United States v. Anthony Grandison, United States of America v. Vernon Evans, Jr., United States of America v. Rodney Kelly

turn, might also there- Plaza loss nerton America, fore, yet unresolved disposition of the on STATES UNITED sur- circumstances question of whether Plaintiff-Appellee, telephone Iden’s rounding Theibert and new inference that justify an conversations extended. were indeed binders” GRANDISON,

“oral Anthony

Defendant-Appellant. then, that the dis- summary, we hold In America, UNITED STATES open developed below leaves

covery record Plaintiff-Appellee, questions dispute dispositive genuine whether, either Amer- in connection with to “act alleged failure ican Hardware’s EVANS, Jr., Vernon rep- purported agent Theibert’s promptly,” Defendant-Appellant. remained resentations that the binder effect, both, plaintiff indeed waived or America, UNITED STATES payment” as a con- right to “immediate its Plaintiff-Appellee, or, coverage in the al- precedent dition asserting ternative, estopped itself for as the basis “failure of consideration” KELLY, Defendant-Appellant. Rodney liability under the denial of its ultimate 88-5097(L), 88-5099. Nos. 88-5098 and together These 20th binder.

June issues— ques- unresolved with the also of course Appeals, States Court may American Hardware tions of whether Fourth Circuit. binders,” and separate “oral have extended thereby obliged to issue a it was whether Argued June may now formal “Notice Cancellation”— Sept. Decided trial. We therefore will only settled summary judg- the district court’s vacate Rehearing In Banc Rehearing and for fur- remand the case ment order and 14, 1989. Denied Nov. proceedings. ther reasons, the district For all of the above summary granting judgment order

court’s and the plaintiff is vacated in favor proceedings further con remanded for opinion.* sistent with this AND REMANDED. VACATED any opinion merits expressing on the appeal Without from the have before us an * We also been or post-judgment any denial of a Rule motions which have court’s intervention district case, only suggest various former to intervene filed 24 motion we need be filed in this will destroyed shopping center. that, light disposition tenants of our the district court moreover, Cherry appear, River would any appeal, interested of BIM’s direct Bank, which held a deed of trust National opportunity to move a full should be afforded property, also Plaza seek the Tennerton intervention, right” "as of or with either apparently denied district court intervene. The proceedings permission, further before court’s ground earli that its tenants’ motion on question think that Because we commence. granting motion American Hardware’s er order in the first instance now be addressed should dispute summary judgment resolved the remand, decline to rule court on entirety mooted claims that appeal. present intervenors' on the might assert. tenants Bennett, Fred Warren Federal Public De- (Richard Woods, Baltimore, fender C.B. Md., Rasin, Annapolis, Md., Martha brief), for defendant-appellants. Eurich, Atty. Juliet Ann Asst. U.S. Willcox, (Breckinridge L. Atty., U.S. Balti- more, Md., Salem, Sp. David I. Asst. U.S. brief), Atty., on plaintiff-appellee. PHILLIPS, MURNAGHAN, Before WILKINSON, Judges. Circuit WILKINSON, Judge: Circuit In this case we appel- must determine if lants pur- established a facie case of poseful discrimination in selection under Kentucky, Batson v. 106 S.Ct. Supreme February On held did not. (1986). The district court Grandison, vacated the convictions Court F.Supp. 743. We affirm. Evans, Kelly, 479 107 S.Ct. U.S. remanding case to 94 L.Ed.2d I. further consideration circuit for this Kentucky, light grand jury in Griffith May federal On (1987), 93 L.Ed.2d a two Maryland returned District of 79, Kentucky, 476 Batson held that U.S. against Anthony Grandi- indictment count (1986), 1712, 90 L.Ed.2d 69 was 106 S.Ct. Evans, Jr., Janet Patricia Vernon 8, 1987, retroactively. April applied On charging them Moore, Rodney Kelly, and dis- remanded the case to the this circuit rights re- civil conspiracy violate with proceedings. Defen- court for further trict 241, death, and wit- sulting in 18 U.S.C. § new trial dants then filed a motion a 1512. Voir tampering, ness U.S.C. § government filed a consolidated and the 1983, 12, September dire commenced response. weeks. approximately three lasted and began then on October Jury 22, 1988, selection January the district court On hearing if defendants held a to determine pur- case of a establish could jury selection agreed that parties The by prosecution in poseful discrimination by process of strik- conducted to be was 27, 1988, May On jury selection. Under this from the box. veniremen ing denying defendants’ motion an order issued are seated twelve veniremen procedure, directing judg- a new trial and and defendants jury box and the court concluded be reinstated. The ments The government alternate strikes. circum- the combination of facts and that box, in the any of the veniremen strike can opposite to an inference stances “reveal[ed] As a they are seated. of when regardless Because of racial discrimination.” that stricken, potential juror new venireman es- of discrimination was prima facie case parties also box. The added to the require the tablished, did not the court would have sev- that the defendants agreed its explain the reasons for government to challenges and the peremptory enteen strikes. The defense have ten. government would appeal. Defendants govern- fifteen strikes exercised exer- defense exercised nine. The ment II. against white one of its strikes all but cised government struck six the law as it The at the outset will review veniremen. We stated exer- The veniremen. to racial discrimination relates black crit- during challenges, that and the peremptory times selection several cise of implemen- and on one judge in its acceptable, was of the trial as constituted role ical contained three black occasion tation. finally composed, jury, The

members. 79, 106 Kentucky, 476 U.S. In jurors. black white and two of ten consisted (1986), the Su- 90 L.Ed.2d S.Ct. a defendant sworn, held that preme Court defendants Before ra- purposeful on the make based motion for mistrial amade jury selection peremptories cial discrimination alleged use government’s discriminatory use of racially showing the court denied The district to strike blacks. in his case by the 3, 1983, peremptories all four November motion. On un- facie case To establish charges. alone. of both were convicted defendants Batson, show that must a defendant on Decem- der were convictions affirmed cognizable racial Grandison, is a member “he 1985. United States ber has prosecutor Cir.1985). ... and group, Defendants challenges remove Grandison, Evans, Kelly then filed a exercised defen- the venire members to the Su- for writ of certiorari petition 96, Id. race.” dant’s preme Court. ” omitted). (citation fact,’ finding at 1723 The defendant tion is a id. at 98 n. quoting fact that the 106 S.Ct. at 1724 n. may rely on the Anderson disguise City, v. Bessemer challenges may racial discrimina- (1985), Then, “the defendant must tion. Id. show which turns largely “on evaluation of credi- these facts other relevant bility.” 476 U.S. at 98 n. an raise inference that the circumstances findings S.Ct. at 1724 n. 21. Such are [peremptory challenges] prosecutor used deference,” id., “great entitled to and “will petit jury from the exclude the veniremen not be disturbed this court unless clear- their race.” Id. on account of “Relevant ly erroneous.” 866 F.2d at may include, but are circumstances” Tindle, United States v. to, pattern of peremptorily limited strik- (4th Cir.1988); Hamilton, United States v. ing and the (4th Cir.1988); Woods, questions during exercising voir dire and in 1487; Mathews, 812 F.2d at 803 F.2d at 96-97, challenges. Id. 106 S.Ct. at 1722-23. While Batson “involved a state The circumstances of this case prosecution application and of illustrate the four- why deference to amendment, ap- district courts is so the same teenth limitations propriate Here, in this context. the trial imposed prosecutors by are on federal the intimately familiar with the se- Lane, fifth United amendment.” States v. jury. lection of the It conducted individual (4th 103, Cir.1989). 1 866 F.2d 104 n. chambers, voir dire in its asking po- each If makes prima a defendant out a juror tential the questions. same series of case, prosecutor shifts to the the burden Following questioning, this initial it asked explanation come with a neutral forward follow-up questions potential challenging Batson, black veniremen. prepared by parties. the ques- After all 97, 476 106 S.Ct. at 1723. To meet tioning completed, had been the court production, explanation this burden of argument heard parties’ and ruled on the particular must to the relate case to be motions to strike Finally, for cause. 98, tried. Id. at 106 S.Ct. at 1723. Of parties’ it per- observed the use of their course, times, at all the defendant bears emptory challenges. persuasion the ultimate burden of prove Thus, findings court’s purposeful existence discrimination. stemmed from knowledge first-hand 93, Id. at 106 S.Ct. at 1721. observation of the critical events. The judge plays “pivotal The trial role fact-finder inwas an even more advanta determining ... facie case.” geous position, appellate court, vis-a-vis an Clemons, 741, v. United States 843 F.2d case, than in a Title VII where substantial Cir.1988). (3d Batson, 746 See also 476 deference to factual determinations on dis 97, 21, 22, U.S. at 98 n. 99 n. 106 S.Ct. at routinely crimination is accorded. In as 22; 1724 n. 1724 n. United States sessing appellants’ case, prima facie Allen, (4th v. F.2d Cir.1987); 814 978 district court relied on “memory of” voir Woods, United v. 812 States F.2d dire as well as its “evaluation of credibili (4th Cir.1987); 1487 United v. Batson, States ty.” 21, 106 476 U.S. at 98 n. Forbes, (5th Cir.1987); 1010 court, at 1724 n. 21. The re Mathews, United States v. quires, analyzed F.2d all facts and circumstanc (7th Cir.1986). He or she has op surrounding es the case to determine if portunity they to observe voir pros dire and the created an inference that intentionally purposefully ecution’s exercise of its counsel chal lenges. potential jurors solely struck judge The trial because experi also has the were black. identify ence “to facie case of

purposeful discrimination.” III. 22, 106 U.S. at 99 n. S.Ct. at 1724n. 22. As context, moreover, the Title VII a trial Appellants contend that the facts of this “ judge’s ‘finding support intentional discrimina- case an inference of racial discrimi- of ... sections of and its “review however, finding events” We, affirm nation. transcript” indicated that contrary. dire the voir court to the government considered for the “counsel establish exists to perNo se rule carefully thought- potential juror each purposeful discrimina prima facie case felt that race fully.” If the United tion. strikes, issue in its might be an F.2d Sanqineto-Miranda, States court and that concern with the it raised Cir.1988); (6th States United requested the court opposing counsel and (8th 847, 851 Montgomery, Moreover, as the dis- inquire further. Clemons, see 1987); F.2d at 746. But added, government did not trict court Chalan, 812 F.2d desultory “any of the or half-heart- exhibit Cir.1987). prosecu Nor does indicate the questioning which can avoid the inference ed checklist exist to torial practices. Supreme people “The discriminatory government’s intent to strike black all to consider in Batson mandate their answers.” regardless Court’s means that and circumstances facts Appellants’ contention rules as to lay down clear [what] cannot carefully not consider each did or refute constitute ... will present F.2d at because it not Sanqineto-Miranda, venireman did case.” follow-up questions to at “meaningful” of the stricken black veniremen least four composition While require merit. We refuse to is without dispositive petit jury is actual questions to follow-up to ask government challenge, was neither Batson during voir dire every venireman stricken considering Here it. precluded court challenge. A in defeat a order to Batson black. were petit of the twelve two jury fair be struck between balance must presence of minorities on Although the procedures and the need to move selection that a Batson does not mean jury not to trial. The decision promptly toward made, Lane, F.2d 866 case cannot be questions is matter of follow-up a ask 747; Clemons, 105; 843 F.2d at United at dispositive so 1064, strategy; failure to do 1070 808 F.2d Cartlidge, v. States prosecution’s thoughtfulness of the Cir.1987); Kemp, F.2d of the (5th Fleming v. 794 Indeed, Cir.1986), jury 1478, (11th the fact the its strikes. 1483 exercise of significant. follow-up questions genuine need two included 106; fact, Montgomery, Here, government Lane, at in 866 F.2d See exist. 851; every potential United States already F.2d at familiar with 819 was Cir.1987); 512, (5th Williams, 515 responded 822 F.2d to had individual juror. Each Dennis, 804 F.2d in chambers appeared general questions, Cir.1986). especially so This is completed 1211 questioning, and for individual where, here, have government could as questionnaire. ju remaining against those strike used a support the to do so. See additional facts declined Three but three times rors First, 106; conclusion. Lane, Saqineto-Miranda, F.2d at 866 district court’s 1487; 1522; Woods, during 812 F.2d at the selection accepted, government F.2d at 859 515; Montgomery, Williams, at three black jury 822 F.2d that included process, a 851; Dennis, at 1210- at this should argue F.2d Appellants 819 jurors. govern because after not be considered three black jury with on a passed ment each consideration of The per government members, the exercised supports the district juror further potential juror it against a black challenge emptory Batson, 476 See conclusion. court’s disagree. The accepted. We had earlier 1723; Lane, F.2d at 866 at at accepted the defendants had point is Mathews, 748; Clemons, 107; F.2d at 843 did, jury government jury as the district As the F.2d at 332. members. three black included the would have “memory recognized, both Second, government figure again did not exercise exceeds the state av- Bat any particular pattern. erage. in its strikes son, 1723; at S.Ct. at 476 U.S. are, comparisons Such statistical how Lane, 107; Sanqineto-Mi 866 F.2d at ever, poor way resolve Batson chal 1522; Clemons, randa, lenge. employed While several courts have Mathews, 748; 803 F.2d at 332. F.2d at analysis statistical one in factor deter The struck three white venire mining whether a facie case govern The men and six black veniremen. exists, Sanqineto-Miranda, 859 F.2d at second, fifth, and sixth strikes ment’s were 1521-22; Williams, veniremen, first, against and its white require Sixth Amendment does not “ third, fourth, seventh, eighth, and ninth ‘petit juries actually chosen ... mirror against strikes were exercised black venire community and reflect the various dis ” men. did not strike black veniremen Bat groups tinctive population.’ consecutively, 866 F.2d at nor 476 U.S. at n. 85-86 106 S.Ct. at did it strike black veniremen such a Louisiana, quoting Taylor n.

fashion so as to assure that no more than jury. two blacks served on the Clemons, (1975). See also L.Ed.2d 690 Montgomery,

Finally, the did not exercise F.2d at 819 F.2d at 851. during the selection of six alter- As the Batson Court recognized, strikes “it would nates, impossible three of whom were black. The be apply concept propor important. jury representation petit alternates were was tional sequestered expect- and the trial heterogeneous view of the nature of our ed to least four weeks. Both society.” last at 476 U.S. at 86 n. expectation every had that some of the striking single S.Ct. at 1717 n. 6. The up end on the alternates would main venireman for racial reasons is not to be panel. countenanced, The fact that no actually alternates minority even if the final served does not undercut the fact that the composition of the entire were to ex government agreed to three black alter- ceed the community average. state or Sim prospects serving ilarly, nates whose were sub- the fact that the statistical balance stantial. petit jury gener fails to reflect some population percentage al proof is no that Appellants contend that statistical the impermissibly has exer analysis supports purpose an inference of challenges. cised its The defendant’s con They argue ful discrimination. that while right stitutional specified per is not to a pool began greater the jury repre with a centage minority jurors, process but (27.45%) sentation of blacks than in exists in which the state prospective considers (22.7%), Maryland population the the jurors wholly independent of their race. A use of challenges battle of appeal the numbers on is no sub representation reduced black 16.67% stitute for the district court’s assessment reduction, petit jury. the Such as government conduct of the at trial. sert, in favor of a “cut[s] showing purposeful Appellants discrimination.” finally contend that the fact both the in many victims this case and with, disagree. begin To appellants’ We suggests the witnesses were white that analysis weight. statistical falls of its own government the would have reason to want First, government accepted jury the with jurors, raising black few an inference of members, three or repre- black black 25% discriminatory purpose. Appellants argue sentation, average. in excess of the state that the obvious racial overtones of this although only Additionally, two of the letter, case are underscored admitted black, petit jurors twelve were three of six evidence, in into which Grandison referred alternates were black. When the alter- to an intended victim as a “white bitch.” nates in the analy- are included statistical sis, eighteen jurors Appellants’ factually then five out of were contentions are sus- black, 27.7%, representation pect. thirty for a Of the more than witnesses “ all, as challenges any ‘for at tory reason Many of the called, were black. fourteen black, long reason is related as that [their] were witnesses principal of the case to concerning the outcome’ view government’s primary evi much of and 89, 106 at tried.” through The be them. introduced was dence v. Robin quoting United States important witnesses many of fact (D.Conn.1976), F.Supp. advantage that any were black “discounts] granted sub. nom. United might perceive mandamus discriminating prosecutor Newman, (2d States v. Math jury.” striking blacks from in long Williams, 1977). challenges have Peremptory F.2d at ews, parties the exercised to ensure both been impartial jury; of a fair and existence fundamentally, prosecutori- to infer More under of this device could be usefulness of the race because discrimination al rule-making. appellate mined restrictive implica- serious has witnesses infer supportable no The trial found extent, any party To a considerable tions. in case and ence of discrimination this as it finds witnesses forced to take its judgment. affirm of other the same is true Much them. evidence; not remiss government was AFFIRMED. own introducing the Grandison’s letter as an

handwriting, operated advance MURNAGHAN, Judge, Circuit which was to the crime for he confession dissenting: proper to think it charged. We do not striking men or Disproportionate calling rele- discourage prosecutors from ex- grounds cannot be women on racial introducing relevant ev- witnesses vant ignored because offense cused or may compromise their fear it idence affirmed heinous. Conviction should be challenge. to a This defense correctly achieved.1 Otherwise only if killing federal wit- of two concerned jurisprudence of our criminal foundations nesses; defendants could victims disarray. in substantial would be origin, national race or been have have been differ- the issues would It, therefore, importance and is of no prose- some evidence ent. Absent irrelevant, present purposes, what racial identities of has taken the cution improperly se- may have been jury, which into account or witnesses victims crimes, lected, out- as however found specula- selection, indulge in we decline et al Anthony rageous, Grandison do so. its incentive to tion about imperative to for. responsible were should have

ascertain whether constituted, allowed, sat in to have been IV. at all. judgment does facie case of discrimination prima A strikes of the number prosecutor a With “every a strikes arise time not dispropor- Lane, of the venire of black members juror.” prospective any against almost measured influ- tionate when may Numerous valid factors 105. criteria, upon the becomes incumbent particular it to strike a prosecutor a ence not its strikes as justify to past including “current and potential juror, may prosecutors racially de- motivated. general appearance and employment, they doing so. No doubt service, well succeed meanor, and the ab- previous “is”. If “maybe” is not they But feel can. prejudice.” presence apparent or sence so, should the they do convictions cannot prosecutors may 106. While Id. require to It is not too much of not stand. challenge prospective because sur- instead of mere satisfactory proof race, peremp- their exercise may their it, message of exclusion error, subjected and its to on rare which is used Harmlessness mistreated, conviction, render just society so uphold is not of one available from a a occasion discrimination, out- with the harmful. Racial due to it here. error anyone impression rageous it establishes cognizable group possible case of racial dis- member of a racial the mise2 when venire. starkly present as it is the is as crimination discrimination, proof here. The result acknowledges, majority As the case law all, merely by lead to retrial a after would developing very in this area is fact rapidly not to jury, exoneration.

properly selected specific appellate re courts have been lay any bright luctant to down line test or all, government, after on the The burden per Sanqineto- se rules. United Recognizing the established great. is not Miranda, strikes our crim role of 1988). finding While a district court as to recognizing also system, inal but prima may a case entitled to “def be facie particularly suscepti process selection is a erence,” Lane, see United States v. “by those who are of a discrimination ble to (4th Cir.1989), great weight discriminate,” Batson v. Ken mind to authority by gives cited majority little 79, 96, 106 tucky, 476 U.S. however, guidance.3 Generally, prima a (1986) (quoting Avery that, exactly prima case is It facie facie. Georgia, 345 U.S. 73 S.Ct. explicit finding is not an of intentional dis (1953)), Supreme 97 L.Ed. crimination, ordinarily that would enti simple process by a Court has delineated greater appeal. tled to deference See which, prima showing of ra upon a facie City, Anderson v. Bessemer selection, discriminatory jury cially bur (1985). Op L.Ed.2d 518 den shifts to the to offer a erating spectre under the dire of invidious explanation challenging racially neutral discrimination, prima racial such a facie given group. showing merely require compila should a course, judge unique is in Of capable raising suspicion tion of facts position any prima to evaluate claim. enough facie trigger relatively sufficient Indeed, majority opin- court and painless prescribed by remedial measure certainly per- ions are well-reasoned proffer Batson —a sufficient suasive on this score. But both reflect a explana racially neutral proper confusion over the court’s role at given tion subsequent for the action. The stage proceeding. each of the Batson We pretext factual determinations of lack of or prima need not measure the defendant’s fully intentional discrimination are within against evidentiary burden factfinder, prerogative the trial court’s as facie prove ultimately required to intentional dis- great just fully and are entitled to defer criminatory question strikes. The real Here, appeal. ence on the district court presented quantum is the of evidence nec- opinion thorough reads as a sound and essary support under, say, sufficiency discussion facie showing per- however, even one analysis. ignores, evidence —an inference emptory facially suspect strike was utilized to exclude nature pertinent, challenges, may If whether a door was locked was it examine those reasons un preferable go merely would be to see than day der Batson and we leave for another following that users of the door assume use question of whether the defendant made out key. regularly turned the case.”) In United States v. (4th Cir.1989), 866 F.2d 103 we found the defen example, many 3. For of the cases cited had dant failed to meet his burden majority a district court determination involve produced where the sole evidence he was that showing conducted and defense facie after prosecution struck a member his government’s explana an assessment group. Considerably suggesting more evidence See, Tindle, e.g., United States v. 860 F.2d tion. discriminatory today. — motive is before us See denied, (4th Cir.1988), cert. Cir.1989) Mitchell, (4th United States v. -, (1989); S.Ct. (p prose Hamilton, case established where United States v. 1040- rima facie — U.S. -, (4th denied, Cir.1988), cutor used seven of ten strikes cert. (1989); against previous jury pan L.Ed.2d 931 United black veniremen and Woods, racially States v. el had be dismissed because of in 1987) ("Since Attorney made a flammatory juror's lounge). made in remark showing of his reasons for the exercise of his issue, approach respectfully I suscepti- having to inherently a context within action dissent. abuse, purpose of remedial the broad ble to consequently lower eviden- and the trigger necessary to

tiary threshold producing simple burden It calls on the racially explanation. neutral explanation whatsoever. government for explanation an is called for Yet such discrimination spectre The of racial here. MILLER, Plaintiff-Appellant, Nathan the nine strikes clearly apparent. Six of employed by were used LEATHERS, disparate Emery Officer, nature of against blacks.4 The Defendant-Appellee. emphasized by the considera- that fact tion, by prosecution, that trumpeted No. 88-7651. Per- or three black remained. two Appeals, United States Court of significantly still centagewise blacks were Fourth Circuit. underrepresented. Argued June 1989. govern- predominant

A number of the white, trial were ment witnesses Sept. Decided identifica- including, particular, the main by A letter written Grandi-

tion witness. prominent part, was a indeed a cornerstone, case, government’s re- one of the intended victims of a

ferred to murder as a “white cruel and wanton bitch,” making heightened race a matter legal by emphasizing a irrele-

importance likely repel white than vance more it would blacks. remaining fifty-one possible jurors

The excused number after agreement amounted to black. Per- 27.45% challenges repre-

emptory reduced black Maryland pop- The sentation 19%. in the census was ulation 22.7%. jury panel, main after the challenges, consisted for Gran- dison et al of 3 blacks out of a total of or 10%. facts, light those the case of

In discrimination, not arduous to estab- correspondingly not difficult lish and have to be rebutted. Since dispel,5 should excused from even prosecution was unanswered, presence addition, totally in the perempto- tion one of the three whites In tinge suggesting of racial rily was the wife of a more than a struck factors appear- precisely black. to the prejudice, contributes large injustice was in mea- that Batson ance of stated, 5. As rebuttal designed prevent. sure difficult if reason- discrimination is not Leaving ques- grounds are adduced. able

Case Details

Case Name: United States v. Anthony Grandison, United States of America v. Vernon Evans, Jr., United States of America v. Rodney Kelly

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Nov 14, 1989

Citation: 885 F.2d 143

Docket Number: 88-5097(L), 88-5098 and 88-5099

Court Abbreviation: 4th Cir.