United States of America v. Anthony D. Smith

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3395
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
A NTHONY D. S MITH ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-CR-24—J.P. Stadtmueller, Judge.
____________
A RGUED F EBRUARY 14, 2003—D ECIDED A PRIL 7, 2003
____________
Before F LAUM , Chief Judge, and D IANE P. W OOD and
E VANS , Circuit Judges.
F LAUM , Chief Judge. After a jury trial, Anthony Smith
was convicted of being a felon in possession of a 9mm semi-
automatic handgun and of being a felon in possession of
17 rounds of unfired 9mm ammunition, both in violation of
18 U.S.C. § 922(g)(1). On appeal Smith argues that his
indictment should be dismissed because an unauthorized
attorney represented the government in the grand jury
proceedings, and that his conviction should be vacated
because the government unconstitutionally used one of its
peremptory challenges to exclude a prospective juror be-
cause of his race. We affirm.

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2 No. 02-3395
I. B ACKGROUND
In January 2002 a federal grand jury returned a two-
count indictment against Smith for being a convicted felon
in possession of both a firearm and ammunition in viola-
tion of 18 U.S.C. § 922(g)(1). The details of Smith’s arrest
and trial are not germane to his appeal for he challenges
only the government’s use of an allegedly unauthorized
attorney during his grand jury proceedings and its allegedly
unconstitutional use of peremptory challenges during voir
dire.
During Smith’s grand jury proceedings, the federal
government was represented by Special Assistant United
States Attorney (“SAUSA”) Nelson W. Phillips III. Prior to
his appointment as SAUSA in May 2001, Phillips worked
for the state of Wisconsin as an Assistant District Attor-
ney for Milwaukee County. One of the conditions of Phil-
lips’s appointment stated that he would serve the federal
government without federal compensation; instead, Phillips
continued to receive an annual salary paid by the state
of Wisconsin while reporting to and acting under the di-
rection of the United States Attorney for the Eastern
District of Wisconsin. Before trial Smith moved to dis-
miss the indictment against him on the grounds that
Phillips’s salary arrangement violated federal law and
rendered Phillips an unauthorized government attorney
whose appearance before the grand jury violated Fed. R.
Crim. P. 6(d).
Smith arrives at his conclusion by the following logic. The
Federal Rules of Criminal Procedure limit participation
in grand jury proceedings to certain individuals, and Rule
6(d)(1) provides that “attorneys for the government” are
among those who may be present. Under Rule 54(c) an
“attorney for the government” may include “an authorized
assistant of a United States Attorney,” and 28 U.S.C.
§ 543(a) authorizes the Attorney General of the United

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No. 02-3395 3
States to “appoint attorneys to assist United States attor-
neys when the public interest so requires.” Attorneys duly
appointed under § 543 are therefore qualified “attorneys
for the government” who are permitted to appear before
a grand jury according to Fed. R. Crim. P. 6(d)(1).
However, 28 U.S.C. § 548 requires that the Attorney
General “shall fix the annual salaries of . . . attorneys
appointed under § 543 of this title at rates of compensa-
tion not in excess of the rate of basic compensation pro-
vided for in Executive Level IV.” Herein lies the problem,
according to Smith. Although Phillips was duly appointed
under § 543, his annual salary is not paid by the federal
government, but by the state of Wisconsin. Since Phillips
receives no federal salary, Smith argues that the Attorney
General cannot be said to have “fix[ed] his annual salary”
as required by § 548, and therefore Phillips’s appoint-
ment is invalid. If Phillips’s appointment under § 543 is
invalid, then he is not an authorized “attorney for the
government” under Fed. R. Crim. P. 6(d)(1) and should not
have appeared to represent the government before the
grand jury.
Smith moved the district court to dismiss the indictment
against him without prejudice under the theory that the
government’s violation of §§ 548 and 543 deprived the trial
court of jurisdiction over his case. The district court denied
Smith’s motion to dismiss after determining that Phil-
lips’s appointment under § 543 was valid and finding
that § 548 neither prohibited the state of Wisconsin from
paying Phillips’s salary nor required the federal govern-
ment to do so.
During voir dire, the government exercised six, and
Smith ten, peremptory challenges toward prospective ju-
rors. The government eliminated four white and two
black prospective jurors with its challenges, and Smith
objected to the government’s dismissal of both of the black

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4 No. 02-3395
individuals as unconstitutional under Batson v. Kentucky,
476 U.S. 79 (1986). As is required under Batson to rebut
a prima facie showing that a peremptory challenge was
exercised on the basis of race, the government explained
that it eliminated one juror, Ms. Tanyette Cockcroft, based
on her lip piercing, tattoos, and liberal arts background,
and the other juror, Mr. Marvin Fann, because he made
mistakes on his juror questionnaire that suggested an
inability to follow simple instructions. Over Smith’s objec-
tion the district court ruled that the government met
its burden under Batson to provide a race-neutral reason
for challenging the contested jurors, and that Smith had
not shown that the government’s reasons were pretextual.
On appeal Smith insists that the government’s use of
its peremptory challenge against Mr. Fann amounted to
unconstitutional race discrimination.
II. D ISCUSSION
A.
Smith argues that his indictment should be dismissed
without prejudice because at all times during his grand
jury proceeding the government was represented by an
unauthorized attorney, namely SAUSA Phillips. Both the
government and Smith agree that Phillips was duly ap-
pointed to his post by the Attorney General of the United
States as required by 28 U.S.C. § 543, but Smith contends
that Phillips’s failure to receive an annual salary fixed
by the Attorney General and paid by the federal govern-
ment violated 28 U.S.C. § 548, thereby invalidating his
appointment under § 543. With Phillips’s appointment
thus flawed, Smith argues, Phillips was never an autho-
rized “attorney for the government” and should not have
been present during the grand jury proceedings. The nar-
row question now before us is whether the fact that Phil-
lips’s annual salary was set at zero by the Attorney Gen-

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No. 02-3395 5
1 The legal dispute over who must sign an SAUSA’s paycheck
appears to be a question of first impression in this and other
circuits, although it is not uncommon for states to lend their
prosecutors to the federal government for appointment as
SAUSAs while continuing to pay their salaries. The Ninth Cir-
cuit considered a related challenge to the validity of an SAUSA’s
appointment under § 543 and subsequent appearance before a
grand jury in United States v. Navarro, 160 F.3d 1254 (9th Cir.
1998). However, the critical question in that case was whether
an appointment term limit required by the Intergovernmental
Personnel Act applied to SAUSAs appointed under § 543, and
not whether an SAUSA was required to be paid from the federal
coffers. Nevertheless, we find instructive to this case the com-
ment of the court that “nothing in that history suggests an in-
tention to weaken the Attorney General’s authority to seek the
aid of SAUSAs in an attempt to further protect the people of the
United States against what has sometimes seemed to be a tidal
wave of crime.” Navarro, 160 F.3d at 1257.
eral while Phillips continued to receive his state salary
from Wisconsin has any effect on Phillips’s status as an
authorized SAUSA. 1 We review this question of statutory
interpretation and construction de novo. United States
v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002).
Smith contends that § 548 requires appointed SAUSAs
like Phillips to receive an annual salary fixed by the
Attorney General of the United States and paid by the
federal government, but the government maintains that
§ 548 only requires the Attorney General to fix the an-
nual salary of United States attorneys at or below a cer-
tain level and does not require the federal government
to pay the annual salary. In advancing his argument, Smith
relies primarily on the statutory language of § 548, that
the Attorney General “shall fix the annual salaries” of
SAUSAs, but also submits that as a matter of public
policy it is unwise for attorneys who represent the fed-
eral government to receive their salaries from another

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6 No. 02-3395
source. Neither of Smith’s arguments convince us that
the current practice of appointing and compensating
SAUSAs like Phillips runs afoul of the law or public policy.
Section 548 states that the United States Attorney
General “shall fix the annual salaries” for SAUSAs “at
rates of compensation not in excess of the rate of basic
compensation provided for in Executive Level IV.” Smith
argues that since the language “shall fix” is mandatory, the
fact that Phillips received no federal salary is a clear
violation of the statute. We disagree. Section 548 plainly
requires the Attorney General to fix salaries at or be-
low a certain level; this evidences a desire to establish a
maximum salary cap for SAUSAs, not a minimum wage.
In this case the Attorney General did “fix” Phillips’s an-
nual federal salary, at exactly zero dollars ($0). Strange
as an annual salary of zero dollars may seem, there is
nothing in § 548 to prohibit this result. In fact, the ab-
sence of language in the statute speaking to the issue
of exactly how much government attorneys are paid and
by whom indicates that Congress did not intend to specifi-
cally regulate this area. Section 548 is a general salary
provision awarding the Attorney General some discretion,
up to a designated pay ceiling, to determine the salaries
of the government attorneys whom he or she supervises.
Moreover, there is nothing in § 548 that would lead us to
conclude that government attorneys, including SAUSAs,
are prohibited from receiving income from other sources.
This is not to say that a government attorney may accept
any amount of compensation from any source without
restriction; however, other statutes addressing the topic
of a federal employee’s receipt of income from outside
sources do not cast doubt on the propriety of SAUSA
Phillips receiving his salary from the State of Wisconsin
in this case. See, e.g., 18 U.S.C. § 209(a) (limiting federal
employees’ receipt of income from “any source other than
the Government of the United States, except as may be

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No. 02-3395 7
contributed out of the treasury of any State, county or
municipality” and penalizing private persons and en-
tities who make such payments to federal employees in
violation of the statute), and § 209(c) (making section
inapplicable to “a special Government employee or to an
officer or employee of the Government serving without
compensation”); see also Ethics in Government Act, 5
U.S.C. App. §§ 501 (limiting outside earned income) and
502 (limiting outside employment).
Smith urges us to write a rule in this case requiring
that all government attorneys be paid for their services
solely by the federal government. He insists this is neces-
sary to protect the integrity of the office of the United
States Attorney and shield it from unsavory and improp-
er influences. Smith doubts that other statutory safe-
guards, like the requirements that the Attorney General
appoint each attorney and supervise his or her practice,
and that all government attorneys must swear an oath to
faithfully execute his or her duties, are sufficient de-
fenses. We do not disagree that our judicial system might
look very different if private persons and special interest
groups directly paid the salaries of purportedly neutral
government attorneys; indeed, we would be concerned
about the potential for corruption, fraud and prosecutorial
misconduct that Smith describes. But that is not the
legal landscape we are viewing under the current stat-
utory scheme, nor is it the situation we are facing here
by allowing duly appointed SAUSA Phillips to submit to
the authority of the Attorney General of the United States,
to follow the policies and procedures of the United States
Attorney for the Eastern District of Wisconsin, and to
receive his salary from his former employer, the state
of Wisconsin, while serving his appointment to the fed-
eral government.
Since Phillips was duly appointed by the power granted
to the Attorney General under § 543, we hold that Phil-

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8 No. 02-3395
lips’s salary arrangement during his tenure as SAUSA
was permissible under § 548 and that he was an author-
ized government attorney at all times during Smith’s
grand jury proceedings and trial. Because we find that
Phillips was authorized to represent the government be-
fore the grand jury, we need not reach the issue wheth-
er a grand jury appearance by a government attorney
whose appointment is defective under § 543 deprives the
trial court of jurisdiction and requires dismissal of the
tainted indictment even after the defendant was con-
victed at trial.
B.
Smith next urges us to vacate his conviction because
the government exercised a peremptory challenge based
on the race of a prospective juror. In Batson v. Kentucky,
476 U.S. 79 (1986), the Supreme Court held unconstitu-
tional the use of peremptory challenges on the basis of
race and established a procedure for trial judges to use
to evaluate whether a peremptory challenge was discrim-
inatorily motivated. Id. at 96. A defendant must first show
that the challenged juror belonged to a cognizable racial
group and that the prosecutor removed the juror because
of his race. The burden then shifts to the prosecution to
provide a race-neutral reason for challenging the con-
tested juror. If the trial court decides that the govern-
ment’s proffered explanation is legitimate, the burden
shifts again to the defendant to show that it was in fact
pretextual. The Supreme Court emphasized in Batson that
trial judges should consider “all relevant circumstances” in
making their determinations and should be in the best
position to decide, given their “experience[ ] in supervising
voir dire,” whether the peremptory challenges were im-
permissibly based on race. 476 U.S. at 97.
We review the district court’s factual findings related to
Smith’s Batson challenge for clear error. Tinner v. United

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No. 02-3395 9
Ins. Co. of America, 308 F.3d 697, 703 (7th Cir. 2002);
United States v. Jordan, 223 F.3d 676, 686 (7th Cir. 2000).
We will not reverse the determination of the district
judge unless the reason given for the challenge is “com-
pletely outlandish” or there is other clear evidence that
proves it wrong. See Tinner, 308 F.3d at 703 (quoting
United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir.
1998)).
In this case we find no clear error in the district court’s
determination that the government did not use its peremp-
tory challenge against Mr. Fann because of his race. The
government explained, in response to Smith’s objection
during voir dire, that it excused Mr. Fann because he
had made several mistakes on his juror questionnaire
that suggested an inability to follow simple instructions.
Smith asserts that this reason is pretextual because
other white jurors who made mistakes on their question-
naires were not also struck. Though Smith correctly states
that a comparison of similarly situated jurors is an appro-
priate factor for the trial judge to consider in determin-
ing discriminatory intent, it is only one of many permis-
sible factors, and in this case it is not determinative.
See Coulter v. Gilmore, 155 F.3d 912, 921 (7th Cir. 1998);
Miller-El v. Cockrell, 123 S.Ct. 1029, 1032 (2003) (examin-
ing discriminatory intent through comparison of venire
members of different races). The record here shows that no
other juror made as many mistakes on his or her question-
naire as Mr. Fann: two other jurors made two errors each
and four jurors made one error each, but Mr. Fann made
seven errors on his questionnaire.
We also note for comparison’s sake the fact that the
government used its final peremptory challenge to strike
a white juror rather than the one black juror remaining
in the pool. Though this fact alone does not defeat Smith’s
Batson claim, it is additional evidence that the govern-
ment did not act with racially discriminatory intent in

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10 No. 02-3395
selecting the jurors for Smith’s trial. See Batson, 476 U.S.
79, 97 (stating that a pattern of strikes against black
jurors might lead to an inference of discrimination). See
also United States v. Marin, 7 F.3d 679, 686 n.4 (7th Cir.
1993) (noting that government’s empaneling of other
minority jurors bolstered credibility of government’s race-
neutral explanation for striking the contested minority
juror); United States v. Nichols, 937 F.2d 1257, 1264
(7th Cir. 1991) (finding it relevant that black jurors were
seated while government still had peremptory challenges
available).
The government’s reasons for using its peremptory
challenges need not rise to the level justifying the use of
a challenge for cause. Batson, 476 U.S. at 97. During voir
dire the government stated that “Mr. Fann’s performance
on his questionnaire” provided the reason for exercising
its peremptory challenge. The district judge accepted
this explanation, and given the evidence in the record
supporting the government’s reasons, we do not find the
court’s determination to be clearly erroneous.
III. C ONCLUSION
The district court properly determined that SAUSA
Phillips was an authorized attorney for the government
during Smith’s grand jury proceedings and that the gov-
ernment did not unconstitutionally exercise its peremptory
challenge toward Mr. Fann. A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-7-03

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