00-1593(L)
& 00-1696(CON)
United States Court of Appeals
for the
Second Circuit
UNITED STATES OF AMERICA,
Appellee,
v.
KARZEKEL THOMAS; JUSTIS BOSH, a/k/a Jeffrey A. Bosch;
DESMOND BURNS; CARVIN LOUSSAINT; KHASIM MARCELLE,
Defendants,
JAMES L. JOHNSON; OZEM THOMAS,
Defendant-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
BRIEF AND APPENDIX ON APPEAL OF
DEFENDANT-APPELLANT OZEM THOMAS
RICHARD WARE LEVITT
148 East 78th Street
New York, New York 10021
(212) 737-0400
Attorneys for Ozem Thomas
Certificate of Compliance
I, Richard Ware Levitt, hereby certify that the foregoing Brief on
Appeal of Appellant is in compliance with F.R.A.P. 32 and with the local
rule of the Second Circuit. The brief was printed in 14-point proportional
font and, including footnotes and headings, contains 8,534 words.
________________________
RICHARD WARE LEVITT
Dated:
February 1, 2001
New York, NY
i
Table of Contents
Certificate of Compliance ..................................................................................... i
Table of Authorities .............................................................................................. v
Preliminary Statement............................................................................................ 1
Statement of Subject Matter and Appellate Jurisdiction ....................................... 1
Statement of Issues Presented for Review ............................................................. 1
Statement of the Case ............................................................................................ 2
A. Jury Selection ........................................................................................ 4
B. The Government’s Case......................................................................... 5
i. Robbery of Fast Car Sales ............................................................. 5
ii. Attempted Robbery of Blue & White Auto Sales ........................ 7
iii. Robbery of Gambling Location .................................................. 8
iv. Robbery of New Clarkson Deli .................................................. 9
C. Verdict.................................................................................................... 10
D. Post Trial Proceedings ........................................................................... 10
E. Sentence ................................................................................................. 11
Argument Summary ............................................................................................... 11
ii
Argument
Point I
THOMAS SHOULD BE GRANTED A NEW TRIAL
BECAUSE THE MAGISTRATE JUDGE ERRONEOUSLY
DENIED HIS BATSON CHALLENGES WITHOUT
UNDERTAKING THE REQUIRED ANALYSIS OF
WHETHER THE GOVERNMENT’S RATIONALES FOR
THE CHALLENGED STRIKES WERE CREDIBLE ............................... 13
Facts .................................................................................................. 14
Argument ........................................................................................... 18
A. The Peremptory Strikes of Emma Franklin and Dorothy
Campbell Carried a Pretext of Discrimination ........................... 19
1. Emma Franklin ....................................................................... 19
2. Dorothy Campbell .................................................................. 22
B. The Court Erroneously Denied Both Batson Challenges
Without Making the Requisite Credibility Findings ................. 23
C. The Government’s Post-Hoc Arguments ................................... 26
D. The District Court Erred When It Found That
Appellant Waived His Batson Challenge By
Not Repeating It To the District Court ...................................... 27
Conclusion......................................................................................... 30
iii
Point II
THE EVIDENCE FAILED TO ESTABLISH THAT
THE ROBBERY OF “FAST CARS” AFFECTED
INTERSTATE COMMERCE, AS ONLY PERSONAL
PROPERTY OF THE PROPRIETOR WAS TAKEN;
BECAUSE THE EVIDENCE WAS NOT SUFFICIENT,
COUNTS TWO AND THREE SHOULD BE DISMISSED ...................... 31
Point III
THE EVIDENCE FAILED TO ESTABLISH THAT
THE ROBBERY OF THE GAMBLING LOCATION
AFFECTED INTERSTATE COMMERCE................................................ 36
Point IV
THE EVIDENCE FAILED TO ESTABLISH, UNDER
COUNT SEVEN OF THE INDICTMENT, THAT MR.
THOMAS TRANSFERRED A HANDGUN TO ANOTHER
KNOWING THAT SUCH PERSON WAS A JUVENILE ........................ 37
Point V
MR. THOMAS ADOPTS THE ISSUES RAISED
BY HIS CODEFENDANT ADDRESSING
ISSUES OTHER THAN SENTENCE ........................................................ 39
Conclusion ............................................................................................................. 40
Appendix ................................................................................................................ A.1-A.69
Certificate of Service
iv
Table of Authorities
Cases
Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246 (1991) ................................... 23
Barnes v. Anderson, 202 F.3d 150 (2d Cir. 1999) ...................................... 13, 23, 24, 25
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) .......................... 1, 10, 11, 12,
13, 15, 16, 17,
18, 19, 20, 21,
23, 24, 25, 27,
28, 29
DeLeon v. Strack, 234 F.3d 84 (2d Cir. December 6, 2000) .................................. 14, 28
Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859 (1991) ................................. 18
Jones v. United States, 120 S. Ct. 1904 (2000) ............................................................ 33
Perez v. United States, 501 U.S. 923 (1991) ................................................................ 27
Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769 (1995).......................................... 18, 19
Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.
1993) ........................................................................................................................ 28
Thomas v. Arn, 474 U.S. 140 (1985)............................................................................ 28
United States v. Alvarado, 923 F.2d 253 (2d Cir. 1991) .............................................. 25
United States v. Alvarado, 951 F.2d 22 (2d Cir. 1991) ................................................ 26
United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990) .................................................. 30
United States v. Collins, 40 F.3d 95 (5th Cir. 1994) ........................................ 33, 35, 36
United States v. Harris, 192 F.3d 580 (6th Cir. 1999) ............................................ 23, 24
United States v. McFerron, 163 F.3d 952 (6th Cir. 1998) ............................................ 24
v
United States v. Olano, 507 U.S. 725 (1993) ............................................................... 28
United States v. Taylor, 92 F.3d 1313 (2d Cir. 1996) ...................................... 23, 27, 30
Yarkus v. United States, 321 U.S. 414 (1944) .............................................................. 28
Statutes and Other Authorities
18 U.S.C. § 922 ............................................................................................................. 37
18 U.S.C. § 924(c) .................................................................................................. 31, 35
28 U.S.C. § 1291 ............................................................................................................. 1
18 U.S.C. § 1951 ..................................................................................................... 31, 32
18 U.S.C. § 3231 ............................................................................................................. 1
Fed.R.Crim.P. 29........................................................................................................... 10
vi
Preliminary Statement
Ozem Thomas appeals from a judgment of conviction entered on
October 6, 2000, in the United States District Court for the Eastern District
of New York following a jury trial before the Honorable Edward R. Korman
(C.J.) in which he was found guilty of Hobbs Act robberies and related
crimes. Thomas was sentenced, principally, to a total term of 510 months
imprisonment and is presently incarcerated.
Statement of Subject Matter and Appellate Jurisdiction
This is an appeal from a final judgment of the United States District
Court for the Eastern District of New York, which had jurisdiction pursuant
to 18 U.S.C. § 3231. Judgment was entered October 12, 2000 (A. 65) and a
timely Notice of Appeal was filed on October 12, 2000 (A. 69). This Court
has jurisdiction pursuant to 28 U.S.C. § 1291.
Statement of Issues Presented for Review
1.
Whether a new trial should be granted where the magistrate judge
denied Appellant’s Batson challenge without questioning the credibility of
the government’s reasons for the challenged strikes?
2.
Whether the evidence was sufficient under Count Two to establish
that Appellant’s conduct affected interstate commerce, where the evidence
1
showed that only personal property was taken from the victim, inside a used
car dealership in Brooklyn?
3.
Whether the evidence was sufficient under Count Eight to establish
that Appellant’s conduct affected interstate commerce, where the property
was taken either in a street robbery or from a gambling location, either
location not involved in interstate commerce?
4.
Whether the evidence presented was sufficient to establish that
Appellant transferred a handgun to a person he had reasonable cause to
believe was a juvenile?
Statement of the Case
Appellant Ozem Thomas appeals from a final judgment of the District
Court for the Eastern District of New York (Korman, Chief Judge) following
his conviction of all thirteen counts of Superseding Indictment No. 98 Cr.
860, charging Hobbs Act robberies and related crimes. His codefendant,
James Johnson, was also convicted. Thomas was sentenced principally to a
total term of imprisonment of 510 months, calculated as follows:
Counts
Counts 1,2,5,9
Count 3
Count 6
Counts 4,7,8,12,13
Count 11
Total sentence
Consecutive Sentences
210 months
60 months
240 months
Concurrent Sentences
120 months
210 months
--
510 months
2
The government charged Mr. Thomas with recruiting various
participants to carry out several Hobbs Act robberies as part of a temporally
brief conspiracy between December 1997 and February 1998, one of which
robberies resulted in the shooting death of a storeowner who chased the
fleeing thieves. According to the government, Mr. Thomas, with the help of
his uncles, ran their operation out of the Congregation House of Israel,
which belonged to the Thomas family.1 Thomas allegedly provided the
firearms and the orders to his recruits to carry out the robberies.
No
evidence suggested that Thomas himself committed the robberies. Instead,
government cooperators testified that Thomas either was not present during
the robberies, or acted as either lookout or getaway driver.
The direct evidence at trial against Mr. Thomas came principally from
the testimony of alleged co-conspirators (Khasim Marcelle, Desmond Burns
and Justis Bosch) and others who testified pursuant to cooperation
agreements (Marcelle: Tr. 101-103; Burns: Tr. 449-450; Bosch: Tr. 536538).2 These and other witnesses (Kevin Bell, Besner Oliver and Ainsworth
Reynolds) brought substantial baggage with them to the witness stand and
The government’s evidence regarding “the temple”, however in fact
referred to Appellant’s uncle Yoel’s apartment located above and separate
from the temple (Tr. 128 passim).
2
References to the trial transcript are preceded by “Tr.” References to
jury selection are preceded by “JS.”
1
3
were properly deemed by the district judge to be “highly impeachable” (Tr.
799, 862, 1021).
Several had recanted earlier statements, most had
cooperation agreements, some were immunized and most had one or more
previous convictions for serious crimes.
The issues raised in this appeal concern the denial of two Batson
motions made by defense counsel during jury selection, as well as the
sufficiency of the evidence regarding particular counts.
The factual
summary below will stress the proceedings relevant to these issues.
Additionally, because the scope of this appeal is limited we do not address
the testimony regarding various unindicted crimes that also was admitted.
A.
Jury Selection
The facts relevant to the Batson issue are addressed in detail in Point
I, post. In brief, jury selection was conducted October 12, 1999 before
Magistrate Judge A. Simon Chrein. The government challenged a person of
color (Latino) in its first round (JS. 89, A. 36a), an African American in its
second round (JS. 97, A. 36b); it waived its third and fourth rounds; it struck
an African-American in the fifth round (JS. 120, A. 39), it struck two
African Americans in its sixth round (JS. 176-177, A. 54-55), and a
Caucasian in its seventh and final round (JS. 178, A. 56). During this
process, two Batson challenges were made by the defense regarding two of
4
these challenges. They were rejected by Magistrate Judge Chrein. The
magistrate judge, however, failed to rule upon the sincerity of the
government’s asserted non-racial reasons for its strikes and, as to one of the
struck jurors, said he could not in fact do so.
B.
The Government’s Case
The government charged Appellant with committing, inter alia, three
Hobbs Act robberies and one attempted robbery, occurring at (1) “Fast Car
Sales” (Counts Two-Four, December 9, 1997); “Blue and White Auto Sales”
attempt (Counts Five-Seven, January 1998); an unnamed gambling spot
(Count Eight, February 5, 1998); and the “New Clarkson Luncheonette,”
(Counts Nine-Twelve, February 12, 1998). We address in Points II and III
the failure of the government to prove that the robberies at Fast Cars and the
Gambling location affected interstate commerce, as money was taken only
from persons located at the premises; no property or money of the business
was removed, let alone of a business involved in interstate commerce. We
address in count IV the lack of evidence establishing Appellant’s knowledge
that persons to whom he gave firearms were juveniles.
i. Robbery of Fast Car Sales -- Government witnesses Justis
Bosch (Appellant’s cousin) and Desmond Burns (Appellant’s former
roommate), together with Karzekiel Thomas (Appellant’s uncle), were
5
arrested for the Fast Car Sales robbery shortly after its occurrence on
December 9, 1997. According to Burns and Bosch, Karzekiel Thomas had
first planned the robbery of an auto-parts store with Bosch, Burns and
Appellant the day before the Fast Cars robbery, but this idea was eventually
abandoned because the store was too crowded (Burns: Tr. 464-469; Bosch:
Tr. 543-549). The following day, December 9, 1997, Appellant, Burns and
Bosch met up with Karzekiel Thomas, and the group eventually made their
way to the Linden Houses apartments in East New York (Burns: Tr. 470471; Bosch: Tr. 551-552, 606-607), where Karzekiel recouped two handguns
for Burns and Bosch (Burns: Tr. 472-476; Bosch: Tr. 552-553). The four set
out again to rob the auto-parts store, but abandoned the idea as unworkable
(Burns: Tr. 476-477; Bosch: Tr. 553-555). Instead, Appellant and his uncle
discussed robbing Fast Cars Sales, a car dealership Karzekiel (or his friend)
had robbed previously (Burns: Tr. 478-479; Bosch: Tr. 555, 604). After
Karzekiel explained the layout of the dealership, he drove the other three to
the Fast Cars lot in his red Grand Am (Burns: Tr. 479). Bosch testified that
Appellant was to stand as lookout for Burns and him (Tr. 556). Burns and
Bosch went into the trailer-offices, drew their guns, and announced the
robbery. After hitting one of the salesmen (Michael Akva) in the head with
his gun, Burns took the man’s jewelry, wallet and $200 cash from his
6
pockets (Akva: Tr. 67-68; Burns: Tr. 481-482, 488). Bosch stole $2000
from two different men inside the offices, one of whom was a car salesman
(Tr. 557-559). After some commotion, Karzekiel Thomas drove Burns and
Bosch back to the location of Yoel’s apartment above the temple, which they
soon left, intending to meet up with Appellant in East New York (Burns: Tr.
487-490; Bosch: Tr. 560-564). A patrolman arrested Karzekiel Thomas,
Burns and Bosch, however, after he recognized the red Grand Am in which
the three were traveling (Burns: Tr. 490-493; Bosch: Tr. 565-567).
ii. Attempted Robbery of Blue & White Auto Sales -- Kevin
Bell, Besner Oliver, and Ainsworth Reynolds testified that Appellant drove
them to a housing development in East New York, where he or his cousin
gave them weapons (Bell: Tr. 405-407; Reynolds: Tr. 757-760; Oliver: Tr.
840-842). Appellant then drove them to the location of Blue & White Auto
Sales, where the three got out of the car and approached the location. They
changed their minds, however, believing “we shouldn’t do this… we’re
gonna get in trouble,” and therefore returned the guns to Thomas (Bell: Tr.
409-413; Reynolds: Tr. 761-766; Oliver: Tr. 843-846).
Appellant was also charged, in Count Seven, with transferring a
handgun to a juvenile, Besner Oliver, as part of the Blue and White Auto
7
sales robbery attempt (Count Five).3
iii. Robbery of Gambling Location -- Kashim Marcelle gave
extensive testimony regarding his alleged criminal involvement with
Appellant, including his aborted attempt with others to rob Blue & White
Auto Sales, the location eventually robbed by others. Marcelle testified that
Appellant and his uncle Yoel Thomas also recruited Marcelle and Mona
Tunis to commit a robbery of a “numbers spot” located in the basement of a
two-story house at the corner of East 51st Street and Snyder Avenue,
Brooklyn (Count Eight) (Tr. 128-129). At this time, on February 5, 1998,
Tunis and Marcelle were given two handguns inside Yoel Thomas’s
apartment (Tr. 131). Yoel and Aaron Walker then drove the two recruits to
the robbery location, which was inside “a regular house” (Tr. 130). Once
inside, Marcelle grabbed the employee who had come from behind a
Plexiglas divider, and after a struggle, Marcelle stole money from the
counter area (Tr. 134-135). Simultaneously, Mona pointed her gun at the
patrons inside and ordered them onto the floor (Tr. 134). When Marcelle
and Mona ran outside, the getaway car was gone (Tr. 136). Marcelle made it
3
Although Oliver testified to his birth date, making him seventeen
years old at the time of this incident (Tr. 839), the government failed to
present evidence supporting the charge that Appellant knew or had reason to
know that Oliver was a juvenile at the time of the handgun transfer. See
Point IV, post.
8
to safety, but Tunis was apprehended by the police.
Marcelle gave
Appellant $600 of the $2,300 he had stolen (Tr. 138).
In sharp contrast to Marcelle’s rendition, Detective James Donahue
testified that the victim said he had been robbed on the street, at 51st and
Snyder, rather than at a gambling location (Tr. 85).
No evidence was
introduced of a nexus between the money stolen and interstate commerce; a
failure of proof addressed in Point III, post.
iv. Robbery of New Clarkson Deli -- According to Marcelle,
on February 12, 1998, he, Louissant, and Johnson, were enlisted for another
robbery by Yoel and Ozem Thomas. Yoel originally planned the robbery of
the Ace Hardware Store and lumberyard on Utica Avenue, Brooklyn (Tr.
145-146). Appellant supplied Marcelle with a .380 cal. handgun, which he,
in turn, gave to Johnson in the car (Tr. 147-148, 150). Appellant drove
Marcelle, Louissant and Johnson to the location and the three passengers
went into the store, but they were afraid of being caught and abandoned the
plan (Tr. 149-51). After driving around some more, Johnson suggested
robbing the New Clarkson Luncheonette (Tr. 151-152). Thomas waited in
the car while Marcelle went into the store, followed by Louissant and
Johnson (Tr. 153-155). They stole money from the cash register and the
Lotto machine, which they knocked over (Tr. 155-159). They then fled from
9
the store, followed by the owner, Mohammed Elbassiony, who chased them
down Clarkson Avenue (Tr. 159-161). Elbassiony held his hand behind his
back; believing he had a gun, Johnson yelled at Elbassiony to move his
hand. When Elbassiony failed to comply, Johnson shot Elbassiony, who fell
to the sidewalk (Tr. 161-162). Marcelle and Johnson fled in the car with
Thomas back to Yoel’s apartment (Tr. 163-166). According to the Acting
Deputy Chief Medical Examiner, Elbassiony died twelve days later from
complications caused by the gunshot wound (Tr. 289-293).
C. Verdict
On October 27, 1999, after two weeks of trial and two days of
deliberation, the jury found Appellant guilty of all thirteen counts of the
indictment (Tr. 1456-1459).
* * *
Motions for acquittal under Fed.R.Crim.P. 29 were made after the
government and the defense rested (Tr. 1156, 1184).4
D. Post Trial Proceedings
Post-verdict, new counsel was assigned to represent Mr. Thomas.
Counsel thereafter filed a motion for a new trial, alleging a Batson violation
4
Then court deferred ruling upon the motions. The record does not
reflect a ruling, but the imposition of sentence on the disputed counts
evidences their denial.
10
during jury selection by the Magistrate Judge. The motion was denied on
July 13, 2000. In a brief written order dated October 6, 2000 (A. 63), the
district judge ruled that the Batson issue had been waived because
Appellant’s trial counsel had not appealed the magistrate judge’s denial of
his Batson motion to the district judge when asked by the judge whether
there was any reason the jury, as selected before the Magistrate Judge,
should not be sworn (id.).
E. Sentence
On October 6, 2000, Mr. Thomas was sentenced, principally, to a term
of 510 months’ imprisonment, as detailed above (see Judgment, A. 65-66).
Argument Summary
The principal issue raised in this appeal (Point I) addresses the
wrongful denial of Appellant’s two Batson motions, made after the
government exercised peremptory challenges against African American
jurors. Both challenges were pretextual. The first challenge, against Emma
Franklin, was ostensibly catalyzed by her own son’s previous conviction for
robbery. Yet, shortly after this challenge was made the government left on
the panel a Caucasian woman whose son also was convicted of robbery.
The second challenge, of Dorothy Campbell, was allegedly lodged because
she evidenced “almost a kind of casual disregard for the proceedings.”
11
Nothing supported this conclusion and the Magistrate Judge himself said, “I
can’t say if that is true or not.” When defendant raised the Batson issue in a
post-trial motion for new trial, the district judge concluded it was waived
because Appellant’s counsel answered “No” when asked by the district
judge whether there was any reason the jury picked by the Magistrate Judge
should not be sworn. This was error, as Appellant was never told he must
renew his objections to the district judge before trial on pain of waiver.
The remaining points concern the sufficiency of evidence. In Points II
and III we argue there was not proof establishing that the robberies of Fast
Auto Sales and the gambling location affected interstate commerce. In Point
IV we address the insufficiency of evidence that Appellant transferred a
firearm to someone he knew or had reason to know was a juvenile.
12
Argument
Point I
THOMAS SHOULD BE GRANTED A NEW TRIAL
BECAUSE THE MAGISTRATE JUDGE ERRONEOUSLY
DENIED HIS BATSON CHALLENGES WITHOUT
UNDERTAKING THE REQUIRED ANALYSIS OF
WHETHER THE GOVERNMENT’S RATIONALES FOR
THE CHALLENGED STRIKES WERE CREDIBLE
The Magistrate Judge conducted jury selection. During the selection
process, timely Batson challenges were lodged against the government’s
exercise of peremptory strikes against jurors Emma Franklin and Dorothy
Campbell.
The government’s explanations for the strikes were facially
unreasonable and should have been rejected out-of-hand. But of equal or
greater significance is that the Magistrate Judge failed to make specific
findings of whether the government’s claimed race-neutral reasons for the
strikes were credible, in fact concluding, as to the government’s purported
reasons for striking juror Campbell, that he “can’t say whether that is true or
not” (JS. 176, A. 54). This Court has held that such a failure is per se error.
Barnes v. Anderson, 202 F.3d 150 (2d Cir. 1999).
The district court
nonetheless denied Appellant’s post-trial Batson motion, finding the issue
was waived because defense counsel lodged no objection when the district
judge asked whether there was any reason the jury picked by the Magistrate
Judge should not be sworn.
This ruling was erroneous because the
13
(nonjurisdictional) waiver rule invoked by the district court applies, if at all,
only “as long as all parties receive clear notice of the consequences of their
failure to object.” DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. December 6,
2000). No such warning was given here.
Facts
Voir dire was conducted the morning of October 12, 1999, before the
Honorable A. Simon Chrein, United States Magistrate Judge. At the
beginning of jury selection, the Magistrate Judge explained to the
defendants, “What I am going to do, I’m going to go through the waiver of
Article III, magistrate judge jury selection.” (JS. 2, A. 30). The Magistrate
Judge thereafter explained to the defendants their right to have the jury
selected by an Article III judge, and cautioned that, because such a judge
“doesn’t have to worry about reappointment” he “is considered by many to
be a judge who is less likely to be intimidated if he does something that
might be unpopular” (JS. 4, A. 32). The defendants nonetheless agreed to
waive the Article III judge (JS. 4, A. 32).
The Magistrate Judge granted ten peremptory challenges to the
government and fourteen to the two defendants (to share) (JS. 16-17, 19, A.
33-34, 36). Overall, the government challenged a person of color (Latino) in
its first round (JS. 89, A. 36a); an African American in its second round (JS.
14
97, A. 36b); it waived its third and fourth rounds; it struck an AfricanAmerican in the fifth round (JS. 120, A. 39); two African Americans in the
Sixth Round (JS. 176-77, A. 54-55) and a Caucasian in its seventh round
(JS. 178, A. 56). Defendant’s first Batson challenge was made during the
fifth round, when the government peremptorily challenged its second
African-American woman, Emma Franklin (JS. 120, A. 39).
The
government responded that the juror was challenged because her son had
been through the criminal justice system (JS. 120, A. 39). Defense counsel,
in turn, argued that the government’s explanation was discriminatory in that
an overwhelming percentage of African-American men of New York City
have been incarcerated, and thus an enormous number of African-Americans
would be subject to challenge as potential jurors. The government countered
that the potential juror’s son was incarcerated on weapons charges, charges
similar to those in the present case. Thomas and Johnson’s mothers, the
government added, were expected to be significant presences and possibly
witnesses at the trial.
(JS. 121-123, A. 40-42).
Denying the Batson
application, Magistrate Judge Chrein found that, despite the truth of
Wilford’s statistical argument, the government did not consciously use race
in its decision to exclude Ms. Franklin (JS. 123, A. 42). As we discuss more
15
fully below, this decision was soon to be revisited, based on additional voir
dire.5
In the sixth round of jury selection, the government peremptorily
challenged another African-American woman, Dorothy Campbell, which
prompted another Batson challenge by defense counsel (JS. 176, A. 54). Ms
Campbell’s voir dire responses were unremarkable. She is employed by the
Department of Human Resources Administration and is married to a butcher
(JS. 142, A. 44). Her son attends a parochial high school (JS. 143, A. 45).
She previously served on a jury in the Queens Criminal Courthouse that
reached a verdict (JS. 158-59, A. 52-53). As its race-neutral reason for the
challenge, the prosecutor said:
MR. GUNTHER: I thought the tone that she took when she
was answering many of the court’s questions evinced a
flippancy, almost a kind of casual disregard for the proceedings.
(JS. 176, A. 54). Faced with this explanation, the court responded, “I can’t
say if that is true or not” (JS. 176, A. 54).6 Defense counsel reminded the
5
The court also pointed out that the government waived two successive
rounds during which time two African-Americans remained seated on the
panel (JS. 121, 123, A. 40, 42). However, the government later challenged
one of those African-Americans peremptorily (Kent Harriott) with the
defense’s approval, in round six (JS. 177, A. 55).
6
Judge Chrein also noted that Ms. Campbell was one of the jurors who
forgot to mention their prior jury service during questioning (JS. 179, A. 57);
four potential jurors forgot to mention prior jury service until the court
repeated the question at Mr. Udell’s request (JS. 176-177, A. 54-55).
16
court that this woman had previously served as a juror, was forthright in
response to the court’s questions, and had no apparent biases whatsoever
(JS. 158, 179, 180-181, A. 52, 57-59).
Amidst the Batson argument regarding Ms. Campbell, defense
counsel also revisited the pretextual nature of the government’s previous
challenge of Ms. Franklin, which had allegedly been based on her son’s
contact with the criminal justice system as well as the government’s stated
belief she would identify with Appellant’s mother.
Incongruously, the
government did not challenge a white, female juror, Ruby Leureux, whose
son had been arrested for attempted robbery and weapons possession (JS.
180, A. 58). The government attempted to distinguish the two jurors by the
fact that the Franklin’s son was incarcerated whereas the latter’s son
received probation, and that Ms. Franklin did not acknowledge having any
problems being fair whereas Ms. Leureux conceded that she may have
difficulty putting someone else’s son behind bars, thereby demonstrating
candor (JS. 181-182, A. 59-60). See JS. 146, A. 48. (Not mentioned by the
government was that Ms. Franklin expressed her gratitude that her son had
been incarcerated rather than on the streets: “He probably would have been
dead otherwise” (JS. 118, A. 37)). Simply stating, “[t]he record speaks for
itself” – and therefore not making any credibility finding – the magistrate
17
judge denied both of Appellant’s Batson applications (JS. 182, A. 60).
Twelve jurors and four alternates were thereafter impaneled (JS. 183, A. 61).
When the afternoon session of court commenced, the district judge
asked counsel, “Is there any reason why the jury should not be sworn?” (Tr.
18). Counsel answered, “No”. The jury then was sworn and trial began.
Argument
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), prescribes a
three-part test to evaluate whether a peremptory challenge is discriminatory.
First, the moving party must make a prima facie showing of discrimination;
second, if the requisite showing is made, the burden shifts to the non-moving
party to offer a race-neutral explanation for striking the juror(s); and third, if
such a race-neutral explanation is forthcoming, the burden returns to the
moving party to prove purposeful discrimination. Batson, 476 U.S. at 96-98,
106 S.Ct. at 1723-24.
The first two steps in the Batson test were satisfied and are not in
issue here. Each of the challenged jurors is African-American and defense
counsel urged that the challenges were race-based.
In response, the
government provided ostensible race-neutral reasons for the strikes. See
Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1877 (1991);
Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771 (1995) (per
18
curiam) (quoting Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866) (“Unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason
offered will be deemed race-neutral.”). It is the third step that is most
important to the instant analysis, because under no circumstances can the
race-neutral explanation carry a pretext of discrimination. “At this stage,
implausible … justifications [should] be found to be pretexts for purposeful
discrimination. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. Because “[t]he
credibility of an attorney offering a race-neutral explanation is at the very
heart of [Batson] analysis,” Barnes v. Anderson, 202 F.3d 150, 157 (2d Cir.
1999), the court’s failure to determine the attorney’s credibility is error per
se. Id.
A. The Peremptory Strikes of Emma Franklin and Dorothy
Campbell Carried a Pretext of Discrimination.
1. Emma Franklin. The first Batson challenge was lodged after
the prosecution sought to peremptorily strike its second African-American
woman, Emma Franklin, from the panel. The government responded with
an argument that, we suggest, was pretextual in nature:
it challenged
Franklin because her son had been through the criminal justice system. The
Magistrate
Judge
concurred
with
Appellant’s
argument
that
the
government’s rationale would exclude an overwhelming percentage of
African-Americans in New York City from jury service, but nonetheless
19
denied the Batson challenge. The Magistrate Judge initially said that the
government did not consciously use race as a criteria for exclusion (JS. 123,
A. 42). This might have constituted a sufficient finding of credibility, had
further voir dire not caused the issue to be revisited, but in fact the motion
was renewed after the government failed to strike a Caucasian juror, Ruby
Leureux.
The renewed motion against the strike of Ms. Franklin was made after
the government struck another African-American juror, Dorothy Campbell
(discussed in subsection 2, below). Amidst the discussion of the strike of
Ms. Campbell, the parties revisited the government’s strike of Ms. Franklin,
who supposedly had been challenged because her son had been arrested on a
gun charge (JS. 120-24, 180, A. 39-43, 58). The defense pointed out that
after the government struck Ms. Franklin, the government questioned and
accepted Ms. Leureux, a white, female juror, whose son had been arrested
for attempted robbery and weapons possession (JS. 145-49, 180, A. 47-51,
58). The government responded that Ms. Franklin’s son was incarcerated
whereas Leureux’s son received probation, and that Ms. Franklin had not
acknowledged that this might compromise her ability to be fair, whereas Ms.
Leureux conceded that she may have difficulty putting someone else’s son
behind bars, thereby demonstrating candor (JS. 146, 181-82, A. 48, 59-60).
20
Simply stating, “[t]he record speaks for itself,” the court summarily denied
the renewed Batson application regarding the strike of Ms. Franklin (as well
as the similar motion regarding Ms. Campbell) (JS. 182, A. 60).
Although the Magistrate Judge never ruled on the credibility of
government’s assertions regarding its reasons to strike Ms. Franklin in light
of the facts that led to the renewal of the Batson motion, the record
compellingly establishes that the government’s explanation for the strike
was pretextual. The government’s initial claim that Ms. Franklin was struck
because her son had been through the criminal justice system for a weapons
offense was belied by its decision not to strike a white juror, Ms. Leureux,
whose son had been through a similar experience. The government’s further
explanation, that Franklin’s son had been incarcerated whereas Leureux’s
had not was a distinction without a difference. This becomes crystal clear
when viewed through the lens of the government’s lame claim that Leureux
was more credible, and presumably a better potential juror, because Franklin
said she would have no problem being fair whereas Leureux was not certain.
This, said the government, demonstrated Leureux’s commendable candor
and Franklin’s insincerity. If such an admission by Leureux was credible, it
certainly was commendable, but hardly made her a logical government
choice for the jury. No doubt, however, had Ms. Franklin admitted to a
21
difficulty being fair and Ms. Leureux had not, this circumstance would have
been cited as reason to challenge Ms. Franklin but not Ms. Leureux.
Particularly telling was Ms. Franklin’s expression of gratitude that her son
had been incarcerated rather than on the streets: “He would have probably
been dead otherwise” (JS. 118, A. 37). Purely and simply, Franklin was
struck because she is black; Leureux was not because she is white. When
the inconsistency in the government’s treatment of these two panelists was
brought to the magistrate judge’s attention, the judge did not make renewed
credibility findings, saying simply, “[t]he record speaks for itself” (JS. 182,
A. 60).
2. Dorothy Campbell. Dorothy Campbell was struck because
she had an unexplained “casual disregard for the proceedings” – nothing
more (JS. 176, A. 54). The Magistrate Judge said he “can’t say whether that
is true or not” (JS. 176, A. 54). Nothing in this record, however, supports the
government’s stated excuse, and the government did not even attempt to
elaborate. Campbell in fact was gainfully employed, had prior jury service,
answered the questions posed to her forthrightly and had not any apparent
biases (JS. 158-59, 179, 180-81, A. 52-53, 57, 58-59).
22
B. The Court Erroneously Denied Both Batson Challenges Without
Making the Requisite Credibility Findings.
The denial of a Batson challenge will be reviewed for clear error
where the district court has properly applied the Batson analysis. See United
States v. Taylor, 92 F.3d 1313, 1326 (2d Cir. 1996) (citing Hernandez v.
New York, 500 U.S. 352, 365 (1991)). Where, however, the court has failed
to apply the appropriate analysis by failing to make the required credibility
findings regarding the proffered reasons for the strike, reversal is generally
automatic. Barnes v. Anderson, 202 F.3d 150 (2d Cir. 1999). See also
United States v. Harris, 192 F.3d 580 (6th Cir. 1999).
In Harris, the district court denied a Batson challenge for two reasons:
first, one African-American had already been selected to the jury, thus the
district court felt a pattern of discrimination could not possibly exist; and
second, the panelists in question were to be alternate jurors, therefore they
were irrelevant.
The Sixth Circuit rejected both bases for denying the
Batson challenge. On the first point the court remarked concisely, “[T]he
presence of one African-American on the jury does not preclude a Batson
challenge.” Harris, 192 F.3d at 587 (citing Jones v. Ryan, 987 F.2d 960, 971
(3d Cir. 1993)). On the second point, the appellate court concluded that the
erroneous denial of a Batson challenge amounted to a “structural error,”
which required that the issue be remanded. Id. at 587-88. See Arizona v.
23
Fulminante, 499 U.S. 279, 111 S.Ct. 1246 (1991) (Trial errors are errors
which occurred during the presentation of the case to the jury, while
structural errors affect the “entire conduct of the trial from beginning to
end.”); United States v. McFerron, 163 F.3d 952, 956 (6th Cir. 1998)
(applying Fulminante analysis to the erroneous denial of a peremptory
challenge, which the court in Harris viewed as analogous to an erroneous
grant of a peremptory challenge). The court went on to conclude, “[T]he
harm inherent in a discriminatorily chosen jury inures not only to the
defendant, but also the jurors not selected because of their race, and to the
integrity of the judicial system as a whole.” Harris, 192 F.3d at 587-88.
In Barnes, a civil case, the district court failed to rule on the
credibility of the proffered rationales for defense strikes.
After the
defendants sought to strike a third African-American juror, the plaintiffs
lodged a Batson challenge. Much confusion followed and the trial judge
denied the Batson challenge, stating, “I won’t rule on credibility of attorneys
right now myself, but I find both cases have sufficient reason.” Barnes, 202
F.3d at 157. On appeal, this Court quickly pointed out that the court must
make credibility findings, because “The credibility of an attorney offering a
race-neutral explanation is at the very heart of [Batson] analysis.” Barnes v.
Anderson, 202 F.3d at 157. This Court went on to find that the district court
24
in Barnes had made the precise error sought to be avoided by the analysis
prescribed in Batson: “denial of a Batson motion without explicit
adjudication of the credibility of the non-movant’s race-neutral explanations
for the challenged strikes.” Id. at 156. Furthermore, after examining the
record, this Court was not confident that remanding the proceedings would
“shed reliable light upon the voir dire.” As a result this Court vacated the
judgment and granted a new trial. Id. at 156-57 (citations omitted).7
In the instant case, the defense lodged two Batson challenges, both of
which were improperly denied, because the government’s proffered
rationales were not plausible in light of the evidence, and because the
magistrate judge failed to make the required credibility findings regarding
“the credibility of the proffered explanations.” United States v. Alvarado,
923 F.2d 253, 256 (2d Cir. 1991). Lacking the required credibility findings,
and because the exclusion of two qualified jurors was made with the specter
of racial discrimination, the jury’s deliberations were tainted.
7
In Barnes there was the added problem that the trial judge had since
passed away. However, the appellate court recognized that “a judge other
than the trial judge [was] competent to hold [a new Batson] hearing,” but
such a hearing would have nevertheless been ineffective because of the
district court’s refusal to rule on the credibility of the proffered race-neutral
explanations. Barnes, 202 F.3d at 157 (citing Bryant v. Speckard, 131 F.3d
1076, 1078 (2d Cir. 1997) (per curiam), cert. denied, 524 U.S. 907 (1998)).
25
C. The Government’s Post-Hoc Arguments.
Responding to Appellant’s post-trial motion for a new trial, the
government raised two anemic arguments worthy of note in its effort to
obscure its pretextual motives:
First, it observed that the government
waived two challenge rounds, where three black jurors remained on the
panel (Gov. memo at 25-26).
Although such waivers “can lend some
support to a finding of race neutral challenges,” United States v. Alvarado,
951 F.2d 22, 26 (2d Cir. 1991), they “provide no insulation from judicial
scrutiny,” id. Moreover, this happenstance is a double-edged sword in this
case, as the government may simply have hoped the defense would waive its
own challenges and that the jury would be limited to three persons of color.
In fact, as already noted, the government challenged a person of color
(Latino) in its first round, an African American in its second round; it
waived its third and fourth rounds; it struck an African-American in the fifth
round, two African Americans in the Sixth Round8 and a Caucasian in its
seventh round. This hardly is a record of strikes that removes suspicion
from the government, whatever the prosecutor’s track-record in previous
cases.
8
One of these challenged jurors was Kent N. Harriot, who the defense
also had intended to strike (JS. 177, A. 55).
26
The government’s second argument of note was that it had no reason
to exercise race-based challenges in a case involving black-on-black
violence (Gov. memo at 30). The government hardly advances its claim of
candor when it maintains there is no possibility it might prefer a black
defendant to be judged by Caucasian jurors.
Here, but one of the
government’s six challenges was exercised against a Caucasian panelist.
Rather than support its denial of a race-based motive, the
government’s belated and wrongheaded rationales further demonstrate what
is already clear from the voir dire transcript:
the government used its
peremptory challenges to exclude black jurors from this jury.
D. The District Court Erred When It Found That Appellant Waived
His Batson Challenge By Not Repeating It To the District Court.
In its October 6, 2000 Order, the district court did not address the
merits of Appellant’s Batson motion. Rather, it ruled that the issue was
waived, “based on the sound considerations of policy that justify denying a
party the right to seek post-trial relief when he has failed to avail himself of
remedies available to correct an error prior to trial” (A. 63). The court then
elaborated, as follows:
The law is clear that the defendant had a right to appeal
the disputed Batson ruling to a district court judge during jury
selection and before the jury was sworn. Perez v. United
States, 501 U.S. 923, 939 (1991); United States v. Taylor, 92
F.3d 1313, 1326 (2d Cir. 1996). Moreover, “‘[n]o procedural
27
principle is more familiar to this Court than that a constitutional
right,’ or a right of any sort, ‘may be forfeited in criminal as
well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.’”
United States v. Olano, 507 U.S. 725, 730 (1993) quoting
Yarkus v. United States, 321 U.S. 414, 444 (1944).
Because the defendant failed to timely assert his claim
that the United States magistrate judge erroneously decided his
Batson challenge to the district court judge who “had
jurisdiction to determine it,” it is properly forfeited.
(A. 63-64) (emphasis in original).
The district court’s conclusion that Appellant waived his Batson
challenge because defense counsel failed to object when the district judge
asked whether there was any reason the panel should not be sworn, was
incorrect. Just as it is true that a party who fails to lodge a timely objection
may waive a claim, equally true is that a failure to timely object to a
magistrate’s report may not be deemed a waiver unless “all parties receive
clear notice of the consequences of their failure to object.” DeLeon v.
Strack, 234 F.3d 84, 86 (2d Cir. December 6, 2000), citing Small v.
Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1993). See
also Thomas v. Arn, 474 U.S. 140, 155 (1985) (noting the right to appeal
was not denied because “Petitioner was notified in unambiguous terms of the
consequences of a failure to file [objections to a magistrate’s report] and
deliberately failed to file nevertheless”).
28
In this case, Appellant was not told that his failure to raise his Batson
claim before the district judge would waive the claim. On the contrary, the
defendants were told at the commencement of voir dire that their waiver of
an Article III judge meant that the magistrate judge, and not the district
judge, would select his jury. At no time were the defendants told by the
magistrate judge that any jury selection-related issue could be relitigated
before the district judge, much less were they informed that failure to do so
would affect a waiver. Thus, for all appearances, the magistrate judge stood
in the shoes of the district judge for purposes of jury selection. The district
court’s post-jury selection inquiry of counsel, “Is there any reason why the
jury should not be sworn?” hardly supports a contrary conclusion (Tr. 18).
The magistrate judge had already concluded jury selection and had denied
counsel’s Batson motions; there was, therefore, no reason the jury should not
be sworn.
Although not dispositive of the instant issue, we observe that any rule
requiring relitigation of jury selection issues before district judges on pain of
waiver is ill conceived and has extraordinary policy implications. If Batson
challenges need to be raised in this fashion, why not challenges for cause?
Or any other voir dire-related issue? As challenged jurors are generally
dismissed from service or are permitted to return to the Central Jury Room
29
for reassignment on an ongoing basis as voir dire continues, defendants will
be obliged to constantly stop voir dire to bring issues to the district judge’s
attention, lest the government later cry “waiver.” Keeping all the jurors
together until the conclusion of voir dire is generally not practical.
Additionally, the parties need to make strategic decisions based on the
magistrate judge’s timely rulings; hence saving such issues for the
conclusion of voir dire simply will not work, except in limited
circumstances.
See, e.g., United States v. Taylor, supra (district judge
reviewed Batson ruling). In any event, defendants here certainly were not
on notice that they must do so, on pain of waiver.
Conclusion
The magistrate judge’s failure to develop a record sufficient to make
an appropriate credibility finding, combined with the lack of such a finding
on the present record, requires that a new trial be granted. Although courts
have suggested that a remand for the required credibility finding might
sometimes be appropriate, it should not be the rule. As this Court observed
in United States v. Biaggi, 909 F.2d 662, 679 (2d Cir. 1990), cert. denied,
499 U.S. 904 (1991), “Postponing consideration of a Batson claim until the
trial is in progress, or even completed … risks infecting what would have
been
the
prosecutor’s
spontaneous
30
explanations
with
contrived
rationalizations, and may create a subtle pressure for even the most
conscientious district judge to accept explanations of borderline plausibility
to avoid the only relief then available, a new trial.” Here, moreover, the
record is inadequate to make the required finding post hoc, and the
magistrate judge in fact found, as to the government’s excuse for excusing
Ms. Campbell, “I can’t say if that is true or not” (JS. 176, A. 54). As a
practical matter, the magistrate judge could not, on remand, reasonably
square this statement with an after-the-fact conclusion that the asserted
reasons to strike Ms. Campbell were credible.
Mr. Thomas should be granted a new trial before a properly selected
jury of his peers.
Point II
THE EVIDENCE FAILED TO ESTABLISH THAT
THE ROBBERY OF “FAST CARS” AFFECTED
INTERSTATE COMMERCE, AS ONLY PERSONAL
PROPERTY OF THE PROPRIETOR WAS TAKEN;
BECAUSE THE EVIDENCE WAS NOT SUFFICIENT,
COUNTS TWO AND THREE SHOULD BE DISMISSED
In Count Two of the indictment Messrs. Thomas and Johnson were
charged with the robbery of “Fast Cars Sales,” an automobile dealership in
Brooklyn. Count Three charged that Thomas and others used and carried
firearms in relation to this same robbery, in violation of 18 U.S.C. § 924(c).
To be guilty of robbery under 18 U.S.C. § 1951, however, the government
31
must prove that the robbery affected interstate commerce. Generally, the
interstate commerce element may be satisfied by evidence that the
victim/business conducts interstate business. Here, however, the business
was not proven to be the victim, as no business-related property was taken.
Accordingly, the evidence did not establish the requisite interstate nexus,
and the convictions under Counts Two and Three therefore must be vacated
and the charges dismissed.
18 U.S.C. § 1951 provides in relevant part:
(a) Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity
in commerce, by robbery or extortion or attempts or conspires
to do so … [shall be punished].
As the district judge instructed the jury:
The third element is that interstate commerce, or an item
moving in interstate commerce, was affected in some way as a
result of defendant’s action. The defendant need not have
intended or anticipated an effect on interstate or foreign
commerce.
You may find that interstate of foreign commerce was
affected if you find that a particular business or an individual
that was robbed purchased goods or materials from enterprises
or individuals in other states or countries. The money or
property robbed or attempted to be robbed must belong to the
business.
The robbery of purely personal property of
individuals who operate or own such business, in such small
amounts of currency, personal jewelry, and credit cards is not
sufficient for a finding that interstate commerce has been
affected.
32
Tr. 1383-1384. This requirement may be “de minimus” but it is not nonexistent. Taking the requisite nexus to the vanishing point would make the
Hobbs Act “ubiquitous,” and would “be in stark conflict with the principle
that our federal government has limited and enumerated powers, with
routine police power generally being reserved to the states.” United States v.
Collins, 40 F.3d 95, 100-101 (5th Cir. 1994) (insufficient interstate nexus
where defendant robbed employee of national computer company of
personal property and car; adverse affect of theft on victim’s conduct of his
interstate business not sufficient) (footnote omitted). Cf Jones v. United
States, 120 S.Ct. 1904 (2000) (interstate commerce element of federal arson
statute not satisfied as to arson of private residence not used for commercial
purposes).
Appellant, Karzekiel, Bosch and Burns allegedly planned the Fast Car
Sales robbery after other robbery plans were aborted. The four drove to the
location of the Fast Cars lot. Thomas supposedly was the lookout, and
Karzekiel the driver, while Burns and Bosch entered the trailer offices, drew
their guns and announced a robbery. Burns hit a salesman in the head and
took his jewelry and his wallet as well as $200 cash from his pockets (Akva:
Tr. 67-68; Burns; Tr. 481-82, 488). Bosch stole $2,000 from two different
persons, one of whom was a car salesman (Tr. 557-59). Then they left.
33
No money or property was taken from the business; all was taken
from individuals. Indeed, as the district court charged:
The robbery of purely personal property of individuals who
operate or own such business, in such small amounts of
currency, personal jewelry, and credit cards is not sufficient for
a finding that interstate commerce has been affected.
Tr. 1384. The government argued on summation that the amount of money
stolen from the persons inside the offices permitted the inference that it must
have belonged to the business (Tr. 1351), yet the government’s own witness
testified to the contrary. Michael Akva, who had been hit in the head during
the robbery, told the jury that it was his money, wallet and jewelry that were
taken:
The guy that came into my office told me to stand up and
give him everything I have, money, jewelry, wallet. He took
my possessions and then he came behind me, hit me in the back
of my head with the gun.
(Tr. 67) (emphasis added).
Criminal acts directed toward individuals may violate section 1951(a)
only if
(1) the acts deplete the assets of an individual who is directly
and customarily engaged in interstate commerce; (2) if the acts
cause or create the likelihood that the individual will deplete the
assets of an entity engaged in interstate commerce; or (3) if the
number of individuals victimized or the sum at stake is so large
that there will be some “cumulative effect on interstate
commerce.”
34
United States v. Collins, 40 F.3d at 100 (footnotes omitted). None of these
factors, however, are satisfied in this case. No testimony from Akva or any
other witness suggests that the stolen money or property belonged to Fast
Cars rather than Michael Akva himself, nor was there testimony from any
other Fast Cars employee.
No evidence of a “depletion” theory was
proffered, nor was the cumulative impact of the robbery shown to effect
interstate commerce.
Because the evidence was insufficient, Count Two must be dismissed.
Likewise, Count Three, charging a violation of 18 U.S.C. § 924(c) must also
be dismissed. 18 U.S.C. § 924(c) punishes a person’s use of a weapon
during a crime of violence “for which he may be prosecuted in a court of the
United States.” The quoted language provides the jurisdictional basis for the
prosecution.
In this case, Count Three directly referenced and was
dependent up the charge alleged in Count Two. Thus, Count Three charged
that Thomas “did … use and carry firearms during and in relation to a crime
of violence, to wit, the crime charged in Count Two.” Lacking the
jurisdictional tether provided by Count Two, Count Three must also be
dismissed:
Collins also correctly claims that if the Winn-related conviction
is reversed the attendant unlawful use of a firearm charge must
also fail. Section 924(c)(1) requires that the underlying offense
be a federal crime and, as the robbery-of-Winn conviction for
35
violation of section 1951(a) is now voided, the conviction for
unlawful use of a firearm during that robbery also must be
reversed.
United States v. Collins, 40 F.3d at 101.
Point III
THE EVIDENCE FAILED TO ESTABLISH THAT
THE ROBBERY OF THE GAMBLING LOCATION
AFFECTED INTERSTATE COMMERCE
Just as the evidence failed to establish the requisite interstate element
with respect to the Fast Cars robbery charged in Count Two, so too was the
evidence insufficient to establish the interstate element required in Count
Eight, charging the robbery of a gambling location in Brooklyn, New York.
In that robbery, Mona Tunis and Khasim Marcelle were driven to the
numbers spot by Yoel Thomas and Aaron Walker. Tunis and Marcelle went
inside and Marcelle searched an employee stationed behind Plexiglas.
According to Marcelle, “I searched his pockets. Then I took the money that
was on the counter, leaving with a total of about $2,300 or $2,500” (Tr. 135,
138).
The victim, however, told Detective James Donahue an entirely
different story, saying he was robbed on the street, at 51 st and Snyder (Tr.
85).
Whichever version of the events is true, no effect on interstate
commerce was proved, and Count Eight must therefore be dismissed.
36
Point IV
THE EVIDENCE FAILED TO ESTABLISH, UNDER
COUNT SEVEN OF THE INDICTMENT, THAT MR.
THOMAS TRANSFERRED A HANDGUN TO ANOTHER
KNOWING THAT SUCH PERSON WAS A JUVENILE
Count Seven of the indictment charged Mr. Thomas with transferring
a handgun to a person Thomas knew or had reasonable cause to believe was
a juvenile. The evidence was not sufficient, however, to establish that
Thomas transferred the handgun with the requisite knowledge. Accordingly,
Thomas’ conviction under Count Seven should be vacated and that Count
should be dismissed.
Title 18 U.S.C. § 922(x)(1) makes it unlawful “for a person to sell,
deliver, or otherwise transfer to a person who the transferor knows or has
reasonable cause to believe is a juvenile (A) a handgun…” “Juvenile” is
defined as a person under the age of 18. 18 U.S.C. § 922(x)(5). The
government asserted that Count 7 was proven because Thomas transferred
handguns to Besner Oliver and Kevin Bell, for use during the Blue and
White Auto Sales robbery. The evidence, however, established only that (1)
the transfers occurred, and (2) Oliver and Bell were, at the time of transfer,
juveniles. Thus Oliver testified he was born June 21, 1980, making him
seventeen years old at the relevant time (Tr. 839). Missing from the proof
was any evidence from which the jury could have found beyond a
37
reasonable doubt that Mr. Thomas was aware that either Oliver or anyone
else to whom a gun was transferred were juveniles.
This lack of evidence was not lost on the government. During the
government’s initial summation, the Assistant merely referred to the
evidence establishing Oliver’s age (Tr. 1234, 1240) (“At the time of these
events he was just 17 years old.”). On rebuttal, the government weakly
argued that Thomas had a point of reference for Oliver’s age by the people
Oliver associated with: “JR”, Marcelle and Johnson, but these persons were
18 or 19 years old (Tr. 1352) (“He has a frame of reference when he hands a
380 handgun to James Johnson at the age of nineteen to commit the robbery
at the New Clarkson Luncheonette. He knows what people’s ages are. He
just doesn’t care”). The government suggested on summation that Kevin
Bell, who also was a juvenile at the time, qualified for this charge by virtue
of being present in the car when the handguns were passed out (Tr. 1352).
But, again, no evidence suggested that Thomas was aware of Bell’s juvenile
status.
Absent the requisite evidence to establish that Thomas had reason to
believe Bell and Oliver were juveniles, Count Seven should be dismissed.
38
Point V
MR. THOMAS ADOPTS THE ISSUES RAISED
BY HIS CODEFENDANT ADDRESSING
ISSUES OTHER THAN SENTENCE
Pursuant to F.R.A.P. 28(i), Mr. Thomas adopts those arguments
contained in the brief of co-Appellant James Johnson, that address issues
other than sentence.
Conclusion
For all the foregoing reasons Mr. Thomas’ conviction should be
reversed and a new trial granted. In the alternative, Counts Two, Three,
Eight and Thirteen should be reversed and the case remanded for further
proceedings.
Dated:
New York, New York
February 1, 2001
Respectfully submitted,
_____________________
Richard Ware Levitt
148 East 78th Street
New York, NY 10021
212/737-0400
Attorney for Ozem Thomas
under the Criminal Justice Act
39
Appendix
Docket Entries........................................................................................................ A. 1
Superseding Indictment, 98 Cr. 860 (S-3)(ERK) .................................................. A. 23
Transcript dated October 12, 1999 (Jury Selection Excerpts) ............................... A. 29
Order dated October 6, 2000.................................................................................. A. 63
Judgment dated October 12, 2000 ......................................................................... A. 65
Notice of Appeal .................................................................................................... A. 69
Certificate of Service
Nicholas G. Kaizer, hereby certifies that a true and correct copy of the
annexed Brief and Appendix on Appeal has been served upon AUSA
Andrew J. Frisch, Esq., United States Attorney's Office, One Pierrepont
Plaza, 14th Floor, Brooklyn, New York 11201, by today depositing a true
copy thereof enclosed in a First Class post-paid wrapper, in an official
depository under the exclusive care and custody of the United States Postal
Service within the State of New York.
Dated:
February 2, 2001
New York, New York
_________________________
NICHOLAS KAIZER