United States v. Perez

• Court: Court of Appeals for the First Circuit
• Decided: October 7, 1994
• Docket: 93-1320
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1320

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                     JULIO PEREZ,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                     Coffin and Campbell, Senior Circuit Judges. 
                                          _____________________

                                 ____________________

            Raymond E. Gillespie for appellant.
            ____________________
            Frank A. Libby,  Jr., Assistant United States Attorney, with  whom
            ____________________
        Donald K. Stern, United States Attorney, was on brief for appellee.
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                                   October 7, 1994
                                 ____________________

COFFIN,  Senior  Circuit Judge.    This is  an  appeal under
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          Batson  v. Kentucky, 476 U.S.  79 (1986), from  the trial court's
          ______     ________

          allowance  of a  prosecutor's peremptory  challenge to  a Spanish

          surnamed  juror.  Finding that  it was not  clearly erroneous for

          the trial court to  reject appellant's claim that the  strike was

          racially motivated, we affirm the judgment of conviction.

               During  jury selection  in  a  drug  conspiracy  prosecution

          against appellant and several  co-defendants, all bearing Spanish

          surnames, one of  the first twelve  names drawn was that  of Ruth

          Santiago.    At  sidebar  the  court  questioned  several  of the

          prospective jurors and excused three.   Then the government moved

          to strike Ms. Santiago.  The following colloquy took place.

               MR. LIBBY:     The government would strike No. 40, Juror 
                              No. 3.

               MR. BROWN:     Your Honor, note my  objection to that.  This
                              woman is the only  Spanish surnamed person on
                              this jury list.

               THE COURT:     Perhaps  Mr.  Libby  would explain  why  he's
                              challenging that juror.

               MR. LIBBY:     Has nothing  to  do with  her  surname,  your
                              Honor.   We note that in  discussion with co-
                              counsel,  she's  a  receptionist   at  Boston
                              Housing Authority.

               THE COURT:     Therefore?

               MR. LIBBY:     Therefore, we believe that if she's in the 
                              inner city, she may have, who knows, more 
                              contact with seeing drugs in BHA operated 
                              apartments.  Who knows how that cuts?  It has
                              nothing to do with the basis of her surname.

               MR. GILLESPIE: Join in the objection.

               MR. GEDIMAN:   I would like to join in the objection.

               MR. KERNER:    Outrageous, your Honor.

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MR. GEDIMAN:   Outrageous.  The reasoning makes no sense.

               MR. BROWN:     Case  law is  very clear,  as you  know, your
                              Honor.

               MR. LIBBY:     Can you give us a second?

               [Pause.]

               MR. LIBBY:     Your   Honor,   government's  objection   has
                              nothing to  do with her surname,  we stand on
                              the strike.

               THE COURT:     I understand.  The defendants have any?

               MR. BROWN:     Just a few, your Honor.

               Jury selection  then continued,  the  government making  one

          other peremptory challenge and  one of appellant's  co-defendants

          making several.   After  making the defendants'  final collective

          peremptory challenge, co-defendant's counsel asked for additional

          challenges "[i]n  light of the government's  outrageous strike of

          the only Hispanic surname[d] person of the jury."  The court gave

          one  additional   challenge,  saying,  "[n]ot   because  of   any

          outrageousness, but general sense of fairness."  Finally,  a jury

          of  twelve  and two  alternates  was  chosen,  and,  without  any

          objection, sworn.

                                      Discussion
                                      __________

               A  three  part test  is  used to  evaluate  equal protection

          challenges to  a prosecutor's  exercise of peremptory  strikes of

          potential jurors.   Batson, 476  U.S. at 96-98.   Initially,  the
                              ______

          burden is upon the defendant  to make a prima facie  showing that

          the prosecutor has struck a potential  juror because of race.  At

          the second stage, once a prima  facie case has been made out, the

          burden  shifts to  the  prosecutor to  articulate a  race-neutral

                                         -3-

explanation  for   the  strike.    Finally,   if  the  prosecutor

          articulates  a race-neutral  reason, the  trial court  is charged

          with deciding  whether the defendant  has carried  his burden  of

          proving that the strike constituted purposeful  discrimination on

          the basis of race.  See Hernandez v. New York, 500 U.S. 352, 358-
                              ___ _________    ________

          59 (1991) (citing Batson).    We  pass,   without  analysis,  the
                            ______

          question  whether  appellant had  made a  prima facie  showing of

          intentional  discrimination, inasmuch  as the  prosecutor offered

          his  explanation  and  the  trial   court,  by  its  comment,  "I

          understand,"  and  its   upholding  of  the  challenged   strike,

          effectively  "ruled  on  the  ultimate  question  of  intentional

          discrimination."  Hernandez,  500 U.S. at 359.   Whether or not a
                            _________

          prima facie showing of discrimination was made is therefore moot.

               The next step of  the inquiry is whether the  prosecutor met

          his burden  of articulating a race-neutral basis for striking Ms.

          Santiago.   In this context, an explanation may be "race neutral"

          even though  it does  not produce uniform  results across  racial

          lines.  See  id. at 362 ("[D]isparate  impact . .  . will not  be
                  ___  ___

          conclusive in the preliminary  race-neutrality step of the Batson
                                                                     ______

          inquiry.").   Rather, an explanation is race neutral simply if it

          is

               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.

          Id.  at 360.  Here,  the prosecutor's stated  reason for striking
          ___

          Ms. Santiago was  that her  employment as a  receptionist at  the

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Boston Housing Authority in the "inner city" may have exposed her

          to drugs.  Regardless  of whether one accepts  that this was  the

          prosecutor's true  motive, on its  face this explanation  is race

          neutral.  First, it  is based on "something other"  than the race

          of the  juror.   Second,  racially discriminatory  intent is  not

          inherent  in striking a potential juror, in a drug trial, because

          of suspicion of possible exposure to drugs during employment at a

          city  housing authority.    Said differently,  this same  concern

          might  motivate exercise  of  a peremptory  challenge  to a  non-

          Hispanic potential juror as well.1  

               We  note that  this  explanation certainly  might have  been
                                                           _____

          offered  as pretext  to  cover the  prosecutor's  true intent  to

          strike Ms.  Santiago because  she was  Hispanic.  Indeed,  "inner

          city exposure to drugs" is quite susceptible to impermissible use

          as proxy  for the  race-based exercise of  peremptory challenges.

          But, at the  second stage of the Batson inquiry,  we believe that
                                           ______

          this explanation  falls within the Supreme  Court's definition of

          being  race neutral.   The  fact that,  if this  explanation were

          applied  generally, it  may serve  to exclude  a disproportionate

          number  of  minority  jurors,  is used  only  "as  circumstantial

          evidence of discriminatory intent at the third stage and not as a
                              
          ____________________

               1    Appellant claims that  the prosecutor's explanation was
          facially   pretextual,  laying   particular  emphasis   upon  the
          prosecutor's reference  to Ms. Santiago's residence  as being "in
          the inner city."  On appeal, he now identifies for the first time
          two other jurors without Spanish surnames with jobs or residences
          at inner city  locations.   But appellant's focus  on inner  city
          living skips  over the prosecutor's stated  apprehension that the
          challenged  juror, because of her job as a receptionist, may have
          had "more contact with seeing drugs in BHA operated apartments."

                                         -5-

controlling  legal factor  in  the  second."   United  States  v.
                                                         ______________

          Uwaezhoke, 995 F.2d 388, 393 (3d Cir. 1993), cert. denied, 114 S.
          _________                                    ____________

          Ct. 920 (1994). 

               At  the third stage, once the defendant's burden to make out

          a  prima facie case and  the prosecutor's burden  to articulate a

          race- neutral explanation for the strike have been met, it is for

          the  trial court to decide  the ultimate question  of whether the

          defendant has proved  that the prosecutor's strike was,  in fact,

          motivated by race.  Hernandez, 500 U.S. at 359; Batson,  476 U.S.
                              _________                   ______

          at 98.   In other words,  the trial court must  choose whether to

          believe the prosecutor's race-neutral explanation or to find that

          the explanation  was pretext to  cover race-based motives.   This

          determination turns upon  an assessment of the credibility of the

          prosecutor's  explanation, the  "best evidence"  of  which "often

          will  be  the  demeanor   of  the  attorney  who  exercises   the

          challenge."   Hernandez, 500 U.S.  at 365.   Since "evaluation of
                        _________

          the  prosecutor's   state  of   mind  based  upon   demeanor  and

          credibility lies `peculiarly within the trial judge's province,'"

          id.  (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)), "the
          ___           __________   _____

          trial court's  decision on  the ultimate issue  of discriminatory

          intent  represents a finding of  fact of the  sort accorded great

          deference  on appeal."   Id.  at 364.   We  would reverse  such a
                                   ___

          finding only if it is clearly erroneous.  Id. at 369.
                                                    ___

               Here, appellant's  co-defendant raised the  Batson challenge
                                                           ______

          and the trial  court elicited  from the  prosecutor his  facially

          race-neutral  explanation  for the  strike.    Several other  co-

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defendants, including  appellant, then  joined in  the objection.

          After  conferring,  government  prosecutors  reiterated  that the

          strike was  not race based,  and, apparently  confident that  the

          explanation already given was  sufficient, stated that they would

          "stand  on the  strike."   The  court  responded by  stating,  "I

          understand," and proceeded to  ask defendants if they elected  to

          exercise any of their remaining peremptory challenges.  

               In  effect,   therefore,   the  court   denied   defendants'

          challenge,   presumably   crediting   the  prosecution's   stated

          explanation  and finding  that the  strike was  not impermissibly

          motivated.  The district judge, who may  have been aware of major

          areas of  drug activity in the  Boston area, and who  was able to

          assess the  prosecutor's demeanor  at the moment  the explanation

          was  given, evidently believed  that the  stated reason  had some

          basis in fact.  We cannot say that the prosecutor's stated reason

          was  so illogical that it failed, as  a matter of law, to support

          the trial judge's finding.   As in Hernandez, "[t]he  trial court
                                             _________

          did not commit  clear error  in choosing to  believe the  reasons

          given by the prosecutor."  Hernandez, 350 U.S. at 372.
                                     _________

               Although we uphold the  judgment in this case, as  a general

          matter  district  courts should  articulate  the  bases of  their

          factual findings  related to Batson challenges  more clearly than
                                       ______

          occurred here.  Specifically, especially in the face of continued

          disagreement by  defense counsel,  a district court  should state

          whether  it finds the proffered reason for a challenged strike to

          be  facially race neutral or inherently discriminatory and why it

-7-

chooses to credit or discredit the given explanation.  Indicating

          these  findings  on  the  record has  several  salutary  effects.

          First,  it fosters  confidence in  the administration  of justice

          without  racial animus.  Second,  it eases appellate  review of a

          trial court's Batson ruling.   Most importantly, it ensures  that
                        ______

          the  trial   court  has  indeed  made   the  crucial  credibility

          determination that is afforded such great respect on appeal.  

               The fact that no  such express findings were made  here does

          not convince us to reverse.  We  note that this is the first time

          our Circuit has announced the desirability of express Batson fact
                                                                ______

          findings.  Moreover, after  the court allowed Ms. Santiago  to be

          struck without  making express fact  findings, just as  in United
                                                                     ______

          States  v. Pulgarin, 955 F.2d 1, 1  (1st Cir. 1992), "[t]here was
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          no  further comment from defense counsel by way of elaboration of

          his  thought, objection,  dissatisfaction  with the  prosecutor's

          explanation,  or  request for  examination."   At that  point, if

          defense  counsel felt that the trial court had failed to actually

          assess the prosecutor's credibility or  had made a precipitous or

          erroneous  judgment, it  should have pointed  this out.   Counsel

          could   have  explained   why  the  prosecutor's   rationale  was
                                    ___

          "outrageous,"  "made  no  sense,"  and  did  not  deserve  to  be

          credited.    The  prosecutor   then  could  have  elaborated  his

          reasons2 and the court presumably  would have expressly made  the
                              
          ____________________

               2    Indeed, in  oral argument before us  the prosecutor did
          elaborate on the  reason for  his association  of BHA  apartments
          with  possible exposure  to drugs:  The United  States Attorney's
          Office had,  in the  prior year,  been  engaged in  a major  drug
          prosecution  against  more  than   fifty  defendants  accused  of

                                         -8-

above  two findings.  Since defendant failed to pursue the matter

          further  at voir dire, upsetting the judgment  for lack of a more

          detailed explanation by the  trial court in this case  would make

          little sense.    

               Affirmed.
               _________

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          carrying  on their  organized  operations out  of Boston  Housing
          Authority apartments.   Ostensibly,  if defense counsel  had more
          extensively argued that the  proffered reason was pretextual, the
          prosecutor  might have informed the  trial judge of  this fact as
          well.

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