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VOL. 36 | NO. 36 | Friday, September 07, 2012

Appellate court favors ex-FBI agent

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NASHVILLE (AP) - The case of a former Nashville FBI agent convicted of wire and bankruptcy fraud must be reconsidered after allegations of racial discrimination were raised in the dismissal of two prospective black jurors at his trial, a federal appeals court ruled Thursday.

The 6th U.S. Circuit Court of Appeals said the case of Darin Lee McAllister should be sent back to district court to determine whether he should get a new trial.

McAllister, who was an FBI agent when he was convicted in 2010, was sentenced last year to four years in prison for wire and bankruptcy fraud related to his purchase of rental properties totaling more than $1.25 million. He was also ordered to pay more than $775,000 in restitution.

He was convicted of devising a scheme to defraud a bank over a $100,000 line of credit and lying about his subsequent bankruptcy petition.

McAllister argues that the district court erred by not allowing him to challenge a prosecutor's decision to remove the two jurors.

During the trial, the district court judge told the prosecutor he understood why he removed one of the jurors, because she had been convicted of a felony involving deception, according to court documents. But the judge questioned the release of the other juror, who said he was unemployed.

The prosecutor said that besides being unemployed, the juror once was in the military police, "and there was a concern that he would identify with the defendant."

The judge responded "all right" and didn't ask any further questions, court records show.

The appeals court wants the district court "to make explicit on-the-record findings as to whether McAllister established the existence of purposeful race discrimination in the selection of his jury."

"In making those findings, the district court must consider all evidence, including juror questionnaires that bear on the issue of racial animosity," the judges wrote.< /P>

Circuit Judge David McKeague agreed with much of the majority but dissented in part. Some of his objection was with the examination of more questionnaires.

"How long is the trial judge obliged to hold the trial at a standstill while he or she examines questionnaires for potential evidence?" he asked. "What if the examination involves 30 or 50 or 100 or more questionnaires?"