In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-2638 & 99-2640

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEBORAH WALTON
and KENNETH MARSALIS,

Defendants-Appellants.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 320--John F. Grady, Judge.


Argued April 12, 2000--Decided June 14, 2000




  Before CUDAHY, COFFEY and KANNE, Circuit Judges.

  COFFEY, Circuit Judge. On June 4, 1998,
Defendants-Appellants Deborah Walton ("Walton")
and Kenneth Marsalis ("Marsalis") were indicted
and charged in a two count indictment, charging
each of them with conspiring to carry and take
away and carrying and taking away, with intent to
steal, approximately $90,500.00 from a Citibank
branch’s automatic teller machine ("ATM")./1
Walton and Marsalis were both convicted on each
count by a jury, and their separate motions for
a new trial were summarily denied. The court on
June 17, 1999 sentenced Walton to ten months’
imprisonment on each count and ordered each of
her sentences to run concurrent with each other.
The court sentenced Marsalis to twenty-seven
months’ imprisonment on each count, and also
ordered each of his sentences to run concurrent
with each other. Each of them were also sentenced
to three years supervised release and ordered to
pay restitution in the amount of $90,500.00. The
court directed that the order of restitution be
paid jointly and severally by Walton, Marsalis
and Golliday.

  Marsalis appeals, arguing that the judge: (1)
erred when he found that the government’s
peremptory strike of a prospective juror was not
based on racial discrimination; (2) abused his
discretion when he excluded evidence regarding a
similar ATM theft at the same location that
occurred just four months prior to the instant
offense and (3) abused his discretion when he
denied his motion for a new trial based on the
government’s failure to produce the remaining
telephone records that he requested until the
second day of trial. Walton also appeals, arguing
that the court committed error when in its
restitution order, it directed that she be held
jointly and severally liable for the full amount
of restitution. We AFFIRM Marsalis’ conviction and
sentence, AFFIRM Walton’s conviction, and REVERSE AND
REMAND Walton’s sentence with respect to the order
of restitution.


I.   BACKGROUND

  At approximately 10:32 p.m. on June 7, 1996,
Marsalis, Walton and Golliday drove in separate
cars to the Citibank branch located at 8650 South
Stony Island in Chicago, Illinois, to commit a
theft from the bank’s drive-up ATM. Acting as the
"look-out," Walton parked her car nearby so that
she could flash her headlights as a warning
should she observe anything that might interfere
with the execution of the crime as planned.
According to the plan, Golliday entered the
bank’s premises to access the bank’s interior ATM
and engaged the bank security guard in
conversation and distracted him, claiming that
she was having trouble retrieving money from the
machine. With the guard’s attention diverted to
Golliday’s problem, Marsalis drove-up to the ATM
located outside the bank, gained entry into the
machine and stole approximately $90,500.00.

  The theft was not discovered until the next
morning when a bank security guard noticed that
the drive-up ATM door was open. The FBI and the
company responsible for replenishing the ATM,
Wells Fargo, discovered upon investigation that
the evidence pointed to an "inside job" as there
were no signs of forcible entry into the ATM and
the ATM’s burglar alarm system was turned off.
Also, the bank’s surveillance video tapes were
reviewed and revealed that about the time of the
theft, Golliday can be observed on the video in
the interior ATM area occupying the attention of
the bank security officer and focusing her eyes
in the direction of the drive-up ATM. Still
photos of Golliday were taken from the video tape
and copies of her picture were distributed
throughout the local Wells Fargo branch that was
responsible for servicing the ATM. Thereafter, a
secretary at Wells Fargo recognized Golliday as
a former Wells Fargo employee, resulting in
Golliday being arrested and charged with the
theft.
  When FBI agents questioned Golliday about the
crime, she readily confessed to her involvement
in the episode, agreed to cooperate and
identified the other partners involved as
Marsalis and Walton, both of whom were also
former Wells Fargo employees. She went on to
describe how they jointly planned and carried out
the heist and based on this information, Marsalis
and Walton were arrested. Prior to issuing the
indictment and upon request by the government,
the grand jury issued a subpoena for various
telephone records, including the home phone
records of Marsalis, Walton and Golliday which
reflected an unusually high number of calls
placed between the defendants on the day of the
theft. Prior to trial, defense counsel requested
and the government produced the subpoenaed
telephone records, but neglected to produce the
phone records relating to the government’s
investigation into a prior ATM theft at the same
address that occurred just four months earlier.
After another request by defense counsel for
these particular records, the prosecution turned
over the remaining phone records on the second
day of trial.

  During jury selection, the government exercised
a peremptory strike upon a prospective African-
American juror, explaining that they based their
strike on her "inattentiveness" during the
proceedings. In an attempt to ascertain whether
the government’s strike was race-neutral in light
of the fact that both Marsalis and Walton are
also African-American, the court sua sponte
conducted a voir dire concerning the asserted
reason given by the government in support of its
strike. In response, the government offered the
testimony of the FBI agent assigned to the case
whose observations formed the basis of the
government’s strike. After hearing the case
agent’s testimony and the arguments of counsel,
the court concluded that the government’s
peremptory strike of the juror was race-neutral.

  At trial, Marsalis and Walton offered to
introduce evidence relating to the February 1996
unsolved ATM theft but the court refused to admit
the offer, ruling that it was irrelevant and
might conceivably be prejudicial to the
defendants as it might serve to suggest that the
defendants also committed the unsolved ATM theft.
Following their convictions, Marsalis filed a
motion for a new trial based on the government’s
tardy production of the missing phone records,
which was in turn denied by the court. As
previously mentioned, the court proceeded to
sentence Walton and Marsalis to ten and twenty-
seven months’ imprisonment respectively, and held
Walton, Marsalis and Golliday each jointly and
severally liable for restitution in the amount of
$90,500.00. Marsalis and Walton appealed.

II.    ISSUES

  On appeal, Marsalis claims that: (1) the judge
erred when he found that the government’s
peremptory strike of the African-American juror
was not pre-textual for racial discrimination;
(2) the court abused its discretion when it
excluded evidence of a prior ATM theft at the
same location that occurred four months prior to
the instant offense; and (3) the court abused its
discretion when it denied the defendant’s motion
for a new trial despite the government’s failure
to produce the remaining telephone records until
the second day of trial. Walton on appeal argues
only that the court erred when it held her
jointly and severally liable for the full amount
of the restitution.

III.    DISCUSSION

  A.    Marsalis’ Batson Challenge

  Marsalis initially argues that the court erred
when it ruled that the government’s peremptory
strike of a prospective African-American juror
based on her "inattentiveness" during the
proceedings was proper. Specifically, Marsalis
contends that the court "clearly erred by failing
to perform a thorough analysis of whether [the]
stricken juror . . . was treated differently from
similarly-situated prospective jurors," and thus,
the prosecution’s strike was actually based on
race. Under Batson v. Kentucky, 

, 96-
98 (1986), allegations of racially-based
peremptory challenges are evaluated under a
three-part analysis: (1) the defendant must make
a prima facie showing that the government
exercised the challenge because of race; (2) the
government must next proceed to articulate a
race-neutral reason for the challenge; and
thereafter (3) the court must determine whether
the defendant has carried his burden of proving
purposeful discrimination. See Morse v. Hanks,

, 985 (7th Cir.), cert. denied, 

(1999). Because both Marsalis and the
government concede that the first two steps were
satisfied, we turn our focus to the third step.
United States v. Evans, 

, 699-700
(7th Cir. 1999) ("[T]he trial judge’s finding
that the government offered a race-neutral
explanation . . . moots the preliminary question
whether [the defendant] established a prima facie
case of discrimination.")

  Under the third step of the analysis (whether
the defendant has carried his burden of proving
purposeful discrimination), "the persuasiveness
of the justification becomes relevant" and "the
ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the
opponent of the strike." Purkett v. Elem, 

, 768 (1995) (per curium). Thus,
"[u]nless a discriminatory intent is inherent in
the prosecutor’s explanation, the reason offered
will be deemed race neutral." United States v.
Marin, 

, 686 (7th Cir. 1993) (brackets
in original) (citing Hernandez v. New York, 

, 360 (1991) (plurality opinion)).

  The court sua sponte conducted a voir dire of
the government’s asserted reason for the strike
and received the testimony of the assigned FBI
case agent whose observation formed the basis of
the government’s peremptory strike. When asked to
describe the "inattentiveness" of the stricken
juror and compare her with the other jurors he
had an opportunity to observe, the agent
testified:

  THE FBI AGENT: Specifically what I noticed was
her . . . staring out . . . [the] window and not
looking back over at the Judge when he was
speaking . . . .
. . .

  THE COURT: Did this juror in terms of her
attentiveness or inattentiveness strike you as
acting differently from the other 13 jurors you
could see in the box?

THE FBI AGENT: Yes, sir. I think that is why I
noticed her. I had nothing else to do at the time
but observe what I could, and . . . everyone else
was slanted towards you even if they had to turn
their chairs, and she was facing the other way,
which is why I initially noticed her.

  After considering the testimony of the case
agent regarding his observations of the stricken
juror and the other prospective jurors, as well
as the arguments of counsel, the judge was
convinced that the government’s peremptory
challenge was race-neutral:

There can be no doubt that inattentiveness is a
legitimate basis for challenging a juror. If
anything is required of a juror aside from
impartiality, it is the willingness and ability
to pay attention and retain what is seen and
heard during the trial. So inattentiveness is a
major objection of the most legitimate kind to a
juror who displays that characteristic. . . .
Considering all the circumstances, I conclude
that the defendants have failed to carry their
burden of proving that the government’s reason
for challenging [the juror] is motivated in any
degree by race.
  Contrary to Marsalis’ assertions, the record is
clear that the judge engaged in an exhaustive
inquiry into the government’s peremptory strike
of the African-American juror. See Coulter v.
Gilmore, 

, 921 (7th Cir. 1998). We
also are convinced that Marsalis failed to carry
his burden of establishing that the government’s
peremptory strike was motivated by race because
a juror’s inattentiveness during the proceedings
is a valid, race-neutral basis for executing a
peremptory strike. See, e.g., United States v.
Changco, 

, 840 (9th Cir. 1993) (holding
that inattentiveness is a proper race-neutral
basis for striking a juror); United States v.
Garrison, 

, 106 (4th Cir. 1988)
(holding that striking a juror because she
appeared "inattentive or uninterested" did not
violate Batson). Thus, in light of the court’s
thorough review and fact-finding, our deference
to "[t]he trial court’s determination about the
ultimate question of discriminatory intent," and
the absence in the record of any evidence to
support the defendant’s claim, we conclude that
there was no error, much less clear error, in the
court’s finding that the government’s strike of
the African-American juror was race-neutral. See

.


 B.   Marsalis’ Evidentiary Challenge

  We next turn to Marsalis’ claim that the court
abused its discretion when it excluded the
reception of evidence dealing with an unsolved
ATM theft from the same bank that occurred just
four months prior to the date of the instant
offense. We review a trial judge’s determination
of the admissibility of evidence under the abuse
of discretion standard. See United States v.
Johnson, 

, 974 (7th Cir. 1998). "We
afford great deference to the trial court’s
determination of the admissibility of evidence
because of the trial judge’s first-hand exposure
to the witnesses and the evidence as a whole, and
because of the judge’s familiarity with the case
and ability to gauge the impact of the evidence
in the context of the entire proceeding." United
States v. Van Dreel, 

, 905 (7th Cir.
1998). Indeed,

"[a]ppellants who challenge evidentiary rulings
of the district court are like rich men who wish
to enter the Kingdom: their prospects compare
with those of camels who wish to pass through the
eye of the needle." United States v. Coleman, 

, 1061 (7th Cir. 1999) (internal
quotations omitted) (brackets in original).
Because we give "special deference" to the
rulings of the trial judge[,] [a defendant]
obviously "carries a heavy burden." Palmquist v.
Selvik, 

, 1339 (7th Cir. 1997). In
this context, we will not reverse unless "the
record contains no evidence on which [the
district court] rationally could have based [its]
decision, or where the supposed facts found are
clearly erroneous." 

omitted). Moreover, if an error in the admission
or exclusion of evidence was committed during the
trial, the court will grant a new trial only if
the error had a "substantial influence over the
jury," and the result reached was "inconsistent
with substantial justice." 

omitted).

Agushi v. Duerr, 

, 759 (7th Cir.
1999).

  Sometimes referred to as "reverse 404(b)"
evidence, "[e]vidence regarding other crimes is
admissible for defensive purposes if it ’tends,
alone or with other evidence, to negate [the
defendant’s] guilt of the crime charged against
him.’" 

(quoting United
States v. Stevens, 

, 1404 (3d Cir.
1991)). But of course, a court "should balance
the evidence’s probative value under Rule 401
against considerations such as prejudice, undue
waste of time and confusion of the issues under
Rule 403." 

court concluded, and we agree, that
the evidence regarding the unsolved February 1996
ATM theft was irrelevant because it was unsolved
and occurred four months prior to the instant
theft and neither tended to prove nor disprove
the defendants’ involvement in the charged
offense, and also that the evidence might
conceivably be interpreted as prejudicial to the
defendants because it might have suggested to
some that the defendants also committed the
unsolved ATM theft:

[U]nless there is evidence tending to show that
[the defendants] were not involved in the
February occurrence, all this evidence that you
propose to offer would suggest that somebody,
including [the defendants] as a very real
possibility, committed a similar offense back in
February. That doesn’t tend to show that they are
not guilty of the offense charged here.

(Emphasis added).

  Because "we give great deference to the
district court’s evidentiary rulings" and because
of the obvious lack of relevance and prejudicial
nature of the evidence relating to the unsolved
ATM theft, we are convinced that the trial judge
did not abuse his discretion in excluding this
evidence. See United States v. Mancillas, 

, 705 (7th Cir. 1999), cert. denied, 

(2000).


  C.   Marsalis’ Motion for a New Trial

  Turning to Marsalis’ claim that the court
abused its discretion when it denied his motion
for a new trial, Federal Rule of Criminal
Procedure 33 provides that "[o]n a defendant’s
motion, the court may grant a new trial to that
defendant if the interests of justice so
require." We review a court’s decision to deny a
new trial for abuse of discretion. See United
States v. Williams, 

, 1437 (7th Cir.
1996).

  Specifically, Marsalis contends that he was
entitled to a new trial because the prosecution
violated Brady v. Maryland, 

(1963),
by failing to turn over all of the phone records
that were subpoenaed in a timely fashion. In
order for the defendant to be entitled to a new
trial as a result of an alleged Brady violation,
he must establish that: (1) the prosecution
suppressed evidence; (2) the evidence allegedly
suppressed was favorable to the defense; and (3)
the evidence was material to an issue at trial.
See United States v. Hartbarger, 

,
786 (7th Cir. 1998), cert. denied, 

(1999). Under the third prong, evidence is
material only if there is a "reasonable
probability" that the disclosure of the allegedly
suppressed evidence would have changed the result
of the trial. United States v. Silva, 

, 670 (7th Cir. 1995). A "reasonable
probability" exists if the suppression of
evidence undermines confidence in the outcome of
the trial. See 

conclude that the
third step of the analysis is dispositive, we
turn our attention to whether there is a
"reasonable probability" that timely disclosure
of the missing phone records would have changed
the result of Marsalis’ trial.

  Here, Marsalis has failed to establish how the
timely disclosure of the missing phone records
relating to the unsolved ATM theft impacted his
trial because the records became immaterial at
the moment the judge excluded any evidence that
related to the government’s investigation into
the unsolved ATM theft. But even if the missing
phone records could properly be classified as
material (i.e., exculpatory evidence), these
records were turned over on the morning of the
second day of trial, well before the prosecution
had finished presenting its case. In spite of
Marsalis’ claim that he was harmed by the
government’s delayed production, it is
interesting to note that he failed to move for
either a continuance, an adjournment or a
mistrial. See, e.g., United States v. Higgins, 

, 335 (7th Cir. 1996) ("Disclosure even
in mid-trial suffices if time remains for the
defendant to make effective use of the
exculpatory material. . . . If counsel needed
more time, she had only to ask; yet she did not
seek a continuance. Nothing more need be said.");
United States v. Williams, 

, 178 (7th
Cir. 1984) ("[O]ur standard of review limits us
to determining whether the government’s
disclosure came so late as to prevent appellant
from receiving a fair trial. We cannot say that
disclosure came too late in this case. After
appellant’s counsel viewed the reports at trial,
he could have asked for a continuance to contact
the other owners and call them to testify, or he
could have asked the court to make the reports
part of the record.") (citations omitted). Thus,
we are of the opinion that the government’s
delayed disclosure of the remaining phone records
did not come so late as to deny Marsalis of the
evidence’s "effective use" at trial, had he
chosen to do so.

  Accordingly, we are not convinced that there is
a "reasonable probability" that the outcome of
his trial was prejudiced by the government’s
alleged delayed production of the immaterial
phone records. We conclude that the trial judge
did not abuse his discretion in denying Marsalis’
motion for a new trial based on the alleged Brady
violation.


  D. Walton’s Challenge to the Restitution Portion
of her Sentence

  Lastly, the government concedes, as Walton has
asserted, that the district court committed plain
error because according to the transcript of the
proceedings, the court was under the mistaken
impression that it was "required" to order her
jointly and severally liable for the entire
amount of the restitution of $90,500.00./2 At
the conclusion of Walton’s sentencing hearing,
the court ordered:

  THE COURT: A condition of the supervised release
is that she make restitution. I think I am
required to impose the full amount these days; is
that correct?

  [Marsalis’ Attorney]: Yes, your Honor.

  [The Government]: You are Judge.

  THE COURT: 90,000 and how many dollars?
  [The Government]: 500.

  THE COURT: $90,500 within the period of
supervised release. . . .

(Emphasis added). Walton contends that under the
law, the court was not "required to impose the
full amount," but instead, had the option of
apportioning the restitution amount among the
defendants and weighing factors into the fixed
restitution figure, such as her "contribution to
the victim’s loss" and her "economic
circumstances."

  Under the Mandatory Victim Restitution Act
("MVRA"), enacted in 1996, a court must award the
full amount of restitution to each victim of a
property crime. See 18 U.S.C. sec. 3663A(a)(1),
(c)(1)(A)(ii); sec. 3664(f)(1)(A). The MVRA "does
not permit a district court to exercise
discretion as to whether it imposes restitution
upon a defendant; the statutory language clearly
states that it must." See United States v.
McIntosh, 

, 1004 (7th Cir. 2000). The
statute also provides that where more than one
defendant has contributed to the victim’s loss,
the court may make each defendant liable in full
or "apportion liability among the defendants to
reflect the level of contribution to the victim’s
loss and economic circumstances of each
defendant." 18 U.S.C. sec. 3664(h)./3

  Because the MVRA affords the sentencing court
discretion in apportioning liability where
multiple defendants are involved, our previous
holdings interpreting the Victim Restitution Act
remain instructive here. In McIntosh, we stated
that because "the Victim Restitution Act provides
district courts with discretion when ordering
restitution," when a court "chooses to impose an
order [of restitution] and simultaneously waives
a fine because of the defendant’s economic
circumstances," an explanation of its reasoning
is necessary. 

.

  Thus, when a court orders restitution under 18
U.S.C. sec. 3664(h) but the record fails to
"sufficiently support [the court’s] conclusions
or clarify its reasoning, then we ask that the
court provide us with that information, including
its specific findings of fact, to facilitate our
review." United States v. Menza, 

,
538 (7th Cir. 1998); cf. United States v. Boula,

, 269 (7th Cir. 1993).
  Upon review of the judge’s statements in the
record, we are not convinced that the court was
aware that it had the option of either ordering
Walton liable for the full amount of the
restitution or apportioning her liability to
reflect the level of Walton’s contribution to the
victim’s loss and her economic circumstances./4
We also are left in limbo and can only speculate
as to why the court waived Walton’s fine and the
interest "due to [her] financial inability to
pay" and ordered her restitution payments to be
made "in monthly installments equal to 10% of her
monthly cash flow," but for reasons unexplained,
chose not to apportion her liability based upon
her economic circumstances as it had the
authority to do so under 18 U.S.C. sec. 3664(h).

  Thus, we vacate and remand the restitution
portion of Walton’s sentence and ask the court to
make clear that it has considered whether Walton
should be liable "for payment of the full amount
of restitution" or for an apportioned amount
"reflect[ing] [her] level of contribution to the
victim’s loss and economic circumstances." 18
U.S.C. sec. 3664(h). We leave to the judgment of
the court to determine whether our aforementioned
conclusions warrant a reevaluation of the
restitution portions of Marsalis’ and Golliday’s
sentences as well.

  In conclusion, we agree that the trial judge
did not abuse his discretion when he found that
the government struck the African-American juror
for race-neutral reasons, precluded evidence of
the unsolved February 1996 ATM theft and denied
Marsalis’ motion for a new trial. We vacate the
restitution portion of Walton’s sentence and
remand the case to the trial court to make
specific its findings in support of its order of
restitution, while also considering whether or
not she should be held liable for the full amount
of restitution or for an amount reflecting her
contribution to the victim’s loss and her
economic circumstances, and whether the
restitution portion of Marsalis’ and Golliday’s
sentences should also be reevaluated.
Accordingly, we AFFIRM Marsalis’ conviction and
sentence, AFFIRM Walton’s conviction, and REVERSE
only with respect to Walton’s restitution order
and REMAND the sole issue of restitution to the
district court for proceedings consistent with
this opinion.

AFFIRMED IN PART,
REVERSED IN PART AND
REMANDED WITH INSTRUCTIONS.



/1 One Larita Golliday ("Golliday") was also named
and charged in both counts of the indictment,
pled guilty pursuant to a plea agreement and
cooperated with law enforcement authorities in
the investigation and prosecution. The court
sentenced Golliday to two years probation on
Count one and found her, along with Marsalis and
Walton, jointly and severally liable for the
total amount of the restitution. On motion of the
government, the court dismissed Count two of
Golliday’s indictment.

/2 The government and Walton agree that Walton’s
attorney’s forfeited this argument on appeal by
failing to raise the issue to the court’s
attention at sentencing, but the respective
parties also agree that the error is serious
enough to constitute plain error and warrant
remand of the restitution portion of Walton’s
sentence.

/3 The MVRA also provides that upon determination of
the amount of restitution owed to each victim,
the court must specify in the restitution order
the manner and schedule in which the restitution
is to be paid, taking into consideration the
"financial resources and other assets,"
"projected earnings and other income" and "any
financial obligations of the defendant." 18
U.S.C. sec. 3664(f)(2). Indeed, the court may
even "direct the defendant to make nominal
periodic payments if the court finds from facts
on the record that the economic circumstances of
the defendant do not allow the payment of any
amount of a restitution order, and do not allow
for the payment of the full amount of a
restitution order in the foreseeable future under
any reasonable schedule of payments." 18 U.S.C.
sec. 3664(f)(3)(B).

/4 But we also feel obligated to point out that the
government and the respective counsel for each of
the defendants contributed to the sentencing
court’s mis-apprehension. In response to the
court’s inquiry, "I think I am required to impose
the full amount [of restitution] these days; is
that correct?", the government and Marsalis’
attorney each replied in the affirmative, while
Walton’s attorney remained silent. Nonetheless,
because both the government and Walton agree that
the court’s error was plain and the record
reflects the same, we grant remand.