United States v. Sandy Townsley, United States of America v. Ernest (Pat) Gandy, United States of America v. Sorkis Webbe, Jr. , 856 F.2d 1189 ( 1988 )

BOWMAN, Circuit Judge.

The panel opinion in this case is reported at 843 F.2d 1070 (8th Cir.1988). In Part V of that opinion, 843 F.2d at 1082-84, a majority of the panel held that Webbe and Townsley, who are white, have standing to join Gandy, their black co-defendant, in attacking the government’s use of ten of its twelve peremptory challenges to remove black veniremen. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The dissent argued that only Gandy is entitled to raise this issue, and that Townsley and Webbe have no standing to complain about the exclusion of black jurors.

This Court granted rehearing en banc on the narrow question whether in the circumstances of this case Townsley and Webbe have standing to challenge the alleged improper use of peremptory challenges by the prosecution to strike black persons from the petit jury. For the reasons set forth in the dissent from the panel opinion on this issue, see 843 F.2d at 1088-89, we hold that Townsley and Webbe do not have such standing and are not entitled to join in Gandy’s Batson challenge. We add only that the present dissenting opinion’s grandiloquent attempt to liken Townsley and Webbe to white civil rights workers and other whites who have faced racial animus because of either their efforts to help blacks or their lawful association with blacks, see post at 1193-1194, appears to us to be strangely divorced from the facts of this case. Townsley and Webbe are hardly civil rights workers. They have been convicted of vote fraud, a crime that strikes at the heart of the democratic process. The evidence of their guilt is overwhelming. Their association with blacks, insofar as revealed by the record in this case, has consisted of enlisting them in criminal pursuits. There is simply no factual basis for the argument that the prosecution’s use of its peremptory strikes to eliminate black jurors may have violated the rights of these white defendants under the Equal Protection Clause.

In any event, the Batson rule is clear and straightforward: “To establish [a pri-ma facie] case, the defendant first must show that he is a member of a cognizable racial group, ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Other courts have had no difficulty in following this rule, see United States v. Angiulo, 847 F.2d 956, 984 (1st Cir.1988) (nonblack defendants could not complain about the government’s use of peremptory challenges to exclude black members from the jury), and neither do we.

Townsley and Webbe also assert that they are entitled to relief under the Sixth Amendment. This claim, which they did not press when the case was heard by the panel, is based on an argument that the fair-cross-section principle of cases such as Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), should be extended from the jury pool to the petit jury. The argument fails because it ignores, just as does the dissent in the present en banc proceeding, see post at 1194-1195, that the Supreme Court explicitly has rejected any such extension of Taylor and Peters. The Court spoke clearly on this point in Taylor:

It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, Fay v. New York, 332 U.S. 261, 284 [67 S.Ct. 1613, 1625-26, 91 L.Ed. 2043] (1947); Apodaca v. Oregon, 406 U.S., [404] at 413 [92 S.Ct., 1628 at 1634, 32 L.Ed.2d 184 (1972)] (plurality opinion); but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.

419 U.S. at 538, 95 S.Ct. at 701-02.

Similarly, the opinion of the Court in Batson, while basing relief on the Equal Protection Clause and expressing no view on the merits of the petitioner’s Sixth Amendment arguments, observed that the Court never has held the fair-cross-section principle applicable to petit juries.

Indeed, it would be impossible to apply a concept of proportional representation to the petit jury in view of the heterogeneous nature of our society. Such impossibility is illustrated by the Court’s holding that a jury of six persons is not unconstitutional. Williams v. Florida, 399 U.S. 78, 102-103, [90 S.Ct. 1893, 1907, 26 L.Ed.2d 446] (1970).

476 U.S. at 85-86 n. 6, 106 S.Ct. at 1716-17 n. 6.

Moreover, within a week after the Batson decision, the Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), reaffirmed that the fair-cross-section requirement does not extend to petit juries:

We have never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory, challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large. See Duren v. Missouri, 439 U.S. 357, 363-364 [99 S.Ct. 664, 668-69, 58 L.Ed.2d 579] (1979); Taylor v. Louisiana, 419 U.S. 522, 538 [95 S.Ct. 692, 701-02, 42 L.Ed.2d 690] (1975) (“[W]e impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population”); cf. Batson v. Kentucky, ante, at 84-85, n. 4 [106 S.Ct. at 1716 n. 4] (expressly declining to address “fair-cross-section” challenge to discriminatory use of peremptory challenges). The limited scope of the fair-cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly “representative” petit jury.... See United States v. Childress, 715 F.2d 1313 (CA8 1983) (en banc), cert. denied, 464 U.S. 1063 [104 S.Ct. 744, 79 L.Ed.2d 202] (1984); Pope v. United States, 372 F.2d 710, 725 (CA8 1967) (Blackmun, J.) (“The point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn”), vacated on other grounds, 392 U.S. 651 [88 S.Ct. 2145, 20 L.Ed.2d 1317] (1968). We remain convinced that an extension of the fair-cross-section requirement to petit juries would be unworkable and unsound, and we decline McCree’s invitation to adopt such an extension.

476 U.S. at 173-74, 106 S.Ct. at 1764-65 (footnote omitted). It is difficult to see how the Supreme Court could express itself with greater clarity.

We conclude that neither the Equal Protection Clause nor the Sixth Amendment provides a basis for affording relief to white defendants who complain of the prosecution’s use of peremptory challenges to exclude blacks from the trial jury.

Accordingly, the convictions of Townsley and Webbe on Counts I and IV are affirmed. The sentences imposed thereon are vacated and the case is remanded to the District Court for resentencing in view of the panel’s reversal of the convictions on Count III, see 843 F.2d at 1080-81, and for further proceedings under Batson as to Gandy alone. We do not retain jurisdiction upon remand and any subsequent appeal may be had as provided by law.