United States v. Eugene Thompson ( 2013 )

MODIFIED NOVEMBER 18, 2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 12-31203 November 12, 2013
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
EUGENE THOMPSON,
Defendant–Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Eugene Thompson, as a member of a six-person drug conspiracy, was con-
victed by a jury of violations of federal drug and gun laws. He appeals the denial
of his Batson challenge and questions the sufficiency of the evidence. Finding
No. 12-31203
no reversible error, we affirm.
I.
Thompson faced four counts. He was charged in Count One with conspir-
acy to distribute and possess with intent to distribute more than 280 grams of
crack cocaine, in violation of 21 U.S.C. § 846; in Count Two with possession with
intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A) and (C) and 18 U.S.C. § 2; in Count Three with possession of a firearm
in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)-
(1)(A)(I) and 18 U.S.C. § 2; and in Count Four with possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 942(a)(2).
During voir dire, Thompson challenged the government’s decision to use
five of its seven peremptory strikes against black prospective jurors (Jurors 4,
23, 25, 26, and 37) under Batson v. Kentucky, 476 U.S. 79 (1986). Assuming
arguendo that Thompson had established a prima facie case of discrimination,
the district court asked the prosecutor to articulate the reasons for the strikes.
For Jurors 23 and 37, the government justified its decision solely on its observa-
tions of the juror’s demeanor1 during voir dire.2 For Jurors 4, 25, and 26, the
1
References to a juror’s demeanor include any of the following observations: a juror’s
looking at, acknowledging, or smiling at one party but not the other; a juror’s inattentiveness,
or attentiveness to one side but not the other; a juror’s lack of eye contact; a juror who exagger-
ates; a juror’s apparent nervousness; a juror who exhibits a hostile demeanor; a juror’s physi-
cal appearance; and a juror’s facial expressions. See KEVIN F. O’MALLEY, JAY E. GRENIG &
HON. WILLIAM C. LEE, 1 FEDERAL JURY PRACTICE AND INSTRUCTIONS § 4:9 (6th ed. 2013) (citing
cases).
2
The government noted that Juror 23 “sat there, looking disinterested and annoyed.
He was stern when he was awake. His arms were folded.” The government similarly noted
that Juror 37 “sat there, looking lost. He did something like thisSSindicatesSSwith hisSSmy
sense is he was lost and wasn’t engaged.” The record does not further clarify what gesture the
government claims Juror 37 made.
2
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government relied on both observations of the juror’s demeanor3 and other
perceived sources of bias toward the government.4
After hearing each of the prosecutor’s justifications, the court gave Thomp-
son an opportunity to argue that those reasons were pretext for discrimination.
Defense counsel disputed the government’s characterizations of the jurors’
demeanor5 and the other stated justifications.6 Having been able to witness the
3
The government noted that Juror 4 “throughout the case . . . sat there . . . look[ing]
perturbed throughout the whole process.” The government likewise observed that Juror 25
“sat there with his arms folded . . . wearing a mean look on his face.” The government noted
that “one of [its] agents said that [Juror 25] had glared at [the agent].” The government also
noted Juror 26’s demeanor as a basis to strike: “In addition, I mean, the demeanor, when he
sat there, looking down. And we actually saw him smirk at one point in response to an answer
that someone else made.”
4
The government additionally justified striking Juror 4 because “her son was arrested
for selling weed.” The government was consequently “concern[ed] with her sympathizing with
the defendant here on trial.” Likewise, the government additionally justified striking Juror 25
for his prior incident with law enforcement: “[W]hen he was brought up to the stand, he told
the judge that he had been arrested and had spent the night in jail on a contraband use
charge.” According to the government, “the explanation he gave was it was his right to do it.
So there was a conflict of whether he felt he should have been in jail, could have harbored
some resentment against the government.” In addition to his demeanor, the government
struck Juror 26 because he was employed as a postal server. Because the U.S. Attorney’s
Office prosecutes post office employees, the government claimed to have “had problems with
them in the past as jurors.”
5
Defense counsel disagreed with the government’s observation of Juror 4’s demeanor:
“I did not observe the characteristics that Mr. Carter displayed.” Defense counsel likewise
disagreed with Juror 23’ s demeanor: “I did not observe these characteristics of No. 23. He
did seem an honest, intelligent man, who has currently served as an organist at his church.”
Similarly with Juror 25’s demeanor: “I looked at the same gentleman. I did not notice him
glaring at the agent at all.” And Juror 26: “And, again, we have a smirk, we have an awe, we
have a glare. It’s all pretextual type innuendo, which every last juror if you look may have
sneezed or yawned or made a facial expression. Therefore, all of these challenges are not valid
for race.” And, finally, a similar disagreement with an assessment of Juror 37’s demeanor:
“I did not notice him glaring or looking.”
6
Defense counsel also indicated that the government’s second rationale with respect
to Juror 4 applied to other white jurors who were not struck: “Additionally, there were multi-
ple white jurors who indicated that family members had been subject to criminal convictions
and/or arrests. Those jurors were not subject to the same strikes.” For Juror 26, defense coun-
sel argued that there was no indication on the record that he was biased on account of his posi-
(continued...)
3
No. 12-31203
voir dire and assess each side’s credibility, the court denied the Batson chal-
lenge, finding each of the government’s proffered reasons credible. Thompson
appeals the denial of his Batson challenge.
Following this exchange, in light of the fact that the defense had used all
eleven of its peremptory challenges on white jurors, the government made a
reverse Batson challenge. Just like the government, defense counsel justified
some of its peremptory challenges solely on the basis of demeanor.7 As with the
government, the district court credited the defense’s observations of the jurors
as facially-neutral, non-pretextual justifications. The court, however, found two
of the justifications given by defense counsel to be pretextual.8 Thompson does
not appeal the grant of the reverse Batson challenge.9
After the close of the government’s case, Thompson moved for a judgment
of acquittal, which, after hearing arguments, the district court denied. The jury
found Thompson guilty on all counts. Thompson appeals the denial of the
motion for acquittal.
6
(...continued)
tion as a postal employee: “[T]here was no question asked in this session or in any part of the
voir dire process when you addressed whether the potential juror was disposed or biased as
a postal employee. There was no reference to him or anyone in his immediate circle being a
victim of an investigation and/or conviction.”
7
For Juror 19, defense counsel observed that he “was not engaged . . . not necessarily
disinterested, but didn’t seem to follow the direction and the instruction in a way that he was
engaged in the jury selection process.” Similarly, defense counsel “didn’t find [Juror 30] to be
paying close attention and following.” Likewise, contrary to the government’s assessment,
defense counsel “didn’t see [Juror 36] acting and following closely as the other ones, the other
jurors in that particular panel were.”
8
The district court rejected defense counsel’s justifications for striking Jurors 17
and 20. For Juror 17, defense counsel “felt that she would have superior ability to influence
the potential jurors based on her status as an administrator at Delgato [sic] Community Col-
lege.” For Juror 20, defense counsel believed that “as a potential homemaker, that, if the trial
were to last longer than two days, perhaps it would be an inconvenience on her.”
9
Because Thompson did not raise this issue on appeal, we consider the argument to be
waived. State v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
4
No. 12-31203
II.
In Batson v. Kentucky, 476 U.S. 79, 93–98 (1986), the Court outlined a
three-part framework for evaluating claims that a prosecutor used peremptory
challenges in violation of the Equal Protection Clause. To raise a successful Bat-
son challenge, a defendant must first make a prima facie showing that the prose-
cutor used a peremptory challenge to strike a juror on the basis of his race.
Second, if the defendant has made such a showing, the prosecution must then
offer a race-neutral basis for the strike. Finally, the district court must
determine whether the defendant has carried his burden of proving purposeful
discrimination.
A district court makes a finding of fact when it determines whether a pro-
secutor has purposively discriminated on the basis of race in striking a juror.
See Hernandez v. New York, 500 U.S. 352, 367 (1991). This court does not over-
turn such factual findings absent clear error. See United States v. Bentley-
Smith, 2 F.3d 1368, 1372 (5th Cir. 1993). These factual findings warrant great
deference, because the district court “observ[es] the voir dire, know[s] the layout
of the courtroom better than a written description can provide, and [is] able to
consider the demeanor of the prosecutor.” United States v. Turner, 674 F.3d 420,
436 (5th Cir.), cert. denied, 133 S. Ct. 302 (2012).10 We review the government’s
proffered race-neutral explanation as a legal issue de novo. United States v.
Williams, 264 F.3d 561, 571 (5th Cir. 2001).
Thompson has raised Batson challenges on all of the five black jurors
struck. To succeed on his Batson challenge, however, he only needs to show that
10
See also Hernandez, 500 U.S. at 367 (“[I]f an appellate court accepts a trial court’s
finding that a prosecutor’s race-neutral explanation for his peremptory challenges should be
believed, we fail to see how the appellate court nevertheless could find discrimination. The
credibility of the prosecutor’s explanation goes to the heart of the equal protection analysis,
and once that has been settled, there seems nothing left to review.”).
5
No. 12-31203
the prosecutor struck one juror on the basis of race.11
We do not need to address whether Thompson has sufficiently established
a prima facie case of discrimination. The government’s offer of race-neutral
reasons removes that question from our review.12
Turning to Batson’s second step, for two of the five black jurors struck, the
government justified its decision solely13 on its observations of the jurors’
demeanor during voir dire. For the other three black jurors, the government jus-
tified its decision to strike on both observations of demeanor and other perceived
sources of bias toward the government. None of these justifications, on its face,
invokes the juror’s race.14
Thus, moving to Batson’s third step, the question is whether, contrary to
the district court’s finding, Thompson has proven that the government’s pur-
ported facially neutral reasons were pretexts for purposeful discrimination. At
this step in the Batson analysis, “implausible or fantastic justifications may (and
11
See Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (“[T]he Constitution forbids strik-
ing even a single prospective juror for a discriminatory purpose.” (internal quotation marks
and citation omitted)).
12
See Hernandez, 500 U.S. at 359 (“Once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court has ruled on the ultimate ques-
tion of intentional discrimination, the preliminary issue of whether the defendant had made
a prima facie showing becomes moot.”); United States v. Broussard, 987 F.2d 215, 220 n.4 (5th
Cir. 1993).
13
Technically, the government also justified striking Juror 37 by expressly stating that
its decision was not motivated by considerations of race: “It had nothing to do with racism.”
Courts do not, however, give any weight to these types of disavowals of racial motivations. See
Batson, 476 U.S. at 98 (“Nor may the prosecutor rebut the defendant’s case merely by denying
that he had a discriminatory motive or ‘affirm[ing] [his] good faith in making individual selec-
tions.’”) (quoting Alexander v. Louisiana, 405 U.S. 625, 632 (1972)).
14
This court has routinely found demeanor to be a race-neutral justification. See, e.g.,
United States v. Turner, 674 F.3d 420, 436 (5th Cir. 2012) (“We have specifically approved of
eye contact, or the lack thereof, as a valid neutral explanation.”); Moore v. Keller Indus., Inc.,
948 F.2d 199, 202 (5th Cir. 1991) (“We also have found ‘disinterested demeanor’ and ‘inatten-
tiveness’ to be valid, race-neutral reasons for peremptory strikes.”).
6
No. 12-31203
probably will) be found to be pretexts for purposeful discrimination.” Purkett v.
Elem, 514 U.S. 765, 768 (1995) (per curiam). A prosecutor’s intuitive assump-
tions, inarticulable factors, or even hunches can, however, be proper bases for
rejecting a potential juror. See Bentley-Smith, 2 F.3d at 1374. At Batson’s third
step, courts do not assess whether “counsel’s reason is suspect, or weak, or irra-
tional.” Id. at 1375. Instead, courts address “whether counsel is telling the
truth in his or her assertion that the challenge is not race-based.” Id. In deter-
mining whether a prosecutor discriminated on the basis of race, a court should
consider “the totality of the relevant facts.” Hernandez, 500 U.S. at 363 (quoting
Washington v. Davis, 426 U.S. 229, 242 (1976)).
Thompson only hints at three possible reasons the government’s justifi-
cations could be pretext for purposeful racial discrimination. First, Thompson
points to the relatively high percentage of black potential jurors struck by the
prosecutorSShere 71%. This fact by itself, while certainly relevant, does not
establish purposeful discrimination.15
Second, Thompson argues that because the prosecutor treated similarly-
situated jurors of a different race unequally, the prosecutor’s race-neutral justifi-
cation should be viewed as pretext for purposeful discrimination. The Supreme
Court has recently endorsed such a side-by-side analysis.16 Of the five black pro-
spective jurors challenged, Thompson has, however, only sought comparison of
Juror 4 with other non-black jurors in an effort to show purposeful discrimina-
tion. We accordingly limit our side-by-side comparison analysis to Juror 4.
15
See Miller-El v. Cockrell, 537 U.S. 322, 331 (2003) (“91% of the eligible black jurors
were removed by peremptory strikes. In contrast the prosecutors used their peremptory
strikes against just 13% (4 out of 31) of the eligible nonblack prospective jurors qualified to
serve on petitioner’s jury. These numbers, while relevant, are not petitioner’s whole case.”).
16
See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (“If a prosecutor’s proffered reason
for striking a black panelist applies just as well to an otherwise-similar nonblack who is per-
mitted to serve, that is evidence tending to prove purposeful discrimination to be considered
at Batson’s third step.”).
7
No. 12-31203
As discussed above, the government relied on two race-neutral justifica-
tions in striking Juror 4. First, it struck her on the basis of demeanor, observing
that “throughout the case, she sat there . . . look[ing] perturbed throughout the
whole process.” Second, the government justified striking Juror 4 because “her
son was arrested for selling weed.” In response, Thompson contends that the
venire contained “multiple white jurors who indicated that family members had
been subject to criminal convictions and/or arrests” and who were not similarly
struck.
The district court considered Jurors 7, 40, and 44 as potential similarly sit-
uated non-black jurors whom the government failed to strike.17 The government
also urged the court to use Juror 16, also a black female with a family member
convicted of a criminal offense (armed robbery), as the proper basis for compari-
son. The government justified its decision not to strike Juror 16, because, unlike
Juror 4, Juror16 did not have a perturbed demeanor: “Based [on] . . . her
demeanor [in] the courtroom, the government chose not to strike her . . . . . They
are quite similar in their background. One sat there, looked pained and both-
ered. One did not.”
In justifying its decision not to strike Jurors 7, 40, and 44, the government
similarly noted that, as a general matter, those jurors did not share Juror 4’s
demeanor: “Those jurors did not sit there looking bothered and pained to be
here.” In fact, the government pointed out that it nevertheless would have
struck Juror 7 if Thompson had not done so first. The government thought
Juror 44 “never would have come into play,” presumably because a jury would
17
Thompson’s brief does not specifically refer to any set of jurors as the appropriate
comparison group, only vaguely referencing “[m]ultiple white jurors.” During oral argument,
defense counsel, for the first time, suggested that Juror 4 should be compared to Jurors 2, 7,
12, and 31. In light of the insufficient briefing on this issue, we consider defense counsel to
have waived any argument that Juror 4 should be compared to Jurors 2, 12, and 31. See
United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992).
8
No. 12-31203
have already been selected before reaching him. The government did not provide
any additional specific justification for its decision not to strike Juror 40. The
district court found the government’s explanation to be “credible.”
This side-by-side comparison does not reveal that the government purpose-
fully discriminated in striking Juror 4. The government’s comparison between
Jurors 4 and 16 is persuasive. If its justification for striking Juror 4 was pretex-
tual, one would expect it to have used the same justification to strike Juror 16,
which it did not. The discussion of Jurors 7, 40, and 44 in the record similarly
does not compel us to find purposeful discrimination.
Of course, in determining whether the government’s justification was in
fact pretextual, the district court had access to other relevant factors that cannot
be judged from a cold record: The court witnessed the voir dire and was able to
assess the prosecutor’s credibility. Thompson has not and cannot point to any-
thing in the record that shows that the court committed clear error.
Finally, Thompson argues that Snyder v. Louisiana, 552 U.S. 472 (2008),
entitles him to succeed on his Batson challenge. Specifically, he urges that if a
prosecutor, in response to a Batson challenge, justifies its use of a peremptory
challenge solely on the juror’s demeanor, Snyder requires the district court to
state its assessment of demeanor on the record.
Before we address Thompson’s claim, a discussion of Snyder is instructive.
There, the prosecution struck all five of the prospective black jurors who
remained on the thirty-six-member venire. In justifying his decision to strike
Jeffrey Brooks, a black juror, the prosecutor offered two race-neutral explan-
ations: (1) “[T]he main reason is that he looked very nervous to me throughout
the questioning;” and (2) “[H]e’s one of the fellows that came up at the beginning
[of voir dire] and said he was going to miss class. He’s a student teacher. My
main concern is . . . that he might, to go home quickly, come back with guilty of
a lesser verdict so there wouldn’t be a penalty phase.” Id. at 478. The trial court
9
No. 12-31203
found that Snyder had not established purposeful discrimination and denied his
Batson challenge. See State v. Snyder, 750 So. 2d 832, 841 (La. 1999).
The Supreme Court reversed the conviction, finding that the trial court
had committed clear error in rejecting Snyder’s Batson objection. The Court
began its discussion by reaffirming the principle it had announced in Hernandez:
“[D]eference is especially appropriate where a trial judge has made a finding
that an attorney credibly relied on demeanor in exercising a strike.” Snyder, 552
U.S. at 479. Because “[t]he trial judge was given two explanations for the
strike,” and “the trial judge simply allowed the challenge without explanation,”
however, “the record [did] not show that the trial judge actually made a deter-
mination concerning [the juror’s] demeanor.” Id. In a case in which two race-
neutral justifications have been advanced, “[i]t is possible that the judge did not
have any impression one way or the other concerning [the juror’s] demeanor.”
Id. Therefore, because of this ambiguity in the record, the Court could not pre-
sume that “the trial judge credited the prosecutor’s assertion that [the juror] was
nervous.” Id.
The Snyder Court’s holding, furthermore, depended on its conclusion that
the prosecution’s second reason for the strike was “suspicious,” “implausib[le],”
and “pretextual.”18 Id. at 482–83, 485. Consequently, the Court concluded that
“in light of the circumstances hereSSincluding [the] absence of anything in the
record showing that the trial judge credited the claim that [the juror] was ner-
vous, the prosecution’s description of both of its proffered explanations as ‘main
concern[s],’ and the adverse inference [arising from the pretextual second justifi-
cation]SSthe record does not show that the prosecution would have preemptively
18
The Supreme Court found three persuasive reasons to believe the prosecutor’s second
justification was pretextual: (1) the brevity of the trial, (2) the juror’s lessened concern upon
his dean’s assurances that any interruption would not cause a problem, and (3) the prosecutor
did not challenge similarly-situated white jurors who had more onerous conflicts. See id.
at 482–84.
10
No. 12-31203
challenged [the juror] based on his nervousness alone.” Id. at 485 (citation
omitted).
Thompson urges that Snyder should be extended to his facts: where the
prosecutor has offered only a demeanor-based justification and the district court,
though crediting the prosecutor’s justification, has not made any specific findings
of the juror’s demeanor on the record. Thompson contends that these demeanor-
based justifications are “subject to abuse” and are “not easily reviewed.”
The circuits have disagreed on the extent to which Snyder imposes an
affirmative duty on the district court to make record findings where the prosecu-
tor has offered only a demeanor-based justification. The Seventh Circuit has
read Snyder to impose an obligation on the court to make record findings, follow-
ing a Batson challenge, where a prosecutor justifies the strike solely on the basis
of the juror’s demeanor. See United States v. McMath, 559 F.3d 657, 665-66 (7th
Cir. 2009). In McMath, the district court “did not indicate whether it agreed that
Juror 7 had an unhappy expression on his face, did not indicate whether this
expression was unique to Juror 7 or common to other jurors, and made no evalu-
ation of the prosecutor’s credibility.” Id. at 666 (emphasis added). The district
court merely denied the Batson challenge. Id. In justifying its decision to
remand for an evidentiary hearing, the Seventh Circuit noted that “Synder
makes clear that a summary denial does not allow us to assume the prosecu-
tion’s reason was credible; rather the district court’s silence leaves a void in the
record that does not allow us to affirm the denial.” Id. McMath did not, how-
ever, specify what district-court findings would have been sufficient to have met
its Batson obligations.19
The Eleventh Circuit, on the other hand, has not read Snyder to impose
19
McMath, 559 F.3d at 666 (“We thus conclude that the district court clearly erred in
denying the Batson challenge without making findings regarding the credibility of the prof-
fered race-neutral justification for the strike.”).
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No. 12-31203
any obligation to make record findings in this situation. See United States v.
Prather, 279 F. App’x 761, 767 (11th Cir. 2008) (per curiam). As that court
explained, “The Supreme Court did not reverse Snyder’s conviction because the
district court had failed to explain itself clearly, but because it was unclear
whether the district court’s finding rested on a plausible or implausible explana-
tion for the strike.” Id.
We agree with the Eleventh Circuit that Snyder does not require a district
court to make record findings of a juror’s demeanor where the prosecutor justi-
fies the strike based on demeanor alone. This requirement would severely
undercut the Supreme Court’s repeated observation that the third step of Batson
depends on an assessment of the prosecutor’s credibility. See Hernandez, 500
U.S. at 365.
Furthermore, the Supreme Court itself appears to read Snyder that way.
In a habeas corpus case, a panel of this court addressed circumstances in which
two different trial judges had presided over voir dire and the second judge, who
credited the government’s demeanor-based justification, had never personally
viewed the prospective juror at issue. See Haynes v. Quarterman, 561 F.3d 535,
537 (5th Cir. 2009). The panel found that “clearly established” Supreme Court
precedent required a trial court to conduct, on the record, a “‘factual inquiry’ or
‘sensitive’ inquiry into the demeanor-based reasons” for the strike. Id. at 541.
The Supreme Court reversed, Thaler v. Haynes, 559 U.S. 43 (2010), decid-
ing that none of its “clearly established” precedent had created an obligation on
a district court to make record findings of a juror’s demeanor. Id. at 49. The
Court found the panel’s reliance on Snyder to be misplaced: “In holding that
respondent is entitled to a new trial, the Court of Appeals cited two decisions of
this Court, Batson and Snyder, but neither . . . held that a demeanor-based
explanation for a peremptory challenge must be rejected unless the judge per-
sonally observed and recalls the relevant aspect of the prospective juror’s
12
No. 12-31203
demeanor.” Id. at 47.
It is true that Haynes establishes only that no Supreme Court decision
“clearly established” the rule advanced by Thompson. Because AEDPA’s20
limitation of “clearly established” Supreme Court precedent does not apply to our
review on direct appeal, we could adopt the Haynes panel’s reasoning in the
instant case. For the reasons discussed above, however, we respectfully take a
different view of Snyder.
Furthermore, requiring district courts to make record findings of jurors’
demeanor would not be workable. A district court, unlike the attorneys, may not
always be a position to observe and record a potential juror’s demeanor. Of
course, if the district court has had the opportunity to observe and note a juror’s
demeanor, and the prosecutor justifies its strike based on demeanor, it would be
better practice for the court to put its findings on the record. But Snyder does
not require that.
In this case, the prosecutor justified striking two black jurorsSSJurors 23
and 37SSsolely on the basis of their demeanor. For Juror 23, the district court
found “the government’s explanation credible.” For Juror 37, the court made
record findings on his demeanor: “I will say for the record that I did notice
[Juror] 37 sort of looking up to the ceiling.”
Unlike the records in Snyder and McMath, the record before us makes
clear that, for both jurors, the district court found the prosecutor’s demeanor-
based justification credible. Furthermore, unlike the prosecutor in Snyder, the
prosecutor here did not offer a second, suspect justification for either juror. Sny-
der requires no more. There is no reversible error in the district court’s failure
to make further record findings on Juror 23’s demeanor.
20
See the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
13
No. 12-31203
III.
Challenging the sufficiency of the evidence to convict, Thompson appeals
the denial of his motion for a judgment of acquittal. See FED. R. CRIM. P. 29(a).
We review the denial de novo. United States v. Greer, 137 F.3d 247, 249 (5th Cir.
1998). We consider the evidence, all reasonable inferences drawn from it, and
all credibility determinations in the light most favorable to the government, and
we affirm if a reasonable jury could find the offense’s essential elements proven
beyond a reasonable doubt. See United States v. Mulderig, 120 F.3d 534, 546
(5th Cir. 1997). Reviewing the sufficiency of the evidence is not about whether
the outcome was correct but merely whether the verdict was reasonable. United
States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001).
The government presented three witnesses who testified to Thompson’s
role in the conspiracy. Albert Kelly stated that Thompson worked as a “runner,”
delivering crack and picking up money. Kelly also testified to the joint drug-
related activities of the witnesses and Thompson. He stated that weapons were
accessible to the conspiracy members at all of the locations where they met,
including Thompson’s house, and that Thompson was known as a “trigger man,”
someone who was known to have a gun during drug trafficking.
Gemayal Pipkins testified to Thompson’s involvement in the conspiracy,
explaining that Thompson was sometimes present during sales, carrying weap-
ons as a “show of force” or participating in other drug-related activities. Pipkins
also testified to having seen Thompson carrying one of the specific rifles that was
introduced into evidence.
Lawrence Cavelier, a self-proclaimed drug runner for the conspiracy,
testified that although he did not run drug errands for Thompson, he did per-
sonal errands for him and was paid with crack. Cavelier also talked about tak-
ing drug tools for cooking cocaine over to Thompson’s house.
Thompson disputes that the evidence was sufficient under the conspiracy
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No. 12-31203
charge. Specifically, he claims there was no evidence connecting him to the con-
spiracy other than the testimony of the co-conspirators.
A drug conspiracy requires evidence of “(1) the existence of an agreement
between two or more persons to violate [the] narcotics laws; (2) the defendant’s
knowledge of the agreement; and (3) the defendant’s voluntary participation in
the agreement.” United States v. Gonzalez, 76 F.3d 1339, 1346 (5th Cir. 1996).
Contrary to Thompson’s suggestion, “[a]s long as it is not factually insubstantial
or incredible, the uncorroborated testimony of a co-conspirator, even one who has
chosen to cooperate with the government in exchange for non-prosecution or leni-
ency, may be constitutionally sufficient evidence to convict.” United States v.
Medina, 161 F.3d 867, 872–73 (5th Cir. 1998) (internal quotation and citation
omitted).
Kelly, Pipkins, and Cavelier testified to Thompson’s role in the drug-
trafficking scheme. Thompson does not point to any ways in which their testi-
mony was “factually insubstantial or incredible.” This evidence is sufficient:
A rational trier of fact could find Thompson was a voluntary participant in a
drug conspiracy.
Thompson disputes that the evidence was sufficient to convict him of pos-
session of a weapon in furtherance of the drug-trafficking charge. To this end,
he maintains that “no one puts a weapon in Mr. Thompson’s hand or in immedi-
ate proximity to him.”
Section 924(c)(1)(A) imposes a criminal penalty on “any person who, during
and in relation to any crime of violence or drug trafficking crime . . . uses or car-
ries a firearm, or who, in furtherance of any such crime, possesses a firearm.”
18 U.S.C. § 924(c)(1)(A). Where, as here, a defendant is charged under the pos-
session prong of this statute, “the appropriate standard of participation is ‘in fur-
therance of’ a crime.” United States v. McGilberry, 480 F.3d 326, 329 (5th Cir.
2007).
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No. 12-31203
Contrary to Thompson’s assertion, testimony demonstrates that Thompson
owned, carried, and used weapons in furtherance of the conspiracy. Per the testi-
mony of DEA Agents Salvador Scalia and Jamey Tarrh, Thompson, shortly after
being arrested, admitted to owning a loaded assault weapon found near the
seized crack cocaine and money. Kelly and Pipkins also testified that Thompson
carried a weapon during drug deals. In fact, Thompson was known as a “trigger
man.” Furthermore, Pipkins testified that Thompson used those weapons as
part of a “show of force.” Physical evidence further corroborated that testimony.
The evidence is sufficient: A rational jury could find that Thompson possessed
firearms in furtherance of a drug-trafficking crime. See United States v.
Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000).
The judgment of conviction is AFFIRMED.
16
No. 12-31203
JAMES L. DENNIS, Circuit Judge, dissenting:
Defendant-appellant Eugene Thompson, an American of African descent,
was convicted of crack and cocaine trafficking, conspiring to do the same, and
several illegal firearms possession offenses. During the jury selection process
that preceded his trial, the government used five of its seven peremptory strikes
against black prospective jurors (numbers 4, 23, 25, 26, and 37), thus eliminating
them from serving on Thompson’s jury of twelve, which otherwise would have
been about evenly divided between black and white jurors and instead, because
of the government’s strikes, consisted of two black jurors and ten white ones.1
Thompson contended that the government was targeting African-Americans to
strike on the basis of their race, thus violating the constitutional right to equal
protection of the law. The district court disagreed, finding that the government’s
peremptory strikes were not made on the basis of race but rather for legitimate,
nondiscriminatory reasons. At issue in this appeal is whether the district court
properly applied the framework for ruling on such objections required by Batson
v. Kentucky, 476 U.S. 79 (1986), and its progeny. I agree with the majority that
the district court did not clearly err with respect to prospective jurors 4, 25, 26
and 37. As for Thompson’s objection to the government striking prospective
juror 23, however, the record does not contain the requisite determinations for
affirmance. Accordingly, I respectfully dissent.
I.
During the jury selection process that preceded Thompson’s criminal trial,
the court instructed the jury to, one-by-one, stand up, state their name, their
1
A “peremptory strike” (or “peremptory challenge”) is “[o]ne of a party’s limited number
of challenges that do not need to be supported by a reason” (that is, in the absence of a
showing that the strikes were made on a discriminatory basis), as contrasted with strikes for
cause, which are strikes “supported by a specified reason, such as bias or prejudice, that would
disqualify the potential juror.” BLACK’S LAW DICTIONARY 261 (9th ed. 2009). See also Fed. R.
Crim. P. 24 (specifying the number of peremptory strikes afforded to each side in federal
criminal trials).
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No. 12-31203
educational background, occupation, place of residence, and other aspects of
their background. Prospective juror 23, who, like Thompson, was black,
answered as follows:
THE JUROR: . . . My level of education, some college.
I worked as an offshore employee for 28 years. I live in
the parish of Lafourche.
THE COURT: Married?
THE JUROR: Single. 15 years.
THE COURT: You’re a church organist; is that right?
THE JUROR: That’s correct.
THE COURT: Thank you.
That appears to have been the only interaction between prospective juror 23 and
the court or any attorney in the case before the government exercised a
peremptory strike to remove him, to which Thompson objected under Batson.
II.
A.
Under Batson, if a criminal defendant intends to object to a peremptory
strike as discriminatory, the defendant must first make a prima facie case “by
showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.” Johnson v. California, 545 U.S. 162, 168 (2005) (citing
Batson, 476 U.S. at 93-94). This requirement of a prima facie case is intended
to be “simple and without frills.” Price v. Cain, 560 F.3d 284, 287 (5th Cir. 2009).
It “is not meant to be onerous.” Sorto v. Herbert, 497 F.3d 163, 170 (2d Cir.
2007); accord Williams v. Beard, 637 F.3d 195, 214 (3d Cir. 2011); see also
United States v. McMath, 559 F.3d 657, 664 (7th Cir. 2009) (“The test is not
rigorous: suspicion even less than ‘more likely than not’ suffices.”); United States
v. Stavroulakis, 952 F.2d 686, 696 (2d Cir. 1992) (stating that a “smoking gun”
is not required). Defendants may present a prima facie case through a range of
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No. 12-31203
evidentiary mosaics. See Johnson, 545 U.S. at 169.
Here, to support his prima facie case, Thompson showed that he was
himself black and that the government had used five of its seven peremptory
strikes against black prospective jurors. The district court did not decide that
a prima facie case had been made, but rather reserved judgment and proceeded
directly to Batson’s second step, requiring the government to offer a legitimate
explanation for the strike. I agree with the majority that, because the
government then offered such a legitimate explanation, the question of whether
Thompson made an initial prima facie case is moot and has dropped out of the
picture. See Hernandez v. New York, 500 U.S. 352, 359 (1991) (“Once the
prosecutor has offered a race-neutral explanation for the peremptory challenges
and the trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant had made a
prima facie showing becomes moot.”); United States v. Forbes, 816 F.2d 1006,
1010 (5th Cir. 1987) (“[A]ppellate review should not become bogged down on the
question of whether the defendant made a prima facie showing in cases where
the district court has required an explanation.”). Accordingly, I proceed to the
second step.
B.
The second step of Batson requires the government to “come forward with
a neutral explanation for challenging” the prospective juror at issue. 476 U.S.
at 97. “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.”
Hernandez, 500 U.S. at 360. The explanation, so long as it is race neutral on its
face, need not be “persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765,
767-68 (1995). “[N]early any race-neutral reason will suffice, even those that are
arbitrary, irrational, or silly.” United States v. Rutledge, 648 F.3d 555, 559 (7th
19
No. 12-31203
Cir. 2011).
Here, the transcript shows the following transpiring in the district court:
THE COURT: . . . Let’s go to Juror No. 23.
[THE GOVERNMENT]: My notes reflect that he sat
there, looking disinterested and annoyed. He was stern
when he was awake. His arms were folded.
Although the government offered no explanation beyond a few words describing
how the prospective juror looked, that explanation satisfied the government’s
burden on the second step. See Moore v. Keller Indus., Inc., 948 F.2d 199, 202
(5th Cir. 1991) (“We also have found ‘disinterested demeanor’ and
‘inattentiveness’ to be valid, race-neutral reasons for peremptory strikes.”).
Accordingly, I proceed to the third step, where my concern lies.
C.
On the third step, the district court “[has] the duty to determine if the
defendant has established purposeful discrimination.” Batson, 476 U.S. at 98.
Although “nearly any race-neutral reason will suffice” at the second step, on the
third step, “the persuasiveness of the justification becomes relevant, and
implausible or fantastic justifications may (and probably will) be found to be
pretexts for purposeful discrimination.” Rutledge, 648 F.3d at 559 (internal
quotation marks omitted). To determine whether the peremptory strike was
discriminatory, Batson “requires the judge to assess the plausibility of [the
government’s explanation for making the strike] in light of all evidence with a
bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 251-52 (2005) (emphasis
added); see also Snyder v. Lousiana, 552 U.S. 472, 478 (2008) (stating that “all
of the circumstances that bear upon the issue of racial animosity must be
consulted”) (emphasis added); Batson, 476 U.S. at 93 (stating that the district
court must “undertake a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available”) (emphasis added). Because Batson
20
No. 12-31203
imposes on the district court the affirmative duty of determining whether there
has been discrimination, at the third step, “[i]t is inappropriate for a district
court to perfunctorily accept a race-neutral explanation without engaging in
further investigation.” United States v. Jackson, 347 F.3d 598, 605 (6th Cir.
2003); see also Jordan v. Lefevre, 206 F.3d 196, 200-01 (2d Cir. 2000) (holding
that the trial court erred by “engag[ing] in a perfunctory exercise designed to
speed the proceedings along” without “comply[ing] with the letter, much less the
spirit, of Batson” and stating that the court disapproves of “a trial court
conducting its review of a Batson challenge with undue haste and ruling in a
summary fashion”); cf. Thomas v. Moore, 866 F.2d 803, 805 (5th Cir. 1989)
(requiring Batson challenges to be made in a timely fashion because “the
corresponding opportunity to evaluate the circumstances of the jury selection
process [is] essential to [resolving the challenge]”).2 After weighing all the
relevant circumstances, the court should then “issue a specific ruling on each
juror in question supported by its findings of fact and its rationale for the
ruling.” See United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991).
2
The Batson duty to determine whether a strike was discriminatory is not just a mere
weighing of evidence, but an affirmative duty imposed on courts by the Constitution. The
judiciary, like all other branches of government which operate under the authority of the
Constitution’s Equal Protection Clause, is duty-bound to eliminate race discrimination root
and branch in its respective sphere, and if courts fail to rid the jury-selection process of race
discrimination to the extent feasible, they have fallen short in their constitutional duty. See
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 626 (1991) (extending the Batson doctrine
to civil trials between two private parties because, among other reasons, even though it is a
private party, not a government attorney, making the discriminatory strike, “the objective of
jury selection proceedings is to determine representation on a governmental body”); id. at 628
(“Race discrimination within the courtroom . . . mars the integrity of the judicial system and
prevents the idea of democratic government from becoming a reality.”); Rutledge, 648 F.3d at
562 (“[T]he Equal Protection Clause mandates that race discrimination be eliminated from all
official acts and proceedings of the State, which is most compelling in the judicial system.”)
(internal quotation marks and alteration omitted); Minetos v. City Univ. of N.Y., 925 F. Supp.
177, 183 (S.D.N.Y. 1996) (Motley, J.) (“[R]acial discrimination in the qualification or selection
of jurors offends . . . the integrity of the courts.”).
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No. 12-31203
Once the district court has satisfied its duty of determining whether the
strike was discriminatory, the district court’s determination is a finding of fact
that, like all findings of fact, is subject to highly deferential review on appeal.
United States v. Bentley-Smith, 2 F.3d 1368, 1372 (5th Cir. 1993). We do not
overturn such findings unless our study of the record leaves us “with the definite
and firm conviction that a mistake has been committed.” Id. at 1377. Although
such review is greatly deferential, affirmance is not automatic. See Riley v.
Taylor, 277 F.3d 261, 278 (3d Cir. 2001) (stating that, although Batson-related
credibility findings receive great deference, “this does not signify that [appellate]
review is a nullity”) (quoting Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir.
1998)). This court must determine whether the district court’s finding that the
strike was not discriminatory was a rational one in light of all the evidence
before the court. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400
(1990) (“[T]he ‘clearly erroneous’ standard [of appellate review of fact-finding]
requires the appellate court to uphold any district court determination that falls
within a broad range of permissible conclusions.”); Bertucci Contracting Corp.
v. M/V ANTWERPEN, 465 F.3d 254, 258-59 (5th Cir. 2006) (“If the district
court’s finding is plausible in light of the record viewed as a whole, the court of
appeals cannot reverse . . . . The court owes even greater deference to findings
based on the credibility of witnesses and must uphold them if based on coherent,
internally consistent, and facially plausible testimony that is not contradicted
by external evidence.”) (footnotes omitted).
Here, the transcript shows that, immediately after the government offered
its explanation for striking prospective juror 23, the district court carried out the
Batson third-step proceedings as follows:
[THE GOVERNMENT]: My notes reflect that he sat
there, looking disinterested and annoyed. He was stern
when he was awake. His arms were folded.
22
No. 12-31203
THE COURT: Any response?
[THE DEFENSE]: I did not observe these
characteristics of No. 23. He did seem an honest,
intelligent man, who has currently served as an
organist at his church.
THE COURT: I find the government’s explanation
credible with respect to 23, and I deny the challenge
with respect to the peremptory challenge as to 23.
They’ve provided me with a race-neutral explanation
for striking the juror. Let’s go to Juror No. 25 [the next
stricken prospective juror subject to a Batson
challenge].
In my view, the above record statements contained in the transcript are
insufficient for affirmance on appeal for the reasons that follow.
As the Supreme Court has explained, when the government justifies a
peremptory strike on the basis of “a juror’s demeanor (e.g., nervousness,
inattention),” assuming that the stricken juror is still in the courthouse, the trial
court’s duty to consider all relevant evidence means that the court “must
evaluate not only whether the prosecutor’s demeanor belies a discriminatory
intent, but also whether the juror’s demeanor can credibly be said to have
exhibited the basis for the strike attributed to the juror by the prosecutor.”
Snyder, 552 U.S. at 477 (emphasis added).3 Thus, in cases like this one, when
the government’s strike was justified on the basis of the prospective juror’s
purported “disinterested,” “annoyed,” and “stern” demeanor, and the venire had
not yet been dismissed, meaning that the prospective juror was still in the
control of the court, the district court must make at least two determinations:
one, that the prosecutor’s demeanor does not belie a discriminatory intent (that
is, that the prosecutor appeared sincere in his explanation) and, two, that the
3
It warrants brief mention that, in the ordinary case, the prospective juror subject to
the peremptory strike will still be in the courthouse at the time the Batson challenge is raised
because we require Batson challenges to be made before the venire is dismissed. See United
States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996).
23
No. 12-31203
stricken juror’s demeanor can credibly be said to have exhibited the
characteristic that the prosecutor attributed to it. See also McCurdy v.
Montgomery Cnty., 240 F.3d 512, 521 (6th Cir. 2001) (“The need for an explicit,
on-the-record analysis of each of the elements of a Batson challenge is especially
important when the purported race-neutral justification is predicated on
subjective explanations like body language or demeanor.”); United States v. Diaz,
26 F.3d 1533, 1543 (11th Cir. 1994).4 The question then is whether the district
court actually made both determinations. Unless the record reveals both
determinations, we cannot say on appeal whether the district court satisfied its
duty of making a determination of race discrimination vel non on the basis of “all
of the circumstances that bear upon the issue.” Snyder, 552 U.S. at 478;
Miller-El, 545 U.S. at 251-52; Batson, 476 U.S. at 93.
These determinations must be apparent on the face of the record and they
may not be presumed. In United States v. McNath, the Seventh Circuit
addressed circumstances in which the district court, after hearing the
government explain that it struck a prospective juror because “[h]e looked angry
and not happy to be here,” stated without explanation that, “The Batson
challenge is denied.” 559 F.3d at 661. The Seventh Circuit declined to affirm,
explaining, “The district court did not indicate whether it agreed that [the
stricken juror] had an unhappy expression on his face, did not indicate whether
this expression was unique to [him] or common to other jurors, and made no
evaluation of the prosecutor’s credibility.” Id. at 666. Accordingly, because the
district court did not make the requisite Snyder determinations on the
4
Cf. Palmer v. Lares, 42 F.3d 975, 979-80 & n.6 (5th Cir. 1995) (affirming magistrate
judge’s findings on a Batson challenge when the attorney justified the strike on the basis of,
among other things, the prospective juror’s demeanor appearing to be “hostile” to the court and
the magistrate judge’s agreement that, based on the judge’s own interaction with the
prospective juror, the judge “felt the hostility that [the attorney] had pointed out”); Durant v.
Stack, 151 F. Supp. 2d 226, 231-32 (E.D.N.Y. 2001).
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No. 12-31203
record—that the prosecutor’s demeanor did not belie a discriminatory intent and
that the juror’s demeanor could credibly be said to have exhibited the
characteristic attributed to it — the circuit could not affirm. Id. (“Snyder makes
clear that a summary denial does not allow us to assume that the prosecution’s
reason was credible; rather, the district court’s silence leaves a void in the record
that does not allow us to affirm the denial.”). The circuit remanded to the
district court, instructing it to either make the requisite factual determinations,
or, “if the passage of time precludes the district court from [doing so], it must
vacate the judgment of conviction.” Id. In United States v. Rutledge, the
Seventh Circuit reaffirmed this analysis. See 648 F.3d at 560. “[W]hen we
confront an evidentiary gap at step three, the ultimate Batson issue cannot be
resolved without a remand.” Id.
Although this case differs from McMath and Rutledge in that, in those
cases, the circuit was faced with summary denials of Batson challenges on a
record devoid of any credibility determination by the trial judge, and we, on the
other hand, have a record showing that the trial judge made the first but not the
second credibility determination required by Snyder, we likewise “confront an
evidentiary gap” that precludes affirmance. The prosecutor stated that he
struck prospective juror 23 because, “My notes reflect that he sat there, looking
disinterested and annoyed. He was stern when he was awake. His arms were
folded.” Thompson’s counsel replied that he did not observe those characteristics
and thought prospective juror 23 “seem[ed] an honest, intelligent man.” The
only rationale the district court offered for its decision to deny the Batson
challenge was, “They’ve provided me with a race-neutral explanation for striking
the juror” and “I find the government’s explanation credible.” But, as Snyder
explains, when faced with a demeanor-based justification regarding a
prospective juror that has not yet been dismissed by the court, the court “must
evaluate not only whether the prosecutor’s demeanor belies a discriminatory
25
No. 12-31203
intent, but also whether the juror’s demeanor can credibly be said to have
exhibited the basis for the strike attributed to the juror by the prosecutor.” 552
U.S. at 477 (emphasis added). The requisite second determination—that the
juror’s demeanor can credibly be said to have exhibited the basis asserted by the
government—is absent from the record, and that is the gap we face. On the
present record, we cannot say that the district court properly carried out its duty
of making that determination on the record in choosing to deny the Batson
challenge. Accordingly, I would remand for the district court to provide the
missing determination or, if doing so proves impossible due to the passage of
time, to vacate Thompson’s conviction and grant him a new trial. See McMath,
559 F.3d at 666; Rutledge, 648 F.3d at 562; see also In re TWL Corp., 712 F.3d
886, 898 (5th Cir. 2013) (“When, because of absence of findings of fact or
conclusions of law, an appellate court cannot determine whether the record
supports the lower court decision, it should remand the action for entry of
findings of fact and conclusions of law.”) (alteration and citation omitted);
Topalian v. Ehrman, 3 F.3d 931, 935-36 (5th Cir. 1993) (remanding for “further
factual findings” because the district court “failed to articulate its findings” and
we require “an adequate record for appellate review”).
It bears mentioning that none of this analysis is affected by Thaler v.
Haynes, 559 U.S. 43 (2010) (per curiam), rev’g 526 F.3d 189 (5th Cir. 2008).
There, the Court faced circumstances in which two different state judges
presided at different stages of the case, and the judge who ruled on the Batson
challenges did not preside during voir dire, meaning that the latter judge had
not personally observed the voir dire or any of the prospective jurors that were
stricken. The issue in Haynes was whether Snyder “clearly established” (as
required by the habeas statute, see 28 U.S.C. § 2254(d)(1)) the rule that a state
judge ruling on a Batson challenge must reject a demeanor-based explanation
for the strike unless the judge personally observed and recalls the aspect of the
26
No. 12-31203
prospective juror’s demeanor on which the explanation is based, which the state
judge who decided the Batson challenges did not do. The answer to that
question is no. See also Rutledge, 648 F.3d at 562 (discussing Haynes). Haynes
said nothing about whether a district court faced with a demeanor-based
explanation regarding a prospective juror who has not yet been dismissed and is
still in the courthouse, within the court’s control, must consider “whether the
juror’s demeanor can credibly be said to have exhibited the basis for the strike
attributed to the juror by the prosecutor.” Snyder, 552 U.S. at 477. The answer
to that question is, for the reasons I have explained, yes. Moreover, in making
its ruling, the district court must consider all relevant evidence, id. at 478 (“all
of the circumstances that bear upon the issue of racial animosity”); Miller-El,
545 U.S. at 251-52 (“all evidence with a bearing on [the plausibility of the
government’s explanation]”); Batson, 476 U.S. at 93 (“such circumstantial and
direct evidence of intent as may be available”), and when the government
justifies the strike on the basis of the juror’s demeanor, whether the juror’s
demeanor can credibly be said to have exhibited the characteristics alleged by
the prosecutor is such relevant evidence. According to Snyder, whether the
juror’s demeanor can credibly be said to have exhibited the characteristics that
the prosecutor alleged is a determination that the trial judge must make on the
record. See Rutledge, 648 F.3d at 559 (“[I]f there is nothing in the record
reflecting the trial court’s decision, then there is nothing to which we can defer.”
(citing Snyder, 552 U.S. at 479)). Haynes did not alter the trial judge’s duty to
make the determinations for the record required by Snyder.
III.
For the foregoing reasons, I respectfully dissent.
27