United States v. Darin McAllister , 693 F.3d 572 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0309p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 11-5932
v.
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Defendant-Appellant. -
DARIN LEE MCALLISTER,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:10-cr-138-1—John T. Nixon, District Judge.
Argued: June 5, 2012
Decided and Filed: September 6, 2012
Before: KEITH, McKEAGUE, and DONALD, Circuit Judges.
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COUNSEL
ARGUED: Daniel D. Warlick, Nashville, Tennessee, for Appellant. Steven S. Neff,
UNITED STATES ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee.
ON BRIEF: Daniel D. Warlick, Benjamin C. Mezer, Nashville, Tennessee, for
Appellant. Steven S. Neff, UNITED STATES ATTORNEY’S OFFICE, Chattanooga,
Tennessee, for Appellee.
KEITH, J., delivered the opinion of the court in which DONALD, J., joined, and
McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 19–22), delivered a separate
opinion concurring in part and dissenting in part.
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OPINION
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DAMON J. KEITH, Circuit Judge. Defendant-Appellant Darin Lee McAllister
appeals his jury conviction of fifteen counts of wire fraud and three counts of bankruptcy
fraud. McAllister, a former FBI agent, was convicted after fraudulently making material
1
No. 11-5932 United States v. McAllister Page 2
misrepresentations on loan documents to obtain real estate loans for rental properties,
and making material misrepresentations on official documents during bankruptcy
proceedings. At trial, McAllister raised a Batson challenge to the Government’s
peremptory strike of the only two African-Americans in the petit jury pool. At the
district court’s instruction, the Government offered race-neutral reasons for striking the
jurors. The district court then summarily accepted those reasons, concluding the Batson
analysis by stating, “All right.” On appeal, McAllister argues that the district court erred
in its treatment of his Batson claim. McAllister also claims the district court erred in
excusing a defense witness from testifying after the witness notified the court of his
intention to invoke the Fifth Amendment in response to all questions asked by the
defense. Finally, McAllister argues that he was denied the right to a fair trial due to
alleged judicial and prosecutorial misconduct, and that he received ineffective assistance
of counsel. For the following reasons, we AFFIRM in part, and REMAND the case to
the district court for further findings.
I.
On May 19, 2010, McAllister was charged with fifteen counts of wire fraud, in
violation of 18 U.S.C. § 1343; one count of bank fraud, in violation of 18 U.S.C. § 1344;
and three counts of bankruptcy fraud, in violation of 18 U.S.C. § 151(3). During voir
dire, the Government used peremptory challenges to strike the only two African-
American prospective jurors—Jurors Willie Ewing and Jaminthia Pillow. The district
court asked all prospective jurors about their employment status. Juror Ewing indicated
to the court that he was unemployed. The following colloquy ensued between the
prosecutor and Juror Ewing:
AUSA: Has anybody else ever worked at a bank? Anybody?
Juror Ewing: Third Nashville.
AUSA: And how long ago was that?
Juror Ewing: [19]72, when I got out of the service.
AUSA: Oh, okay. What branch of the service were you in?
Juror Ewing: Military police.
AUSA: Okay. And how long were you in the service?
Juror Ewing: [19]68 to [19]72.
No. 11-5932 United States v. McAllister Page 3
AUSA: And did you have any law enforcement experience after
that?
Juror Ewing: No. Just security.
AUSA: Okay. What did you do? What do you mean by security?
Juror Ewing: I mean after I left the bank, I got into security with South
Central Bell and two or three other security companies.
AUSA: Okay, Thank you.
The Government used its peremptory challenge to remove Juror Ewing from the jury.
When the Government questioned Juror Pillow, she revealed that she had a prior
criminal conviction on charges of giving false information to law enforcement in the
pursuit of an official investigation. Shortly thereafter, the Government used a
peremptory challenge to remove her. Having had both African-Americans in the petit
jury pool removed, the defense counsel immediately raised a Batson challenge,
requesting that the Government “at least explain” its decision to strike Jurors Ewing and
Pillow. The district court responded that it was unnecessary for the Government to
explain striking Pillow.
After the jury was impaneled, the district court held a hearing in response to
defense counsel’s Batson concerns. The following is an excerpt from the hearing:
Court:[AUSA Gary Humble], I am going to give you the opportunity to
state your reasons for striking Willy Jerome Ewing . . . . There were two
African American . . . potential jurors, and you struck both of them.
In the case of Ms. Pillow, she stated that she had had a criminal
conviction for an offense.
I’m going to ask you to pay attention to what I’m saying, Mr.
Humble.
...
In regard to Ms. Pillow, I don’t think you need to make a statement
because she stated that she had been convicted of a felony involving
deception. So I’m not going to ask you to explain that.
...
But in regard to [Willy Ewing], I’ll ask you to explain your reasons for
striking him.
No. 11-5932 United States v. McAllister Page 4
AUSA Humble: Your Honor, the main reason is that he was unemployed.
And I wanted to talk to [AUSA Steven Neff] to see what other reasons
that we had. That’s the first thing that came to my mind. [Conferred
with Mr. Neff]
...
In addition to being unemployed, I have here in my notes that he was in
the [Military Police] from [1968] to [1972]. And there was a concern
that he would identify with the defendant.
Court: All right.
AUSA Humble: And I would also note for the record, although the
record may be clear on this, that there was the initial group of jurors.
And at that point when we made the strike, there was still one African
American left in the pool.
Court: All right.
AUSA Humble: Thank you, Your Honor.
At trial, the evidence revealed that McAllister worked in Los Angeles as an FBI
agent and moved to Tennessee in 2005 when he transferred to the FBI’s Nashville office.
McAllister purchased a home in Nashville valued at $1.5 million. His monthly mortgage
payments were approximately $7,500, while his gross monthly income was $8,000.
Approximately eighteen months after moving to Nashville, McAllister sought to obtain
loans to purchase rental properties. A loan officer for SunTrust Bank, Wes English,
processed McAllister’s loan documents. At the closing, McAllister signed loan
documents that contained several falsehoods. The forms falsely represented that
McAllister was an entertainment company executive at “DOJ Productions” who earned
$42,000 per month. In the loan application, the address for DOJ Productions was listed
as the same address as the Department of Justice in Nashville. At McAllister’s behest,
his tax preparer sent a letter to the bank, indicating that McAllister had been self-
employed in the music industry for the preceding two years—thereby satisfying the
requirements for the type of loan McAllister sought. McAllister’s defense theory was
that English falsified the documents and that McAllister did not read the documents
before signing them. SunTrust Bank granted McAllister fifteen loans and wired the
No. 11-5932 United States v. McAllister Page 5
money to the escrow account of the attorney handling the closings for McAllister’s real
estate purchases.
McAllister also applied for a $100,000 unsecured line of credit from SunTrust
Bank, which he obtained in July 2006. In his application for the line of credit,
McAllister falsely represented that he earned an annual salary of $500,000, and that he
was the president of his wife’s record company, Judah Records.
Because McAllister was unable to repay his loans, the bank foreclosed on some
of his rental properties, and sold others in a short sale. McAllister filed for bankruptcy
in July 2009. The record reveals that McAllister made false representations during his
bankruptcy proceedings. In his Statement of Financial Affairs, McAllister falsely
represented that he had no rental income, that he had no foreclosures, and that he had no
property transfers (e.g., a short sale)—all falsehoods which proved to be material and
formed the basis for his convictions for bankruptcy fraud.
A jury convicted McAllister of all counts of wire fraud and bankruptcy fraud, but
did not reach a verdict on the bank fraud charge.1 McAllister was sentenced to
48 months of imprisonment and ordered to repay $775,142.83 in restitution.
II.
1. Batson Challenge
McAllister argues that the district court erred by denying his Batson challenge
after the prosecutor struck the only two African-American prospective jurors.
This court “review[s] a district court’s determination of a Batson challenge with
great deference,’ under a clearly erroneous standard.” United States v. Cecil, 615 F.3d
678, 685 (6th Cir. 2010), cert. denied, 131 S. Ct. 1525 (2011); see also Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003) (Miller-El I) (“In the context of direct review . . . the
trial court’s decision on the ultimate question of discriminatory intent represents a
finding of fact of the sort accorded great deference on appeal.” (internal quotation marks
1
The bank fraud charge subsequently was dismissed without prejudice.
No. 11-5932 United States v. McAllister Page 6
omitted)). “On appeal, a trial court’s ruling on the issue of discriminatory intent must
be sustained unless it is clearly erroneous.” Snyder v. Louisiana, 552 U.S. 472, 477
(2008). “Deference is necessary because a reviewing court, which analyzes only the
transcripts from voir dire, is not as well positioned as the trial court is to make credibility
determinations.” Miller-El I, 537 U.S. at 339-40. However, “deference does not imply
abandonment or abdication of judicial review,” for deference, by definition, does not
preclude relief. Id. at 340.
The Equal Protection Clause does not entitle a defendant to a petit jury composed
in whole or in part of his own race, Batson v. Kentucky, 476 U.S. 79, 85 (1986);
however, it does guarantee “that the State will not exclude members of [the defendant’s]
race from the jury venire on account of race or on the false assumption that members of
his race as a group are not qualified to serve as jurors,” id at 86. In other words, the
defendant has “the right to be tried by a jury whose members are selected pursuant to
nondiscriminatory criteria.” Id.
A Batson challenge entails three distinct and sequential steps: (1) the opponent
of the peremptory strike must make a prima facie case that the challenged strike was
based on race; (2) the burden then shifts to the proponent of the peremptory challenge
to articulate a race-neutral explanation for the strike; (3) finally, the trial court must
determine whether the opponent of the peremptory strike has proven purposeful
discrimination. Cecil, 615 F.3d at 686; Synder, 552 U.S. at 476-77 (quoting Miller-El
v. Dretke, 545 U.S. 231, 277 (2005) (Miller-El II) (Thomas, J. dissenting)); Hernandez
v. New York, 500 U.S. 352, 358-359 (1991) (plurality opinion). The three-step analysis
thus places a burden on the opponent of the peremptory strike, the proponent of the
peremptory strike, and the trial court. During step two, the burden of production shifts
to the proponent of the peremptory strike; however, the burden of persuasion regarding
racial motivation never shifts from the opponent of the strike. United States v. Kimbrel,
532 F.3d 461, 466 (6th Cir. 2008); Purkett v. Elem, 514 U.S. 765, 768 (1995).
To establish a prima facie case—and thus satisfy step one—the party challenging
the peremptory strike must demonstrate that: (1) he is a member of a cognizable racial
No. 11-5932 United States v. McAllister Page 7
group; (2) a peremptory challenge was employed to remove a juror of the defendant’s
race; and (3) these facts, along with other relevant circumstances, raise an inference that
the proponent of the peremptory challenge used the challenge to exclude a prospective
juror because of his or her race. United States v. Odeneal, 517 F.3d 406, 418-19
(6th Cir. 2008); United Sates v. Ferguson, 23 F.3d 135 (6th Cir. 1994).2 McAllister
argues that he undisputedly established the first two elements of a prima facie case
because he and both excluded jurors are African-American.
Striking both prospective African-American jurors raised the inference of racial
discrimination, thus satisfying the third element of a prima facie case. After McAllister
raised the Batson issue, the district court explained to the Government that it would
“give [the Government] the opportunity to state [its] reasons for striking Willy Jerome
Ewing,” because, as the district court noted, the Government struck the only two
African-American potential jurors. The district court’s comments indicate that
McAllister’s prima facie case was predicated on the Government striking both
prospective African-American jurors. In the case of Juror Ewing, the district court was
clearly convinced that McAllister had satisfied a prima facie case under Batson because
it shifted the burden of production to the Government, requiring it to produce a race-
neutral reason for the strike.3 The Government’s argument to the contrary is
unpersuasive. In any event, “[o]nce a prosecutor has offered a race-neutral explanation
for the peremptory challenges and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue[] of whether the defendant has made a
prima facie showing becomes moot.” Braxton v. Gansheimer, 561 F.3d 453, 461 (6th
Cir. 2009) (quoting Hernandez, 500 U.S. at 359).
2
A defendant may also raise a Batson violation even if he or she is not of the same race as the
excluded juror. Powers v. Ohio, 499 U.S. 400, 402 (1991).
3
The Government invites us to interpret the district court’s ultimate denial of McAllister’s Batson
challenge as evidence that McAllister did not meet the third element of a prima facie case of discrimination
under Batson. This interpretation is plausible as it relates to Juror Pillow, but, as explained, not Juror
Ewing. The district court clearly refused to proceed to the second step of the Batson analysis with regards
to Juror Pillow, citing Juror Pillow’s prior criminal conviction. We do not find clear error in the district
court’s implicit finding that McAllister failed to establish a prima facie case that the Government’s
peremptory strike of Juror Pillow was rooted in racial discrimination.
No. 11-5932 United States v. McAllister Page 8
During the second step of the Batson challenge, the proponent of the strike must
articulate a race-neutral explanation for striking the jurors in question. Cecil, 615 F.3d
at 686; Purkett, 514 U.S. at 767. It is well settled that this explanation need not be
particularly persuasive or plausible. United States v. Torres-Ramos, 536 F.3d 542, 559
(6th Cir. 2008); United States v. Lucas, 357 F.3d 599, 609 (6th Cir. 2004); Purkett,
514 U.S. at 767-68. At this step of the Batson inquiry, “unless a discriminatory intent
is inherent in the [proponent’s] explanation, the reason offered will be deemed race
neutral.” Purkett, 514 U.S. at 768. Here, the Government met its burden of production
when it proffered Juror Ewing’s unemployment and past employment in law
enforcement as race-neutral reasons. Since racial discrimination is not inherent in either
unemployment status or past employment in law enforcement, the Government’s reasons
are race-neutral for Batson purposes.
McAllister argues that the district court erred by perfunctorily accepting the
Government’s race-neutral reason and not engaging in the third step. At the third step
of the Batson inquiry, the trial court has a duty to assess whether the opponent of the
strike has met its burden to prove purposeful discrimination. Hernandez, 500 U.S. at
363. The judge must assess the plausibility of the proponent’s race-neutral reason in
light of all evidence with a bearing on it. Miller-El II, 545 U.S. at 251-52. We have held
that the preceding command “places an affirmative duty on the district court to examine
relevant evidence that is easily accessible.” Torres-Ramos, 536 F.3d at 560. The trial
judge must consult “all of the circumstances that bear upon the issue of racial
animosity.” Snyder, 552 U.S. at 478. The trial court may neither “short circuit the
[Batson analysis] by consolidating any two of the steps,” Kimbrel, 532 F.3d at 466, nor
“simply accept the prosecution’s explanation on its face,” Torres-Ramos, 536 F.3d at
559. Rather, the trial judge has a duty to determine whether purposeful discrimination
has been established. Id. Here, the record reveals that after the district court heard the
prosecutor’s race-neutral explanation, it stated just two words on the record: “All right.”
Although vague in phrasing, “all right” was an implicit ruling against McAllister
because the hearing immediately ended and the jury was already impaneled. From a
No. 11-5932 United States v. McAllister Page 9
review of the record, it is unclear to what extent the district court engaged in the third
step, if it did at all.
We have underscored both the importance of trial courts “explicitly
adjudicat[ing] the credibility of the non-moving . . . party’s race[-]neutral explanations,”
and “[t]he need for an explicit, on-the-record analysis of each of the elements of a
Batson challenge.” McCurdy v. Montgomery Cnty., 240 F.3d 512, 521 (6th Cir. 2001)
(internal quotations omitted). “Because the primary defense to pretext based violations
of Batson is the district court’s ability to assess the credibility of an attorney’s
representations, it is critical that the district court independently assess the proffered
justification.” Id.
In United States v. Cecil, the defendant similarly argued that the district court
prematurely rejected his Batson challenge without engaging in the third step. 615 F.3d
at 686 (“[A]s soon as the government proffered its race-neutral explanation for striking
Carter—which was that her husband was a high-ranking officer of the [Metropolitan
Nashville Police Department]—the district court stated, ‘Based upon that
information . . . the court is going to deny the defense Batson challenge to the panel.’”).
Cecil’s counsel requested to be heard and voiced several reasons why the government’s
explanation was unsatisfactory. The district court then denied the motion, reasoning that
the prospective juror being married to an officer would increase the chance that she
would recognize people who would testify or be the subject of testimony. We affirmed
Cecil’s conviction only after holding that the district court ultimately carried out the
required analysis and made its own findings about the plausibility of the government’s
arguments. We reasoned that “if the district court had actually truncated the Batson
analysis by mechanically accepting the government’s explanation for striking Carter, it
would have erred.” Id. at 686 (emphasis added). We also observed that:
Batson challenges are an important tool for ferreting out invidious
discrimination, and, as such, they should not be glossed over with undue
haste. Thus, when conducting the three-step Batson analysis, a court
should take care to delineate each of the steps explicitly, reserving
judgment on the challenge until all of the steps have been performed.
Furthermore, at the third step of the Batson framework, a court should
No. 11-5932 United States v. McAllister Page 10
take the time to articulate thoroughly its findings on the issue of
purposeful discrimination.
Id. at 687 n.3 (emphasis added).
Similarly, in McCurdy v. Montgomery County, the plaintiff, James McCurdy,
objected to the defendant’s use of a peremptory challenge against an African-American
woman. 240 F.3d at 520. In response, the defense counsel stated, “[I]n my view in
watching [the prospective juror], there was no response to any of the questions, no
nodding of the head. I just took it that she wasn’t interested in the case . . .” Id. The
district court overruled McCurdy’s Batson objection “[w]ithout questioning [the
prospective juror] or engaging in a colloquy with either [plaintiff’s] or [defendant’s]
counsel.” Id. The plaintiff renewed his Batson objection in a new trial motion. In
rejecting the motion, the district court responded that the juror was “passive” in the face
of the parties’ questioning and that the defendant had therefore articulated a race-neutral
justification. We concluded that the district court did not clearly err because it did not
“merely credit the explanation of the County, but itself found that [the prospective juror]
was passive and disinterested.” Id. Like in Cecil, the district court ultimately conducted
a constitutionally sufficient Batson analysis. We noted, however, that the district court’s
“initial reaction to McCurdy’s Batson claim, in which it perfunctorily accepted the
County’s race-neutral explanation, did not conform to the requirements that the district
court make expressed findings on each of the elements of a Batson claim.” Id. at 521.
In this case, the district court improperly truncated the Batson analysis and failed
to explicitly delineate each step. The district court did exactly what this court has
repeatedly instructed against doing: perfunctorily accepting the prosecutor’s race-neutral
explanation and combining steps two and three. McCurdy, 240 F.3d at 521; Cecil,
615 F.3d at 686; Torres-Ramos, 536 F.3d at 559. The district court did not consult with
the defense counsel to hear a response to the Government’s race-neutral explanation, nor
did it engage the prosecution to independently assess the plausibility of its argument.
See Miller-El II, 545 U.S. at 251-52. Gauging from the district court’s two-word
analysis and finding— “all right”—it is doubtful that the district court consulted all
circumstances that bear upon the issue of racial animosity. Snyder, 552 U.S. at 478. We
No. 11-5932 United States v. McAllister Page 11
have no way of reviewing the district court’s reasoning for rejecting McAllister’s Batson
challenge. Thus, the district court did not conduct a constitutionally sufficient Batson
analysis.
The district court’s errors were not necessarily inconsequential. Exploration into
the Government’s race-neutral explanation would have revealed, if not already apparent,
that there were impaneled non-African-American jurors who expressed a similar, albeit
not exact, employment status as Juror Ewing. Juror Carolyn Goldtrap, for example,
stated that she was an interim teacher, who “[hadn’t] found a full-time job yet.”
Similarly, Juror Betty Goodowens stated that she “worked at home,” but did not indicate
the nature of her employment, if she was employed at all.
There was also an impaneled juror who had a background in law enforcement.
Juror Heidi Wallace-Langston, a retired Missouri Probation and Parole Officer for adult
felony offenses, was impaneled as an alternate juror. The Government mentioned that
Juror Ewing’s law enforcement background was concerning because he could identify
with the defendant. Juror Wallace-Langston had a career in law
enforcement—presumably longer than Juror Ewing’s four-year “career” working with
the Military Police—and yet the Government failed to exercise its permitted peremptory
challenge against Wallace-Langston serving as an alternate juror. See Fed. R. Crim. P.
Rule 24(c)(2)(A), (c)(4)(A). The different standards applied to Ewing and Wallace-
Langston could have suggested that the Government feared that Ewing would relate to
the defendant on account of race, not a nexus to law enforcement. The former reason is
premised on the impermissible assumption that a juror of the same race as the defendant
cannot neutrally assess the facts and follow the law. It is important to note that these
facts, either independently or collectively, are not necessarily indicia of purposeful racial
discrimination; however, the point remains that the record below indicates a failure on
the part of the district court—being in the best position to make these determinations—to
conduct a constitutionally sufficient Batson analysis, definitively resolving these issues.
The Government points out that, regardless of any procedural error that might
have occurred, the defense did not request the opportunity to demonstrate that the
No. 11-5932 United States v. McAllister Page 12
purported explanation was pretextual. We have held that once the proponent of the
peremptory strike proffers a race-neutral explanation, the opposing party has the burden
to rebut those reasons on the record. United States v. Jackson, 347 F.3d 598, 605
(6th Cir. 2003). Failure to rebut race-neutral explanations or the district court’s
conclusion will result in a plain error review of the district court’s conclusion. Id.
However, failing to object to the race-neutral explanation does not preclude review, nor
does it relieve the district court of its duty to independently assess all evidence with a
bearing on racial discrimination.4
Here, there was no conclusion for McAllister to rebut because the district court
gave no conclusion regarding the existence of purposeful racial discrimination. Had it
been apparent that the district court actually engaged in the third step, then its
determination would be afforded great deference by this court. But because the record
is unclear as to whether the district court engaged in the third step of Batson, we
REMAND the case to the district court to make explicit on-the-record findings as to
whether McAllister established the existence of purposeful race discrimination in the
selection of his jury, and whether his Batson challenge requires that his conviction be
reversed. See Torres-Ramos, 536 F.3d at 560-61.5 In making those findings, the district
4
In some cases, failing to respond to the race-neutral explanation could indicate that the party
challenging the peremptory strike no longer disputes the strike. See Jackson, 347 F.3d at 598. That was
not the situation here. During oral argument, the Government indicated that McAllister’s attorney “clearly
intended to preserve” his Batson claim for the record and did not abandon the issue or accept the
Government’s explanation.
5
The dissent seems to concede that the district court erred, but would affirm the district court
under a plain error review. “Plain error” is a clear or obvious error that affects the defendant’s substantial
rights and “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson
v. United States, 520 U.S. 461, 467 (1997) (internal quotation marks and citations omitted). The dissent
would conclude that the district court’s error did not adversely affect McAllister’s substantial rights or
seriously affect the fairness and integrity of the judicial proceedings. We disagree. Even a plain error
review is no obstacle to relief in this case. Batson errors are structural errors that are not subject to
harmless-error review. Kimbrel, 532 F.3d at 469 (citing United States v. McFerron, 163 F.3d 952, 955-56
(6th Cir. 1998)). When the error in question is structural, the defendant is not required to show that the
putative error affected his substantial rights. See United States v. Barnett, 398 F.3d 516, 526 (6th Cir.
2005). Moreover, Batson errors represent a violation of the right to equal protection of the laws, which
itself does damage to the fairness, integrity, and public reputation of the judicial proceeding. As the
Second Circuit observed:
There is . . . usually little question that any Batson error we find would affect a
defendant’s substantial rights the violation of which would result in manifest injustice.
. . . [S]ince no court can countenance a violation of the Equal Protection Clause of the
Constitution[,] any such error would seriously affect the fairness, integrity, or public
reputation of judicial proceedings.
No. 11-5932 United States v. McAllister Page 13
court must consider all evidence, including juror questionnaires, that bear on the issue
of racial animosity.
2. Wes English’s Blanket Assertion of his Fifth Amendment privilege
McAllister argues that the district court erred by excluding the testimony of Wes
English, the SunTrust loan officer who drafted McAllister’s loan documents. At a
hearing out of the presence of the jury, English’s counsel advised the court that English
would “invoke his Fifth Amendment privilege with respect to any questions pertaining
to his employment at SunTrust Bank and his relationship to Mr. McAllister.” McAllister
then requested permission to call English to the stand. The court responded, “Well, if
you call him to the stand he’s going to refuse to answer any questions other than his
name.” The district court then denied McAllister’s request to call English to the stand,
commenting that it would be absolutely improper. Although McAllister’s brief does not
assign a specific error, he seems to argue that the district court erred in refusing to let
English take the stand.
We review a district court’s decision whether to allow a witness to take the stand
after being advised of his intention to invoke his Fifth Amendment privilege for an abuse
of discretion. United States v. Ballard, 280 F. App’x 468, 470 (6th Cir. 2008)
(unpublished decision). “The longstanding rule of this circuit is that a [witness] must
take the stand and answer individualized questions in order to invoke his Fifth
Amendment privilege.” United States v. Bates, 552 F.3d 472, 475 (6th Cir. 2009) (citing
In re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983)). We have explained that before
permitting a witness to assert a Fifth Amendment privilege, courts must determine if the
witness has “reasonable cause” to apprehend a real danger of incrimination. In re
Morganroth, 718 F.2d at 167. There is a presumption against blanket assertions of Fifth
Amendment privilege because blanket assertions, generally, are not sufficient to meet
this “reasonable cause” requirement. Bates, 552 F.3d 475-76. However, we have
United States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003) (internal quotation marks, citations, and
parentheses omitted).
No. 11-5932 United States v. McAllister Page 14
recognized that in instances where the witness has a clear entitlement to claim the
privilege, forcing the witness to take the stand would be “futile and thus unnecessary.”
Id. (internal quotation marks omitted). “In such a case, the reason behind the rule does
not apply because the court already knows that ‘reasonable cause’ to invoke the privilege
exists.” Id. at 476.
English had a clear entitlement to claim his Fifth Amendment privilege because
the danger of incrimination was apparent. The defense counsel notified the district court
that they intended to introduce evidence of an instance in which English allegedly forged
another employee’s name on a personnel document and an instance of bank fraud. The
defense’s theory was that English falsified information on McAllister’s loan documents
to facilitate the loan. The defense argued that English had abused the loan process,
forged names, and ensured that clients did not know the information he was submitting
on their behalf. It was apparent to the district court that defense counsel would question
English about his involvement in processing McAllister’s loan. English’s answer to
these questions could have likely subjected him to criminal prosecution. Accordingly,
given that English’s counsel advised the court that English would invoke the Fifth
Amendment to every question pertaining to his employment and relationship with
McAllister, the district court did not abuse its discretion in permitting English to make
a blanket assertion of the privilege.
3. Judicial Misconduct
McAllister asserts that the district court’s conduct throughout the trial denied him
a fair trial. We generally review a district court’s conduct during a trial for an abuse of
discretion. McMillian v. Castro, 405 F.3d 405, 409 (6th Cir. 2005). However, “where
the defendant does not contemporaneously object to the trial court’s conduct, we review
that conduct under the plain-error standard.” United States v. Hynes, 467 F.3d 951, 958
(6th Cir. 2006). “A finding of plain error requires a defendant to show (1) error (2) that
was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected
the fairness, integrity, or public reputation of the judicial proceedings.” United States
v. Johnson, 627 F.3d 578, 585 (6th Cir. 2010).
No. 11-5932 United States v. McAllister Page 15
McAllister cites to numerous excerpts in the transcript, all of which fall far short
of plain error, and none of which indicate an abuse of discretion. As an example of an
abuse of discretion, McAllister claims that the district court interrupted a prosecutorial
witness twenty-four times to ask its own questions that allegedly favored the
prosecution. A review of the record reveals that the district court’s questions and
interruptions do not show hostility or bias, and were generally intended to clarify the
witness’s testimony.
Most significant, McAllister argues that the district court erred by not allowing
the defense to introduce an audio recording of a bankruptcy hearing. He contends that
the Rule of Completeness espoused in Federal Rule of Evidence 106 mandates its
admissibility. Rule 106 provides: “If a party introduces all or part of a writing or
recorded statement, an adverse party may require the introduction, at that time, of any
other part—or any other writing or recorded statement—that in fairness ought to be
considered at the same time.”6
In ruling on a Rule 106 request to supplement a statement, the district court must
determine “(1) whether the additional evidence explains the evidence already admitted;
(2) whether it places the admitted evidence in its proper context; (3) whether its
admission will serve to avoid misleading the trier of fact; and (4) whether its admission
will insure a fair and impartial understanding of all of the evidence.” United States v.
Glover, 101 F.3d 1183, 1190 (7th Cir. 1996) (internal quotation marks omitted).
McAllister reasons that since the Government called McAllister’s bankruptcy
attorney to testify that McAllister made certain omissions in his bankruptcy documents,
the defense should have been able to use an audio recording of a separate hearing to
“give[] the jury a more complete understanding of the defendant’s state of mind.”
Appellant Br. at 28. We disagree. The Government did not introduce a writing related
to the hearing or any portion of the audio recording. Rather, the Government had an
attorney testify about an omission on McAllister’s bankruptcy petition. McAllister
6
Rule 106 was amended in 2011, but the changes were stylistic only.
No. 11-5932 United States v. McAllister Page 16
sought to introduce an audio recording of the defendant admitting that he had taken some
losses on income properties. The audio recording was made at a hearing conducted
weeks after he filed his bankruptcy petition. Further, the statements in the audio
recording did not contradict the information contained in the petition. We therefore
conclude that the district court did not abuse its discretion in excluding the audio
recording of the defendant’s statements at the bankruptcy hearing.
4. Prosecutorial Misconduct
McAllister argues that the prosecutor engaged in misconduct which deprived him
of his right to due process. The parties agree that there were no contemporaneous
objections to the alleged prosecutorial misconduct, and we thus review for plain error.
United States v. Henry, 545 F.3d 367, 376 (6th Cir. 2008). To assess prosecutorial
misconduct, we first determine whether the prosecutor’s conduct was improper, and if
so, whether the improprieties were flagrant. United States v. Tarwater, 308 F.3d 494,
501 (6th Cir. 2002). “To determine flagrancy, we consider: (1) whether the statements
tended to mislead the jury or prejudice the defendant; (2) whether the statements were
isolated or among a series of improper statements; (3) whether the statements were
deliberately or accidentally before the jury; and (4) the total strength of the evidence
against the accused.” Id. at 511. McAllister claims that the prosecutor “struck many
foul blows.” Specifically, he claims the prosecutor: (1) used a witness’s past work as an
undercover FBI agent to undermine his credibility; (2) acted improperly by suggesting
that a witness did not read the entirety of the documents he purported to rely on; and
(3) misled the jury in closing arguments. We find no merit in McAllister’s assertion that
the Government’s conduct deprived McAllister of due process. The Government’s
conduct, even if improper, did not rise to the level of flagrancy. Attacking the credibility
of a former undercover agent by exposing the fact that undercover work requires them
to lie, does not constitute flagrant conduct.
Similarly, we see no fault in the Government’s suggestion that Dr. Gary
Lacefield did not review the entirety of more than 14,000 pages of documents that he
purportedly relied upon within the one-week time period for which he billed.
No. 11-5932 United States v. McAllister Page 17
McAllister also highlights comments during closing argument that he contends
demonstrate prosecutorial misconduct. Specifically, McAllister cites to the following
statement from the Government’s closing argument that references McAllister’s
bankruptcy attorney:
You know, when we met with Mr. Cannon and told him about [the false
statements in the bankruptcy documents], the first thing that he did was
he couldn’t wait—even though the bankruptcy case was closed, he could
not wait to change it. Because I guarantee you, he didn’t want anybody
to think that he had made a false statement, that he wasn’t disclosing
everything.
(R. 98 at 1050). This statement does not demonstrate an unreasonable inference from
the evidence adduced at trial or an unfair response to the defendant’s argument. See,
e.g., United States v. August, 984 F.2d 705, 714-15 (6th Cir. 1992) (arguments that
defendant sought to “trick” the jury were not categorically improper). The district court
found that the “statements made during the prosecutor’s closing [were] based on proper
inferences from evidence presented during the trial.” (R. 127 at 4). We agree.
Accordingly, we reject McAllister’s claim of prosecutorial misconduct.
5. Ineffective Assistance of Counsel Claim
McAllister argues that defense counsel was ineffective for: (1) not objecting to
numerous inappropriate comments made by the prosecutor and (2) failing to ask for an
offer of proof when the judge excluded English from testifying.
“As a general rule, a defendant may not raise ineffective assistance of counsel
claims for the first time on direct appeal, since there has not been an opportunity to
develop and include in the record evidence bearing on the merits of the allegations.
United States v. Martinez, 430 F.3d 317, 338 (6th Cir. 2005). “This court has routinely
concluded that such claims are best brought by a defendant in a post-conviction
proceeding under 28 U.S.C. § 2255 so parties can develop an adequate record on this
issue.” Id. (internal quotation marks and citations omitted). This rule “stems from the
fact that a finding of prejudice is a prerequisite to a claim of ineffective assistance of
counsel, and appellate courts are not equipped to resolve factual issues.” United States
No. 11-5932 United States v. McAllister Page 18
v. Brown, 332 F.3d 363, 368-69 (6th Cir. 2003). The record here is not well-developed
to decide if defense counsel’s performance was deficient, or whether there is a
reasonable probability that, but for the omissions of defense counsel, the result of the
proceedings would have been different. See Strickland v. Washington, 466 U.S. 668,
694 (1987). We therefore decline to consider McAllister’s ineffective assistance of
counsel claim on direct appeal.
III.
For the foregoing reasons, we AFFIRM the district court in part, and REMAND
for the court to conduct findings on whether, upon consideration of all factors that bear
on racial animosity, McAllister is entitled to a new trial.
No. 11-5932 United States v. McAllister Page 19
__________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
__________________________________________________
McKEAGUE, Circuit Judge, concurring in part and dissenting in part. I am
in agreement with practically all of the majority opinion. I write separately to register
my disagreement with remanding for further proceedings on McAllister’s Batson
challenge, because the district court’s procedural error did not amount to “plain error.”
The majority acknowledges that the Government carried its burden in responding
to McAllister’s Batson challenge by offering race-neutral explanations for peremptorily
excusing venire person Willy Ewing. The majority also acknowledges that McAllister
then had the burden to rebut the Government’s reasons on the record, but did not even
request the opportunity to do so. The majority recognizes that because of McAllister’s
failure to offer any rebuttal of the race-neutral reasons, his appellate challenge to the
district court’s denial of his Batson challenge is subject only to plain error review.
United States v. Jackson, 347 F.3d 598, 605 (6th Cir. 2003). That is, McAllister must
show that the district court’s abbreviated analysis of the Batson issue was not only
(1) error (2) that was “plain,” but also (3) adversely affected his substantial rights, and
beyond that, (4) seriously affected the fairness, integrity or public reputation of judicial
proceedings. United States v. Knowles, 623 F.3d 381, 385-86 (6th Cir. 2010).
Ordinarily, we may grant relief for plain error only to prevent a miscarriage of justice,
where the error infecting the trial was so plain that the trial judge and prosecutor are
deemed derelict in countenancing it. Id.
Despite recognizing the applicability of plain error review, the majority opinion
does not explain how the defect in the district court’s procedure—i.e., its failure to make
explicit findings that were only implicit but nonetheless obvious—can be deemed to
have resulted in a miscarriage of justice. Nor does the opinion identify damage done to
the integrity and reputation of the judicial proceeding, or even explain how McAllister’s
substantial rights were adversely affected. In fact, although the majority, by carefully
No. 11-5932 United States v. McAllister Page 20
examining the transcript of voir dire proceedings, has made a better case for finding
plain error than McAllister, its examination culminates in the honest recognition that the
record does not facially evidence purposeful discrimination. At worst, the majority
concedes, the record may be viewed as showing that the district court’s procedural error
was “not necessarily inconsequential.” This is clearly insufficient to justify relief under
plain error review.1
No less troubling are the practical implications of the majority’s flawed approach.
The majority justifies its circumvention of the strictures of plain error review by
observing that the district court had the “duty to independently assess all evidence with
a bearing on racial discrimination.” Extraordinary. Where the prosecution offers
plausible race-neutral reasons for excusing a venire person, and the defendant states no
objection and offers no evidence or argument challenging the credibility of the
prosecution’s reasons, the trial court is not entitled to assess their credibility and race-
neutrality until it has first independently examined all relevant evidence that is easily
accessible? Just how far, trial courts are left to wonder, does this “independent” duty
extend? How closely must the trial court “examine” the easily accessible evidence? Just
what evidence is to be considered “easily accessible?”
Here, the majority comes to the aid of defense counsel with the benefit of
hindsight by scrutinizing the transcript of the voir dire proceedings. Voir dire in this
case spanned two days. No transcript was easily accessible to the trial court during voir
dire. If the trial judge lacked infallible memory of all potentially relevant answers given
1
The majority posits that plain error review is no obstacle to relief in this case because a Batson
error is a structural error. Indeed, if the court were to hold that a “Batson error” occurred—i.e., that the
district court erred in its determination that Ewing was excused for race-neutral reasons and that Ewing’s
excusal was shown to be the product of purposeful race-discrimination—then, yes, a structural error would
have been found, obviating the need for McAllister to show prejudice to his substantial rights.
If such a structural error were found, then the remedy would be reversal of the conviction and
remand for new trial. The majority does not grant such relief, however, because it recognizes that the
record does not evidence purposeful discrimination. To conclude that the record showed purposeful
discrimination, the majority would have to overcome the great deference owed to the district court and find
its contrary determination clearly erroneous. Instead, the majority remands for explicit fact-findings to
determine whether a “Batson error” occurred—i.e., whether McAllister carried his burden of showing that
the government’s excusal of Ewing was motivated by racial animosity. The error thus identified by the
majority is not structural error, but merely procedural error—a procedural error that is subject to plain error
review because McAllister did not even object to and try to rebut the government’s race-neutral showing.
No. 11-5932 United States v. McAllister Page 21
by venire persons during two days of voir dire, was the judge obliged to hold the trial in
abeyance until after obtaining a transcript and scrutinizing it for potential arguments that
defense counsel had not thought to assert? The majority answers, “yes,” for it second-
guesses the trial court’s ruling and requires reconsideration based on evidence that was
not readily accessible at the time of trial.
What about juror questionnaires? In United States v. Torres-Ramos, 536 F.3d
542, 560-61 (6th Cir. 2008), juror questionnaires were considered to be easily accessible.
Indeed, the questionnaires themselves were readily accessible, but what about the
potentially relevant evidence that might be mined from them? In the quiet deliberative
solitude of an appellate judge’s chambers, questionnaires may be compared and
contrasted in a myriad of ways in search of inferential evidence that race-discriminatory
animus may have played a role in a peremptory challenge. But in the absence of a
pointed objection by defense counsel to the prosecution’s given reasons for the
challenge, how long is the trial judge obliged to hold the trial at a standstill while he or
she examines questionnaires for potential evidence? What if the examination involves
30 or 50 or 100 or more questionnaires? How thoroughly must the trial judge compare
and contrast to satisfy his affirmative duty to independently examine? If a reviewing
court later identifies grounds for a suspicious inference that the trial judge overlooked
or failed to mention in his ruling, does it necessarily follow that the trial judge breached
his affirmative and independent duty?
The majority’s ruling tends to undermine the balance inherent in our adversarial
judicial system. The courts “do not sit as self-directed boards of legal inquiry and
research, but essentially as arbiters of legal questions presented and argued by the parties
before them.” Nat’l Aeronautics and Space Admin. v. Nelson, 131 S. Ct. 746, 757 n. 10
(2011) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)).
Failure to enforce the requirement that a party state his claim or objection and support
it with citation to law or evidence “will ultimately deprive us in substantial measure of
that assistance of counsel which the system assumes.” Carducci, 714 F.2d at 177. The
plain error doctrine is prudently designed to enforce this requirement by providing
No. 11-5932 United States v. McAllister Page 22
incentive for timely objection. Because McAllister did not challenge the prosecution’s
race-neutral reasons in the trial court, his appellate challenge is not entitled to plenary
review, but only plain error review.2 Plain error review still permits correction of a
miscarriage of justice, but only if all four conditions are met.
The majority is justifiably critical of the district court’s terse handling of the
Batson challenge. However, the requirements for relief under plain error review are
simply not met on the instant record. The majority has failed to identify grounds for
concluding that the Government’s race-neutral reasons were a pretext for race
discrimination. Absent such a showing, the trial court’s ruling, however terse, can
hardly be deemed to have adversely affected either McAllister’s substantial rights or the
integrity and public reputation of the trial. The record does not even hint at the existence
of a miscarriage of justice that warrants remand for further proceedings. Plain error has
thus not been shown and we, therefore, lack authority to grant relief. Accordingly, I
respectfully dissent.
2
Not only did McAllister fail to object to the race-neutral reasons at trial; he has also failed to
offer any rebuttal of them on appeal. He has not even argued grounds for finding the given reasons were
actually a pretext for race-discrimination. His appellate challenge is directed exclusively at the technical
procedural sufficiency of the district court’s explanation of its acceptance of the prosecution’s given
reasons. This glaring void not only undermines the showing necessary to establish remediable plain error,
but also indicates that remand for more complete fact-findings will be a waste of time.