Appendix — Leslie v. United States

ee ee

Supreme Court, U.S. .

, FILED

65-1961 APR 19 1986

NO. F. SPANIOL, JR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1985

EUGENE LESLIE,

Petitioner

VERSUS

UNITED STATES OF AMERICA,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX

ROBERT GLASS

__._GLASS & REED

38 Lafayette Street

REceciVED jay orleans, LA 70130

1l.: 504/581-9065

4 ounsel for Petitioner,

Otero 2 bite CLERK Bugene Leslie

_ ee LOLIS EDWARD ELIE

215 N. Jefferson Davis Pkwy.

New Orleans, LA 70119

Tel.: 504/482-0330

Co-counsel for Petitioner,

Eugene Leslie

\

dvs *

'

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

APPENDIX E:

TABLE OF CONTENTS

United States v. Leslie,

759 F.2d 3668 (5th Cir.

1985)(panel opinion). ..

Judge Garwood's dissent .

United States v. Leslie,

783 F.2d 541 (5th Cir.

1986)(en banc opinion). .

Judge Williams' dissent .

Rule 2, F.R.CE.P. « « « «

Rule 24, F.R.Cr.P.. .. .

28 0.8.C. §§1861-1869

(Federal Jury Selection

and Service Act of 1968,

as amended) ....e«.«-.

B-47

E-1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 83-3719

UNITED STATES OF AMERICA,

is Plaintiff-Appellee

VERSUS

EUGENE LESLIE,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

(April 10, 1985)

Before BROWN, WILLIAMS and GARWOOD, Circuit

Judges.

JERRE S. WILLIAMS, Circuit Judge:

Eugene Leslie challenges his drug con-

viction on three grounds: the prosecutor

improperly used all of his peremptory

challenges against black veniremen, the plea

agreement letters between the government and

various government witnesses were incomplete

and improperly youched for the credibility of

those witnesses, and Leslie was denied the

opportunity to impeach the testimony of a

government witness. We find merit in

Leslie's first claim, and we reverse and

remand on that claim. in all other respects,

we affirm.

I.

Leslie, 4 black man; was indicted,

tried, and found guilty of conspiring to

distribute narcotics in yiolation of 21

U.S.C. $846 (1982), and of possessing

narcotics with the intent to distribute them

in violation of 21 U.S.C. §841(a)(1) (1982).

after the voir dire and after the district

court excused yveniremen for cause, the United

States Attorney exercised each of his six

peremptory challenges permitted by Fed. R.-

erin. Fe 24(b) against black veniremen.

These six black yeniremen were the only

Parties exercised their peremptory

Challenges, Leslie moved for a mistrial and

argued that the Pattern in Which the

Prosecutor employed his peremptories demon-

Strated that the Prosecutor's Conduct was

racially motivated, Leslie urged the

grant his motion. The prosecutor Stated that

he did not exercise his peremptory Challenges

for racial reasons, and he offered to

explain, in camera, his reasons for Striking

the black veniremen, The district court

exercises his peremptory challenges. As a

result, Leslie was tried before and convicted

by an all-white jury.

Leslie was indicted with at least six

other people: Fernando Giron, Thomas Gray,

Claude Griffin (Griffin), and Griffin's wife,

son, and daughter. Gray and Griffin pled

guilty and agreed to testify for the govern-

ment in the case against Leslie and Giron,

who were tried together. In connection with

their plea arrangements with the government,

Gray and Griffin executed standard plea agree-

ment letters that the government provided.

These plea agreement letters were admitted

into evidence over Leslie's objection.

Consistent with their plea agreements,

Gray and Griffin testified against .Leslie and

Giron at the trial. On the second day of the

trial, after Gray, Griffin, and others had

given devastating testimony against Giron,

Giron agreed to plead guilty. The case

against Leslie proceeded. The day after

Giron had agreed to plead guilty, the govern-

ment called Giron to testify against Leslie.

In his direct testimony, Giron indicated that

he occasionally had delivered cocaine to and

had received payments from Leslie. In

Leslie's vigorous cross-examination, Leslie

sought to establish that Giron was biased

against Leslie and had agreed to plead guilty

and testify against Leslie only to curry

favor with the prosecutor and the sentencing

judge. Specifically, Leslie sought to have

Giron concede that the government would not

accept Giron's guilty plea unless Giron

agreed to testify against Leslie. Giron made

no such concession and testified that at the

time the agreement was consummated he did not

know he would be called as a government

witness in Leslie's case.

Leslie then sought to impeach Giron's

testimony by calling Giron's attorney, James

Moriarty, as a witness. The court conducted

a hearing outside the jury's presence and

asked Moriarty a series of questions concern-

ing the plea agreement. Moriarty testified

that the two critical aspects of the plea

agreement were that Giron would testify in

the case against Leslie and that Giron would

plead guilty to one count of his two-count

indictment. He also testified that he had

specifically asked Giron: "Are you [Giron]

willing to testify in this case against

Leslie?" and that Giron's response was "Yes."

Finally, Moriarty testified that he believed

his client understood all aspects of the plea

agreement. The district court did not allow

Leslie to call Moriarty as a witness at

trial, in part, because it did not find

Giron's and Moriarty's testimony to be in

substantial conflict.

In this appeal Leslie raises three

claims. Initially, he argues that we should

invoke our supervisory authority to ensure

that federal prosecutors do not employ peremp-

tory challenges to strike only black venire-

men. Second, he claims that the district

court improperly admitted the plea agreement

letters into evidence because the letters

were both under- and over-inclusive and

because they improperly bolstered the

credibility of the government witnesses.

Third, he asserts that the district court

erroneously denied him the opportunity to

impeach Giron's testimony and demonstrate

Giron's bias by calling Moriarty as a witness.

We address each contention in turn.

II.

1. THE SUPERVISORY POWER CLAIM

Racial discrimination in the selection

of grand and petit jurors is a disturbingly

familiar and recurring problem in our

criminal justice system. The Supreme Court

has stated that the systematic exclusion of

persons based upon the persons' race from the

grand jury pool, the petit jury pool, or the

petit jury through the prosecutor's use of

peremptory challenges violates a defendant's

equal protection rights guaranteed by the

Fourteenth Amendment. See Swain v. Alabama,

380 U.S. 202 (1965)(petit jury--peremptory

challenges); Strauder v. West Virginia, 100

U.S. 303 (1880)(grand and petit jury pools).

In this case, Leslie concedes that he cannot

satisfy the literal requirements of Swain by

demonstrating that federal prosecutors in New

Orleans systematically employed peremptory

challenges to exclude blacks from petit

juries in multiple cases over a period of

time. He nevertheless argues that since this

case, unlike Swain, involves a federal prose-

cution, this Court should use its supervisory

authority over federal district courts and

federal prosecutors to correct practices

compromising the integrity of the judicial

process and prevent prosecutors from striking

veniremen solely because of the veniremen's

race. He argues that the exclusion of blacks

from the petit jury in his case undermines

public confident in the judicial system,

impinges upon judicial integrity, and is mani-

festly unfair.

A. The Supreme Court's Exercise of Its Super-

visory Power

The so-called supervisory power

doctrine was articulated formally over four

decades ago in McNabb v. United States, 318

U.S. 332 (1943),1 and has been interpreted

lrRecent cases have indicated that the doctrine

existed long before McNabb was announced.

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

182, 192 (1981)(describing Aldridge v. United

States, 283 U.S. 308 (1931), as resting upon

Supervisory power grounds); Ristaino v. Ross,

424 U.S. 589, 598 n. 10 (1976)(same).

to permit federal courts? to formulate

procedural rules not specifically required by

the Constitution or federal statutes. United

States v. Hasting, 461 U.S. 499, 505 (1983).

2In McNabb, the Supreme Court referred to its

supervisory authority but did not indicate

whether similar authority existed in the

lower federal courts. 318 U.S. at 340. Sub-

sequent Supreme Court cases, however, removed

any doubt that the lower federal courts

possess supervisory authority concomitant

with that possessed by the Court. See United

States v. Hastings, 461 U.S. 499, 505 (1983)

(*{Ijn the eerrdt se of supervisory powers,

federal courts may...formulate procedural

rules not specifically required by the Consti-

tution or the Congress."; United States v.

Payner, 447 U.S. 727, 735 & n. 7? (1980) (reter-

ring to the use of supervisory power by the

"federal courts"); Donelly v. DeChristoforo,

416 U.S. 637, 648 n- 33 (1374) (Fede ( ¢ ral

appellate courts may redress prosecutorial

misconduct through the proper exercise of

their supervisory power); Cu v. Naughten,

414 U.S. 141, 146 (1973)(federal “appellate

courts" may exercise supervisory authority

over district courts to cure errors not

amounting to constitutional violations);

Bartone v. United States, 375 U.S. 52, 54

(1963) (Supreme Court and courts of appeals

possess supervisory power); LaBuy v. Howes

Leather Co., 352 U.S. 249, 259 LOST) We

believe that supervisory control of the

District Courts by the Courts of Appeals is

necessary to proper judicial administration

in the federal system.").

A-10

McNabb involved a prosecution for the murder

of a federal agent. A failure by the arrest-

ing officers to follow proper detention and

interrogation procedures led the Court to

reverse the convictions. The Supreme Court

rested its decision upon its supervisory

power over the lower federal courts. Initi-

ally, the Court recognized that:

while the power of [the] Court to

undo convictions in state courts is

limited to the enforcement of those

"fundamental principles of liberty

and justice"...which are secured by

the Fourteenth Amendment, the scope

of [the Court's] reviewing power over

convictions brought...from the

federal courts is not confined to

ascertainment of Constitutional

validity.

Id. at 340.3 “Judicial supervision of the

administration of criminal justice in the

federal courts", the Court reasoned, "implies

3Pollowing McNabb, the Supreme Court repeated-

ly held that its supervisory authority

extended to neither state officials nor state

judicial proceedings. See Ristaino v. Ross,

424 U.S. 589, 597 n. 9 (1976); Donnelly v.

DeChristoforo, 416 U.S. 637, 642 (1974); Cupp

v. Naughten, 414 U.S. 141, 146 (1973).

the duty of establishing and maintaining

civilized standards of procedure and evidence.

Such standards are not satisfied merely by

observance of those minimal historic safe-

guards for securing trial by reason which are

summarized as 'due process of law' and below

which we reach what is really trial by force."

Id. In reversing the defendant's convic-

tions, the Court announced the duty of courts

"as agencies of justice and custodians of

liberty" to preserve the integrity of the

judicial process and guard against practices

employed in cases such as McNabb. Id. at

347.

Subsequent to McNabb, the Supreme Court

has repeatedly exercised its supervisory

power over lower federal courts in a wide

variety of cases to reverse a conviction

which was supported by false evidence,

Mesarosh v. United States, 352 U.S. l, 14

(1956); Communist Party of the United States

A-12

v. Subversive Activities Control Board, 35l

U.S. 115, 125 (1956), to curtail improper

practices by federal attorneys, United States

v. Hale, 422 U.S. 171, 180 & n. 7 (1975);

Grunewald v. United States, 353 U.S. 391, 422

& 424 (1957); Jencks v. United States, 353

U.S. 657, 668 & 672 (1957); Roviaro v. United

States, 353 U.S. 53, 60 (1957), to suppress

evidence government agents gained through

misconduct, Mallory v. United States, 354

U.S. 449, 453 & 455 (1957); Rea v. United

States, 350 U.S. 214, 217 (1956); Upshaw v.

United States, 335 U.S. 410, 412 & 414 n. 2

(1948), to preserve a criminal contemner's

riens: £2.84. 58897 .t2i061; ies s es,

Schnackenberg, 384 U.S. 373, 380 (1966), or

to protect the defendant from an overzealous

district court judge, Offutt v. United

States, 348 U.S. ll, 13 (1954).

In cases relevant to the case before

us, the Supreme Court has invoked the super-

A-13

visory power doctrine to protect the

integrity of the juries. Long before the

Supreme Court decided Taylor v. Louisiana,

419 U.S. 522, 529 & 538 (1975), which held

that the Sixth Amendment precluded the exclu-

sion of members of distinctive groups of the

community from the venires from which the

juries are drawn, the Court applied the super-

visory power doctrine in both civil and

criminal cases to prevent the systematic

exclusion from jury service of members of

distinctive group's of the community. In

Thiel v. Southern Pacific Co., 328 U.S. 217

(1946), a diversity case, the jury

commissioner intentionally excluded from the

petit jury lists all persons earning a daily

wage. At trial, the plaintiff moved to

strike the jury panel. The district court

denied the motion, and the Ninth Circuit

affirmed. Citing McNabb, the Court invoked

its supervisory authority and reversed,

A-14

reasoning that "[j]Jury competence is an

individual matter rather than a group or

class matter...fand to] disregard [that

fact]... open[{s] the door to class distinc-

tions and discriminations which are abhorrent

to the democratic ideals of trial by jury."

Id. at 220. The Court ultimately concluded

that the "blanket exclusion of all daily wage

earners...must be counted among those

tendencies which undermine and weaken the

institution of jury trials." Id. at 224.

Later that year the Court decided Ballard v.

United States, 329 U.S. 187 (1946). Ballard

involved the exclusion of women from the

grand and petit jury lists in the federal

courts in California. The Court denounced

the practice of excluding women from jury

service and found that the practice

"deprive[d] the jury system of the broad base

it was designed by Congress to have in our

democratic society", and operated "'to

A-15

destroy the basic democracy and classlessness

of jury personnel.'" Id. at 195. Again the

Court relied upon McNabb and employed the

supervisory power doctrine to reverse the

defendant's conviction.

Thiel and Ballard are important for two

reasons. First, they illustrate the

cdi bend 11 e9 and scope of the supervisory

power doctrine. More important, however,

they emphasize the unifying premise in all of

the supervisory power cases--that although

the doctrine operates to vindicate a

defendant's rights in an individual case, it

is designed and invoked primarily to preserve

the integrity of the judicial system.

B. The Federal Prosecutor's Duty in the

Federal Criminal Justice System

Conceptually related to the purposes

for which the supervisory doctrine was

created is the federal prosecutor's obliga-

tion to serve the cause of justice in our

A-16

Ory - 7 A

criminal justice system. Berger v. United

States, 295 U.S. 78 (1935), is the critical

case establishing the prosecutor's duty to

ensure that justice be done as a higher

priority than obtaining a conviction. The

defendant in Berger claimed that the

prosecutor's conduct at trial overstepped the

bounds of propriety and fairness and entitled

him to a new trial. The Supreme Court

agreed, and in the often quoted passage

explained the nature of the prosecutor's duty

and the values the duty is designed to

effect:

The United States Attorney is a

representative not of an ordinary

party to the controversy, but of a

sovereignty whose obligation to

govern impartially is as compelling

as its obligation to govern at all;

and whose interest, therefore, ina

criminal prosecution is not that it

shall win a case, but that justice

shall be done. As such, he is ina

peculiar and very definite sense the

servant of the law, the twofold aim

of which is that guilt shall not

escape or innocence suffer. He may

prosecute with earnestness and

A-17

vigor--indeed, he should do so. But,

while he may strike hard blows, he is

not at liberty to strike foul ones.

It is as much his duty to refrain

from improper methods calculated to

produce a wrongful conviction as it

1s to use every legitimate means to

bring about a just one.

Id. at 88 (emphasis added),

This Court has echoed repeatedly the

mandate of Berger. We have said that the

cherished title “United States Attorney" is

not a hunting license which exempts its

holder from the ethical constraints of

advocacy. See United States v. Beckett, 706

F.2d 519, 521 n. 5 (5th Cir. 1983); United

States v. Bursten, 453 F.2d 605, 610 (5th

Cir. 1972), cert. denied, 409 U.S. 843 (1972).

Rather, possessing the title is a privilege,

and this privilege requires federal

prosecutors to adhere to the highest

Sta..dards of fairness and justice. As we

Said in United States v. Corona, 55l F.2d

1386 (5th Cir. 1977), "{wle would be remiss

A-18

if...we did not recall the ‘heavy

responsibility [of prosecutors]...to conduct

criminal trials with an acute sense of

fairness and justice.'" Id. at 1391 (quoting

United States v. Dawson, 486 F.2d 1326, 1330

(Sth Cir. 1974)).

C. Invoking the Supervisory Power Doctrine’

in this Case

The Court's general statements concern-

ing the purposes for which the supervisory

doctrine was created and the Court's

sensitivity to the need to invoke the

doctrine to preserve jury integrity, promote

fairness, and assure justice compel our

invoking the doctrine in this case. Ugly in

its practice and insidious in “its effects,

invidious racial discrimination deserves

protection in no area of society, least of

all in the administration of justice in

federal courts. Almost half a century ago,

the Supreme Court spoke unanimously and clear-

ly: “For racial discrimination to result in

the exclusion from jury service of otherwise

qualified groups...is at war with our basic

concepts of a democratic society and a

representative government." Smith v. Texas,

311 U.S. 128, 130 (1940). That unequivocal

statement and the wisdom of Thiel and Ballard

——

apply with equal force today. We thus invoke

Our supervisory power to assure a minimum

level of protection against the use of peremp-

tory challenges to practice invidious racial

discrimination in individual cases. We

recognize that giving effect to the precept

of equality conflicts with the total peremp-

toriness of peremptory challenges on the part

of the prosecutor but hold that at eatin: euked

the threat of invidious discrimination by

A-20

federal officers sworn to effect justice

exceeds the bounds of tolerance. 4

40ther courts have exercised their supervisory

authority to ensure that federal prosecutors

do not employ peremptory challenges to engage

in racial discrimination. See United States

v. Jackson, 696 F.2d 578, 593 (8th Cir.

1982), cert. denied, 460 U.S. 1073 (1983);

United States v. Nelson, 529 F.2d 40, 43 (8th

Cir.), cert. denied, 426 U.S. 922 (1976);

United States v. McDaniels, 379 F.Supp. 1243,

1249 (E.D.La. 1974)(Rubin D.J.). See also

United States v. Robinson, 421 F.Supp. 467,

473 (D. Conn. 1976), mandamus granted sub

nom. United States v. Newman, 549 F.2d 240

(2d Cir.), cert. denied, 432 U.S. 908 (1977).

The earliest case in which the supervisory

power doctrine was mentioned as a method to

control the prosecutor's racially motivated

exercise of his peremptory challenges was

Hall v. United States, 168 F.2d 161 (D.C.

Cir.), cert. denied, 334 U.S. 853 (1948). In

Hall, federal prosecutors exercised every

peremptory challenge against black veniremen

and excluded nineteen blacks from the venire.

As a result, the defendants, two black men,

were tried and convicted by an all-white jury.

Although the defendants had timely objected,

the district court and a majority of the

appellate court panel concluded that the

defendants' Fifth Amendment rights were not

violated, since the prosecutor was not

required to offer any explanation supporting

the manner in which he used the peremptories.

Judge Edgerton, in a lone dissent, disagreed.

Id. at 165. He initially argued that the

(Footnote cont'd on next page. )

A-21

Our holding is narrow and is based upon

the factual structure of the case before us.

It reflects our recognition that the facts of

some cases might justify the prosecutor to

consider a prospective juror's race when exer-

cising peremptory challenges. We therefore

do not go so far as to hold that racial

consideration in every case invariably consti-

tutes invidious racial discrimination. We do

not hold that the prosecutor may never

consider the veniremen's race as one of the

factors affecting his decision to strike or

retain those veniremen. But we do not now

established rules prohibiting the systematic

exclusion of blacks from the venire would

have no value if those blacks who appeared on

the venire could be removed systematically

simply because of their race through the

prosecutor's uncontrolled exercise of his

peremptory challenge. Id. at 166. He

emphasized the special role United States

Attorneys play in the administration of

criminal justice, id. n. 14 (citing Berger),

and urged the court to exercise its super-

visory power to examine and curtail such

practices. Id. The later cases cited above

follow the Edgerton position.

Ww

define those facts or circumstances in

particular cases that may authorize

prosecutors to consider the prospective

jurors' race as one of the factors affecting

their decisions to exercise peremptory

challenges. The district court bears the

responsibility of inquiring into and deter-

mining whether a prosecutor has used his

peremptory challenges for unjustifiable,

racially discriminatory reasons. If the

defendant timely objects, the district court

must exercise its supervisory authority to

determine whether the prosecutor has

considered the veniremen's race in employing

his peremptory challenges, and if so whether

his consideration of race in that case was

justifiable.

In this case the district court treated

the peremptory challenges as absolute and did

not hear the prosecutor's proffered explana-

tion. Since Leslie timely objected and since

A-23

the prosecutor used all of his peremptory

challenges against blacks only, the district

court should have pursued the inguiry into

the prosecutor's reasons for striking the

black veniremen. We cannot determine from

the record whether the prosecutor excused

these veniremen simply because they were

black or even if his actions would have been

justified had he considered the veniremen's

race as one of the factors that affected his

decision to strike these veniremen. We there-

fore remand the case to the district court

with directions to conduct a hearing to deter-

mine whether the prosecutor exercised his

peremptory challenges for unjustifiable,

racially discriminatory reasons.

This Court by no means intends to

emasculate the wide latitude and discretion

federal prosecutors enjoy in exercising

peremptory challenges in future criminal

cases. Nor do we suggest that a criminal

A-24

defendant has a right to a jury containing

all of the economic, social, religious,

racial, political, and geographical groups of

the community. See Apodaca v. Oregon, 406

U.S. 404, 413 (1972); Swain, 380 U.S. at 208;

Ballard, 329 U.S. at 192; Thiel, 328 U.S. at

220. Although the historical roots of the

peremptory challege in the American system of

justice run deep, peremptory challenges are

not commanded by the Constitution. See

McCray v. New York, 103 S.Ct. 2438, 2442 n. 7

(Marshall, J., dissenting from denial of

certiorari); Rosales-Lopez v. United States,

451 U.S. 182, 188 n. 6 (1981)3 Swain, 380

U.S. at 219. In the exercise of our super-

visory power and in the interest of justice,

therefore, we conclude that the federal

prosecutor's precious, though not absolute,

right to employ peremptory challenges without

review must yield in those cases where the

defendant can establish that the prosecutor

A-25

misused those challenges and engaged in

invidious racial discrimination.9>

By resting our holding upon our super-

visory power over federal district courts and

federal prosecutors we, of course, need not

and therefore do not consider whether the

prosecutor's conduct in this case violated

any of Leslie's constitutional rights. We

note, however, that several federal appellate

courts and state supreme courts recently have

addressed the claim that a defendant's Sixth

Amendment right to a jury drawn from a fair

cross-section of the community as established

in Taylor v. Louisiana, 419 U.S. 522 (1975),

necessarily prevents a prosecutor from

Swe pertermit the question whether the super-

visory power can be invoked when it is estab-

lished that an accused exercised peremptory

challenges with an invidious, racially

discriminatory motive. Cf. United States v.

Nobles, 422 U.S. 225, 231 & 241 (1975) (feder-

al court may invoke supervisory authority and

compel defendant and prosecutor alike to

furnish adversary with investigator's pre-

testimony written report).

A-26

striking veniremen solely because of their

race.® Recently, in Prejean v. Blackburn,

6Several of the courts addressing the issue

have concluded that Taylor modified Swain and

prevents a prosecutor iran using the

challenges in such a manner, see McCray v.

Abrams, 750 F.2d 1113 (2d Cir. 1984)(relying

upon the Sixth Amendment); State v. Neil, 457

So.2d 481, 486 (Fla. 1984)(decided under the

state's constitutional counterpart to the

Sixth Amendment); State v. Crespin, 94 N.M.

486, 488, 612 P.2d 716, 718 (1980)(same);

Commonwealth v. Soares, 377 Mass. 461, 478 &

488, 387 N.E.2d 499, 511 & 516 (same), cert.

denied, 441 U.S. 811 (1979); People v.

Wheeler, 22 Cal.3d 258, 272 & 277, 148

Cal.Rptr. 890, 899 & 903, 583 P.2d 748, 758 &

762 (1978)(same), while other courts have

rejected the argument and concluded that

Swain controls any time a defendant seeks to

challenge a prosecutor's use of the peremp-

tory challeges. See Willis v. Zant, 720 F.2d

1212, 1219 n. 14 (llth Cir. 1983); yy

States v. Childress, 715 F.2d 1313, 1320 (8th

Cir. 1983), cert. denied, 104 S.Ct. 744

(1984); Weathersby v. Morris, 708 F.2d 1493,

1497 pire Cif. ); Hobson v. seats.

Ind. , 471 N.E. 2d 281, 285 (1984);

People v v. Williams, 97 111.2d 252, 278, 454

N.E.2d 220, 232 (1983); People v. McCra 57

N.Y.2d 542, 549, 457 No y-8 od 441, 445, 443

N.E.2d 915, 919 (1982), cert. denied, 103

S.Ct. 2438 (1983); State v. Kelly, 362 So.2d

1071, 1077 (La. 1978); see also United States

v. Clark, 737 F.2d 679, 682 (7th Cir. 1984)

(declining to reach the issue because

defendant failed to establish a sufficient

likelihood of racial motivation).

A-27

743 F.2d 1091 (5th Cir. 1984), a habeas

corpus case, a panel of this Court affirmed

the continuing validity of Swain.’ But

since this case, unlike Swain and Prejean,

involves a criminal trial in federal court,

"the scope of our reviewing power...is not

limited to ascertainment of Constitutional

validity." We properly must inquire beyond |

"those minimal historic safeguards for

securing trial by reason" to ensure that the

7The Prejean panel neither cited Taylor v.

Louisiana nor addressed whether Taylor or any

other Sixth Amendment case modified Swain.

But see 743 F.2d at 1104 n. 11 (citing cases

that have considered this claim). In

Prejean, the petitioner claimed that the

prosecutor's conduct violated his Sixth and

Fourteenth Amendment rights. Id. at 1103.

But in his appeal the petitioner merely

invited the court to consider the "racial

polarization" between the citizenry and the

prosecutors as a substitute for Swain's

requirement that he demonstrate that prosecu-

tors systematically excluded blacks from

petit jury panels over a period of time. The

Prejean panel did not accept Prejean's invita-

tion to modify Swain and concluded that

Prejean failed to establish a violation of

his constitutional rights under Swain.

A-28

commands of justice are effected. McNabb,

318 U.S. at 340.

2. PLEA AGREEMENT LETTERS

Leslie also claims error in the

contents and admission into evidence of the

plea agreement letters between the government

and Gray, Griffin, and the other government

witnesses who testified again him. These

letters contained promises by the witnesses

to testify truthfully at any judicial

proceeding or in any interview, and

authorized the government to verify by any

available means the truthfulness of the

witnesses' statements. The letters also

provided that the witnesses agreed to forfeit

all proceeds, profits, and property acquired

through illegal drug transactions and

promised to provide the government with

detailed personal financial information and

records.

A-29

Leslie levels two distinct challenges

against the letters. First, he claims that

the letters were significantly under- and

over-inclusive because they did not detail

all aspects of the actual agreement between

the witnesses and the government and because

they contained language that was irrelevant

to the concessions made by some of the

witnesses. Second, he claims that the

language of the letters improperly vouched

for the credibility of the government

witnesses.

A. The Completeness of the Plea Agreement

Letters

}

Relying upon Giglio v. United States,

405 U.S. 150 (1972), Leslie argues that the

prosecutor did not disclose all of the

considerations extended to the government

witnesses which might have affected the

witnesses' credibility in the dvue of the

jury. In Giglio, a witness for the govern-

A-30

ment claimed on cross-examination that he had

not secured any agreement with the government

in exchange for his willingness to testify

against Giglio. The prosecutor made no

effort to contradict or clarify the witness’

testimony. Evidence discovered by the

defendant after the trial indicated that

prior to trial the prosecutor had promised

the witness either complete immunity or

leniency in exchange for the witness' willing-

ness to testify. Concluding that the prosecu-

tor's failure to correct the witness' false

statement was incompatible with rudimentary

demands of justice, the Supreme Court

reversed. The Court reasoned that the

prosecutor has a duty to disclose evidence

affecting a witness' credibility and that the

prosecutor's failure to disclose such

evidence warrants a new trial if ""the false

testimony could...in any reasonable likeli-

hood have affected the judgment of the

A-31

jury.'" Id. at 154 (quoting Napue v.

Illinois, 360 U.S. 264, 271 (1959)).

An important aspect of the prosecutor's

duty under Giglio, is to present to the jury

as complete a picture as possible of the plea

agreement between the witness and the govern-

ment. United States v. Sanfilippo, 564 F.2d

176, 178 (5th Cir. 1977);,United States v.

Nicholson, 525 F.2d 1233, 1236 (5th Cir.),

cert. denied, 425 U.S. 972 (1976). The

prosecutor may satisfy this obligation by

introducing either testimonial evidence of

the plea agreement, Nicholson, 525 F.2d at

1236, or a plea agreement letter which

memorializes the respective promises of the

witness and the government. United States v.

Martino, 648 F.2d 367, 389 (5th Cir. 1981),

cert. denied, 456 U.S. 949 (1982). Regard-

less of which method the prosecutor chooses

to prove the existence and the details of the

plea agreement, Giglio requires the

A-32

prosecutor to ensure that the disclosure of

the plea agreement to the jury is accurate

and complete.

In this case, each government witness

with whom the government had negotiated a

plea agreement testified on direct examina-

tion that the plea agreement letter consti-

tuted the entire agreement between himself

and the government. Leslie's cross-examina-

tion of the various government witnesses,

however, revealed that the agreements were

significantly under- and over-inclusive of

the respective promises made by the govern-

ment and the witnesses. Griffin, for

example, had been charged in three multiple-

count indictments of extensive narcotics

smuggling, possession, and dictcibaties

offenses, including importation of hundreds

of pounds of cocaine and tens of tons of

marijuana. Griffin's plea agreement

indicated that he pled guilty to one count in

A-33

each of the three indictments, and these

three counts carried a maximum sentence of 45

years. The agreement failed to mention,

however, that Griffin had agreed to cooperate

with the government largely because of the

favorable treatment the government promised

to provide his wife, son, and daughter. Like

Griffin, his wife, son, and daughter had been

charged in several multiple-count indictments

for various narcotic offenses, and each was

held on a very high bond. Griffin's wife's

and son's bonds were set at $1,000,000 each,

and his daughter's bond was set at $250,000.

After Griffin negotiated his plea with the

government and agreed to testify as a govern-

ment witness, his wife's and son's bonds were

reduced to $100,000, and his daughter's bond

was reduced to $25,000. In addition, all of

the felony charges against Griffin's wife,

son, and daughter were dismissed, and each

was allowed to plead guilty to a single

A-34

misdemeanor count. Leslie revealed all of

this information to the jury through

Griffin's cross-examination, and he argued

the issue to the jury during his closing

argument.

Other plea agreements bahia the

government and its witnesses demonstrated

that the Siete did not disclose all aspects

of the negotiated plea. Gray's plea agree-

ment, for example, did not reveal that in

exchange for his promise to testify for the

government, his bond had been reduced from

$1,000,000, which he could not satisfy, to

$100,000, which he could. See, e.g., United

States v. Garza, 574 F.2d 298, 301 (5th Cir.

1978) (witness' bond reduction as an aspect of

the plea agreement, which permitted witness

to gain freedom, was an important canted

bearing upon the witness' motive and

credibility and should have been revealed to

the jury). Gray and another government

A-35

witness who had executed a plea agreement

letter with the government also testified

that all of the ianguage in their respective

plea agreement letters referring to the

forfeiture of assets and the production of

financial information neither was negotiated

by them nor was relevant to their agreement,

since neither witness had bank accounts or

other assets which were acquired through

illegal drug transactions. Leslie revealed

the under- and over-inclusiveness of these

plea agreement letters to the jury through

his cross-examination of these witnesses.

While we are disturbed by the apparent

under- and over-inclusiveness of the

submitted plea agreement letters, we find no

Giglio violation in this case. Giglio would

require a new trial in this case if there was

any reasonable likelihood that the govern-

ment's failure to correct the misinformation

concerning the plea agreements affected the

A-36

judgment of the jury. If a defendant success-

fully elicits all aspects of the plea agree-

ment during the witnesses’ cross-examination,

however, any error in nondisclosure is

harmless and not likely to affect the

judgment of the jury. United States v.

Decker, 543 F.2d 1102, 1105 (5th Cir. 1976),

cert. denied, 431 U.S. 906 (1977); see also

United States v. Miranne, 688 F.2d 980, 989

(Sth Cir. 1982), cert. denied, 459 U.S. 1109

(1983). In this case, Leslie disclosed all

aspects of the plea agreements through his

effective and thorough examination of the

government witnesses, and in his closing

argument he asserted that the government's

promises provided each witness with an

incentive to fabricate his story and falsely

implicate Leslie. In view of Leslie's cross-

examination and closing argument, we find no

reasonable likelihood that the under- and

over-inclusiveness of the plea agreement

A-37

letters could have affected the judgment of

the jury.8

8we note that United States v. Garza, 574 F.2d

298 (1978), does not require a contrary

result. In Garza, the government introduced

into evidence the plea agreement letters of

two of its witnesses. The defendant's cross-

examination of these witnesses revealed sub-

stantial discrepancies between the plea

letters and the actual agreements the wit-

nesses had made with the government. The

defendant then prepared and submitted several

exhibits which accurately stated the benefits

the witnesses would receive as a result of

their cooperation with the government. When

the jury retired, the court permitted the

plea agreement letters to accompany the jury

to the jury room but over the defendant's

timely objection, did not permit the

defendant's exhibits concerning the plea

bargain to be taken to the jury room. This,

we held, was reversible error. We concluded

that despite the defendant's thorough and

extensive cross-examination of the govern-

ment's witnesses, the court's selective

submission of only the government's exhibits

was “tantamount to suggesting that the

letter[s] contained the entire agreement

between the government and the [witnesses]."

Id. at 301. In this case, Leslie offered no

documentary evidence which contradicted the

terms of the plea agreement letters. The

manner in which he challenged the accuracy

and completeness of the plea letters was

through the witnesses' cross-examination.

Since the district court in this case did

not, indeed could not, selectively submit to

the jury the evidence related to the plea

agreement letters, we find this case factu-

ally inapposite to Garza.

A-38

B. Improper Vouching for the Credibility of

the Government Witnesses

In Leslie's alternative challenge to

the admission into evidence of the plea agree-

ment letters, he claims that the letters

improperly vouched for the credibility of the

government witnesses because the witnesses

(1) promised to testify truthfully at any

judicial proceeding, (2) were subject to

perjury charges if they breached that

promise, and (3) understood that the govern-

ment reserved the right to test their

veracity and the accuracy of their statements

by “any means [it] saw fit." We find nothing

improper in these plea bargained promises.

An attempt to bolster a witness by

vouching for his credibility ordinarily is

improper and constitutes error. United

States v. Ellis, 547 F.2d 863, 869 (5th Cir.

1977). The test for improper vouching is

whether the prosecutor's expression might

A-39

yl

reasonably have led the jury to believe that

the prosecutor possessed extrinsic evidence,

not presented to the jury, that convinced the

prosecutor of the defendant's guilt. Id.

see also United States v. Shaw, 701 F.2d 367,

391 (5th Cir. 1983), cert. denied, 104 S.Ct.

1419 (1984). A prosecutor, therefore, may

not make explicit personal assurances of a

witness' veracity. See United States v.

Lamerson, 457 F.2d 371, 372 (5th Cir. 1972);

Gradsky v. United States, 373 F.2d 706, 709

(Sth Cis, 1967}.

The first two of Leslie's three points

are easily disposed of. A witness' promise

in a plea agreement letter to testify truth-

fully at any judicial proceeding in which he

or she may be called as a witness is the same

promise he or she makes when called as a

witness at trial. As such, a mere promise to

testify truthfully does not amount to

improper vouching. See Martino, 648 F.2d at

A-40

389. Closely related to the witness' promise

to testify truthfully is the witness' under-

standing of the penalty for breaching that

promise--perjury charges. A witness' written

acknowledgement of his understanding of the

penalty for testifying falsely obviously is

not an improper vouching for the credibility

of the witness' testimony.

The more difficult question is raised

by Leslie's third point. It concerns the

effect of the language in the plea agreement

letter which authorized the government "to

verify by any means it [saw] fit any state-

ments or testimony given by the [witness]."

We conclude that this language standing alone

did not constitute improper vouching for the

witnesses' credibility. In contrast is tne

case of Gradsky v. United States, supra, in

which we held that the following statement by

the prosecutor to the jury improperly

A-41

bolstered the credibility of the government

witnesses and required reversal:

[T]he government ha[d] every oppor-

tunity to check out and to judge the

credibility and truthfulness of [its

witnesses] in this case, and in that

context, we offered you [the jurors]

their testimony.

373: P.26 at Fees We reasoned that the

prosecutor's statement implied that the

government had, in fact, independently

verified the story that the government

witnesses conveyed to the jury.

Leslie fails in his attempt to

characterize the language at issue in this

case as having the same meaning as the

language we found offensive in Gradsky. Mere-

ly reserving the right to test independently

the veracity of a witness' testimony neither

implies that the right has been exercised nor

reasonably could lead the jury to believe

that the prosecutor possessed extrinsic

evidence that convinced the prosecutor of the

A-42

defendant's guilt. In fact, in this case the

prosecutor repeatedly cautioned the jury in

both his opening and closing arguments to

examine independently the prosecution's

witnesses and judge their oxebibitity nace

upon the evidence presented. See United

States v. Sims, 719 F.2d 375, 377 (5th Cir.

1983)(prosecutor's suggestion to jury that

government witness' testimony was circumspect

and that the jury should examine testimony

closely removed any doubt that neither

prosecutor nor plea agreement letter served

to vouch for the credibility of the govern-

ment wicness), cert. denied, 104 S.Ct. 1304

(1984). Ellis, 547 F.2d at 869 (same). In

view of the prosecutor's cautionary remarks

and the neutral nature of the statement in

the plea agreement letters, we find that

neither the prosecutor nor the plea agreement

letters impermissibly vouched for the

credibility of the government witnesses.

A-43

3. IMPEACHMENT OF A PROSECUTION WITNESS

Leslie's final claim is that the

district court erred by refusing to permit

him to impeach Giron's testimony by calling

Moriarty, Giron's attorney, to testify. The

hearing conducted by the district court

outside the jury's presence demonstrates that

Moriarty would have testified that (1) Giron

responded "Yes" when Moriarty asked: “Are

you [Giron] willing to testify in this case

against Leslie?" and (2) Moriarty thought

that Giron understood that he (Giron) was

required to testify in this case against

Leslie in order to secure the plea agreement.

Giron had testified on cross-examination that

at the time he consummated the plea agreement

with the guvernment he did not know that he

would be called as a government witness in

Leslie's case. Leslie claims that Moriarty's

testimony was necessary to impeach Giron's

A-44

testimony and show Giron's bias against

Leslie.

Any incentive a witness may have to

falsify his testimony, commonly referred to

as bias, United States v. Canales, 744 F.2d

413, 425 (5th Cir. 1984), is relevant to the

witness' credibility and the resulting weight

the jury should accord to the witness'

testimony. United States v. Hall, 653 F.2d

1002, 1008 (5th Cir. 1981); United States v.

Diecidue, 603 F.2d 535, 550 (5th Cir. 1979),

cert. denied, 445 U.S. 946 (1980); 3 J.

Weinstein, Weinstein's Evidence 4607-03, at

607-23 (1982). As such, the party

challenging the witness should be afforded an

opportunity to pursue all relevant lines of

inquiry aimed at discovering and disclosing

such bias. Hall, 653 F.2d at 1008. The

defendant seeking to demonstrate the

existence of a bias may impeach a witness'

claim of no bias either by effective

A-45

cross-examination, Davis v. Alaska, 415 U.S.

308, 316 (1974); United States v. Andrew, 666

F.2d 915, 924 (Sth Cir. 1982), or by intro-

ducing extrinsic evidence demonstrating the

witness' bias. United States v. Lay, 644

F.2d 1087, 1090 (5th Cir.), cert. denied, 454

U.S. 869 (1981); Diecidue, 603 F.2d at 550.

The district court has broad discretion in

determining how bias may be proved and what

extrinsic evidence is material to that

purpose. The district court's judgment will

be disturbed only where the defendant can

show an abuse of discretion. United States

v. Landes, 704 F.2d 152, 154 (5th Cir.),

cert. denied, 104 S.Ct. 176 (1983); Diecidue,

603 F.2d at 550; United States v. Love, 599

F.2d 107, 108 (5th Cir.), cert. denied, 444

U.S. 944 (1979).

This case concerns the propriety of

using certain extrinsic evidence, rather than

extended cross-examination, to impeach

A-46

Giron's testimony and show Giron's bias. In

his first claim, Leslie argues that

Moriarty's hearing testimony would have

demonstrated that Giron made a prior, out of

court statement that was inconsistent with

his trial testimony and would have tended to

show his bias. Because Leslie laid no founda-

tion for the introduction of Giron's prior

statement, we reject this claim and hold that

the district court properly excluded

Moriarty's testimony related to Giron's

statement.

Fed. R. Evid. 613(b) provides, in part:

Extrinsic evidence of a prior incon-

sistent statement by a witness is not

admissible unless the witness is

afforded an opportunity to explain or

deny the same and the opposite party

is afforded an opportunity to inter-

rogate him thereon, or the interests

of justice otherwise require.

Rule 613(b) establishes three criteria that

must be met before evidence of the prior

statement is admissible:

A-47

(1) [The statement] must be a prior

inconsistent statement of the

witness;

(2) The witness must be afforded an

opportunity to explain or deny

[having made] the statement; and

(3) The opposing party must be

afforded an opportunity to inter-

rogate the witness concerning the

statement.

United States v. Rice, 550 F.2d 1364, 1374

(5th Cir.), cert. denied, 434 U.S. 954 (1977).

In United States v. Lay, supra, 664 F.2d at

1090, we concluded that Rule 613(b) and its

foundation requirements apply in cases where

the defendant seeks to introduce extrinsic

evidence to impeach a witness' trial

testimony and demonstrate bias. See also 3

J. Weinstein, supra, 4607-03, at 607-43

(arguing that Rule 613(b) applies to bias

claims and requires party seeking to

establish bias to lay a proper foundation

before extrinsic evidence may be offered).

A-48

Leslie failed to satisfy the first two

aspects of the foundation requirement. As

the district court found, Giron's trial

testimony that he did not know at the time he

consummated the plea agreement with the

government that he would be called as a

government witness in Leslie's case is not

inconsistent with his response to Moriarty's

question. At the time the agreement was

made, Giron could have been willing to

testify against Leslie but might not then

have known that he in fact would be called as

a government witness in Leslie's case and

expected to testify against Leslie. Leslie

also failed to afford Giron an opportunity to

explain or deny making the statement, a

specific requirement of Rule 613(b). Leslie,

therefore, was not allowed to offer extrinsic

evidence showing that Giron had made the

statement. See United States v. Balliviero,

708 F.2d 934. 940 (5th Cir.)(since witnes

A-49

merely could not recall having made prior and

allegedly inconsistent statement, rather than

having denied making statement, defendant was

properly barred from offering extrinsic

evidence demonstrating that witness had made

statement), cert. denied, 104 S.Ct. 351

(1983).

After Moriarty was excused as a witness

at the hearing, the district court on three

successive occasions offered Leslie the oppor-

tunity to question Giron. On each occasion,

Leslie declined the opportunity and essen-

tially waived his chance to ask Giron to

explain or deny making the statement. Having

failed to satisfy this minimal foundation

requirement, Leslie cannot successfully argue

that the district court abused its discretion

in preventing him from calling Moriarty to

testify about Giron's alleged prior

statement.

A-50

Leslie also claims that Moriarty should

have been permitted to testify at trial about

Giron's understanding of the requirements of

the plea agreement. Moriarty would have

testified that he thought that Giron under-

stood that he (Giron) would be required to

testify against Leslie before the government

would accept Giron's guilty plea. Other than

Giron's response to the question concerning

his "willingness" to testify against Leslie,

Moriarty neither pointed to any other

colloquy between himself and Giron nor

reported any observation of Giron which

supported his belief that Giron knew that the

plea agreement was predicated upon his

agreeing to testify against Leslie in this

case. Moriarty's hearing testimony demon-

strates that his perception of his client's

understanding of the plea agreement was, at

best, speculative. We find, therefore, that

the district court did not abuse its

A-51

discretion in denying Leslie's request to

call Moriarty as a witness. The court proper-

ly weighed the minimal probative value of

Moriarty's hearing testimony against its

potentially prejudicial impact. See Landes,

704 F.2d at 154; Diecidue, 603 F.2d at 550.

Itt.

In summary, we hold that district

courts must exercise their supervisory power

to ensure that prosecutors do not misuse

peremptory challenges to engage in invidious

racial discrimination. We reverse and remand

with instructions for the district court to

conduct a hearing consistent with this

opinion for the purpose of determining

whether the prosecutor in this case exercised

his peremptory challenges for impermissible,

racially discriminatory reasons. If the con-

clusion is that he did, there must be a new

trial. In all other respects, the judgment

of the district court is affirmed.

A-52

AFFIRMED IN PART, REVERSED AND REMANDED IN

PART.

Judge Brown concurs. Judge Garwood

plans to file a dissenting opinion at a later

date.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 83-3719

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VERSUS

EUGENE LESLIE,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

(April 19, 1985)

Before BROWN, WILLIAMS and GARWOOD, Circuit

Judges.

GARWOOD, Circuit Judge, dissen.ing.

I respectfully dissent from the holding

that this case should be remanded for inquiry

into the prosecution's reasons for exercising

its peremptory challenges against black

venirepersons.

A-54

Context of Facts

Appellant Leslie was charged, along

with Fernando Giron, a Honduran, with

distributing and conspiring to distribute

cocaine. Trial was held in New Orleans.

After the first day of trial, Giron pleaded

guilty and testified for the government,

Other significant witnesses for the

government were Claude Griffin, who testified

that he had acquired cocaine from Giron and

distributed it to Leslie, who then

redistributed it, and Thomas Gray, who had

transported cocaine from Houston to New

Orleans for Griffin, received money from

Leslie in exchange for the drugs, and then

given the money to Griffin. Giron, Griffin,

and Gray are white; Leslie is black.

The record contains no transcript of

the voir dire or jury selection process,

although it does include the jury list

showing those removed for cause and by

A-55

peremptory challenge. When the court

completed excusing venirepersons for cause,

the jury panel had been reduced to

twenty-eight, of whom six were black. The

government used its six peremptory challenges

to remove these six blacks, and the defense

used its ten peremptory challenges to remove

ten whites. Of the four eeranhe comprising

the alternate pool, one was black; the

government used its alternate peremptory to

remove this individual, and the defense used

its alternate peremptory to remove a white

from the alternate pool. The procedure and

order of exercising peremptory strikes are

not reflected in the record.

After the peremptories were completed,

Leslie's counsel moved for a mistrial. He

complained that the government used its

peremptories to remove all the blacks from

the jury and alternate pools, and that "in

this case, Mr. Leslie is a black man in this

A-56

community; he has standing in the black

community. And without a single black on

that jury, there is no way to communicate

through peers in this community." Leslie's

counsel in effect admitted that there was no

racially discriminatory “pattern or practice"

of striking blacks, did not claim that

anything similar had ever occurred before or

would occur again, and made no attempt to

analyze or comment on the voir dire or the

composition of the venire panel in any terms

other than who was black and who was white.

He stated that "race is the only thing that

explains this situation," and urged use of

"the Court's discretion." The Assistant

United States Attorney who tried the case for

the government stated that the excused blacks

were "not struck on the basis of race" and

offered to give “an in camera reason," which

the court declined. The matter was not

A-57

raised again in the trial court, either by

motion for new trial or otherwise.

On appeal, Leslie's brief casts his

complaint in the following context:

"Eugene Leslie, a prominent black

fight promoter and trainer in the

City of New Orleans was tried by an

all white jury...on cocaine

conspiracy and distribution

charges....No significant witness

against Leslie was black....

"The government's theory was that

Claude Griffin...had bought cccaine

from a Honduran, Leslie's co-indictee

Fernando Giron, in Houston, Texas.

Griffin sold a part of the cocaine to

defendant Leslie....

"FBI agents...intercepted phone

calls between Griffin and Leslie.

These telephone calls did not mention

cocaine. The calls, however, sounded

suspicious to FBI ears since Leslie

had repetitively and in varying forms

asked Griffin whether there was

‘anything yet.'

"The defense presented an

entirely innocent explanation for the

style of the conversations with

Griffin: it was typical for Leslie,

a black man, to speak in shorthand

about things which he and the other

individual in the conversation

understood....

A-58

"Leslie explained the true

meaning of his conversations with

Griffin in the following manner.

Leslie had first met Griffin in

Grittin’'s capacity as an

air-conditioning repairman and

installer. They struck up a

friendship; Leslie visited Griffin,

and Griffin visited Leslie. At

Griffin's house, Leslie met the

co-indictee, Fernando Giron, who was

from Honduras. Giron had a relative

who possessed an old Volkswagen;

Leslie had a hobby of reconditioning

old cars, and was interested in that

Volkswagen. Additionally, Griffin

and Giron talked about young Honduran

fighters, and the possibility of

their coming to the United States for

training; Leslie, ever ready for the

opportunity to train a champion, was

interested in developing that

connection,

"Along with the suspicious

conversations of Leslie with Griffin,

the FBI had recorded similarly

suspicious conversations by Griffin

with another prominent black man in

the city, the funeral director Alton

Glapion. Glapion was a closer friend

of Griffin's than was Leslie.

Griffin had known Glapion for 20

yea ts, Leslie for under

two....Griffin wes then involved in

major business dealings with Glapion

and Glapion was ready, willing and

able to put up his funeral home for

bond for Griffin; Leslie on the other

A-59

s

hand owed Griffin money....It was the

defense theory of the case...that

when Griffin said the oil

conversations with Leslie were about

cocaine, while the oil conversations

with Glapion were about oil,...that

he had made a self-preserving choice;

Griffin had given up the innocent

Leslie to protect the also innocent

Glapion in order to preserve his

credibility, and thereby to save

himself and his family, who were

indicted along with him, from certain

annihilation by the government.

lzeslie's brief elaborates on this point as

follows:

"In other words it was the belief

of the defense that Griffin, faced

with similarly suspicious intercepted

telephone conversations from his two

black friends, Glapion and Leslie,

could not say that both of them were

innocent of wrongdoing, even though

that were true. Griffin could not

exculpate both of his black friends,

and still be believed to the extent

that he would receive misdemeanors

for his involved family members, and

his single count deals....He was

forced to choose, and so chose his

greater friend, Glapion, over his

lesser friend, Leslie. Griffin there-

fore implicated Leslie, as the least

of the horribles with which he had to

contend and choose."

A-60

",..TO acquit the defendant

Leslie, a black fight promoter from

New Orleans, the jury had to be open

to the possibility that Leslie had

spoken to Claude Griffin, the

principal prosecution witness, in a

shorthand that was not code for

cocaine. There was no black juror to

explain to the rest of the jurors in

their deliberations that there was

nothing irregular about Leslie's

speech patterns; to mediate between

Leslie's lifestyle and that of the

white jurors; or to evaluate the

credibility of the defense from the

black perspective."

It is implicit in the foregoing that

Leslie does not complain that he was tried by

a prosecutor or jury that bore any racial

A-61

animosity toward him or blacks generally.?

Rather, he complains that, because of the

peculiar factual setting of this case, he

needed one or more black jurors to

"translate" his speech and conduct to the

rest of the jury; in effect, to vouch for his

explanation of the suspicious conversations

and activities.3 It is likewise implicit

2Indeed, were that the case Leslie would

hardly have said, as he did in his brief,

that

"[t]Jhere are two serious issues

before the court. The first involves

the government's misuse of plea

bargain letters to bolster and vouch

for its witnesses. The second

involves the refusal to allow the

defense to prove a motive to lie on

the part of a principal prosecution

witness, when that witness denied the

existence of the motive. Both of

these issues are intricately

connected with the disputed facts in

the four day trial in which 20

witnesses testified."

3Leslie's brief describes this as "a case

where the black defendant's mode of conversa-

tion, position in the community and lifestyle

required translation to the jury for the

defense to be credibly received."

A-62

that Leslie has never contended that the

prosecution peremptorily struck black

venirepersons because of personal or official

hostility toward blacks, or as part of an

effort to prevent black citizens from serving

on criminal juries. Rather, the prosecution

apparently made the strikes simply in an

effort to procure, from among those summoned

and not disqualified, a jury which, under the

discrete facts of this particular case, would

least likely be partial to Leslie, by

excluding blacks as individuals either most

prone to see their role as that of translator

or spokesman for Leslie or perhaps as being

particularly susceptible to influence on

behalf of one so prominent in the black

community. This is also apparent from

Leslie's statement in his brief, repeated in

substance at oral argument, that:

"Indeed, there is no pattern or

practice in the United States

District Court for the Eastern

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District of Louisiana which could be

proved up by a systematic and

exhaustive examination of the

peremptory practices of the

prosecutors. Black jurors are no

less prosecution oriented in most

cases than are jurors of other

races."

The Issue

Accordingly, the question here is not

whether the prosecution may peremptorily

challenge blacks in an effort to deny

citizens of that race the right and privilege

of serving on criminal juries. Nor is it

what character of proof suffices to sustain

such a claim, prima facie or otherwise. No

such claim is made. Rather, the issue here

is whether the prosecution may take race or

similar group characteristics into account

when it exercises a peremptory challenge for

the sole purpose of procuring a jury least

likely to be partial to the defense, in light

of the discrete facts of the particular case

being tried.

A-64

Swain v. Alabama

I believe the answer to this question

is clearly supplied by part II of the Supreme

Court's opinion in Swain v. Alabama, 85 S.Ct.

824 (1965). As in this case, the prosecution

in Swain peremptorily struck all six black

venirepersons on the jury panel, with the

result that the black defendant was tried by

an all-white jury. Swain is, of course, a

much cited and quoted opinion. But it is

perhaps worthwhile to take another look.

So far as it concerned peremptory

challenges by the prosecution based on race

or similar group membership, Swain

distinguished between and dealt separately

with two types of such challenges: first,

those made for the purpose of the particular

case being tried, which it addressed in part

II; second, those made “for reasons wholly

unrelated to the outcome of the particular

case on trial...to deny the Negro the same

A-65

right and opportunity to participate in the

administration of justice enjoyed by the

white population" (id. at 838), which it

considered in part III. The distinction

between the two categories of racially based

peremptory challenges is likewise reflected

in the description of the second type as

being the kind the prosecution would make

"whatever the circumstances, whatever the

crime and whoever the defendant or the victim

may be." Id. at 837. In Swain part II, the

Court held that racially based peremptory

challenges of the first kind were a proper

and a traditional part of the jury system as

known to the common law and American

jurisprudence. In its part III, the Swain

Court strongly initimated that racially based

peremptory challenges of the second kind were

improper, but did not expressly rule that

they were since it held that no sufficient

A-66

showing had been made that the challenges in

question were of that kind.

Justice Goldberg, joined by Chief

Justice Warren and Justice Douglas, dissented.

Id. at 840-50.4 The dissent, however,

found no fault with part II of Swain or its

holding respecting the first type of

race-based peremptory challenge. Rather, the

dissent took the view that a proper prima

facie case was made that the race-based

peremptory challenges were of the second kind.

The dissent emphasized that the Alabama

venire selection system, which relied in

large part on subjective choices by

individual jury commissioners, produced

venires in the county of trial that averaged

ten to fifteen percent black, although blacks

4gustice Harlan joined in the Court's opinion,

but emphasized his understanding that the

Court did not ultimately decide whether or

not the second type of race-based peremptory

challenge, addressed in part III, was

improper. Id. at 840. Justice Black

concurred in the result without opinion. Id.

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constituted twenty-six percent of the

population available for jury service; and

that "this method of venire selection cannot

be viewed in isolation and must be considered

in connection with the peremptory challenge

system." Id. at 845. They particularly

noted "it is undisputed that no Negro has

ever served on any petit jury in" the county.

Id. The dissent summarized its views by

stating:

"The holding called for by this case,

is that where as here, a Negro

defendant proves that Negroes

constitute a substantial segment of

the population, that Negroes are

qualified to serve as jurors, and

that none or only a token number has

served on juries over an extended

period of time, a prima facie case of

the exclusion of Negroes from juries

is then made out;...and that the

State wholly fails to meet the prima

facie case of systematic and

purposeful racial discrimination by

showing that it has been accomplished

by the use of a peremptory challenge

system unless the State also shows

that it is not involved in the misuse

of such a system to prevent all

Negroes from ever sitting on any jury.

Such a holding would not interfere

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with the rights of defendants

[emphasis in original] to use

peremptories, nor the right of the

State to use peremptories as they

normally and traditionally have been

used.

"It would not mean...that Negroes

are entitled to proportionate

representation on a jury....Nor would

it mean that where systematic

exclusion of Negroes from jury

service has not been shown, a

prosecutor's motives are subject to

question or judicial inquiry when he

excludes Negroes or any other group

from sitting on a jury in a

particular case. Oniy where

Systematic exclusion has been shown,

would the State be called upon to

justify its use of peremptories or to

negative the State's involvement in

discriminatory jury selection." Id.

A-69

at 849 (footnote omitted; emphasis

added).°

The Eighth Circuit has observed, "The

2Certainscholarly comment has given a similar

reading of Swain. See Saltzburg and Powers,

Peremptory Challenges and the Clash Between

Impartiality and Group Representation, 41

Md.L.R. 337, 345 (1982):

"The Swain Court thus recognized

two possible motives for exercising

challenges against black jurors. The

first -- the use of race as a proxy

by which to identify probably

prejudice in a particular case -- was

explicitly approved by all the

justices, except Justice Black who

concurred in the result without

opinion. The Court emphasized the

importance of protecting the

inviolability of the peremptory

strike, concluding that a court

should not scrutinize a prosecutor's

motive for challenging blacks ina

particular case. The second -- the

use of challenges to keep blacks off

all juries -- was not approved."

See also United States v. Newman, 549

F.2d 240, 248-49 (2d Cir. 1977) (quoting

Swain dissent and discussing common

Strains in the majority and dissenting

opinions); United States v. Childress,

715 F.2d 1313, 1315 (8th Cir. 1983),

cert. denied, 104 S.Ct. 744 (1984)

(comparing the majority and dissenting

opinions, and the extent to which they

agree).

A-70

a a ee eS a. ee

very heavy burden of proof set forth in Swain

has been extensively criticized by

commentators." United States v. Childress,

715 F.2d 1313, 1316 (8th Cir. 1983)(en banc),

cert. denied, 104 S.Ct. 744 (1984). Ina

related vein, it has also been stated that

"Swain obviously furnishes no protection

whatever to the first defendant who suffers

such discrimination in any given court."

People v. Wheeler, 583 P.2d 748, 767 (Cal.

1978).© What these concerns are directly

relevant to, though, is the proof required to

sustain a claim that the prosecution's

6mMuch the same thing, of course, could be said

of any approach under which a material factor

in the judgment in a particular case is an

evaluation of the results in other similar

Situations over a period of time. Per-

formance over time frequently has been looked

to in venire underrepresentation cases. See

cases and principles discussed in Rose v.

Mitchell, 99 S.Ct. 2993, 3005, 3007, 3009

(1979). Cf. Wainwright v. Witt, 105 S.Ct.

844, 860 nn. 1-2, 871 n. 11 (1985)(Brennan,

J., dissenting; observations relating to con-

Sistent affirmance of convictions by death-

qualified juries and more recent evidence of

their conviction-proneness).

A-71

exercise of peremptory challenges is of the

second Swain kind. Here, as noted, we are

not concerned with how such a claim is or

should be proved, because no such claim is

asserted. What we are concerned with is a

claim of racially based peremptory challenges

of the first Swain kind.

We turn then to Swain part II for an

understanding of the holding--from which no

Justice on that Court, then well past a

decade under the leadership of Chief Justice

Warren, dissented--that this sort of

peremptory challenge is valid. Justice White

commenced by stating that the defendant's

motion "seeking as it did to invalidate the

alleged purposeful striking of Negroes from

the jury...was properly denied." Id. at 83l.

He noted that "there is merit in" the state's

contention that the system of peremptory

strikes, described as “challenges without

cause, without explanation and without

~ A-72

i ee ee Do Net ae “Nein sed ye a VE gets lai Oe ee TT iyi _

judicial scrutiny,” justified “striking any

group of otherwise qualified jurors in any

given case, whether they be Negroes,

Catholics, accountants or those with blue

eyes." Id.

The opinion traces the over

600-year-old history of the peremptory

challege at common law, observing that in one

form or another "“[pJeremptories on both sides

became the settled law of England" and that

"[tJhis common law provided the starting

point for peremptories in this country." Id.

at 832. The opinion further traces the

continuous existence, from the beginnings of

this nation, of some form of peremptory

challenge, in all trials of serious offenses,

by both prosecution and defense in the

federal system and in all or nearly all of

the states. Id. at 832-34. The majority

took note of the existence of explicit

statutory recognition of the government's

A-73

right of peremptory challenge in federal

courts ever since 1865. Id. at 832-33.

Although he recognized that the United States

Constitution does not mandate the

availability of peremptory challenges,’

Justice White stated that "[t]he persistence

of peremptories and their extensive use

demonstrates the long and widely held belief

that peremptory challenge is a necessary part

of trial by jury." Id. at 835.8

The opinion continues by noting:

"The function of the challenge is

not only to eliminate extremes of

partiality on both sides, but to

assure the parties that the jurors

7While several other Supreme Court opinions

have also so stated, see Stilson v. United

States, 40 S.Ct. 28, 30 (1919); United States

v. Wood, 57 S.Ct. 177, 185 (1936); Frazier v.

United States, 69 S.Ct. 210, 206 n. ll

(1949), the Court has never been faced with a

complete abrogation of the peremptory

challenge.

8see Lewis v. United States, 13 S.Ct. 136, 138

(1892)("The right of [peremptory] challenge

comes from the common law with the trial by

jury itself, and has always been held essen-

tial to the fairness of trial by jury.").

A-74

before whom they try the case will

decide on the basis of the evidence

placed before them, and not

otherwise." Id. at 835.

It also explains that "the peremptory permits

rejection for a real or imagined partiality

that is less easily designated or

demonstrable" than is required for challenges

for cause. Id. at 836.9 Another function

of the peremptory is that it "facilitates the

exercise of challenges for cause by removing

the fear of incurring a juror's hostility

through examination and challenge for cause."

Id. at 835. The state is as fully entitled

to these benefits as the defendant:

"[T]he view in this country has been

that the system should guarantee ‘not

only freedom from any bias against

the accused, but also from any

prejudice against his prosecution.

Between him and the state the scales

9A related, long-recognized common-law

function noted by Justice Story is that the

prisoner "may not be tried by persons against

whom he has conceived a prejudice." United

States v. Marchant & Colson, 12 Wheat 480,

481, 6 L.Ed. 700, 702 (1827). See also Lewis

v. United States, 13 S.Ct. 136, 138 (1892).

A-75

are to be evenly held.' Hayes v.

State of Missouri, 120 U.S. 68, 70, 7 |

S.Ct. 350, 351, 30 L.Ed. 578 [(1887]."

Id.

ee

As to use of peremptories on the basis

of the racial or other group-related, as

opposed to individual, characteristics of the

challenged venireperson, Swain states that:

"It [the peremptory challenge] is no

less frequently exercised on grounds

normally though irrelevant to legal

proceedings or officia action,

namely, the race, religion,

nationality, occupation or

affiliations of people summoned for

jury duty. For the question a

prosecutor or defense counsel must

decide is not whether a juror of a

particular race or nationality is in

fact partial, but whether one from a

different group is less likely to be.

It is well known that these factors

are widely explored during the voir

dire, by both prosecutor and

accused....This Court has held that

the fairness of trial by jury

requires no less...Hence veniremen

are not always judged solely as

individuals for the purpose of

exercising peremptory challenges.

Rather they are challenged in light

of the limited knowledge counsel has

of them, which may include their

group affiliations, in the context of

the case to be tried.

Pans is REAM RS SPOT DRE OS AN RR CL

peel te ETS Tile RS ein

A-76

",..In the quest for an impartial

and qualified jury, Negro and white,

Protestant and Catholic, are alike

subject to being challenged without

cause. To subject the prosecutor's

challenge in any particular case to

the demands and traditional standards

of the Equal Protection Clause would

entail a radical change in the nature

and operation of the challenge. The

challenge, pro tanto, would no longer

be peremptory....

"...The presumption in any

particular case must be that the

prosecutor is using the State's

challenges to obtain a fair and

impartial jury to try the case before

the court. The presumption is not

overcome and the prosecutor therefore

subjected to examination by

allegations that in the case at hand

all Negroes were removed from the

jury or that they were removed

because they were Negroes." Id. at

836-37 (footnotes omitted).

This language is, of coures, wholly at

odds with the theory of such cases as People

v. Wheeler, supra, and Commonwealth v.

Soares, 387 N.E.2d 499, 514-15 (Mass.), cert.

denied, 100 S.Ct. 170 (1979), that a

venireperson may not properly be peremptorily

challenged because of characteristics thought

A-77

to be peculiarly common to any "“cognizable"

group of which she is a member, as

distinguished from her assumed uniquely

individual (or noncognizable group)

characteristics. Plainly, the Supreme Court

in Swain has held that a prosecutor may

peremptorily challenge on racial (or similar

group) grounds so long as he does so, as

Leslie in essence claims was done here, on

"considerations related to the case he is

trying, the particular defendant involved and

the particular crime charged." Swain, 85

§.Ct. at 837.

In sum, as the Eighth Circuit said in

United States v. Carter, 528 F.2d 844, 850

(8th Cir. 1975), cert. denied, 96 S.Ct. 1745

(1976), “the Supreme Court in Swain made it

clear that race or other group affiliation is

A-78

in fact a legitimate ground for challenge in

an individual case.*10

l0similarly, we have said “the Supreme Court

has recognized that the peremptory challenge

cannot be subject to judicial review even

when exercised by the prosecution along

racial lines." Sorenson v. Ra nd, 532 F.2d

496, 500 (5th Cir. 1976) (citing . part

II). This, of course, is the recognized view.

See, e.g., United States v. Th son, 730

F.2d 82, 85 (8th Cir.), cert. , 105

S.Ct. 443 (1984)(prosecution peremptory

challenges of blacks from venire confessedly

"based on the assumed racial affinity of

these prospective jurors to designated black

alibi witneses" is sanction by Swain and does

not violate the sixth amendment); United

States v. Clark, 737 F.2d 679, 682 (7th Cir.

) tjhe Supreme Court held some years

ago that it is not a denial of the equal

protection of the laws for a prosecutor to

base peremptory challenges on racial grounds,

provided that he is not doing so in pursuance

of a systematic policy of racial exclusion

from juries," citing Swain); United States v.

Newman, 549 F.2d 240, 249 (2d Cir. 1977)

(proper peremptory under Swain where

prosecutors "'believed that the striking of

Black veniremen would lessen the risk of bias

in favor of the [black] defendant'"); United

States v. Danzey, 476 F.Supp. 1065, 1066

(E.D.N.Y. 1979), att’ d per curiam, 620 F.2d

286, reh'g en banc denied, 622 F.2d 1065,

1066 (2d Cir.), cert. denied, 101 S.Ct. 225

(1980)(peremptory challenges “to exclude

jurors of the same ethnic background as the

defendant"; four judges concurring in denial

A-79

Swain and the Sixth Amendment

It has been suggested that Swain is no

longer authoritative, or at least is not

authoritative with respect to cases in which

the sixth amendment is implicated, because it

was decided some three years before it was

first held, in Duncan v. Louisiana, 88 S.Ct.

1444 (1968), that the sixth amendment applied

of rehearing en banc state that "use of

peremptory challenges based on a group bias

assumption denies no cognizable legal rights

‘in any particular case,'" citing Swain,

though it might do so if used “to exclude

Blacks from service as jurors in general or

in a significant category of cases"); King v.

County of Nassau, 581 F.Supp. 493, 500

(E.D.N.Y. 1984)("under Swain, state use of

racial criteria in making peremptory

challenges is illegal only when the state,

acting on a policy of white dominance,

attempts to keep blacks off all juries"

(ongperee in original)); State v. ee 286

N.W.2d 607, 611 (Wis. Ct. App. 1979 gmaia,

as adopted, establishes race as an

appropriate basis for the exercise of

peremptory challenges").

A-80

ee OE Ee EEE eee ——

to the states.11 In this connection, it is

claimed that the racially based peremptory

challenges of the kind sustained in Swain

part II violate the sixth amendment's

"cross-section requirement," particularly as

reflected in cases such as Taylor v.

Louisiana, 95 S.Ct. 692 (1975). See McCray

v. Abrams, 750 F.2d 1113, 1124-30 (2d Cir.

1984), reh'g en banc denied, No. 84-2026,

slip op. at 2356 (2d Cir. Mar. 4, 1985).

Certainly no such view is open to

adoption by this panel. This Court

consistently has applied Swain in federal

prosecutions, even when it has been obvious

that the sixth amendment is applicable.

Thus, we stated in United States v. Williams,

446 F.2d 486, 488 (5th Cir. 1971):

llin-DeStefano v. Woods, 88 S.Ct. 2093 (1968)

(per curiam), the Court held that Duncan was

inapplicable to cases in which trial began

prior to May 20, 1968, the date Duncan was

decided.

A-81

"Appellant next contends that he was

denied his constitutional rights to a

trial by an impartial jury.

Appellant, a Negro, was tried by an

all-white jury....He objects,

however, to the fact that although

there were three Negroes on the

twenty-eight-man jury venire, all

three were peremptorily stricken by

the Government prosecutor without

cause or explanation, in violation of

his Sixth Amendment rights. Such a

contention conflicts with the holding

of Swain v. State of Alabama...in

which the Supreme Court upheld the

system of peremptory challenges,

explicitly finding merit in the

State's argument that the system

affords ‘a suitable and necessary

method of securing juries which in

fact and in the opinion of the

parties are fair and impartial.'"

Other decisions of this Court applying Swain

in federal prosecutions include: Davis v.

United States, 374 F.2d 1, 5 (5th Cir. 1967);

United States v. Pearson, 448 F.2d 1207,

1213-14 (5th Cir. 1971); United States v.

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

1972)(per curiam). We have continued with

like holdings after Taylor. See e.g., United

States v. Durham, 587 F.2d 799, 801 (5th Cir.

A-82

eee ees

ee APR <s .

Rm

1979); United States v. McLaurin, 557 F.2d

1064, 1076 (5th Cir.), cert. denied sub

nom. Hamilton v. United States, 98 S.Ct. 743

(1977). In affirming the conviction in

McLaurin, we stated:

"They [appellants] argue that...the

government exercised its peremptory

challenges in a racially

discriminatory manner, the net effect

of which was to deny the appellants

their right to be tried by a jury

which is representative of their

community.

"...-Although Swain of course

involved state rather than federal

proceedings, we apply the same

standards and analysis in our review

of federal criminal trials." Id. at

1076 (emphasis added; footnote

omitted).

Likewise, we have continued to apply

Swain to our consideration of habeas corpus

applications arising from state convictions

in trials after Duncan and Taylor. See

Easter v. Estelle, 609 F.2d 756, 759-60 (5th

Cir.. 1980); Prejean v. Blackburn, 743 F.2d

1091, 1103-04 (5th Cir. 1984). In Prejean we

A-83

followed this course despite explicit

recoanition of the opinions on the denial of

certiorari in McCray v. New York, 103 S.Ct.

2438 (1983). We cited with approval the

Eleventh Circuit's opinion in Willis v. Zant,

720 F.28 1212, 1217+2k tiltea Cir. 1983),

cert. denied, 104 S.Ct. 3546 (1984), in which

that Circuit stated (720 F.2d at 1219 n. 14),

"[W]le decline petitioner's invitation to

extend the sixth amendment's cross-section

analysis under Taylor, supra, to traverse

jury itself." See Prejean, 743 F.2d at 1104

. 8, Mae See also Sonnier v. Maggio, 720

F.2d 401, 407-08, reh'g en banc denied, 723

F.2d 907 (5th Cir. 1983), cert. denied, 104

S.Ct. 1331 (1984).

In its referenced holdings, our Court

is consistent with a vast host of decisions

by other Circuits which apply Swain in

federal prosecutions and in habeas cases for

State trials after Duncan and Taylor. No

A-84

useful purpose would be served by citing all

of these cases. Some pre-date Swain itself,

such as Hall v. United States, 168 F.2d 161

(@8.¢. Citsds¢ ear. @ensea, 68 &.Ct. . i363

(1948), where the dissent was expressly

grounded on the theory that the jury must be

drawn from across section, with no

cognizable group intentionally excluded, and

that the federal courts should ensure this by

use of supervisory powers over peremptory

challenges. Id. at 165-66. Hall was cited

with approval in Swain, 85 S.Ct. at 836 n.

26, and also by this Court in Carlton, 456

F.2d at 208. Some of the more recent federal

appellate decisions to the same effect are

collected in the dissent in McCray v. Abrams,

A-85

750 F.2d at 1136.12 McCray appears to be

the sole federal appellate decision reaching

a contrary result, albeit over a vigorous

dissent.13

l2These are Willis v. Zant, 720 F.2d 1212, 1219

n. 14 (llth Cir. 1983), cert. denied, 104

S.Ct. 3546 (1984); United States v.

Childress, 715 F.2d 1313 (8th Cir. 1983)(en

banc), cert. denied, 104 S.Ct. 744 (1984);

United States v. Whitfield, 715 F.2d 145,

146-47 (4th Cir. 1983); Weathersby v. Morris,

708 F.2d 1493, 1497 (9th Cir. 1983), cert.

denied, 104 S.Ct. 719 (1984); United States

v. Canel, 708 F.2d 894, 898 (3d Cir.), cert.

denied, 104 S.Ct. 165 (183); United States v.

Jenkins, 701 F.2d 850, 859-60 (10th Cir.

1983). See also United States v. Newman, 549

F.2d 240, 244, 246 (2d Cir. 1977); United

States v. Danzey, 476 F.Supp. 1065, 1067

(E.D.N.Y. 1979), aff'd per curiam, 620 F.2d

286, reh'g en banc denied, 622 F.2d 1065 (2d

Cir.), cert. denied, 101 S.Ct. 225 (1980);

United States v. Thompson, 730 F.2d 82, 85

(8th Cir.), cert. denied, 105 S.Ct. 443

(1984); United States v. Clark, 737 F.2d 679,

681-82 (7th Cir. 1984); United States v.

Calhoun, 542 F.2d 1094, 1103 (9th Cir. 1976).

l3as reflected in the opinions on denial of

rehearing en banc, McCray's precedential

value is undermined “by the lack of adversity

between the litigants on the central issue in

the case," leading at least one member of the

Second Circuit to view it as not binding on

future panels of that Court. McCray v.

Abrams, No. 84-2026, slip op. at 2356 (2d Cir.

Mar. 4, 1985).

A-86

Before the 1978 decision in People v.

Wheeler, the state courts had been unanimous

in following the principle of Swain. See

Baneot.,. 79 O&.ch. 2G 14.449 179% Wheeler

itself, though it gives extensive

consideration to decisions of the United

States Supreme Court, is ultimately based on

the California Constitution. The California

Supreme Court stated:

"The court's motivation in Swain

seems to have been its desire to

avoid what it believed would be ‘a

radical change in the nature and

operation of the [peremptory]

challenge’ (380 U.S. at pp. 221-222,

85 S.Ct. at p. 836), and we strongly

Suspect that desire has survived the

advent of the Taylor rule. We

therefore assume that the present

question were before the high court

it would reaffirm Swain and reach the

Same result under the representative

cross-section rule as it did under

the equal protection clause." 583

P.2d at 767 (footnote omitted. )14

Other states that have followed Wheeler have

14The Wheeler opinion also observes that

Justice White is the author of both Swain and

Taylor. See Wheeler, 583 P.2d at 767 n. 33.

A-87

likewise based their decision on local law.

See Commonwealth v. Soares, supra; State v.

Neil, 457 So.2d 481, 486 (Fla. 1984). See

also State v. Crespin, 612 P.2d 716, 718

(N.M. Ct. App. 1980)(construing New Mexico

Constitution).15

However, the Swain approach remains the

overwhelming majority rule among the states.

Justice Marshall, dissenting from the denial

of certiorari in Gilliard v. Mississippi, 104

S.Ct. 40, 43 (1983), observed:

"To my knowledge, in the five years

since Wheeler and Soares, not a

single state supreme court has

imposed state constitutional limits

on peremptory challenges. In fact,

over the same period, at least 19

15crespin's actual holding is that the prosecu-

tion's peremptory challenge of the sole black

on the venire did not authorize the trial

court to require the prosecutor to state a

reason for the challenge, and such a case "is

controlled by both the analysis and the

concern raised in Swain," although the

opinion goes on to say that if an unspecified

greater number of challenges had been so

utilized, the "Wheeler-Soares rationale"

would apply by virtue of the New Mexico

Constitution. 612 P.2d at 717, 718.

A-88

jurisdictions have considered the

issue and, following Swain,

reaffirmed their view that the

exclusion of Negroes by peremptory

challenges is constitutional in the

absence of evidence of systematic

exclusion." (Footnotes omitted. )1°

Moreover, when Swain was decided the

cross-section principle already had long been

established, and was indisputably applicable

to the states at least as it pertained to the

l6The state decisions which have considered and

rejected Wheeler and Soares are cited in foot-

note 3 to Justice Marshall's dissent. 104

S.Ct. at 43 n. 3. See also cases cited in

State v. Neil, 457 So.2d 481, 484 n. 3 (Fla.

1984), and in People v. Williams, 97 I11.2d

252, 454 N.E.2d 220, 233 (1983), cert.

denied, 104 S.Ct. 2364 (1984). For earlier

decisions see Annot., 79 A.L.R.3d 14 (1977).

Since Justice Marshall wrote, Florida has

switched from anti- to pro-Wheeler-Soares,

see State v. Neil, supra, Maryland can likely

be considered as in the undecided, rather

than the anti-Wheeler~-Soares, faction, see

Lawrence v. State, 457 A.2d 1127, 1133 (Md.

1983), and Indiana has joined the ranks of

those rejecting Wheeler-Soares. See Hobson

v. State, 471 N.E.2d 281, 285-86 (Ind. 1984).

Nevertheless, Justice Marshall's statement

remains essentially correct: the over-

whelming weight of authority in the states

rejects Wheeler and Soares. Moreover, this

rejection is spread throughout all the major

geographic regions of our nation.

A-89

Swain context, namely, a black challenging

his conviction on the ground that the jury

selection procedures tended to reduce the

presence of blacks in the venire and on the

jury below the level of a representative

cross-section. Thus, Justice White stated

for the Court in Taylor:

"A unanimous Court stated in Smith v.

Texas, 311 U.S. 128, 130, 61 S.Ct.

164, 165, 85 L.Ed. 84 (1940), that

'ftiJt is part of the established

tradition in the use of juries as

instruments of public justice that

the jury be a body truly

representative of the community.‘ To

exclude racial groups from jury

service was said to be ‘at war with

our basic concepts of a democratic

society and a representative

government.' A state jury system

that resulted in systematic exclusion

of Negroes as jurors was therefore

held to violate the Equal Protection

Clause of the Fourteenth Amendment.

"...iIn Brown v. Allen, 344 U.S.

443, 474, 73 S.Ct. 397, 416, 97 L.Ed.

469 (1953), the Court declared that

'foJur duty to protect the federal

constitutional rights of all does not

mean we must or should impose on

states our conception of the proper

source of jury lists, so long as the

source reasonebly reflects a

A-90

cross-section of the population

suitable in character and

intelligence for that civic duty.'

"The unmistakable import of this

Court's opinions, at least since

1940, Smith v. Texas, supra, and not

repudiated by intervening decisions,

is that the selection of a petit jury

from a representative cross section

of the community is an essential

component of the Sixth Amendment

right to a jury trial." 95 S.Ct. at

696-97.17

l7tThis is not to say that application of the

sixth amendment to the states added nothing

to the jury selection question. Rather

Rather, what it added is not material in the

Swain context. For example, the sixth amend-

ment allows one not a member of the under-

represented class to complain, Taylor, while

this result is, or rather at least was, less

clear under the equal protection clause. See

Alexander v. Louisiana, 92 S.Ct. 1221, 1226

(1972); Peters v. Kifft, 92 S.Ct. 2163,

2168-69 (1972). Further, where the under-

represented group is not a racial one, the

sixth amendment's protection may be stronger

than that of the equal protection clause.

See Duren v. Missouri, 99 S.Ct. 664 (1979);

Hoyt v. Florida, 82 S.Ct. 159 (1961). but

Swain involved a black defendant claiming

underrepresentation of his race. Finally,

under the equal protection clause the

statistical case is only prima facie, and may

be rebutted by a sufficiently strong showing

of lack of discriminatory intent or determina-

A-91

ss iidataaieniataeciaime ian,

I also observe that Swain part [I is

largely based on an analysis of the current

and historical role of the peremptory

challenge in the common law and American jury

system generally. It particularly relies on

federal criminal cases, such as Lewis v.

United States, 13 S.Ct. 136 (1892); Pointer

v. United States, 14 S.Ct. 410 (1894);

Harrison v. United States, 16 S.Ct. 961

(1896); Miles v. United States, 26 L.Ed. 481

(1881); and Aldridge v. United States, 5l

tive effect, while under the sixth amendment

the response to the same threshold showing

must be one of “adequate justification."

Duren, 99 S.Ct. at 670 n. 26. This is not

material in the Swain context where the ques-

tion was whether a threshold showing had been

made.

It may also be noted that this Court has like-

wise long been sensitive to the cross-section

principle. See the various opinions in

Rabinowitz v. United States, 366 F.2d 34,

57-58, 77-79, 83 (5th Cir. 1966)(Rives, Jr.;

Brown, J., concurring; Bell, J., dissenting

in part). This has not prevented us from

applying Swain to federal cases o. post-1968

state habeas cases.

A-92

S.Ct. 470 (1931). The opinion likewise

carefully traces the history of the use of

the peremptory challenge in federal criminal

trials up to 1965. Accordingly, it stands

Swain on its head to suggest that it could be

consistent with a holding that the sixth

amendment's guarantee of "trial, by an

impartial jury," or the requirement of

article III, section 2, clause 3, that “trial

of all [c]rimes...be by [j]Jury,”" forbids or

militates against the kind of peremptory

challenge approved in Swain part II. Swain's

approval of one type of racially based

peremptory strike was based on the premise

that the type of peremptory challenge there

sustained was an integral and recognized part

of such a jury trial. The egual protection

clause was thought not to forbid what was so

clearly authorized as a significant part of

the constitutionally required jury trial.

A-93

Moreover, the cross-section principle

is inapplicable to the kind of group-based

peremptory challenge dealt with in Swain part

II. To begin with, the cross-section cases

are largely couched in terms of systematic

exclusion. Further, the cross-section

principle is applied to the formation of the

venires, not the individual juries selected

from them.!8 thus, in Apodaca v. Oregon,

18tt has been suggested that Witherspoon v.

Illnois, 88 S.Ct. 1770 (1968), indicates that

the cross-section requirement is applied at

the jury, as well as the venire, selection

level. McCray v. Abrams, 750 F.2d at 1129.

I am not persuaded.

To begin with, we have consistently held that

in capital cases peremptory challenges may be

used to exclude those who express hesitancy

about imposing the death penalty but whose

exclusion for cause is forbidden by

we puer spoon. See Jordan v. Watkins, 681 F.2d

1067, 70 & n. 2 (5th Cir. 1982) (citing

Swain); Sonnier v. Maggio, 720 F.2d 401,

406-07, reh'g en banc denied, 723 F.2d 907

(5th Cir. 1983), cert. denied, 104 S.Ct. 1331

(1984)(citing Swain). See also Dobbert v.

Strickland, 718 F.2d 1518, 1525 (llth Cir.

1983), cert. denied, 104 S.Ct. 3591 (1984)

(same). Cf. Grigsby v. Mabry, No. 83-2113,

A-94

92 S.Ct. 1628, 1634 (1972), Justice White

slip op. (8th Cir. Jan. 30, 1985)(en banc)

(challenge for cause, but not peremptory

challenge, of Witherspoon excludables

violates the cross-section requirement on the

guilt or innocence issue in capital case).

Justice Brennan (Justice Marshall concurring)

has noted that allowing challenge for cause

in a capital case where the requirements of

Witherspoon have not been met violates the

jury cross-section cases, stating: "Though

these cases involve systematic exclusion from

the jury pool and not from a particular jury,

death-qualification is the functional

equivalent of exclusion from the pool. the

prosecution has unlimited ability to

challenge prospective jurors for cause and

uses the challenges to remove all members of

an identifiable segment of the community from_

the pool." Wainwright v. Witt, 105 S.Ct.

844, 870 n. 10 (1985) (dissenting opinion)

(emphasis added). Obviously, these remarks

are inapplicable to peremptory challenges.

Further, where a particular ground of

challenge for cause (such as opposition to

the death penalty) is recognized by state

law, this has an inherently systematic effect

not present in the peremptory challenge exer-

cised on an individual case basis (i.e., of

the Swain part II variety).

Moreover, Witherspoon's reliance on the cross-

section approach has been deemphasized, while

the broad discretion afforded juries in death

penalty cases at that time has been seen as a

particularly important factor in Witherspoon.

A-95

stated:

"All that the Constitution forbids,

however, is systematic exclusion of

identifiable segments of the

community from jury panels and from

the juries ultimately drawn from

those panels; a defendant may not,

for example, challenge the makeup of

a jury merely because no members of

his race are on the jury, but must

prove that his race has been

systematically excluded. See Swain

Vv. Alabama, 380 U.S. 202, 208-209, 85

S.Ct. 824, 829, 13 L.Ed.2d 759

(1965)...." (Emphasis added.)

See Wainwright v. Witt, 105 S.Ct. at 851, 852

n. 5. And, obviously, the result in

Wither and succeeding cases has been

heavily influenced by the uniqueness of the

death penalty.

Pinally, witherspoon and its progeny have

recognized that the exclusion of "Witherspoon-

excludables" is acceptable, though obviously

that has adverse “cross-sectional” effects.

(15787 WatRiwe ight v. Witt, s - Except

for Grigsby, every appellate Zecisioa thes

held that this is so even as to the guilt or

innocence stage. Sée woke supra; Smith

ni ex Spinkeliiox Vv.

wrig 4-95 (5)

Gn» , cert. enies 99 S.Ct. 2064

(1979); Sonnier, F.2d at 407-08; Keeten

v. Garrison, 742 F.2d 129, 133-34 (4th Cir.

1984).

A-96

Similarly, in Taylor, Justice White

stated for the Court:

"If the fair-cross-section rule is to

govern the selection of juries, as we

have concluded it must, women cannot

be systematically excluded from jury

canara from which petit juries are

drawn.

"It should also be emphasized

that in holding that petit juries

must be drawn from a source fairly

representative of the community we

impose no requirement that petit

juries actually chosen must mirror

the community and reflect the various

distinctive groups in the population.

Defendants are not entitled to a jury

of any particular composition...but

the jury wheels, pools of names,

panels, or venires from which juries

are drawn must not systematically

exclude distinctive groups in the

community and thereby fail to be

reasonably representative thereof."

95 S.Ct. 692 at 699, 702 (emphasis

added).

And, in Duren v. Missouri, 99 S.Ct.

6664 (1979), Justice White again speaking for

the Court:

"In order to ascertain a prima facie

violation of the fair-cross-section

A-97

requirement, the defendant must show

(1) that the group alleged to be

excluded is a ‘distinctive’ group in

the community; (2) that the

representation of this group in

venires from which juries are

selected is not fair and reasonable

in the relation to the number of such

persons in the community; and (3)

that this underrepresentation is due

to systematic exclusion of the group

in the jury-selection process.

"Finally, in order to establish a

prima facie case, it was necessary

for petitioner to show that the

underrepresentation of women,

generally and on his venire, was due

to their systematic exclusion in the

jury-selection process." Id. at

668-69 (emphasis added).

See also Rabinowitz v. United States, 366

F.2d 34, 59 (5th Cir. 1966)("The focus of the

law is on the list from which the jury is

drawn and not on the composition of a

particular jury....").

Plainly, then, the cross-section theory

does not speak to the use of peremptory

challenges of the Swain part II variety.

A-98

They are not systematic, and they do not

relate to the formation of the venires.

The argument has been made that

restricting the cross-section requirement to

the venire selection process is meaningless,

because juries decide cases while venires

decide nothing. See McCray, 350 F.2d at 1128.

This contention, however, ignores the vast

difference in function and purpose between

selection for a venire and selection for a

jury. Exclusion from the venire summons

process implies that the government (usually

the legislative or judicial branch) in its

capacity as the neutral structurer of the

overall justice system has generally

determined that those excluded are unfit to

try any case. Exercise of the peremptory

challenge, by contrast, represents the

discrete decision, made by one of two or more

opposed litigants in the trial phase of our

adversary system of justice, that the

A-99

challenged venireperson will be more

unfavorable to that litigant in that

Particular case than the others on the same

venire.

Thus, excluding a particular dodusivatne

group from all venire pools is stigmatizing

and discriminatory in several interrelated

ways that the peremptory challenge is not.

The former singles out the excluded group,

while individuals of all groups are equally

subject to the peremptory challenge on any

basis, including their group affiliation.

Further, venire-pool exclusion bespeaks a_

priori across-the-board ttal unfitness,

while peremptory-strike exclusion merely

suggests potential partiality in a particular

isolated case. Exclusion from venires

focuses on the inherent attributes of the

excluded group and infers its inferiority,

but the peremptory does not. To suggest that

a particular race is unfit to judge in any

A-100

case necessarily is racially insulting. To

suggest that each race may have its own

special concerns, or even may tend to favor

its own, is not. For instance, it says

nothing adverse, or even truly racial, about

blacks to infer that they may be more likely

to have greater antipathy to the Ku Klux Klan

than whites. Finally, the role played by the

decision maker is significant. If the

neutral structurer of the system excludes a

cognizable group, the exclusion necessarily

represents the official judgment of society

that the group is generally inferior. Under

the adversary framework of a trial, however,

society is neutral; neither side is favored,

neither speaks for society, each speaks only

for itself. To be peremptorily challenged by

one side or the other hence bespeaks a

judgment which is neither societal nor even

normative, but merely reflects the tactical

determination of one contesting litigant's

A-i0l

counsel that the challenged person is, under

the discrete facts of that particular case,

more likely to favor the other side, which in

the ultimate judgment of society may or may

not prove to be the side of virtue and right.

Moreover, the operative effects of the

peremptory challenge cannot be equated to

those of the general exclusion from venire

pools. Assuming the prosecution uses its

peremptories for the purpose of prevailing in

the particular case, and does so

intelligently, the jury drawn from a venire

representative of all cognizable groups, but

from which one group has been eliminated by

prosecution group-based peremptory

challenges, generally is more likely to be

acquittal prone than a jury drawn from an

otherwise similar venire that excludes any

members of that same group. In the latter

instance, unilke the former, the prosecution

could eliminate the most acquittal prone of

A-102

the remaining groups by using peremptory

challenges it otherwise would have used to

eliminate the group in question. Therefore,

inclusion of a group in the venire is not

"meaningless" to the end result simply

because that group may be eliminated from the

trial jury by peremptory challenge. Further,

the general exclusion from venire pools

allows the prosecutor (and the potential

defendant as well) greater ability to

predict, in advance of the decision to

prosecute, the composition of the jury which

will try the case. If no cognizable group is

excluded from the venire formation process,

the decision to prosecute (or to commit an

offense) normally cannot be made with

assurance that any give group will not be so

represented on the particular venire from

which the trial jury will be drawn that it

cannot be eliminated by peremptory challenges

(or can be eliminated only at unacceptable

-A-103

cost in terms of other peremptories foregone).

The prosecution in this case, for example,

could not have known in advance that the

twenty-eight venirepersons here would not

have included nine instead of six blacks or

six blacks and three others whom the

prosecution would have felt it imperative to

peremptorily strike.

It is, of course, true that if

peremptory challenges on the basis of group

affiliation as addressed in Swain part II

were to be prohibited, there might be some

indeterminable increase in the number of

trial juries whose composition more closely

mirrored the community's mixture of all

"cognizable" groups. But see, note 29,

infra, and accompanying text. However, such

mirroring at the actual trial-jury level is

not the "be all and end all" of the jury

system as we know and have known it. If it

were, we would take steps to more nearly

A-104

ensure that the composition of each

individual jury roughly mirrored the

community's group mixture with respect, say,

to male and female, "Anglo," "Hispanic," and

A-105

"Black."19 Obviously, however, any such

approach is completely contrary to the jury

19Por example, those summoned for the venire

could be classified by these groupings,

summonsing to continue until a sufficient

number in each group were achieved, with any

excess in particular groupings being excused;

each jury would be filled by drawing on these

groups, with no more than the appropriate

number drawn from each; a venireperson

removed by challenge would be replaced by one

from the same group. Thus, each jury ina

given community might be equally divided by

gender, and, say, one sixth Black, one third

Hispanic, and one half Anglo. Proportions

not divisible by the number of jurors might

be adjusted for by a method such as the

following: if Blacks were twenty percent,

Anglos forty-seven percent, and Hispanics

thirty-three percent of the community, then

juries would alternately be four Hispanic -

three Black - five Anglo, and four Hispanic -

two Black - six Anglo.

We do not even go so far as to do all we

practically can to ensure that each

particular venire mirrors the community's

mixture of such major "cognizable" groups, as

the initial step in the above example would

tend to accomplish. Indeed, Duren v.

Missouri, supra, indicates that the sixth

amendment's cross-section requirement, even

as applied to the presently conventional

method of selecting venires, can be diluted

on a systematic basis provided only that "a

significant state interest be manifestly and

primarily advanced" thereby. 99 S.Ct. at

670.

A-106

system as we understand and have employed it

throughout our history. And, as reflected

above, the “cross-section” cases are not to

the contrary. Indeed, the Supreme Court's

decisions that the sixth amendment requires

neither juries larger than six nor unanimous

verdicts, despite the general practice and

long history of a unanimous jury of twelve,

Williams v. Florida, 90 S.Ct. 1893, 1898-1900

(1970); Johnson v. Louisiana, 92 S.Ct. 1620,

1623, 1625 (1972)(due process); Apodaca v.

Oregon, 92 S.Ct. 1628, 1634 (1972),

necessarily bespeak the limited strength of

the cross-section principle as applied even

to the systematic structuring of the trial

jury. Juries of six are obviously much less

likely to have minority representation than

juries of twelve, and unanimity obviously

increases the power of the minority. The

Court was plainly aware of these

considerations. See Williams, 90 S.Ct. at

A-107

1906 & nn. 46-47. This is not to say that

cross-section considerations were deemed

irrelevant to such systematic structuring,

but merely that they were not controlling.

In respect to the five-person Georgia jury

system, the Court in Ballew v. Georgia, 98

S.Ct. 1029, 1040 (1978), stated that "the

question of representation does constitute

one factor of several that, when combined,

create a problem.of constitutional

significance under the Sixth and Fourteenth

Amendments." Nevertheless, Ballew refused to

retreat from Williams, despite recognition

that ten-percent minorities would be wholly

without "representation" in over half of

six-person juries, as contrasted to less than

thirty percent of twelve-person juries.

Ballew, 98 S.Ct. at 1037.

That factors other than those relating

to the cross-section principle are important

to the concept of the criminal jury is

A-108

likewise reflected by the passage in Baldwin

v. New York, 90 S.Ct. 1886, 1890 (1970),

which describes "the primary purpose of the

jury" as follows:

"(T]he jury interposes between the

accused and his accuser the judgment

of laymen who are less tutored

perhaps than a judge or panel of

judges, but who at the same time are

less likely to function or appear as

but another arm of the Government

that has proceeded against him,"

(Footnote omitted. )

Similarly, Apodaca states:

"{T]jJhe purpose of trial by jury is to

prevent oppression by the Government

by providing a ‘safeguard against the

corrupt or overzealous prosecutor and

against the complaint., biased or

eccentric judge.' Duncan v.

Louisiana, 391 U.S., at 156, 88

S.Ct., at 1451. ‘Given this purpose,

the essential feature of a jury

obviously lies in the interposition

between the accused and his accuser

of the commonsense jugment of a gruop

of layment...' Williams v. Florida,

supra, 399 U.S., at 100, 90 S.Ct., at

1906." 92 S.Ct. at 1632-33.

The United States Constitution does not

speak of a "cross section" or

"representative" or similarly described jury.

A-109

Of course, this does not mean that our jury

system does not embrace cross-section values,

but it does mean that such values are

embraced in the context of, and are limited

by, the overall concept of trial by jury.

That concept, as Swain makes clear, includes

peremptory challenges, both for individual

and group characteristics, when made for the

purposes of the particular case being tried.

This is likewise evident from Williams, where

Justice White, responding to the argument

that the jury of six impermissibly diluted

community cross-section representation,

|

observed:

"Even the 12-man jury cannot insure

representation of every distinct

voice in the community, particularly

given the use of the peremptory

challenge." Williams, 90 S.Ct. at

1907 (emphasis added).

The legislative history of the Federal

Jury Selection and Service Act of 1968 also

reflects that the value of the cross-section

A-110

principle in the jury system is not so

unlimited and overriding as to warrant

restriction of the traditional scope of the

peremptory challenge. Pub. L. No. 90-274,

§101, 82 Stat. 54, 28 U.S.C. §1861 et seq.

It is to be noted that Justice White, in

Taylor, refers to this legislation as

embodying a proper recognition and

implementation of the principle "that the

requirement of a jury's being chosen from a

fair cross section of the community is

fundamental to the American system of

Seetiee.* $5 §.Ct. at 697. The Taylor

opinion refers to the legislative history of

this Act, including the House and Senate

Committee Reports. Id. at 697 nn. 7-8. When

Congress considered this legislation it was

obviously aware of Swain, decided only three

years earlier. The following from the House

Committee Report is hence particularly

cs

Significant:

A-1lll

"The act guarantees only that the

jury shall be ‘selected at random

from a fair cross section of the

community.' It does not require that

at any stage beyond the initial

source list the selection process

shall produce groups that accurately

mirror community makeup. Thus, no

challenge lies on that basis.

",..1I1t should be noted, however,

that the bill does not change the

method of challenging jurors at voir

dire. In particular, the bill leaves

undisturbed the right of a litigant

to exercise his peremptory challenges

to eliminate Jurors for purely

subjective reasons." H.R. Rep. No.

1076, 90th Cong., 2d Sess., reprinted

in 1968 U.S. Code Cong. & Ad. News

1792, 1794-95 (emphasis added).

The jury required by the sixth

amendment must be “impartial.“ This is a

requirement applicable to each particular,

individval jury, in each discrete case. It

does not, however, imply that a party is

4

entitled to any representative of his or her

A-112

"group" on the jury,29 even where that

group is a significant one in the community

where the trial takes place and from which

the venire is drawn. Taylor, 95 S.Ct. at 702

("[N]o requirement that petit juries actually

chosen must...reflect the various distinctive

groups in the population. Defendants are not

entitled to a jury of any particular

composition....").

What the impartiality requirement does

imply is a jury each of whose members is

willing and able to decide the case solely on

the basis of the evidence introduced at trial

and the instructions of the court.

See Patton v. Yount, 104 S.Ct. 2885, 2892 n.

12 (1984)("The constitutional standard [is]

that a juror is impartial only if he can lay

aside his opinion and render a verdict based

20This country has not utilized anything

analogous to the ancient common-law rule that

an alien was entitled to a jury composed half

of aliens and half of citizens. See United

States v. Wood, 57 S.Ct. 177, 185 (1936).

A-113

on the evidence presented in court....").

While normally only demonstrated and almost

complete inability to put aside extraneous

considerations requires that a challenge for

cause be sustained, and it is often "scarcely

possible to avoid" jurors “whose minds are

entirely uninfluenced by opinions previously

formed," nevertheless the ideal remains

jurors who will "stand perfectly indifferent

between the parties" and “who fe[el] no bias

either way." Queen v. Hepburn, 7 Cranch 290,

297-98, 3 L.Ed. 348, 350 (1813). Hence,

challenge for cause may properly be sustained

in instances where such action is not

absolutely required. Id. In this

connection, it is also recognized that

bias--i.e., lack of impartiality in the

referenced sense--may arise because of a

group characteristic, such as race or

religion or other "cognizable" grouping.

See, e.g., Aldridge v. United States, 5l

A-114

S.Ct. 470, 472-73 & nn. 1-3 (1930);21 Miles

v. United States, 26 L.Ed. 481 (1883); Queen

v. Hepburn, supra; Ham v. South Carolina, 93

2lwhile Aldridge formally involved the issue of

the defendant's race, not that of the jurors,

it is unlikely that the question of prejudice

against blacks--as in issue there--would

arise with respect to a black juror. Indeed,

the Court noted that “the members of the jury

were white." 51 S.Ct. at 471. Moreover, in

support.of its holding, Aldridge expressly

relied on a case where the juror's group

affiliation--membership in the Know-Nothing

Party--was at issue. Id. at 472-73.

A-115

S.Ct. 848, 850-51 (1973).22 Though

excusing jurors for such bias may reduce the

cross sectionalization of the jury, we have

recognized that "[{a] cross-section of the

fair and impartial is more desirable than a.

fair cross-section of the prejudiced and

biased." Smith v. Balkcom, 660 F.2d 573, 583

(1981), modified in other respects, reh'g en

22Though extensions of Ham have been rejected

in Ristaino v. Ross, 96 S.Ct. 1017, 1020

(1976), and Rosales-Lopez v. United States,

101 S.Ct. 1629, 1635 (1981), these later

decisions nonetheless recognize the not infre-

quent desirability--though less often the

inflexible absolute necessity--of inquiry

into possible group prejudice of jurors.

See Ristaino at 1022 n. 9 ("wiser course

generally" is to inquire); Rosales-Lopez at

1636-37 (approving inquiry into prejudice

against aliens). A caveat to the desir-

ability of such an inquiry expressed in the

concurring opinion of Justice Rehnquist,

joined by the Chief Justice, in Rosales-Lopez

is the concern that it “could well exacerbate

whatever prejudice might exist without sub-

stantially aiding in exposing it." 101 S.Ct.

at 1638. The three Rosales-Lopez dissenters

took a broader view of the necessity for

inquiry into the possible group prejudice of

jurors. Id. at 1638-41.

A-116

banc denied, 671 F.2d 858 (5th Cir.), cert.

denied, 103 S.Ct. 181 (1982).

Plainly, however, the challenge for

cause is an inadequate tool for the

elimination of bias. To begin with, bias

exists along a continuum of strength or

degree; its place on that continuum will

often be impossible to gauge, and will

frequently depend on the circumstances of a

particular case. It is impractical--and

undesirable--to lay down the sort of general

tule implicit in the concept of challenge for

cause for any but the clearest and strongest

cases. This does not, however, mean that

bias of a "lesser" kind has no tendency to

undesirably inhibit the juror in the task of

deciding the case solely on the evidence and

the court's charge. Cf. Queen v. Hepburn,

Supra. It is universally recognized that the

peremptory challenge fills an important

function in this regard.

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Moreover, even if the juror has a bias

which would give rise to a camer challenge

for cause, this fact may not be demonstrable.

This was recognized in Swain, 85 S.Ct. at

836, as well as ina host of other decisions.

See, e.g., Hayes v. Missouri, 7 S.Ct. 350,

351 (1887). As the New York Court of Appeals

stated in People v. McCray, 443 N.E.2d 915,

918 (N.Y. 1982), cert. denied, 103 S.Ct. 2438

(1983):

"First, jurors may be reluctant to

admit their prejudices before

spectators or others present in the

courtroom during the voir dire.

Second, certain prospective jurors

may evade full disclosure of their

prejudices in an effort to avoid

being struck from the jury. Finally,

other prospective jurors may simply

be unaware of the existence of

certain biases or prejudices they may

harbor."

Further, the availability of the peremptory

protectors the challenge for cause, by

protecting against juror hostility resulting

from the inquiry. Swain, 85 S.Ct. at 836;

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Lewis v. United States, 13 S.Ct. 136, 138

(1892). As expressed in People v. McCray:

"Pointed questions directed at an

area as sensitive as a potential

juror's racial, religious or sexual

biases may, even where such biases do

not exist, alienate a juror against

counsel and his position," 443

N.E.2d at 918.23

23while conduct of voir dire by the judge may

reduce the potential for hostility, it will

not remove it. See Commonwealth v. Sanders,

421 N.E.2d 436, 439 (Mass. 1981) (questioning

along this line "'may activiate latent racial

bias in certain prospective jurors or may

insult others without uncovering evidence of

bias in hard-core bigots who refuse to

acknowledge their prejudice'"); Rosa besa teped

v. United States, 101 S.Ct. 1629, ( )

(Rehnquist, J., concurring; joined by Chief

Justice Burger)("could well exacerbate what-

ever prejudice might exist without substan-

tially aiding in exposing it").

Moreover, it is to be doubted that question-

ing by the court will be as effective in an

area such as this as questioning by counsel.

Cf. People v. McCray, 443 N.E.2d at 918:

"The inadequacy of relying upon voir

dire to filter out all potential

biases based upon group affinity is

exacerbated by the reluctance of some

Trial Judges to permit extensive,

time-consuming voir dire examina-~

tion."

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Thus, the peremptory challenge plays an

important role in the parties' quest for the

"impartial" jury--the jury of the sixth

amendment, composed of those who are willing

and able to decide the case solely on the

evidence and the law. As Swain states:

"The function of the challenge is

not only to eliminate extremes of

partiality on both sides, but to

assure the parties that the jurors

before whom they try the case will

decide on the basis of the evidence

placed before them, and not

otherwise." 85 S.Ct. at 835.

See also Lewis, 13 S. Ct. at 138 ("essential

to the fairness of trial by jury"); Hayes, 7

S.Ct. at 351 ("to secure the impartiality of

jurors"); Singer v. United States, 85 S.Ct.

783, 790 (1965)("likely to produce a fair

result"). The extent to which a juror's

circumstances may affect his impartiality

depends on the likelihood of the inference of

bias and the strength of the bias inferred,

under the facts of a particular trial, but

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not, per se, on whether the source of the

potential bias is affiliation with a

"cognizable" group as distinguished from all

other possible sources. The potential for

bias of Catholic against Ku Klux Klan member

is not inevitably less in every trial than

that of one with long hair?4 against the

police.

It has been argued that one party's

peremptories may exclude all of a minority

group, while the other's peremptories will be

insufficient to exclude the majority, with

resulting unfairness to the minority party.

See Soares, 387 N.E.2d at 516. To the extent

this reasoning implies that the resulting

jury is actually unfair to the minority

party, any such unfairness is no greater--and

in some circumstances is likely to be less,

24wheeler suggests that length of hair is an

individual characteristic on the basis of

which peremptory challenge may be properly

exercised. 583 P.2d at 760.

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for the reasons previously noted--than that

which might exist where the lack of minority

representation results from venire

composition due to chance, from the paucity

of minority residents in the community, from

challenge for cause, or from peremptory

challenge for “individual" reasons. To the

extent that the argument rests on analogy to

the cross-section cases, either in their

equal protection or in their sixth amendment

rationales, it does not take into account the

previously noted differences between the

venire-formation and peremptory-challenge

processes.

As a justification for prohibiting all

peremptory challenges based on "cognizable"

group affiliation, the "elimination of the

minority” rationale is also subject to other

objections. "Cognizable" group

Classifications are not limited to those of

minority and majority, but rather include

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classifications such as gender, national

ancestry, religion and economic status,

respecting which the divisions in a given

community may be approximately equal. Nor

has it been suggested that group-based

peremptories are permissible against

majorities but not minorities.25 Moreover,

the prohibition presumably would extend to

peremptories based on minority-group

affiliation even where that minority group,

either because of its chance

"overrepresentation”" on the particular venire

or some other reason, would not be wholly

eliminated from the panel or reduced

Significantly below its proportion in the

25There is no reason to assume that group-based

peremptory challenges are only utilized where

the challenged group can be wholly eliminated

or proportionately significantly reduced.

For example, in a given trial setting, group-

based considerations,; though present and

decisive as to one or two challenges, may not

be decisive as to any others, where

particular “individual" characteristics may

be more significant.

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community. 2§ Indeed, the minority might

261t may be argued that the minority is

"entitled" to its chance “overrepresentation"

on the jury, just as it is entitled to its

chance “overrepresentation" on the venire.

This, however, is an argument for a process,

not for a result in a given case. As an argu-

ment for a process, it fails to take into

account the previously noted differences

between the venire-formation and the

peremptory-strike processes.

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not be reduced below its proportion on the

venire.2?

Finally, the “elimination of the

minority" argument implicitly assumes that

the minority and majority are equally

homogeneous and stand at opposite poles from

one another with respect to their attitudes

271f a twenty-eight-person venire panel has ten

"minority" members (about thirty-six percent

of the panel) the six prosecution peremptory

challenges allowed by Fed.R.Crim.P. 24(b)

used against minority members will leave four

of the minority. If the defense uses its ten

peremptories against the majority, the result-

ing jury will be thirty-three percent

minority, approximately the same as the

panel.

The presence of those on the panel with

"individually" based attitudes one way or the

other may produce a similar result. If there

are six of the minority on the twenty-eight-

person panel, the prosecution may use three

of its peremptories on majority members based

on “individual" characteristics, and its

remaining three peremptories on minority

members based on their group affiliation.

See note 25, supra. If the defense uses its

ten peremptories against members of the

majority, the resulting jury will have a

Slightly higher minority percentage (three of

twelve) than did the panel (six of twenty-

eight).

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in a given case. The argument assumes that

if the prosecution strikes minority group

members on the basis of their group

affiliation, then majority group members

inevitably must be as likely is te as

conviction prone as the minority group

members are acquittal prone. However, this

is not necessarily so. To the contrary, as

applied to a given situation the feelings

among any one group may be strong and nearly

unanimous, while among another group there

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may be substantially more diversity and less

intensity of attitude. 28

With respect to the last-mentioned

consideration, a somewhat analogous point is

made in Note, Peremptory Challenges and the

Meaning of Jury Representation, 89 Yale L.J.

1177 (1980). This student note convincingly

argues that prosecution group-based exercise

of peremptories will tend to distort trial

28For example, in a given community the

attitudes of blacks toward the Ku Klux Klan

may well be nearly unanimous and strongly

adverse, while the attitudes of whites may

well be much more diverse and generally less

intense across the spectrum.

Again, an individual who is prominent in the

local black community, as appellant Leslie

apparently was, may well enjoy a generally

favorable reputation among, or have potential

for influence over, blacks of that area, but

may have no reputation whatever among, or

potential influence over, any significant

portion of the whites. While voir dire might

disclose some of this, nevertheless some of

the venire might not realize until later that

this was the man they had previously heard

favorably about, or might be reluctant to

speak out, or would be more susceptible to a

neighbor's chance comments during trial or

the like.

A-127

juries away from the mean of the community's

relevant attitudes only when such attitudes

are asymmetrically distributed about the

community mean and the challenged group

comprises an acquittal extreme more distant

from the mean than the conviction extreme.

In other situations, the prosecution's use of

group-based peremptories will enhance the

tendency of the trial jury to reflect the

mean of community attitudes, while in still

others it will have no effect one way or the

other on that tendency.29 Significantly,

29Note, Peremptory Challenges and the Meaning

of Jury Representation, 89 Yale L.J. 1177

(1980):

"Suppose that the social distribu-

tion, correctly reproduced on the

venire, is asymmetrical about the

mean--that the extremes in favor of

acquittal are farther away from the

mean than the extremes in favor of

conviction. Suppose further that the

acquittal extreme is occupied by

members of some subgroup. In this

case, the normal operation of the

peremptory will have a disproportion-

A-128

"[t]here is currently no empirical evidence

ate impact on members of that sub-

group. More importantly, it will

distort the jury's mean in favor of

conviction, because the prosecution's

removal of subgroup members will not

be fully balanced by the defense's

peremptory elimination of pro-convic-

tion jurors....

"On the other hand, the social

distribution might be symmetrical

about the mean, with extremes on both

sides equally far away. If members

of a subgroup are again supposed to

occupy one of the extremes, the

disproportionate removal of that sub-

group will have absolutely no effect

on the jury's mean impact. The

effect of these removals would be

fully offset by the removal of jurors

at the other extreme. In such a

case, a rule protecting subgroups by

limiting the peremptory would shift

the jury's mean away from that of

society, toward the extreme at which

the protected group clustered. Under

these circumstances, limiting the

peremptory would cause the jury to be

unrepresentative....Only if that sub-

group is at an extreme of an

asymmetrical social distribution will

limiting the peremptory protect repre-

sentation of the community. Other-

wise, such a limitation would distort

the community mean.

"Numerous other distributions of

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as to which distribution [of attitudes]

exists in any given community for any range

of cases." Id. at 1196.

I conclude that the group-based

peremptory challenge of the kind considered

in Swain part II is constitutional, not only

under the equal protection clause but under

the sixth amendment as well. This conclusion

verdict impact in society can be

imagined. In those that are

symmetrical but that do not have a

subgroup clustered at one end, both

the normal and limited peremptory

will have no systematic effect on the

jury's mean. In those that are

asymmetrical but that have subgroups

distributed evenly throughout, both

the normal and limited peremptory

will distort the jury mean toward the

nearer extreme. There is currently

no empirical evidence as to which

distribution exists in any given

community for any range of cases. In

the absence of knowledge as to the

actual distribution for the

geographic community from which a

jury is drawn, neither the normal nor

the limited peremptory has a predict-

able, systematic effect on the jury's

_ mean verdict impact as compared to

that of society." Id. at 1193-96

(footnotes omitted).

A-130

is premised on the understanding that such

challenges do not run counter to, but rather

form a recognized part of, the mix of values

inherent in the concept of trial by jury as

provided for in the sixth amendment and

article III, section 2, clause 3.

Supervisory Power

I recognize, of course, that the

majority has not rested its decision on

constitutional grounds, but rather on our

supervisory power. With all respect, this is

merely the same goods under a different label.

The same considerations that support or

oppose the constitutional challenge equally

support or oppose the employment of the

Supervisory power. "The values assigned to

the competing interests do not change because

a court has elected to analyze the question

under the supervisory power instead of the"

sixth amendment. United States v. Payner,

100 S.Ct. 2439, 2446-47 (1980). Moreover,

A-131

the numerous decisions that have left intact

the prosecution's and defense's unfettered

use of peremptory challenges for purposes of

the particular case being tried were not

decided on the theory that although racially

based challenges are undesirable or even

illegal they nevertheless are not so

egregious as to be unconstitutional. 39

Rather, they have been sustained because such

unfettered use, including consideration of

group affiliation, is an essential element of

the peremptory challenge itself and has

consistently been recognized as a proper,

30See United States v. Hasting, 103 S.Ct. 1974,

1978-79 (1983):

"The purposes underlying use of the

supervisory powers are threefold: to

implement a remedy for violation of

recognized rights [citations

omitted]; to preserve judicial

integrity by ensuring that a convic-

tion rests on appropriate considera-

tions validly before the jury

[citations omitted]; and finally, as

a remedy designed to deter illegal

conduct [citation omitted]."

A-132

important and integral part of trial by jury.

Hence the majority's decision here in essence

"amounts to a substitution of individual

judgment for the controlling decisions" of

the Supreme Court and the prior panels of

this Court. See Payner, 100 S.Ct. at 2447.

The majority has held that "the

district court must exercise its supervisory

authority to determine whether the prosecutor

has considered the veniremen's race in

employing his peremptory challenges"

(typewritten op. at 13). But, as heretofore

pointed out, Swain and related cases clearly

recognize that there is nothing inappropriate

in considering race when the peremptory is

exercised for purposes of the specific case

being tried. In fact, the same authorities

demonstrate that such an inquiry by the court

is inappropriate. We are, then, condemning

what has been approved and directing what has

been forbidden.

A-133

To revert to Swain part II, Justice

White describes the peremptory challenge as

"'an arbitrary and capricious right...[that]

must be exercised with full freedom, or it

fails of its full purpose.'" 85 S.Ct at 835

(quoting Lewis, 13 S.Ct. at 139). The

opinion continues with this significant

statement:

"The essential nature of the

peremptory challenge is that it is

one exercised without a reason

stated, without inquiry and without

being subject to the court's control."

85 S.Ct. at 836 (emphasis added).

Swain also states that to subject such

challenges to the kind of equal protection

scrutiny that the majority here requires of

the district court

",..-would entail a radical change in

the nature and operation of the

challenge. The challenge, pro tanto,

would no longer be peremptory, each

and every challenge being open to

examination, either at the time of

the challenge or at a hearing

afterwards. The prosecutor's

judgment underlying each challenge

would be subject to scrutiny for

A~-134

reasonableness and sincerity." Id.

at 836-37 (emphasis added).

Finally, Swain makes clear that to "require[]

an examination of the prosecutor's reasons

for the exercise of his challenges in any

given case," even where “all Negroes were

removed from the jury...because they were

Negroes," is to "establish a rule wholly at

odds with the peremptory challenge system as

we know it." Id. at 837 (emphasis added).

The Swain dissent similarly eschewed

any rule under which "a prosecutor's motives

are subject to question or judicial inquiry

when he excludes Negroes or any other group

from sitting on a jury in a particular case.

Only where systematic exclusion has been

shown, would the State be called upon to

justify its use of peremptories...." Id. at

849.

Decisions of this Court are in accord.

See Davis v. United States, 374 F.2d at 5

A-135

("The essential nature of the peremptory

challenge is that it is one exercised without

a reason stated, without inquiry and without

being subject to the Court's control.");

United States v. Pearson, 448 F.2d at 1216

(questioning of prosecutor as to his reasons

for exercising peremptories “would be

inconsistent with the peremptory challenge

system"); United States v. Carlton, 456 F.2d

at 208 ("The subjective thought process of

the prosecutor in deciding which prospective

jurors to strike in a given case is beyond

seeenes, Of Che Court, trial or

appellate...."). Surely in these cases, and

in the many other direct appeals of federal

criminal convictions where we have applied

Swain, we were aware of our supervisory

power. Indeed, in Carlton we specifically

cited Hall v. Untied States, 168 F.2d 16l

(D.C. Cik.), Gert. denied, 68 §.ct. 1509

(1948), in support of our Swain holding, and

A-136

were presumably aware of the Hall dissent's

express reliance on the supervisory power.

Carlton, 456 F.2d at 208.

What the majority has directed, then,

is what Swain and our prior decision have

said no court can do. The prosecution has

been entitled to peremptory challenges, or

their equivalent, continuously since the

formation of our nation, as well as for

centuries prior thereto under the common law.

This right has had express statutory

recognition continuously from 1865 until its

inclusion in Rule 24(b) of the Federal Rules

of Criminal Procedure in 1944, where to this

date it has remained unchanged in any

relevant particular.31l As previously

noted, Congress in 1968, though obviously

3ltThese "pre-verdict" rules must be submitted

to Congress during a regular session and are

not effective until ninety days after such

Submission. 18 U.S.C. §3771. This contrasts

with "post-verdict" rules which need not be

so submitted. Id. §3772.

A-137

well aware of Swain and its application in

the federal courts, considered but elected

"not [to] change the method of challenging

jurors" and “in particular" to "leave[]

undisturbed the right of a litigant to

exercise his peremptory challenges." H.R.

Rep. No. 1076, 90th Cong., 2d Sess., supra.

Nevertheless, the majority orders a procedure

which, as characterized in Swain, "entail[s]

a radical change in the nature and operation

of the challenge” and is directly contrary to

its "essential nature," and “wholly at odds

with the peremptory challenge system.”

Surely the supervisory power of this panel

does not extend to thus riding roughshod over

the Federal Rules of Criminal Procedure, the

intent of Congress, the rights of the

executive, the prior decisions of this Court

and of the Supreme Court, and over half a

millennium of settled doctrine. 32

32Nothing cited by the majority supports its

A-138

But the majority has done more than

decree, which can only be described as an

“unprecedented assumption of power." See

United States v. Newman, 549 F.2d 240, 250

(2d Cir. 1977).

Nor do any of the three purposes for the exer-

cise of supervisory power stated in the quota-

tion from United States v. Hasting, 103 S.Ct.

1974 (1983), set out in note 30, supra,

afford justification for the majority's

ruling.

The majority places major reliance on Thiel

v. Southern Pac. Co., 66 S.Ct. 984 (1946),

and Ballard v. United States, 67 S.Ct. 261

(1946). Neither of these cases fairly

Supports the present result. Most important,

Ballard, expressly, and Thiel, implicitly,

rest on the proposition that the practices

there condemned constituted "a departure from

the statutory scheme." Ballard, 67 S.Ct. at

265 (also at 264). See also Thiel, 66 S.Ct.

at 987 (nothing in "federal or state law"

justifies the condemned practice). Here the

very opposite is the case: what we decree is

"a radical change" from the "essential

nature*™ of a right expressly authorized by

the Federal Rules of Criminal Procedure, and

impliedly authorized by Congress, and is

“whoily at odds" therewith. Further, Ballard

and Thiel are supported by "[t]Jhe American

tradition of trial by jury." Thiel, 66 S.Ct.

at 985; Ballard, 67 S.Ct. at 263. Here the

majority flies directly in the face of that

tradition. Finally, Thiel and Ballard

involved judicial supervision of the

judiciary--the Supreme Court supervising the

A-139

eviscerate the prosecution's right of

lower federal court-formulated venire summons

practice. Here, by contrast, we intrude into

decisions committed by law to the executive

branch, namely, against whom should

peremptory strikes be exercised for the

purpose of a particular case. Glasser v.

United States, 62 S.Ct. 457 (1942), is

inapposite for all the same reasons.

Nor can the majority properly claim much

comfort from the Eighth Circuit's supervisory

power decisions. They involve claims that

the challenges were of the Swain part III

variety, and arise out of the Eighth

Circuit's “concern because of the frequency

with which we have been called upon to

examine the prosecutor's practices in this

regard in the Western District of Missouri."

United States v. Jackson, 696 F.2d 578, 592

(8th Cir. 1982), cert. denied, 103 S.Ct. 1531

(1983). See also United States States v.

Greene, 626 F.2d 75, 76-77 (8th Cir.), cert.

denied, 101 S.Ct. 220 (1980)("[O]n several

ee .

previous occasions black defendants have

attacked the conduct of the prosecutor's

office in the Western District of Missouri in

exercising peremptory challenges against

prospective black jurors."). This is made

plain from the leading Eighth Circuit case on

this point, United States v. Nelson, 529 F.2d

40, 43 (8th Cir.), cert. denied, 96 S.Ct.

2631 (1976), where the Court affirmed the

conviction in reliance on Swain (as it has in

all other such cases), but stated, "Should

the prosecutors' practices...continue, we are

sure that the district judges in the Western

District of Missouri will take appropriate

A-140

peremptory challenge. It has also either

evi°cerated the defense's use of peremptories

or improperly tilted the scales of justice

against the prosecution. Of course, the

prosecution is entitled to a fair trial and

the defense is not entitled to a jury partial

in its favor. Challenges are one means to

this end. See Wainwright v. Witt, 105 S.Ct.

844, 851-52 (1985); Smith v. Balkcom, 660

F.2d at 579; Spinkellink v. Wainwright, 578

action."

Finally, the decision in United States v._

McDaniels, 379 F.Supp. 1243 (E.D. La. 1974),

does not support the majority. There, a new

trial was granted on the basis of a Swain

part III claim which was supported by an

analysis of the prosecution's peremptory

challenges over the past two years combined

with black underrepresentation on venire

lists. Id. at 1248-49. This Court

specifically distir: aished McDaniels on that

ground in United States v. McLaurin, 557 F.2d

at i1OT7: RB.” 29%

Here there is not only no proof of prior

practice or noncase-specific use, there is no

such.claim; indeed, appellant admits that

"there is no pattern or practice in the

United States District Court for the Eastern

District of Louisiana."

F.2d 582, 596 (5th Cir. 1978), cert. denied,

99 S.Ct. 2064 (1979). The prosecution is no

less entitled to the unfettered use of its

allotted peremptories than the defense. As

the Supreme Court said in Hayes v. Missouri,

7 S.Ct. 350, 351 (1887), in such matters “the

scales are to be evenly held" between

prosecution and defense.33 This view was

33The full passage in Hayes is as follows:

"It is to be remembered that such

[juror] impartiality requires, not

only freedom from any bias against

the accused, but also from any

prejudice against his prosecution.

Between him and the state the scales

are to be evenly held.

"Experience has shown that one of

the most effective means to free the

jurybox from men unfit to be there is

the exercise of the peremptory

challenge. The public prosecutor may

have the strongest reasons to dis-

trust the character of a juror

offered, from his habits and associa-

tions, and yet find it difficult to

formulate and sustain a legal objec-

tion to him. In such cases, the

peremptory challenge is a protection

against his being accepted." 7.

S.Ct. at F5k.

A-142

reaffirmed in Swain respecting the same

proffered restriction on prosecution exercise

of peremptories that is at issue here. 85

S.Ct. at 835. Similarly, in Singer v. United

States, 85 S.Ct. 783, 790 (1965), a unanimous

Court, speaking through Chief Justice Warren,

stated:

"The Constitution recognizes an

adversary system as the proper method

of determining guilt, and the

Government, as a litigant, has a

legitimate interest in seeing that

cases in which it believes a

conviction is warranted are tried

before the tribunal which the

Constitution regards as most likely

to produce a fair result. This

recognition of the Government's

interest as a litigant has an analogy

in Rule 24(b) of the federai rules,

which permits the Government to

challenge jurors peremptorily."

Rule 24(b) neither by its terms nor its

history makes any distinction between the

prosecution and defense with respect to the

reasons for which peremptory challenges may

be exercised. By what right, then, do we do

so?

A-143

In this connection, it is to be noted

that every jurisdiction which has spoken to

the matter and prohibited prosecution

case-specific peremptory challenges on the

basis of cognizable gruop affiliation, has

held that the defense must likewise be so

prohibited. See Wheeler, 583 P.2d at 765 n.

29 ("{T]he People no less than individual

defendants are entitled to a trial by an

impartial jury drawn from a representative

cross-section....[{W]hen a white defendant is

charged with a crime against a black victim,

the black community as a whole has a

legitimate interest ion

participating....{T]hat interest will be

defeated if the prosecutor does not have the

power to thwart any defense attempt to strike

all blacks...."); Soares, 387 N.E.2d at 517

n. 35 (same; also stating that prohibition

would, if properly raised, apply in that case

to the “attempt of the defendants...to strike

A-144

all veniremen of Italian descent");

Commonwealth v. DiMatteo, 427 N.E.2d 754

(Mass. App. Ct. 1982)(white defendant's

attempted peremptory challenge of sole black

on venire properly rejected where trial judge

was not convinced by defense counsel's

questionable nonracial explanation; the crime

was apparently not interracial, but the

prosecutor was black); State v. Neil, 457

So.2d at 487 ("{BJoth the state and the

defense may challenge the allegedly improper

use of peremptories. The state, no less than

a defendant, is entitled to an impartial

jury" (£ootnote omitted).).34 See also

United States v. Clark, 737 F.2d 679, 682

(7th Cir. 1984)("It would be hard to argue

that only a defendant should be allowed to

challenge racially motivated peremptory

challenges....[{T]he prosecutor would be

34The point simply is not addressed in State v.

Crespin, 612 F.2d at 718. See note 15,

supra.

A-145

allowed to object to the defendant's making

racial peremptory challenges if the defendant

could object to the prosecutor's doing so.").

According-y, although the majority

pretermits the question whether the defense

may exercise its peremptories on the basis of

race (op. n. 5), its position seems likely to

ultimately result in a serious weakening of

what the Supreme Court has described as "'one

of the most important rights secured to the

accused,' Pointer v. United States, 15l U.S.

396, 408...[1894]...[t]he denial or

impairment...{which] is reversible error

without a showing of prejudice, Lewis v.

United States, supra; Harrison v. United

States, 163 U.S. 140...[1896]." Swain, 85

S.ct. @t 635. No longer, then, may the

defendan: "“peremptorily challenge ‘on his own

dislike'"; no longer will we follow the rule

that whatever “prevents or embarrasses the

full, unrestricted exercise by the accused of

A-146

that right must be condemned." Pointer v.

United States, 14 S.Ct. 410, 414 (1894).

Finally, the majority opinion leaves

trial judges wholly at sea. It states that

there may be justification for taking race

into account in such challenges, but gives no

guidance as to what kind of justification it

has in mind. Nor does it address whether its

rule extends to other "cognizable" groups,

such as those of national origin, gender,

religion or the like. See Wheeler, 583 P.2d

at 761 ("Racial, religious, ethnic, or

Similer grounds"); Soares, 387 N.E.2d at 516

("sex, race, color, creed or national

origin"). Indeed, it is hard to see how such

an extension can be avoided since the

majority relies so heavily on Thiel v.

Southern Pac. Co., 66 S.Ct. 984 (1946), where

the excluded group was composed of daily wage

earners. Moreover, Thiel was a civil case.

Does the majority's rule also apply there?

A-147

—

The inevitable result is that no one--judges,

lawyers or litigants--will know which

peremptories are allowed and which are not,

and virtually all challenges will be

questioned. And with the uncertainty there

will also come the less-than-candid and the

self-deceptive explanations. See King v.

County of Nassau, 581 F.Supp. 493, 502 (E.D.

N.Y. 1984).

In sum, the purported exercise of the

supervisory power is both unwarranted and

unwise.

Conclusion

I am unable to agree to the majority's

substantial revision of the concept of trial

by jury which has so long and so well served

our nation and graced the common law. I

would not so reconstitute it if I could.

Equally important, it is not up to this panel

to rewrite either the Constitution or the

Federal Rules of Criminal Procedure, or even

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to so drastically and unjustifiably depart

from the Supreme Court's and our own prior

precedent. Our well-intentioned adventure

may prove as harmful to the values implicit

to the concepts of the separation of powers,

the judicial function and the rule of law as

it does to trial by jury. I therefore |

respectfully dissent. 35

351 also dissent from the holding that the

trial court did not err in refusing to permit

the testimony of Giron's attorney, Moriarty,

to show that, as a part of Giron's guilty

plea "deal" with the Government, Giron was to

testify against Leslie in the pending case,

and that Giron so understood the “deal.”

Such a matter, if shown by the evidence,

would obviously be material to Giron's

credibility, by establishing a motive for him

to implicate Leslie. Giron was indisputably

the key prosecution witness. The majority

says this testimony was inadmissible because

a predicate was not laid as required by

Fed.R.Evid. 613(b). There are two answers to

this.

First, the main thrust of Moriarty's

testimony was what he told Giron (and what

the prosecutor told Moriarty), not what Giron

said. Rule 613(b) is only applicable to

prior statements made by the witness sought

to be impeached. Moriarty would have

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testified that he did "make it clear to Mr.

Giron that his mere willingness to testify in

this case wasn't enough, that he had to

testify against Mr. Leslie." This was clear-

ly admissible to show Giron's state of mind.

"when it is proved that D made a statement to

xX, with the purpose of showing the probable

state of mind thereby induced in X, such as

..-having knowledge, or motive,...the

evidence is not subject to attack as hearsay."

McCormick, Evidence 589-90 (2d Ed. 1972).

See, @.g., United States v. Kutas, 542 F.2d

527, (9th Cir. 1976), cert. denied, 97

S.Ct. 810 (1977); United States v. Smith, 550

P.2d 277, 281-82 (5th Cir.), cert. denied sub

nom. Wallace v. United States, 98 S.Ct. 138

(1977).

Second, although Moriarty also would have

testified about Giron's prior statements,

namely, those clearly indicating that he did

so understand the "deal," such testimony was

not inadmissible under Rule 613(b). To begin

with, it was not offered for its inconsisten-

cy, as such, with Giron's trial testimony,

but rather as direct and independent proof of

Giron's state of mind. It was hence

admissible under Fed.R.Evid. 803(3), if it

was hearsay at all. See McCormick, supra at

591 ("This circumstantial nonassertive use of

utterances to show state of mind is perhaps

most clearly applicable to declarations

evincing knowledge...."), 694-95 (declara-

tions of state of mind). See also Hilyer v.

Howat Concrete Co., 578 F.2d 422, 425-27

(D.C. CIr. 1978). I recognize that there is

a split of authority on whether the provi-

sions of Rule 613(b) must be complied with in

such a circumstance if the declaration also

conflicts with the witness' trial testimony.

See 3A Wigmore, Evidence §1039 (Chadbourn

A-150

rev. 1970)("The rule requiring a preliminary

warning does not on principle apply to proof

of expressions of bias, although many courts

so extend it." (Emphasis in original.)).

United States v. Lay, 644 F.2d 1087 (5th

Cir.), cert. denied, 102 S.Ct. 336 (1981),

does not touch that point, for there the only

suggested impeaching characteristic was "the

inconsistency." Id. at 1090. I think the

better practice is not to apply Rule 613(b)

to this kind of evidence, at least not if the

subject matter is brought out in the witness'

cross-examination. Finally, it seems clear

to me that the substance of Rule 613(b) was

complied with respecting Giron. He was

repeatedly cross-examined about what Moriarty

told him, and denied that Moriarty had ever

said he had to testify against Leslie and

Claimed that that was never any part of the

"deal."

Moriarty's testimony clearly should have been

admitted.

Finally, I concur in that portion of the

majority opinion dealing with the guilty plea

letters.

A-151

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, APPENDIX B

Plaintiff-Appellee.

iP App No. 83-3719

Vv.

OPINION

EvuGene LESLIE,

Defendant-Appellant.

Filed February 20. 1986

Before: Clark, Chief Judge. Brown, Gee. Rubin. Reavley, Politz,

Randall, Tate. Johnson, Williams, Garwood, Jolly,

Higginbotham, Davis, Hill, and Jones. Circuit Judges.

Opinion by Judge Will Garwood; Dissent by Judge Jerre S.

Williams, with whom Brown. Rubin, Tate, and Johnson join.

Appeals from the United States District Court

for the Eastern District of Louisiana

A. J. McNamara, District Judge, Presiding

SUMMARY

Criminal Procedure

Appeal from conviction for conspiring to distribute narcotics

and possessing narcotics with intent to distribute them in violation

of 21 U.S.C. §§ 841(a)(1) and 846. Affirmed.

Appellant challenges the removal of all blacks from his jury by

the use of peremptory challenges. Although the record contains no

transcript of the voir dire or jury selection process, it includes a jury

list showing those removed for cause and by peremptory challenge.

When the court completed excusing venirepersons for cause, the

jury panel had been reduced to twenty-eight. of whom six were

black. The government used its six peremptory challenges to

3889

B-1

3890 UNITED STATES v. LESLIE

remove these six blacks, and the defense used its ten peremptory

challenges to remove ten whites. The one black person on the alter-

nate pool was removed by the government using its alternate per-

emptory, while the defense used its alternate peremptory to remove

a white from the alternate pool. Appellant's counselmoved for a

mistrial on the basis that the government used peremptory chal-

lenges to remove all blacks. The court denied the motion.

Rejecting appellant’s other complaints, a divided panel of this

Court sustained his contention that the district court erred by fail-

ing to inquire into the prosecutor’s motives for peremptorily chal-

lenging black venirepersons, although there was no claim or

showing that the challenges were made for purposes unrelated to

the outcome of the particular case being tried or were any part of a

systematic practice of excluding blacks from jury service. The panel

majority rested its holding in this respect upon the Court of

Appeals supervisory power over federal district courts and federal

prosecutors. The en banc Court, however, disagrees with the

panel’s resolution of the peremptory challenge issue and affirms the

conviction.

[1] The issue presented is whether the prosecution may take race

or similar group characteristics into account when it exercises a

peremptory challenge for the sole purpose of procuring a jury least

likely to be partial to the defense, ia light of the discrete facts of the

particular case being tried. [2] The resolution of this issue is con-

trolled by the analysis in part II of the Supreme Court's decision in

Swain v. Alabama, 85 S.Ct. 824 (1965), where the Court held that

racially based peremptory challenges made for the purpose of pre-

vailing in the particular case being tried were a proper and tradi-

tional part of the jury system as known to the common law and

American jurisprudence.

{3} The argument that the racially based peremptory challenges

of the type sustained in Swain, part II, violate the sixth amend-

ment’s “cross-section” requirement is rejected. [4] It stands Swain

on its head to suggest that it could possibly be consistent with a

holding that the sixth amendment’s guarantee of trial “by an impar-

tial jury” forbids the kind of peremptory challenge approved in

Swain, part Il. That portion of Swain was premised on the conclu-

sion that the type of peremptory challenge there sustained was an

UNirem Si vtes v. LESue 3891

integral and recognized part of such a jury trial. [5] Moreover, the

cross-section principle is inapplicable to the type of group-based

peremptory challenge dealt with in Swain, part II. The cross-section ~

cases are largely couched in terms of systematic exclusion and the

principle is applied to the formation of venires, not the individual

juries selected trom them.

[6] There is a vast difference in function and Purpose between

selection for a venire and selection for a jury. [7] Excluding a partic-

ular cognizable group from all venire pools is stigmatizing and dis-

criminatory in several interrelated ways that the peremptory

challenge is not. [8] Furthermore. factors other than those relating

to the cross-section principle are important to the concept of the

criminal jury. Cross-section values are embraced in the context of.

and limited by, the overall concept of trial by jury and that concept

includes peremptory challenges, both for individual and group

characteristics. when made for the purpose of the particular case

being tried.

{9] The impartiality requiremeat. however. does not imply that a

party is entitled to any representative of his or her “group” on the

jury, even where that group is a significant one in the community

where the trial takes place and from which the venire is drawn. [10]

And the peremptory challenge plays an important role in the par-

ties’ quest for the “impartial” jury—the jury of the sixth amend-

ment, composed of those who are willing and able to decide the

case solely on the evidence and the law. [11] The argument that one

party’s peremptories may exclude all of a minority group, while the

other's peremptories will be insufficient to exclude the majority,

with resulting unfairness to the minority party is rejected.

{12} The Court declines the invitation to reach a different result

under the guise of employing its supervisory power. [13] None of

the three considerations underlying the use of the supervisory pow-

ers is significantly implicated here: There is no violation of recog-

nized rights; the exercise of peremptories is plainly legal and thus

the use of the supervisory power is not justified on the basis of

deterring illegal conduct: and its use in no way implicates “the con-

siderations validly before the jury.” [14] Furthermore. the supervi-

sory power does not extend to making radical changes in the nature

3892 Unitep STATES v. LESLIE

and the operation of the challenge in the system established bs

Congress and the statutory rule-making process.

Finding the broad sweep of the majority opinion uncalled for in

this case. the dissenting opinion argued that the narrow issue Is

whether a district judge properly should have inquired into the

issue of pos

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