United States v. Adams , 200 F. Supp. 3d 141 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES,
v. Criminal Action No. 15-44 (JEB)
JAMAL A. ADAMS, a/k/a Ishmael Heru-
Bey,
Defendant.
MEMORANDUM OPINION
Defendant Ishmael Heru-Bey, formerly Jamal Adams, was convicted by a jury in October
2015 of corruptly endeavoring to obstruct and impede the internal-revenue laws. This Court
sentenced him in April 2016 to eleven months’ incarceration, followed by twelve months of
supervised release, and ordered him to pay restitution of $45,712. He now moves for release
pending his appeal of this conviction on the ground that such appeal raises at least one
substantial question of law or fact likely to result in an appellate decision in his favor. More
specifically, Heru-Bey argues that this Court erred in holding that: (1) he had forfeited his right
to request a jury instruction concerning unanimity; (2) such a unanimity instruction is not
required as a matter of law in his case; and (3) the government did not violate Batson v.
Kentucky, 476 U.S. 79 (1986), through its use of peremptory strikes of black jurors during voir
dire. Because none of these challenges meets the required threshold, the Court will deny his
Motion.
I. Background
Defendant was charged in a Superseding Indictment filed on August 19, 2015. See ECF
No. 17. (Because Heru-Bey legally changed his name from Jamal Adams only after many of the
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relevant acts had occurred, the Indictment refers to him as Adams. Given that his name is now
Heru-Bey, that is what the Court will call him.) The Indictment charged Defendant with one
count of corruptly endeavoring to obstruct and impede the internal-revenue laws by various
means – including the submission of false income-tax documents to his employer, the IRS, and a
federal bankruptcy court – in violation of 26 U.S.C. § 7212(a), and two counts of attempting to
evade or defeat taxes, in violation of 26 U.S.C. § 7201. Id. at 2-5. The case proceeded to trial on
October 5, 2015, and a jury ultimately convicted him of the first charge and acquitted him of the
latter two. See ECF No. 38.
Following his conviction, Defendant filed a motion for a new trial on the ground that the
Court had improperly responded to a jury note during deliberations. See United States v. Adams,
150 F. Supp. 3d 32, 33-34 (D.D.C. 2015). Specifically, Heru-Bey argued that the Court should
have instructed the jury that it had to unanimously agree on at least one of the specific means by
which he had acted to obstruct or impede the internal-revenue laws. Id. The Court denied this
motion both because Defendant had not sought such an instruction during the charge conference
and because one would not have been legally correct. Id. The Court then sentenced him on
April 14, 2016, to eleven months’ incarceration, followed by one year of supervised release, and
ordered him to surrender himself to the Bureau of Prisons upon subsequent notification. See
ECF No. 57.
On April 28, 2016, Defendant filed a Notice of Appeal. See ECF No. 59. Following up,
he has now filed a Motion for Release Pending Direct Appeal under 18 U.S.C. § 3143(b). The
government opposes his request. The Court, meanwhile, has held his prison reporting in
abeyance pending determination of this Motion. See Minute Order of April 26, 2016.
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II. Legal Standard
Under 18 U.S.C. § 3143(b)(1), the Court must detain a defendant pending appeal unless it
finds: (A) by clear and convincing evidence that he is not likely to flee or pose a danger to the
safety of any other person or the community if released; (B) that the appeal is not for the purpose
of delay; and (C) that the appeal raises a substantial question of law or fact likely to result in: (i)
reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of
imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time
already served plus the expected duration of the appeal process. Because the government does
not dispute that Heru-Bey has satisfied subsections (A) and (B), the sole question here relates to
subsection (C).
An analysis of that subsection is generally construed as a dual inquiry: (1) Does the
appeal raise a substantial question of law or fact? (2) If so, would the resolution of that question
in Defendant’s favor be likely to lead to any of the results listed above? See United States v.
Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1988) (per curiam). As the government concedes the
second prong, the Court’s focus is on the first.
In determining whether Defendant has raised a substantial question, the Court keeps in
mind that there is a presumption of a valid conviction when assessing motions for release
pending direct appeal. See id. at 556. Defendant bears the burden of rebutting this presumption.
United States v. Libby, 498 F. Supp. 2d 1, 3 (D.D.C. 2007); see also United States v. Shoffner,
791 F.2d 586, 589 (7th Cir. 1986) (finding defendant must “demonstrate that he has a substantial
question to present [on appeal] before he may be admitted to bail”). To determine whether a
substantial question exists, the Court must inquire whether the defendant has raised an issue that
is “a close question or one that very well could have been decided the other way.” Perholtz, 836
3
F.2d at 555 (finding that “close question” standard is “more demanding” than one that requires
the inquiry to be “fairly debatable,” “fairly doubtful,” or simply “not frivolous”).
III. Analysis
In seeking his release, Defendant asserts that his appeal will raise three substantial
questions of court error that are likely to result in a new trial. See Mot. at 2-3. These questions
are (1) whether he forfeited his right to request a means-unanimity jury instruction; (2) whether
unanimity within means is required as a matter of substantive or constitutional law for a
§ 7212(a) conviction; and (3) whether the government violated Batson during voir dire through
its use of peremptory strikes. Id. Although the Court recognizes that it is far from infallible, it
believes that it appropriately disposed of these three issues and that Defendant’s challenges are
insufficient to warrant release. It considers each in turn.
A. Forfeiture of Right to Jury Instruction
Defendant first contends that whether he forfeited his right to a means-unanimity jury
instruction – that is, a directive that all jurors must agree on which specific means (or acts) he
took to obstruct or impede the internal-revenue laws – constitutes a substantial question. See
Mot. 2-3. During the charge conference, Defendant concededly did not seek such an instruction.
Adams, 150 F. Supp. 3d at 35. Yet when the jury sent out a note during deliberations relating to
the first count, Heru-Bey then requested that the Court include a means-unanimity directive in its
response. Id. The Court refused, ruling in part that Defendant had forfeited his right to request
such an instruction by failing to do so at the charge conference. Id. at 35-36 (although the Court
and parties initially termed this failure a “waiver,” the Court noted in its ruling on Defendant’s
motion for a new trial that “it actually appears to be [a question] of forfeiture”). The Court also
emphasized during this mid-deliberations colloquy that the note did not specifically raise the
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unanimity issue; as a result, including such an instruction in its response would be inappropriate.
Id. Finally, as will be discussed below, the Court explained at trial that such a unanimity
instruction would be legally incorrect. Id.
The Court considered the forfeiture question for a second time in response to Defendant’s
motion for a new trial. See id. at 36-37. Heru-Bey there maintained that, although he “did not
object to [the jury] instructions” at the close of evidence, he did not forfeit his right to ask for a
means-unanimity instruction because he timely requested one during arguments on how the
Court should respond to the jury note. See Motion for New Trial at 2, 4-5. In other words,
Defendant believed that the jury note presented him with a “second bite at the apple,” Adams,
150 F. Supp. 3d at 37, and that his timely request in response to that note vitiated his silence at
the charge conference. The Court rejected Defendant’s argument on the same grounds that it
relied on at trial – namely, because Defendant had forfeited his right to such instruction by never
asking for it before the jury retired to deliberate, as required under Federal Rule of Criminal
Procedure 30(d), and because the aforementioned jury note had “never actually posed the
unanimity question” and thus did not present the “second bite” Defendant sought. Id. at 36-37
(quoting Fed. R. Crim. P. 30(d)); see also United States v. Hernandez, 146 F.3d 30, 35 (1st Cir.
1998) (“A party’s failure properly to preserve an objection to a jury instruction contained in the
original charge forfeits the point, and the defaulting party cannot resuscitate [that] point by
objecting to the Court’s later repetition of the same instruction in response to a jury question.”);
United States v. Ladd, 885 F.2d 954, 961 (1st Cir. 1989) (stating that “trial court should confine
its response to the approximate boundaries of the jury’s inquiry”).
In his current Motion, Defendant offers no new arguments, and the Court’s findings and
reasoning thus remain the same. Yet even if this forfeiture issue did present a substantial
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question, Defendant’s appeal would not result in a new trial unless a means-unanimity
instruction was actually appropriate. As explained previously in response to Defendant’s
motion for a new trial and again below, that is not the case.
B. Unanimity Within Means
Defendant’s second contention is that whether “unanimity is . . . required as a matter of
substantive or constitutional law” is a substantial question. See Mot. at 2-3. As with the
forfeiture question, Heru-Bey also previously raised this issue in his motion for a new trial. See
Adams, 150 F. Supp. 3d at 37-38. In that motion, he supported his position with “an unpublished
opinion from the Tenth Circuit, United States v. Wood, 384 Fed. App’x 698 (10th Cir. 2010), in
which the district court did give a unanimity instruction [where] the defendant was similarly
charged with corruptly endeavoring to obstruct and impede the internal-revenue laws.” Id. at 37.
This Court, however, ruled that Wood did not provide a basis for granting a new trial because the
Tenth Circuit “never offered any opinion on [the] legal propriety” of the instruction in Wood and
later found – in a different case – that “a unanimity instruction is improper in relation to the
count on which Heru-Bey was convicted.” Id. (citing Wood, 384 Fed. App’x at 708, and United
States v. Sorensen, 801 F.3d 1217, 1235, 1237 (10th Cir. 2015)). The Court also pointed out that
the Supreme Court and other circuits have generally held that juries must be unanimous about
the elements of offenses, but not the means by which defendant’s actions satisfy those elements.
Id. (citing Richardson v. United States, 526 U.S. 813, 817 (1999) (“[A] federal jury need not
always decide unanimously which of several possible sets of underlying brute facts make up a
particular element, say, which of several possible means the defendant used to commit an
element of a crime.”); United States v. Daniel, 749 F.3d 608, 614 (7th Cir. 2014) (upholding
district court’s denial of request by defendant charged with scheme to defraud for unanimity
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instruction regarding specific fraudulent representations because such representations “were
merely the means he used to commit an element of the crime”); United States v. Davis, 306 F.3d
398, 414 (6th Cir. 2002) (“[A]lthough there may have been various means by which Defendant
aided and abetted in the underlying offenses for which he was convicted, no unanimity
instruction with regard to these various means was necessary.”)); see also Schad v. Arizona, 501
U.S. 624, 626 (1991) (Scalia, J, concurring) (“[I]t has long been the general rule that when a
single crime can be committed in various ways, jurors need not agree on the mode of
commission.”).
Defendant presents only one new argument in this Motion. He asserts that jury
“unanimity” is a “fundamental concern” of the judicial system. See Mot. at 3-4 & n.3. This
Court has never held otherwise, but that assertion does not answer the question of whether the
jury must be unanimous in this case about both the elements of the offense and the means by
which such elements are accomplished. The uniformity of the caselaw compels the Court to find
that Heru-Bey has not presented a substantial question on this issue.
C. Batson Challenge
Defendant last maintains that his appellate challenge to the government’s use of
peremptory strikes of black jurors during voir dire raises a substantial question. He did not
discuss this issue in his prior motion for a new trial. The outcome is nonetheless the same as for
the two issues that he did previously raise.
Under Batson, a trial court must apply a three-step process to adjudicate a claim that a
peremptory challenge was based on race: “First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the basis of race; second, if that showing has
been made, the prosecution must offer a race-neutral basis for striking the juror in question; and
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third, in light of the parties’ submissions, the trial court must determine whether the defendant
has shown purposeful discrimination.” Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008)
(internal quotation marks and alterations omitted). It is worth noting that the Court at trial
expressed its concern that the government had used all seven of its strikes on black jurors. See
Trial Tr., attached as Appendix, at 11:17-18 (“And I'm loath[] to uphold all the strikes, given that
I see that they're all black jurors.”). It reiterates here that prudent counsel typically do not even
approach the Batson prima facie line.
In any event, the Court at step one easily agreed that Defendant had established a prima
facie case of racial discrimination where the qualified jury pool was only 44% black – i.e.,
eighteen whites and fourteen blacks were qualified. Id. at 1:7-14; see United States v. Gooch,
665 F.3d 1318, 1327 (D.C. Cir. 2012) (finding prima facie case supported when prosecution
“exercises a disproportionate share of its total peremptory strikes against members of a
cognizable racial group compared to the percentage of that racial group in the venire”); id. at
1327-28 (finding prima facie case supported where prosecution used sixteen of twenty-two
strikes on black venirepersons and qualified jury pool was only 50% black). This was true even
though the twelve ultimately seated jurors included three black members. See App. at 16:9-10;
see also Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005) (finding prima facie case where one
black juror remained on jury and prosecution used ten of fourteen strikes on blacks, eliminating
91% of eligible black jurors); Johnson v. United States, 545 U.S. 162, 168 (2005) (holding that
“defendant must make out a prima facie case by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose”) (quoting Batson, 476, U.S. at 93-94).
The Court next required the government to justify each of its strikes and then heard
defense arguments on pretext. “[I]n considering a Batson objection,” the trial court must
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consider “all of the circumstances that bear upon the issue of racial animosity.” Snyder, 552
U.S. at 477. This may include an office’s “specific policy of systematically excluding [a
particular race] from juries,” Miller-El, 545 U.S. at 263, “direct comparisons between ‘similarly
situated’ venirepersons of different races,” Coulter v. McCann, 484 F.3d 459, 465 (7th Cir. 2007)
(quoting Miller-El, 545 U.S. at 247), and the veracity and logic of the challenged party’s
justifications. Snyder, 552 U.S. at 482-483. Here, the Court carefully examined the
government’s proffered basis for striking each black juror and determined whether it was truly
race-neutral or could equally apply to white jurors in the pool who were not struck, thereby
raising an inference of race-based decisionmaking. At no point did the Court find the
government untruthful. For example, the Court accepted the government’s explanation that one
struck juror had difficulty understanding English and thus might struggle to follow the evidence
at trial. See App. at 4:7-5:18. Likewise, the government reasonably concluded that another
struck juror might be biased against it because she believed her uncle had been treated unfairly
by either the police or prosecution when he was convicted in a narcotics case. Id. at 6:17-8:5.
Arguably the closest challenge concerned Juror 0857, a black woman whom the
government struck because the father of her children was imprisoned. Id. at 9:21-10:7. The
government stated that it was concerned that Juror 0857 might be biased against conviction as a
result of this “family situation” because Defendant’s incarceration could “impact . . . the mother
of his children who, for example, would not be getting child support.” Id. at 10:3-7. Defendant
countered that there were white jurors who were not struck but had “cousins [who were] locked
up.” Id. at 10:23-11:2. According to Defendant, “Presumably, those cousins had kids . . . who
would [engender] the same sympathies” in those jurors. Id. at 11:2-4. The Court upheld the
strike, noting the closer familial relationship. Id. at 11:5.
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Multiple courts across the country have considered the strength of jurors’ relationships to
different types of imprisoned family members. They have largely held that a juror may be struck
on the basis of an imprisoned relative even if there is an unstruck juror of another race who also
has a relation in prison, so long as the “degree of familial relation” between the struck juror and
her incarcerated family member is “closer” than that between the juror who was not struck and
his family member. See State v. Dominguez-Rodriguez, 471 S.W.3d 337, 347 (Mo. Ct. App.
2015) (allowing strike of black juror on basis of husband’s imprisonment despite failure to strike
white juror whose nephews had been incarcerated in part because “having a close family member
previously incarcerated [(husband)] . . . is different than having . . . a distant relative [(nephew)] .
. . go to prison”); see also Golphin v. Branker, 519 F.3d 168, 186-87 (4th Cir. 2008) (allowing
strike of black juror based on father’s prior imprisonment where unstruck white juror had sister
and brother-in-law in prison because “the potential effect on [Juror 1] of growing up without a
father because he was in the criminal justice system is bound to be different than the effect on
[Juror 2] of having a ne’er-do-well sister and brother-in-law”). In other words, a juror with a
close family member imprisoned is not necessarily “similarly situated” to one who has a more
distant relative incarcerated. In this case, similarly, the father of the struck juror’s children
presents a much closer relationship than the unstruck juror(s)’ cousins.
As to all strikes, the Court relied on its own notes and recollections to verify the
government’s statements and to assess and correct Defendant’s pretext arguments. See United
States v. Moore, 651 F.3d 30, 41 (D.C. Cir. 2011) (approving of district court “question[ing]
counsel, review[ing] its own notes, and correct[ing] mistakes by counsel” before “conclud[ing],
based on the arguments and its personal observation of the prosecutors and of the prospective
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jurors’ demeanor, that the government’s race-neutral explanations were genuine”). It ultimately
found that all the strikes were not based on race. See App. at 11:21-22.
Although the government undoubtedly acts at its peril when it engages in such wholesale
striking of jurors belonging to a particular group, the Court believes that no substantial question
of a Batson violation exists here. See United States v. Clark, 747 F.3d 890, 894-95 (D.C. Cir.
2014) (affirming district court’s denial of Batson challenge when defendant could not show that
strike justifications were necessarily inconsistent and therefore pretextual, and “comparative
analysis provide[d] no ‘unmistakable’ evidence of the government’s discriminatory intent”)
(quoting Gooch, 665 F.3d at 1332); Gooch, 665 F.3d at 1334 (rejecting Batson challenges
because “the [g]overnment offer[ed] race-neutral reasons for [each] peremptory strike, and the
defendant [could not] carry the burden of showing . . . discriminatory intent”); Moore, 651 F.3d
at 44 (denying Batson challenge because defendant “failed to sufficiently undermine the
government’s race-neutral explanations” and thereby failed to show that they were pretextual).
IV. Conclusion
Because the Court concludes that none of the issues presented by Defendant constitutes a
substantial question of law or fact, it will deny his Motion for Release Pending Direct Appeal.
An accompanying Order will so state.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 4, 2016
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1 10-5-15 Batson challenge discussion - USA v. JAMAL ADAMS.
2 THE COURT: Let me have counsel approach.
3 (Bench conference)
4 MR. GARDNER: Your Honor, at this point, the
5 defense would make a Batson challenge. The prosecution
6 has struck entirely African-Americans from the jury.
7 THE COURT: Let me take a look. Of the six the
8 government strikes, all six are black jurors.
9 Statistically, of the qualified jurors, there were 14
10 black jurors, 18 white jurors, black jurors are 44
11 percent of the venire and they constitute 100 percent of
12 the strikes. So I believe the defense has made out a
13 prima facie showing. Actually it is seven, because the
14 alternate is also black.
15 So let me hear the government's explanation.
16 We'll start with 0286. That's the juror in seat five.
17 MS. SISKIND: Your Honor, this individual stated
18 that he works in the mental health field, including with
19 individuals who may have criminal records. It is our
20 position that individuals in the mental health field tend
21 to be more sympathetic to defendants in criminal cases.
22 So for that reason, we used a strike on him.
23 MR. GARDNER: Your Honor, we would challenge
1
1 that. I don't see any background for that. He doesn't
2 have any history of working with police officers, our
3 client doesn't have any criminal history. It is just not
4 applicable to our client. I would ask him to be seated.
5 THE COURT: It is applicable to a criminal
6 defendant is the point. I think that's a race neutral
7 reason. There weren't others in the mental health field
8 who are white who weren't struck. So I will uphold that
9 one.
10 The next juror is 0909. That's the juror who is
11 now in seat one.
12 MS. SISKIND: Your Honor, when this juror came
13 up, he expressed some confusion regarding some of the
14 questions. And the government was concerned he might not
15 have understood some of the questions, and therefore
16 would not be able to understand the evidence at trial.
17 MR. GARDNER: We would object to that one also.
18 He seemed crystal clear to me up here. I would ask to go
19 back and listen to the tape before you make a judicial
20 finding that he expressed confusion up here.
21 THE COURT: No, I remember that juror. He did
22 express confusion initially. Subsequently, he seemed
23 entirely clear. But he indicated that -- both his facial
2
1 gestures -- and I remember his expression and his manner,
2 and what he said indicated some confusion. I think
3 that's not as strong as the first but I think it does
4 pass muster.
5 MR. GARDNER: Your Honor, I think the next step
6 is to go through all the rest of people who expressed
7 confusion coming up here and look at how many of those
8 who were not African-American or how many were not
9 stricken.
10 THE COURT: So you tell me if there were white
11 jurors who expressed confusion in a similar way who were
12 not stricken. I'm happy to hear you to show that it is
13 pretext.
14 MR. GARDNER: If I could have Court's indulgence.
15 THE COURT: Okay.
16 (There was a pause in the proceedings.)
17 MR. GARDNER: Your Honor, I can't remember that
18 number right now. But I remember one white, Caucasian
19 female who came up here and originally said that she
20 answered a question that she would not trust MPD officers
21 just based on their answer. And then you clarified and
22 she said, Oh, it wasn't about their testimony, it was
23 about whether or not I knew them. That expressed that she
3
1 did not understand and had confusion about the questions.
2 THE COURT: That's a different scenario. This is
3 someone who initially, when brought up, expressed some
4 confusion. So I don't think it is pretext. Again, I
5 will see as these strikes continue. But that is valid.
6 It is not pretextual.
7 The next one is 0743. And that is juror number
8 two.
9 MS. SISKIND: Your Honor, this was an individual
10 who seemed to have some problems with the English
11 language. I think even explained to Your Honor his lack
12 of understanding of the questions. He used the word
13 "mastery" and he was having trouble communicating to you
14 his lack of his understanding regarding the questions.
15 For that reason, we are concerned about his ability to
16 follow the evidence in this trial.
17 THE COURT: Defense?
18 MR. McPHERSON: Your Honor, to go from saying
19 that there is a language issue to the conclusion that he
20 is not going to understand a normal presentation,
21 conversation is a leap.
22 THE COURT: The question is, hold on, the
23 question is not whether he could serve as a juror. The
4
1 question is whether they have given a race neutral reason
2 for striking him is what I know. What is your response
3 to that?
4 MR. McPHERSON: That's not a race-neutral reason.
5 THE COURT: Why not? Of course, it is a race
6 neutral reason, there are many --
7 MR. McPHERSON: It is. But I don't think that it
8 is a valid reason that the Court should accept unless the
9 Court makes an additional finding that that perspective
10 juror cannot seem to understand what is being said to him
11 and what was being said --
12 THE COURT: Again, this is not a cause strike.
13 This is a peremptory strike. This is someone who is not
14 good with English, even if that doesn't mean they
15 wouldn't be able to understand the evidence, they're
16 allowed to strike that person for a race neutral reason.
17 If there was someone I didn't think could understand the
18 testimony, I would have excused that person for cause.
19 MR. McPHERSON: I understand that they have to
20 proffer a race neutral reason for each person. But as
21 they go along, when they're all of the same race, I think
22 the Court has to raise the bar in terms of the quality
23 and the applicability of the reason.
5
1 THE COURT: But you are just saying that when, if
2 it is a race question, I should raise the bar. But it
3 wouldn't be in front of me if it weren't a Batson
4 question.
5 MR. McPHERSON: Actually I researched this issue
6 for a Superior Court case that I tried in March. And I
7 have a post trial motion pending. My understanding of
8 the state law, D.C. law that I read was that the Court
9 recognizes the greater the number of challenges that
10 appear to be on the issue of race, the greater the role
11 is of the judge in evaluating the race neutral assertions
12 by the party that made the strikes.
13 THE COURT: I don't know, I'm not sure what the
14 law is in this jurisdiction as opposed to Superior Court.
15 But I am certainly going to, as we proceed, hold the
16 government to its burden on each one.
17 All right. So the next is juror 0880 in seat 11.
18 MS. SISKIND: Your Honor, this individual
19 indicated she had an uncle convicted in a narcotics case
20 and she believed that he had been treated unfairly by
21 either the police or the prosecution or both as part of
22 that case. Particularly, to the extent any investigative
23 agent were called to testify in this case, the government
6
1 is concerned that she would take those biases from her
2 uncle's case and transfer them to this case and judge the
3 investigation, even though that is not what her job as a
4 juror would be.
5 MR. GARDNER: That one I do believe is
6 pretextual. Both sides have police officers that are
7 going to be called as witnesses. It is a wash.
8 THE COURT: The question is not -- the question
9 is whether there are white perspective jurors who didn't
10 believe the police. The question is not which side this
11 juror might favor. And I think the government has a
12 better of the argument anyway because someone who didn't
13 believe that their relative had received justice is much
14 more defense -- arguably more defense inclined, even
15 though the defendant is a police officer.
16 MR. GARDNER: Your Honor, I disagree with that
17 premise. I do think that as part of your determining it
18 is pretextual is a part of determining if the government
19 is using it for a non-racial reason that benefits its
20 side. In this, this is not a benefit to them. It's a
21 wash both ways.
22 THE COURT: I don't think it is. Clearly,
23 somebody in this kind of case would be more inclined to
7
1 favor the defense if they think their relative did not
2 get a fair trial, unless there was evidence that the
3 defendant himself were involved in not giving people fair
4 trials and we're not going to hear that. I'll uphold
5 that one.
6 0041.
7 MS. SISKIND: Your Honor, this individual
8 indicated she was audited three times. And at least one
9 of those audits related to problems with a tax return
10 preparer. Part of the government's evidence in this case
11 is two allegedly false returns were prepared by a tax
12 return preparer. We believe that that can cause this
13 juror to bring in some biases regarding her experience
14 with mistakes made by a tax return preparer into the mix
15 here. That would affect her judgment.
16 THE COURT: Mr. Gardner?
17 MR. GARDNER: I agree with that.
18 THE COURT: 1041, I think is the next one. I'm
19 not sure.
20 MS. SISKIND: Yes.
21 THE COURT: That's the person in the gallery.
22 MS. SISKIND: Your Honor, this was the individual
23 who just started a job two weeks ago. She seemed to the
8
1 government to clearly not want to be here. And the
2 government's concern is that that would cause her not to
3 take her responsibilities as a juror seriously.
4 MR. GARDNER: Your Honor, we would ask for her to
5 be seated. I mean, you explained to her up here that you
6 could write a note for her. So that alleviates any
7 concerns the government has. There were several people
8 who said I have to do this and that. Your Honor, there
9 are several people who said they had other things to do.
10 You told them that they had to serve.
11 THE COURT: Actually the three people that I told
12 that to, I then excused, and those were -- all three were
13 white women I excused ultimately for conflicts. It is
14 certainly true given her attitude and body language and
15 facial expressions that she was someone not happy to be
16 here, I think more so than anybody else who was a
17 perspective juror. Nobody else had just started a job.
18 I did excuse those other three women, all of whom were
19 white, as I said, for conflicts. So I'll uphold that
20 strike.
21 The last one is the alternate strikes, 0857.
22 MS. SISKIND: Your Honor, this is an individual
23 who stated that the father of her child is currently
9
1 incarcerated. Depending on which witnesses are called
2 during this trial, it may come out that the defendant has
3 children. And that if he is incarcerated, that could
4 have an impact on the mother of his children who, for
5 example, would not be getting child support. The concern
6 would be that she might bring in some biases from that
7 family situation into the case here.
8 THE COURT: All right. So I don't think so.
9 This is a juror number -- okay. So that's juror--the
10 first alternate?
11 MS. SISKIND: Yes.
12 THE COURT: You are saying that the father of her
13 children is incarcerated. She did say that.
14 Defense?
15 MR. GARDNER: Your Honor, I think that is very
16 attenuating. She said she could be fair. I mean, the
17 government had an opportunity to ask these witnesses
18 (sic) questions. They chose not to ask any. There is
19 nothing in the record that supports that.
20 THE COURT: The question is are there jurors who
21 are similarly situated who are white who they didn't
22 strike. And the answer is no.
23 MR. GARDNER: There were other witnesses (sic)
10
1 who did say that they had family members, cousins,
2 whatever, locked up. Presumably, those cousins had kids
3 that were related to them who would have the same
4 sympathies. And the government didn't strike them.
5 THE COURT: But the father of her children.
6 Again, Mr. McPherson's point I think is valid. I
7 think any time you see a strike sheet that, even though
8 there are only seven, it is not 10 or 12 jurors, but any
9 time you see seven struck of one race, that raises
10 antennae. And I think you're absolutely right to make a
11 Batson motion. I understand that. When I see that, I
12 attempt to and I require, just as the law makes me
13 require, the government to satisfy its burden that each
14 of these was valid. And I believe that this is, this
15 juror was also in a unique situation. There is no white
16 juror in a similar situation.
17 And I'm loathed to uphold all the strikes, given
18 that I see that they're all black jurors. But the law
19 gives the government the opportunity to explain; as long
20 as it is a race neutral reason they're allowed to do so.
21 I believe they have cleared that burden and that you have
22 not shown in any way that they're pretextual.
23 MR. GARDNER: Your Honor, we would ask for a new
11
1 jury panel. The government has used all the strikes to
2 strike African-Americans. You have ruled that it is not
3 a Batson problem. But you still have control over the
4 fundamental fairness of this trial.
5 This is fundamentally unfair. My client is a
6 African-American man. The government has gotten rid of
7 all the black people on the jury. We would ask for a new
8 jury pool so that we can have something representative of
9 this community which is majority African-American.
10 THE COURT: As I said, the government has struck
11 half the qualified black jurors, not all. And I'll also
12 state for the record what the final jury composition is,
13 but there is no reason to call for a new jury. I don't
14 think it affects the fundamental fairness. I'll deny
15 that motion.
16 MR. GARDNER: Your Honor, we'll hold it in
17 abeyance until you see the final make-up of the seated
18 jury, if it is an all white jury.
19 THE COURT: I'm happy to put the make up on the
20 record. But I will deny the motion. All right.
21 MR. GARDNER: I think we still need to look at
22 each other's, I think I made the Batson challenge
23 before--
12
1 THE COURT: That's why I let you look at each
2 other's.
3 MR. GARDNER: Okay.
4 (Open Court)
5 THE COURT: All right. I'm going to have the
6 following jurors seated in the first two rows on my
7 right, if the gentleman on the second row could step out.
8 Thanks so much.
9 When I state your name if you could go all the
10 way into the first row, that would be great. The
11 following jurors I'm going to have do that.
12 Juror 0054 in seat six;.
13 Juror 1493 in seat seven.
14 Juror 0286 in seat five.
15 Juror 0909 in seat one.
16 Juror 0331, who is in the gallery, I'm going to
17 have you move to the first row please.
18 Juror 0175, if you could move to the first row
19 also.
20 0020, if you could please.
21 0645, you can move to the second row there
22 please.
23 0075 also, second row.
13
1 0743 in seat number two, if you could move to the
2 second row.
3 0880 in seat 11, second row please.
4 0041 please, to the second row.
5 Juror 1041, second row please.
6 0857, if you could also move to the second row
7 please. Thank you.
8 Counsel, approach for a moment.
9 (Bench conference).
10 THE COURT: So the defense sheet has a few
11 problems here. First of all, you've listed 0563 who was
12 already excused. You've also listed her as black when
13 she is white. You've also listed what apparently is an
14 "H" for Hispanic on one of the jurors who is white, who
15 you've struck. And then you've also listed an alternate
16 as one of your regular strikes.
17 MR. GARDNER: Can we move that to the alternate
18 then?
19 THE COURT: I'm all right with you moving it to
20 the alternate strike since you hadn't listed one as the
21 alternate.
22 Any problems by the government?
23 MS. SISKIND: No, Your Honor.
14
1 THE COURT: So for the record, that would mean
2 that, of the nine strikes you have, two were of black
3 jurors and seven were of white jurors. So that is on the
4 record.
5 MR. GARDNER: If I could complete the record,
6 when I struck them I thought that one was
7 African-American and one was Hispanic as I noted on
8 there.
9 THE COURT: But the one who was excused for her
10 vacation, you thought was black?
11 MR. GARDNER: Obviously, I had confusion but I
12 did think she was black. So I'll put it down, I think
13 that's more accurate.
14 THE COURT: Thanks.
15 (Open Court)
16 THE COURT: All right. Juror 0957, if you could
17 also take a seat in that second row please.
18 Now if the following jurors could take the
19 following seats. We're going to work from the first row.
20 Juror 0667 seat one.
21 Juror 1097 seat two.
22 Juror 0751 seat five. I'm sorry. Yes, seat
23 five.
15
1 Juror 1460 seat six.
2 Juror 1409 seat seven.
3 Juror 1109 seat nine. That's the second row.
4 Juror 0079 seat 10.
5 Juror 0460 seat 11.
6 Juror 1171 seat 12.
7 Let me just have counsel approach again.
8 (Bench conference)
9 THE COURT: Okay. For the record we now, of the
10 regular jurors, three are black and nine are white. Both
11 white -- I'm sorry, both alternates are white jurors.
12 That's just for the record. So again, to the extent you
13 want to renew your motion to throw out this jury on
14 fundamental fairness grounds, I will deny it. I think
15 that we have -- that the government's reasons were
16 upheld.
17 Obviously, it is the Court's duty to inquire
18 seriously about them since we don't want either side
19 striking them for the improper reasons. I think I've
20 done that and the government has satisfied its burden.
21 So we will remain with this jury. Anybody have any final
22 questions or issues regarding this jury? Otherwise, I am
23 going to impanel them.
16
1 MS. SISKIND: No, Your Honor.
2 MR. GARDNER: The defense still has the same
3 objections as discussed but no new ones we haven't
4 discussed.
5 THE COURT: All right. Thanks.
6 (Open Court).
7 THE COURT: Folks, this will be our jury here on
8 our left. That means you folks will not be our jury.
9 But I want to thank you all very much for participating
10 in this procedure this morning. So, all of you in the
11 gallery please take your belongings, return to the jury
12 office. Tell them that you've been excused thanks so
13 much for your assistance.
14 (Remaining jurors out).
15
16
17