United States v. Nduche Chima Uwaezhoke A/K/A Andy

995 F.2d 388

• Court: Court of Appeals for the Third Circuit
• Decided: June 11, 1993
• Docket: 91-5589
• Status: Published

Opinions

OPINION OF THE COURT

STAPLETON, Circuit Judge.

This appeal challenges the conviction of Nduche Chima Uwaezhoke. Mr. Uwae-zhoke, who is black, was charged, together with one Tony Butts, with four counts of heroin importation and related conspiracies. Mr. Butts pleaded guilty to one count of the indictment. Mr. Uwaezhoke went to trial. Mr. Butts was a principal witness at the trial, which resulted in a jury verdict of guilty on all four counts. Mr. Uwaezhoke was sentenced to concurrent terms of 216 months on each of the four counts.

The sole question presented by Mr. Uwae-zhoke’s appeal is whether, in the course of jury selection, the prosecution exercised one of its peremptory challenges in a racially discriminatory way, in contravention of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

I.

Appellant had ten peremptory challenges and exercised all of them. The government had six peremptory challenges and exercised two. The first of the government’s peremptory challenges was directed at venireperson 324, Douglas Bath, a single unemployed male carpenter; the record contains no concrete evidence with respect to Mr. Bath’s ethnicity, but since Mr. Uwaezhoke has not complained about the striking of Mr. Bath, it seems a fair inference that Mr. Bath was not black. The second of the government’s peremptory challenges was directed at venireperson 169, Kim R. Lucas, a black woman residing in Newark, New Jersey, who had appeared in the jury box as a replacement for the panelist who was the object of Mr. Uwaezhoke’s ninth peremptory challenge. The record shows the following exchange with respect to the striking of Ms. Lucas:

THE CLERK: Juror 3, 169, Kim R. Lucas.

THE COURT: Yes, Miss Lucas.

PROSPECTIVE JUROR NO. 3: A, five years. B. I’m a postal employee. I’ve been there four years. Not married. Single parent, two small children at home. I rent, aerobics, I cut hair, and I take tennis lessons. High School. I have a license in cosmetology and I go to college.¹

THE COURT: And did you hear the questions that I asked the other jurors?²

PROSPECTIVE JUROR NO. 3: Yes.

THE COURT: Is your answer yes to any of them?

PROSPECTIVE JUROR NO. 3: No.

THE COURT: All right. Thank you very much. Mr. Tannenbaum.

MR. TANNENBAUM: The United States would request that Juror 3 be excused.

THE COURT: All right, Miss Lucas, thank you very much.

MR. BROWN: I want to be heard at sidebar, if your Honor please.

THE COURT: All right.

(The following occurs at sidebar.)

THE COURT: Yes.

MR. BROWN: Your Honor, this is obviously racial. I wanted to make a challenge. People sat in that seat time and again. Everyone was approved. The moment a black sits down there is a targeted thrust at that particular person.

I realize that it’s peremptory, but I understand that under your rules, the Supreme Court ruled that if there is an indication of racial selectivity, that that is illegal and is to be prohibited. That was as clear as a bell.

THE COURT: Mr. Tannenbaum, what was the basis for the challenge?

MR. TANNENBAUM: We challenged her because it’s a general policy. She was a postal employee, and we usually don’t like to have postal employees on the jury. It has nothing to do with any racial—

MR. BROWN: Judge, I’ve tried cases in this courthouse for a long time. If that is a new policy to challenge postal authorities, that is a brand new policy.

As a matter of fact, the practical approach has been that these people favor the federal government because they are employed by them. But to say that there is a policy to challenge postal employees—

THE COURT: Are you stating?

MR. REPETTO: It’s not a policy.

MR. TANNENBAUM: No, it’s not a policy per se.

MR. BROWN: I would like to have what he said read back.

THE COURT: No. Mr. Repetto?

MR. REPETTO: We have a black juror that has been on from the initial panel. Nobody challenged her.

THE COURT: I want to know why you challenged this particular juror.

MR. REPETTO: This particular juror is employed by the Postal Service. There is a problem with Postal Service jurors in these kinds of cases. It is a person that is a single parent, it’s also a person that rents, it’s a person that may be involved in a drug situation where she lives.

There is a lot going to this other than the fact that she is black, and there is a black juror on that nobody touched.

MR. BROWN: That’s the point.

THE COURT: I’m going to accept the government’s explanation.

MR. BROWN: But, Judge, I challenge the concept that postal workers—

THE COURT: Other reasons were given. We’ll stand on the record.

MR. BROWN: There were no other reasons. The neighborhood?

THE COURT: The record will speak for itself.

MR. BROWN: Yes, it shall, and I want to go on the record objecting and asking for a mistrial based upon a deliberate use of a prejudice and racial challenge.

THE COURT: I will note that Juror No. 4 is black and has not been challenged throughout.

MR. BROWN: But that’s not the standard. The standard is why is someone challenging for racial reasons. The answer that there is a policy, and I remember the word—

THE COURT: But it was expanded upon by Mr. Repetto. All right, yes. Motion denied. (End of sidebar discussion.)

Supp.App. 52-55.

As the quoted colloquy indicates, the government advanced two reasons for challenging Ms. Lucas. The first, advanced by prosecutor Tannenbaum, was that the United States Attorney’s Office had a policy favoring the exercise of peremptory challenges in drug cases to exclude anyone who was a postal employee. The second, advanced by prosecutor Repetto, was that Ms. Lucas’ personal circumstances (i.e., those of a single parent living in a rental property in the city of Newark who was supporting herself and two children on the income of a postal worker with four years’ tenure) suggested to the government that she “may be involved with a drug situation where she lives.” As we read the trial transcript, the judge was as incredulous as Mr. Brown about the existence of a policy excluding postal workers, per se, but accepted the “other reasons [that] were given.” Thus, it was the Repetto explanation which the district court found to be the one that actually motivated the government’s challenge of Ms. Lucas.

The district court, in accepting the government’s peremptory challenge, found that the reason for the government’s challenge was a race-neutral one and that this race-neutral reason was not a mere pretext for racial discrimination. We find that the government’s explanation for excusing the juror was not facially invalid as a matter of law, and that the district court was not clearly erroneous in finding an absence of actual discriminatory intent. We will affirm the district court’s ruling and Mr. Uwaezhoke’s conviction.

II.

Recently, in the plurality opinion in Hernandez v. New York, — U.S.-,- -, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991), Justice Kennedy summarized the process prescribed by Batson that is to be followed in a criminal case when defense counsel raises a Batson challenge to the prosecutor’s exercise of a peremptory challenge:

In Batson, we outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause.... First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.... Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question_ Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

A.

This court has underscored the importance of the first step of the three-step Batson process. In United States v. Clemmons, 892 F.2d 1153, 1156 (3d Cir.1989), we held that the

Batson Court contemplated that the traditional peremptory challenge process would not be intruded upon absent some reason to believe that discrimination might be at work.... Accordingly, district courts should expressly address the prima facie issue before requiring an explanation from the prosecutor.

While we continue to stress the importance of the first step of Batson, we note that any issue regarding the existence of a prima facie showing of discrimination becomes moot where, as in this case, the prosecutor offers an explanation of the peremptory challenge before the district court has “expressly addressed] the prima facie issue”. In so holding, we follow the conclusion of the plurality in Hernandez that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” — U.S. at -, 111 S.Ct. at 1866. If the government is found at any subsequent stage of the case either to have tendered an explanation that is not race neutral or to have acted with racial animus, the conviction must be overturned without regard to whether the defendant established a prima facie case.

B.

In the second step of the Batson process the government must offer an explanation for the peremptory challenge that is race-neutral. As the Hernandez plurality observed, “[i]n evaluating the race-neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.” — U.S. at -, 111 S.Ct. at 1866 (emphasis added).³

The Hernandez plurality articulated the relevant legal issue at this stage as follows:

A neutral explanation in the context of our analysis here means an explanation based .on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. — U.S. at-, 111 S.Ct. at 1866.

Thus, if the government’s explanation does not, on its face, discriminate on the basis of race, then we must find that the explanation passes Batson muster as a matter of law, and we pass to the third step of Batson analysis to determine whether the race-neutral and facially valid reason was, as a matter of fact, a mere pretext for actual discriminatory intent.

In determining whether the government has satisfied the requirements of Batson at the second step, we must keep firmly in mind that Batson’s holding rests squarely on the Equal Protection Clause. Equal Protection jurisprudence thus governs our determination of whether the appellant has a Batson claim. Under that jurisprudence, this court may remedy only those acts of racial discrimination that are intended by the government. The Supreme Court has repeatedly held that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact ... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); see also, Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). Intention to unlawfully discriminate is thus an essential element of a Batson violation.

This means that an explanation which is otherwise racially neutral on its face is not infirm solely because its repeated application would have a disparate impact on a particular racial group — that is, would result in the exclusion of more members of one racial group than members of other racial groups. If the government’s explanation, generally applied, would have a disparate impact on a particular racial group, this fact should cause a trial judge to exercise special scrutiny during the third step of the Batson process to determine whether intentional discrimination, as a matter of fact, underlies the government’s peremptory challenge.⁴ Indeed, a trial judge may be justified in concluding at that stage that discriminatory intent has played a role in the challenge when the disparate impact is great and any legitimate concern of the prosecutor slight. But the role of disparate impact in the Batson analysis is as circumstantial evidence of discriminatory intent at the third stage and not as a controlling legal factor at the second.

The government here claims that, because of Ms. Lucas’ likely place of residence, she was more likely to have had direct exposure to a drug trafficking situation than other potential jurors as a class and that the government could legitimately prefer to assume the least risk of a juror having had such an exposure. Whether or not one accepts this explanation as an accurate description of the government’s motivation in challenging Ms. Lucas, it is clearly race-neutral on its face.

The prosecutors, at the time they exercised the peremptory challenge, knew that Ms. Lucas was a single parent of two children who was making the salary of a postal worker with four years of seniority and renting an apartment in Newark, New Jersey. It is, we believe, fair to infer that the prosecutors, in the absence of any more detailed information concerning Ms. Lucas, speculated that she might live in low income housing in Newark. Having so speculated, the prosecutors inferred that Ms. Lucas was more likely to have had direct exposure to drug trafficking than someone who did not live in low-income housing in Newark. While this conclusion may or may not be empirically correct, we cannot say that it exhibits racially discriminatory intent as a matter of law. Finally, the prosecutors concluded that if they had their preference (as they did so long as they retained a peremptory challenge), they would rather not have jurors who have had personal experience with drug trafficking. While neither the district court nor the defense attorney pressed the prosecutors to spell out their reasoning, it is possible that the prosecutors may have wanted to avoid jurors with direct drug experience for any number of legally legitimate reasons, the most likely of which is a concern that a personal experience may have left a strong impression on the juror, thus influencing her evaluation of the evidence in a way difficult for the prosecutors to predict.⁵

While it is certainly conceivable, as Mr. Uwaezhoke suggests, that the prosecutor took one look at Ms. Lucas’ color and thought, “Blacks who live in poor neighborhoods cannot be trusted to fairly enforce drug laws against other blacks”, it is equally possible that the prosecutor concluded that anyone, regardless of color, who lives in a poor neighborhood in Newark may have had personal experience with drug trafficking that would make their reaction to trial evidence unpredictable. We cannot find that discriminatory intent was inherent on the face of the government’s explanation, and so we hold that the explanation is valid as a matter of law. If there was actual racial discrimination lurking behind this explanation, it can be found only as a matter of fact.

C.

Turning to the third step of our Bat-son analysis, we must ask whether the district court erred in finding that the government’s facially valid explanation for the peremptory challenge was not, as a matter of fact, a mere pretext for discriminatory intention. The district court found that there was no discriminatory intention, and we review that finding to determine if it was clearly erroneous. United States v. Casper, 956 F.2d 416, 419 (3d Cir.1992). We must accept the factual determination of the district court unless that determination “either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data,” Haines v. Liggett Group, Inc., 975 F.2d 81, 92 (3d Cir.1992), quoting Krasnov v. Binan, 465 F.2d 1298, 1302 (3d Cir.1972).

We find credible record evidence that logically supports the district court’s determination that the government had no intent to discriminate against black jurors. As we have indicated, prosecutor Repetto tendered to the district court a racially neutral explanation that was plausible. Moreover, as the trial judge noted at the time, this explanation was buttressed by the fact that the government had earlier had repeated opportunity to challenge the black juror who in fact served on Mr. Uwaezhoke’s jury, and declined to do so. We acknowledge that Repetto’s explanation would have been more credible if the government’s far less plausible alternative explanation had not been advanced. We also acknowledge that Repetto’s explanation, if generally applied, would be likely to have a disparate impact on blacks in the vicinage and, accordingly, is one that should be scrutinized with care. We are unwilling to hold, however, that these facts, singly or together, required the district court to reject Repetto’s explanation. The trial judge was far better situated than we to determine whether that explanation was fact or pretext. He concluded that it was fact, and we cannot fault him for doing so.

The conviction of the appellant will be affirmed.

1 . The jurors responded to questions from a sheet of paper left on the jurors' chairs. The questions ask how long the juror has lived at the juror's present residence, what is the juror’s occupation, how long has the juror been at his or her present job, who is the juror’s spouse and what is the spouse’s occupation, who are the juror's children and what are their occupations, does the juror rent or own his or her place of residence, what are the jurors hobbies and activities, what is the level of the juror's education and what degrees does the juror hold.

2 . The district judge had asked everyone in the jury pool these questions: Do you know any of the participating attorneys or the defendant? Have you ever served on a jury before? Have you ever been the victim of a crime, or participated as a witness in a criminal trial? Have you heard anything about this case? Do you have any police officers in your family? Do you have any dealings with the U.S. government, any contracts with or claims against the U.S. government? Do you have any problem with the use of tape recorded conversations as evidence? Do you have any medical problems that would prevent you from wearing headphones? Have you ever had any problem with drugs, have you or anyone close to you been addicted to drugs? Will it affect your judgment that the defendant, although a U.S. citizen, is from Nigeria?

3 . See also United States v. Johnson, 941 F.2d 1102, 1108 (10th Cir.1991) (whether the prosecutor's explanation is race neutral is a question of law).

4 . We mean by this only that the existence of a disparate impact on a particular racial group may constitute very probative circumstantial evidence of racial animus and, like any such evidence, should cause the trial judge to examine the contrary evidence with care. We do not mean to suggest that existence of a disparate impact alters the legal standard the trial judge should apply in determining whether a constitutional violation has occurred. Nor do we suggest that where, as here, no one has relied upon the alleged disparate impact of a tendered explanation, the trial judge has a duty to stop in the middle of the voir dire and consider whether the tendered explanation may have such an impact. We cannot fault the trial judge in this case for not expressly addressing the possibility of a disparate impact. Being unable to fault his original performance, we perceive no reason to remand this case and insist that he go through the Batson process again.

5 . A prosecutor may rationally believe, for example, that a juror living in a neighborhood with a drug problem may fear retaliation from dealers there if she votes to convict an alleged drug trafficker or may have had an unpleasant contact with the police in the context of drug trafficking.

We do not, of course, suggest that the information available to the government would support a finding that Ms. Lucas, more probably than not, would be an unqualified juror, or even an undesirable juror from the government's point of view. But that is not what peremptory challenges are all about. A primary reason for their existence is that it is not feasible for lawyers to know much about individual jurors. Counsel must rely on educated guesses about probabilities based on their limited knowledge of a particular juror and their own life experiences. If a lawyer can show some specific conflict between information about a particular juror and the particular case to be tried, he or she is in a position to make a challenge for cause. Peremptory challenges are intended for those situations in which counsel cannot demonstrate such a specific conflict, but has some reason to believe a prospective juror may be less desirable from his or her perspective as contrasted with other jurors likely to be called in the event of a peremptory challenge.

We can find nothing in the plurality opinion of Hernandez that suggests that the prosecutor must offer a nexus between a particular juror and the particular case that tends to demonstrate the juror would be unable to fairly evaluate the evidence; the opinion merely notes that the facts before it presented the question of how the absence of such a nexus would affect the determination of a Batson violation. We thus disagree with the Ninth Circuit’s view that Hernandez "strongly suggests” that a nexus between particular juror and the facts of the case must exist in order for the prosecutor's explanation of a proposed challenge to be facially valid. United States v. Bishop, 959 F.2d 820, 825 (9th Cir. 1992).