Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 09-02-2021
Case Style:
United States of America v. ISIAH LUEVONE THOMAS
Case Number: 2:19-cr-00461-LSC-JHE-3
Judge: L. Scott Coogler
Court: UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
Plaintiff's Attorney: Not Listed
Defendant's Attorney:
Description:
Birmingham, AL - Criminal defense lawyer represented defendant with a conspiracy to possess with the intent to distribute methamphetamine and heroin charge.
On August 24-26, 2020, defendants Isiah Luevone Thomas (“Thomas”) and
Tavara Japree Gissendanner (“Gissendanner”) were tried and convicted by a jury
of conspiracy to possess with the intent to distribute methamphetamine and heroin.
Presently before the Court is Thomas’s motion for a new trial. (Doc. 162.) For the
following reasons, the motion is due to be denied.
II. Discussion
Thomas’s motion is premised on two grounds. First, he argues that the
Government removed five black potential jurors based on their race in violation of
Batson v. Kentucky, 476 U.S. 79 (1986), and that the racial makeup of the jury was
FILED
2021 Jan-08 AM 11:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 1 of 29
2
unrepresentative of the racial makeup of his community. Second, he argues that he
was denied the right to a fair trial in violation of Brady v. Maryland, 373 U.S. 83
(1963), by the Government’s withholding of an allegedly exculpatory interview with
witness Annethia Anderson until the first morning of trial and later disavowing her
trial testimony in its closing argument. Each of Thomas’s claimsis addressed in turn.
A. Batson Issues
In Batson v. Kentucky, the Supreme Court held that the Equal Protection
Clause prohibits prosecutors from striking potential jurors “solely on account of
their race.” 476 U.S. at 89. To assist district courts in addressing Batson challenges,
the Supreme Court outlined a three-step inquiry that courts must use in order to
determine whether peremptory strikes have been used in a discriminatory manner.
First, the party challenging the strike as discriminatory must set forth a prima facie
case of discrimination. Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., Inc., 236
F.3d 629, 636 (11th Cir. 2000) (citing Batson, 476 U.S. at 96). “‘[I]n making out a
prima facie case, ‘the defendant must point to more than the bare fact of the removal
of certain venire persons and the absence of an obvious valid reason for the
removal.’” Id. at 637 (quoting United States v. Allison, 908 F.2d 1531, 1538 (11th Cir.
1990)). Second, if the court agrees that a prima facie case exists, the striking party
must articulate a non-discriminatory (i.e., race-neutral) explanation for its strike. Id.
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 2 of 29
3
at 636. “The reason given need not be a good reason; it can be irrational, silly,
implausible, or superstitious, as long as it is facially race-neutral.” United States v.
Lovett, 662 F. App’x 838, 844 (11th Cir. 2016) (citing United States v. Hill, 643 F.3d
807, 837 (11th Cir. 2011)). Finally, if the striking party gives a race-neutral rationale,
the court must evaluate the persuasiveness of the proffered reason and determine
whether the objecting party has carried its burden of proving purposeful
discrimination. See id. (citing Hill, 643 F.3d at 837).
The Court will first discuss the circumstances surrounding the removal of the
five potential jurors identified in Thomas’s motion. The Court will then turn to
Thomas’s claim that the racial makeup of his jury violated the principles of Batson.
1. Juror F. Jones
Thomas, who is black, argues that the Government removed black potential
juror F. Jones on the basis of his race in violation of Batson. After the jury was struck,
Thomas’s defense counsel raised a Batson challenge regarding the Government’s
preemptory striking of F. Jones. (Doc. 159 at 102.) In support of his Batson challenge,
Thomas’s counsel argued that there was a disparity between the percentage of black
potential jurors on the jury venire and the number of black jurors actually remaining
on the jury panel, after the peremptory strikes had been exercised. (Id.) Thomas’s
counsel stated that there was only one black juror left on the jury, but he was
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 3 of 29
4
mistaken. (Id. at 102.) In fact, two black jurors served on the 12-person jury, and one
of the two alternate jurors was black. In any event, this Court responded to Thomas’s
counsel’s Batson challenge as follows:
I mean, numbers themselves don’t make out a prima facie case.
Demonstration that someone is struck for—that didn’t give any reason
to strike them would be the kind of information that I would need,
particularly if you can compare that to white jurors that were not struck
saying the same thing.
It’s obvious to me, unless you demonstrate a prima facie case of Batson,
for me to even ask the Government to delineate the reasons and you
haven’t done that.
(Id. at 103-04.) The Government, without prompting by this Court, offered that
Jones had raised his hand during voir dire indicating that he favored the legalization
of marijuana. (Id.) Thomas’s counsel then replied that two white jurors who were
not struck by the Government also favored legalizing marijuana (id. at 104), but the
Government then offered that Jones was sleeping during voir dire and had also raised
his hand indicating that he had a negative view of law enforcement (id. at 106). This
Court rejected Thomas’s Batson challenge as to Jones. (Id. at 107).
Assuming for argument’s sake that Thomas had established a prima facie case
of discrimination under Batson by pointing out that Jones was struck by the
Government because he favored legalizing marijuana while two white potential
jurors were not struck who expressed the same views, the Government met its
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 4 of 29
5
burden of showing that it struck Jones for several race-neutral reasons—Jones
indicated that he had a negative view of law enforcement, and he was sleeping during
voir dire. Thomas has done nothing to demonstrate that these reasons were a pretext
for purposeful discrimination on the part of the Government. A new trial is not
warranted on this ground.
2. Jurors K. Wallace, E. Plain, V. Johnson, and K. Bell
Thomas also asserts that “the process that led to the preemptory strikes of
[potential] Juror[s] Wallace, Plain, Bell, and Johnson” violated Batson. (Doc. 162 at
2.) Thomas contends generally that because the Government asked questions of the
jury venire regarding their attitudes towards law enforcement based upon recent
events involving law enforcement that were highly televised and publicized in the
national media, and two potential jurors—K. Wallace and E. Plain—verbalized
negative views of law enforcement, that other members of the venire were
“poison[ed]” by their responses, which allowed the Government to strike other
members of the jury venire who “they believed, though not in the record, expressed
sympathies with the views of Wallace and Plain.” (Id. at 2-3.) Thomas further
asserts, “With the benefit of hindsight, questions of this type requiring verbal
responses would have been better suited for individual voir dire . . . .” (Id. at 3.)
Despite Thomas’s failure in his motion to provide any specifics surrounding the
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 5 of 29
6
removal of these four individuals, the Court will do so before addressing Thomas’s
overall argument that the group questioning somehow violated Batson.
i. Juror K. Wallace
During group voir dire, the Court asked the jury venire whether anyone would
automatically disbelieve or believe a law enforcement officer who was testifying
without applying the same credibility standards that should be applied to any other
witness. (Doc. 159 at 57.) K. Wallace raised his hand and stated: “As a black man
living in the United States at this time, I don’t know if I can give . . . the benefit of
the doubt.” (Id. at 58.) When the Government later asked the jury venire if anyone’s
opinions about law enforcement had changed over the past year due to recent
televised events, Wallace stated: “My opinion was bad and it just got worser [sic].”
(Id. at 62.)
At the defense’s request, this Court later called Wallace in for individual voir
dire, during which time he stated that he would not believe a law enforcement officer
on “word alone” but would have to “have body cam or something more than just
word alone.” (Id. at 87.) He also expressed that he was “not inclined to” believe law
enforcement without photographs or some other type of documentation. (Id.) When
asked whether he could apply the same credibility standard to a law enforcement
officer that he would apply to any witness, he repeatedly stated that he did not know
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 6 of 29
7
if he could. (Id. at 88.) When asked by Gissendanner’s defense counsel whether he
would give an officer the same credit as any other witness, Wallace first responded
that he “can’t give them the benefit of the doubt just because they wear the
uniform.” (Id. at 89.) When pressed, Wallace expressed that he would not give law
enforcement “extra credit” but that he would “do [his] best” to give them the same
credit. (Id.) This Court then stated, “I have to have it clearer than that” and asked
Wallace again whether he would apply the same standard of credibility to an officer
as any other witness, and at that point Wallace replied that he would. (Id. at 90.)
After the conclusion of voir dire, the Government moved to strike Wallace for
cause (id. at 95), but this Court denied that motion, explaining that although it was a
close call, Wallace appeared to, at the end of his individual voir dire session, have
expressed that he could remain fair and neutral. (Id. at 96.)
After the jury was struck, Gissendanner’s defense counsel raised a Batson
challenge regarding Wallace. (Id. at 99.) The following exchange occurred:
The Court: That will be denied. I obviously know of a race neutral
reason to strike him, so I don’t need to ask the
Government to tell me what it is.
Counsel: I understand, your honor. For purposes of the record, may
I request that we put that on the record?
The Court: No. You have not made a prima facie showing of Batson
because, obviously, he said that he dislikes police, that he
doesn’t give them the benefit of the doubt. At first he said
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 7 of 29
8
I wouldn’t believe them because they were law
enforcement, and then he changed. And I basically allowed
him to stay. But then I knew the Government would strike
him. I didn’t give them a challenge for cause. I almost did.
Counsel: Understood, your honor. And the prima facie case I would
make is that what the Court referenced at the end, his
ending statements, as we discussed earlier. But I
understand the Court’s ruling.
The Court: Even his ending statements, Jamie, were not sufficient.
Because his ending statements, what he said at the end was
derogatory toward law enforcement. He said, I haven’t
changed my opinion in the last, however many
months, six months or whatever one of ya’ll asked about.
And, I mean, it was like pulling teeth for ya’ll to
rehabilitate him. I think Derek was able to finally
rehabilitate him sufficiently to keep him from being struck
for cause. But he absolutely, there was race neutral
reasons, several of them to strike him.
Counsel: Understood, your Honor. Thank you.
(Id. at 100.)
This Court continues to reject any Batson challenge regarding Wallace.
Thomas has not made out a prima facie case of discrimination. See Cent. Ala. Fair
Hous. Ctr., Inc., 236 F.3d at 636 (“[T]he establishment of a prima facie case is an
absolute precondition to further inquiry into the motivation behind the challenged
strike.”). Even if he had, the Government offered a race-neutral reason for striking
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 8 of 29
9
Wallace—his clearly-expressed distrust of law enforcement. A new trial is not
warranted on this ground.
ii. Juror E. Plain
E. Plain also raised her hand during group voir dire in response to the
Government’s question whether anyone’s views of law enforcement had changed
recently due to televised events. (Doc. 159 at 62.) Plain said: “Yes. I agree, I think,
as a mother of a black son, but [sic] my opinion has become worse of law
enforcement.” (Id.) Plain was later called in for individual voir dire, at which point
she stated that she could “absolutely” be fair in applying the same credibility
standard to a law enforcement officer’s testimony as any other witness’s testimony.
(Id. at 91.)
Contrary to Thomas’s assertion, the Government did not peremptorily strike
Plain, and she in fact served on the jury. A new trial is not warranted for any reason
having to do with Plain.
iii. Juror V. Johnson
During group voir dire, V. Johnson stated that she has a law degree, works as
a probation officer, and volunteers for the Alabama Justice Initiative, which is an
organization that supports prison reform. (Id. at 37-38.) She also indicated that she
was familiar with, through her volunteer work with the Alabama Justice Initiative,
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 9 of 29
10
not only Bullock Correctional Facility, where one of the defendants in this case was
housed during the commission of the crimes charged (id. at 70), but that she was also
familiar with several of the federal public defenders representing the defendants in
this case (id. at 44). This Court called her in for individual voir dire, at which point
she stated that at Bullock Correctional Facility, there existed inmate-on-inmate
violence, officer-on-inmate violence, and inadequate facilities, and she also stated
that she believed that an inmate was killed there a few days prior to the start of trial.
(Id. at 94.) Johnson then stated, however, that she could be fair and neutral to all
parties in this case, because “My full time job is a probation officer, so I am used to
being neutral and unattached to parties. That’s what I do for a living.” (Id. at 95.)
After the jury was struck, Thomas’s defense counsel raised a Batson challenge
regarding Johnson. (Id. at 103.) This Court rejected the challenge, implying that the
race-neutral reasons the Government had for striking Johnson were that she
volunteered for prison reform and had made various statements about negative
aspects of Bullock Correctional Facility. (Id.)
The Court continues to reject Thomas’s Batson challenge with regard to
Johnson. Thomas did not and still has not made out a prima facie case of
discrimination. See Cent. Ala. Fair Hous. Ctr., Inc., 236 F.3d at 636 (“Indeed, we
have stressed that “[n]o party challenging the opposing party’s use of a peremptory
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 10 of 29
11
strike . . . is entitled to an explanation for that strike, much less to have it disallowed,
unless and until a prima facie showing of racial discrimination is made.”) (quoting
United States v. Stewart, 65 F.3d 918, 925 (11th Cir. 1995)). A new trial is not
warranted on this ground.
iv. Juror K. Bell
During group voir dire, K. Bell responded to a question by the Court regarding
whether anyone had had a particularly positive or negative experience with law
enforcement that might affect them. (Doc. 159 at 49.) Bell described an incident
where her son was questioned by law enforcement, forcefully removed from his
vehicle, and ultimately arrested, while a white man who was with him was not
questioned. (Id. at 50.) She further stated that her son was innocent. (Id. at 51.) She
then stated, however, that she could set that incident aside in deciding this case. (Id.)
Although the Government struck Bell, neither Thomas nor Gissendanner’s
defense counsel raised a Batson challenge regarding Bell at trial. Thus, the Court can
only assume that Thomas is now arguing that the Government struck Bell because
the Government perceived that she had the same negative views of law enforcement
as those expressed by potential jurors K. Wallace and E. Plain. Even if the
Government did strike Bell because she maintained negative views of law
enforcement officers, such is a facially race-neutral reason for using a peremptory
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 11 of 29
12
strike. This is because distrust of the police or concerns considering the fairness of
the criminal justice system are viewpoints that may be shared by black and white
individuals alike.
It appears that Thomas does not agree, as he states in his motion:
In the greater societal context, should the result in this matter be
permitted to stand, and should similar procedures occur in other trials,
a terrible irony results: the more harsh, dishonest and/or violent law
enforcement are perceived to be by the African-American community,
whether valid or not, the lower the chances are that African American
jurors will have the opportunity to serve on juries. Likewise, the larger
societal dynamics resulting from the George Floyd incident, and others,
will lower, or eliminate entirely, the chances of having a representative
jury for African American defendants being tried in this district should
similar processes be replicated in other cases.
(Doc. 162 at 3.)
To the extent that Thomas implies that fear or distrust of law enforcement is
not a race-neutral reason for the use of a peremptory challenge because minority
races more commonly possess such fears, his claim is foreclosed by existing federal
constitutional law.
First, in 1991 in Hernandez v. New York, the United States Supreme Court
concluded that a prosecutor had not violated Batson by using peremptory challenges
to exclude Latinx jurors by reason of their ethnicity when he offered as a race-neutral
explanation his concern that bilingual jurors might have difficulty accepting the court
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 12 of 29
13
interpreter’s official translation of multiple witnesses’ testimony given in Spanish.
500 U.S. 352, 357-58 (1991) (plurality opinion). In so concluding, the Supreme Court
rejected the argument that the prosecutor’s reasons were not race-neutral and thus
violated the Equal Protection Clause as a matter of law because of their
disproportionate impact on Latinx jurors. See id. at 362–63. The Court relied on “the
fundamental principle that official action will not be held unconstitutional solely
because it results in a racially disproportionate impact.” Id. at 359-60 (quoting
Arlington Heights v. Metropolitan Housing Development Corp. 429 U.S. 252, 264-65
(1977)). Rather, as the Court explained, “Proof of racially discriminatory intent or
purpose is required to show a violation of the Equal Protection Clause.
Discriminatory purpose implies more than . . . intent as awareness of consequences.
It implies that the decision maker . . . selected . . . a particular course of action at least
in part because of, not merely in spite of, its adverse effects upon an identifiable
group.” Id. at 360 (quoting Arlington Heights, 429 U.S. at 264-65; Personnel
Administrator v. Feeney, 442 U.S. 256, 279 (1979)). The Court continued, stating:
A neutral explanation in the context of our analysis here means an
explanation based on something other than the race of the juror. At this
step of the inquiry, the issue is the facial validity of the prosecutor’s
explanation. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race
neutral.
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 13 of 29
14
Id. The Court did, however, hold that a stated reason’s disparate impact on a
particular race may be considered as relevant evidence of purposeful discrimination
at Batson’s third step, where the trial court may consider the totality of the
circumstances in deciding whether it believes the prosecutor’s stated reason for the
strike or whether it believes that the stated reason is actually a pretext for racial
discrimination. Id. at 363.
Thus, a disparate impact theory cannot be used, by itself, to invalidate the
Government’s stated reasons for removal of a juror at step two of the Batson inquiry.
In United States v. Houston, 456 F.3d 1328 (11th Cir. 2006), the Eleventh Circuit
applied this principal to reject a similar argument to the one that Thomas appears to
be making here. In that case, the defendant argued that the prosecutor’s stated
reasons for dismissing four black venire members—that they each stated that they
had family members with criminal histories—was not race-neutral because statistics
show that significantly more blacks than whites are convicted of crimes in the United
States. Id. at 1336. The defendant argued that “requiring the venire members to
indicate whether they have had any family members convicted of crimes, and then
using their positive responses as the sole justification for disqualifying them, is a
strategy that impacts blacks more heavily than whites.” Id. In rejecting the argument,
the Eleventh Circuit noted that because claims of disparate impact are not cognizable
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 14 of 29
15
under the Equal Protection Clause of the Fourteenth Amendment or the Due
Process Clause of the Fifth Amendment, a disparate impact theory cannot be used
by itself to invalidate the Government’s stated reasons at step two of the Batson
inquiry. Id. (citing Washington v. Davis, 426 U.S. 229, 239 (1976)). Rather, it noted
that Batson requires a purposeful intent to discriminate. Id. The court then took note
of its prior cases holding that a potential juror’s prior family involvement with drug
charges is a “reasonably specific” and “neutral” explanation for a prosecutor’s
exercise of a peremptory strike against that juror. Id. at 1337 (citing United States v.
Alston, 895 F.2d 1362, 1367 (11th Cir. 1990)).
Additionally, post-Hernandez cases from other circuits have rejected the exact
disparate impact theory that Thomas raises here. The Seventh Circuit rejected the
argument that “the government’s proffered justification for the strike—bias against
law enforcement—is not race neutral because African-Americans are
disproportionately affected by negative interactions with law enforcement,”
holding, “Even accepting the premise of this argument, it does not support a finding
of pretext. Batson protects against intentional discrimination, not disparate impact.”
United States v. Brown, 809 F.3d 371, 375–76 (7th Cir. 2016), cert. denied, 136 S. Ct.
2034 (2016). The Eighth Circuit rejected the argument that “the real reason for
moving to strike [two black jurors] was that they exhibited strong agreement with the
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 15 of 29
16
suggestion that police could be wrong [and] this explanation is illegitimate and
discriminatory because distrust of police officers is prevalent among African
Americans.” United States v. Arnold, 835 F.3d 833, 842 (8th Cir. 2016).
Further, the Eleventh Circuit and other courts have accepted distrust of the
criminal justice system or law enforcement officers as a race-neutral explanation for
peremptorily challenging a juror. See United States v. Gamory, 635 F.3d 480, 496
(11th Cir. 2011) (“Juror 13 harbored doubts about her ability to be impartial based
upon her belief that her brother had been the victim of police brutality. . . . [This]
characteristic is [not] peculiar to any race.”); Brown, 809 F.3d at 376 (“[W]e have
acknowledged that bias against law enforcement is a legitimate race-neutral
justification.”); United States v. Alvarez-Ulloa, 784 F.3d 558, 567 (9th Cir. 2015)
(potential distrust of law enforcement may ground a peremptory strike); United
States v. Moore, 651 F.3d 30, 43 (D.C. Cir. 2011) (same), aff’d sub nom. Smith v.
United States, 568 U.S. 106 (2013).
All of this is to say that, if Thomas is asserting that it was racially
discriminatory for the Government to have struck K. Bell—or any of the other
individuals named in the motion—on the ground that she harbored negative views
of law enforcement, that claim fails.
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 16 of 29
17
Finally, although Thomas argues that the Court should have conducted
individual voir dire regarding each juror’s opinions on law enforcement, he cites to
no authority for such a proposition. Trial courts have broad discretion in deciding
the method of jury voir dire. Cummings v. Dugger, 862 F.2d 1504, 1507 (11th Cir.
1989). “The standard for evaluating the district court’s exercise of its discretion is
whether the procedure used for testing juror impartiality created ‘a reasonable
assurance that prejudice of the jurors would be discovered if present.’” Id. (quoting
United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983)). In some types of cases,
such as those where the defendants have been the subject of extensive pretrial
publicity, courts have ruled that the preferred approach is to conduct individual
examinations of the jurors. See, e.g., United States v. Davis, 583 F.2d 190, 196 (5th
Cir. 1978). This is not such a case, and Thomas has not demonstrated that individual
questioning was required for any reason.
3. Unrepresentative Jury
In addition to naming five individuals whom he says were illegally struck on
account of their race, Thomas also argues that the racial makeup of his jury violated
the principles of Batson. He cites U.S. Census data showing that the division from
which the jurors were drawn—Jefferson, Blount, and Shelby Counties—is roughly
1/3 black. He then asserts: “The jury that reached a verdict in this case (2 AfricanCase 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 17 of 29
18
Americans out of 12 or 16.7%; two additional African-Americans served as
alternates)1 was less than one-half as representative of the community of which Mr.
Thomas belongs.” (Doc. 162 at 2 n.1).
Thomas’s counsel made a similar argument on the first day of trial. After the
jury was struck, Thomas’s counsel noted that there was a “disparity” between the
“pretty substantial representation in the courtroom” of black individuals on the
venire and the black individuals remaining on the panel. (Doc. 159 at 102.) Thomas’s
counsel asked the Court to “toss” the “venire and the remaining panel” and “start
over so we can get a jury that is more representative of the community and would be
a juror [sic] of the peers of Mr. Thomas.” (Id. at 103.) As noted previously, this
Court responded,
“Numbers themselves don’t make out a Batson prima facie case.
Demonstration that someone is struck for—that didn’t give any reason to strike
them would be the kind of information that I would need, particularly if you can
compare that to white jurors that were not struck saying the same thing.” (Id. at 104.)
As an initial matter, the Court does not read Thomas’s “unrepresentative
jury” claim as asserting that the Northern District of Alabama’s jury selection
procedures disproportionately exclude black individuals from jury service. Those
types of challenges are generally raised pursuant to one of the following: (1) the Sixth
1 Again, Thomas is incorrect. One of the two alternate jurors was black.
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 18 of 29
19
Amendment right to a jury pool that is composed of a fair cross-section of the
community, see Duren v. Missouri, 439 U.S. 357 (1979); (2) the Fifth Amendment
rights of jurors to equal protection under the law, see Cunningham v. Zant, 928 F.2d
1006 (11th Cir. 1991); or (3) a violation of the Jury Selection and Service Act of 1968,
28 U.S.C. § 1861, et seq., which provides that “all litigants shall have the right to
grand and petit juries selected at random from a fair cross section of the community
in the district or division wherein the court convenes,
” see United States v. Maskeny,
609 F.2d 183, 191 (5th Cir. 1980). See United States v. Grisham, 63 F.3d 1074, 1077
(11th Cir. 1995). The challenger must usually show “(1) that the group alleged to be
excluded is a distinctive group in the community, (2) that representation of the group
in venires is not fair and reasonable in relation to the number of persons in the
community, and (3) that the underrepresentation is due to a systematic exclusion of
the group in the jury-selection process.” Id. at 1078 (citing Duren, 439 U.S. at 364).
However, so long as there is no allegation of racial gerrymandering, “selecting juries
at random from a predetermined geographical area provides a sufficiently diverse
jury pool to ensure impartiality.” Id. at 1080.
Although at trial, Thomas’s counsel urged the Court to “toss” the entire
“venire,” Thomas does not now avail himself of any of these methods of establishing
that his venire, or his panel, was racially disproportionate to his community.
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 19 of 29
20
Moreover, Thomas has certainly made no indication that there exists any kind of
systemic exclusion of black individuals as jurors in the Northern District of Alabama.
In any event, the Court’s records show that the racial makeup of the jury
venire in this case was indeed proportionate to the racial makeup of Thomas’s
community. The undersigned directed the Clerk of Court to keep all records
pertaining to the individuals summoned to appear for the jury venire in this case. (See
doc. 159 at 6.) Those records establish that 200 individuals were summoned for the
pool of jurors. Of those 200, 47 (23.50%) were black.2 The Court’s computer system
randomly selected 61 of those 200 individuals to form a jury venire. Fifty-two of
those 61 actually reported for jury duty on the first day of trial. Out of those 52, 15
(28.85%) were black.3 From this 52-person venire that included 15 black individuals,
35 were randomly selected by the computer system to go into the courtroom for voir
dire. The remaining members of the panel stayed in the jury assembly room in case
they were needed, but they were not. Out of this 35, eight (22.86%) were black.4
Thus, the percentage of black individuals versus individuals of other races that were
2 146 were white, three were Asian, one identified as “Other,” and three identified as
“Unknown.”
3 34 were white, two were Asian, and one identified as “Unknown.”
4 26 were white, and one was Asian.
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 20 of 29
21
summoned for this case was certainly not drastically disproportionate to the number
of black individuals that Thomas claims reside in his community.
In an abundance of caution, the Court will address the possibility that
Thomas’s “unrepresentative jury” claim is a Batson challenge premised on the fact
that the Government used four out of its six peremptory challenges to remove black
individuals. However, as the Eleventh Circuit explained in Central Alabama Fair
Housing Center, Inc., Thomas must show more than “numbers alone” to be
successful on a Batson claim:
To begin with, the mere fact of striking a juror or a set of jurors of a
particular race does not necessarily create an inference of racial
discrimination. The number of persons of a particular race struck takes
on meaning only when coupled with other information such as the racial
composition of the venire, the race of others struck, or the voir dire
answers of those who were struck compared to the answers of those
who were not struck. This Court has held that “[i]n making out a prima
facie case, ‘the defendant must point to more than the bare fact of the
removal of certain venire persons and the absence of an obvious valid
reason for the removal’.” United States v. Allison, 908 F.2d 1531, 1538
(11th Cir. 1990). A party advancing a Batson argument ordinarily should
“come forward with facts, not just numbers alone.” United States v.
Bergodere, 40 F.3d 512, 516 (1st Cir. 1994). Consequently, a showing
that a party used its authorized peremptory strikes against jurors of one
race does not, standing alone, establish a prima facie case of
discrimination.
That said, an inference of discrimination based on the number of jurors
of a particular race may arise where there is a substantial disparity
between the percentage of jurors of one race struck and the percentage
of their representation on the jury. See, e.g., United States v. Alvarado,
923 F.2d 253, 255 (2d Cir. 1991) (“Only a rate of minority challenges
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 21 of 29
22
significantly higher than the minority percentage of the venire would
support a statistical inference of discrimination.”); United States v.
David, 662 F. Supp. 244, 246 (N.D. Ga. 1987) (finding that “[a]though
the percentage of black jurors struck from a jury panel might establish a
prima facie case in some instances, here it does not because . . . the
number of black persons on the regular panel was small.”). Thus, the
number of jurors of one race struck by the challenged party may be
sufficient by itself to establish a prima facie case where a party strikes
all or nearly all of the members of one race on a venire. See United States
v. Williams, 936 F.2d 1243, 1246 (11th Cir. 1991) (finding a prima facie
case where prosecutor struck all of the African–American members of
the venire).
236 F.3d at 636-37.
As noted previously, eight of the 35 members of the jury venire were black.
Gissendanner and Thomas were allotted a combined ten peremptory juror strikes
and one peremptory alternate strike, and the Government was allotted six
peremptory juror strikes and one peremptory alternate strike. Gissendanner and
Thomas used two of their ten peremptory strikes to remove black jurors, and the
Government used four of its six peremptory strikes to remove black jurors. Two
black individuals ultimately served on the twelve-person jury, and one black
individual served as an alternate juror.
Thus, the Government did not strike all, nearly all, or even most black
individuals from the venire. The Eleventh Circuit has held that the unchallenged
presence of jurors of a particular race on a jury substantially weakens the basis for a
prima facie case of discrimination in the peremptory striking of jurors of that race.
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 22 of 29
23
See, e.g., United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995) (“Although the
presence of African–American jurors does not dispose of an allegation of race-based
peremptory challenges, it is a significant factor tending to prove the paucity of the
claim.”); United States v. Allison, 908 F.2d 1531, 1537 (11th Cir. 1990) (finding that
the unchallenged presence of black individuals on a jury undercuts the inference of
impermissible discrimination that might arise solely from striking other black
prospective jurors); United States v. Dennis, 804 F.2d 1208, 1211 (11th Cir. 1986)
(“[T]he unchallenged presence of two blacks on the jury undercuts any inference of
impermissible discrimination that might be argued to arise from the fact that the
prosecutor used three of the four peremptory challenges he exercised to strike blacks
from the panel of potential jurors and alternates.”).
Thus, viewed in context, the fact that the Government used four of its six
peremptory strikes to remove black jurors does not establish a prima facie case of
discrimination under Batson. Two black individuals (including Juror E. Plain, who
had also expressed some distrust of law enforcement) ultimately served on the
twelve-person jury, and one black juror served as an alternate. Any claim premised
on the number of black individuals struck by the Government fails.
B. Brady Issues and Witness Annethia Anderson
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 23 of 29
24
Thomas also argues that the Government violated his right to a fair trial by
withholding an allegedly exculpatory interview with Government witness Annethia
Anderson (“Anderson”) until the first day of trial and later disavowing her trial
testimony during its closing argument.
1. Background
The evidence showed that Thomas participated in a conspiracy with
Gissendanner and othersto distribute drugs. Gissendanner orchestrated the delivery
of a package containing heroin and a drug press to Thomas on April 10, 2019. Law
enforcement intercepted the package earlier that day after Anderson had delivered
it to Darrell Haynes (“Haynes”), a confidential informant. Law enforcement
replaced the heroin with “sham” heroin. After Thomas accepted the package,
Thomas was arrested and his phone was seized.
Anderson was indicted in this case as a co-conspirator but was allowed to enter
into a pretrial diversion agreement with the Government in exchange for her
testimony at trial. At trial, Anderson discussed the April 10th package and several
others she handled at the request of Gissendanner. Anderson testified that she did
not know the precise contents of the packages but came to be suspicious of them after
a comment made to her by Haynes on April 10th.
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 24 of 29
25
On June 9, 2020, Anderson gave an interview to law enforcement. The
Government provided a recorded copy of the interview to Gissendanner and
Thomas’s counsel on the first morning of trial. Anderson’s interview was largely
consistent with her trial testimony in that she stated that she did not know what was
in the packages that she handled for Gissendanner. Trial began on August 24 and
concluded on August 26, 2020. Thomas’s counsel made no motion to continue or
delay the proceedings during trial on account of Anderson’s interview.
2. Anderson’s Interview
The first part of Thomas’s Brady claim is that the Government delayed in
providing him with the recorded interview of Anderson’s statement to law
enforcement until the first day of trial.
Brady obligates the government to disclose only favorable evidence that is
“material.” The “touchstone of materiality is a ‘reasonable probability’ of a
different result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Accordingly, under
Brady, the government need only disclose during pretrial discovery (or later, at the
trial) evidence which, in the eyes of a neutral and objective observer, could alter the
outcome of the proceedings. United States v. Jordan, 316 F.3d 1215, 1252 (11th Cir.
2003). A Brady violation can occur if the prosecution delays in transmitting evidence
during a trial, but only if the defendant can show prejudice, e.g., the material came
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 25 of 29
26
so late that it could not be effectively used. United States v. Beale, 921 F.2d 1412, 1426
(11th Cir. 1991).
Thomas’ claim of a Brady violation fails for several reasons. First, Anderson’s
interview does not contain information favorable to Thomas. There was no evidence
introduced at trial to suggest that Anderson knew or ever communicated with
Thomas. Indeed, the package she handled that was intercepted by law enforcement
on April 10th was ultimately delivered to Thomas by another witness. Accordingly,
Anderson’s knowledge as to the April 10th package’s contents had no direct bearing
on Thomas’s knowledge of them or his guilt of the conspiracy with which he was
charged. Put another way, Anderson’s knowledge of the contents of the April 10th
package does nothing to exculpate Thomas as to his conspiracy with Gissendanner
and others.
Second, Anderson’s interview was not “material” in the Brady analysis, given
the context of the other evidence presented at trial. For example, evidence was
presented that: Thomas and Gissendanner communicated by phone the day before
the April 10th heroin delivery; Thomas’s phone contained images of kilogram-sized
quantities of suspected drugs; Thomas’s phone contained an image of a heroin fieldtest kit and its results; Thomas’s phone provided evidence of other, apparently drugrelated conversations with unidentified conspirators; and surveillance video from
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 26 of 29
27
the barber shop where Thomas accepted the April 10th package shows Thomas
looking into the package (containing a drug press and sham heroin) after he received
it. In view of these and other items of evidence presented at trial, Anderson’s
interview to law enforcement, if it had been provided to Thomas’s counsel earlier,
would not have altered the outcome of the trial.
Indeed, while Thomas claims that this pre-trial disclosure was not early
enough, he did not seek any continuance at trial, and he fails now to provide the
Court with any example of how he was unable to effectively use Anderson’s
interview as part of his defense. Thomas claims that his defense theory was that he,
like Anderson, was not aware of the contents of the April 10th package that was in
his possession for a very short period before he was arrested. Thomas was provided
ample opportunity to explore this defense and present evidence of it at trial.
However, whether Thomas knew what was in the package or not is irrelevant
because specific knowledge of the contents of the April 10th package was not an
element of the charge against which Thomas had to defend. Rather, Thomas stood
accused of willfully joining a conspiracy that lasted several weeks, and the evidence
at trial showed communications with co-conspirators regarding drug trafficking on
dates other than April 10th.
2. The Government’s Closing Argument
Case 2:19-cr-00461-LSC-JHE Document 168 Filed 01/08/21 Page 27 of 29
28
The second part of Thomas’s Brady claim is that the Government knowingly
presented false testimony by Anderson and then “disavowed” it in its closing
argument. The portion of the Government’s closing argument about which Thomas
complains is as follows:
LIKEWISE, WITH MS. ANDERSON, WHO TESTIFIED EARLIER
TODAY, SHE WAS GIVEN A PRETRIAL DIVERSION
AGREEMENT. AND SHE KNEW THAT SHE HAD TO COME IN
AND TESTIFY TO HER ROLE IN THIS. AGAIN, KNOWS T.J.,
KNOWS MR. GISSENDANNER THROUGH HER WORK IN THE
DEPARTMENT OF CORRECTIONS, NO QUESTION THAT
SHE WAS TALKING TO HIM WHEN HE ASKED HER TO DO
HIM A FAVOR, AND THEN DO HER A FAVOR. EVEN MS.
ANDERSON, WHO TESTIFIED SHE HAS NO CONVICTIONS,
SHE HOPES NOT TO HAVE A CONVICTION COMING OUT OF
THIS PROCEEDING, THAT SHE NEVER LOOKED IN A BOX,
EVEN SHE KNEW THAT SOMETHING WASN’T RIGHT
ABOUT THIS. EVEN SHE COULD SUSPECT –
(Doc. 161 at 152.)
Thomas’s claim fails. The Government merely highlighted in closing the fact
that Anderson admitted that she came to be suspicious of the nature of the packages
she delivered for Gissendanner after Haynes made a comment to her on April 10th.
Thomas’s claim that the Government knowingly presented perjured testimony is
baseless.
Outcome: For the aforementioned reasons, Thomas’s motion for new trial (doc. 162) is
hereby DENIED.
DONE and ORDERED on January 8, 2021
Plaintiff's Experts:
Defendant's Experts:
Comments: