In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2740
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T HOMAS A. Y ARRINGTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08 CR 30115—Jeanne E. Scott, Judge.
A RGUED F EBRUARY 17, 2011—D ECIDED M AY 6, 2011
Before E ASTERBROOK, Chief Judge, and R IPPLE and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Thomas A. Yarrington was con-
victed by a jury of possession of cocaine with intent
to distribute in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C) and sentenced to 108 months’ imprisonment.
He appeals, arguing that the district court erred when
it credited the government’s reasons for using a peremp-
tory challenge to exclude an African American from the
2 No. 10-2740
jury and abused its discretion when it allowed a gov-
ernment agent to read a portion of his report of
an interview with a government witness into evidence.
We affirm.
I. Background
On May 22, 2008, law enforcement officers were con-
ducting surveillance on an apartment at 734 Rickard
Road in Springfield, Illinois. An individual named Jesse
Joiner had informed them that a Jeremy Wallace was
dealing drugs and using the apartment to store his
drugs. Joiner also said that a person in the apartment
named “Thomas” was involved in drug distribution
with Wallace. Officers observed a white Chevy Tahoe
pull into the apartment’s parking lot, where it remained
for a short time before leaving. Law enforcement had
been advised that the Tahoe was used to deliver cocaine
to the apartment. A traffic stop was initiated on the
Tahoe, and the driver, Wallace, attempted to evade
the officers in his vehicle and then fled on foot. They
caught up with him in the bathroom of the car
dealership where he worked. He was standing next to
the toilet and appeared to be flushing something down
it. His pants were down and he had white powder
residue on them. The officers suspected that the white
powder residue was cocaine, but it was never tested.
Wallace was arrested.
Later that day, law enforcement made a traffic stop
of a Chevy Avalanche driven by Yarrington after it
left the apartment’s parking lot. The officers advised
No. 10-2740 3
Yarrington that they were conducting a drug investiga-
tion, that Wallace was in custody, and that they knew
Wallace had just left Yarrington’s apartment. Yarrington
gave consent to search his vehicle and consent to search
his apartment. He stated that if something was found
in his apartment, he was just holding it for someone.
Yarrington subsequently said that he could not give
consent to search the apartment because he didn’t live
there; it was his girlfriend’s apartment. A short while
later, Yarrington’s girlfriend, Melody Pryor, arrived at
the apartment and gave authorities written consent to
search the apartment.
The apartment had three rooms upstairs: a bedroom
with a bed in it, a bedroom with a lot of music equipment
in it (the “music room”), and a bathroom. A search of
the music room uncovered evidence of drug distribu-
tion: several large Ziploc bags, one of which contained
314.7 grams of cocaine; a digital scale; smaller sandwich
baggies containing cocaine; two jars of Inositol powder
(frequently used as a cutting agent with cocaine); and a
box of sandwich baggies. A bank statement and bank
check card in Yarrington’s name were also in the music
room. In the bedroom, agents found $14,800, some
of which was in a black bag hidden under the bed.
Later that afternoon, Yarrington was interviewed at the
jail. Special Agent Kevin Rollins of the Bureau of Alcohol,
Tobacco, Firearms and Explosives and Lieutenant Brian
Bressan of the Sangamon County Sheriff’s Office advised
him that a large quantity of cocaine, roughly over 1/4
kilogram, and other evidence of narcotics trafficking,
4 No. 10-2740
including a digital scale, bags with white powder
residue, and a large amount of U.S. currency were re-
covered from the apartment. Yarrington was given his
Miranda warnings and agreed to cooperate.
Both Lt. Bressan and Agent Rollins testified at trial
about Yarrington’s statements from the interview.
Yarrington said he would take responsibility for the
cocaine in the apartment; he didn’t want his girlfriend
to get in trouble for it. He said he received the cocaine
from Wallace and stored it for him. Yarrington ad-
mitted that he cut the cocaine, by adding Inositol to it
(thus increasing the weight), and weighed and packaged
it for Wallace. Yarrington said he was paid $300 for
every ounce of cocaine and he believed that he had
$11,000 to $12,000 in the apartment. He claimed
that some came from his music business, some from
his modeling career, and some from the sale of drugs to
Wallace. Yarrington stated that Wallace had been at
the apartment that day, and he had given Wallace
three ounces of cocaine for which Yarrington was to
receive $900. The officers testified that Yarrington said
his fingerprints would be on some of the bags of cocaine
and that he had purchased the digital scale. The jury
heard evidence that testing revealed Yarrington’s latent
fingerprints on the large Ziploc bag which contained
the 314.7 grams of cocaine.
After Yarrington’s arrest, law enforcement interviewed
Thomas Summerlin, whom they identified through
Wallace’s cell phone records. Summerlin testified at
trial about his dealings with Wallace and Yarrington.
No. 10-2740 5
Summerlin said that he bought cocaine from Wallace
and distributed it to others to sell. He said that he first
received drugs from Wallace in the summer of 2007 and
met Yarrington “probably . . . about a month after Jeremy
[Wallace] and [Summerlin] got together.” Summerlin
stated on cross-examination that he met Yarrington
through Wallace early in the summer of 2007 and began
receiving cocaine from Yarrington in midsummer,
“around the end of June, maybe first of July of ‘07.”
He received half an ounce from Yarrington “[o]nce a
week.” Summerlin testified that after he met Yarrington,
he stopped getting his cocaine from Wallace and got
it directly from Yarrington. Summerlin said that his
drug relationship with Yarrington ended sometime
in 2008. When Summerlin received cocaine from Yar-
rington, he cut it up into different portions and gave
it to others for distribution. He said he phoned Yar-
rington about once a week to arrange to buy cocaine;
the conversations lasted “maybe a minute.” Phone
records admitted into evidence showed that from
August 2007 through April 2008, 74 calls were placed
from Summerlin’s phone to Yarrington’s phone, and
70 calls were made from Yarrington’s phone to
Summerlin’s phone. The majority of these calls were
for one minute or less.
Summerlin testified that he was interviewed by law
enforcement on September 8, 2008, and August 7, 2009.
Defense counsel questioned him about his statements:
“[D]id you not tell Agent Rollins that from Septem-
ber of 2007 for three to four months . . . you were pur-
chasing half ounce quantities of cocaine from Jeremy
6 No. 10-2740
Wallace once a week? Would you agree you told
Agent Rollins that on September 8th, 2008?” Summerlin
answered, “Yeah, if that’s in the statement I must have
said that.” When confronted with the discrepancy
between his September 8 statement and his trial testi-
mony, Summerlin explained, “I started off with Jeremy
in the summer of ‘07, he introduced me to Thomas
after that, and then I was buying from Thomas.” Sum-
merlin added, “Well, maybe I’ve got my dates wrong.”
Summerlin admitted that on August 7, 2009, he stated
he bought one-half ounce quantities of cocaine from
Wallace for two or three weekends. Summerlin agreed
that this statement conflicted with his September 8 state-
ment.
Defense counsel questioned Summerlin whether he
told Agent Rollins on September 8 that in Decem-
ber 2007, he began purchasing two ounces of cocaine
per week from Yarrington. Summerlin responded, “If it’s
on the statement I must have told him that.” (Actually,
it was in the August 7 statement.) Counsel pressed: “So
December of ‘07, that’s when you began purchasing? . . . Is
that right?” Summerlin responded, “Obviously I have
my dates wrong. . . . I have a problem with the dates.” He
admitted that in his August 7 statement he said that
he bought three- and four-ounce quantities of cocaine
from Yarrington. Defense counsel focused even more
on the September 8 statement: “On September 8th . . . in
your interview with Agent Rollins, did you not tell
[Agent Rollins] that . . . Wallace is the only person that
you had purchased cocaine from?” Summerlin said he
did not remember.
No. 10-2740 7
Agent Rollins was recalled and testified that at the
very beginning of the September 8 interview, Summerlin
said Wallace was the only person from whom he had
ever purchased cocaine. The agent explained, however,
that he conducted the interview chronologically and
that Summerlin said during the early period of his rela-
tionship with Wallace, he purchased cocaine only from
Wallace, and in the later period, he began purchasing
cocaine from Yarrington.
At that point, the government moved for the admis-
sion of Agent Rollins’s report of the September 8 inter-
view. Yarrington objected on relevance grounds. The
government argued that the report was relevant because
defense counsel’s questioning implied that certain state-
ments were not in the report. The government re-
ferred to the rule of completeness. The court reserved
ruling.
On re-cross-examination, Yarrington’s counsel asked
Agent Rollins about Summerlin’s September 8 statements:
Q. Now, the report of September 8th . . . at some
point . . . Summerlin told you that Wallace
was the only person that he purchased cocaine
from, isn’t that right?
A. Correct.
Q. And I understand he later said that he pur-
chased cocaine from Wallace and then
Yarrington and gave certain amounts, correct?
A. Correct.
8 No. 10-2740
On redirect, the government asked Agent Rollins
whether his September 8 report started in one period
and ended in another, in chronological order. He said,
“yes.” The government then asked, “In which period is
the statement that Jeremy Wallace was the only person
that Summerlin purchased from?” The agent responded,
“That statement is made in paragraph 3 of 19 paragraphs.”
At this point, citing awkwardness and an inability
to otherwise show what was or was not in the report,
the government asked that Agent Rollins be allowed
to read portions of the report.
The court allowed him to read paragraphs 3 through 7
of the report to the jury over the defense objection. These
paragraphs state in relevant part:
Paragraph 3. Approximately one year ago
WALLACE approached SUMMERLIN about
purchasing cocaine from him (WALLACE). . . .
According to SUMMERLIN, WALLACE is the
only person that he has purchased cocaine from.
Paragraph 4. SUMMERLIN initially started pur-
c h a s in g h a l f o u n c e s o f c o c a in e fr o m
WALLACE. . . .
Paragraph 5. . . . SUMMERLIN estimated that
he purchased half ounce of cocaine once a week
for approximately three to four months from
WALLACE.
Paragraph 6. At that point in time, SUMMERLIN
began purchasing two ounces of cocaine per
week. In addition, WALLACE brought a subject
No. 10-2740 9
he identified as “Thomas” to SUMMERLIN’S
residence. . . . SUMMERLIN subsequently identi-
fied a photograph of Thomas A. YARRINGTON . . .
as “Thomas.”
Paragraph 7. It was at that time he started pur-
chasing two ounces of cocaine per week that
SUMMERLIN began making the purchase of
cocaine directly from YARRINGTON.
After Agent Rollins read this, the court gave the fol-
lowing limiting instruction:
Ladies and gentlemen, those portions of
Mr. Rollins’ report were read to you for the pur-
pose of showing what Mr. Rollins recorded
in his report concerning his interview with
Mr. Summerlin. The statements in the report are
not offered to prove the truth of those state-
ments, but simply to prove what was reported
by this witness of his interview with Mr. Sum-
merlin. Since there’s been some focus on what
was in that report I have allowed this portion of
the report to be read to you.
The court did not admit the report as an exhibit.
The jury convicted Yarrington of one count of posses-
sion of cocaine with intent to distribute in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C). He was sentenced to
108 months’ imprisonment. He appeals his conviction,
challenging the government’s peremptory strike of an
African American and the reading of portions of the
September 8 interview report into evidence.
10 No. 10-2740
II. Analysis
A. Batson Challenge
Yarrington first claims that the district court failed to
conduct a meaningful inquiry into the government’s
reasons for using a peremptory challenge against
Michelle Hudson, an African American prospective
juror, and erred in accepting the government’s explana-
tion for striking her. During voir dire, Hudson stated
that she believed she recognized the names of two of
the potential witnesses: Randy Raglin, with whom she
attended high school, and Digollah Addison, with whom
she had worked. Addison was present in the courtroom
at the time, and Hudson confirmed that she knew
her. Addison had been Hudson’s nursing supervisor.
Hudson also stated that she had been a witness in a
murder trial. On her juror questionnaire, however,
she indicated “N/A” to Question 13, which inquired
whether she had ever been involved in criminal litiga-
tion, including as a witness. The government exercised
a peremptory challenge against Hudson, and Yarrington’s
counsel requested that it be required to provide a race-
neutral reason for striking her. Defense counsel noted
that Hudson was one of three African Americans in
the jury pool, and the only one at that point to make it
into the jury box.
The government proffered four reasons for striking
Hudson: (1) she knew two potential defense witnesses;
(2) her daughter’s last name was a name known to
law enforcement; (3) she indicated “not applicable” on
Question 13 of her juror questionnaire; and (4) unlike the
No. 10-2740 11
other prospective jurors, she never looked either of the
government attorneys in the eye. The district court
rejected the last reason, noting that Hudson had been
looking at the court, which was in a different direction.
Yarrington’s counsel responded that Hudson stated
she could be fair and impartial and her knowledge of the
witnesses would not affect her ability to be a fair and
impartial juror. The district court determined that “the
fact that one of the defense witnesses was her nursing
supervisor and another witness went to high school
[with her] . . . and the fact that law enforcement is ap-
parently aware of the daughter, are sufficient for use of
the peremptory as race-neutral reasons.” When ruling
on Yarrington’s motion for a new trial, the district court
revisited the Batson claim and concluded that “[t]hese
personal and professional relationships with potential
defense witnesses called into question Hudson’s ability
to be a fair and impartial juror.”
Claims under Batson v. Kentucky, 476 U.S. 79 (1986), are
evaluated under a three-step inquiry. First, the defendant
must make a prima facie case of race discrimination
in selection of the venire. Second, the government
must offer a race-neutral explanation for the peremptory
strike. Third, the court must determine whether the
defendant has carried his burden of proving that the
government’s stated reason is a pretext for discrimina-
tion. United States v. Taylor, Nos. 05-2007, 05-2008 &
09-1291, ___ F.3d ___, ___, 2011 WL 799775, at *4 (7th Cir.
Mar. 9, 2011); United States v. McMath, 559 F.3d 657, 663
(7th Cir. 2009). “Traditionally, we review the district
court’s Batson findings for clear error.” McMath, 559 F.3d
12 No. 10-2740
at 663. But where the court misapprehends or misapplies
the Batson inquiry, de novo review is appropriate. Id.
at 663 & n.2.
Yarrington contends that the district court failed to
conduct a meaningful inquiry into the government’s
stated reasons for striking Hudson, but the record estab-
lishes that the court conducted a proper Batson inquiry.
Thus, we review its findings for clear error and will
reverse only if we “have a ‘firm and definite conviction
that a mistake was made.’ ” Taylor, 2011 WL 799775, at *4
(quoting United States v. Taylor, 509 F.3d 839, 843 (7th
Cir. 2007)). This case focuses on the second and
third steps of the inquiry. (Where the government offers
a race-neutral explanation for the strike, whether the
defendant has established a prima facie case is moot.
United States v. White, 582 F.3d 787, 801 (7th Cir. 2009), cert.
denied, 130 S. Ct. 1542 (2010).) The district court’s
finding on the question of discriminatory intent involves
a credibility determination, to which we accord sub-
stantial deference. Batson, 476 U.S. at 98 n.21; Taylor,
509 F.3d at 843.
We will focus on the first two reasons the govern-
ment proffered for striking Hudson: (1) she knew two
defense witnesses, one of whom had been her super-
visor at work; and (2) law enforcement had knowledge
of her daughter’s last name. That Hudson knew a
potential witness from school and had worked under
another potential witness are race-neutral reasons for a
peremptory strike. See, e.g., United States v. Sandoval, 241
F.3d 549, 552 (7th Cir. 2001) (holding district court did not
No. 10-2740 13
abuse its discretion in removing a juror during trial
who informed it that she knew a witness and replacing
her with an alternate). At Batson’s second step, “the
issue is the facial validity of the prosecutor’s explanation.
Unless a discriminatory intent is inherent in the prosecu-
tor’s explanation, the reason offered will be deemed
race neutral.” Hernandez v. New York, 500 U.S. 352, 360
(1991); see also United States v. Hendrix, 509 F.3d 362,
370 (7th Cir. 2007). There is nothing inherently discrim-
inatory in the second reason offered for striking
Hudson; therefore, this reason is deemed race neutral.
So we move on to the third step of the Batson inquiry
in which we assess the “ ‘honesty—not the accuracy—of a
proffered race-neutral explanation.’ ” White, 582 F .3d at
802 (quoting Lamon v. Boatwright, 467 F.3d 1097, 1101 (7th
Cir. 2006)). The district court found the first two race-
neutral reasons proffered by the government credible,
thus justifying the peremptory strike. Yarrington argues
that the government failed to support its claim that its
stated reasons were race neutral with “anything con-
crete.” However, the district court questioned Hudson
about her knowledge of the witnesses; her answers estab-
lish a factual basis for the government’s first proffered
reason for striking her. Yarrington also complains that
the district court did not inquire into the nature of law
enforcement’s knowledge of Hudson’s daughter’s name.
But the court apparently understood the implication of
the assertion that law enforcement knew of Hudson’s
daughter’s last name. We can reasonably infer this from
the fact that the court credited this reason as a race-
neutral explanation and found it sufficient to support
the peremptory challenge.
14 No. 10-2740
Next Yarrington attempts to challenge the govern-
ment’s reasons by pointing to three jurors who were
accepted by the government. “If a prosecutor’s proffered
reason for striking a black panelist applies just as well
to an otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful dis-
crimination to be considered at Batson’s third step.” Miller-
El v. Dretke, 545 U.S. 231, 241 (2005); see also United States
v. Stephens, 514 F.3d 703, 711 (7th Cir. 2008) (“Credibility
may also be evaluated by considering the offering
party’s consistency in applying its non-discriminatory
justification.”). The first juror Yarrington identifies
worked as a secretary in a school district and knew
defense counsel as a student in high school, but didn’t
know him well. The second juror said that he recognized
a couple of surnames of possible witnesses, and he had
casual acquaintances from ten or more years back who
had those surnames, but he had no idea if there was
any relationship. In contrast with these jurors, Hudson
actually knew two potential witnesses—she attended
high school with one of them and had worked under
the other. The third juror had a sister serving time in
the department of corrections for forgery, which bears
no similarity to Hudson’s situation. The government’s
reasons for striking Hudson do not likewise apply to
these jurors.
Yarrington has given us no reason to find that the
district court clearly erred in crediting the govern-
ment’s proffered race-neutral reasons for striking Hud-
son. Therefore, his Batson challenge fails.
No. 10-2740 15
B. Summerlin Interview Summary
Yarrington’s second argument is that the district court
abused its discretion in allowing portions of the report
of the September 8 interview of Summerlin to be
read into evidence. The government argues that defense
counsel took portions of the report out of context, and the
court allowed the jury to hear Summerlin’s reported
statements in proper context. It cites the doctrine of
completeness. We review the court’s evidentiary ruling
for an abuse of discretion. See United States v. Lewis,
Nos. 09-3954, 09-3961 & 10-1204, ___ F.3d ___, 2011 WL
1261146, at *9-10 (7th Cir. Apr. 6, 2011).
The doctrine of completeness, codified in Federal Rule
of Evidence 106, is applied to oral statements. Id. at *9.
“Under this doctrine, a complete statement is required
to be read or heard when ‘it is necessary to (1) explain
the admitted portion, (2) place the admitted portion in
context, (3) avoid misleading the trier of fact, or (4) insure
a fair and impartial understanding.’ ” Id. (quoting United
States v. Sweiss, 814 F.2d 1208, 1211-12 (7th Cir. 1987)).
The government argues that defense counsel used one
sentence out of context from the September 8 state-
ment to claim that Wallace was the only person from
whom Summerlin reported purchasing cocaine. The
government asserts that the report clarifies that
Summerlin informed Agent Rollins that he bought
cocaine from both Wallace and Yarrington.
The reading of the portions of the report does not seem
to fit within the rule of completeness. The jury had
already heard that Summerlin stated during his Septem-
16 No. 10-2740
ber 8 interview with Agent Rollins that he purchased
cocaine from both Wallace and Yarrington. Agent Rollins
had testified that in that interview, Summerlin said
that during the early part of his relationship with
Wallace, he purchased cocaine only from Wallace, but in
the later part of the relationship, he purchased from
Wallace and Yarrington. Although Summerlin’s testi-
mony may have been confusing with respect to the
time periods in which he purchased cocaine from
Wallace and Yarrington, the reading of portions of the
report was unnecessary to provide the jury with a
complete view of Summerlin’s statements in the
September 8 interview. The reading of portions of
the report likely served the purpose of rehabilitating
Summerlin.
Even if the district court abused its discretion in
allowing Agent Rollins to read portions of his report,
we would not reverse if the evidentiary mistake was
harmless error. An error is harmless if, “in the mind of the
average juror, the prosecution’s case would have been
‘significantly less persuasive’ had the improper evidence
been excluded.” United States v. Vasquez, 635 F.3d 889, 898
(7th Cir. 2011) (quoting United States v. Emerson, 501
F.3d 804, 813 (7th Cir. 2007)). In other words, an error
is harmless “if it did not have a ‘substantial and
injurious effect or influence on the jury’s verdict.’ ” United
States v. Oros, 578 F.3d 703, 709 (7th Cir. 2009) (quoting
United States v. Tarrett, 133 F.3d 519, 526 (7th Cir. 1998)).
The government bears the burden of proving “that a
reasonable jury would have reached the same verdict
No. 10-2740 17
without the challenged evidence.” Vasquez, 635 F.3d at
898. The government has done so here.
We highlight just some of the evidence. Law enforce-
ment recovered from the apartment Yarrington shared
with his girlfriend several bags containing cocaine,
several empty baggies, a digital scale, Inositol powder
(which is commonly used to cut cocaine), and approxi-
mately $14,000 in cash. A special agent with the Drug
Enforcement Administration testified that all of these
items were consistent with cocaine distribution. The
agent also testified that the amount of cocaine found in
the apartment was not consistent with possession for
personal use but for distribution or sale. The jury
heard that Yarrington had claimed responsibility for
the cocaine. Government witnesses testified that Yar-
rington told them that he stored, cut, weighed, and
packed the cocaine for Wallace in return for money.
The jury heard other testimony pointing to Yarrington’s
guilt, including that he had admitted he had a large sum
of cash in the apartment, some of which was drug
money, and that his fingerprints were found on a bag
of cocaine found in the apartment. Not to mention, the
jury was entitled to credit Summerlin’s testimony that
he bought cocaine from Yarrington and distributed it
to others to sell, despite Summerlin’s difficulty in
recalling dates and quantities. In addition, the court
gave the jury a limiting instruction, telling it that
the portions of the report were read for the purpose of
showing what Agent Rollins recorded in his report of
his interview with Summerlin, not to prove the truth
18 No. 10-2740
of the statements. This limiting instruction “mitigated
whatever unfair prejudice may have existed.” United States
v. Samuels, 521 F.3d 804, 814 (7th Cir. 2008) (quoting
United States v. Lane, 323 F.3d 568, 582 (7th Cir. 2003)).
Given the substantial evidence against Yarrington, the
reading of portions of the report was harmless error.
III. Conclusion
We find no merit in Yarrington’s Batson claim, and the
district court’s decision to allow Agent Rollins to read
into evidence portions of his interview report, even if an
abuse of discretion, was harmless error. We therefore
A FFIRM Yarrington’s conviction and the district court’s
judgment.
5-6-11