Opinion
96 CR 339(S-2)
June 19, 2001
Stephen D. Kelly, Catherine Friesen, Assistant United States Attorneys, Brooklyn, New York, LORETTA E. LYNCH, UNITED STATES ATTORNEY, Eastern District of New York, for Plaintiff.
JEREMY SCHNEIDER, ESQ., Rothman, Schneider, Soloway Stern, P.C. New York, NY, for Defendants.
VALERIE AMSTERDAM, ESQ., Amsterdam Branden, New York, NY, for Defendants.
MEMORANDUM AND ORDER
Defendants Umeme Raysor and Ronald Stanley were convicted after a jury trial, of multiple counts of racketeering, racketeering conspiracy, continuing criminal enterprise, and conspiracy to distribute and to possess with intent to distribute cocaine base. Stanley was additionally convicted of multiple counts of conspiracy to commit murder in aid of racketeering, and assault in aid of racketeering. Both defendants were sentenced to terms of life imprisonment, supervised release, restitution and special assessments.
Defendants have appealed the judgments of conviction to the United States Court of Appeals for the Second Circuit. They argue, among other things, that this court erred in the manner in which it evaluated certain of their motions pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).
The Court of Appeals, in a Summary Order dated April 10, 2001, found that the record of the trial proceedings reflected no "explicit adjudication" of the credibility of the government's race-neutral explanations for the challenged strikes of certain potential jurors. The Court remanded the matter to this court for supplementation of the record, specifically instructing this court to
either (1) make findings of fact and an ultimate determination on the issue of discriminatory intent by the government in its striking of prospective juror numbers 8, 27, 86, 176, 190, 237 and 247, based on the facts and circumstances, after conducting such proceedings as within its discretion, it deems appropriate, or (2) should it determine that such a determination is impossible, order a new trial.
This court found and again finds that the reasons the prosecutor gave for the exercise of the peremptory strikes for the enumerated potential jurors were honest and credible and not made with discriminatory intent. Upon reviewing the transcript of the record, the court reaffirms its finding that defense did not carry its burden of showing purposeful discrimination on the part of the government.
Defense counsel first raised a purported Batson motion at the end of the second day of voir dire, in reference to the government's challenges for cause. At that time, defense counsel asserted that the government's challenges for cause resulted in excluding certain African-Americans, "who might have a relative or friend who has committed a criminal act," and "certain African-Americans that come from a certain ethnic — not ethnic, demographic and economic group," and that it was "wrong to remove an entire subsection of this pool, which is African-American." Jury Selection Tr. at 267-68.
At that time, after the challenges for cause, the remaining jury pool consisted of a total of 19 jurors, of whom 12 were African-American. Defense counsel conceded that "[t] here are African-Americans who have stayed [in the jury pool] from a variety of walks of life. When it has come down to uneducated, poor blacks, who have family members or some occasion to have some instance or connection or experience with crime, there has invariably been a challenge for cause . . . which has been granted." Jury Selection Tr. at 268-89.
At that point, defense counsel first invoked Batson in an effort to show that the government and the court were improperly excluding African-Americans from the jury pool. She stated,
I believe under Batson, which talks about not using . . . preempts in a selective manner, the reasoning behind that is so that all people, including those less educated, less wealthy, and in fact, those people who come from violent crime areas but who themselves are good citizens, have the opportunity to serve as a juror.
When it was pointed out to defense counsel that the panel included a high representation of African-Americans defense counsel responded, "It isn't a race thing . . . It's not race. It's economic and life experience and education." Jury Selection Tr. at 270.
Though the court was not aware of the exact percentage of the population of the Eastern District of New York at the time of the jury selection who were African Americans, it knew that the figure was approximately 20 per cent or less. In fact, the percentage of African Americans in the Eastern District of New York was reported as 17.88 per cent in the 1990 Census and 19.4 per cent in the 2000 Census.
The government then pointed out, "that's not what Batson speaks to." Jury Selection Tr. at 270-71. Batson prohibits the exclusion of jurors based on race, not on the basis of demographics, economics, education, "life experience," or personal connection to criminals or crime, all of which are legitimate factors to be considered in excluding jurors for cause. Further, peremptory challenges may be exercised for any reason or no reason at all, save the impermissible reason of race prohibited byBatson.
If defense counsel were to be taken at her word, it could be concluded that she was arguing that African-Americans were poor, uneducated and closely connected to crime and criminals, and so an exclusion of jurors for those factors would be a de facto exclusion of African-Americans.
That was not a proper invocation of Batson, and defense counsel's challenges were evaluated by the court in light of counsel's misinterpretation of that case. In order to provide the necessary context in which the court's credibility assessments were made, the Batson challenges are discussed in the order in which they were made.
Prospective Juror Number 8
Prospective Juror Number 8 is an African American woman who was twenty years old at the time of the jury selection. The defense made theirBatson challenge to this juror at the same time that they challenged prospective jurors numbered 14, 208 and 220. Trial Tr. at 32. The discussion of those three challenged jurors, while not the subject of the mandate here, is relevant as context for the challenge of juror number 8. At the time of this first group of challenges, the jury pool contained 16 African-Americans in a total pool of 34 persons.
The government defended its move to strike juror number 208 by stating that that juror showed a lack of understanding of the difference between a civil and criminal case, and had contact with drug addicts. The government stated that juror number 220 had indicated both on the juror questionnaire and in voir dire that drugs, including cocaine, should be legalized, and that he had a relative who had served prison time. Trial Tr. at 34. Given that the case involved a large drug distribution conspiracy, the court found, and indeed the defense conceded, that these were credible race-neutral explanations. Trial Tr. at 37.
The government struck prospective juror number 14, a black woman, who eventually became the jury foreperson. Then the defense made a Batson motion which the court granted. Upon careful consideration of the juror's statements and behavior, the court did not find the government's explanation that the prospective juror was "rolling her eyes" to be a credible race-neutral reason to strike this juror. Trial Tr. at 39.
With respect to prospective juror number 8, the government stated as its reasons for moving to strike this juror that "she is a twenty year old unemployed female and who has personal experience with a friend who had gotten AIDS from drug use." Trial Tr. at 34.
In response to these reasons, the defense began by misquoting the government, saying "Mr. Kelly indicated that this was a young black woman." Defense counsel went on to argue that the juror's acquaintance with a friend who contracted HIV through drug use "would seem to cut strongly against her being a defense juror and would appear that that argument is a pretext simply to challenge the black juror" and noted the juror's interest in law enforcement. Tr. Transcript at 36-37. Thus defense counsel appeared to be arguing that because in her estimation this juror's background "would seem to cut strongly against her being a defense juror," the government's stated reasons for striking her must be pre-textual.
The government then stated:
Part of the concern the government has with individuals who may have contact with people who have contracted AIDS through drug use is that obviously many of our witnesses will be drug dealers, people who have distributed drugs and are largely responsible for the actually hand to hand sales that may well lead to these individuals contracting a disease such as AIDS, and also suffering from the effects of drugs. Those concerns for us are quite serious.
The court found this to be a credible race-neutral reason to strike the juror. The court also found the defense argument unpersuasive. Defense counsel had made no argument that called into question the legitimacy of the government's concerns about the juror's ability to fairly evaluate the testimony of its drug dealing witnesses. Trial Tr. at 38.
Based on all of the facts and circumstances, including the honesty and credibility of the government's race-neutral reasons and the unpersuasive nature of the defense arguments, the court found that the defendants had not satisfied their burden of proof of purposeful discrimination with respect to the government's peremptory challenge of prospective juror number 8.
Prospective Juror Number 27
The government stated that "there were multiple bases" for striking prospective juror number 27. Among them was the fact that the juror had some legal training, and that her son was currently incarcerated, because he had left the jurisdiction while on parole for writing a bad check. The government added as further justification "the other answers to the questions in her questionnaire." Trial Tr. at 57.
The court asked defense counsel, "Do you want to say anything?" and defense counsel replied, "No, Judge." Trial Tr. at 57.
The court found that the government's race-neutral explanations were credible. The court found it believable that the government could fear this potential juror might harbor ill feelings toward law enforcement because of the incarceration of her son.
The court also reviewed the juror's questionnaire, and saw that she had attended law school for one and one half years at night, and was currently a paralegal supervisor at a large law firm. The court found it entirely credible that the government would want to exclude her because of her legal training, out of concern regarding her "ability to follow the law as instructed" by the court.
The court also noted that she listed only two out of a possible three favorite television programs, and they were "NY Undercover" and "Law and Order."
Thus, the court found that the government's citation of other answers in the questionnaire was also a credible explanation of their peremptory strike, as further cause for their concern that this prospective juror might not solely follow the court's instructions as to the law.
The credibility of the government's race-neutral reasons, coupled with the lack of response by defense counsel, persuaded the court that the defense had not met its burden of proof of purposeful discrimination on the part of the government with regard to its peremptory strike of prospective juror number 27.
Prospective Juror Number 86
As reasons for their peremptory challenge of prospective juror number 86, the government cited the fact that the juror was sixty-two years old, did not finish high school, and "had a good deal of difficulty filling out a number of the questions on the form." Trial Tr. at 58.
The court's review of the juror's questionnaire confirmed that the juror had significant trouble in filling out answers on the form correctly, leaving several blank, including the question, "Do you understand that the burden of proof in a criminal case is greater than in a civil case?" even though he answered the question directly after it, "Would you have any difficulty applying this rule of law?" in the negative. He left the following page entirely blank, including a question whether he had a problem with the rule of law that a defendant is presumed innocent, as well as questions regarding his exposure to street gangs, and his ability to consider testimony regarding murder. Throughout the form, the juror copied "Yes" or "No" into spaces already marked "Yes" or "No" instead of merely checking the boxes as instructed.
The court's review of the questionnaire persuaded it that the government's "concern in terms of his ability to follow [the] complex nature of the case and all the judge's instructions" was honest and credible. Trial Tr. at 58. The defense did not respond to the government's argument. The court found that the defense had not met its burden of proof of purposeful discrimination, and denied their Batson motion. Trial Tr. at 58.
Prospective Juror Number 190
The government gave as its reasons for moving to strike this juror that "in answer to the Court's questions last week [the juror] had a good deal of difficulty describing the nature of her prior jury service in which she could not recall exactly what the nature of the jury service was, what was being said, what the nature of the case was." Trial Tr. at 59. The government also noted that she was a sixty-two year old woman, and had difficulty answering the questionnaire.
In her questionnaire, this juror left several questions blank, and misspelled numerous words including the name of the state where she was born, and answered the question "Where were you parents born, and what is their ethnic background?" with "Unit.State." She also changed her son's employer from "MTA" to "NTA," but then in voir dire confirmed that he in fact worked for the "MTA." She also answered the question regarding her marital status by writing "No" next to the space marked "Single," but did not follow up by marking whether she was Married, Divorced/Separated, etc. In voir dire, she said she was single. Jury Selection Tr. at 610.
The government also noted that this juror appeared "intimidated and scared by the circumstances of this case and the nature of this case." Trial Tr. 59. During voir dire, the government noted that the juror "paused substantially" before answering a question about where she lived, first only generally answering with the name of the county, and identifying the neighborhood only when pressed. Jury Selection Tr. at 611.
The defense responded that the juror answered the questions regarding her prior jury service clearly, that she had a nephew and a niece who were police officers, and that "writing `NTA' as opposed to `MTA' can surely not serve as the basis for a challenge" and that "it is a pre-textual challenge in the sense that the true reason is a race based reason." Trial Tr. 60.
The court was convinced of the truthfulness and credibility of the government's race-neutral reasons for exercising a peremptory challenge against this juror. Her age, the difficulty she had in answering simple questions, her hesitancy in revealing her neighborhood in the presence of the defendants, and her general appearance of intimidation by the circumstances, were all credible reasons that the government had already raised during voir dire, and that the court had itself observed.
The court was unpersuaded by the argument of the defense, which did not address the totality of the juror's difficulty in answering numerous questions both on the questionnaire and in voir dire, nor her fear or intimidation by the circumstances of the case, nor her age. The court found that the defense had made a superficial and conclusory argument, and had not carried its burden of showing purposeful discrimination. The court thus denied the Batson motion. Trial tr. at 60.
Prospective Juror Number 176
This was the last prospective juror to be challenged. The government stated its reasons for excluding this juror as being her age and single marital status. The government had previously credibly cited these reasons with respect to other prospective jurors, based on the government's concern for the safety of particularly vulnerable jurors. This juror was also a letter carrier in East Flatbush. The government's concern for the safety of particularly vulnerable jurors was credible in light of the fact that the indictment included several murders where defendants "went and sought out in the community the identity of people, using gang members from prison." Trial Tr. at 122-23.
At this point in the process, the totality of the circumstances supported the court's conviction that the government was not operating from impermissible racially-based reasons in striking jurors. These circumstances included various factors. Defense counsel had erroneously invoked Batson early in the jury selection process when there was no objective reason to assert that African-Americans were being excluded from the pool, went on to challenge all of the government's peremptory strikes, and failed to carry their burden of proving purposeful discrimination in all but one of those challenges.
Also included in the court's credibility calculus was the fact that the jury as then constituted was made up of eight black jurors, three Hispanic jurors and one Lebanese juror, and only one of the black jurors (the foreperson, juror number 14) was on the jury over the protest of the government. In addition, ten of the fourteen remaining jurors in the panel, including the next two, numbers 13 and 14, were African Americans.
Thus, the government knew that prospective juror number 176 would be replaced with an African American juror. (In fact, juror number 176 was replaced by juror number 79, an African American). The court found no reason to doubt the credibility of the government's proffered reasons, and found that the defense had failed to carry its burden of showing purposeful discrimination as to prospective juror number 176.
Prospective Alternate Juror Number 237
The government offered as its reasons for exercising its peremptory challenge against prospective juror number 237 that her husband was a drug addict, that she didn't know her husband had been involved in drugs, and that "the government does not know what type of animosity she may harbor one way or the other as to drug addicted people." Trial Tr. at 73.
In addition, the government noted that the juror had indicated in her questionnaire that she had "strong feelings" regarding accomplice testimony, and on voir dire explained that she felt that Sammy "the Bull" Gravano had received too light a sentence for his crimes simply because he co-operated with the government. Trial Tr. at 73. The government stated that many of its witnesses would be "testifying in the same circumstances as Sammy the Bull Gravano" and that they had "grave concerns about her ability to serve as a fair and impartial juror."
The court found these reasons to be entirely credible. The court clearly recalled the discussion in voir dire with this juror regarding her opinion that Sammy "the Bull" Gravano had "killed a lot of people, and he's walking around like a star now, and I don't think that's right . . . I don't feel he should walk away with his hands clean." Tr. at 95-96.
The court also found credible that the government would move to exclude this juror based on the fact that her husband was a drug addict without her knowing it, and she might have difficulty considering the testimony of some of their witnesses. The court thus found that the defense had not met its burden of proof of purposeful discrimination with regard to prospective alternate juror number 237.
Prospective Alternate Juror Number 247
The government offered as its reasons for moving to strike this juror, "other than all of the questions in the questionnaire, this is a twenty-nine year old female who the government had some concern about considering she is a younger woman who is still single and that was one of our principal bases in moving to exercise our peremptory challenge on this juror." Trial Tr. at 73.
Defense counsel countered that "[t]wenty-nine years old is not what one would consider that young a person and the fact, again of someone being single we don't believe is a race neutral reason." The government responded, "Your Honor, candidly, that is the reason. Throughout this day, defense counsel have impugned without any basis that the government is exercising challenges based upon race. It is false." Trial Tr. at 74.
At this point in the process, the court was inclined to agree. This juror had stated on her questionnaire that she would be uncomfortable hearing profanity in the tape recorded evidence presented. When questioned about this in voir dire, her demeanor suggested to the court that the graphic testimony and the violent nature of the crimes might disturb her ability to focus on the evidence.
The court had no reason to believe that the government had given false reasons for seeking to exclude this juror. The court found that the defense had not met its burden of proof of purposeful discrimination, and denied their Batson challenge as to prospective alternate juror number 247.
The final petit jury consisted of eight black jurors, three Hispanic jurors and one Lebanese juror, and the pool of alternates consisted of four black jurors and two white jurors.
The court found that throughout the jury selection process the government exercised its peremptory challenges in a race-neutral manner. It further found that defense counsel baselessly accused the government of purposeful discrimination in every one of the government's peremptory challenges. The court found the government to be truthful, honest, and credible. Defense counsel appeared clearly to have misinterpretedBatson, and made frequent inflammatory remarks without justification. The court affirms its decisions on each of the Batson challenges of prospective jurors numbered 8, 27, 86, 176, 190, 237 and 247.
So ordered.