided where

relevant to the analysis below.

DISCUSSION

Appellants raise numerous claims of

error on this appeal. We will discuss the

following issues raised by those claims in

SHEE

the order in which we have listed them

below:

(1) Whether the trial court erred in

admitting into evidence the tape recording

made pursuant to a court authorized wiretap

in 1980.

(2) Whether the trial court erred in

sentencing Hurley, Cohen and Jennings on

Count One in the absence- of a_e special

verdict indicating which drugs were found

by the jury to have been objects of the

conspiracy.

(3) Whether appellants Jennings and

Cohen waived any right to object to the

testimony of the grand jury foreman

regarding the materiality of allegedly

false statements they made before the grand

jury.

(4) Whether the trial court abused

its discretion in its conduct or voir dire.

(S) Whether the trial court erred in

admitting into evidence the written plea

agreements of two government witnesses.

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(6) Whether the trial court erred in

denying appellant Hurley's motion for a

mistrial after the prosecutor commented on

Hurley's character in his rebuttal

argument.

(7) Whether the trial court erred in

denying appellant Dennis' motion to inquire

of the government into the reasons for its

exercise of three of its peremptory

challenges.

The remainder of the claims raised by

appellants are clearly without merit and

are addressed together in Part VIII below.

I. ADMISSIBILITY OF

WIRETAP EVIDENCE

The government was permitted to

introduce into evidence a tape recording of

a telephone conversation between Dennis and

David Weinstein, the owner of a local

pharmacy, in which Dennis asked Weinstein

whether he could provide Dennis with a

large quantity of Talwin, a Schedule I

narcotic substance. The recording was made

on August 1, 1980, pursuant to a court

authorized wiretap on a telephone located

at the residence of Bonnie Joyce Phelps

(a/k/a Bonnie Joyce Jackson). On July 16,

1980, as part of an investigation into

essentially the same criminal enterprise

that is the subject of this case, Assistant

United States Attorney Thomas E. Morris had

applied for and received authority to

intercept and monitor communications over

the home telephone lines of Dennis and

Phelps, who was then Dennis' girlfriend.1l

Attached to and made a part of that

application by reference was an affidavit

1 The government has stated that the

1980 wiretap did not yield evidence

sufficient to warrant prosecution then, and

that the investigation was terminated

shortly thereafter. The investigation was

reactivated in 1984 with an extensive grand

jury investigation. During the grand jury

inguiry it became clear that one

intercepted conversation might be relevant

as evidence in this case. It is for that

reason that the conversation that is at

issue here was intercepted so far in

advance of prosecution.

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executed by Federal Bureau of Investigation

Special Agent Dennis Erich, setting forth,

inter alia, the reasons why it was believed

that alternative investigative techniques

would not achieve the objectives’ the

wiretap could achieve: On July 28, Morris

filed a second application seeking

authority to intercept communications over

Phelps' telephone line at a new address to

which she had moved. The court granted the

application, resulting in the interception

of the conversation between Dennis. and

Weinstein on August 14. The July 28

application included an affirmation of the

applicant's belief that "normal

investigative procedures appear unlikely to

succeed," and incorporated by reference the

prior affidavit of Special Agent Erich,

which was said to "“explain[] why norma’

investigative procedures have failed or

reasonably appear unlikely to succeed if

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continued, or reasonably appear unlikely to

succeed if tried."2

Appellant Dennis challenges the legal

sufficiency of the July 28 application on

this appeal, arguing that it fails to

satisfy the statutory requirement that a

wiretap application include a full and

complete statement as to whether or not

other investigative procedures have been

tried and failed or why they reasonably

appear to be unlikely to succeed if tried

or to be too dangerous." wast. §

2518(1) (c) (1982). Appellants claim

support for their position in dicta from

this court's opinions in United States v.

Bascaro, 742 F.2d 1135 (llth Cir.1984), and

United States v. Domme, 753 F.2d 950 (llth

2 The July 28 application and supporting

affidavits also set forth in considerable

detail the facts alleged to constitute

probable cause to believe that the

electronic monitoring for which authority

was sought would secure important evidence

of unlawful activity.

aR tu

Cir.1985). In both of those cases we

approved the incorporation by reference of

prior affidavits in an amended application

that had been made necessary only because

of a change in telephone number at the same

address. In both cases the court

distinguished amended applications arising

from a change in the address of the person

whose conversations were being intercepted.

Indeed, the Domme court stated:

Appellants point to Bagley v. State,

397 So.2d 1036 (Fla.App.1981), and

Wilson Vv. State, 377 So.2d aar

(Fla.App.1979), which held amended

applications to be insufficient as a

matter of state law when they merely

incorporated information contained in

earlier applications. Their argument,

however, is foreclosed by our decision

in Bascaro. There, the government

obtained an amended wiretap order,

which was sought by incorporating the

Original application, because the

subject of the wiretap had changed one

of his phone numbers before electronic

Surveillance had begun. Appellants in

Bascaro raised the identical argument

presented here. In distinguishing

Wilson and Bagley, the Bascaro court

Observed that both of those cases

involved the wiretap subject's change

in residence. 742 F.2d at 1347-48;

see Bagley, 397 So.2d at 1038; Wilson,

34% So.2d at 238-39. In such

circumstances, incorporation of an

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original application by reference does

not satisfy the requirement imposed by

federal and Florida statutes that the

application contain a complete

statement about why alternative

investigative procedures have _ been

unsuccessful, or would be futile or

too dangerous. 742 F.2d at 1347-48;

see Fla.Stat.Ann. § 934.09(1)(c) (West

197333 18 U.8.C. § 2518{(1l} ic}. <A mere

change in telephone number without

change in residence could not have

affected the efficacy of alternative

methods of investigation. 742 F.2d at

1348. Thus we conclude, as did the

Bascaro court, that the failure to

restate the information contained in

the initial application did not

violate Florida: law.

Domme, 753 F.2d at 955. According to

Dennis, this court in Domme and Bascaro

correctly recognized that, to satisfy the

requirements of 21 U.S.C. § 2518(1)(c), an

amended application seeking to continue

scoiansie authorized monitoring of a

person's telephone at another location must

include a new statement of the reasons why

other investigative procedures are unlikely

to succeed at the new location, and may not

incorporate by reference such information

from a previously prepared affidavit which

refers to the original location.

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Oe

(1, 2] Appellant urges a per se rule,

however, in a context in which one is

neither necessary nor desirable. The dicta

of Domme, to the extent it supports such a

rule, is simply too sweeping in its

condemnation of the practice of

incorporating prior affidavits, where

relevant, into wiretap applications. We

have previously observed that "the purpose

of the requirement in section 2518(1)(c) is

not to foreclose electronic surveillance

until every other imaginable method of

inv \stigation has been unsuccessfully

attempted, but simply to inform the issuing

judge of the difficulties involved in the

use of conventional techniques." United

States v. Pacheco, 489 F.2d 554, 565 (5th

Cir.1974), cert. denied, 421 U.S. 909, 95

S.Ct. 1558, 43 L.Ed.2d 774 (1975).3 As its

- The Eleventh Circuit has adopted as

precedent all decisions of the former Fifth

Circuit rendered prior to October 1, 1981.

Bonner v. City of Prichard, 661 F.2d 1206,

1209 (llth Cir.1981) (en banc). All Fifth

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legislative history indicates, the statute

contemplates that "the showing be tested in

a practical and commonsense’ fashion."

S.Rep. No. 1097, 90th Cong., 2d Sess., 1968

U.S. Code Cong. & Admin.News pp. 2112,

2190, quoted in United States v. Alfonso,

552 F.2d 605, 611 (5th Cir.), cert. denied,

Seen. Ons S98 6.Ct.- 179, 54 L.5a.24 i2s

(1977). It will indeed often be the case

that the information contained in an

earlier affidavit that has been

incorporated by reference into a_ second

wiretap application will not suffice to

inform the issuing judge of the

difficulties involved in the use of

alternative investigative techniques at the

new location. It is the nature of the

information that is provided, however, and

not the means by which it is incorporated

into the application, which determines

whether the information constitutes "a full

3 (cont.) Circuit decisions cited in this

opinion are binding upon this panel.

sti

and complete statement as to whether or not

other investigative procedures have been

tried and failed or why they reasonably

appear to be unlikely to succeed if tried

or to be too dangerous." an @.8.C. §

2518(1)(c) (1982). The fact that some or

all of the information has been

incorporated by reference is alone

irrelevant. Further, the information

provided in the second application may

satisfy the substantive requirement of

section 2518(1)(c) without providing any

additional explanation, applicable

exclusively to the new ee ee reasons

why alternative investigative procedures

are not likely to succeed there, since

information that adequately informs’ the

issuing judge of the limitations of

alternatives to electronic surveillance in

a given case may well apply to

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communications facilities at more than one

location.4

[3] In this case, Special Agent

Erich's initial affidavit, which was

incorporated by reference into the

application at issue here, included the

following information:

Need for Interception

The information developed thus

far in this investigation has come

from confidential sources, physical

surveillances and court authorized pen

registers. These investigative

techniques have to date not succeeded

in providing sufficient evidence to

sustain successful prosecution of all

of the principals in this matter, nor

have they disclosed the identities of

4 Such an approach is consistent with that

taken in Bascaro and Domme, despite some

unnecessarily broad language in the latter

to the contrary. Both cases’ rejected

excessively formalistic approaches in

situations in which the change in circum-

stances that necessitated the amended

applications could not have affected the

efficacy of alternative methods of investi-

gation. In this case, too, we decline to

find section 2518(1)(c) to require a mere

change in the form in which the necessary

information is provided to the issuing

judge, as long as the information that is

provided is sufficient to serve the pur-

poses of the statutory provision.

all persons involved, or the source of

controlled substances. These

investigative techniques have not been

successful in providing sufficient

information of evidentiary value

concerning transfer of narcotics,

obtaining money for narcotics

operations or the content of

conversations. between the principals

concerning their criminal activities.

It does not appear that the continued

use of these normal investigative

techniques is likely to be sufficient-

ly successful in the future for the

following reasons:

Confidential sources mentioned

herein all have stated they will not

testify about the information they

have provided for fear of their

personal safety, as well as personal

recriminations that would be

forthcoming if it were known that they

have provided this information. In

addition, all confidential informants

have been contacted and refused to

engage in the consensual m-nitoring of

their conversations with individuals

in this investigation. Special Agent

Dennis P. Erich and other Special

Agents of the Federal Bureau of

Investigation, Bureau of Alcohol,

Tobacco and Firearms and duly sworn

law enforcement officers of the State

of Florida, have instituted numerous

surveillances in the past six months

in an attempt to determine the extent

of the narcotics distribution

Operation. The principals in this

matter are extremely cognizant of law

enforcement physical surveillance [as]

evidenced by their routine utilization

of a wide variety of vehicles in their

contacts with their associates.

Through recent physical surveillance

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and Department of Motor Vehicle

inquiries, it has been determined that

Bobby Roy Dennis has registered to him

seven motor vehicles and has access to

and uses numerous others. It has been

determined also through physical

surveillances that Bobby Roy Dennis

changes vehicles regularly in the

course of his contacts with his

associates and frequently rotates the

license plates on the various vehicles

at his disposal. In addition,

physical surveillances and pen

registers utilized in this

investigation show that the activities

of Bobby Roy Dennis and his associates

in furtherance of their operation have

no set pattern. These individuals are

active at varying times, day and

night, seven days a week, and their

activities typically involve evasive

use of vehicles.

It is felt that the use of a

Grand Jury to subpoena Bobby Roy

Dennis and others, the interviewing of

these individuals and the subpoenaing

of the telephone records of these

individuals would not be productive in

this investigation and would be

unfavorable due to the fact that such

questions will alert the subjects of

this investigation and cause a change

in the method of their operations.

Search warrants were conducted on

two occasions, March 7, 1980, and

March 21, i980, at a bar owned by

Bobby Roy Dennis and even though a

quantity of heroin and cocaine was

recovered, this evidence failed to

reveal the full extent of this

operation and offer sufficient

evidence to indict the principals in

this matter.

«Qa

Branson O. Arflin, Sr., has been

the target of criminal investigations

by various law enforcement agencies in

the Jacksonville area. The

Jacksonville Office of the Federal

Bureau of Investigation has attempted

on two occasions in the past five

years to infiltrate alleged criminal

activities on the part of Arflin and

his associates with unsuccessful

results. The Jacksonville Sheriff's

Office has assisted in these efforts

in addition to their own numerous

investigations of Arflin and his

associates. Information regarding

Arflin financially backing various

narcotics operations in the

Jacksonville area has been known to

the Drug Enforcement Administration at

Jacksonville, but their efforts to

infiltrate these operations have been

unsuccessful. Arflin and his

associates have been the subject of

several investigations by the Alcohol,

Tobacco and Firearms Office at

Jacksonville for alleged violations of

Federal Firearms Statutes. No major

investigations have been successful to

date by Alcohol, Tobacco and Firearms

regarding Arflin or his associates.

This interception is necessary in

Order to identify other individuals

who are involved with Bobby Roy

Dennis, Sr., Branson O. Arflin, Sr.,

also known as Bill Arflin, Ernest

Gibson, Jr., Tammy Almon, Willie Lee

Bartley, Anthony Jerome Stinson, James

Alfred Clark, Steve Almon, Daryl

Lamont McClenton, Joseph Hill, Bobby

Roy Dennis, Jr., Lamar Solomon and

Eddie Lee Grant, Jr., and others yet

unknown who are involved in the above

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enumerated offenses, and attempt to

show the full scope of their operation

and develop additional evidence

necessary for the successful

prosecution of the principals and

conspirators.

Based on personal knowledge of

the facts of this investigation,

information furnished by other Special

Agents of the Federal Bureau of

Investigation, Bureau of Alcohol,

Tobacco and Firearms and duly sworn

law enforcement officers of the State

of Florida, and the manner in which

the violations enumerated herein are

carried out, the interception of wire

communications, combined with cautious

and discreet physical surveillances,

appears to be the only available

investigative technique which has a

reasonable likelihood of securing the

evidence necessary to fully identify

the greatest number of persons

involved in committing the

above-enumerated offenses with the

persons listed above, to fully show

the scope of the conspiracy and

criminal offenses listed, and to

obtain sufficient evidence to prove

the elements of those offenses listed.

Special Agent Erich's affidavit, as

incorporated into the July 28 application

at issue in this case, easily constitutes

"a full and complete statement as_ to

whether or not other investigative

procedures have been tried and failed or

o2is

why they reasonably appear to be unlikely

to succeed if tried or to be _ too

dangerous." 21 U.S.C. § 2518(1)(c) (1982).

Appellant Dennis has suggested no plausible

factual basis for a finding that this

affidavit, initially prepared to accompany

the July 16 application to monitor Dennis'

home telephone and Phelps' telephone at her

previous address, is not also sufficient to

advise the issuing judge of the limitations

of investigative alternatives to electronic

Surveillance at the new address. Although

the affidavit does not refer to the new

address, we find the information that is

contained therein and thus incorporated by

reference into the July 28 application to

be sufficient to satisfy the substantive

requirement’. of section 2518(1) (c), as

applicable to the government's July 28

request.

If the need for electronic

surveillance to satisfy the investigation's

objectives had initially arisen as a result

a2 2a

of characteristics of the place where the

communication facility was then located, we

would obviously have a very different case.

In this case, however, it was the nature of

the suspected activity being investigated

as well as the information about that

activity that was being sought that

substantiated the wiretap applicant's claim

that electronic surveillance was necessary.

The information provided in the initial

affidavit thus applied as fully to the new

address as it did to the old one, and the

government in the July 28 application was

not required to provide any additional

information in order to comply with the

federal wiretap statute.

Il. THE SPECIAL VERDICT ISSUE

The jury found Hurley, Cohen = and

Jennings guilty of the offense charged in

Count One of the indictment, which alleged

that over a five year period they, along

with others, "did knowingly, willfully and

intentionally combine, conspire,

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confederate, and agree together ... to

knowingly, willfully and intentionally

distribute and possess with intent to

distribute quantities of controlled

substances, including heroin, cocaine,

marijuana, and talwin, in violation of

Title 21, United States Code, Section

84l1(a) (1); all in violation of Title 2l,

United States Code, Section 846."5 Hurley,

joined by Dennis, had requested that the

jury be asked to réturn a special verdict

on this count of the indictment, specifying

which of the object drugs were found by the

jury to have been objects of the

distribution conspiracy in the event a

5 The jury also found Dennis guilty of the

offense charged in Count One of the

indictment. The trial court vacated

Dennis’ conviction on Count One, however,

in light of his conviction of the

continuing criminal enterprise count. See

Jeffers v. United States, 432 U.S. 137, 97

S.Ct. 2207, 53 L.Ed.2d 168 (1977).

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Pere ereeeeeeeers.

guilty verdict was returned on Count One.6

Hurley's request was opposed by the

government and was denied.7 The maximum

term of imprisonment that could be imposed

on a first-time drug offender for a

conspiracy that occurred when the

6 Jennings and Cohen did not join in this

request. The government has not argued

that the request made by Hurley and Dennis

was insufficient to preserve the issue

insofar as their sentences are concerned,

so we need not consider that question at

this time.

7 In particular, counsel for the

government argued as follows:

I oppose [the request for a special

verdict. ] I don't think the law

requires it. I think the conspiracy

law does not require them to find that

they knew what every other arm of the

conspiracy was doing. They can be

guilty of the conspiracy if they aided

and abetted the conspiracy, if they

were a member for a short period of

time for the conspiracy. It doesn't

require them to have knowledge of what

Bobby Dennis was doing with David

Weinstein, it doesn't have - require

Brenda Hurley to have knowledge of

what was happening out on Second and

Market when she wasn't there. I would

oppose that. I think the general

verdict form is sufficient.

=25-

conspiracy proved in this case occurred and

whose object was possession with the intent

to distribute less than 1,000 pounds of

marijuana is five years, while up _ to

fifteen years may be imposed for a similar

conspiracy involving heroin or cocaine.

See 21 U.S.C. § 846 (1982). Compare 21

U.S.C. § 841(b) (1) (A) (1982) with 21 U.S.C.

§ 841(b)(1)(B) (1982).8 The trial court

sentenced Jennings, Cohen and Hurley to

terms of seven, ten and four years,

respectively as a result of their

convictions on Count One. Noting that

United States Parole Commission guidelines

would suggest that she spend more time in

prison for joining a heroin or cocaine

distribution conspiracy than for joining a

8 These penalty provisions were amended by

Pub.L. 98-473, Title II, §§ 502, 503(b) (1),

fa), Oct. 12, 3904, 38 Seat.. 2666,- 2063,

but the distinctions between permissible

penalties for different drug distribution

conspiracies remain as significant as they

were under prior law. See generally, 21

U.S.C.A. § 841 (West 1985 supp.).

conspiracy to distribute marijuana, Hurley

moved at sentencing to strike any

references to heroin and cocaine from the

presentence investigation report's

description of the conspiracy conviction.

That motion was denied. Appellants argue

that, in the absence of a special verdict

indicating which of the four object drugs

listed in Count One of the indictment were

found to have been objects of the

conspiracy of which each was convicted, the

court could not know whether the jury had

found the defendants guilty of

participation in a conspiracy whose objects

included the distribution of heroin or

cocaine, as the sentencing judge assumed,

or whether the jury instead intended to

convict the defendants of a conspiracy to

distribute only marijuana. As a result,

appellants argue, the court erred in

denying Hurley's motion to strike from the

PSI the language indicating that she had

been convicted of participating in a

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cocaine or heroin conspiracy, and in

imposing upon Jennings and Cohen prison

sentences in excess of five years on Count

One.9

{[4, 5] We find appellants' claim to

be without merit.10 Where a section 846

conspiracy count charges the defendants

with conspiring to distribute two or more

drugs for which Congress has prescribed

different ranges within which the sentence

imposed may fall, the trial judge should,

9 The government argues that since Hurley

was not sentenced to a lengthier term of

imprisonment than she could have been

sentenced to under the conviction as _ she

construes it, any error in failing to

obtain a special verdict or credit her

construction of -the verdict that was

obtained was harmless insofar as she is

concerned. Since we find no error, we need

not address this argument.

10 In United States v. Harrell, 737 F.2d

971 (llth Cir.1984), a criminal defendant

made an argument similar in many respects

to the argument made by appellants in this

case. Because no contemporaneous objection

to the general form of the verdict had been

made in that case, however, we did not

resolve the substantive issue thus raised.

Id. at 982.

=o 28-

by use of a special interrogatory or

otherwise, require the jury to return a

verdict on the conspiracy count that will

indicate clearly on its face which of the

charged drugs the defendants were found by

the jury to have conspired to distribute.

In the absence of such a verdict, it may

well be impossible in many cases for the

sentencing judge to determine which drugs

the jury found to have been involved. In

this case, however, the trial court's

failure to grant the request for a special

verdict did not result in reversible error.

Appellants may not prevail on their

claim simply by showing that they were

convicted under conspiracy instructions

which, on their face, might permit the jury

to return a guilty verdict if the

conspiracy found did not involve heroin or

cocaine. It must also appear that the

evidence would support such a construction

—.

of the verdict actually obtained.11 In the

absence of the latter, there can be no

genuine ambiguity in the jury's verdict, as

il Those defendants who wish to maintain

both that the jury's verdict is ambiguous

regarding the drugs that were found to have

been involved and that the evidence is

insufficient to support a conviction under

either reading of the verdict obtained may

find it difficult to argue both positions,

if they feel obligated to demonstrate both

the existence of ambiguity in the jury

instructions and an evidentiary bases for

the more lenient construction they urge on

the ambiguity in the verdict claim. We are

confident, however, that the government's

counter-argument on the sufficiency of the

evidence claim will in most cases suffice

to apprise the reviewing court of the

strength of the evidence supporting the

construction of the verdict that is more

favorable to the defendant, as the

government will have to concern itself with

the possibility that the court will agree

with the defendant that the evidence does

not support a conviction under the

construction that would authorize the

stricter sentence. In that event, the

government would presumably wish to be

certain that it had provided the reviewing

court with a basis for sustaining the

conviction under the alternative

construction that is not as favorable to

the government as the one it might prefer,

but is better than no conviction on the

count at all. The government would thus

make the evidentiary showing that’ the

defendant should make in the absence of the

sufficiency of the evidence claim. By

prudent preventive lawyering, the

-30-

| . | 7 g | 4 3 a

ae a oo eee

any purported ambiguity would only have

been created by a reading of the verdict

that was not supported by the evidence in

the case.12 In this case, we accept

appellants' argument that the instructions

to the jury on the conspiracy count could

be read to allow the jury to convict

appellants of the conspiracy charged in

Count One of the indictment even if that

conspiracy were not found by the jury to

have been a conspiracy to distribute

cocaine or heroin.13 When the jury's

il (cont. ) government may avoid = any

inconvenience it might be put to in defend-

ing both insufficiency of the evidence and

ambiguity in the verdict claims at once by

joining rather than opposing the request

for a special verdict that the defendant

“will have to have made in order to place

the government in this awkward defensive

posture.

aa In other words, under such

Circumstances, the only ambiguity would

appear in the instructions to the jury,

read in isolation from the case. That does

not, in every case, yield an ambiguous

verdict.

13 The court charged the jury on the

conspiracy count of the indictment as

follows:

atin

_ OO

verdict is examined in light of the

evidence presented at trial, however, there

can be no question that the single

conspiracy of which all the defendants were

convicted was not a conspiracy to

distribute only drugs for which no more

than five years in prison may be imposed.

13 (cont.)

Count one of the indictment

charges that from in or about early

1979 through in or about June of 1984,

at Jacksonville, in the Middle

District of Florida, that each of the

defendants combined, conspired,

confederated and agreed together and

with other persons to distribute and

possess with intent to distribute,

quantities of controlled substances,

including heroin, cocaine, marijuana

and Talwin. in violation of Title 21,

United Stétes Code, section 841 (a) (1)

and 846.

Title 21, United States Code,

Section 841 (a) (1) cited in this

indictment provides in pertinent part

as follows: "It shall be unlawful for

any person knowingly or intentionally

to possess with intent to distribute a

controlled substance."

Heroin, cocaine, marijuana and

Talwin are controlled substances

within the meaning of the law.

In order to establish the offense

proscribed by this statute, the

Government must prove each of the

following elements beyond a reasonable

=

Rather, the evidence is overwhelming that

the massive conspiracy charged and proved

in this case included among its objectives

the distribution of heroin and cocaine.

13 (cont.)

doubt: First, that the defendant

knowingly and willfully possessed

heroin, cocaine, marijuana or Talwin

as charged.

And, second, that he possessed

the substance with the intent to

distribute it.

To possess with intent to

distribute simply means to possess

with intent to deliver or transfer

possession of a controlled substance

to another person with or without any

financial interest in the transaction.

Now, section 846 of Title 21

provides in pertinent part as follows:

"Any person who conspires to

distribute and possess with intent to

distribute a controlled substance,

shall be guilty of an offense against

the United States." So under this law

a conspiracy is a combination or

agreement of two or more persons to

join together to attempt to accomplish

some unlawful purpose. It is a kind

of partnership in criminal purposes in

which each member becomes the agent of

each - every other member. The gist

or essence of the offense is a

combination or mutual agreement by two

or more persons to disobey or

disregard the law.

The evidence in the case need not

show that the alleged members of the

conspiracy entered into any express or

=33-

Appellants have identified no evidence that

the conspiracy was limited in its

objectives to the distribution of drugs for

which only five years imprisonment may be

imposed. Further, appellants Jennings,

13 (cont.)

formal agreement or that they directly

stated between themselves the details

of the scheme and its object or

purpose or the precise means by which

the object or purpose was to be

accomplished. Similarly, the evidence

in the case need not establish that

all of the means or methods set forth

in the indictment were in fact agreed

upon to carry out the alleged conspir-

acy. What the evidence in the case

must show beyond a reasonable doubt

is, one, that two or more persons in

some way Or manner positively or

tacitly came to a mutual understanding

to try to accomplish a common and

unlawful plan as charge@ in the

indictment. And two, that the parti-

cular defendant with whom you are then

- whom you are then considering,

willfully became a member of such

conspiracy.

One may become a member of a

conspiracy without full knowledge of

all the details of the unlawful scheme

or the names and identities of all of

the other alleged conspirators. So if

a defendant, with an understanding of

the unlawful character of a plan,

knowingly and willfully joins in an

unlawful scheme on one occasion, that

is sufficient to convict him for

BEEEREERERREEE

-34-

SS

Hurley and Cohen were each convicted of

substantive offenses involving heroin and

13 (cont.)

a conspiracy even though he _ had not

participated at earlier stages in the

scheme and even though he played only

a minor part in the conspiracy.

Of course, mere presence at the

scene of an alleged transaction or

event or mere similarity of conduct

among various persons and the fact

that they may have associated with

each other and may have assembled

together to discuss common aims and

interests does not necessarily estab-

lish proof of the existence of a

conspiracy.

Also, a person who has no

knowledge of a conspiracy but who

happens to act in a way which advances

some object or purpose of the

conspiracy, does not thereby become a

conspirator.

You are further instructed, with

regard to the alleged conspiracy

offense, that proof of several

separate conspiracies is not proof of

the single overall conspiracy charged

in the indictment unless one of the

several conspiracies which is proved

is the single conspiracy which the

indictment charges. What you must do

is determine whether the single

conspiracy charged in the indictment

existed between two or more

conspirators. If you find that no

such conspiracy existed, then you must

acquit the defendants as to that

charge. However, if you are satisfied

that such a conspiracy existed, you

must then determine who were the

=35—

cocaine which appear clearly from the

evidence to have occurred pursuant to the

distribution conspiracy charged in Count

One.14 Taking into consideration the whole

13 (cont.)

‘a members of that conspiracy. If you

find that a particular defendant is a

member of another conspiracy, not the

one charged in the indictment, then

you must acquit that defendant. In

other words, to find a defendant

guilty, you must find that he was a

member of the conspiracy charged in

the indictment and not some other

separate conspiracy.

14 Hurley and Cohen were found guilty of

possession with intent to distribute

heroin, cocaine and marijuana, as charged

in Count Ten of the indictment. Hurley and

Jennings were also found guilty of two

counts each of possession with intent to

distribute heroin and _ cocaine. Those

offenses were all alleged in the indictment

to have occurred within the period of time

the conspiracy was alleged to have existed.

Although Cohen was not found guilty of a

substantive offense involving only heroin

and cocaine it is clear that the jury by

its verdict on Count Ten convicted her of

possessing heroin and cocaine with the

intent to distribute the drugs, as the only

evidence introduced at trial regarding

Cohen concerned her purchases of heroin and

cocaine from other members of the

distribution conspiracy for the purpose of

reselling it.

-36-

of the evidence presented at trial as well

as the unchallenged verdicts the jury

reached on the substantive counts, we find

it clear beyond a reasonable doubt that, as

the district court concluded, the jury by

its verdict found appellants to have joined

a conspiracy to distribute heroin and

cocaine. We therefore reject appellants’

claim that the court erred in sentencing

the defendants as it did on the conspiracy

count and in denying appellant Hurley's

motion to strike certain material from her

PSI.

The government opposed the defense

request for a special verdict, see supra

note 7, and has argued on this appeal that

such a procedure would have been inappro-

priate. Although special verdicts have,

for good reason, long been disfavored

generally in the criminal law, see

generally United States v. Spock, 416 F.2d

165, 180-83 (iat Caizvs9S3) ; they have

commonly been approved where necessary to

= bre

determine the punishment that should be

imposed. See e.g., Jalbert v. United

States, 375 F.2d 125, 126 (5th Cir.), cert.

denied, 389 U.S. 899, 88 S.Ct. 225, 19

L.Ed.2d 221 (1967). See generally 3 C.

Wright, Federal Practice and Procedure §

512 (2d ed. 1982). Moreover, opposing such

a motion in a case charging a drug

distribution conspiracy in language similar

to the terms of the indictment and jury

charge in this case appears to serve little

useful purpose while risking a great deal.

In this case, we are able to conclude

beyond a reasonable doubt that the jury

intended to convict the defendants of a

heroin/cocaine distrfbution conspiracy on

the basis of the overwhelming strength of

the evidence in support of that

construction, to the exclusion of the

construction urged by appellants, and the

verdicts returned on the related

substantive counts charged in the

indictment. But we are confident that it

-~38-

see terre eeree EE

LQ CCCCOCOCDDDCCD™™~™~™~™~™~™~™~— SS

will be a rare case indeed in which

instructions like those given in this case

will not result in an ambiguous verdict if

evidence relating to both marijuana and

heroin or cocaine is introduced and the

jury is not asked to indicate expressly

which drugs it finds the defendants to have

conspired to distribute. This is because

the reviewing court in such a situation may

not examine the evidence presented at trial

to determine whether the jury, if iia hy

instructed, could have or even should have

found a heroin/cocaine conspiracy and

returned a verdict indicating as_ much;

rather, the court's inquiry is confined to

determining beyond any reasonable doubt

whether. the jury did find such a conspiracy

and whether it intended the verdict it

returned to reflect that determination.

Only in that manner may we avoid invading

the special province of the jury in a

criminal case both to find the facts and

apply the law as it sees fit. Thus the

=39-

prosecution's interest in obtaining a jury

verdict that will be construed to reflect a

finding of a heroin/cocaine conspiracy in

any case in which one has been proved can

only be frustrated where the government

Opposes a defense request for a _ special

verdict in a case involving a conspiracy

charge similar to the one at issue here.

Iii. TESTIMONY OF THE GRAND JURY FOREMAN

[6] Appellants Jennings and Cohen

argue that the trial court erred in

allowing the foreman of the grand jury that

indicted the defendants to testify before

the jury regarding the materiality of

statements they made before the grand jury

that were later alleged in the false

declaration counts of the indictment to

have been false. To prove the offenses

charged in the false declaration counts of

the indictment, the government had to prove

that the allegedly false statements made to

the grand jury were "material." 18 U.S.C.

-40-

see eer ee ee eee Ee

§ 1623(a) (1982).15 The materiality of the

allegedly false declaration is a legal

question to be decided by the court rather

than an issue of fact for the jury. See

United States v. Damato, 554 F.2d 1371,

1373 (5th Cir.1977). As a result, evidence

bearing solely on - materiality should

generally be received outside the presence

of the jury. See Harrell v. United States,

220 F.2d 516, 520 (5th Cir.19§5) .

Appellants argue that the trial court thus

committed reversible error in allowing the

grand juror to testify as he did concerning

materiality before the jury. The

government responds that the challenged

testimony was relevant to other issues

15 The test of maveriality is "whether the

false testimony was capable of influencing

the tribunal on the issue before it."

Blackmon v. United States, 108 F.2d 572,

573 (5th Cir.1940). See also United States

vw, Damato, $54 F.2@ is7i, 1372 (5th

Cir.1977); Barnes v. United States, 378

F.2d 646, 649-50 (Leh Cir.1967), cert.

Ganiad, -390: U.8,.¢ 972,: 28: 6.Ce. is656, a9

L.Ed.2d 1184 (1968).

whi<

properly considered by the jury in this

case, and that its admission in the

presence of the jury was therefore not

error. See United States v. Nixon, 634

F.2d 306, 311 (5th Cir.), cert. denied, 454

U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103

(1981).

[7, 8] In this case, however, we need

not decide whether the trial court erred in

allowing the challenged testimony to be

given in the presence of the jury, as no

defendant objected to the testimony at

trial on the grounds they now urge on

appeal. The only objections made to the

testimony at issue here were on hearsay and

relevance’ grounds. The trial court's

rejection of those bases for the

defendants' objections to the grand juror's

testimony is not challenged on this appeal.

To preserve an issue at trial for later

consideration by an appellate court, one

must raise an objection that is sufficient

to apprise the trial court and the opposing

~ >

party of the particular grounds upon which

appellate relief will later be sought. A

general objection or an objection on other

grounds will not suffice. See United

States v. Haynes, 573 F.2d 236, 241 (5th

Cir.), cert. denied, 439 U.S. 850, 99 S.Ct.

154, 58 L.Ed.2a 153 (1978); United States

Vv. Hicks, 524 F.2d i001, 1004 (5th

Cir.1975), cert. denied, 425 U.S. 953, 96

S.ce.' 1923, 48 &.8d.2¢ 197 (1976). Since

the defendants did not object to the grand

jury's testimony on the grounds they now

urge on appeal, we are limited in our

review to reversal on those grounds for

plain error. See Fed.R.Crim.P. 52(b).

Finding no such error in the admission of

the testimony that is challenged on this

appeal, we reject appellants' claim for

reversal on the grounds set forth above.

IV. THE ADEQUACY OF VOIR DIRE

On the first day of trial, the trial

court conducted a lengthy voir’ dire

examination of the panel of prospective

pr Ye

jurors. A principal area of inquiry at

voir dire was the extent to which potential

jurors had been exposed to and affected by

possibly prejudicial pre-trial publicity

concerning the case. The court also

inquired of the panel whether any of them

felt that they might not be able to afford

the defendants a fair trial as a result of

their opinions about illicit drugs. In

response to the court's inquiries, five

jurors indicated that they might not be

able to render an unbiased decision and

were later excused by the court ' from

service. The relevant portion of the voir

dire examination is detailed in the trial

transcript as follows:

Is there anyone else who has any

knowledge about this case from any

source whatsoever? If it should

develop, if you are selected as a

juror, and after you hear some of the

evidence in the case, that maybe you

might read something about it and just

right now don't recall having read

about it, but after having heard some

of the evidence maybe it might trigger

something in your memory as to

something you might have read or seen

on television or heard on the radio

wiltiin

for that matter; ‘is there anyone here

who could not place that outside of

their minds and determine this case

solely on the basis of evidence which

will be presented in this courtroom

and the law which I will instruct you

to follow at the close of the case?

Is there anyone who feels that he

could not do that? And if so, please

raise yqur hand. Yes, ma'am.

JUROR: I'm Mrs. Wyckoff. I

don't believe I could be impartial in

this trial. My oldest child was

murdered in a drug killing. I don't

really believe I could be impartial.

THE COURT: Miss Wyckoff, the

incident about which you speak has

nothing to do with any of the

defendants in this case?

JUROR: No sir, I'm just <- it’s

my personal feeling. ;

THE COURT: Now - all right, Miss

Wyckoff, you may be seated and thank

you very much.

Ladies and gentiemen - I

appreciate your telling the Court

that, Mrs. Wyckoff. .

Ladies and gentlemen, this case

involves allegations of conspiracy to

possess with intent to distribute

various drugs. Does any one of you

have any opinions with regard to drugs

which makes you feel that you could

not give these defendants and the

Government a fair and impartial trial?

All right, let's start right in

the front row, please.

«Sn

JUROR: I don't know if I would

be fair -

THE COURT: Stand up, please and

tell us your name so we can all hear

you.

JUROR: I've work[ed] on _ the

railroad as a hostess some years and

years back and I've seen what drugs

does -

THE COURT: Wait a second, wait a

second.

JUROR: Okay. I don't know, I've

seen what drugs do to people. I don't

know whether I would be biased or not.

I might be and I might not be. But I

am very much against it, so this is

the way I feel about drugs.

THE COURT: What is your name,

please?

JUROR: Margaret Bell.

THE COURT: All right, Miss Bell.

All right, on the front row,

anyone else?

On the second row to my right,

anyone else?

On the third row, anyone else?

All right on the fourth row?

JUROR: Marjorie Rigdon.

THE COURT: Yes, ma'am?

JUROR: I'm not really sure that

I could be unbiasead or = anything

—-46-

Se rrverrrgr eee ee es

because of my oldest daughter taking

drugs.

THE COURT: All right, Miss

Rigdon, thank you very much. Have a

seat.

Anyone else? Yes, Sir.

JUROR: Noah S. Simmons. Due to

experience that I would care not to

discuss right now, I think I would

probably find difficulty in being

unbiased in a decision where drugs

were involved.

THE COURT: All right. Thank

you, Mr. Simmons. I appreciate your

candor.

Yes, sir.

JUROR: My name is Erich Gussow

and I could not render a fair decision

for the simple reason my son died

three years ago of an overdose and I

have some very strong feelings about

7...

THE COURT: All right. Thank

you, Mr. Gussow.

Appellants moved to strike the entire

panel due to the assertedly prejudicial

effect on the panel of the statements made

by the five panel members who indicated

their concerns about possible bias and were

later excused. Alternatively, the

defendants requested that the remaining

«4 }<

panel members be further examined to

determine the prejudicial effect of the

statements that were made. That motion was

denied, and the court conducted no further

inquiry directed specifically at learning

the extent of any bias that may have

resulted from the panel's exposure to the

responses of the five excused jurors.

Instead, the court continued its voir dire

examination by explaining to the potential

jurors that the defendants were presumed

innocent until proven guilty and that the

presumption of innocence is a guiding

principle in the administration of criminal

justice. The panel members were asked

whether any one of them "could not give

these defendants the presumption of

innocence and not vote for a guilty verdict

unless the Government proved guilt beyond a

reasonable doubt." No juror indicated any

doubt about his or her ability to respect

the presumption of innocence. The court

further asked numerous other questions

~4@<

=e eoeneneaeeeseeeagege S

directed at uncovering any basis’ for

doubting the willingness or ability of any

member of the panel to decide the case in

accordance with the instruction on the law

that would be given by the court. No juror

revealed any basis for suspecting bias that

was not immediately followed up with

specific questions directed at determining

the nature and extent of any possible bias.

(9, 10) Appellants argue that the

trial court's decision not to examine the

panel members individually to determine the

extent of any prejudice resulting from the

statements made by the five excused jurors

was an abuse of discretion.16 Where

16 Rule 24(a) of the Federal Rules of

Criminal Procedure commits the conduct of

voir dire to the sound discretion of the

trial court, subject to the essential

demands of fairness. See generally United

States v. Delval, 600 F.2d 1098, 1102 (5th

Cir.1979). This discretion extends to the

court's decision whether to ask particular

questions of potential jurors as well as

its decision whether to examine the panel

members individually or as a group. See

United States v. Holman, 680 F.2d 1340,

1347-48 (llth Cir.1982).

wi Qu

statements made by potential jurors at voir

dire raises the spectre of "potential

actual prejudice" on the part of the

remaining panel members, "specific and

direct questioning is necessary to ferret

out those jurors who would not be

impartial." United States v. Corey, 625

F.2d 704, 707 (5th Cir.1980), cert. denied,

450 U.S. 925, 101: 8.Ct. 1377; 67 &.Ba:90

23%. (39861). See also United States v.

Nell, 526 P.2¢ Laas, 1229-30 (5th

Cir.1976). Where "the procedure used for

testing impartiality created a reasonable

assurance that prejudice would be

discovered if present," however, not abuse

of discretion may be found. United States

Vv. Holman, 680 F.2d 1340, 1344 (llth

Cir.1982) (quoting United States v. Nell,

2460 F.2d at 1229).

[11] In United States v. Tegzes, 715

F.2d 505 (llth Cir.1983), we found this

standard satisfied in a case that presented

essentially the same issue we are faced

-50-

Se seerrrree eee eee

with here. In that case, one juror stated

during voir dire that "A very dear friend

of mine has not left his house in seven

years because of brain damage from drugs."

Id. at 506. Asa result of this statement

and other statements made by other jurors

concerning experiences with drugs, _ the

court inquired whether any panel member

held a belief or opinion regarding drug

offenses that would render it impossible

for him or her to serve as a fair and

impartial juror. One juror, who was

~ subsequently excused for cause, etaced that

because of his opinions and beliefs con-

cerning drugs he could not serve fairly and

impartially. Later, during the selection

of alternate jurors, a prospective alter-

nate said "I did see my youngest’ son,

through dope, OD before he was 18 years

old." Id. The defendant moved- for a

mistrial on the grounds that the prospec-

tive alternate's statement had tainted the

other jurors on the panel. The trial judge

Si»

dismissed the juror but denied the motion

for a mistrial. The court also refused a

request to question the jurors individually

or collectively to determine the impact the

excused alternate's remarks had on the

ability of the remaining jurors to be fair

and impartial. Id. We held that the court

did not err in its conduct of voir dire,

explaining our decision as follows:

Ms. Wade's remark does not raise

the spectre of potential prejudice in

other jurors that would require the

court to ask additional questions of

the panel. The statement did not

constitute an opinion concerning the

guilt or innocence of the defendants,

nor did it relate to knowledge about

- the facts, parties, or witnesses

involved in this case. The fact that

other jurors may now’ know. that

criminal conduct leads to tragic

results does not constitute "potential

actual prejudice" toward the accused.

Appellants' suggestion that mere

awareness of the adverse consequences

of crime induces bias toward the

defendant is highly speculative and

falls far short of the _ potential

actual prejudice which would mandate

additional voir dire.

Id. at 508. In this case, too, we find the

statements made by the five panel members

who were excused to have been insufficient

ate

SeEEEREERERERE REE EES

to require the court to conduct additional

voir dire of the remaining panel members.

At most, the statements served to heighten

the remaining jurors' awareness of some of

the possible consequences of drug use. We

are not convinced that they posed any

threat to the fairness and legality of the

defendant's trial.

Appellants also challenge the adequacy

of the trial court's inquiry into the

racial attitudes of the prospective jurors

at voir dire. All of the defendants in

this case are black, as were the majority

of the witnesses called by the government.

The defendants were charged with engaging

in a conspiracy: to distribute drugs in a

predominantly black community in

Jacksonville. The panel of prospective

jurors, like the jury chosen for the trial,

was predominantly white. Although

appellants submitted a number of questions

directed at revealing any effect that

racial prejudices were likely to have on

-53-

the jury's deliberations, the court asked

of the jury only the following:

Ladies and gentlemen, each of the

defendants in this case is a black

citizen. Would any of you fail to

give the defendants the same fair

trial that you would give anyone else, —

solely because of their race?

No juror responded, and voir dire proceeded

on to other areas of inquiry. Appellants

argue that the circumstances of this case

required the trial court judge to conduct a

more thorough investigation into the racial

attitudes of the prospective jurors.

ge ee Failure to honor a request

for voir dire into racial attitudes that is

more searching than that conducted in this

case will constitute reversible error "only

where the circumstances of the case

indicate that there is a reasonable

possibility that racial or ethnic prejudice

might have influenced the Jjary.”

Rosales-Lopez v. United States, 451 U.S.

182, 191, 101 S.Ct. 1629, 1636, 68 L.Ed.2d

22 (1981). Thus, where the government or

~ Sen

“BB EBESBeBeEReEREERESE SESE ESBS BE

—_—

the defendant is expected to place in issue

at trial matters involving allegations of

racial or ethnic prejudice, or where the

circumstances of the case reveal a violent

criminal act perpetrated against a victim

of a different racial or ethnic group, the

Supreme Court had indicated that general

inquiries like the inquiry made in this

case may not suffice. Id. at 191-92, 101

S.Ct. at 1635-36. The mere fact that the

jury is predominantly of one racial ethnic

group, while the defendants, most of the

witnesses and the alleged victims of the

offense are of another, however, is clearly

insufficient to require further voir dire.

Those are not circumstances that alone

create a "reasonable possibility" that

racial or ethnic prejudice will influence

the jury. We therefore find no reversible

error in the conduct of voir dire in this

case.

«$5—

|

V. ADMISSION OF PLEA AGREEMENTS

The first witness called by the

government was Johnny Bernard McClenton.

The terms of McClenton's Plea bargain

agreement with the government were

discussed without objection on direct

examination. On cross-examination, defense

counsel attacked McClenton's credibility,

making repeated and specific references to

the plea agreement. On re-direct, the

government introduced, over defense

counsel's objections, McClenton's written

plea agreement. Defense counsel objected

to the introduction of the exhibit on the

grounds that it was a self-serving document

prepared by the government in anticipation

of this litigation, and that it was

cumulative and repetitious. On the last

day of the prosecution's presentation of

its case in chief, Patricia Porter was

called to testify. The government moved to

introduce Porter's written plea agreement

during her direct examination. The exhibit

-56-

a“

wees ese eee eREE ESE EE

was admitted over defense counsel's

objection that it was self-serving. In his

closing argument, the prosecutor referred

to the McClenton plea agreement as follows:

{[McClenton's] looking at an

aggregate sentence of up to twenty

years. He could get less, but that's

going to be Judge Moore's job to

decide, and Johnny McClenton knows

that his plea agreement is in this

case and you can look at it. If he

fails to tell the truth, he has

everything to lose. That plea

agreement can be taken away from him.

The United States can say, Mr.

McClenton, you still have to plead

guilty to what you pled to and we can

charge you with all the things that

were dropped against you. He has

every reason in the world to tell the

truth and no reason in the world to

tell a lie.

According to appellant, the admission of

the written plea agreements into evidence,

in combination with this reference at

closing argument (to which no objection was

made at trial), impermissibly bolstered the

credibility of the witnesses who plea

\

agreements were introduced.17

PQs The government has , argued that the

objections to the admission of the plea

=$7<

In United States v. Sims, 719 F.2d

375, 377-78 (llth Cir.1983), cert. denied,

465 U.S. 1034, 104 S.ct. 1304, 79 L.Ed.2d

703 (1984), we considered and rejected a

Similar claim. We held that the government

had not improperly vouched for the veracity

of a testifying co-conspirator by

introducing the terms of the witness' plea

17 (cont.) agreements that were made by

the defendants at trial were insufficient

to apprise the trial court of the asserted

ground for excluding the documents that we

address in this part of our Opinion. The

government, argues, therefore, that the

improper vouching argument was not properly

preserved for appellate review. See United

States v. Haynes, 573 F.2d at 241; United

States v. Hicks, 524 F.2d at 1004. Having

examined the transcript, we are satisfied

that, under the circumstances, the trial

court was adequately informed of the

grounds for excluding the documents that we

consider here.

The government also argues that if the

documents should not have been admitted,

their admission nonetheless did not

prejudice the defendants at Srial;, as

testimony regarding the terms of the plea

bargain agreements had been admitted

without objection. Because we find the

admission of the plea bargain in agreement

to have been permissible, we need not

address this argument.

-58-

agreement and referring to the agreement at

closing argument. We suggested there,

however, that the prosecutor had _ been

"indiscreet" in stating in closing argument

that the witness "had to testify as to the

truth” because "he could still be

prosecuted for perjury." Id. at 378.

Appellants argue that while the

prosecutor's brief reference to the plea

agreement in his closing argument in Sims

did not render its admission reversible

error, the extended comments made by the

prosecutor in this case distinguish this

case from Sims and render the admission of

the written plea agreement’ reversible

error.

[14-16] The applicable law was well

stated in Sims:

"Attempts to bolster a witness by

vouching for his credibility are

normally improper and error." United

States v. Ellis, 547 F.2d 863, 869

(Stn “Saks 1977). The test for

improper vouching is whether the jury

could reasonably believe that’ the

prosecutor was indicating a personal

belief in the witness' credibility.

-59-

_

United States v. Roberts, 618 F.2d

930, 537 (9th Cir.1980) (citing Ellis,

supra). This test may be satisfied in

two ways. First, the prosecution may

place the prestige of the government

behind the witness, by making explicit

personal assurances of the witness’

veracity. See United States Vv.

Lamerson, 457 F.2d 371, 372 (Sth Cir.

1972); Gradsky v. United States, 373

F.2d 706, 709-10 (Sth Cir.1967).

Secondly, a prosecutor may implicitly

7 vouch for the witness' veracity by

indicating that information not

presented to the jury supports the

testimony. See United States Vv.

Brooklier, 685 F.2d 1208, 1218 (9th

Cir.1982) (explaining United States v.

Roberts, 618 F.2d 530 (9th Cir.1980).

Sims 719 F.2d at 377.

Appellant Dennis argues that the

"obvious implication" of the admission and

subsequent use of the plea agreements at

Closing argument was that “the Government

knew something the jury didn't, and could

eta tore guarantee that McClenton would

not lie." Appellant appears to reach this

conclusion on the basis of the provisions

in the plea agreement that required the

witnesses to testify truthfully in order to

gain all the benefits of the plea bargains

they had made. According to appellant,

-60-

2 o-Ooeeeeseeeeeseeaas s

such an agreement suggests to the jury that

the government had = some independent,

unstated means of verifying the truth of

the witness’ testimony so that the

government could determine whether the

terms of the agreement had been fulfilled.

As a result, appellant argues, the

agreements between the government and its

witnesses in this case had the same effect

as a personal assurance from the prosecutor

indicating that he had by some non-record

means ensured that the witness has

testified truthfully.

[17] The fact that the witness had

promised, as part of his plea bargain

agreement, to testify truthfully was

precisely what was held not to have been

erroneously admitted in Sims. Under Sims,

appellant's challenge, to the extent it is

directed at the plea agreements themselves,

-61-

must fail.18 With his remarks the

prosecutor in this case, as in Sims, added

nothing significant to what was already

clear from the face of the plea agreement.

We are not persuaded that the prosecutor's

comments in this case suggested that the

government had access to some means for

determining whether the witness was

testifying truthfully that was not

available to the jury. We thus adhere to

the principle, implicit in Sims, that where

the plea agreement is properly admitted,

accurate comment thereon by the prosecutor

18 As we have held in this case, the plea

agreements were not inadmissible on the

ground that they were introduced for an

improper purpose. It is also clear that,

the possibility of improper vouching aside,

the agreements were admissible for the

purpose for which they were introduced.

"Where, as here, the codefendant is a

witness at trial, subject to the rigors of

cross-examination, disclosure of the guilty

plea to blunt the impact of attacks on her

credibility serves a legitimate purpose and

is permissible." United States v. Melton,

739 F.2d 576, 579 (llth Cir.1984) (quoting

United States v. Veltre, 591 F.2d 347, 349

(5th Cir.1979).

-ee@eeeeegectensateaeseteseestss

in closing argument does not constitute

reversible error.

VI. PROPRIETY OF THE PROSECU-

TOR'S REBUTTAL ARGUMENT

[18] Appellant, Hurley claims that

the trial court erred in refusing to

declare a mistrial after the prosecutor, in

his rebuttal argument, responded to a

defense challenge to the character of a

government witness as follows:

[Counsel for Hurley] spent a lot of

time telling you how horrible a person

[the witness] is compared to Brenda

Hurley. Brenda Hurley is a person,

though, that accepted two hundred

dollars a month to let heroin and

cocaine stay in the bedroom of her

little girl.

Hurley characterizes this as an improper

government attack on her character, which

she had not placed in issue in the case.

Hurley argues that because the prosecutor's

improper argument prejudicially affected

her substantial right not to be attacked in

this manner, the trial court erred in

denying her timely motion for a mistrial.

See United States v. Zielie, 734 F.2d 1447,

~63-

OO C(:ti‘sNOCOCCtCti(N.Ut(####2é.é#ézézéaee.4dwuUwlUw.L.Leeeeeeeeeeeeeeeee

1460-61 (11th Cir.1984), cert. denied,

awe «¢ 105 6.Ct. 957, 82. 2.208. 28 266

(1985) .19

Although we do not necessarily approve

of the prosecutor's remark,. it does not

constitute grounds for reversal of Hurley's

conviction. The prosecutor's comment,

although cbviously intended to reflect on

the character of the defendant, was based

On properly admitted evidence that was

directly relevant to the determination of

whether Hurley committed the conspiracy

offense for which she was being tried.2

_

ao Hurley did not object to the

prosecutor's comments when they were made,

but moved for a mistrial on the grounds

urged here immediately after the jury had

left the courtroom to deliberate. The

government argues that Hurley's objection

to the prosecutor's argument, first

articulated in the motion for mistrial, was

not timely made. This argument is Clearly

without merit. See United States v. Dorr,

eae F.2d 117, 120 (Sth Cir.398h).

20 Although Hurley claims a lack of

evidentiary support for the prosecutor's

assertion, it was adequately Supported in

the record, as the inference that the trunk

kept in her daughter's room had \heroin and

cocaine in it could fairly be drawn from

the testimony given.

-6§4-

|

‘i

x

:

3

3

This is not a case in which the evidentiary

basis for the attack on the defendant's

character was improperly admitted or was

| not in evidence at all. The prosecutor was

fully entitled to argue the truth of the

comment he made, as it was a major

component of the government's case against

Hurley on the conspiracy count of the

indictment; his only error, if it was

error, was in suggesting that the evidence

reflected upon the defendant's character as

well. Under such circumstances, we cannot

find the prosecutor's remark, if it was

improper, to have prejudiced Hurley to a

degree sufficient to warrant reversal of

her conviction, particularly in light of

the considerable strength of the evidence

against her. See United States V.

1981), cert. denied, 457 U.S. 1136, 102

| Phillips, 664 F.2d 971, 1030-31 (5th Cir.

. S.Ct. 2965, 73 L.Ed.2d 1354 (1982).

-6§5-

VII. THE GOVERNMENT'S USE OF

ITS PEREMPTORY CHALLENGES

[19] The government used peremptory

challenges to strike three black males from

the jury panel. In each instance, defense

counsel requested that the trial court

inquire into the government's reasons for

striking the prospective jurors. Those

requests were denied. Two blacks’ were

eventually included on the jury that

convicted the defendants. Appellants

claim, however, that the record revealed no

legitimate basis for excluding the three

blacks who were removed from the jury

panel; indeed, according to appellants, the

panel members' responses at voir dire

indicated that they would be less inclined

than the average individual to exhibit any

particular sympathy toward criminal

defendants. Appellants argue that they

have thus established a prima facie case in

Support of their claim that blacks were

unconstitutionally excluded from the jury

-~6§6-

'_EaeEeesepBeeeeeaaEt ss

that convicted then, and that the

government should now be required to

provide an explanation for its use of

peremptory challenges that is sufficient to

rebut the presumption that the defendants'

sixth amendment right to a jury drawn from

a fair cross-section of the community has

been violated. aaa

Since the Supreme Court's decision in

Swain v. Alabama, 380 U.S. 202, 85 B.Ct:

824, 13 L.Ed.2d 759 (1965), we have adhered

to its requirement that one seeking to

cui a constitutional claim on the basis

of the government's use of peremptory

challenges demonstrate that the prosecutor

was responsible for removing blacks in

"case after case” in order to make out such

a claim. eet eee-es, 85 S.Ct. at

837-38. See Willis v. Zant, 720 F.2d 1212,

1219 (iith Cir. 1963), cert. denied

U.S. Jee. 2986, C2 L.Ed.2 849

(1984); United States v. Durham, 587 F.2d

799, 801 (5th Cir.1979); United States v.

-67-

Carlton, 456 F.2d 207, 208 (5th Cir. 1972).

As we have noted recently, however, see

Jordan v. Lippman, 763 F.2d 1265, 1283

(llth Cir. 1985), five Justices of the

Supreme Court have expressed some doubt

about the continuing vitality of Swain, see

McCray v. New York, 461 U.S. 961, 103 S.Ct.

2438, 77 L.Ed.2d 1322 (1983) (opinion of

Stevens, J., with whom Blackmun, J.,. and

Powell, J., join, respecting the denial of

the petition for writs of certiorari); Id.

at 963, 103 S.Ct. at 2439 (Marshall, J.,

with whom Brennan, J., joins, dissenting

from the denial of certiorari), and the

Second Circuit has limited Swain's analysis

to the equal protection context,

formulating a different test for

determining a Similar sixth amendment

challenge. See McCray v. Abrams, 750 F.2d

1113 (2d Cir. 1984). The Supreme Court has

recently granted certiorari in a case

presenting this’ issue. See Batson v.

Kentucky, cert. granted, U.S. ; seo

-6§8-

S.Ce., 2343, 89 80:20: 476 -42985). In

pressing this claim, appellants ask that we

adopt the analysis set forth by the Second

Circuit in McCray. In that case the court

concluded that:

[I]n order to establish a prima facie

violation of his right to the

possibility of a fair cross-section in

the petit jury, the defendant must

show that in his case, (1) the group

alleged to be excluded is a cognizable

group in the community, and (2) there

is a substantial likelihood that the

challenges leading to this exclusion

have been made on the basis of the

individual venirepersons' group

affiliations rather than because of

any indication of a possible inability

to decide the case on the basis of the

evidence presented.

McCray, 750 FY, 26° mt 23h, In the Second

Circuit, once the defendant has established

such a prima facie case, the burden shifts

to the prosecutor to rebut the presumption

of unconstitutional action by showing that

the result was produced by permissible

racially neutral selection criteria and

procedures. Id. at Li3i~se. The

government argues that we should not adopt

the analysis of McCray at that, even if we

-6§9-

did, appellants have not made out a prima

facie case in support of their

constitutional claim, as two blacks were

members of the jury that convicted them.21

Feenrre?

We do not find the comments made by

the members of the Supreme Court who wrote

concerning the denial of certiorari in

McCray v. New York, sufficient to undermine

the precedential authority of our prior

cases, in which we have adhered strictly to

Swain in the equal protection context and

refused to apply less rigorous standards to

Similar claims based on the sixth

amendment. See e.g., Willis v. Zant, 726

F.2d at 1219.22 A panel of this court may

2i The defendant in McCray was tried

before an all white jury. See McCray, 750

Fea at 1115.

22 The decision we reach is not

inconsistent with the decision in United

States v. Hawkins, 781 F.2d 1483, 1484-87

(llth Cir. 1986), which was published while

this opinion was being prepared. In that

case, too, the court Gia not decide

"whether or under what circumstances’ the

racially motivated use of peremptory

challenges would require reversal," at

-70-

not disregard binding prior circuit

authority in the absence of intervening

Supreme Court precedent that changes the

law. See, e.g., Wilson v. Taylor, 658 F.2d

1021, 1034 (5th Cir. Unit B 1981).23 Thus

even if we were persuaded by the arguments

that have been made in support of a

departure from the Swain analysis in this

context, we could not, consistently with

the law of this circuit, department from

our own prior precedent in this area.24

22 (cont. ) 1487, recognizing that the

Supreme Court has recently granted

certiorari in a case raising that issue.

23 This circuit has adopted as precedent

all decisions of Unit B of the former Fifth

Circuit. Stein v. Reynolds’ Securities,

Inc., 667 F.2d 33 (llth Cir. 1982).

24 It is clear that, even if we were not

bound by Swain and its progeny in this

context, appellant could not prevail on

their claim. The government utilized only

three of the six peremptory challenges it

was allowed during the selection of the

tw2lve jurors who decided the case, and one

of the two challenges to alternates that it

was allowed. The government exercised two

of the three challenges it exercised when

a9 La

VIII. REMAINING ISSUES

[20-24] The remainder of appellants'

claims are clearly without merit and do not

warrant extended discussion. The evidence

was more than sufficient to convict

appellant Dennis of engaging in a

continuing criminal enterprise, in

24 (cont.) selecting regular members of the

jury to strike potential jurors who were

black, and used the one challenge it chose

to exercise when selecting alternate jurors

to strike an alternate who was black, but

eventually accepted a jury that included

among its regular members two blacks. It

is thus obvious that the government did not

attempt to exclude all blacks, or as many

blacks as it could, from appellants' trial

jury. Moreover, the unchallenged presence

of two blacks on the jury tends to rebut

any presumption of racial discrimination

that might be argued to arise from the

prosecutor's use of three of the _ four

peremptory challenges’ he exercised to

remove blacks from the panel of potential

jurors and alternates. The fact that one

of three blacks who were challenged and the

mother of another had been victimized by

burglars in the past in no way suggests

that the prosecutor's challenges to those

jurors were based on their race. We thus

conclude that, although we cannot know with

absolute certainty whether the prosecutor

was influenced in his exercise of peremp-

tory challenges by racial criteria, appel-

lants have not demonstrated a substantial

likelihood that the government exercised

a22=

EREBEEEEBEREEHEEeERe Eee

violation of 21 U.S.C. § 848 (1982). His

sentence of thirty years imprisonment for

committing that offense, for which he could

have been sentenced to life imprisonment

without parole, was not excessive under the

eighth amendment to the Constitution.

Moreover, it was not improper for the trial

court to impose cumulative sentences on

Dennis for the continuing criminal

enterprise offense and for the predicate

substantive narcotics offenses. See United

States v. Garrett, 727 F.2a@ i003, i010

(llth Cir.1984), aff'd, u.8. » 305

S.Ct... 2407, 65. 4.86:26:. 764 - (i985). The

trial court's remark to the jury on the day

the government rested its case, explaining

24 (cont.) its peremptory challenges ina

manner that was designed to dilute the

representation of blacks on the trial jury.

Thus we would find that appellants have not

made out a prima facie case of racial

discrimination in the government's use of

its peremptory challenges even if we were

not foreclosed from considering such a

claim by Swain and other precedent that is

binding upon this panel.

~~?

that the court would be in recess until the

following day to allow defense counsel “to

get their ducks in a row and so forth," was

not a constitutionally impermissible

comment on any defendant's decision not to

testify or present evidence, nor would it

naturally and necessarily have been

construed as such. See United States v.

Haynes, 573 F.2d 236, 239 (5th Cir.), cert.

denied, 439 U.S. 850, 99 S.Ct. 154, 58

L.Ed.2d 153 (1978). Finally, the court did

not abuse its discretion when, having just

continued the trial for one week, it denied

appellant Cohen's motion for an indefinite

continuance to allow her further time to

prepare for trial.

CONCLUSION

For the reasons set forth above, the

judgment appealed from is AFFIRMED in its

entirety.

74a

APPENDIX B

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Bobby Roy DENNIS, Sr., Sharon Denise

Cohen, Clarence Bobby Jennings,

Brenda Jewell Hurley,

De fendants-Appellants.

No. 85-3089.

United States Court of Appeals,

Eleventh Circuit.

Nov. 24, 1986.

William J. Sheppard, Courtney L.

Johnson, Jacksonville, Fla., for Dennis.

Brent D. Shore, Jacksonville, Fla.,

for Cohen.

Eugene F. Murphy, Jacksonville Beach,

Fla., for Jennings.

Howard W. Skinner, Jacksonville, Fla.,

for Hurley.

M. Alan Ceballos, Asst. U.S. Atty,

Jacksonville, Fla., for the U.S.

Appeals from the United States

District Court for the Middle District of

Florida.

Before HILL, Circuit Judge, TUTTLE*

and HENDERSON, ** Senior Circuit Judges.

. Judge Tuttle was a member of this

panel that heard oral argument, but

due to illness did not participate in

-75-

ON PETITIONS FOR REHEARING

(Opinion April 14, 1986, llth Cir. 1986,

786 F.2d 1029)

PER CURIAM:

Appellants petition for rehearing with

suggestion for rehearing en banc. Having

reconsidered the initial opinion, the panel

has concluded that the petition for

rehearing should be GRANTED in part and

DENIED in part. The suggestion for

refearing en banc has not been considered

by the full court. After filing of this

modified opinion, the petition for

rehearing en banc may be properly

considered by the full court. Accordingly,

the petition for rehearing is denied in

every respect but the following: Part VII

of the opinion, 786 F.2d 1029, 1048-49

fnace Cif. 1986), is stricken in its

* (cont.) this decision. The petition for

rehearing is being decided by a

quorum.

ee See Rule 3(b), Rules of the U.S. Court

of Appeals for the Eleventh Circuit.

-76-

——- - TF erererRrtiHtetEetHEtEttthim

a i i Ee i EE

__entirety and the following is substituted

in its stead:

VII. THE GOVERNMENT'S USE OF

ITS PEREMPTORY CHALLENGES

The government used peremptory

challenges to strike three black males from

the jury panel. In each instance, defense

counsel requested that the trial court

inquire into the government's reasons for

\

striking the prospective jurors to

determine whether the prosecutor was

exercising his peremptory challenges on the

basis of race, in violation of appellants'

constitutional rights. Those requests were

denied. Two black women were eventually

seated on the jury that convicted

appellants, who are black.

Appellants claim that the record

revealed no legitimate basis for striking

the three black males who were removed from

the jury panel; indeed, according to

appellants, the responses of two of the

three at voir dire indicated that they

aFJ=

would be less inclined than the average

individual to exhibit any particular

sympathy toward criminal defendants.

Appellants argue that they have thus made

out a prima facie case in support of their

claim that black males were

unconstitutionally excluded from the jury

that convicted them, and that the

government should now be required to

provide a nondiscriminatory explanation for

the exercise of the three peremptory

challenges it utilized to strike the three

black males who were on the venire.

Appellants rely on the recent decision

of the Supreme Court in Batson v. Kentucky,

0.8. » ave &. CE. 275g, BO &.8ea.28. 69

(1986), in support of their claim.21 In

that case the Court held that, where a

defendant is able to make out a prima facie

a. Appellants base their claim on the

fifth and sixth amendments to the

Constitution. Although Batson involved a

constitutional challenge based on the equal

protection clause of the fourteenth

-78-

}

SS aS aE eae ae

SEE —S iE

case of unconstitutional discrimination by

the prosecutor in the exercise of his

peremptory challenges in the defendant's

case, the prosecutor should be required by

the trial court to offer a neutral

explanation for the allegedly

discriminatory challenges that is related

to the particular case to be tried. The

Supreme Court stated that a defendant could

establish a prima facie case of purposeful

discrimination as follows:

{T]he defendant first must show that

he is a member of a cognizable racial

group, Castaneda v. Partida, [430 U.S.

S80, @242 3s BsCSs.- Bate, 275, 35

L.Ed.2d 498 (1977)], and that the

21 (cont.) amendment, it seems clear that

the holding and rationale of that case

should also be used to determine similar

fifth amendment claims that are raised by

defendants who have been tried in federal

court. See, e.g., Bolling v. Sharpe, 347

0.8. 497, 74 8.Ct. 693, 39 &.8a.894 (1954) .

We are constrained by binding Eleventh

Circuit authority, however, to reject

appellants' invitation to grant the relief

they seek on sixth amendment grounds,

should equal protection prove unavailing.

Willis v. Zant, 720 F.2d 1212, 1219 n. 14

(lith Cir.1983).

«FG

prosecutor has exercised peremptory

challenges to remove from the venire

members of the defendant's’ race.

Second, the defendant is entitled to

rely on the fact, as to which there

can be no dispute, that peremptory

challenges constitute a jury selection

practice that permits "those to

discriminate who are of a mind to

discriminate." Avery v. Georgia, [345

U.S. 559, S62, 73 S.Ct. OFn Saveerr:

Finally, the defendant must show that

these facts and any other relevant

circumstances raise an inference that

the prosecutor used that practice to

exclude the veniremen from the petit

jury on account of their race.

21 (cont.) The effect of the Supreme Court

decision in Batson v. Kentucky on our

decision in this case was first raised in

petition for rehearing to which we have

invited no response. Subsequently, the

Supreme Court has held that Batson should

not be retroactively applied when a

conviction has been entered and direct

appeals have been exhausted. Allen ov.

Hardy, » U.S. , 106 §.Ct. 2878, 932

L.Ed.2d 199 (1986 (per curiam). The Court

has yet to determine whether Batson is to

be applied retroactively to cases pending

On direct appeal. See e.g., Brown v.

United States, U.S. _, 106 B.CE. gare

90 L.Ed.2d 718 (1986) (granting

certiorari). The petitioner's appeal in

the case at bar falls into that patter

category of cases pending on direct appeal

at the time Batson was rendered. For the

reasons set forth in this opinion, we may

dispose of appellants' Batson claim without

awaiting the Supreme Court's further

resolution of the retroactivity of Batson.

-80-

—- —--—_-; -_- -taetenrHteBRBteHtEH Hes

Batson v. Kentucky, U.S. ; 206 S.Ct.

at 2723. In determining whether’ the

defendant has made out a prima facie case

of purposeful discrimination, courts are to

consider “all relevant circumstances. For

example, a ‘pattern’ of strikes against

black jurors included in the particular

venire might give rise to an inference of

discrimination. Similarly, the

prosecutor's questions and statements

during voir dire examination-= and in

exercising his challenges may support or

refute an inference of discriminatory

purpose." Id.

[1] In this case, we find it clear

that defendants failed to make out a prima

facie case of purposeful discrimination.22

22 The Supreme Court in Batson clearly

contemplated that the determination of

whether a prima facie case under Batson has

been made out will ordinarily, if not

always, be made in the first instance by

the trial court. A remand to the trial

court to make such a determination in this

case, however, is unnecessary, as a finding

by the trial court on this record that

~ Se

As an initial matter, the relevant

cognizable racial group," for the purpose

of our analysis, is the group of blacks

generally and not just black males, as

appellants urge. The test we apply to

determine whether appellants are members of

a cognizable racial group under Batson is

the test applied in Castaneda v. Partida,

430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2a

498, cited in Batson, 8. 2 » 266

S.Ct. at 1723. Such a group is "one that

is a recognizable, distinct class, singled

out for different treatment under the laws,

as written or as applied." Castaneda, 430

U.S. at 494, 97 S.Ct. at 1274. The group

\

of blacks generally Clearly qualifies under

this definition; appellants have failed to

22 (cont.) appellant has presented

evidence sufficient to raise an inference

of purposeful discrimination would

constitute reversible error despite the

"great deference" that we must accord the

trial court's. findings in that regard.

Batson, U.S. at .. Rm. 24, 106 8:68. at

724 fiw2l.

-§82-

ea BS @Boeaeatnsetensil

show, however, that black males constitute

a distinct, recognizable subclass of

individuals who have been singled out for

different treatment under the laws not

simply as blacks, but as black males. It

would therefore be inappropriate for us to

narrow the "cognizable racial group," for

present purposes, to include only black

males and exclude black females.

[2] The government utilized only

three of the six peremptory challenges it

was allowed during the selection of the

twelve jurors who decided the case, and one

of the two challenges to alternates that it

was allowed. The government exercised two

of the three challenges it exercised when

selecting regular members to strike

potential jurors who were black, and used

the one challenge it chose to exercise when

selecting alternate jurors to strike an

alternate who was black, but eventually

accepted a jury that included among its

regular members two blacks. It is thus

= ke

ee

obvious that the government did not attempt

to exclude all blacks, or as many blacks as

it could, from the jury. Moreover, the

unchallenged presence of two blacks on the

jury undercuts any inference of

impermissible discrimination that might be

argued to arise from the fact that the

prosecutor used three of the four

peremptory challenges’ he exercised to

strike blacks from the panel of potential

jurors and alternates. Appellants' case is

not bolstered by the fact that two of the

stricken black venirepersons had previously

been victims of burglaries or that one of

those two had also testified for the

government in the past. We thus conclude

that all of the relevant facts and

circumstances do not raise an inference of

purposeful discrimination on the basis of

race, and that appellants were not entitled

to any inquiry into the _- prosecutor's

reasons for exercising his peremptory

challenges as he did.

idm

ceBaegannnenneLELt ft

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 85-3089

D.C. Docket No. 84-127

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BOBBY ROY DENNIS, SR.,

SHARON DENISE COHEN,

CLARENCE BOBBY JENNINGS,

BRENDA JEWELL HURLEY,

Defendants-Appellants.

Appeals from the United States District

Court for the Middle District of Florida

Before HILL, Circuit Judge, and TUTTLE and

HENDERSON*, Senior Circuit Judges.

JUDGMENT

This cause came on to be heard on the

transcript of the record from the United

States District Court for the Middle

* See Rule 3(b), Rules of the U. S. Court

of Appeals for the Eleventh Circuit.

-85-

District of Florida, and was argued by

counsel;

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court

that the judgments of conviction of the

said District Court in this cause be and

the same are hereby, AFFIRMED.

Entered: April 14, 1986

For the Court: Spencer D. Mercer, Clerk

By: Miguel J. Cortez

Deputy Clerk

ISSUED AS MANDATE: DEC 4 1986

RE-ISSUED AS MANDATE: DEC 24 1986

-86-

Bn Baeaeeaeeaeeeeeeaee & Bs

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 85-3089

UNITED STATES COURT OF APPEALS,

Plaintiff-Appellee,

versus

BOBBY ROY DENNIS, SR.,

SHARON DENISE COHEN,

CLARENCE BOBBY JENNINGS and

BRENDA JEWELL HURLEY,

Defendants-Appellants.

On Appeal from the United States District

Court for the Middle District of Florida

ON SUGGESTION FOR EN BANC CONSIDERATION

(Opinion April 14, 1986, llth Cir. 1986,

F.2d )

PER CURIAM:

No member of this panel nor other

Judge in regular service on the Court

having requested that the Court be polled

on rehearing en banc (Rule 35, Federal

Rules of Appellate Procedure, Eleventh

«$7

Circuit Rule 26), the Suggestion for

Banc Consideration is DENIED.

ENTERED FOR THE COURT:

James C. Hill

_—__—_

United States Circuit Judge

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FILED

DEC 24 1986

MIGUEL J. CORTEZ

CLERK

-~88-

En

i @eaee@eesasa 3s 32 3 5

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 85-3089

UNITED STATES COURT OF APPEALS,

Plaintiff-Appellee,

versus

BOBBY ROY DENNIS, SR.,

SHARON DENISE COHEN,

CLARENCE BOBBY JENNINGS and

BRENDA JEWELL HURLEY,

Defendants-Appellants.

On Appeal from the United States District

Court for the Middle District of Florida

Appellant Bobby Roy Dennis, Sr.'s

motion to clarify by Court order the status

of the pending petition for rehearing en

banc is denied. The mandate has been

recalled; rehearing en banc has been

denied; and the mandate shall issue in du

course.

-89-

____James C. Hill eee

UNITED STATES CIRCUIT JUDGE

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FILED

DEC 24 1986

MIGUEL J. CORTEZ

CLERK

-90-

eee 85