[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 5, 2009
No. 07-11400
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00259-CR-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEON CARMICHAEL, SR.,
a.k.a. Beaver Leon Carmichael,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(March 5, 2009)
Before TJOFLAT and MARCUS, Circuit Judges, and VINSON,* District Judge.
*
Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
TJOFLAT, Circuit Judge:
I.
On November 19, 2003, a Middle District of Alabama grand jury returned a
one-count indictment against Leon Carmichael, Sr. and Freddie Williams charging
them with conspiracy to possess with intent to distribute over 3,000 kilograms of
marijuana.1 A superceding indictment, returned on August 17, 2004, reasserted
this conspiracy charge as Count 1 and added a second count against Carmichael,
charging him with conspiracy to launder the proceeds of the marijuana
conspiracy.2 The defendants pled not guilty to these charges and went to trial
before a jury on June 6, 2005.
The Government, in its case-in-chief, presented several witnesses, including
two drug traffickers, Gary Wayne George and Patrick Denton, who repackaged
and sold marijuana for Carmichael. By the time of his arrest by Drug Enforcement
Administration (“DEA”) agents on November 17, 2003, Denton packaged and
sold between 200 and 500 pounds of marijuana per week and gave the proceeds to
Carmichael.
1
See 21 U.S.C. §§ 841(a)(1) and 846.
2
See 18 U.S.C. § 1956(h). The superceding indictment also contained a forfeiture count
against Carmichael and Williams, in which the United States sought forfeiture of various assets,
real, personal, and intangible. Carmichael does not appeal the district court’s rulings on the
forfeiture count.
2
DEA agents arrested Denton at his home, where they had gone for the
purpose of executing a search warrant. While the agents were executing the
warrant, Carmichael telephoned Denton to say that he was coming over. At that
point, Denton decided to cooperate with the agents. After giving Denton some
instructions, the agents left Denton’s residence to set up a surveillance.
Carmichael arrived shortly thereafter and instructed Denton to go to Williams’s
house to help Williams repackage marijuana. Denton left for Williams’s house,
arriving there after first meeting with the DEA agents, who equipped him with
audio and video devices. Once at Williams’s house, Denton joined Williams in
repackaging marijuana. They worked together until Williams received a phone
call and left. After he departed, the DEA agents entered the residence with a
search warrant and seized 574 pounds of marijuana. Later in the day, the agents
arrested Carmichael and Williams and took them to the DEA headquarters for
processing. When the agents were alone with Williams, they sought his
cooperation. He responded by commenting, “[i]f I name names my children will
be killed.”
The jury found the defendants guilty as charged on June 17, 2005, after
eight days of trial. On March 28, 2007, the district court sentenced Carmichael to
concurrent prison terms of 480 months on Count 1 and 240 months on Count 2, to
3
be followed by a term of supervised release of five years.3 On March 29, 2007,
Carmichael filed a notice of appeal, challenging both of his convictions and his
Count 1 sentence.
In his brief on appeal, Carmichael asks that we reverse his convictions and
grant him a new trial on several grounds. Only one merits extended discussion.
We dispose of the others with brief comment in the margin, along with
Carmichael’s appeal of his Count 1 sentence.4
The ground that merits discussion is the district court’s denial of the motion
Carmichael made on June 6, 2005, immediately prior to jury selection, which
3
The court sentenced Carmichael and subsequently Williams (to a prison term on Count
1 of 70 months to be followed by five years of supervised release) after denying their post-verdict
alternative motions for judgment of acquittal and for a new trial. The delay in the court’s
disposition of these motions was due to the time it took for the court to dispose of the
defendants’ challenges to the summoning and composition of the jury that tried the case.
4
Carmichael argues that the district court “undermined [his] right to a presumption of
innocence and violated Fed. R. Evid. 401, 403, 404(b) and the Fifth and Sixth Amendments.”
The argument focuses on (1) the court’s partial jury sequestration order and the security measures
it imposed in and around the courthouse; (2) the court’s failure to grant a mistrial after learning
that a juror had received a telephone call at 1 a.m. from an unrecognized number; and (3) the
court’s admission of purportedly hearsay statements into evidence. The court acted well within
its discretion in ordering the sequestration and adopting the security measures, in refusing to
grant a mistrial, and in its evidentiary rulings. See, e.g., United States v. Carmichael, 373 F.
Supp. 2d 1293 (M.D. Ala. 2005) (concerning the admissibility of testimony of DEA agent Tom
Halasz). Carmichael appeals his sentence on the ground that the district court erred in its
calculation of his criminal history category under the Sentencing Guidelines by including his
convictions in Alabama state court for murder and distribution of drugs (while in prison) for
which he had been pardoned. Because the pardons were not based on Carmichael’s innocence,
the court properly included them. See United States v. Shazier, 179 F.3d 1317, 1319 (11th Cir.
1999) (citing commentary to U.S.S.G. § 4A1.2(j): convictions pardoned “for reasons unrelated to
innocence” are to be counted in determining defendant’s criminal history category).
4
challenged under the Jury Selection and Service Act of 1968 (“JSSA”), 28 U.S.C.
§§ 1861 et seq., and the Sixth Amendment the validity of the venire that had been
summoned to try the case. The district court deferred ruling on the motion until
the trial was over and, then, only if Carmichael was found guilty. After the jury
returned its verdict, the court referred the motion to a magistrate judge, who held
an evidentiary hearing and issued a report recommending that the district court
deny the motion. The court adopted the magistrate judge’s recommendation, and
in a lengthy opinion and order, rejected Carmichael’s challenges. United States v.
Carmichael, 467 F. Supp. 2d 1282 (M.D. Ala. 2006). We turn now to
Carmichael’s appeal of that order.
II.
In evaluating Carmichael’s appeal, we first discuss the way the Middle
District of Alabama selected juries at the time Carmichael’s case came to trial.
Under the Middle District of Alabama’s jury plan (“the Jury Plan”), every four
years the court’s Jury Administrator5 randomly selected a pool of not less than five
percent of registered voters in each of the Middle District’s twenty-three counties.
This list was known as the Master Jury Wheel. Second, the Jury Administrator
5
The Jury Administrator is an employee of, and supervised by, the district court’s Clerk.
5
randomly selected a percentage of the Master Jury Wheel for a shorter list, known
as the qualified jury wheel (“QJW”). Third, the Jury Administrator mailed
preliminary juror questionnaires to those selected for the QJW. When the
questionnaires were returned, the chief judge or his designee determined whether
each potential juror was qualified, exempt, or excused from service. Under 28
U.S.C. § 1865(b), a person is presumed to be qualified unless he or she fits into
one or more of five enumerated exceptions.6
As need arose, the Jury Administrator used the QJW to randomly select jury
pools of around 200 individuals. He mailed the pool members jury packets and
summonses. Upon receiving summonses, individual pool members could request
to be excused or deferred from service by showing undue hardship or extreme
inconvenience pursuant to 28 U.S.C. § 1866(c).7 Excused jurors were granted an
6
Under both the JSSA and the Middle District’s plan, a person was excepted from jury
duty if he or she: (1) was not a citizen of the United States eighteen years old who had resided for
a period of one year within the judicial district; (2) was unable to read, write, and understand the
English language with a degree of proficiency sufficient to fill out satisfactorily the juror
qualification form; (3) was unable to speak the English language; (4) was incapable, by reason of
mental or physical infirmity, to render satisfactory jury service; or (5) had a charge pending
against him for the commission of, or had been convicted in a State or Federal court of record of,
a crime punishable by imprisonment for more than one year and his civil rights had not been
restored. The jury plan also excepted others pursuant to 28 U.S.C. § 1863(b)(6).
7
Based on undisputed evidence, the magistrate judge found, and the district court
accepted, that “there [were] no written guidelines or criteria for determining undue hardship or
extreme inconvenience; the Jury Administrator d[id] not look at the requesting juror’s history file
to determine how many deferments ha[d] previously been obtained; and almost all requests
[were] granted.” Carmichael, 467 F. Supp. 2d at 1292.
6
excusal for two years, at which time they were re-added to the QJW. Deferred
jurors were removed from the summons list and placed into a deferred
maintenance pool, separate from the QJW. Those jurors not excused or deferred
were randomly placed on jury panels, which were provided to attorneys before
jury selection.
Prior to a successful jury challenge in 2001, in United States v. Clay, 159 F.
Supp. 2d 1357 (M.D. Ala. 2001), the Jury Administrator granted almost all
requests for deferral of jury service. The Jury Administrator then placed deferred
jurors into a deferred maintenance pool and re-summoned them as soon as their
deferrals expired. In this manner, deferred jurors were added to the summons list
along with those randomly selected from the QJW. Because white jurors
requested deferral approximately twice as often as black jurors, jurors in the
deferred jury pool were disproportionately white. The total pool of summoned
jurors was therefore disproportionately white as well. The Jury Administrator
heightened this effect by placing previously deferred jurors at the top of the
summons list, thereby increasing the likelihood that these jurors would be
included in the venire. In Clay, the district court held that this arrangement
violated the JSSA. Clay, 159 F. Supp. 2d at 1370. After Clay, the Middle District
amended its plan to limit the percentage of previously deferred jurors summoned
7
to any given pool to 15% and to require that previously deferred jurors be
scattered randomly throughout the summons list.
In 2001, the Middle District created a new jury wheel. The Jury
Administrator randomly selected a group of 99,604 voters for the Master Jury
Wheel. The Jury Administrator then randomly selected 25,000 names from the
Master Jury Wheel and mailed these jurors questionnaires. Those who were
determined to be qualified made up the QJW, which was supplemented several
times through additional mailings over the next four years. In 2001, African
Americans constituted 20.74% of the QJW, despite the fact that they constituted
30.47% of the Middle District’s population.
As he summoned pools from the 2001 QJW, the Jury Administrator
continued to grant almost all deferral requests, placing deferred jurors into the
deferred maintenance pool. Pursuant to the post-Clay plan, the Jury Administrator
was limited to re-summoning 15% or less of the jurors for each pool from the
deferred maintenance pool, even if this meant that jurors whose deferrals had
expired were not summoned. A new Jury Administrator, who took office in March
2005, accidentally violated this 15% limit in four of the last five jury pools drawn
from the 2001 four-year cycle. One of these pools was the pool drawn for
Carmichael’s trial; because of the Jury Administrator’s mistake, 24.5% of that
8
pool was drawn from the deferred maintenance pool.
Furthermore, because of a technical glitch, on five occasions throughout the
life of the 2001 QJW, the Jury Administrator accidentally transferred persons from
the deferred maintenance pool back onto the QJW, from which they could be
summoned without regard to the 15% limit. In total, the Jury Administrator
accidentally transferred 1,093 deferred jurors onto the QJW, 460 of whom were
ultimately chosen for jury service. Seven previously deferred jurors who were
accidentally transferred from the deferred maintenance pool to the QJW were
chosen for the pool drawn for Carmichael’s trial.
As a result of these combined errors, the percentage of previously deferred
jurors drawn for Carmichael’s pool was 26.67%, 11.67% above the 15% limit.
African Americans made up 16% of Carmichael’s jury pool.
III.
Carmichael challenged the venire summoned to hear his case under the
JSSA and under the fair cross-section requirement of the Sixth Amendment. We
review the district court’s resolution of each of these issues in turn.
A.
The JSSA provides that “all litigants in Federal courts entitled to trial by
jury shall have the right to grand and petit juries selected at random from a fair
9
cross-section of the community in the district or division wherein the court
convenes.” 28 U.S.C. § 1861. By its terms, the JSSA provides remedies only for
a “substantial failure to comply” with its requirements. 28 U.S.C. § 1867(d). A
JSSA violation is considered “substantial” when it frustrates one of the three
principles underlying the Act: (1) random selection of juror names; (2) from a fair
cross-section of the community; and (3) use of objective criteria for determination
of disqualifications, excuses, exemptions, and exclusions. United States v.
Gregory, 730 F.2d 692, 699 (11th Cir. 1984). The three JSSA principles seek the
same goal of preventing impermissible discrimination in the selection process.
“[M]ere technical deviations from the Act” that do not implicate this goal, even a
number of them, are insufficient to warrant relief. Clay, 159 F. Supp. 2d at 1365.
In United States v. Bearden, 659 F.2d 590 (5th Cir. Unit B 1981), for example,
there were admittedly multiple technical errors in the jury selection process.
However, in that case, we found no substantial violation of the JSSA, stating that,
[i]n sorting out the details of statutory procedures, there is perhaps a
tendency to lose sight of the fundamental purpose of the law. The purpose
of the Act is to prevent discrimination, whether it be on account of “race,
color, religion, sex, national origin, or economic status.” 28 U.S.C.A. s
1862. Where the procedural errors made by those in charge of selecting
juries do not raise the possibility of frustrating this goal, a court should be
hesitant to order the drastic remedy of the dismissal of indictments.
Id. at 609.
10
With that said, we flesh out each of the three general principles. The
randomness principle does not require statistical randomness but rather requires a
“system of selection that affords no room for impermissible discrimination against
individuals or groups.” Id. at 602 (citing S. Rep. No. 891, at 16 n.9, 90th Cong.,
1st Sess. (1967)). The objectivity principle prohibits selection based on subjective
“criteria . . . which, intentionally or not, result or are likely to result in
discrimination, or which fail to produce juries representing a fair cross section of
the community.” Bearden, 659 F.2d at 608. The types of subjective criteria that
are prohibited are, for example, “good character, approved integrity, sound
judgment and fair education. The problem recognized with their use [is] that ‘(i)n
at least some instances, even though the jury selection officials were well
intentioned, these additional qualification requirements have produced
discriminatory results, especially in relation to the poor and other minorities.’” Id.
(citing H.R. Rep. No. 1076, 90th Cong., 2d Sess. (1968)). The fair cross-section
principle is identical to that required by the Sixth Amendment. United States v.
Rodriguez, 776 F.2d 1509, 1510 n.1 (11th Cir. 1985) (“The standard for
determining a violation of the statutory fair cross-section requirement is the same
as that applied in assessing a sixth amendment fair cross-section violation.”). We
therefore discuss it in subpart B, infra, which addresses Carmichael’s Sixth
11
Amendment claim.
In his pretrial motion, Carmichael alleged a number of JSSA violations.
First, he noted that even after Clay, the Jury Administrator continued to grant
virtually all of the deferral requests, which resulted in a disproportionately white
deferred maintenance pool. Furthermore, the new jury administrator violated the
15% limit in two ways: by mistakenly transferring jurors from the deferred
maintenance pool to the QJW and by exceeding the percentage chosen from the
deferred maintenance pool itself. The district court agreed with Carmichael’s
factual allegations but held that those allegations did not constitute a substantial
violation of the JSSA. We agree.
We first examine the Jury Administrator’s policy of granting virtually all of
the deferral requests. It is true that the policy came close to allowing jurors to opt
in or out of service, thereby introducing a “non-random element” to jury service.
However, “[t]here is no evidence that, by itself, [the policy] caused juries to
consist of something other than a fair cross-section of the community, or that it
provided opportunity to discriminate against any cognizable group or any
individuals in the selection process.” Clay, 159 F. Supp. 2d at 1368. “Indeed, the
Jury Administrator’s policy of granting almost all deferrals [was] almost
definitionally objective, in that it [did] not favor one applicant over any other.”
12
Carmichael, 467 F. Supp. 2d at 1294. “[I]nsisting upon a more rigorous review of
deferral requests has the potential, paradoxically, to undermine objectivity in
granting those requests.” Id. at 1295. We therefore hold that this policy, standing
alone, did not amount to a substantial violation of the JSSA. See Clay, 159 F.
Supp. 2d at 1368 (holding the same).
We next look to the Jury Administrator’s violation of the 15% limit in
formulating Carmichael’s pool. The Jury Administrator violated the limit by
moving jurors from the deferred maintenance pool to the QJW and by exceeding
the percentage chosen from the deferred maintenance pool itself. We consider
this violation as especially serious given that in using this selection method, “the
jury administrator would not need to know the race of any of the individual jurors
on the summons list or in the [deferred maintenance pool] to . . . discriminate.” Id.
Just as in Clay, “[i]t would be enough to notice that [white] jurors requested
deferrals of service disproportionately.” Id.
Unlike in Clay, however, the Jury Administrator in this case did not give
previously deferred jurors a preferential position for inclusion in the venire by
placing them together at the top of the summons list. As the district court noted,
“the jury administrator could not control whether any given juror – previously
deferred or not – would ultimately be placed on the summons list in a position that
13
would ensure that juror’s inclusion in the venire.” Carmichael, 467 F. Supp. 2d at
1304. We also note that in this case, the Jury Administrator selected previously
deferred jurors without regard to race and using only participant numbers.
Ultimately, the jurors who exceeded the 15% limit were selected randomly by the
jury selection software, not manually by the Jury Administrator. We therefore
hold that although the Jury Administrator technically violated the jury plan and the
JSSA, the violation did not frustrate the JSSA’s overriding purpose of preventing
discrimination and was not sufficiently substantial to give rise to a remedy.
Carmichael also argues that the Jury Administrator’s policy of granting two
rather than one-year excusals in violation of the Jury Plan constituted a substantial
violation of the JSSA. He contends that, under this policy, deferred jurors became
eligible for service more quickly than excused jurors and that this resulted in a
larger number of disproportionately white previously deferred jurors being
included on the summons list. This policy, however, did not frustrate the
randomness principle because the prospective jurors, including those excused for
two years, were still selected at random from a group of names without regard for
race. It did not affect the objectivity principle because it did not affect on the
method used to select jurors. See Bearden, 659 F.2d at 608 (noting that the
objectivity principle prohibits the use of subjective criteria in the selection of
14
jurors). We accordingly hold that the policy was not a substantial violation of the
JSSA.
Carmichael also alleged in his motion that the Jury Plan violated §
1863(b)(2) by failing to require districts to supplement voter lists, even when the
voter lists failed to produce a fair cross section. Here, the voter list used to create
the 2001 MJW was 20.74% African-American in a community that was 30.466%
African-American. Section 1863(b)(2) provides that jury plans “shall prescribe
some other source or sources of names in addition to voter lists where necessary to
foster the policy and protect the rights secured by sections 1861 and 1862 of this
title.” This vague language, however, does not necessarily require that voter lists
be supplemented when they over- or under-represent certain groups. In fact, “[t]he
circuits are ‘in complete agreement that neither the Act nor the Constitution
require that a supplemental source of names be added to voter lists simply because
an identifiable group votes in a proportion lower than the rest of the population.’”
United States v. Orange, 447 F.3d 792, 800 (10th Cir. 2006) (citing United States
v. Test, 550 F.2d 577, 586 n. 8 (10th Cir. 1976) (collecting cases) (internal
quotations omitted)).
Finally, Carmichael complained that the Jury Administrator did not do
enough to follow up on jury questionnaires that were returned due to out-of-date
15
mailing addresses, and that this caused a drop in the percentage of African
Americans in his jury pool. Admittedly, the Jury Administrator did not have any
routine practice for securing updated addresses or for following up on
questionnaires returned as undeliverable. Neither the JSSA nor the Jury Plan,
however, required the Jury Administrator to affirmatively pursue undelivered
questionnaires. Given this lack of authority, we decline to find a violation, let
alone a substantial violation, of the JSSA.
B.
Carmichael alleged that the composition of his jury pool failed to satisfy the
Sixth Amendment’s fair cross-section requirement. “In order to establish a prima
facie violation of the fair cross-section requirement, the defendant must show (1)
that the group alleged to be excluded is a ‘distinctive’ group in the community; (2)
that the representation of this group in venires from which juries are selected is not
fair and reasonable in relation to the number of such persons in the community;
and (3) that this underrepresentation is due to systematic exclusion of the group in
the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664,
668, 58 L. Ed. 2d 579 (1979). There is no question here that Carmichael
established the first prong of the Duren test – African Americans represent a
distinctive group in the community. We hold that Carmichael failed to establish
16
the second prong of the Duren test, that the representation of African Americans
was not fair and reasonable. We therefore decline to address the third prong of
systematic exclusion.
To analyze whether African Americans were fairly and reasonably
represented in the jury pool, we compare the difference between the percentage of
African Americans in the population eligible for jury service and the percentage of
African Americans in the pool. See United States v. Pepe, 747 F.2d 632, 649
(11th Cir. 1984). Under black letter Eleventh Circuit precedent, “[i]f the absolute
disparity between these two percentages is ten percent or less, the second element
is not satisfied[,]” United States v. Grisham, 63 F.3d 1074, 1078–79 (11th Cir.
1995), and Carmichael failed to meet his burden of establishing that the
representation of African Americans was not fair and reasonable.
Here, the percentage of African Americans eligible for jury service is in
dispute. Carmichael claims that this percentage is 30.466%, the percentage of
adults residing in the Middle District that were African American, according to the
2000 census. The United States disagrees, arguing that the relevant percentage
should be the percentage of African Americans registered to vote in the Middle
District. According to the United States, voter registration data is a better measure
of jury eligibility because it, unlike census data, automatically excludes persons
17
who would otherwise be ineligible to serve on a jury, including felons, criminal
defendants, and otherwise ineligible persons. Although the record does not reveal
the exact percentage of African Americans registered to vote in the Middle
District, this percentage was probably close to the 20.74% of African Americans
on the QJW, since the QJW was drawn randomly directly from the voter rolls.
In actuality, the percentage of African Americans eligible for jury service in
the Middle District was probably somewhere between 20.74% and 30.466%.
Because the record does not provide the information necessary to calculate the
exact number, and because we ultimately hold that whatever figure we use,
Carmichael falls short of the 10% threshold, we accept Carmichael’s position for
the sake of argument.
The percentage of the distinct group of the population in the appropriately
challenged portion of the jury selection process was, in this case, the percentage of
African Americans summoned from the 2001 wheel. Assuming that the
percentage of African Americans eligible for jury service in the Middle District
was 30.466%, Carmichael had the burden of showing that the percentage of
African Americans summoned from the 2001 wheel was less than 20.466%, or in
other words, that the number of African American jurors summoned divided by the
total number of jurors summoned was less than 20.466%. Given that the total
18
number of jurors summoned was 13,097, Carmichael’s burden was to establish
that fewer than 2,680 of the summoned jurors were African American.
Carmichael argues that he met this burden because only 2,615 summoned
jurors self-identified themselves as African American. As the district court noted,
however, this argument ignores the 546 jurors who did not identify their race, and
in effect assumes that none of these 546 jurors were African American. Given that
the percentage of African Americans on the Middle District’s voter rolls is
20.466%, it is likely that at least 66 of these 546 non-identifiers were African
American.
We need not, however, speculate on the matter. Under the Duren test,
Carmichael had the burden of showing lack of fair and reasonable representation.
It was therefore up to him to show that fewer than 66 of those who refused to
identify their race were African American. Carmichael failed to do so. His fair
cross-section claims under the JSSA and the Sixth Amendment thus failed.
IV.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
19