Appendix — Mathews v. United States

UNITED STATES ¥

MATHEWS 325

Cite we 00) F 2d 325 (uh Cir. 1986)

-

Cc tery eumnie mie

t

UNITED STATES of America

Piaintiff-Appel'ee

y

Frederick MATHEWS,

Defendant-Appellant

No. 85-2904

United States Court of Appeals

Seventh Circuit

Argued June 12, 1986

Decided Oct. 9, 1986

Defendant was convicted in the United

States District Court for the Eastern Dis-

trict of Wisconsin, Thomas J. Curran, J., of

accepting thing of value as public official

for official act to be performed by him, and

he appealed. The Court of Appeals, Bauer,

Chief Judge, held that: (1) defendant was

required to admit all elements of crime

with which he was charged, including io-

tent, before he could plead entrapment, (2)

exclusion of veniremen who expressed mus-

givings about covert tape recordings was

proper, and (3) prosecutor gave sufficient

Mr

-

explanation for its use of peremptory;

strikes to exclude ali blacks from jury

Affirmed

1. Criminal Law ©°37(1)

Defendant must admit al) elements of

crime with which he is charged, including

intent, before he may plead entrapment,

declining to follow United States v. Caron

588 F.2d 851 (ist Cir); United States »

Henry, 749 F.2d 203 (Sth Cir); United

States v. Kelly, 748 F.2d 691 (D.C.Cir.)

United States v. Demma, 523 F.2d 981 (9th

Cir.); Crisp v. United States, 262 F.2d 68

(4th Cir.)

2 Jury €°33(2)

Exclusion for cause of severa! venire

men who expressed misgivings about cov

ert tape recordings did not deny bribery

defendant constitutiona! right to impartia

jury fepresenting cross section of commu

nity. U.S.C.A. Const Amend. 6

3. Jury © 121

Finding that Government did not inten

tionally discriminate when exercising its

peremptory challenges to remove al! blacks

from jury was sufficiently supported by

prosecutor's explanation for remcva! of

each individual! juror, fact that key witness

es for both sides were black, thus discount

ing any advantage a discriminating prose

cutor might perceive in striking biacks

from jury, and lack of evidence prosecuto:

had maintained pattern or practice of strik

ing blacks from juries in cases where de

fendants were biack

Jeffrey A. Kaufman, Gimbe! Gimbe! &

Reilly, Milwaukee, Wis., for defendant-ap

pellant

Jan E. Kearney, Asst US. Atty. Mi

waukee, Wis., for plaintiff-appellee

Before BAUER, Chief Judge, and COF

FEY and RIPPLE, Circuit Judges

326

BAUER, Chief Judge

The defendant, Frederick Mathews, was

convicted of receiving money as an officia

of the Smal! Business Administration in

violation of 18 USC. § 20l(g), He ap

peals, alleging three grounds for reversa!

tat the district court erred by refusing to

low Mathews to claim entrapment unless

Mathews admitted al) elements of the

erime, including the element of intent, that

the district court erred in excluding for

cause severa) veniremen who expressed

disapproval! of tape recording conversations

without the knowledge of al) parties; and

that the district court erred in denying

Mathews’ motion for s mistria! based on

the prosecution's use of peremptory strikes

to remove al! black veniremen from the

jury We find the district court committed

no error and affirm its judgment of convic

ton

I

Mathews was employed in the Milwaukee

office of the Sma) Business Administration

(“SBA”) as a Business Development Spe

cialist in charge of the “8A Program.”

The 8A Program is designed to aid smal!

businesses owned by socially and econom)

cally disadvantaged concerns. Applicants

for the 8A Program become clients of the

SBA. With the SBA serving as primary

contractor and the 8A client acting as sub

contractor, the SBA attempts to procure

government contracts on behalf of BA

chents and to help them perform on the

contract

The charge of which Mathews was con

victed concerns Mathews’ relauvonship with

James DeShazer. DeShazer is the presi

dent and owner of Midwest Knitting Mills

Midwest Knittung Mills was a participant in

the 8A Program and obtained severa) con

tracts through the SBA. Mathews was

DeShazer’s main contact at the SBA

The evidence at trial showed that Math

ews accepted loans from DeShazer (Math

ews says two, the government says more)

Mathews claims the loans, including the

loan involved in this case, were persona!

loans from DeShazer unrelated w Math

803 FEDERAL REPORTER, 2¢ SERIES

ews’ duties at the SBA. The government

and DeShazer claim the loans were gratu

ties required by Mathews to obtain his co

operation in SBA matters

In support of its theory, the government

introduced evidence that included tape re

cordings of conversations between Mat!

ews and DeShazer discussing the loan tha:

resulted in Mathews’ arrest and prosecu

tion. These conversations had been covert

ly taped by DeShazer under the direction of

the FBI which began investigating Math

ews in response to s complaint by De

Shazer to a Navy purchasing agent regard

ing Mathews’ repeated requests for loans

The jury believed the government's ver

sion of the facts and convicted Mathews of

the charge of accepting 8 thing of value as

a public official for an official act to be

performed by him, a violation of 18 US (

§ 201g). The tria) judge entered judgmen:

accordingly and sentenced Mathews t

three years probation, the first two years

to be served under house arrest’ Mathews

appeals

I

Mathews claims the tria! court erred ir

denying his motion in limine to present

evidence on the defense of entrapment

Mathews asks us to reconsider the rule in

this circuit that requires a defendant wh

wishes to plead entrapment to admit s

elements of the crime, including the ele

ment of intent United States v. Rodgers

755 F.2d 533, 550 (7th Cir.1985), cert de

nied, — US —, 105 S.Ct 3532, 87

L.Ed.2d 652 (1985). He acknowledges that

this rule is in accord with the Third, Sixth

and Tenth circuits, but argues that a better

rule would require a defendant to admit

only the acts of a crime, not the intent

before being allowed to plead entrapment

Mathews cites cases from the First, Fifth

and D.C. circuits as examples of decisions

that follow this rule. United States +

Caron, 588 F.2d 85) (Ist Cir.1978); United

States v. Henry, 749 F.2d 203 (Sth Cir

1984) (en banc); United States v. Kelly

748 F.2d 691 (D.C.Cir.1984). Mathews does

mot ask us to go so far as those circuils

UNITED STATES +. MATHEWS

327

Che we 00) Fad WS Ger 1988)

Unat he claims allow a defendant to deny al!

elements of the cmme and at the same Ome

plead entrapment United States v. Dem-

ma, 523 F.2d 98) (9th Cir.1975); Crisp «

United States, 262 F.2d 68 (4th Cir.1958)

[1] Although we acknowledge some di-

versity of opinion among the circuits, we

see no reason to change our rule requiring

a defendant to admit all elements of the

erime before being allowed to plead entrap

ment. When a defendant pleads entrap

ment he is asserting that, although he had

criminal! intent, it was “the Government's

deception [that implanted) the enmina) de

sign in the mind of the defendant” Unit

ed States v. Russell, 411 US. 423, 436, 93

S.Ct 1637, 1645, 36 LEd2d 366 (1973)

United States v. Rodgers, 755 F.2d 533,

S50 (7th Cir.1985). We find this to be

inconsistent per se with the defense that

the defendant never had the requisite cmm-

ina) intent We see no reason to allow

Mathews or any defendant to plead these

defenses simultaneous!y

Ill

[2] Mathews also complains that the ex-

clusion for cause of severa! veniremen who

expressed misgivings about covert tape re

cordings created a jury skewed in favor of

the government and unrepresentatve of

the community. He argues that the tris!

judge should have conducted & more exten-

sive inquiry into the basis for the venire

men's objection to such evidence in order to

ascertain whether the veniremen felt they

could give the evidence its proper weight

despite the inita! reservavons

We disagree with Mathews for two rea

sons. First, a trial judge's questioning dur

ing voir dire is subject to limited review

In light of the epecia! circumstances of the

situation (to be outlined below) and the

great deference that we accord tria! judges

in this area, Wainwright » Wit, 469 US

412, 105 S.Ct 844, 83 LEd2d 841, 844

(1985), we see no rearon to overturn the

judgment of the trial court on the basis of

the exclusion of these veniremen Second.

the tra! judge called a side bar during vorr

dire to give Mathews’ counse! the opportu

nity to suggest an appropmate route for

the trina! court \& take regarding these ve

niremen. Mathews counse! expressed no

objection and asked the court to proceed as

it had been before the side bar. We find it

Gfficult tw accept Mathews belated allega

tions on appea! that the judge's achon tak

eo at Mathews’ request denied him hu

sixth amendment mght to an imparta! jury

representing 8 cross-section of the commu

nity

A

The trial judge was forced to des

difficult and all too common situator

ing voir dire. The court had properly and

methodically questoned the veruremen as a

group sbout their limitations and buses

regarding the case After its first twenty

two questions, the court had excused on!y

six persons for cause. The court's twenty

third question inquired whether the venrre

mer had “any concern about tape recording

conversabons when one party w not aware

that it is being recorded” (Tria! Tran

wml

.

script at 43). One veniremen expressed

concern, and the court questioned her in

depth about whether her reservations

about the evidence gathering method wou.¢

interfere with her ability to weigh that

evidence, whether she stil! had reservatons

knowing that she would only hear the tapes

if they were found admissible by the court

according to the rules of evidence, anc

whether her reservatons would remain re

gardiess of the nature of the invesagston

When the veniremer contnued to express

doubt, the judge dismussed her

As acknowledged by counse! for both

sides, what followed was a cla c case of

potents! jurors jumping on th = pportunit)

to avoid jury duty by suddenly resizing

that they too shared the bias of the venire

man just dismissed Several veniremen im

mediately brought their newly discovered

problem with accepting covert tape record

ings to the attention of the trial judge

The judge dismissed the first bandwagoner

without further quesvoning. knowing the

venirermen had heard the examination of

the venireman just dismissed The judge

328

dismissed the second and third followers

after they offered short explanauons of the

bas for their objecbons to taping When

a fourth vemreman suddenly discovered 8

deep-seated dutaste for covert taping, the

judge questioned her in depth and reit

erated that tapes might not even be intro

duced into evidence and would only be

heard if they were found sdmussibie accord

ing to the rules of evidence. The venire

men then relented, declared she could give

the evidence appropmate weight and was

retained on the panel. Undeterred, a fifth

venireman took up the mantle and voiced

objections to covert taping The court was

examining him further when stl another

venireman interrupted with quesvons re

garding the nature of the tapes

Seeing the direction that the voir dire

was going, the judge called a side bar. As

represented to this court at ors! argument

by both counse! (both of whom also served

as tria! counsel), the judge asked both par

ties for their preferences as to the appro

priate manner for the court to dea) with

this mass exodus of potenta!l juror

Mathews’ counse! admits that he did not

object to the actions that the judge had

taken up to that point and in fact encour

aged him to conunue

The judge then dismussed the venireman

he had been quer soning and dealt with the

remaining four veniremen who claimed

that they too disliked covert taping. The

judge questioned the first three of these

four in depth, released one and kept two

The fina! objyectung venwermnan was also re

eased

With the supply of potenua! jurors now

exhausted, the court called s recess. The

following day, the veniremen ex

pressed no misgivings sbout taping, and

the voir dire proceeded without further

probierm

new

B

We see nothing wrong with the tris

judge's conduct of the voir dire At least

six times, the judge conducted in depth

questioning in front of the pane! of venire

men as @ group regarding the leve! of bias

803 FEDERAL REPORTER, 24 SERIES

necessary to demonstrate cause for being

excused from jury duty, bias that mus

remain regardiess of the rules of evidence

and the instructions of the judge. The

judge need not, as Mathews contends. in

every case question each juror individus!!)

regarding each possibie area of prejudice

We review the wor dire only & see

“whether the procedure used for tesung

impartalty created « reasonable assurance

that prejudice would be discovered if

present.” United States » Dellinger, 472

F.2d $40, 367 (7th Cir.1972), cert dened

410 U.S. 970, 98 S.Cu 1443, 35 L.Ed.2d 706

(1973). We “will not find that s tra! cour

abused its discretion in conductng vow dire

where there is ‘sufficient questoning &

produce, in light of the factual situatior

involved in the partcular tna! some basis

for a reasonably knowledgeable exercise of

the nght of challenge United States :

Hastings, 739 F.2d 1269, 12773 Tw Ce

1984), cert denied, 469 U.S. 1218, 105 $.Cr

1199, 84 L.Ed.2d 343 (1985) (citatons om:

ted) We may only reverse « tra! judges

decision on exclusion of veniremen for

couse if it i « “clear case” of prejudics

error, Wainwright » Witt 469 US. 412

105 S.Ct 844, 83 L.Ed.2d 841, B44 (1985

The judge's conduct easily satisfies this

tumited standard of renew and we accorc

ingly decline to disturb the tra! courts

decasion

Furthermore. Mathews had every oppor

tunity to object during voir dire and fae

to do so. The judge even asked the parve

how they wished him to proceed in hght o!

the developing problem with the venire

men's bias regarding covert taping Mat?

ews. by hus counsel encouraged the judg:

to continue as he had been before the sick

bar, which the judge did. This is clearly «

waiver and more of whatever night Mav

ews may have had to object to the conduc

of the worr dire

Finally, we fee! compelled also to now

that we are uncertain what harm Mathew

could claim even if the conduct of the vor’

dire would have been unproper The judg

did not fail tw exclude for cause & venire

mar that Mathews wished excluded (w)

UNITED STATES +. MATHEWS

329

Cite oo O83 F 2d 025 (Ce Nee)

would have forced Mathews to use a per

emptory strike and thus potentally preju

dice his case), and the trial judge did not

conduct the worr dire eo that a venireman

who may or may not have been prejudiced

remained on the pane! (which would have

resulted in the same harm) Instead, the

judge immediately excluded veniremen who

expressed some bias against the govern

ment without first questioning them fur

ther on an individual! basis We are doubt

ful whether this harmed Mathews in any

way or whether any harm that did result

can be the basis of & sixth amendment

challenge. As stated by the Ninth Circuit

in addressing « situation in which the ap

pellant contended that the tria! judge had

erred in excusing two jurors for cause on

his own movon

Moreover, regardiess of the propriety

of excusing two veniremen, we would not

be inclined to reverse The defendant

ented to an array of imparua! jurors to

whom he may direct his peremptory cha!

lenges but, having been provided with

such a panei, he suffers no prejudice if

juror, even without sufficient cause, is

excused by the Court

United States v. Calhoun, S42 F.2d 1004

1103 (9th Cir.1976), cert denied gud nom

Stephenson v United States, 429 US

1064, 97 S.Ct 792, SO L.Ed 2d 78) (1977)

TV

Mathews also contends the tna! court

erred in denying his motion for mistria

based on the prosecution's use of its per

emptory strikes to exclude al! blacks from

the jury. We disagree

“

The Supreme Court recently addressed

th wsue in Batson wv. Aentucky, — US

——, 106 S.Ct 1712, 90 L.Ed 2d 69 (1986

and the principles elucidated there contro!

this case. In Batson, the court established

that “the State's privilege to strike individ

va! jurors through peremptory challenges

is subject to the commands of the Equa!

Protection Clause,” Batson, 106 S.Ct at

1718, and

the Equa! Protection Clause for

bids the prosecutor to challenge potenta

jurors solely on account of their race or or

the assumption that black jurors as «

group wil! be unable impartally to consider

the State's case aginst a black defend

ant” /@ ot 1719. When « defendant «

leges the prosecuuon has used its peremp

tory challenges in e dwcriminatory fashior

therefore. the genera! principles of Equa

Protection apply. /d at 1719

The burden is on the defendant inita!!)

to make “a prima facie case of purposely

dweriminaton by showing that the tota!:ty

of the relevant facts gives rise w an infer

ence of discriminatory purpose id wt

1721. To make this showing, it is not nec

essary for the defendant tw show that the

prosecutors eclons m past cases have

demonstrated a pattern or pracuce of dis

emmuinatory use of peremptory challenges

id at 1720-21. “A defendant may ested

lsh s proma facie case of purposefu! du

crimination in selection of the petit jury

solely on evidence concerning the prosec.

tor's exercise of peremptory challenges a

the defendant's trial To establish such «

case the defendant first must show that he

is & member of & cognizable racia! group

and that the prosecutor has exercise:

peremptory challenges to remove from Ur<

venure members of the defendants race

/d at 1722-23. Then, “the defendant mus:

show Wat these facts and any other rele

vant curcumstances rawe an inference Wa

the prosecutor used [peremptory che

lenges) to exclude the veniremen from the

peut jury on sccount of thew rece” /d a:

1723. These “relevant circumstances” may

welude @ pattern of peremptory striking

black jurors. the prosecutons quesbons

and statements during soir dire, and the

proseculon s statements and acbons w ex

ercusing hw peremptory strikes /d

If the trial judge determines that the

defendant has made a suffiment pnms fo

ove showing. “the burden shifu w the Sue

to come forward with a neutral explanavor

for challenging black jurors” /d at 1723

Although “the prosecutor's explanation

need not mse to the leve! justifying exercise

of a challenge for cause,” /d at 1723. “the

UNITED STATES +

MATHEWS 331

Che ow 0 F 2d 25 (Ce Ne

she along with the other people who had

raised similar objections yesterday, |

struck for, | think probably self-evident

reasons, that type of evidence w going

be important to my tris) and | believe

that it will be very difficult for me to get

a fair hearing on my side of the case if

there are people who just plain believe

that is not mght under any circumstances

no matter what the judge should instruct

them

With respect t© Ms. Phenix, | noted

this morning when | came into the court

room, I thought yesterday afternoon, as s

matter of fact, that | would like to keep

her She is @ sort of basic Milwaukee

person on paper at least, what we know

of her. This morning she was late in

coming, she was not the only one, but

she was among people who (arrived) af

ter two o'clock Gus afternoon when the

jury was supposed to be here in their

seats And this indicated to me a lack of

commitment to the importance of thu

proceeding That was one of the reasons

why | felt that given a choice between

Ms. Phenix and another juror, | would

select a juror who evidenced more of s

commitment

In addition to that, while watching her

in Une courtroom she did not seem to be

attentive to the proceedings at hand |

know this is always very difficull &

judge these Uungs on the basis of such 8

short exposure to 8 person, but that was

my impression of her That is the reason

why | decided t strike her

My last strike as | mentioned a few

moments ago, was Mr. Robinson. | be

lieve that is his name, Declinton Robin

son The reason why | struck him os

[admittedly « personal) one | don't

know what is going to happen to me if |

put this on the record, but | am going to

anyway because the Court needs lo know

my reasons

Mr Declinton was sitting directly &

my mght only @ space of approximately

four feet from me, and bot) yesterday

and today he spent « very great dea! of

time in examining me in e way which |

felt was in the end becoming rather hos

tile Now, | realize that the is « sudje

tive judgment, but it was very marked u

me, Judge It was something that | no

ticed and felt was rude for one thing, and

indicated one of two things, either he

was going to be very strongly in support

of my position or he was going to be very

strongly against my position. Under

those circumstances | felt that there

were other jurors who more fit the pro

file of & juror that | was looking for

There is always « thousand other

things, but | fee! that at least this much

should be placed on the record at this

point because | fee! that it would have

been to my sdvantage, rather than my

disadvantage to have had black jurors or

this particular jury, because my witness

@s, too, your Honor, my most importan'

witness, Mr. James DeShazer, is like Mr

Mathews, black, and | fee! that i

important that he get « fair hearing. an

so | gained nothing. | gained nothing

have to select my jurors one at & Ume, as

| eee it and those are my reasons

Trial Tr. pp. 83-86. Following this expls

nation, the judge asked Mathews attorne)

for his response, and he pointed out Wa!

other white jurors had also been late bu!

had not been struck by the government

The judge then proceeded to weigh the

factors put forth by both sides as wel! as

other surrounding circumstances The

judge stated that he agreed that the firs

venireman struck had given particular’)

hesitant responses to the judge's inquir

following the venireman's initia! objectior

to covert taping and that the peremptor

strike was “wel! justified” With regard &

the second black venireman struck, th«

judge aiso agreed that the person had der

onstrated s pointed disinterest in the pro

ceedings evidenced not only by her tard

ness but also by her posture and demeanor

With regard to the third venireman struck

the judge noted that the prosecutor's exp's

nation was subjective and not based or

factors that the court had also observed

but that th did not necessarily undermine

her explanation The court then consider-<

the explanation in light of other surround

330

prosecutor may not rebut the defendant's

prima facie case of discrimination by stat

ing merely that he challenged jurors of the

defendant's race on the assumption—or his

intuitive judgment—that they would be

partial to the defendant because of their

shared race” Jd Neither may the prose

cutor satisfy his burden “by denying that

he had « dwcriminatory motive or ‘affirm

ing his good faith in individual! selections

id at 1723 (citations omitted) The prose

cutor's explanation must be “clear and rea

sonably specific,” it must contain “ ‘legit

imate reasons for exercising the cha!

lenges,” and it must be “related w the

particular case to be tried” /d at 1723 n

20

The defendant, of course bears the ulti

mate burden of proving intenvona! disenm

ination. Jd at 1721 and 1723-24 The

duty to determine whether such a showing

has been made i entrusted to the sound

discretion of the tria! courts who are expe

menced in supervising voir dire ld at

1723

For purposes of review on appeal, Bar

son reminds us that “‘s finding of inten

tons! discrimination is @ finding of fact

enuUed to appropmate deference by a re

viewing court,” and that, “[s)}ince the tris

judge's findings in the context under con

sideratuon here largely will turn on evalua

won of credibility, reviewing court ord

narily should give those findings great def

erence.” Jd at 17245 21. Thus, we may

only reverse the tra! judge's determination

that the prosecution's peremptory cha

lenges were not motivated by intentona

discrimination if that determination is

clearly erroneous. United States v Tuck

er, TTS F.2d 186, 142 (7th Cir 1985), cert

denied — US —, 106 S.Ct 8398, 92

L.Ed 2d 742 (1986

B

(3) Applying these principles w the

facts here, we have no doubt that the tra

1. Because we find the tris! judge's condu

of the proceedings below setislies Batson) re

quiremenu. we need not (end ecapressly &

mot) decide whether Bewon applies retros

se com Ser Allen +

Uvely to Nerd,

803 FEDERAL REPORTER, 24 SERIES

court properly dened Mathews motor f

mistrial! based on the prosecaton's use of

peremptory challenges’ The judges

quiry wes careful and thorough and hu

underlying findings were reasonable and

consistent. The tria! court's altumate find

ing that the government did not intenuona

ly dweriminate when exercising iu perem>

tory challenges cannot be said to be clear',

erroneous

The trial judge. without the benefit of

Batson's specific guidelines undertook

thorough inquiry im response to Mathews

pretria' motion challenging the goverr

ments use of its peremptory cha enges &

remove al) blacks from the jury After

hstening to Mathews objection outside ure

presence of the jury. the judge asked the

prosecutor for her response The prosec.

tor then explained in some deta.’ the bas

for each of her strikes against the thre

black veniremen We recount r

full as an example of the type of explana

ton that sausfies Saison’ requiremeru

that such explanations be clear and reas

ably specific, contain legitimate reasor

and be related to the partcular case

I did have reasons. The choice tha

made this morning was an unusualy ¢

ficult one, and as [defense counse!’ is

probed'y aware. the genUeman one

the genUemen who was among the pe

ple that | just mentoned was my las

strike, and one over which | hesitated a

some jength it is always very diff

to describe your reasons why y

or do not choose a juror Wher you read

cases that say you are supposed to t&

what your reasons are !| think ths mus

be written by people who never tried «

case, but | will do the best | can

With respect to the lady, Mrs. Switze:

she was (among) those people who ind

calec & grave reservauon wilh respect k

her ability t adequately look at and ar

prawe the tape recording evidence and

t here

haw

u c™oose

No 83-659) — US — 06 SC: 28%

9) LEdld 1 986) (Rewer does oo an

ply retreectively to collateral etack on conv

teor

The court noted the

witnesses for both aides m Ue

which would discount any

ny circumstances

ie Bey

case were Diack

advantage that « ducrminating prosecutor

might perceive in striking blacks from the

ury. The court noted that there was nc

evidence that the prosecution had mair

ined & pattern or practice of striking

acks from juries i cases where the de

fendants are bisck, and further commented

that We courts persons: experence

showed the contrary. Finally, the court

noted Unat the demeanor of the prosecutor

while exercising her peremptory challenges

the Gme that she wor doing

calec Wat she Was NOt Simply SLrlking

enireman because they were Dieck but

was engaging in « carefu! process of delib

erauon based on many factors In light of

a! of these circumstances, We judge denied

for mews

anc mn

Mathews motor

The judge's inquiry fits easily into the

established in Batson Ir

before the court We

format hus Mo

Mathews put

facts that he is Diack (@ cognizable rece

group) and that the prosecution usec per

emptory challenges © strike members of

his racial group from the jury. Mathews

also noted thal the government eliminate

a!) blacks from the jury, not just « few. as

additions! evidence of the prosecutions dis

criminatory motive. Although we need n

de, Une Wri! budge apparently Wreatec

prime facie evidence of

intent

80 Ge

this as sufficient

he government

exercuing its peremptory challenges The

sdge then gave the prosecution & chance

s éucriminatory

to rebDut thus inference with a neutra: expla

nat for challenging the black veniremer

This the government did with an explana

tion the

clear was reasonably specific

latec © We paertculer case

hearing Mathews response & We

expianston, considered a!! relevant circum

stances and ruled that Mathews

carned hw ullumate burden of proving ds

intent

contained leguumate reasons was

anc wee re

The judge

afue

hac a

enminatory

-

Batson

clear

critere as estadishec ©

reason to overturn as

proper

we see

603 FEDERAL REPORTER

The judge's inquiry was basec on He

id SERIES

erroneous the vdges den 7 Ma -

mot for msi

y

In sum, we find it was not error for the

tra! judge to require Mathews to admit a

elements of the cmme including intent be

fore allowing hirn w plead entrapment

was not error to exclude for cause severe

expressed mugivings re

garding the use of covert tapings, and

was not clearly erroneous for the judge &

deny Mathews motion for mistria) based

on the prosecution's alleged discrnminator

challenges. The de

veniremen whe

use of peremptory

{ the district court w AFFIRME

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United Stintes Court o

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