United States v. Jackson

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 94-10490
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD JACKSON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________

(April 18, 1995)

Before POLITZ, Chief Judge, REAVLEY, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Donald Jackson appeals his convictions for assault with intent

to steal money and property of the United States, and for using and

carrying a firearm during a crime of violence, claiming that,

because new counsel was appointed for him between his first and

second trials, that counsel was entitled, under § 3161(c)(2) of the

Speedy Trial Act, 18 U.S.C. § 3161(c)(2) (generally, trial not to

"commence less than thirty days from the date on which the

defendant first appears through counsel"), to have 30 days to

prepare for the second trial, which instead commenced 12 days after

counsel was appointed, with only seven days notice of the setting,

and despite Jackson seeking a continuance to obtain an expert

witness on eyewitness identification. He contends also that a
peremptory strike was on the basis of economic status, and,

therefore, violated the equal protection component of the Fifth

Amendment's due process clause. We AFFIRM.

I.

On October 15, 1993, at approximately 5:30 p.m., the Mailroom

Express, a contract station of the United States Postal Service in

Dallas, Texas, was robbed at gunpoint. Daryl Sprout, the manager,

testified that the robber leapt over the counter, ordered him to

fill a white plastic bag with money from the cash registers, and

then ordered him to lie on the floor. Sprout told the robber he

should run. Sue Hayes, a customer who walked in during the

robbery, testified that the robber ordered her to the floor and

threatened to kill her.

The robber then jumped back over the counter, and ran out of

the station. Sprout got up, went over the counter, looked out the

door, and saw a man, whom he identified later as Jackson, in the

passenger seat of a car that had just pulled out of a parking space

in front of the station. Sprout noted the license plate number;

and police traced the vehicle to Glenn Brager, Jackson's half-

brother.

Brager testified that, on the day of the robbery, he loaned

his car to Jackson between 4:00 and 4:30 p.m., so that Jackson

could pick up money that was being wired to him at the station;

that Jackson returned with the car shortly thereafter; that, about

an hour later, Jackson asked to borrow the car again; and that,

instead of letting Jackson use his car, he drove Jackson to the

- 2 -
station around 5:00 or 5:30 p.m. Brager testified that, when they

arrived at the Mailroom Express, Jackson got out of the car and

returned a few minutes later. Brager did not see Jackson carrying

a gun, money, or a white plastic bag, and testified that Jackson

did not seem anxious or nervous. (But see note 9, infra,

concerning Jackson then telling Badger about Jackson's

"confrontation" in the station.)

A postal inspector testified that, on October 25 (ten days

after the robbery), Jackson gave a sworn statement in which he

denied committing the robbery and stated that, although he and

Brager went to the Mailroom Express two or three times on October

15 (the day of the robbery), they were at a barber shop from 4:30

until 7:30 p.m.

On October 22 and 28, Sprout and Hayes, respectively, were

shown photographs of six individuals, including Jackson; each

identified Jackson as the robber. And, both identified Jackson in

court. Moreover, each testified that they were positive that

Jackson was the robber: Sprout testified that he had a clear view

of the robber's face on three separate occasions -- (1) when the

robber pointed the gun at him, (2) when he told the robber that he

should run, after putting the money from the cash registers into

the bag, and (3) when the robber was in the getaway car; and Hayes

testified that she got a good look at the robber from a distance of

two and one-half to three feet, and that she would never forget his

face.

- 3 -
 Jackson's first trial ended in a mistrial when the jury was

unable to reach a verdict. The district court granted Jackson's

retained counsel's motion to withdraw; appointed new counsel; set

trial, on seven days notice, to commence 22 days after the first

ended; and denied a continuance.

At his second trial, Jackson was convicted for assault with a

handgun with the intent to steal money and property of the United

States, in violation of 18 U.S.C. § 2114, and for using and

carrying a firearm during the commission of a crime of violence, in

violation of 18 U.S.C. § 924(c).1 Jackson was sentenced, inter

alia, to 322 months imprisonment -- 262 months for assault, 60 for

the firearm count.

II.

Jackson contends that the district court erred by denying his

request for a continuance to allow appointed counsel at least 30

days to prepare for the second trial, pursuant to the Speedy Trial

Act; and by permitting the Government to use a peremptory challenge

to exclude a potential juror on the basis of economic status, in

violation of the equal protection component of the Fifth

Amendment's due process clause.

1
Jackson had been indicted also for assaulting an officer or
employee of the United States while that individual was performing
his official duties, in violation of 18 U.S.C. § 111, but that
charge was dismissed, on the Government's motion, prior to the
first trial.

- 4 -
 A.

Jackson was indicted on November 18, 1993, and made his first

appearance with retained counsel on November 30. Retained counsel

represented him at his first trial, which commenced on February 7,

1994, and ended in a mistrial on February 9. After Jackson's

retained counsel moved to withdraw on February 17, because Jackson

was unable to pay for representation at a second trial, Jackson

moved to proceed in forma pauperis and for appointment of counsel.

On February 18, the magistrate judge appointed the Federal

Public Defender to represent Jackson. And, five days later, on

February 23, the district judge (who presided also at the first

trial) set trial for March 2. On February 25, Jackson moved for a

continuance, based on the need to acquire a parole revocation

hearing transcript, which allegedly contained statements by Sprout

that were favorable to the defense on identification, and to

procure the testimony of an expert witness, Dr. Malpass from El

Paso, Texas, on the reliability of eyewitness identification.2

Jackson did not cite or refer to the Speedy Trial Act.

On March 1 (the day before trial), Jackson filed an amended

motion, seeking a continuance pursuant to the Speedy Trial Act.

Attached to the motion was a letter from Dr. Malpass, in which he

2
In the continuance motion, counsel stated that the Federal
Public Defender's office was appointed to represent Jackson on
Friday, February 18; that he was assigned the case late that
afternoon; and that, because Monday, February 21, was a federal
holiday, he was unable to determine where his client was located
and to begin work on the case until Tuesday, February 22. At
sentencing, Jackson stated to the court that counsel spent only
approximately 45 minutes with him prior to trial; counsel stated
that he met with Jackson "once or twice" before trial.

- 5 -
stated that he was willing to testify for Jackson, but could not do

so on such short notice; and that he could offer information to the

jury that would assist it in overcoming widely held misconceptions

in areas of eyewitness identification, such as cross-racial face

recognition and identification, the effects of the presence of a

weapon, the effects of previous viewing of a face, and the

relationship between a witness' confidence in an identification and

its accuracy. In the alternative, Jackson requested that Dr.

Malpass be subpoenaed. That same day, the court, without ruling on

the continuance, granted the subpoena request.

Jackson's second trial began on March 2. Before jury

selection, his counsel advised the court that he had spoken with

Dr. Malpass and had told him that service of a subpoena would be

attempted; and that Dr. Malpass indicated that he would be unable

and unwilling to give expert testimony because he had not had

sufficient time to prepare. The district court denied Jackson's

continuance motion, stating that mistaken identification was "a

somewhat charitable description of the defense", and that it had

issued the Malpass subpoena "out of an abundance of caution".

1.

Jackson contends that the district court's denial of a

continuance and decision to retry the case on seven days' notice

violated § 3161(c)(2) of the Speedy Trial Act, which provides:

Unless the defendant consents in writing to the
contrary, the trial shall not commence less than
thirty days from the date on which the defendant
first appears through counsel or expressly waives
counsel and elects to proceed pro se.

- 6 -
18 U.S.C. § 3161(c)(2). "The facts underlying a ruling involving

the Speedy Trial Act are reviewed for clear error, and the legal

conclusions of the court are reviewed de novo." United States v.

Storm, 36 F.3d 1289, 1292 (5th Cir. 1994). Although his retained

counsel had more than 30 days to prepare before the first trial,

Jackson, relying on our court's recent decision in Storm, contends

that § 3161(c)(2) entitled him to a new 30-day period after new

counsel was appointed for the second trial.

Jackson's reliance on Storm is misplaced. Storm and a co-

defendant, both represented by the same counsel, first appeared

before the district court on February 12, 1993, at which time trial

was set for March 15, and a hearing for February 19, to determine

whether counsel could represent both defendants. Storm, 36 F.3d at

1292. At the February 19 hearing, the court determined that

counsel could not represent both defendants, and appointed the

Federal Public Defender to represent Storm; Storm appeared that

same day with his new counsel. Id. Our court held that Storm was

tried in violation of § 3161(c)(2), because his first appearance

with counsel was on February 19, less than 30 days before trial

commenced on March 15. Id. at 1293. But, as discussed in part

II.A.2. infra, it held also that Storm was not prejudiced by the

violation. Id. at 1294.

Storm's holding that § 3161(c)(2) was violated is based on the

particular facts and circumstances of that case, which are not

- 7 -
remotely similar to those here.3 As quoted in note 3, supra, our

court noted in Storm that, even assuming Storm's first appearance

with counsel was sufficient to start the § 3161(c)(2) 30-day

period, it would be unconscionable to start the period on the basis

of that representation, because the attorney had continued to

represent Storm after having given the government an affidavit in

which Storm admitted his own involvement in the transactions at

issue and attempted to exculpate his co-defendant, whom counsel

also represented. See id. at 1293-94. As stated, such

circumstances are not present here. Moreover, Jackson, unlike

Storm, was represented by retained counsel at a trial for which he

had more than the 30 days required by § 3161(c)(2) in which to

prepare Jackson's defense. In short, Storm does not stand for the

proposition that § 3161(c)(2) requires a new 30-day trial

preparation period each time a defendant changes counsel.4

3
The court stated in Storm:

Even assuming that the first appearance of the
defendant before the court with an attorney other
than trial counsel is sufficient to start the
running of the 30-day period contemplated in §
3161(c)(2), under the circumstances of this case,
we would not allow Storm's appearance with [the
first] attorney ... to start the clock.

36 F.3d at 1293 (emphasis added).
4
Needless to say, to interpret Storm and § 3161(c)(2) otherwise
would enable a defendant represented by retained counsel to
postpone his trial by dismissing his attorney and retaining new
counsel on the eve of trial. Likewise, a defendant represented by
appointed counsel could refuse to cooperate in an attempt to force
the withdrawal of counsel, so that he could delay his trial. Along
that line, in the context of a superseding indictment, our court
has held that a defendant may not use the Act as a "two-edged
sword" by insisting on a claimed right to have 30 days after the

- 8 -
 As stated, the Act provides for a 30-day period for trial

preparation, measured "from the date on which the defendant first

appears through counsel". 18 U.S.C. § 3161(c)(2). But, it does

not provide for a new 30-day period each time the defendant obtains

different counsel. In United States v. Rojas-Contreras, 474 U.S.

231 (1985), the Supreme Court addressed whether § 3161(c)(2)

requires a new 30-day period after the filing of a superseding

indictment. It stated that the language of § 3161(c)(2) was

"unambiguous" and "clearly fixe[d] the beginning point for the

trial preparation period as the first appearance through counsel".

Accordingly, it held that the 30-day period did not begin anew with

a superseding indictment. Id. at 234. The Court noted that the

Speedy Trial Act gives the district courts broad discretion to

grant continuances when necessary to allow further trial

preparation, pursuant to § 3161(h)(8), which authorizes a

continuance if "the ends of justice served by taking such action

outweigh the best interest of the public and the defendant in a

speedy trial". Id. at 236 (quoting 18 U.S.C. § 3161(h)(8)).

superseding indictment in which counsel may prepare for trial, and
then complaining that the resulting delay violated the Speedy Trial
Act's requirement that a defendant be tried within 70 days of
indictment. See United States v. Eakes, 783 F.2d 499, 503 (5th
Cir.), cert. denied, 477 U.S. 906 (1986); see also United States v.
Bigler, 810 F.2d 1317, 1322 (5th Cir.) (30-day period under §
3161(c)(2) is not excludable from 70-day period), cert. denied, 484
U.S. 842 (1987). Similarly, the Seventh Circuit has held that when
a defendant appears through counsel, his subsequent decision to
proceed pro se does not trigger a new 30-day preparation period,
noting that, "[t]o interpret the statute otherwise would enable a
defendant to postpone his prosecution by deciding on the eve[] of
trial that he wants to dismiss his attorney and represent himself".
United States v. Moya-Gomez, 860 F.2d 706, 741-42 (7th Cir. 1988),
cert. denied, 492 U.S. 908 (1989).

- 9 -
 In sum, we hold that, when a defendant is represented by

counsel who has had at least 30 days in which to prepare for trial,

as Jackson was, § 3161(c)(2) is satisfied; the retention or

appointment of new counsel does not trigger a new 30-day period.5

Obviously, this does not mean that the defendant must be compelled

invariably to go to trial less than 30 days after the retention or

appointment of new counsel. As the Supreme Court pointed out in

Rojas-Contreras, the district court has discretion, under §

5
Our holding is consistent with United States v. Bigler, in
which our court held that, because the Government failed to seek
appointment of counsel in time to permit 30 days for trial
preparation, trial more than 70 days after the defendant withdrew
his guilty plea violated the Speedy Trial Act. Counsel was
appointed to represent Bigler on January 31, 1986. 810 F.2d at
1318. Trial had been set for March 3, but appointed counsel could
not be present then. Id. Upon the district court advising Bigler
that he could either ask for a continuance or accept another court-
appointed lawyer and go to trial on March 3, Bigler opted for the
latter. Id. Accordingly, new counsel was appointed on February 3.
Id. The district court, referring to the Speedy Trial Act, and
noting that trial was scheduled in 28 days, asked Bigler if he
wanted to waive the 30-day requirement, or go to trial on March 5
rather than March 3. Id. Bigler chose March 5, but did not ask
for a continuance to allow 30 days for trial preparation. Id. at
1318-19. Bigler later claimed a violation of the Speedy Trial Act,
because his trial did not commence within 70 days after he withdrew
his guilty plea. Id. at 1319.

Our court held that Bigler's appearance with newly appointed
counsel was a "first appearance with counsel" pursuant to §
3161(c)(2), noting that "[n]ot until then was preparation for his
defense possible in any meaningful manner". Id. at 1322. It
rejected the Government's contention that the 30-day preparation
period was excludable from the 70-day period for going to trial,
stating that "defendants are entitled both to a thirty-day
preparation period and to a trial within the seventy-day time
limitation". Id. at 1322. But, on rehearing, our court stated
that its holding that Bigler's appearance on February 3 was a
"first appearance with counsel" did "not imply that Bigler would be
automatically entitled to a second thirty-day period if his
attorney were to withdraw or be removed from the case". United
States v. Bigler, 817 F.2d 1139, 1141 (5th Cir. 1987).

- 10 -
3161(h)(8), to grant a continuance for trial preparation if it

determines that the ends of justice so require. See Rojas-

Contreras, 474 U.S. at 236.

2.

In the alternative, and as noted, even if we were to assume a

violation of § 3161(c)(2), our inquiry would not end. "[B]ecause

Congress failed to provide a sanction for the violation of §

3161(c)(2), a defendant must show that he was prejudiced by such

violation". Storm, 36 F.3d at 1294.6 Jackson contends that he was

prejudiced because the denial of a continuance deprived him of

6
Jackson contends that prejudice should be presumed where
defense counsel had only seven days notice of trial, and that
giving counsel only seven days to prepare for trial in a case
involving a potential sentence of over 25 years is a per se
violation of Fifth Amendment due process. Because, as detailed
below, neither contention was raised in district court, we apply
plain error review; and, in so doing, we decline to exercise our
discretion to consider the issues for the first time on appeal.
See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)
(en banc), cert. denied, ___ U.S. ___, 115 S. Ct. 1266 (1995). In
his original continuance motion, Jackson asserted the need to
acquire a transcript from his parole revocation hearing, and to
procure the testimony of an expert witness regarding the
reliability of eyewitness identification, but did not cite the
Speedy Trial Act as authority. He did not contend that the
allowance of only seven days to prepare for trial was presumptively
prejudicial or that it would constitute a per se violation of the
due process clause. Nor were these issues raised in the amended
motion, which raised the Speedy Trial Act.

In addition, Jackson asks us to refer this case for en banc
rehearing to consider overruling prior precedent in order to hold
that a violation of § 3161(c)(2) is reversible error per se. If
Jackson desires en banc rehearing, he must follow the requirements
set forth in the Federal Rules of Appellate Procedure and our local
rules. See Fed. R. App. P. 35; 5th Cir. Loc. R. 35.

- 11 -
expert eyewitness identification testimony necessary to establish

a misidentification defense.7

"If a continuance is sought because of the unavailability of

a witness, the movant must show the court that `due diligence has

been exercised to obtain the attendance of the witness, that

substantial favorable evidence would be tendered by the witness,

that the witness is available and willing to testify, and that the

denial of the continuance would materially prejudice the

defendant.'" United States v. Scott, ___ F.3d ___, ___, 1995 WL

121345, at *4 (5th Cir. Mar. 21, 1995) (internal quotation marks

and citations omitted). Moreover, whether to admit expert

testimony on eyewitness reliability "is squarely within the

discretion of the trial judge". United States v. Moore, 786 F.2d

1308, 1312 (5th Cir. 1986).8

Assuming both that the court would have exercised its

discretion to allow Dr. Malpass' testimony, and that the various

requisite factors for a continuance, other than the prejudice

factor, were satisfied, that factor would still be wanting. As

7
In his reply brief, Jackson speculates for the first time
that, if the defense had had time to conduct an investigation
before trial, it might have discovered that the eyewitnesses had a
motive to falsely identify Jackson as the robber, or that Jackson's
half-brother testified against him pursuant to some undisclosed
promise. It is well-settled that, generally, we will not consider
issues raised for the first time in a reply brief. See, e.g.,
United States v. Green, 46 F.3d 461, 465 (5th Cir. 1995).
Accordingly, we decline to address these.
8
There is nothing in the record as to whether Jackson attempted
to locate an eyewitness identification expert in Dallas, or why it
was necessary to retain one from El Paso, over 600 miles away. At
oral argument, counsel stated that he did not know whether such an
expert was available in Dallas.

- 12 -
stated, two witnesses (the store manager and a customer, each of

whom testified that they had a good opportunity to view the robber)

identified Jackson positively and independently from photographic

line-ups containing six photographs each. In light of the

corroboration of the eyewitness identifications by Jackson's own

half-brother, whose testimony placed Jackson at the scene of the

robbery when it occurred,9 and Jackson's sworn statement to

investigators, in which he contradicted his brother's version of

the events on the day of the robbery, it is most improbable, to say

the least, that Dr. Malpass' generalized testimony about the

supposed unreliability of eyewitness identifications would have

established a reasonable doubt as to the identity of the robber.

See United States v. Laury, ___ F.3d ___, ___, 1995 WL 125938, at

*3 (5th Cir. 1995). Accordingly, in the alternative, Jackson has

failed to establish that he was prejudiced materially by the denial

of a continuance.

B.

During jury selection, when four of the six blacks on the

venire were struck peremptorily by the prosecutor, Jackson

objected; and the district court ordered the prosecutor to state

9
For example, Jackson's half-brother testified that Jackson
seemed angry, but not excited, nervous, or afraid, when Jackson got
back into his car after leaving Mailroom Express; Jackson told
Brager he had had a "confrontation" with the person at Mailroom
Express.

- 13 -
the reasons for the strikes. Jackson makes an extension of Batson

challenge as to one of them.10

For the strike in issue, the prosecutor stated both that the

venireman had given him a hostile look when, during voir dire, he

called the court's attention to the fact that the jurors were

seated out of order and asked that the juror change places with the

juror seated next to him, and that the juror was a retired

custodian, and his low income indicated a possible tendency to

sympathize with the defendant, who was unemployed. Jackson

responded that the reference to a hostile look was "nebulous", and

asserted that the Government had discriminated against the

venireman because he was poor. The district court found that the

strike was not racially-motivated, stating that "[w]hether [the

prosecutor's] judgment[] about a hostile look on the part of [the

juror] ... is correct is the sort of intuitive judgment that I

think the courts have to rely on counsel to exercise".

Jackson asks us to extend the reasoning of Batson v. Kentucky,

476 U.S. 79 (1987), and hold that a peremptory strike on the basis

of economic status violates the equal protection component of the

Fifth Amendment's due process clause. He acknowledges that United

States v. Pofahl, 990 F.2d 1456, 1466 (5th Cir.), cert. denied, ___

U.S. ___, 114 S. Ct. 266, 560 (1993), accepted economic status as

a non-racial motivation, but maintains that Pofahl is not

controlling, because he is not contending that the strike was

10
For the three peremptory strikes he does not contest, Jackson
states that the Government "provided adequate race neutral
reasons".

- 14 -
racially-motivated; instead, he claims that a peremptory challenge

based on economic status, without regard to race, violates equal

protection.

We need not reach whether to extend Batson in this fashion.11

As noted, the strike was motivated not only by the venireman's

economic status, but also because of the prosecutor's perception

that he had given him a hostile look. We agree with the district

court that this is the sort of intuitive judgment that courts

generally must rely on counsel to exercise in good faith. Jackson

does not suggest, and the record does not reflect, that the

prosecutor's explanation lacked credibility. See Pofahl, 990 F.2d

at 1466.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

11
Although we do not reach the extension of Batson issue, it is
well to note that, in extending Batson to prohibit gender-based
strikes, the Supreme Court expressly disavowed the implication that
peremptory challenges were being eliminated. J.E.B. v. Alabama ex
rel. T.B., ___ U.S. ___, 114 S. Ct. 1419, 1429 (1994). Moreover,
it is most arguable that extending Batson in the manner urged by
Jackson would go far toward achieving that precise result, and
would "conflict with a State's legitimate interest in using such
challenges in its effort to secure a fair and impartial jury". See
id.

- 15 -