# Appendix — Leslie v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 1074

## Text

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

A-63

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.

A-67

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

A-68

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 1rrag £ io aie? ots Taba .£hon ‘tom

26Certainly the “cognizable” groups ate not limited to race. Sex is included.
Taylor; Duren, Cases following the heeler approach so recognize. See. ¢.2..
Commonwealth x. Reid, 424,N-E.2d..4%5. (Mass. 1981) (fernale defendant
charged, with murder of male properly prohibited from using her peremptory
challenges to strike al} six males on the venire). Other groups are likewise gener-
ally covered. See Commonwealth... Gagnon, 449 N.E.2d 686 (Mass. App. 1983)
(“French” sounding last names, including “Roberts.” “Christian,” and “Roy”).
Soares, 387.N,E.2d at, 516,(“sex. race. color, creed of national origin”). 517
n.35 (includes those “of Italian descent’). Wheeler, 583 P.2d at 761 (prohibit
ing peremptory challenge on. “racial, religious, ethnic, or similar grounds”).

UNitep States v. LEsue 3923

it been suggested that group-based peremptories are permissible
against majorities but not minorities.”” 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
even reduced significantly below its proportion in the
community.” Indeed. the minority might not be reduced below its

Obviously. there are no real majority or minority “sexes.” There will also fre-
quently be instances where no single religious or national origin (0: ethnic)
group can be said to be a majority. and all are minorities in the particular com- -
munity (or the aspects of the case which relate to possible intergroup biases
may involve only two minority groups). This will also at least occasionally be
the case with racial groups.

But the cognizable groupings extend even further. Theil v. Southern Pacific
Co.. 66 S.Ct. 984 (1946}—so often relied on by those opposed to Swain part Il.
see. ¢.g.. Booker, slip op. at 12: McCray, 750 F.2a at 1127: Wheeler. $83 P.2d
at 755-56—defines the cognizable groups which may not be systematically
excluded from the pool of “prospective jurors” as being “all the economic.
social. religious. racial. political and geographical groups of the community.~
Theil. 66 S.Ct. at 985. Theil was a civil case in which the exclusion of daily wage
earners from the jury pool required reversal at the instance of a party not shown
to be a member of that group. Plainly, there wii! be num-erous instances where
there is no “majority~ economic, social, or geograynical group in a given com-
munity.

*”See. ¢.g.. Svares. 387 N.E.2d at 517 n.35 (black defendant may not make
racially based challenge against jurors of Italian descent): Booker. slip op. at
19-23 (black defendant's use of peremptories to strike white venirepersons).
Roman v. Abrams, 608 F. Supp. at 631. 639-40 (prosecution’s use of perempto-
ries to exclude white venirepersons).

Further. there is no reason to assume that group-based peremptory challenges
are only utilized where the challenged group can be wholly eliminated or pro-
portionately 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” characteris-
lics may be more significant.

281 may be argued that the minority is “entitled” to its chance
“overrepresentation™ on the jury. just as it is entitled to its chance

B-35

3924 UNitTeD States v. LEStie

proportion on the venire.””

Finally, the “elimination of the minority~ 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 to be as conviction prone as the minority group
members are acquittal prone. This, in turn, assumes that in any
such situation the minority and majority are equally homogeneous
and stand at opposite poles from one another with respect to their
attitudes concerning the case. 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 may be both substantially more diversity and
less intensity of attitude.”

“overrepresentation™ on the venire. Again, however. this is an argument for a
process, not for fairness in a given case. As an argument for a process. it fails to
take into account the previously noted differences between the venire-
formation and the peremptory-strike processes.

291f a twenty-eight-person venire panel has ten “minority ~ members (about
thirty-six per cent 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 major-
ity. the resulting jury will be thirty-three percent minority, approximately the
same as the panel.

The presence of those on the panel with “individually” based potential lean-
ings 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. 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).

For example, in a given community the attitudes of blacks toward the Ku
Klux Kian may well be nearly unanimous and strongly adverse, while the atti-
tudes of whites may well be much more diverse and generally less intense across
the spectrum.

And it would seem apparent that. at least in most situations, blacks are more
likely to have a strong negative attitude to a witness shown to use anti-black
epithets than whites are to have an equally strong positive attitude to such a
witness. Nevertheless. the Aece/ler theory has been held to prevent the party
relying on such a witness from making racially based peremptory challenges of

UNITED STATES v. LESLIE 3925

A somewhat analogous point is made in Note, Peremptory Chal-
lenges and the Meaning of Jury Representation, 89 Yale L.J. 1477
(1980). This student writing convincingly argues that prosecution
group-based exercise of peremptories will tend to distort trial juries
away from the mean of the community's relevant attitudes on/y
when such attitudes are asymmetrically distributed about the com-
munity 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 perempto-
ries 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.” Significantly. “[t}here is cur-

venirepersons belonging to the insulted group. See People v. Johnson, $83 P.2d
774 (Cal. 1978).

Again. an individual who is prominent in the local black community, as
appellant Leslie apparently was. may well enjoy a generally favorable reputa-
tion among. or have potential for influence over. blacks of that area. but may
have no reputation whatever over. blacks of that area, but may have no reputa-
tion whatever among. or potentia) for 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.

31Note. Peremptory Challenges and the Meaning of Jury Representation, 89
Yale L.J. 1177 (1980):

“Suppose that the social distribution. correctly reproduced on the
venirc. is asymmetrica! about the mean—that the extremes in favor of
acquittal are farther away from the mean than the extremes ir. favor of
conviction. Suppose further that the acquittal extreme is occupied by
members of some subgroup. In this case the normal operatice of the
peremptory will have a disproportionate impact on members of that
subgroup. 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-conviction jurors. . . .

“On the other hand. the social distribution might be symmetrical
about the mean, with extremes on both sides equally far away. If mem-
bers of a subgroup are again supposed to occupy one of the extremes.
the disproportionate removal of that subgroup 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.

B-37

3926 UNITED STaTes v. LESLIE

rently no empirical evidence as to which distribution [of attitudes}
exists in any given community for any range of cases.” /d. at 1196.

We reaffirm our prior holdings 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 is premised on the under-
standing 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 Il.
section 2. clause 3.

Supervisory Power

[12] We decline the invitation to achieve a different result under
the guise of employing our supervisory power. To begin with. the
same considerations that support or oppose the constitutional chal-
lenge equally support or oppose such employment of the supervi-
sory 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. L’nited

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 subgroup is at an extreme of an asymmetrical social distribution
will limiting the peremptory protect representation of the community.
Otherwise. such a limitation would distort the community mean.

“Numerous other distributions of verdict impact in society can be
imagined. In those that are symmetrical but that do not have a sub-
group clustered at one end, both the normal and limited peremptory
will have no systematic effect on the jury's mean. In those that are sym-
metrical 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 predictable. systematic effect on the
jury's mean verdict impact as compared to that of society.” /d. at
1193-96 (footnotes omitted).

B-38

Unirep States v. Lesue 3927

States v. Payner, 100 S.Ct. 2439, 2446-47 (1980). Moreover, 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.
Rather. those decisions were based on the determination that such
unfettered use, including consideration of group affiliation. is an
essential element of the peremptory challenge itself and has consis-
tently been recognized as a proper, important and integral part of
trial by jury. For us to forbid such challenges 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 Paynes, 100 S.Ct. at 2447. As the Second Circuit said in United
States v. Newman, 546 F.2d 240. 250 (2d Cir. 1977), it would be an
“unprecedented assumption of power.”

[13] In U'nited States v. Hasting, 103 S.Ct. 1974, 1978-79 (1983).
the Supreme Court. rejecting use of the supervisory power to avoid
the harmless error rule, explained:

“The purposes underlying use of the supervisory powers
are threefold: to implement a remedy for violation of rec-
ognized rights [citations omitted]; to preserve judicial
integrity by ensuring that a conviction rests on appropri-
ate considerations validly before the jury [citations omit-
ted]; and finally, as a remedy designed to deter illegal
conduct [citation omitted].”

None of these considerations is significantly implicated here. There
is no violation of recognized rights; instead, the suggested exercise
of supervisory power would violate the long recognized rights of lit-
igants to consider group affiliation in utilizing peremptory chal-
lenges for purposes of the case being tried and to do so free of
judicial inquiry and control. And, as such exercise of peremptories
is plainly legal. use of the supervisory power to prevent it may not
be justified on the basis of deterring illegal conduct. Nor does such
a use of the supervisory power in any way implicate “the conside. -
ations validly before the jury.” See also United States v. Gatto, 763
F.2d 1040. 1046 (9th Cir. 1985) (exercise of supervisory power

3928 Untrep States v. Lesuir

proper “only when a recognized right has been violated.~ and even
then suggesting caution).

[14] Apart from the foregoing. other considerations likewise mili-
tate against such use of the supervisory power. The prosecution has
been entitled to peremptory challenges. or their equivalent. contin-
uously 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 effective in
1946, where to this date it has remained unchanged in any relevant
particular.” Such a rule “has the force of a federal starute.~ Sihhach
v. Wilson & Co., 61 S.Ct. 422, 426 (1941). As previously noted.
Congress in 1968. though obviously well aware of Swain and the
long application of its principles in the federal courts. considered
but elected “not [to] change the method of challenging jurors” and
“in particular” determined to “leave[] undisturbed the right of a lit-
igant to exercise his peremptory challenges.” H.R. Rep. No. 1076.
90th Cong., 2d Sess.. supra. Addressing cross-section concerns and
prohibiting the exclusion of any class from jury service, Congress
nevertheless excepted peremptory challenges from this prohibition
and affirmatively authorized juror exclusion pursuant thereto. 28
U.S.C. § 1866(c). Nevertheless, we are asked to order 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 chal-
lenge system.“ The supervisory power simply does not extend to

As reflected by the Advisory Committee notes pertaining to Rule 24(b).
“{t}his rule embodies existing law” (with certain exceptions not here material).

These “pre-verdict™ rules must be submitted to Congress during a regular ses-
sion and are not effective until ninety days afier such submission. 18 U.S.C.
§ 3771. This contrasts with “post-verdict™ rules which need not be so submit-
ted. Jd. § 3772.

Swain 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). and states that:

“The essential nature of the peremptory challenge is that it is one exer-
cised without a reason stated. without inquiry and without being sub-
ject to the court's control.” 85 S.Ct. at 836 (emphasis added).

B-40

UNiteD STATES v. LESLIE 3929

making changes of that nature and-magnitude in the system estab-
lished by Congress and the statutory rule-making process. In
Palermo vy. United States. 79 S.Ct. 1217, 1225 n.t1 (1959), the
Supreme Court observed that “[tJhe power of this Court to pre-
scribe rules of procedure and evidence for the federal courts exists
only in the absence of a relevant Act of Congress.” There. the Court
declined to expand the production requirements provided by the
Jenks Act. even though that “statute does not, in so many words.

Swain also explains that to subject such challenges to the kind of scrutiny that
appellant here demands of the district court

“would entail a radical change in the nature and operation of the chal-
lenge. 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 reasonable-
ness and sincerity.” /d. at 836-37 (emphasis added).

Swain likewise states that to “require[] an examination of the prosecutor's rea-
sons 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.” /d. 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 system-
atic exclusion has been shown, would the State be called upon to justify its use
of peremptories ... .” Jd. at 849.

Decisions of this Court are in accord. See Davis v. United States, 374 F.2d at
5 (“The essential nature of the peremptory challenge is that it is one exercised
without a reason stated. without inquiry and without being subjected 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 pro-
spective jurors to strike in a given case is beyond inquiry of the Court, trial or
appellate ... .~). Surely in these cases, and in the many other direct appeals of
‘ederal criminal convictions where we and other Circuits have applied Swain.
there was ample awareness of the supervisory power. Indeed. in Carlton we spe-
cifically cited Hall v. United States. 168 F.2d 161 (D.C. Cir.). cert. denied. 68
S.Ct. 1509 (1948). in support of our Swain holding. and were presumably aware
of the Hail dissent’s express reliance on the supervisory power. Carlton, 456
F.2d at 208.

B-41

3930 UNITED STATES v. LESLIE

state that it is the exclusive, limiting means of compelling” produc-
tion. Jd. at 1223. The same considerations apply to the Rules of
Criminal Procedure. which have statutory effect. Sibhach, 61 S.Ct.
at 426. Moreover, the Supreme Court has emphasized the value
placed by Congress on “the reservation of the power to examine
proposed rules, laws and regulations before they become effective.~
Id. at 427. This plainly applies to pre-verdict rules of criminal pro-
cedure. See note 32. supra. We should not make an end run around
that process. Indeed, even where the matter is not within an area
concerning which Congress has made such a reservation of power.
basic procedural innovations of great importance to litigants, as the
suggested change in the peremptory challenge most certainlv is. call
for exercise of the statutory rule-making process. As the Supreme
Court observed in Miner v. Atlass, 80 S.Ct. 1300, 1305-06 (1960):

“[T]he matter is one which, though concededly ‘proce-
dural,’ may be of as great importance to litigants as many
a ‘substantive’ doctrine, and which arises in a field of fed-
eral jurisdiction where nationwide uniformity has tradi-
tionally always been highly esteemed.

“The problem then is one which peculiarly calls for
exacting observance of the statutory procedures surround-
ing the rule-making powers of the Court, see 28 U.S.C.
§ 331, 28 U.S.C.A. § 331 (advisory function of Judicial
Conference), 28 U.S.C. § 2073, 28 U.S.C.A. § 2073 (prior
report of proposed rule to Congress), designed to insure
that basic procedural innovations shall be introduced only
after mature consideration of informed opinion from all
relevant quarters with all the opportunities for compre-
hensive and integrated treatment which such consider-
ation affords.”™

in Miner the Supreme Court refused to sustain, under former General
Admiralty Rule 44 which expressly granted general rule-making authority to
district courts, a local rule authorizing discovery depositions, which therefore
had not been authorized in admiralty.

In Colgrove v. Battin, 93 S.Ct. 2448 (1973), the Supreme Court sustained a
local district couri rule providing for a six-person civil jury, holding that it was
authorized by Fed. R. Civ. P. 83. The Court distinguished Miner on the ground
that whether the jury was six or twelve was not a matter of “great importance

UNiteD States v. LESsLie 3931

See also United States v. Isthmian Steamship Co., 79 §.Ct. 857.
862 (1959) (“if the law is to change it should be by rulemaking or
legislation and not by decision”).

Neither Thiel v. Southern Pac. Co.. 66 S.Ct. 984 (1946), nor
Ballard v. United States, 67 S.Ct. 261 (1946), fairly supports a con-
- trary analysis. 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 are asked to decree is “a radical change” from,
and “wholly at odds” with. the “essential nature” of a right'
expressly authorized by the Federal Rules of Criminal Procedure
and 28 U.S.C. § 1886(c). Further, Ballard and Thiel are supported
by “[t]he American tradition of trial by jury.” Thiel. 66 S.Ct. at 985:
Ballard. 67 S.Ct. at 263. Here we are asked to enact a practice that
flies directly in the face of that tradition. Finally, Thiel and Ballard
involved judicial supervision of the judiciary—the Supreme Court
supervising the lower federal court-formulated venire summons
practice. Here. by contrast. we are asked to intrude into decisions
committed by law to the executive branch. namely, against whom
should its peremptory strikes be exercised for the purpose of a par-

to litigants.” 93 S.Ct. at 2456 n.23. Colgrove is inapposite here for two reasons.
First. Colgrove dealt with the exercise of expressly delegated rule-making power
under Rule 83 and 28 U.S.C. § 2071. While Fed. R. Crim. P. 57 and 28 U.S.C.
§ 2071 authorize district courts to make rules governing the practice in criminal
cases in their courts, there is no express delegation of power to the courts of
appeals to make rules governing the practice in district courts (cf Fed. R. App.
P. 47). Indeed. Rule 57 concludes by expressly stating that “in all cases not pro-
vided for by rule. the district judges . . . may regulate their practice in any man-
ner not inconsistent with these rules or those of the district in which they act.”
Here. our supervisory power to require district courts to regulate peremptory
challenges in a certain way must arise by implication. In that circumstance, the
Miner caution is particularly appropriate. Finally, we do consider the matter of
freedom in the exercise of peremptory challenges for the purpose of the case
being tried as something which is of “great importance to litigants.” That.
indeed, is clear from Justice White's opinion in Swain. 85 S.Ct. at 835. See also
Pointer v. United States. 13 S.Ct. 136, 138 (1892): Haves v. Missouri, 7 S.Ct.
350. 351 (1887).

B-43

3932 Unitep States v. LESLIE

ticular case. Glasser v. United States, 62 S.Ct. 457 (1942). is inappo-
site for all the same reasons.™*

Moreover. the rule appellant asks us to adopt will either eviscer-
ate the defense’s use of peremptories or improperly tilt the scales of
justice against the prosecution. Of course, the prosecution is enti-
tled 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 F.2d 582, 596 (Sth Cir. 1978).
cert. denied, 99 §.Ct. 2064 (1979). The prosecution is no less enti-
tled to the unfettered use of its allotted peremptories than the
defense. As the Supreme Court said in Haves vy. Missouri, 7 S.C1.
350, 351 (1887), in such matters “the scales are to be evenly held”
between prosecution and defense. This view was reaffirmed in
Swain respecting the same proffered restriction on prosecution
exercise of peremptories that is at issue here. 85 S.Ct. at 835. Simi-

35The Eight Circuit's supervisory power decisions in this context do not per-
suade us to the contrary. They involve claims that the challenges were of the
Swain part Ill 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.” L'nited States v.
Jackson. 696 F.2d 578, 592 (8th Cir. 1982), cert. denied, 103 S.Ct. 1531 (1983).
See also United States v. Greene, 626 F.2d 75, 76-77 (8th Cir.). cert. denied, 10!
S.Ct. 220 (1980) (“[O}nm several previous occasions black defendants have
attacked the conduct of the prosecutor's office in the Western District of Mis-
souri in exercising peremptory challenges against prospective black jurors.™).
Thus. in United States v. Nelson, 529 F.2d 40, 43 (8th Cir.). cert. denied. 96
S.Ct. 2631 (1976). 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 action.~

Similarly. in United States v. McDaniels, 379 F. Supp. 1243 (E.D. La. 1974),
a new trial was granted on the basis of a Swain part III claim which was sup-
ported by an analysis of the prosecution’s peremptory challenges over the past
two years combined with black underrepresentation on venire lists. /d. at
1248-49. This Court specifically distinguished McDaniels on that ground in
United States v. McLaurin, §57 F.2d at 1077 n.19. We adhere to that distinc-
tion.

Here there is not only no proof of prior practice or noncase-specific use, there
is no such clainr. indeed. appellant admits that “there is no pattern or practice
in the United States District Court for the Eastern District of Louisiana.”

B-44

UNITED STATES v. LESLIE 3933

larly. in Singer v. United States, 85 S.Ct. 783, 790 (1965), a unani-
mous 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 Govern-
ment’s interest as a litigant has an analogy in Rule 24(b) of
the federal rules, which permits the Government to chal-
lenge 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, may we do so?

We note that every jurisdiction which has spoken to the matter,
and prohibited prosecution case-specific peremptory challenges on
the basis of cognizable group 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 in participating .... [T]he 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;
Commonwealth vy. Reid. 424 N.E.2d-495 (Mass. 1981);
Commonwealth v. DiMatteo. 427 N.E.2d 754 (Mass. App. 1982);
State v. Neil, 457 So.2d at 487 (“[B]Joth 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”
(footnote omitted).): Booker v. Jabe, supra, slip op. at 19-20 (“[W]e
hold that under the Sixth Amendment, neither prosecutor nor
defense counsel may systematically exercise peremptory challenges
to excuse members of a cognizable group from service on a criminal
petit jury.”). 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.

3934 UNITED STATES v. LESLIE

... [T]he prosecutor would be allowed to object to the defendant's
making racial peremptory challenges if the defendant could object
to the prosecutor's doing so.”).*°

Accordingly, adoption of the position contended for by appellant
seems likely to ultimately result in a serious weakening of what the
Supreme Court has justly described as “ ‘one of the most important
of the rights secured to the accused,” Pointer v. Linited States, 151
U.S. 396, 408 ... [1894] ... [t]he denial or impairment of ...
[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. at 835. No longer, then, could the defen-
dant “peremptorily challenge ‘on his own dislike’ ~: no longer
would we follow the rule that whatever “prevents or embarrasses
the full, unrestricted exercise by the accused of that right must be
condemned.” Pointer v. United States, 14 S.Ct. 410. 414 (1894).%”

36Some jurisdictions following Wheeler have apparently not directly ruled on
this question. See State v. Crespin, 612 P.2d at 718. .

37Qur concerns are not at all alleviated by the case-by-case type approach
suggested by the panel majority. 759 F.2d at 374. Such a restriction on Swain
part Il peremptories is subject to virtually all the same objections as the appar-
ently more rigid Wheeler, Soares, and McCray approach. Whatever little is
thereby gained in flexibility will inevitably be lost in uncertainty and difficulty
of administration. Indeed. difficulty of administration has been a major criti-
cism of the Wheeler line of cases. Sec, e.g., McCray. 750 F.2d at 1140 (dissent-
ing opinion), United States v. Clar. 737 F.2d 679, 682 (7th Cir. 1984)
(“making the voir dire a Title VII proceeding in miniature”): Roman vy. Abrams,
608 F. Supp. 629. 638 (S.D. N.Y. 1985) (“The transactional costs involved in
litigating whether the reasons are ‘pretextual’ will be vast and the reliability of
the results uncertain.”): Schreiber v. Salamack, supra (approximately same facts
as Roman, opposite result); King v. County of Nassau, 581 F. Supp. 493. 502
(E.D. N.Y. 1984).

Such difficulty will necessarily be greatly exacerbated by the approach taken
by the panel majority which suggests that where race is taken into account in
making a peremptory challenge for purposes of the case being tried this in some
instances may be justified and in others may not, but suggesting no criteria for
determining justification. Nor is any guidance offered on whether other cogni-
zable groups are covered by the suggested rule. or, if so. what such groups are.
Nor is there any indication whether the suggested rule extends to defendants or
to civil cases. The inevitable result would be that no one—judges. lawyers. or
iitigants—would know which peremptories were allowed and which werc not.
and virtually all “peremptory” challenges wouid be subject to question. And

B~46

aS Nad aad awit

UNITED STATES v. LESLIE 3935 _—

Hil.
Conclusion

We are persuaded that prosecution or defense peremptory chal-
lenges of the Swain part II variety are constitutional and lawful not-
withstanding that they may be motivated in whole or in part by the
challenged venireperson’s race, gender. or other group affiliation,
and that such motivation is not the proper subject of judicial
inquiry in cases of this kind where there is no claim or reason to
suspect that the challenges are not made for purposes of securing a
jury favorable to the case at hand. We further decline to change this
settled rule by the exercise of supervisory power. which we con-
clude would be both unwarranted and unwise. Hence we reject
appellant Leslie’s complaints respecting the prosecution's exercise
of its peremptory challenges in this case, and his conviction is
affirmed.

AFFIRMED.

JERRE S. WILLIAMS, Circuit Judge. with whom JOHN R.
BROWN. ALVIN B. RUBIN, ALBERT TATE, and SAM D.
JOHNSON. Circuit Judges, join, dissenting:

The broadly ranging and scholarly opinion for the En Ba: > Court
focuses largely upon the issue of whether it violates the United
States Constitution for a prosecutor in a state or federal case to use
peremptory challenges for racially discriminatory purposes unless
there is a pattern or practice of invidious discrimination shown in
a number of cases. This is an exceedingly important issue. It is wor-
thy of en banc consideration in this Court, and it is now before the
United States Supreme Court in Batson v. Kentucky, argued Dec.
11, 1985, 54 U.S.L.W. 3445. The En Banc Court uses the Leslie

with the uncertainty there would also come the less-than-candid and the
self-deceptive explanations. A likely further consequence would then be a tran-
sition to the more rigid Wheeler approach. also encompassing defendants as it
does.

3936 UNITED States v. LESLIE

—

case as a vehicle to confirm on this issuc the Supreme Court's semi-
nal holding in Swain v. Alabama, 380 U.S. 202. 85 S.Ct. 824. 13
L.Ed.2d 759 (1965).

But that is not the narrow issue posed by this case. See the panel
opinion, United States v. Leslie, 759 F.2d 366. 373 (Sth Cir. 1985).
The case which is before us is a poor vehicle to carry the load of a
reexamination of that fundamental issue. Indeed. the constitu-
tional issue of Swain was not even raised by the defendant in this
case. Simply stated, appellant's claim is that because the defendant
in this federal prosecution raised the issue of possible invidious dis-
crimination in the prosecutor’s jury challenges, the district judge
properly should have inquired into that issue under the exercise of
his power to insure that justice be done in federal prosecutions.
Because the opinion for the Court goes far beyond this narrow
claim, and because the district judge erroneously denied having any
power to make such an inquiry when such power is present. | am
constrained to dissent.

The prosecutor in this case may have had valid and acceptable
reasons to have focused his peremptory challenges upon members
of the black race. The error was that the district judge refused to
inquire into the prosecutor's reasons on the sweeping ground that
he simply had no power under the law to do so. It is this assertion
by the judge that he had no legal authority to inquire which is the
only issue in the case before the Court. Insofar as the opinion for
the Court can be read as denying that power to the district court, ]
insist that it is incorrect as established by well-developed and recog-
nized legal principles.

To make the issue clear, suppose in this case that upon inquiry by
the district judge the prosecutor had said something to the effect
that he challenged the blacks because he did not like blacks, he did
not think they are fit to sit in any case, and regardless of the nature
of the case he had intentionally used the challenges to engage in
racial discrimination. Under the analysis of the district judge and
the majority of this Court, the holding would be that the district
judge had no power to take any action to remedy this blatant racial
discrimination. A fair trial to this particular defendant would be
sacrificed on the altar of requiring a pattern or practice of discrimi-
nation proved statistically over a number of cases later to follow. I

UNiTED STATES v. LESLIE 3937

cannot conceive that the majority of this Court would hold if a
prosecutor made such a statement in open court explaining his per-
emptory challenges that he was acting within his right

The pane! opinion made clear it was not barring all racial consid-
eration in vior dire examination and in the use of peremptory chal-
lenges. United States v. Leslie, 759 F.2d at 374. There was no
negation of a power in the prosecutor and the discretion in the dis-
trict judge to allow challenges seemingly on a racial basis which
have rational explanations. It must be stressed again that the only
issue arises because the federal district court took the position that
it had no power to make such an inquiry of a prosecutor.

It is well here to be reminded of the classic definition of the fed-
eral prosecutor's role given by the Supreme Court in the case of
Berger v. United States, 295 U.S. 78, 55 S.Ct. 629. 79 L.Ed. 1314
(1935). In that case the Court reversed a federal conviction on the
ground that the government prosecutor had overstepped the
bounds of propriety and fairness in the prosecution of the case. The
Supreme Court 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, there-
fore. in a criminal prosecution is not that it shall win a
case. but that justice shall be done. As such, he is in a pecu-
liar and very definite sense the servant of the law, the two-
fold aim of which is that gui/t shall not escape or innocence
suffer. He may prosecute with earnestness and vigor—
indeed. he should do so. But, while he may strike hard
blows. he is not at liberty to strike foul ones. /f is as much
his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legiti-
mate means to bring about a just one.

Id. at 88. 55 S.Ct. at 633 (emphasis added). The panel opinion set
Out this quotation and then went on to quote from several other
cases of this Court. For example, in United States v. Corona, 551
F.2d 1386, 1391 (Sth Cir. 1977), we said that a prosecutor must

3938 UNITED STATES v. LESLIE

“conduct criminal trials with an acute sense of fairness and
justice.” Then in United States v. Beckett, 706 F.2d 519. 521 n.5
(Sth Cir. 1983), we said that the cherished title “United States
Attorney” is not a hunting license which exempts its holder from
the ethical constraints of advocacy.

One other important and well-known introductory proposition
must be stated. Although the historical roots of the peremptory
challenge in the American system of justice run deep. peremptory
challenges are not commanded by the United States Constitution.
See McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 2442 n.7,
77 L.Ed.2d 1322 (Marshall, J., dissenting from denial of certiorari):
Rosales-Lopez v. United States. 451 U.S. 182. 188 n.6, 101 S.Ct.
1629, 1634 n.6, 68 L.Ed.2d 22 (1981): Swain, 380 U.S. at 219, 85
S.Ct. at 835. Yet, while peremptory challenges do not have consti-
tutional foundation, the prin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0383%3A2. Public record. Not legal advice.