                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-2008

Thompson v. Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3825




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                                           NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 07-3825


           HANEEF THOMPSON,
                       Appellant

                      v.

   ALFONSE JOHNSON, OFFICER #1203,
     IN HIS INDIVIDUAL CAPACITY;
    BRIAN NEWELL, OFFICER #3306,
     IN HIS INDIVIDUAL CAPACITY;
        CITY OF PHILADELPHIA

         (D.C. Civil No. 05-cv-06214)




          CORRINE FIELDS, MS.,
                       Appellant

                      v.

   CITY OF PHILADELPHIA; BRIAN
    NEWELL; ALFONSE JOHNSON;
 JOHN DOE, OFFICERS, INDIVIDUALLY
  AND AS POLICE OFFICERS FOR THE
       CITY OF PHILADELPHIA

        (D. C. Civil No. 05-cv-06296)


On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
    District Judge: Hon. Harvey Bartle, III
                        Submitted Under Third Circuit LAR 34.1(a)
                                   September 8, 2008

             Before: SLOVITER, FUENTES and NYGAARD, Circuit Judges

                                  Filed: September 9, 2008




                                          OPINION


SLOVITER, Circuit Judge.

                                              I.

       The relevant facts are essentially undisputed. Plaintiffs-Appellants Corrine Fields

and Haneef Thompson brought suit against the City of Philadelphia and two of its police

officers in federal district court pursuant to 42 U.S.C. § 1983 and state tort law for alleged

injuries arising out of, inter alia, an alleged false arrest. Appellants are both African-

Americans.

       The District Court and counsel for both plaintiffs and defendants commenced

selecting a jury of eight persons (six jurors and two alternates) out of a panel of thirty-

four persons. The Court struck three of the thirty-four panel members for cause. Each

side then began to use its three peremptory strikes, alternating between plaintiffs and

defendants. The Court intended to seat the first eight jurors remaining by order of seat




                                               2
number after both sides exercised their peremptory challenges.1

       Juror No. 46 was an African-American female and a City of Philadelphia

employee, whose cousin was a Philadelphia police officer.2 Defendants attempted to use

one of their peremptory challenges to strike Juror No. 46, who was seated in seat number

12. Plaintiffs objected to that peremptory challenge under Batson v. Kentucky, 476 U.S.

79 (1986). The District Court found that “the relevant circumstances of the voir dire

supported an inference of discriminatory purpose.” App. at 39. Defendants then

proffered a non-discriminatory reason for the strike, the juror’s potential bias due to

recent disputes between Department of Human Services workers and the City, but the

District Court rejected the defendants’ explanation, stating, “I find that the reason you’re

striking her is because of her race.” App. at 31. Juror No. 46 remained on the panel in

seat number 12. Plaintiffs then exercised the rest of their peremptory strikes.

Defendants, however, only exercised two of the three, waiving the third. The result was

that due to where she was sitting, Juror No. 46 was excluded from the jury but would

have been the next person to be seated if any additional juror seated in front of her had



                    1
                     The jurors’ seat numbers must be distinguished from their
            “juror numbers,” the latter being a random number assigned to each
            juror by the clerk’s office, and the former being the order in which
            the jurors would be seated if they remained after strikes for cause
            and peremptory strikes. For our purposes, it is relevant to
            understand that Juror No. 46 was seated in seat number 12.
                    2
                     Inexplicably, Juror No. 46 was not challenged on the basis
            of her affiliation with defendant City of Philadelphia.

                                              3
been struck. Both the plaintiffs and defendants exercised peremptory strikes against

potential jurors seated after Juror No. 46; those strikes were ineffective because the jury

was empaneled from jurors all seated before Juror No. 46. As the District Court noted,

those ineffective strikes “ultimately had the same practical effect as the defendants’

decision to waive their use of the third strike.” App. at 39.

       Plaintiffs did not object to the defendants’ waiver of their third peremptory

challenge. The jurors in seats 2, 3, 4, 5, 7, 8, 10, and 11 were seated on the jury, and the

remaining panelists were excused, including Juror No. 46 (in seat 12). The Court swore

in the eight jurors and then took a twenty minute recess, during which counsel discussed

logistical matters with the Court. Following the recess the Court gave the jury some

instructions, and then both plaintiffs and defendants gave opening statements. The Court

declared a lunch recess. Following the lunch recess, plaintiffs challenged defendants’

waiver of their final peremptory challenge as violating Batson. The Court ruled that the

objection was untimely and did not rule on the merits of plaintiffs’ objection. The jury

returned a verdict in favor of the defendants. This timely appeal followed.

       After plaintiffs filed this appeal, the District Court issued a memorandum opinion

explaining its earlier oral ruling that the Batson challenge had been untimely. The Court

relied on precedent from this court and others for the proposition that a Batson challenge

must be raised prior to the close of voir dire, i.e., before the petit jury is sworn, or else it

is waived. The Court concluded that by waiting until after the venire was dismissed, the



                                                4
jury was sworn, the pre-trial jury instructions were given, and the opening statements

were made, the plaintiffs’ Batson challenge had come too late.

                                             II.

       Plaintiffs argue that defendants’ forfeiture of their third peremptory strike had the

same effect as actually striking an African-American person from the jury. In United

States v. Esparza-Gonzalez, 422 F.3d 897, 902 (9th Cir. 2005), the Court of Appeals for

the Ninth Circuit held that the forfeiture of a peremptory jury challenge could form the

basis of a Batson challenge because forfeiture of a strike could be viewed as an “effective

strike[] against identifiable jurors.” We have never addressed that issue. We need not

address it because plaintiffs did not make a timely Batson challenge in the District Court.

We have held that a Batson challenge must be made before the petit jury has been sworn

and prior to the dismissal of the venire. See United States v. Sharma, 190 F.3d 220, 231

(3d Cir. 1999); Gov’t of the V. I. v. Forte, 806 F.2d 73, 75 (3d Cir. 1986) (holding that

defendant’s objection to prosecutor’s use of peremptory challenges was waived because it

was not made during jury selection). Other appellate courts have held the same. See,

e.g., McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996) (requiring Batson

objection to be raised during jury selection). The rationale for the contemporaneous

objection rule is that it enables the district court to remedy the suspect procedure in

several ways, including prohibiting the alleged abusive practice, calling additional jurors

to the venire, or granting additional challenges to the party adversely affected. See id.



                                              5
       There is no dispute that plaintiffs did not raise their Batson objection until after the

venire was dismissed, the petit jury was sworn, preliminary jury instructions were given,

opening statements were made, and the Court had called two recesses. We therefore

review the District Court’s decision with regard to the untimely Batson objection under

the plain error standard. See United States v. Mitchell, 365 F.3d 215, 257 (3d Cir. 2004).

“To establish plain error, a [litigant] must prove that there is (1) error, (2) that is plain,

and (3) that affects substantial rights. If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

at 257-58 (citation and internal quotation marks omitted). A “plain error” is one that

affects substantial rights. See United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001)

(citing United States v. Olano, 507 U.S. 725, 732 (1993)). An error affects “‘substantial

rights’ if it was prejudicial in that it affected the outcome of the District Court

proceedings.” Id. (citing Olano, 507 U.S. at 733).

       Here, the plaintiffs argue that even without an objection, the District Court should

have viewed defendants’ forfeiture of their last challenge as a potential Batson violation

and undertaken remedial measures. Alternatively, plaintiffs argue that the Court should

have declared a mistrial when plaintiffs finally objected. We disagree.

       Under the facts of this particular case, the actions of plaintiffs were as much the

cause of Juror No. 46 not being seated as defendants’ forfeiture of the last peremptory



                                                6
strike. Had plaintiffs exercised their peremptory challenges against jurors seated before

Juror No. 46, she would have been seated on the petit jury. Instead, plaintiffs struck

jurors seated after Juror No. 46, which had no practical effect because no jurors after

Juror No. 46 were seated. This result cannot be attributed to the District Court. Thus, we

cannot say that the failure to seat Juror No. 46 was caused by any action by the District

Court. We will not find that the Court committed plain error when the outcome of the

proceedings actually were affected by the strategic choices of plaintiffs’ counsel.

                                            III.

       For the above-stated reasons, we will affirm the judgment of the District Court.




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