BOWMAN, Circuit Judge.
Forriss D. Elliott was convicted of seven counts of mail fraud in violation of 18 U.S.C. § 1341 (1988 & Supp. V 1993) and one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371 (1988) for submitting fraudulent legal bills to the state of Missouri in connection with his work as a special assistant attorney general. The District Court
In the fall of 1989, Elliott, an attorney in private practice in the St. Louis area, was appointed a part-time special assistant attorney general to represent the Second Injury Fund (the Fund) and the State of Missouri in workers' compensation cases where either the Fund or the state was being sued. In limited circumstances, the Fund provides additional compensation to previously compensated employees who suffer a second job-related injury. The goal of the Fund is to encourage employers to hire the partially disabled by limiting the employer's liability in the event that the employee "receives a subsequent compensable injury resulting in additional permanent partial disability." Mo. Rev.Stat. § 287.220.1 (1994). As a special assistant attorney general, Elliott was authorized to bill the state for legal services rendered and expenses incurred in his work on
After the state discovered the fraudulent billing scheme, Elliott was indicted for mail fraud. He was convicted after a third trial by an all-white jury. The first two trials, both of which had black jury members, resulted in hung juries.
Although the substantial documentary evidence was probably enough to convict Elliott, the government also presented witness testimony that showed Elliott was the mastermind of the fraudulent billing scheme. While representing the Fund, Elliott employed two paralegals at different times to assist him in preparing the bills that he sent to the state. Elliott first hired Brenda Leake in August 1990. Leake testified that Elliott ordered her to make bogus entries on his billing statements. She worked for Elliott for about twelve months until she was fired in September 1991. Elliott then hired Connie O'Bryant as a new paralegal to assist in bill preparation. Even though O'Bryant was called as a defense witness, she acknowledged that Elliott gave her false entries to put in the bills. Mary Reinhardt, who worked for the state and received all the bills, also testified. She stated that while Leake was still employed by Elliott, Leake telephoned her to warn her about the false entries and recommended that someone look at the inflated bills. Elliott's former accountant, Brian Cox, also testified. In December 1992, after Elliott saw his picture splashed across the front page of the Sunday edition of the St. Louis Post-Dispatch accompanied by a story accusing him of billing fifty-hour work days, Elliott telephoned Cox. Elliott asked Cox to review his billing statements. Cox spent two weeks comparing the bills with Elliott's case files. Cox testified that the bills could not be substantiated. Finally, the government put on the previous sworn testimony of Elliott himself. Although denying criminal culpability, Elliott admitted certain bills were "inflated" or false and that the state was billed for work not done. Trial Trans. (Dec. 1, 1994) at 23-25 (testimony of court reporter regarding Elliott's sworn statements).
Elliott first argues that the mail fraud statute, 18 U.S.C. § 1341, does not apply to purely intrastate mailings. Although the evidence shows that Elliott used the United States mails to send his bills to the state, all were sent and received in Missouri. Relying on United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Elliott insists that mail fraud requires some sort of interstate connection. We disagree. Lopez is a Commerce Clause case and therefore has no application whatsoever to the mail fraud
Elliott next challenges the racial composition of the all-white jury that convicted him as a Fifth Amendment equal-protection violation.
We turn first to Elliott's argument that the prosecutor's use of for-cause strikes against three black venire members was a Batson violation. He insists that with only six peremptory challenges (plus one for alternate jurors), the prosecutor realized that "he would not be able to rid himself of all black jurors, unless he was able to strike some black venirepersons for cause." Appellant's Brief at 19. Consequently, Elliott contends that the for-cause strikes in combination with the peremptory strikes resulted in a constitutional violation that deprived him of a fair trial. We disagree. Batson applies only to
We come, then, to Elliott's arguments concerning the peremptory challenges. The Batson framework, using a three-stage burden-shifting analysis, establishes the order and allocation of proof in challenges to the discriminatory use of peremptory strikes in jury selection. Purkett v. Elem, ___ U.S. ___, ___ - ___, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995) (per curiam). In the context of a criminal trial, after the defendant makes a prima facie case of purposeful discrimination in the government's use of a peremptory challenge, the burden shifts to the government to offer a race-neutral explanation for the strike. Id. A prosecutor's explanation for a strike is deemed race-neutral if discriminatory intent is not inherent in the stated reason. Id. at ___, 115 S.Ct. at 1771. The defendant may then attempt to prove that the facially valid reason is a mere pretext and that the real reason for the strike was discrimination. Id. at ___, 115 S.Ct. at 1771. The defendant retains at all times the ultimate burden of persuasion, id. at ___, 115 S.Ct. at 1771, and the trial court's finding on the discrimination issue will be set aside only if clearly erroneous, United States v. Darden, 70 F.3d 1507, 1531 (8th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996) and ___ U.S. ___, 116 S.Ct. 2567, 135 L.Ed.2d 1084 (1996). On appeal, we are mindful of the fact that "evaluation of the prosecutor's state of mind based on demeanor and credibility lies `peculiarly within a trial judge's province.'" Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991) (plurality opinion) (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985)). After carefully reviewing the trial transcript, we are persuaded that the District Court did not commit clear error in finding that Elliott failed to prove that the government's race-neutral reasons were mere pretextual covers for unlawful discrimination.
The prosecutor used peremptory challenges to strike three black jurors: Juror No. 4 (Smith), Juror No. 12 (Johnson), and Juror No. 20 (Harper). After Elliott objected to the use of these peremptory challenges as a violation of Batson, the District Court found that Elliott had established a prima facie case of discrimination. This finding required the prosecutor to come forward with race-neutral explanations for the striking of the jurors.
As an initial matter, we conclude that Elliott's Batson challenge with respect to Harper is procedurally barred. At trial, Elliott's counsel initially objected to Harper being stricken as a Batson violation, but then withdrew the objection after the government proffered a race-neutral explanation for the strike. See Trial Trans. (Nov. 28, 1994) at 218-220A. Elliott cannot raise an argument on appeal that he explicitly waived at trial. Accordingly, only the propriety of the strikes against jurors Smith and Johnson are properly before us.
The prosecutor proffered three race-neutral reasons for striking Smith. First, Smith listed "church organization" under the category of "Hobbies and Activities" on the juror survey form. Smith's church activity concerned
Four race-neutral reasons were proffered for striking Johnson. First, Johnson did not own her own home, and as already explained, all potential jurors, white or black, who did not own their own homes were struck. Second, Johnson had relatives employed by the United States Postal Service. Postal employees are often subjected to rigorous scrutiny and secret observation by postal inspectors. Because Elliott was charged with mail fraud, the government's case agent and key witness was a postal inspector. The prosecutor felt that postal employees and their relatives may have negative attitudes toward postal inspectors because of their watchdog role. To avoid this dilemma, all prospective jurors with relatives currently employed by the United States Postal Service were struck, which included a white venireperson who had a relative in the postal service. Third, Johnson failed to respond to certain voir dire questions. When the venirepersons were asked whether they thought the criminal justice system was fair, Johnson failed to raise her hand. When asked whether they thought the criminal justice system was unfair, Johnson again failed to raise her hand. When asked if they had no opinion on the fairness of the criminal justice system, Johnson failed to raise her hand for a third time. The prosecutor struck Johnson for her unresponsiveness. Finally, the prosecutor also felt that Johnson "was looking at him in hostile fashion." Appellee's Brief at 18.
Once the prosecution articulated race-neutral reasons for the peremptory challenges, the burden then shifted to Elliott to offer evidence showing that the reasons given by the government — all conceded by Elliott to be facially race-neutral
Although Elliott did attempt to show that the remaining reasons — lack of community
In a last-ditch effort to show a Batson violation, Elliott makes a "similarly situated" argument for the first time on appeal. He notes that while Smith was struck because of her church activity, the prosecutor failed to strike several similarly situated white jurors. Specifically, the prosecutor kept a white juror who worked for a Baptist church school and whose husband had been a minister for six years, a white juror who listed "Christian concerts" as a hobby, and a white juror who indicated that he "preach[ed] part-time" as an activity. Similarly, Elliott points out that while Johnson was struck because, among other reasons, she had postal service relatives, the prosecutor did not challenge a white juror who had "a very close friend who is a retired mail man," a white juror whose uncle was a retired letter carrier, and a white juror whose grandmother was a postmaster and whose brother "is a postmaster in a small town."
Elliott is correct that "the government may not justify peremptory challenges to venire members of one race unless venire members of another race with comparable or similar characteristics, are also challenged." Reynolds v. Benefield, 931 F.2d 506, 512 (8th Cir.) (civil case), cert. denied, 501 U.S. 1204, 111 S.Ct. 2795, 115 L.Ed.2d 969 (1991). The government must exercise "its challenges in a consistent manner," United States v. Atkins, 25 F.3d 1401, 1406 (8th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 371, 130 L.Ed.2d 322 (1994), and treat similarly situated jurors similarly, Davidson v. Harris, 30 F.3d 963, 965 (8th Cir.1994) (civil case) (noting otherwise neutral explanation for removal of black juror may be pretextual if stated reason also applies to white juror who is not removed), cert. denied, ___ U.S. ___, 115 S.Ct. 737, 130 L.Ed.2d 639 (1995). Elliott thus may have had a factual basis for at least a colorable Batson claim based on the government's failure to strike white jurors who arguably were similarly situated to the black jurors who were struck. This argument, however, is untimely since it is made for the first time on appeal. See United States v. Dobynes, 905 F.2d 1192, 1196-97 (8th Cir.), cert. denied, 498 U.S. 877, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990). Having failed to raise this argument before the trial court, Elliott has waived his right to have it considered by this Court. See Roth v. G.D. Searle & Co., 27 F.3d 1303, 1307 (8th Cir. 1994).
We hold that the District Court did not err in rejecting Elliott's Batson claims.
Elliott also argues that the District Court made several evidentiary errors when it: (1) limited cross-examination of Brenda Leake, his former paralegal; (2) excluded as irrelevant evidence concerning the routine practices of the Office of the Missouri Attorney General and other special assistant attorneys general; and (3) excluded as irrelevant evidence relating to the routine practices of the Workers' Compensation Division. "We review the evidentiary rulings of a district court only for abuses of discretion, and will reverse only when an improper evidentiary ruling affects the substantial rights of the defendant or when we believe that the error has had more than a slight influence on the verdict." United States v. Ballew, 40 F.3d 936, 941 (8th Cir.1994) (citations omitted), cert. denied, ___ U.S. ___, 115 S.Ct. 1813, 131 L.Ed.2d 737 (1995).
A. Cross-Examination of Brenda Leake
Elliott maintains that Leake misrepresented her educational and employment history on her resume, which he relied on when he hired her as a paralegal. He claims that
Elliott sought to introduce several documentary exhibits, including Leake's resume, to show that Leake misrepresented her educational and work experience. He wanted to use these exhibits to impeach Leake on cross-examination. Trial Trans. (Nov. 30, 1994) at 22. Elliott was not allowed to use the documentary exhibits, however, because the trial court granted the government's motion in limine to exclude the exhibits as extrinsic evidence of Leake's conduct. Federal Rule of Evidence 608(b) prohibits the use of extrinsic evidence to prove specific instances of a witness's conduct. United States v. Johnson, 968 F.2d 765, 766 (8th Cir.), cert. denied, 506 U.S. 980, 113 S.Ct. 481, 121 L.Ed.2d 386 (1992). Consequently, "[w]hile documents may be admissible on cross-examination to prove a material fact, or bias, they are not admissible under Rule 608(b) merely to show a witness' general character for truthfulness or untruthfulness." United States v. Martz, 964 F.2d 787, 789 (8th Cir.) (citations omitted), cert. denied, 506 U.S. 1038, 113 S.Ct. 823, 121 L.Ed.2d 694 (1992). The reason for barring extrinsic evidence "is to avoid holding mini-trials on peripherally related or irrelevant matters." Id. "To the extent that such evidence is ever admissible, the introduction of extrinsic evidence to attack credibility is subject to the discretion of the trial court." Johnson, 968 F.2d at 766. Given Rule 608(b)'s admonition against the introduction of such evidence, we conclude that the District Court did not abuse its discretion when it excluded the exhibits as extrinsic evidence.
We note that Elliott fails to mention Rule 608(b) in his opening brief, relying instead on the general principle that criminal defendants are entitled to a "searching cross-examination." Appellant's Brief at 41. That is exactly what Elliott got. Although the trial court excluded the extrinsic evidence, it did not place any specific limitations on areas of cross-examination. Elliott was given a wide berth to engage in a searching and wide-ranging cross-examination as long as it did not require the use of extrinsic evidence. Elliott was thus required to "take his answer" because Rule 608(b) precludes him from using extrinsic evidence to impeach the witness. United States v. Capozzi, 883 F.2d 608, 615 (8th Cir.1989) (citations to quoted cases omitted), cert. denied, 495 U.S. 918, 110 S.Ct. 1947, 109 L.Ed.2d 310 (1990).
Despite the District Court's generous latitude with respect to cross-examination questions, Elliott contends that the government's motion in limine sought "to bar defendant from using documents and cross-examining [Leake] as to misrepresentations concerning her educational background and her job history." Appellant's Brief at 38 (emphasis added). Elliott is mistaken. The court specifically informed defense counsel that he could ask Leake questions about her education and work experience. Trial Trans. (Nov. 30, 1994) at 20-21. The court simply requested that, prior to those questions being asked, defense counsel approach the bench and proffer the question to allow the court to make a ruling. Id. (Nov. 29, 1994) at 15-16; id. (Nov. 30, 1994) at 9-10, 22-23. There were no questions proffered by the defense that the court did not allow, and Elliott was free to ask Leake anything he wished concerning misrepresentations by her as to her education and employment. We are unable to see any abuse of discretion in the District Court's handling of this matter.
B. Routine Practices of the Attorney General's Office and Other Special Assistant Attorneys General
Elliott sought to introduce evidence relating to the routine practices of the Office of the Missouri Attorney General and other special assistants because he "wanted to
The issue at trial was whether Elliott intentionally defrauded the state by knowingly submitting false bills. The proffered testimony concerning the categorization of files or the fact that other special assistants were paid for work done on closed files had nothing to do with this issue. On cross-examination, one of the proffered witnesses admitted that he had no personal knowledge of how Elliott prepared his legal bills, kept his time, dealt with the courts, or reviewed his files. The proffered witness could only testify as to how he prepared his own legal bills and handled cases in which he was involved. Put simply, the proffered testimony had nothing to do with Elliott and was irrelevant to the question of his guilt or innocence. The District Court did not abuse its discretion in excluding this evidence.
C. Routine Practice of the Workers' Compensation Division
Elliott also sought to introduce testimony concerning routine practice at the Workers' Compensation Division. The purpose of the proffered testimony was to show that court proceedings at the Compensation Division were rather informal and that the absence of a name on a minute sheet did not necessarily mean that the special assistant was absent from the proceeding. Although the District Court excluded this evidence as being irrelevant, the evidence may have had some relevance because the government's case included proof that Elliott billed the state for court appearances at the Compensation Division despite the fact that minute sheets failed to name him as being present. Elliott argues that the evidence was admissible for a purpose envisioned by Federal Rule of Evidence 406 — i.e., to show that the Compensation Division was acting in accordance with its usual laxness when it failed to register on the minute sheets all attorneys in attendance for the proceedings. We are not convinced that the proffered testimony established that the allegedly slack practices at the Compensation Division were sufficiently numerous or regular to rise to the level of cognizance under Rule 406 as a routine practice. But even assuming that the laxness did constitute a routine practice, if the District Court abused its discretion in excluding this testimony the error amounted to, at most, only harmless error given the weight of the government's massive case against Elliott. See United States v. Mihm, 13 F.3d 1200, 1205 (8th Cir.1994); United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 2717, 129 L.Ed.2d 842 (1994).
Elliott challenges the length of his sentence as calculated under the sentencing guidelines. Mail fraud carries a base-offense level of 6, U.S.S.G. § 2F1.1(a) (1995), which, with Elliott's criminal history category of I, would provide a sentencing range of imprisonment of zero to six months. Through a series of enhancements recommended by the presentence report (PSR), the base-offense level was raised to 24. The enhancements Elliott received were: (1) an eight-level increase pursuant to id. § 2F1.1(b)(1)(I) because
Where the defendant objects to statements in the PSR, a district court should neither merely accept the PSR nor require the defendant to disprove the disputed facts. United States v. Wise, 976 F.2d 393, 404 (8th Cir.1992) (en banc), cert. denied, 507 U.S. 989, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993). Instead, the government bears the burden of proving any disputed enhancement factors. United States v. Hammer, 3 F.3d 266, 272 (8th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1121, 127 L.Ed.2d 430 (1994). Elliott complains that the government did not satisfy its burden with respect to the enhancements because the trial court did not hold an evidentiary hearing before sentencing. "A formal sentencing hearing is not, however, the exclusive means by which the government may meet [its evidentiary burden]." United States v. Bellrichard, 62 F.3d 1046, 1051 (8th Cir.1995) (quoting United States v. Fetlow, 21 F.3d 243, 250 (8th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 456, 130 L.Ed.2d 365 (1994)) (alteration in Bellrichard), cert. denied, ___ U.S. ___, 116 S.Ct. 1425, 134 L.Ed.2d 549 (1996). In fact, a district court may base its findings on evidence presented at trial "even though no additional exhibits or testimony are introduced at the sentencing phase." Id. (quoting Fetlow). That is what the District Court did in this case. For each of the enhancements that Elliott challenges on appeal, the District Court properly based its findings on evidence adduced at trial. See Trial Trans. (Mar. 3, 1995) at 11 (amount of loss); id. at 18 (obstruction of justice)
Finally, Elliott claims that he was entitled to a downward departure because other defendants snared in the Second Injury Fund investigation received far lesser sentences. Elliott sought access to the sealed PSRs of these other defendants to bolster his argument for a downward departure, but his request was denied by the District Court. "A district court's failure to grant a defendant a downward departure is not reviewable on appeal if the court was aware of its authority to grant a departure."
For the foregoing reasons, the judgment of the of the District Court is affirmed.