7th Circuit Criminal Law Alert

Batson: Boilerplate Rules

USA v. Larry Hendrix, 06-4355.  A jury convicted Larry Hendrix of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 262 months' imprisonment. Hendrix challenges his conviction, claiming that the district court erred in (1) finding that the prosecution made a race-neutral showing for striking two African-Americans during voir dire; (2) allowing testimonial evidence that a judge approved a warrant to search Hendrix's home; and (3) concluding that Hendrix was not subject to interrogation under Miranda. Hendrix also challenges his sentence. For the following reasons, we affirm.

Voir dire took place on September 5, 2006. The venire consisted of thirty-three people, and after questioning by the court, both sides exercised a combined total of eighteen peremptory challenges. The court noted that the prosecution used two of its challenges to exclude Juror Nos. 22 and 16, the only African-Americans in the venire. Recognizing that a prima facie case of discrimination had been established, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), the court sua sponte called both parties to the bench for a sidebar.

The prosecution offered an explanation as to why he struck those particular jurors, stating, "Mr. Woodland, number 22, he said his stepson is in prison for armed robbery, and that gave me pause. I struck from the panel everyone that I could that has relatives in prison . . . Ms. Hairston, number 16, who said her brother was in prison for murder . . . . " The prosecution also noted that he struck Juror No. 13, Ms. Strock, a Caucasian woman, "who said her [step]father was in prison."

Defense counsel expressed concern that the only two African-Americans were gone, stating "[it] leaves us with a jury without any minorities. And Mr. Hendrix is obviously African-American, and so that gives us some concern."

Defense counsel did not address the fact that Juror Martin, a Caucasian woman, was not struck from the panel, despite the fact that she had a brother who was sent to a reform school for armed robbery at age sixteen.

A. The Batson Challenge

Hendrix contends that (1) the prosecution's strikes were not race-neutral, because the prosecution did not strike Juror Martin-who is Caucasian-even though she had a brother who went to reform school for armed robbery.

(2) the prosecution's recognition that Jurors Woodland and Hairston had friends in law enforcement should have been appealing to the prosecution, and therefore undercuts its assertion that the strikes were race-neutral;

(3) the prosecution's "sudden proffer of a new explanation" that Juror Woodland was "one of those CSI guys" was pretextual, because other white jurors on the panel who watched the show were not struck from the panel; and

4) the district court erred when it did not explain why it was satisfied with the prosecution's explanations of striking the African-American jurors. Batson sets forth a three-step analysis that precludes a prosecutor from striking a juror based on race under the Equal Protection Clause.

First, the defendant must establish a prima facie case that the strike was racially motivated. The burden then shifts to the prosecution to articulate race-neutral reasons for the strike. Finally, the trial judge must assess the credibility of the prosecution's explanation and determine if the defendant has established purposeful discrimination. Batson v. Kentucky, 476 U.S. 79, 96-98 (1986); see also Lamon v. Boatwright, 467 F.3d 1097, 1099 (7th Cir. 2006). The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike. United States v. Jones, 224 F.3d 621, 624 (7th Cir. 2000).

Not every strike of a racial minority is a violation of Batson. Jones, 224 F.3d at 624. A prosecutor's motives are a question of fact, United States v. George, 363 F.3d 666, 673 (7th Cir. 2004), to be determined by the trial judge, who is in the best position to evaluate the demeanor of the attorney exercising the challenge. Hernandez v. New York, 500 U.S. 352, 365 (1991). Because these are determinations of credibility, we review a district court's resolution of a Batson challenge for clear error. George, 363 F.3d at 673.

We must have a firm and definite conviction that a mistake was made before reversing a trial court's Batson ruling. United States v. White, 416 F.3d 634, 640 (7th Cir. 2005). We must keep in mind, however, that "[o]nce the trial judge has been persuaded of the neutrality of the prosecutor's reason for striking a juror, we have no basis for reversal on appeal unless the reason given is completely outlandish or there is other evidence which demonstrated its falsity." United States v. Griffin, 194 F.3d 808, 826 (7th Cir. 1999).

At the first stage of the Batson analysis, the burden is low, requiring only circumstances raising a suspicion that discrimination occurred, even where those circumstances are insufficient to indicate that it is more likely than not that the challenges were used to discriminate. United States v. Stephens, 421 F.3d 503, 512 (7th Cir. 2005) (citing Johnson v. California, 545 U.S. 162, 170 (2005)).

We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors. Batson, 476 U.S. at 97. Acknowledging that the only two African-Americans had been struck from the venire by the prosecution, the court found that a prima facie case under Batson had been established.

At the second stage of the Batson inquiry, the burden shifts to the prosecution to make a race-neutral explanation for its strikes. Unless a discriminatory intent is inherent in the prosecution's explanation, the reason offered will be deemed race-neutral. Batson, 476 U.S. at 98 n.20.; see also George, 363 F.3d at 674.

The prosecution explained that Jurors Woodland, Hairston, and Strock all had relatives in prison, which is a valid and race-neutral basis for the strikes. Jurors with relatives in prison may sympathize with a defendant, or have feelings of animosity against the prosecution. See United States v. Lewis, 117 F.3d 980, 983 (7th Cir. 1997).

At the last stage of a Batson inquiry, the court must determine whether the defendant has carried his burden of proving purposeful discrimination by the prosecution.

The critical question in determining whether a defendant has proved purposeful discrimination at the last stage is the persuasiveness of the prosecution's justification for his strike. Miller-El v. Cockrell,537 U.S. 322, 338-39 (2003). 

The issue is whether the trial court finds the prosecutor's race-neutral explanations to be credible. Id. at 339. When approaching the issue of credibility, the court assesses "how reasonable, or how improbable, the [prosecutor's] explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." Coulter v. McCann, 484 F.3d 459, 465 (7th Cir. 2007).  Batson and its progeny direct trial judges to assess the honesty-not the accuracy-of a proffered race-neutral explanation. Moreover, at the third stage, the defendant may offer additional evidence to demonstrate that the proffered justification was pretextual.

The district court considered all of the prosecution's explanations as to why Jurors Woodland and Hairston were struck when it found that the explanations were proper.

Furthermore, Hendrix failed to demonstrate any pretext to the court during voir dire.

We find no error in the district court's assessment of the honesty of the prosecution's proffered explanations. The district court had the opportunity to observe the voir dire, and determined that the prosecution gave legitimate and race-neutral showings as to why it struck the two African-Americans from the venire. Hendrix has not provided any sufficient reasons for us to conclude that the district court committed clear error by making this determination. Therefore, we find that the district court's ruling on the prosecution's peremptory challenges on Jurors Woodland and Hairston was proper and did not violate Hendrix's right to equal protection of the law.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Sentencing Defendant In Absentia OK If Court Finds Absense Voluntary

USA v. Lahbib Achbani, 06-4190.  In December 2005, Lahbib Achbani pleaded guilty to making and uttering a counterfeit check in violation of 18 U.S.C. § 513(a). Mr. Achbani disappeared shortly before his scheduled sentencing hearing. The district court postponed the hearing several times while the Government searched for Mr. Achbani. Ultimately the court found that Mr. Achbani had absconded and sentenced him in absentia to 33 months' imprisonment.

We affirm Mr. Achbani's sentence. The district court took all the necessary steps to ensure that Mr. Achbani's absence was voluntary, and the evidence overwhelmingly suggested that he had fled the jurisdiction to avoid imprisonment.

In late 2004, Mr. Achbani manufactured a $100,000 counterfeit check, deposited it and withdrew part of the funds to pay off various debts. Between the time of his indictment in May 2005 and his guilty plea that December, Mr. Achbani assisted in a government investigation that led to the recovery of nearly $2 million in stolen goods and the filing of charges against others.

In February 2006, however, the Government informed the probation officer and defense counsel of its recent discovery that, after his indictment, Mr. Achbani had passed additional counterfeit checks and had been charged with criminal trespass to a vehicle. These discoveries led the Government to propose a higher intended-loss amount than the parties originally had anticipated and to suggest that Mr. Achbani was not entitled to a reduction for acceptance of responsibility.

Mr. Achbani failed to appear for his sentencing that May, and defense counsel informed the court that he did not know of Mr. Achbani's whereabouts. The court therefore asked counsel whether it was appropriate to sentence Mr. Achbani in absentia under Federal Rule of Criminal Procedure 43(c)(1)(B), which provides that a defendant waives his right to be present at sentencing if he is voluntarily absent.

Rule 43 guarantees a defendant the right to be present at both trial and sentencing. See Fed. R. Crim. P. 43(a); United States v. Agostino, 132 F.3d 1183, 1200 (7th Cir. 1997). Rule 43 was amended in 1995 to provide explicitly that a defendant in a non-capital case waives the right to be present at his sentencing if he is "voluntarily absent." See Fed. R. Crim. P. 43(c)(1)(B).  It appears that the 1995 amendment sought to eradicate the disparity in the courts' treatment of defendants' absences from trial and from sentencing. Consequently, we employ the same standard in determining whether the district court proceeded appropriately in this case.

We review for clear error a district court's finding of voluntary absence.  In the trial context, we have explained that the district court should indulge every reasonable inference against a finding of voluntary absence. Before proceeding, the district court must explore on the record any "serious questions" raised about whether the defendant's absence was knowing and voluntary.

For example, a defendant taken into legal custody is not voluntarily absent, see Larson v. Tansy, 911 F.2d 392, 397 (10th Cir. 1990); nor is a defendant who has been hospitalized due to illness, see United States v. Novaton, 271 F.3d 968, 996-97 (11th Cir. 2001).

As the case law makes clear, however, the district court's duty to explore such possibilities varies to the extent that defense counsel suggests circumstances that raise a plausible doubt that the defendant's absence was voluntary.

Here, the district court's finding that Mr. Achbani was voluntarily absent was not clear error. The district court postponed Mr. Achbani's sentencing two times over three months; it drew every possible reasonable inference in his favor; and it required that, before sentencing would proceed, the Government had to conduct an investigation into the alternative possibilities that counsel identified, especially Mr. Achbani's immigration status. The evidence that the Government ultimately collected- particularly evidence that a person with Mr. Achbani's name and birthday had flown to Austria shortly after he had disappeared-ruled out a "serious" possibility that Mr. Achbani was dead, hospitalized or in legal custody. Counsel proffered no additional evidence to demonstrate that Mr. Achbani's absence was involuntary. Moreover, Mr. Achbani had learned of the Government's discovery of his ongoing criminal activity, which certainly gave him ample incentive to flee.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Permanent Disfigurement for USSG Determined on Date of Sentencing

USA v. Bronson L. Webster, 06-4430.  Bronson Webster punched Leah Tourtillott in the face five times and, after she collapsed, kicked her in the face five times. The attack broke her nose and the bone around her right eye; it also caused lacerations that a physician concluded would leave prominent facial scars. Because the attack occurred on an Indian reservation, it came within federal jurisdiction. 18 U.S.C. §1153. Webster pleaded guilty to an assault that caused serious bodily injury. 18 U.S.C. §113(a)(6).  The district judge imposed a sentence of 68 months.

Webster maintains that the offense level should have been 16 rather than 18. The range corresponding to an offense level of 16 would have been 46 to 57 months' imprisonment. The two-level difference depends on the application of U.S.S.G. §2A2.2(b)(3), which prescribes seven offense levels for battery that produces "permanent or life-threatening bodily injury" but only five levels for an attack that causes "serious bodily injury". According to Webster, Tourtillott's injuries were "serious" but not "permanent or life-threatening".

They aren't "life-threatening", but they are "permanent", the district court found.  The district judge concluded that Tourtillott's scars are "obvious disfigurement" even if her eye and nose bones will mend without degrading her appearance.

Enhancement for a permanent disfigurement is appropriate, Webster maintains, only if the prosecution can prove that the condition cannot be corrected by plastic surgery.  No evidence in the record would allow a judge to find this; the most that any of the surgeons whose evaluations are in this record would venture is that correction "may" be possible. These physicians opined that the prospects for cosmetic surgery could not be evaluated until Tourtillott's condition had stabilized in a year or so.

Like the district judge, we think that this line of argument misunderstands U.S.S.G. §2A2.2(b)(3)(C) and the application note. Uncertainty does not preclude a finding of permanence. Instead of asking whether a victim's future might be brighter, a district court should act on the basis of the victim's current condition and current medical information. If an impairment has not been corrected by the time of sentencing, and will last for life unless surgically corrected in the future, then it should be treated as "permanent" under the Guidelines unless future correction would be a straightforward procedure.

This understanding makes the physical-injury rules parallel to the financial-injury rules.  An amount taken from a victim counts as "loss" even if an offender promises to repay in the future.

The date on which the wrongdoer is sentenced represents the end of predictions; only what has happened by then need be taken into account. Talk is cheap, and it is easy to foresee (or purport to foresee) that victims will be repaid, or their bodily injuries repaired. A judge should rely on what is known at the time of sentencing rather than on predictions of doubtful accuracy.

Prominent facial scars are a form of "obvious disfigurement." See United States v. Phillips, 239 F.3d 829, 848 (7th Cir. 2001); United States v. Cree, 166 F.3d 1270, 1271--72 (8th Cir. 1999). The physician who treated Tourtillott at the emergency room testified that the scarring will be permanent. Webster does not deny that her scars, if permanent, are obvious disfigurement. Correction by plastic surgery is not a sure thing. No more is required to support an enhancement under U.S.S.G. §2A2.2(b)(3)(C).

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .