# Appendix — Dennis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1926%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 481 U.S. 1037 ## Text 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...... — | 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 -3- 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 -4- eee eeeee eee @ @ 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. -7- (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. -9- 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 a} O~ 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 a oe BEGG EEEE 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}. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1926%3A2. Public record. Not legal advice.