Case Information
*1 Before WOLLMAN and MURPHY, Circuit Judges, and GRITZNER, [1] District Judge.
___________
GRITZNER, District Judge.
*2 On this appeal, appellant XTL Transport, Inc., asserts the district court [2] erred (1) in failing to undertake an appropriate Batson analysis of XTL’s use of a peremptory strike on a prospective juror and by upholding Jarrett Bush’s challenge to XTL’s peremptory strike of such prospective juror; (2) in failing to grant XTL’s Motion for New Trial after U.S. Express failed to timely produce satellite information about the location of its truck prior to the accident in question; (3) by admitting evidence of two absolved Canadian criminal convictions of XTL driver Jacques Trudel for impeachment of Mr. Trudel’s trial testimony; and (4) when it reinstated verdicts in favor of Jarrett Bush and U.S. Express after the court, upon its own motion, set aside such verdicts and ordered a new trial. XTL also asserts that it did not abandon or waive appellate review of the trial court’s dismissal of J.B. Hunt by not asserting any specific error on appeal with regard to the trial court’s entry of judgment in favor of J.B. Hunt.
This case arose out of an accident that occurred on October 29, 1999, in Missouri. Bruce Smith was operating a tractor-trailer for U.S. Express (USX). He was traveling east on I-70 when he approached slower moving traffic, including an unknown tractor-trailer. As Smith began to overtake the unknown tractor-trailer, which was in the right-hand lane, the unknown vehicle allegedly began to encroach upon the lane occupied by Smith.
Once the unknown vehicle came into Smith’s lane, Smith steered off I-70, over a guardrail, and collided with an overpass. Smith did not collide with the unknown vehicle. After colliding with the overpass, Smith’s vehicle fell from the overpass, landing on a pickup truck below being driven by Jesse Templeton. Both Smith and Templeton died instantly.
*3 USX filed suit seeking compensation for property damage, alleging that either J.B. Hunt or XTL owned and operated the unknown tractor-trailer involved in the accident. Jarrett Bush, the son of Smith, intervened in the case in order to assert a claim for the wrongful death of his father. In addition, Myra Templeton intervened and asserted a claim for the wrongful death of her husband.
The case was tried to a jury beginning on August 13, 2001. A key issue at trial was the identification of the unknown vehicle. The trial concluded on August 22, 2001, with the jury apportioning fault for the accident at 97 percent for XTL and 3 percent for USX. The jury awarded damages in the amount of $1.5-million to the Templeton plaintiffs, $630,000.00 to Jarrett Bush, and $172,000.00 to USX.
The trial court entered judgment in accordance with the jury’s findings. The court then dismissed J.B. Hunt from the case and ordered a new trial of the remaining claims in this matter. [3] The court’s order for a new trial arose out of the court’s refusal to disclose to the jury the existence of a “high-low” agreement between Templeton and XTL.
Before a new trial, the Templetons settled their claims against both XTL and USX. Subsequently, both USX and Jarrett Bush filed a joint motion to reinstate the previous judgment set aside by the court. On February 19, 2002, the trial court reinstated its original judgment. XTL appeals from the judgment entered by the trial court on several grounds.
*4 Batson Objection
Counsel for XTL attempted to exercise one of its peremptory strikes to exclude a prospective juror, Lester McRae, from the jury panel. McRae disclosed during voir dire that he was employed as a pharmacy purchasing coordinator at the pharmacy at KU Medical Center. At the time XTL attempted to exercise its peremptory strike, McRae was the only remaining African-American on the jury panel. Counsel for Jarrett Bush, who is an African-American, challenged XTL’s attempted strike of McRae, asserting that the strike was improper pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). After conducting a brief conference with counsel for XTL and Bush, the court denied XTL’s use of the strike on McRae.
Whether the trial court was in error in disallowing the peremptory strike is an
issue this court reviews for clear error. See United States v. Campbell,
XTL first claims that Bush failed to make out a prima facie case of discrim-
ination, but we disagree. “A [party] can establish a prima facie Batson case by
demonstrating 1) he is a member of a cognizable racial group, 2) the juror is of the
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same racial group, and 3) the relevant circumstances of the voir dire support an
inference of discriminatory purpose.” United States v. Moreno,
We also find that the relevant circumstances of the voir dire support an
inference of discriminatory purpose, thereby satisfying part three. In Davidson v.
Harris,
Upon finding Bush made out a prima facie showing, we next examine step two
of the Batson analysis. The second step “does not demand an explanation that is per-
suasive, or even plausible.” Purkett v. Elem,
XTL argued medical background could impact the juror’s assessment of
whether there were any survivors, then admitted during the bench conference that
there would be no such evidence presented at trial due to the trial court’s ruling on
the relevant motion in limine. Pretext can be based “on a finding that the factors used
to explain the strike are irrelevant to a person’s ability to perform as a juror in the
particular case.” United States v. Jenkins,
A party can also establish an otherwise neutral explanation is pretextual by
“showing that the characteristics of a stricken black panel member are shared by
white panel members who were not stricken.” Davidson,
XTL’s failure to question McRae about his medical experience, combined with the fact that XTL did not strike jurors Hubble, Taylor, or Krueger, supports an inference of discriminatory purpose. The record then apparent contained adequate evidence for the trial court to have determined that Bush carried the burden of proving purposeful discrimination by XTL.
XTL argues that the trial court failed to consider the third prong of Batson as
required by the Supreme Court in Purkett. See Purkett,
A careful examination of the record reveals that after Bush challenged the strike of McRae, XTL stated to the court their race-neutral reason for the strike. Bush responded to this race-neutral reason by indicating to the court that no evidence was going to be offered regarding whether anyone survived the accident; XTL conceded to the trial court that no such evidence was going to be presented. Counsel for both parties then briefly discussed the nature of McRae’s medical background. The trial court then ruled XTL would not be allowed to strike McRae.
The trial court did not terminate the inquiry at step two of the Batson analysis; the court heard further from both counsel before making his determination. Although the trial court did not articulate for the record that Bush proved purposeful racial discrimination, we are convinced such a determination was necessarily made.
Under the circumstances of this case, the record adequately discloses a full
Batson analysis, and we find that the failure of the trial judge to articulate his analysis
of step three on the record did not constitute clear error. We strongly urge, however,
as we have in the past, that trial judges make on-the-record rulings articulating the
*8
reasoning underlying a determination on a Batson objection. See Hopson v.
Fredricksen,
Motion for a New Trial
On February 14, 2000, XTL provided USX with its Rule 26 initial disclosures.
USX provided its Rule 26 initial disclosures to XTL on February 16, 2000. Counsel for USX requested XTL’s longitude and latitude data on June 7, 2000, during a deposition. On January 2, 2001, after the close of discovery, XTL finally produced the longitude-latitude information for XTL driver Jacques Trudel that USX had requested months earlier. XTL did not request reciprocal production.
At no time prior to trial did XTL either formally or informally request that USX provide its longitude-latitude data for the USX truck. After XTL’s closing argument, counsel for XTL asked counsel for USX whether USX possessed longitude-latitude data for the vehicle that was driver by Smith. Counsel for USX indicated that he did not know, as that data had never been requested before.
*9 The trial in this matter ended on August 22, 2001. On November 7, 2001, while XTL’s October 24, 2001, motion [5] to reopen discovery was still pending, USX produced the longitude-latitude data. XTL then filed its motion for a new trial based on the newly disclosed information pursuant to Fed. R. Civ. P. 60(b)(2), asserting it was prejudiced by USX’s failure to disclose prior to trial, as required by Rule 26, all relevant information in the matter. [6] The trial court denied the motion.
Rule 60(b) provides for “extraordinary relief which may be granted only upon
an adequate showing of exceptional circumstances.” United States v. Young, 806
F.2d 805, 806 (8th Cir. 1987). Motions under Rule 60(b)(2) on the ground of newly
discovered evidence are viewed with disfavor. Mitchell v. Shalala,
“In order to prevail under Rule 60(b)(2), the movant must show that” (1) the
evidence was discovered after trial; (2) due diligence was exercised to discover the
evidence; (3) the evidence is material and not merely cumulative or impeaching; and
(4) the evidence is such that a new trial would probably produce a different result.”
Schwieger v. Farm Bureau Ins. Co. of Nebraska,
In light of the above, XTL cannot claim that it exercised due diligence to discover the evidence, particularly when one considers that XTL failed to request pro- duction of the USX longitude-latitude report. Further, although there was testimony that both USX and Qualcomm “dumped” its data approximately every two weeks, XTL should have known that the report may still be available since XTL was able to obtain its own report several months later, thus indicating that Qualcomm, despite the reported “dumping”, may have retained a copy of USX’s report.
The information provided to XTL by USX described Smith’s locations by distances from points in particular towns or cities; the last time and location shown for Smith before his death was October 29, 1999, at 3:33 p.m. at Independence, Missouri. The longitude-latitude data would have provided exact longitude and latitude information with exact points in time for the USX truck at issue.
Although the longitude-latitude data would have provided a specific starting
point, since counsel for XTL were able to make the same argument based on
the general Independence, Missouri, location, they suffered no prejudice as a result
of not having this information. Finally, other than asserting such, XTL has not
demonstrated or produced any indication in the record that a new trial would produce
a different result. A district court’s denial of a motion for a new trial will not be
reversed in the absence of a clear abuse of discretion. Harrison v. Purdy Bros.
Trucking Co., Inc.,
Canadian Convictions of XTL driver Jacques Trudel [7] In 1994, XTL’s driver, Jacques Trudel, was tried and convicted in Canada of the crimes of possession of stolen property and conspiracy. These crimes were punishable by imprisonment in excess of one year. In the present case, there is no argument that Trudel was not convicted. XTL is arguing that since Trudel’s con- viction was absolved under Canadian law, it is not a “conviction”, and, therefore, the evidence should be excluded pursuant to Fed. R. Evid. 609 (c)(1), which provides that evidence of a conviction is not admissible if
the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year . . .
Fed. R. Evid. 609(c)(1).
XTL focuses its argument on how the conviction is viewed under Canadian law. [8] However, the issue is whether the absolved conviction meets the requirements of Fed. R. Evid. 609(c)(1), and we do not find that it does. In order for Trudel to *12 receive the absolution, he paid $5,000 and complied with his six-month probation term. This does not constitute a finding that he was rehabilitated or innocent; and, therefore, the absolution of the conviction does not meet the requirements of Rule 609(c)(1).
Finally, XTL argues that receiving stolen property is not a crime involving
“dishonesty or false statement” as contemplated by Fed. R. Evid. 609(a)(2). “[T]he
crime of receiving stolen property suggests a lack of veracity on the part of [the
defendant] . . . .” United States v. Field,
Reinstated Verdicts
Prior to the introduction of evidence, XTL and Templeton entered into a high- low agreement. Under the terms of that agreement, regardless of the outcome of the trial, Templeton would recover at least $500,000, and XTL’s liability exposure was capped at $1,000,000.
USX, Bush, and J.B. Hunt repeatedly requested that the court allow disclosure of this agreement to the jury; however, the trial court did not allow the parties to advise the jury of this high-low agreement. [9]
*13 The trial court explained in its May 9, 2002, Order, and in its September 27, 2001, Order that upon first learning of the high-low agreement the court was led to believe by counsel for Templeton that the agreement only impacted the amount that Templeton could recover from XTL; no mention was ever made of joint and several liability, and Templeton never indicated to the court that it would attempt to recover the balance of any damage award above and beyond the $1,000,000 from USX, regardless of how the jury apportioned fault. While the jury was deliberating, the trial court learned that Templeton intended to attempt to recover any portion of the verdict awarded to her not covered by the maximum amount in the high-low agreement from USX.
After completion of their deliberations, the jury awarded Templeton $1.5- million and found XTL 97 percent at fault and USX 3 percent at fault. Upon realizing the effect of the high-low agreement in light of the jury’s actual verdict, the trial court ordered a new trial. In its order granting a new trial, the court stated that the basis for ordering a new trial was that the court should have disclosed the agreement between XTL and Templeton to the jury after the jury determined XTL was the owner of the phantom vehicle, and that USX was deprived of a fair trial due to the non-disclosure.
Prior to the commencement of the new trial, the Templeton plaintiffs settled their claims against XTL and USX. Immediately thereafter, USX and Bush filed a joint motion to reinstate the previous judgment set aside by the court; the court granted the motion and reinstated the previous judgment. XTL appeals the trial They further asserted that under Missouri Statute 537.060, the settlement between Templeton and XTL would preclude USX from seeking indemnity from XTL for the amount of the judgment it paid in excess of its share of proportionate fault. See Mo. Rev. Stat. § 537.060.
court’s subsequent reconsideration of its new trial order and its entry of judgment in conformity with the jury’s verdict. [10]
A trial court has the discretion to revoke its order for a new trial and reinstate
the original judgment. Galimore v. Mo. Pac. R. R. Co.,
In denying XTL’s renewed motion for a new trial on these grounds, the trial court explained that it was USX, and not XTL, that was prejudiced by the fact that the high-low agreement was not revealed to the jury. The court correctly stated that XTL suffered no conceivable prejudice from this turn of events. The trial court did not abuse its discretion in refusing to grant a new trial on these grounds.
J.B. Hunt
J.B. Hunt argues that XTL limited its appeal to the judgments finding it liable to USX and Bush, and because XTL failed on appeal to assign specific error to the judgment entered in favor of J.B. Hunt, any such claim of error has been abandoned or waived. The court does not address this question because the decision of this court renders the issue moot.
The judgment of the district court is affirmed in all respects. *15 A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
[1] The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation.
[2] The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri, Western Division.
[3] J.B. Hunt was dismissed from the case based on the jury’s finding that the unknown vehicle was owned and operated by XTL, and not J.B. Hunt.
[4] We note that under circumstances not present here, lack of specificity in a trial
court record to demonstrate compliance with the Batson analysis may require remand
for further findings. See Galarza v. Keane,
[5] The trial court ultimately denied this motion.
[6] XTL asserts that in not disclosing the longitude-latitude data, USX failed to make a “complete” disclosure pursuant to Rule 26. This is ironic considering that XTL did not disclose its own longitude-latitude data pursuant to Rule 26; XTL only disclosed this information after a request was made for the data by counsel during a deposition.
[7] USX claims that Trudel’s testimony regarding his criminal past was admitted without objection by XTL. The record reflects that XTL made a timely objection twice during trial, once during a bench conference prior to Trudel’s testimony, and a second time during Trudel’s testimony. The issue was adequately presented to the trial court and has been properly preserved for review.
[8] XTL cites Meserve in support of their argument; however, that case is not
helpful. In that case, there was no issue of whether the offense constituted a
“conviction”. United States v. Meserve,
[9] USX was concerned about the possibility that the jury could award Templeton damages exceeding $1,000,000, but apportion only a nominal percentage of fault to USX, with the remaining large percentage of fault apportioned to the owner of the phantom vehicle. Under joint and several liability which prevails in Missouri, USX would then be responsible to satisfy the amount of the judgment in excess of $1,000,000, even if that amount bore no relation to the jury’s apportionment of fault.
[10] USX correctly points out that XTL’s appellate position on this issue differs
from the position they asserted at the trial court level, and that the doctrine of judicial
estoppel prohibits a party from taking inconsistent positions in the same or related
litigation. See United States v. Transport Admin. Servs.,