United States v. Clarence S. Brooks
175 F.3d 605
8th Cir.
1999
Check Treatment

*1 other work based on consideration education, prior experi- work

age,

ence. 85-28, Security Ruling quoted

Social

Yuckert, 107 S.Ct. 2287 J.,

(O’Connor, concurring). Applying this contradictory

cautious standard to the evi- record, we con-

dence the administrative evidence does not

clude that substantial

support stop decision to ALJ’s claim

sequential analysis of Ms. Gilbert’s has no step finding

with a two she impairment.

severe court is judgment district and the case is remanded with

reversed to remand to the Commissioner

directions proceedings

for further inconsistent opinion.

with this America,

UNITED STATES

Appellee,

v. BROOKS, also

Clarence S. known Puppy Dog, Appellant.

as America, Appellee,

United States of Barrett, Jr., also known Hayes,

as Willie also known Will, Appellant.

as Will America, Appellee, States Barrett, T. also known Tet, Appellant. Tet

as 97-3560,

Nos. 97-3652 and 97-3713. Appeals,

United States Court

Eighth Circuit. 2T, Sept. 1998.

Submitted April

Filed En

Rehearing Rehearing Banc Denied 18,1999. May

in No. 97-3560 En

Rehearing Rehearing Banc Denied 18,1999.

in No. 97-3562 June

606 Clinton, the de and who favored

Williams marijuana. We need not criminalization of issue, however, because this discuss is fore and Barrett’s contention Brooks’s contrary holdings. closed this court’s its discre if the district court abused Even for striking in and Clinton tion Barrett would not be Brooks and of their convictions entitled to a reversal jurors to failed show against were biased them. tried their case Horsman, 114 F.3d States v. See United — (8th Cir.1997), denied, cert. 825 U.S.—, 645 139 L.Ed.2d S.Ct. Jr., Duckhardt, Mis- Kearney, Frederick Cruz, (1998); F.2d States v. souri, Brooks. Appellant for argued, (8th Cir.1993); see also United 168-69 Summit, Unger Carlyle, Lee’s Elizabeth Mendoza, States v. Padilla Missouri, Bar- Appellant for Willie argued, — (9th denied, Cir.1998), cert. 733-34 rett, Jr. U.S.—, 1084, 143 L.Ed.2d 85 Johnson, City, (1999). Indeed, Mis- Kansas and Barrett con David H. Brooks souri, Terry Barrett. Appellant appeal argued, briefing cede in their on jurors] [prospective claim that the “cannot Meiners, At- L. Assistant U.S. William remaining after the erroneous strikes Missouri, City, argued torney, Kansas sum, and impartial.” Brooks w[ere] Hill, Jr., brief), for (Stephen L. on the to meet their burden of es Barrett failed Appellee. tablishing that the dismissal Williams McMILLIAN, HEANEY, prejudicial jury and in a and Clinton resulted Before: Horsman, 825; FAGG, panel. 114 F.3d at Judges. Circuit Cruz, F.2d at 168-69. FAGG, Judge. Circuit also decline to consider We members of the nearly eight years, For sparsely T. Barrett’s Terry Brooks’s and individuals unrelated to family Barrett and declaration that single-sentence worded in participated large-scale the Barretts “defendfing]” Williams’s and Clin they are City, in Kansas Missouri. drug operation in participate jury trial right ton’s “to Bar- investigation Law enforcement in and Barrett did not process.” Brooks culminated family rett and their associates opposi contention in their stated clude this coconspirators, twelve in the indictment of motion to strike tion to the Government’s Brooks, all S. but Clarence jurors for cause or otherwise raise these Barrett, Jr., Terry pleaded T. Barrett in Additional point this the district court. jury trial. A convicted these guilty before court, in Brooks and ly, their briefs to (collectively remaining defendants three gratuitous asser Barrett failed list conspiracy appellants) referred to as the any appeal present tion as issue on cocaine, crack co- marijuana, to distribute point. In these nebulous argument on the caine, phencyclidine violation of circumstances, Brooks and Barrett failed (1994). They appeal § and we U.S.C. for our review. preserve this contention affirm. Elliott, States v. See United (8th Cir.1996) (failure argu to raise T. Bar Initially, Brooks argu court waives ment before district district court abused its rett contend the 28(a)(5), Fed.R.App.P. appeal); ment on the Government’s granting discretion (a)(9) pre- of issues (requiring statement prospective challenges for-cause appeal sented for and discussion of conten lants’ claims and a detailed discussion will brief); appellate little, tions in United States v. have if any, precedential value. Gonzales, Also, Cir. appellants’ contention that 1996) (failure assign error or discuss admission coconspirator testimony given in appellate contention brief is deemed exchange prom- Government’s *3 issue). abandonment of leniency ises of violated the federal anti- gratuity statute is foreclosed our recent Next, Barrett, Jr. con opinions Johnson, in United States v. improperly tends the district court denied 1092, Cir.1999), F.3d 1097-98 and peremptory challenge prospective his v. Boyd, United States 168 F.3d Cherry, Lisa an African American (8th Cir.1999) curiam). (per single raising mother in infant child also Singleton, United States v. City, Kansas after Brooks and T. (10th Cir.1999) (en banc). Finally, objection Barrett raised a Batson to the reject we challenge Brooks’s to his sen- peremptory challenge. See Batson v. Ken tence record shows tucky, 476 the district (1986). court’s findings sentence-related Having L.Ed.2d 69 reviewed the are not record, clearly we erroneous and conclude Willie J. Barrett’s ex the district court planation striking Cherry pass correctly does not determined Brooks’s sentence. muster under our case law because Bar affirm appellants’ We convictions rett did not other challenge similarly situ and Brooks’s sentence. ated jury members of the who were not African Americans. It is well established HEANEY, Judge, Circuit litigant] may dissenting: this circuit “that [a

justify peremptory challenges to venire The district court and a majority of this of members one race unless venire mem that, law, panel believe as a matter bers of another race with comparable or person who favors the of mari- similar characteristics also chal juana incapable finding a criminal Harris, lenged.” Davidson v. guilty drug defendant of a crime. I dis- (8th Cir.1994) (alteration original) agree respectfully and dissent. (citations omitted). Thus, the district ruling rejecting racially court’s Barrett’s judge The trial at the outset voir dire discriminatory use of a chal proceedings inquired prospective whether lenge clearly was not erroneous. believed were unable to “give each a fair side consid- appellants The also raise number (Tr. 36.) eration of the evidence.” at of other issues related to the trial that can if judge any prospective juror also asked be summarized as follows: there was a would governed by sympathy, preju- “be variance between the indictment and the (Tr. dice, 38.) public opinion.” or at proof; Government’s the district court these general questions only in denying abused its discretion motions severance; venireperson expressed one doubt as to his the district court failed to impartiality.1 The court then suppress wire-tap interceptions, made a ser- improper specific ly inquiries, including ies of whether variety ruled on a of evidentiary mat ters, prospective jurors legaliza- believed in the jury; misinstructed the and the prosecutor drugs generally specific tion of engaged in misconduct during case, closing argument. drugs After these issue in the mari- considering including care, juana. Venirepersons issues with we conclude the district Williams and Clin- correctly court each appel- resolved of the ton each stated their belief Venireperson community. Proctor indicated that he had can a bias based on work with the African-Ameri- conducting voir dire. discretion” Though stantial decriminalized.2 should be Cassel, individu- States v. practice asked general court as a (8th Cir.1982). specific responded to venirepersons “[Determinations al be able to question-and- would inquiries whether cannot be reduced bias fairness, impartiality maintain which obtain results answer sessions inquiry make such with Wainwright court failed of a catechism.” manner and Clinton. respect to Williams Witt, (1985). Thus, while trial venirepersons were individual After discre are entitled to “substantial information, in- personal asked to relate dire, they must conducting tion” in voir as a or a victim experiences cluding “consistent with exercise their discretion crime, by the at- questioned were ” of fairness.’ Cas *4 ‘the essential demands any if asked there were torneys, the court omitted). (citations sel, 668 F.2d at 971 im- upon bear might that

remaining issues several ven- and fairness. While partiality Nothing supports in the record Williams’ planned irepersons informed the court merely exclusion for actual bias. Williams vacations, issues were no new substantive marijuana should be stated his belief that to government then moved raised. to decriminalized. The court failed ask cause, arguing for he strike Williams specifically whether he could re- somebody guilty to find would “be asked impartial prop- and render a main fair and concerning drug a that he conspiracy a addition, the law. er verdict under legalized be and for that rea- feels should inquired generally regard- court when the ... can be a fair and [not] son fairness, partiality and Williams did ing objected that juror.” Defense counsel repeatedly ad- respond. The court inquiry as to whether or was no “[t]here it in re- monished that understood silence to set aside his not he would be able to mean that no sponse questions to its ... regard weigh in that the beliefs ren- potential juror ability doubted their to law ... and render a evidence under the impartial judgment. der (Tr. under the law.” at proper verdict 213.) that “an The defense further noted existed, no actual bias Williams’ Since people awful lot of ... dissent from the proper only opinion if his exclusion was ... laws that some hold dear and still marijua- the decriminalization of regarding in a enforce the laws correct fashion.” presumption an inference or supported na 213.) (Tr. granted at The court the motion law. such a of bias as a matter of Because to strike without comment.3 based legal conclusion is determination impact of conducting objective

Trial voir dire must on an evaluation of the judges hand, the belief on the case at impartiality reach conclusions as to and Williams’ immedi- district court’s exclusion of Williams credibility by relying on their own subject to de novo review. See Gonzales perceptions ate and evaluations demean- (10th Thomas, Cir.1996); States, Rosales-Lopez or. See v. United Salamone, also 68 see United States U.S. (“The (3d Cir.1986) (1981) (plurality opinion). Ac- F.2d usual L.Ed.2d appellate re- cordingly, cautioning trial are entitled to “sub- factors restraint Thweatt, vacation, Subsequently, question con- fer a in addition to a cerning any venireperson had a whether close stating marijuana, indicated that her views on by had been affected friend or relative who the sale or use of may sympathetic to defendants she be the illegal drugs, Venireperson used because a close friend of hers sold and supported Thweatt that she also stated drugs involved in this case. Be- some of the marijuana. decriminalization independently valid reasons cause these are excusing the district Venirepersons 3. The court also struck Clinton in dismiss- Clinton, however, court did not abuse its discretion and Thweatt. indicated family arriving ing Venirepersons and Thweatt. of his would be Clinton members view, i.e., credibility and demeanor evi- sal. is, See id. 1227-28. Such error dence, however, from simply absent nature, very its not amenable to harm- record.”) analysis. less-error Because no one can know how an excluded might have opinion

Williams’ on the voted or otherwise have affected the ver- pre is insufficient to raise a dict, impossible it is for a defendant sumption implied of bias. The bias doc “ employed only proof trine is adduce of what might happened ‘extreme’ or have ‘exceptional’ cases.” United States v. had the been impaneled, and he is Frost, Cir.1997) effectively deprived thus remedy. of a — (citations omitted), denied, cert. Moreover, id. at 1227-28. because each (1998). —, 40, 142 improper exclusion for effectively cause I required inquire believe the court was bestows an extra challenge further in order to establish factual upon party requested improp- predicate for Williams’ exclusion. Cf. exclusion, only er remedy is a trial new Calabrese, United States v. for Brooks and Terry Barrett.4 (without (3d Cir.1991) explanation The majority asserts that we need not dire, potential further voir mere fact of reach question of whether the district jurors’ acquaintance with defendant insuf court abused its in systematical discretion incompetent. ficient to render them *5 ly striking jurors who believed that the serve). of sale should be I legalized. do Circuit, The Third in United States v. agree not with this view and do not believe Salamone, granted a new trial to a defen- that the Horsman and Cruz cases control dant by convicted firearms violations a this decision. rely Those cases both on jury from which the district court excluded Oklahoma, Ross v. 487 U.S. potential jurors solely several on the basis (1988), S.Ct. 101 L.Ed.2d which of their affiliations with the National Rifle Supreme the Court ruled that where a case, Association. As in this inquiries “no improperly trial court required the defen whatsoever were directed to the excluded dant to use a peremptory challenge to jurors to determine nature and extent juror strike a who should have been strick any principles of their commitment to that cause, en for the defendant can make aout might impaired ability have their to serve showing prejudicial only by error show impartially.” Id. at 1226. The Third Cir- ing empaneled jury that the was biased. “potentially cuit found dangerous” the ex- However, the Salamone case it makes jurors solely clusion of based on per- clear that rule apply this does not to the ceptions of trial prosecutors as wholesale, arbitrary, and irrational exclu jurors’ external associations. id. at of venirepersons upon sion based beliefs 1225. I persuasive. find Salamone It is impartiali that have no relevance to their difficult for me to distinguish between the Salamone, ty. excluded See 800 F.2d at who affiliat- 1227-28. Nor should Cruz, organization ed themselves with an that it. In Horsman and the defendant vehemently opposes gun policy, federal required was peremptory use a chal Williams, who in to the dis- lenge jurors. contrast, By to strike biased expressed trict inquiry court’s his individu- the factual situation in both Salamone and opposition al to federal drug policy. the instant case is one in which the State was afforded additional chal

Although only Williams was excluded lenges mistakenly permit because it was solely opinion regarding his deny ted to strike a I thus legalization marijuana, believe the dis- jurors. a approach bespeaks “system- ing trict court’s a seat Such a atic requiring exclusion” automatic rever- situation cannot be harmless error. appeal. 4. Willie Barrett does raise this issue on my view re- marijuana. Although own position support for I find additional marijuana runs dealing garding case law Court Supreme Williams, capital cases of I find it diffi- contrary from to that of with the exclusion convictions religious distinguished moral or that such jurors whose cult to believe a administration with state’s may Buckley,5 interfere as F. Chief Americans William sentencing capital Posner,6 constitutional and Milton Fried- Judge Richard See, v. Illi- e.g., Witherspoon schemes. a fair man7 would be unable to render nois, n. law and the evidence. verdict based on the (1968) (“[E]ven juror 20 L.Ed.2d Further, if they slightest had the reserva- punishment should capital that believes so, ability to do I find regarding tion irrevocably inflicted and who is never be that would impossible it to believe could nonethe- committed to its abolition the rule of law and conceal defile views to what personal his less subordinate from a court so that would hesitation duty to abide his perceived to be his he absolutely jury. on a There is be seated obey the law of the oath as a suggests nothing the record Witt, State.”) Wainwright Court similarly committed to the is not that while bias in such cases need stated above, law. For the reasons stated rule of with “‘unmistakable not be established I reverse the district court and re- would ” proper only where clarity,’ exclusion for a new trial to Clarence Brooks mand as ‘prevent would or sub- juror’s “the views Barrett. stantially impair performance of his in accordance with his duties as ” and his oath.’ 469 U.S. at instructions (footnote omitted). 105 S.Ct. 844 explained that this rule was consis-

Court *6 its earlier decisions Maxwell v.

tent with 262, 1578, 26 Bishop, 398 U.S. America, UNITED STATES (1970), and Boulden Hol- Appellant, man, 1138, 22 (1969), because those cases L.Ed.2d jurors who were dismissed be- involved ALLERY, Appellee. Brent William “ objections they had ‘conscientious’ cause in,’ to, penal- or did not ‘believe the death No. 98-2644. I' at 422 n. 105 S.Ct. 844. ty.” 469 U.S. Appeals, United States Court

read these cases to dictate Williams’ Eighth Circuit. mere belief to warrant his exclusion was insufficient Jan. 1999. Submitted for cause. April Decided 1999. Furthermore, I am with the concerned consequences permitting the exclusion prospective jurors solely on the basis legalization of opinions regarding Friedman, Open Buckley, War In 7.Milton An Letter To Bill

5. See William F. The Pot 31, 1995, Review, Bennett, St.J., England, Sept. National Dec. Wall at A16 55. tragedy ("Drugs addicts. But crimi- tragedy nalizing into a their use converts Mauro, Tony Legalize Marijuana, Prominent society, users and disaster for alike.”). non-users Says, Today, Sept. USA al 2A Jurist (" devoting ‘It is nonsense that we should be many law resources to mari so enforcement juana,1 Judge Richard] Circuit Chief [Seventh said.”). Posner