United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 8, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 03-41026
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOHN K DAVIS
Defendant - Appellant
___________________
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont
___________________
Before REAVLEY, WIENER, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Defendant-Appellant John K. Davis appeals his conviction for bribery, mail fraud, money
laundering, and conspiracy to commit those offenses. Davis raises four issues on appeal. First, Davis
claims that the district court improperly overruled Davis’s challenges to the government’s allegedly
race-based use of peremptory strikes. Second, he argues that the co urt inappropriately denied his
motion to dismiss the indictment on the basis of the government’s breach of the plea agreement
between Davis and the government. Third, Davis contends that the trial court limited his counsel’s
cross-examination of a government witness with regard to that witness’s plea agreement in violation
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of the Confrontation Clause of the Sixth Amendment. Finally, Davis asserts that the trial court
improperly denied Davis’s motion for mistrial based on the jury’s improper consideration of extrinsic
evidence.
Having reviewed the record and considered the briefs on appeal, we reject Davis’s arguments
and affirm his conviction.
I. BACKGROUND
During Davis’s tenure on the city council for the City of Beaumont, Texas, government
officials began investigating Davis for his alleged receipt of money in return for favorable city council
decisions regarding the regulation of sexually-oriented businesses. During the investigation, the
government obtained evidence that Davis and Mayor David Moore had taken bribes from Terry
Samuel, a building contractor who had performed work for the City.
After being approached by government agents, Davis agreed to cooperate with the
government investigation and signed a plea agreement. Using Davis’s information, the government
obtained a conviction against Samuel. However, after his conviction, Samuel offered government
agents information incriminating Davis in a bribery transaction that Davis had repeatedly denied any
knowledge of. Because Davis had not been honest in the statements he gave the government, the
government deemed him in breach of his plea agreement and indicted him and Mayor Moore.
On November 26, 2002, after a trial, the jury returned a verdict of guilty against Davis and
Moore.
II. DISCUSSION
A. Government’s Peremptory Strikes
During jury selection, the government used peremptory strikes to remove four of the five
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African-Americans on the strike panel. Davis and Moore objected to the government’s strikes,
arguing that they were race-based. After argument by both sides, the district court determined that
the government’s strikes were not race-based and overruled Davis’s objection.
In reviewing the district court’s determination, we must give great deference to the district
court because “findings in this context largely turn on an evaluation of the credibility or demeanor of
the attorney who exercises the [peremptory] challenge.” United States v. Bentley-Smith, 2 F.3d 1368,
1373 (5th Cir. 1993). Thus, we review only for clear error. Id.
The Due Process clause of the Fifth Amendment prohibits the use of peremptory strikes on
the basis of race. Batson v. Kentucky, 476 U.S. 79, 84 (1986); United States v. Montgomery, 210
F.3d 446, 453 (5th Cir. 2000). The party challenging a peremptory strike carries the burden of
persuasion in proving that the strike was purposefully discriminatory. Bentley-Smith, 2 F.3d at 1373.
Federal courts address Batson challenges under a three-step process. First, the claimant must make
a prima facie showing that the peremptory challenges were race-based. Second, if the prima facie
threshold has been met, the burden of production shifts to the party accused of discrimination to
articulate race-neutral reasons for the peremptory strikes. Finally, the trial court must determine
whether the claimant has carried his burden of proving purposeful discrimination. Bentley-Smith, 2
F.3d at 1373; Montgomery, 210 F.3d at 453; United States v. Wallace, 32 F.3d 921, 925 (5th Cir.
1994); see also Batson, 476 U.S. at 96-98.
Here, the district court applied the proper framework to Davis’s Batson challenge. First, the
court heard the defendants’ prima facie challenge to the government’s peremptory strikes. Counsel
for Davis and Moore argued that, in light of the fact that the government had eliminated eighty
percent of the African-Americans on the strike panel and the fact that both Davis and Moore were
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African-American, the strikes were race-based. Second, the court allowed the government to proffer
race-neutral explanations for striking those individuals. The government gave valid race-neutral
reasons for striking all four jurors. Juror 14 had answered one of the questions on the voir dire
questionnaire untruthfully in failing to acknowledge that her son had been convicted of assault. Juror
22 knew both defendants very well. She had attended church with Davis, and her children had gone
to school with Davis. Furthermore, she knew one of the defense witnesses. Juror 52 had grown up
in Moore’s neighborhood and had attended school with Moore’s brother, who was a potential witness
in the case. Juror 43 was a long-time friend of Moore’s and had attended elementary, junior high,
and high school with Moore. Defense counsel rebutted by arguing that other jurors had similar
connections to the defendants or witnesses but were not stricken. However, the court properly found
unpersuasive the defense counsel’s argument that the government’s proffered reasons were
pretextual–each juror stricken could be distinguished from other jurors on the strike panel as having
more meaningful connections to the individuals in the case. Thus, the court rejected the defendants’
objections. Because we find no clear error in that ruling, we uphold it.
B. Davis’s Plea Agreement
Davis contends that the government breached his plea agreement in indicting him and that,
therefore, his indictment should have been dismissed. We reject Davis’s argument.
On November 3, 1999, Davis agreed to cooperate with the government in its investigation
of the bribery scheme in which city officials were accepting payment for favorable ordinances. The
next day, pro secutors executed a “proffer letter” providing that none of Davis’s statements made
pursuant to the proffer agreement would be used against him in any criminal case, but that the
government could pursue any investigative leads suggested by the information provided by Davis.
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The proffer letter specifically provided that the clause allowing investigation of leads provided by
Davis was to “eliminate the necessity for a . . . hearing at which the government would have to prove
that the evidence it would introduce at trial is not tainted by any statements or other information
provided by [Davis] during this ‘off the record’ proffer or discussion.”
Prosecutors debriefed Davis pursuant to his proffer agreement. Davis admitted that he had
accepted money for his assistance on matters relating to the regulation of sexually-oriented
businesses. He also told prosecutors he had delivered $6,000 in cash to Moore at Samuel’s request
so that Moore would speak on behalf of Samuel before the City’s Small Business Revolving Loan
Committee. He did not mention personally receiving any substantial amount of money from Samuel.
On November 5, the government entered into an official plea agreement with Davis. Under
that agreement, Davis agreed to plead guilty to one count of bribery and “provide complete and
truthful information and testimony.” The agreement also provided that failure to do so could render
the agreement unenforceable and result in prosecution and use of Davis’s statements against him.
Finally, the plea agreement stated that it constituted the entire plea agreement, that it superseded any
other agreements, and that no other promises had been made between the defendant and the
government. At the plea hearing, Davis acknowledged that he had read and fully understood all the
terms of the agreement and affirmed that there were no other promises made to him.
During the remainder of the investigation, Davis claimed that he had received no money from
Samuel except for “soda water” money, either for his birthday or other special occasions, in t he
amount of $500 on each occasion, and that he had received insurance commissions on policies taken
out by Samuel.
After obtaining subpoenaed bank records from Samuel’s bank, agents asked Davis about two
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cashier’s checks that Samuel’s bank had issued on Samuel’s behalf shortly after he received a loan
from the Small Business Revolving Loan Committee. One check was written out to Audwin Samuel
for $21,000, and the other to Danny Fowler for $9,000. Despite repeated questioning on several
occasions, Davis denied having any knowledge of the two checks and denied ever receiving any part
of the money. When confronted with evidence of the $21,000 check, Davis speculated that Samuel
sent the money to Audwin Samuel for payment of attorney fees or rent on one of Moore’s buildings.
Davis later denied knowledge of the check before a grand jury and at trial.
After the jury found Samuel guilty, he decided to cooperate with federal agents. He disclosed
that after he had received the loan from the Loan Committee, Davis instructed him to send $30,000
in pay-off money. According to Samuel, Davis instructed him to write out two checks: one for
$21,000 to Audwin Samuel for “attorney’s fees” and another for $9,000 to Danny Fowler for
“contract labor.” Davis asked Samuel to send the checks to Davis’s home, which he did via Lone
Star Overnight Service.
Samuel’s story was confirmed by records subpoenaed from Lone Star Overnight Service and
a fingerprint analysis that showed fingerprints found on each of the checks matched those of Davis.
Audwin Samuel and Danny Fowler, the individuals named on the checks, confirmed that Davis had
asked them to cash the checks on his behalf.
Davis was then indicted for bribery, mail fraud, and other violations of federal law. Davis
moved for dismissal of his indictment, arguing that the government had breached its proffer letter and
plea agreement in indicting him and using his statements against him. However, the district court
found t hat Davis had materially breached the plea agreement, which superseded the proffer letter,
such that the government was not bound by the terms of the agreement.
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We review a claim of breach of a plea agreement de novo, U.S. v. Cantu, 185 F.3d 298, 302
(5th Cir. 1999); U.S. v. Castaneda, 162 F.3d 832, 836 (5th Cir. 1998), accepting the district court’s
factual findings unless clearly erroneous. United States v. Ballis, 28 F.3d 1399, 1409 (5th Cir. 1994).
We must first determine which of Davis’s agreements with the government, the initial proffer
agreement or plea agreement, is the governing agreement. While we have not previously discussed
whether plea agreements supersede proffer letters, we have held that plea agreements are contractual
in nature and are to be construed accordingly. Ballis, 28 F.3d at 1409; see also Hentz v. Hargett, 71
F.3d 1169, 1173 (5th Cir. 1996). Thus, where Davis’s plea agreement plainly provided t hat it
superseded any o ther agreements reached between the parties and where Davis specifically
represented to the trial court that he had entered into the plea agreement willingly, that he fully
understood the terms of the agreement, and that there were no other promises made to him other than
those contained in the plea agreement, it follows that Davis’s plea agreement superseded the proffer
letter. See United States v. Fagge, 101 F.3d 232, 234 (2nd Cir. 1996).
Next, we must determine whether the government breached that plea agreement. Where a
defendant has fulfilled his obligations under the agreement, the government must perform its
reciprocal promise. Castaneda, 162 F.3d 835-36. However, where the government can prove by a
preponderance of the evidence that the defendant materially breached his commitment under the plea
agreement, the government is released from its obligations under the agreement. Id.; Ballis, 28 F.3d
at 1409 (“[I]f a defendant materially breaches his commitments under a plea agreement, the
government is released from its obligations under that compact and may bring a new indictment on
previously dismissed charges, regardless of what it may have promised earlier.”)
A material breach is one that deprives the non-breaching party of the benefit of its bargain.
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Castaneda, 162 F.3d at 837. As a corollary, “if a party’s nonperformance . . . is innocent, does not
thwart the purpose of the bargain, and is wholly dwarfed by that party’s performance, the breaching
party has substantially performed under the contract, and the non-breaching party is not entitled to
rescission.” Id. at 838 (citation and quotation marks omitted).
Davis’s behavior amounted to a material breach of the plea agreement which released the
government from its obligations under the agreement. First, Davis’s failure to give officials
information about the $21,000 and $9,000 checks was not innocent. Even when directly asked about
those checks on several occasions, Davis denied knowing anything about them and even offered
alternative theories about what the checks were for. Second, Davis’s failure to disclose information
about the checks directly contravened the purpose of the plea agreement, which was to investigate
the role of Samuel and others in the bribery scheme. Certainly, information regarding a $30,000 bribe
would be very valuable to the government in its investigation. Third, Davis’s breach is not wholly
dwarfed by the information he provided. The information that Davis did provide severely and
inaccurately reduced his and Samuel’s apparent involvement in illegal bribery transactions.
Finally, the government did not receive the benefit of its bargain. It is true that the
Government did, in the end, obtain a guilty verdict against Samuel, largely due to Davis’s
information. However, the government spent hundreds, and perhaps thousands, of hours in its
investigation which could have been avoided if Davis had admitted to knowing about the checks.
The government did not receive the honest, truthful disclosure of information that it had bargained
for. Thus, we affirm the district court’s denial of Davis’s motion to dismiss the indictment.1
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We note that in United States v. Cantu, 185 F.3d 298 (5th Cir. 1999), we recognized
that the government’s use of self-incriminating information provided by the appellant during
debriefing raised Fifth Amendment concerns. Id. at 303. This case is distinguishable from Cantu.
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C. Limitation of Defense Counsel’s Cross-Examination
Next, Davis argues that during his trial, the district court improperly limited defense counsel’s
cross-examination of Samuel in violation of the Sixth Amendment.
Samuel was cross-examined for two and one-half days, during which time defense counsel
for both defendants vigorously impeached his credibility. As part of its cross-examination, defense
counsel successfully elicited extensive information from Samuel regarding his plea agreement with
the government. Defense counsel was able to ask Samuel whether he was under indictment, what
the indictment was for, and whether dismissal of the indictment in exchange for Samuel’s testimony
at trial was part of a plea agreement. The only question the district court did not allow defense
counsel to ask was whether Samuel felt he was guilty of the charges contained in the indictment that
was the subject of his plea agreement.
We review a trial court’s limitation of the scope of cross-examination for abuse of discretion.
United States v. Gordon, 780 F.2d 1165, 1175 (5th Cir. 1986). See also United States v. Brown, 29
F.3d 953, 957 (5th Cir. 1994); United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993).
A defendant’s right to cross-examine witnesses against him is a constitutional right secured
by the Confrontation Clause of the Sixth Amendment. United States v. Mayer, 556 F.2d 245, 248
(5th Cir. 1977). Accordingly, a judge’s discretionary authority to limit the scope of cross-
In Cantu, the government’s proffer agreement specifically provided that "no statements made or
other information or documents provided by you during the proffer will be used directly or
derivatively against you in any criminal case." Id. at 302. Unlike Cantu, Davis freely and
voluntarily agreed in his plea agreement that failure to provide complete and truthful information
could render the agreement unenforceable and could result in his prosecution and the use of his
statements against him in any proceeding. Thus, he knowingly and voluntarily agreed to the use
of his statements and his prosecution in the event of his breach of the agreement. Accordingly,
we have no Fifth Amendment concerns here.
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examination comes into play only after the defendant has been permitted, as a matter of right,
sufficient cross-examination to satisfy the Sixth Amendment. Restivo, 8 F.3d at 278. The
Confrontation Clause is satisfied where defense counsel has been allowed to expose the jury to facts
from which the jury “could appropriately draw inferences relating to the reliability of the witness.”
Id. at 278. (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). To demonstrate an abuse of
discretion, the defendant must show that the court’s limitation on cross-examination was clearly
prejudicial. Id. at 278. That is, the defendant must show that a reasonable jury might have had a
significantly different impression of the witness’s credibility if defense counsel had been allowed to
pursue the questioning. United States v. Maceo, 947 F.2d 1191, 1200 (5th Cir. 1991).
It is clear that the jury’s impression of Samuel’s credibility would not have been altered had
counsel been allowed to ask whether Samuel thought he was guilty of the charges that would be
dismissed in exchange for his cooperation in prosecuting Davis. The jury was fully aware of the
existence and nature of Samuel’s plea agreement. Furthermore, significant impeachment evidence
was presented during Samuel’s direct and cross-examination, including the fact that Samuel was a
convicted felon testifying in the hope of a sentence reduction. Additional impeachment evidence
showed that Samuel had lied to his lawyer, to the City’s Small Business Revolving Loan Committee,
to friends, to the jury during his prior federal trials, and before a grand jury. Accordingly, we find
no abuse of discretion in the trial court’s limitation of Samuel’s cross examination.
D. Extrinsic Evidence
Finally, Davis argues that the jury in his case was impermissibly tainted by a reporter’s
comment made to a jury member as he exited the courthouse.
The incident on which Davis bases his final argument occurred in November, 2002, after
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Davis’s trial recessed for the evening. As the jurors left the courthouse, a news reporter approached
Mr. Cain, one of the jurors in Davis’s trial, and allegedly asked the juror whether there was going to
be a “deal cut today.” After Cain informed the trial judge about this incident, the judge informed Cain
that there were no deals in the case, t hat each of the defendants had pleaded not guilty, and the
government had the burden of proof in the case. Cain assured the judge that he was not affected one
way or the other by the comment and that he would remain impartial throughout the trial. The
reporter who allegedly made the improper remark claimed to only have said that an imminent
favorable change in the weather was a “good deal.”
Later, the trial court was notified that Cain had told some of the other jurors about the news
reporter’s comment. The judge then called each juror individually into the courtroom and asked each
one whether he or she had heard Cain relate the reporter’s comment and whether that would affect
the juror’s ability to remain impartial in the trial.
Four of the sixteen jurors recalled that Cain had told them that the reporter made a comment
about the weather. Five did not hear Cain mention the comment at all. One juror had heard Cain talk
about the reporter’s remark, but he could not recall what Cain said the reporter’s remark was. Only
six jurors heard Cain say that a news reporter had asked if a deal would be cut that day. All of the
jurors assured the court that they would be able to remain impartial jurors.
In reviewing the district court’s refusal to grant a mistrial based on the introduction of
extrinsic material to the jury, we review only for abuse of discretion, United States v. Ruggiero, 56
F.3d 647, 653 (5th Cir. 1995), and “accord great weight to the trial court’s finding that the [extrinsic]
evidence in no way interfered with any juror’s decision.” Id. (quoting United States v. O’Keefe 722
F.2d 1175, 1179 (5th Cir. 1983).
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While juries are presumed impartial, the introduction of extrinsic evidence into the jury room
requires a court to investigate the asserted impropriety. Id. at 652. See also United States v.
Herring, 568 F.2d 1099, 1105 (5th Cir. 1978) (finding that district court committed error in failing
to hold voir dire examination of jury members to determine extent of exposure and its effect on
jurors’ ability to render an impartial verdict where a front-page news article claiming key government
witness had received death threats was published the day before the defendant was to testify). But
see United States v. Bernard, 299 F.3d 467, 476-77 (5th Cir. 2002) (where an individual approached
jury members and said, “So meone is going to die in that trial today,” a hearing was not necessary
because the passing statement of a crowd member was minimally prejudicial, even if it was intended
to influence the jury).
If there is no reasonable possibility that the jury’s verdict was influenced by the extrinsic
evidence, the trial court may properly deny the defendant a new trial. Ruggiero, 56 F.3d at 652;
United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991). Thus, there is a rebuttable presumption
of prejudice to the defendant, and the government has the burden of proving the harmlessness of the
extrinsic evidence. Ruggiero, 56 F.3d at 652. In assessing whether the extrinsic evidence improperly
influenced the jury, a district court must examine the content of the material, the way in which it was
brought to the jury’s attention, and the weight of the evidence against the defendant. Id.
Here, the trial court investigated the asserted impropriety and determined that there was no
reasonable possibility that the jury’s verdict was influenced by the reporter’s comment. We agree
with the district court’s determination. The weight of the evidence against Davis was substantial.
The jury heard Davis admit he had taken bribes, and this was corroborated by Terry Samuel’s
testimony and additional evidence of specific bribe transactions. Furthermore, the reporter’s
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comment was so vague, that it would be difficult for jury members to infer anything from it. Not only
was it unclear whether the reporter actually said anything about a “deal,” it was unclear to whom and
to what the reporter was referring if he did mention a “deal.” It is not likely that, with the extensive
evidence against Davis, the jury was influenced by the single, vague, and unsolicited comment of a
reporter, especially where only six of the sixteen jurors knew about the comment and where all of
those six jurors stated that they would disregard the comment in their deliberations. Thus, we find
no abuse of discretion in the district court’s denial of Davis’s motion for mistrial.
III. CONCLUSION
Davis’s conviction is AFFIRMED.
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