United States v. Bergodere

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1520

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS BERGODERE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Selya, Cyr, and Stahl, Circuit Judges.

David A.F. Lewis for appellant.

Zechariah Chafee, Assistant United States Attorney, with

whom Sheldon Whitehouse, United States Attorney, was on brief,

for appellee.

November 30, 1994

SELYA, Circuit Judge. This appeal raises questions of
SELYA, Circuit Judge.

first impression in this circuit concerning how courts should

apply the lessons of Batson v. Kentucky, 476 U.S. 79 (1986), and

its progeny. After answering those questions, we conclude that

the district court did not err in permitting the government to

eliminate the lone African-American juror by means of a

peremptory challenge. Since appellant's other assignments of

error are equally unavailing, we affirm the judgment below.

I. BACKGROUND
I. BACKGROUND

On March 9, 1993, a team of law enforcement officers

executed a search warrant at the residence of defendant-appellant

Carlos Bergodere in Providence, Rhode Island. When the officers

arrived, only appellant and his wife, Cynthia Eastwood, were on

the premises.

Appellant's apartment consisted of a kitchen, dining

area, living room, and two bedrooms. During the search, the

officers discovered three "browns" of heroin in the kitchen1 and

an operable .9 millimeter Luger pistol, fully loaded, under the

seat cushions of the living room sofa. Several rounds of live

ammunition, not corresponding to the Luger, were found in

appellant's bedroom. The officers arrested appellant and seized

additional quantities of heroin from his person.

In due season, a federal grand jury returned an

indictment charging appellant with possession of a firearm after

1A "brown" is a common unit of sale in the heroin trade.
One brown comprises 50 glassine packets, each containing a dose
of heroin. A brown has a street value of approximately $500.

2

a previous felony conviction, see 18 U.S.C. 922(g)(1),

possession of heroin with intent to distribute, see 21 U.S.C.

841(a)(1) & (b)(1)(C), and using a firearm during and in relation

to a drug-trafficking crime, see 18 U.S.C. 924(c)(1).

Appellant entered a "not guilty" plea. In time, the court

empaneled a jury. Contrary to the more common federal practice,

the judge permitted the attorneys to conduct the voir dire.

In the course of jury selection, the following colloquy

took place between the prosecutor and a black venireperson,

Robert Goodrum.

Mr. Chafee: Mr. Goodrum, where do you work,
Mr. Chafee:
sir?

Mr. Goodrum: I work in Newport. I'm area
Mr. Goodrum:
director for an adolescent outreach program.

Mr. Chafee: . . . [A]re these young people
Mr. Chafee:
who are having trouble in the community?

Mr. Goodrum: Yes, it varies from kids doing
Mr. Goodrum:
well, to kids in places like this.

* * *

Mr. Chafee: Obviously you have a big heart
Mr. Chafee:
for people in trouble. You're going to be
asked to sit in judgment on somebody. Can
you be fair and impartial to both the
Government and the defendant in this case,
listen to the evidence and call it . . .
according to the law given to you by Judge
Lagueux?

Mr. Goodrum: Well, it will be a struggle but
Mr. Goodrum:
I know I can do it right, yeah.

Later on, defense counsel engaged in a colloquy with

Mr. Goodrum.

Mr. Gillan: . . . Why do you feel it would
Mr. Gillan:
be a struggle for you to sit in judgment on

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this case?

Mr. Goodrum: I just have problems I guess
Mr. Goodrum:
with adults and drugs as I deal with kids and
drugs.

* * *

Mr. Gillan: And what if an adult is addicted
Mr. Gillan:
to drugs. How does that make you feel?

Mr. Goodrum: . . . I can deal with that. I
Mr. Goodrum:
mean, you know, when I think about people who
might be soliciting I have problems.

Mr. Gillan: People might be soliciting
Mr. Gillan:
children?

Mr. Goodrum: Right.
Mr. Goodrum:

Mr. Gillan: Okay. but if that's not the
Mr. Gillan:
evidence in this case then . . . you won't
have a problem with that?

Mr. Goodrum: Then I wouldn't have a problem
Mr. Goodrum:
with it.

The prosecution dismissed Goodrum from further

service. Appellant objected. The district court upheld the

strike, apparently finding that appellant failed to make a prima

facie showing that the strike was motivated by a race-based

animus. In the process, the judge specifically noted Goodrum's

avowed doubts as to whether he could be an impartial juror.

A jury devoid of black members eventually convicted

appellant on all counts. This appeal followed.

II. THE PEREMPTORY CHALLENGE
II. THE PEREMPTORY CHALLENGE

Appellant's most striking argument concerns the

prosecution's challenge of the juror, Goodrum. We begin by

tackling that matter.

A. The Framework for Inquiry.
A. The Framework for Inquiry.

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The Supreme Court has recognized that in civil and

criminal trials potential jurors, as well as litigants, have an

equal protection right to jury selection procedures that are free

from group stereotypes rooted in, and reflective of, historical

prejudice. See J.E.B. v. Alabama, 114 S. Ct. 1419, 1421 (1994)

(finding gender, like race, to be an unconstitutional proxy for

juror competence and impartiality); Powers v. Ohio, 499 U.S. 400,

402 (1990) (stating that racial discrimination in the selection

of jurors offends the dignity of persons and the integrity of

courts).

In evaluating an equal protection challenge to a

prosecutor's use of a peremptory strike, a three-part framework

should be employed. See Batson, 476 U.S. at 96-98; United States

v. Perez, F.3d , (1st Cir. 1994) [No. 93-1320, slip

op. at 3-4]. First, the defendant must make a prima facie

showing of discrimination in the prosecutor's launching of the

strike. See Batson, 476 U.S. at 96-97. If the defendant

fulfills this requirement by establishing, say, a prima facie

case of a racially driven impetus,2 then the prosecutor must

proffer a race-neutral explanation for having challenged the

juror. See id. at 97; see also United States v. Lewis, F.3d

, (1st Cir. 1994) [No. 93-1819, slip op. at 32]. The

prosecutor's burden is merely a burden of production, not a

burden of persuasion. If the prosecutor complies, then, at the

2The three-part framework is the same for gender as for
race. See J.E.B., 114 S. Ct. at 1429.

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third and final stage, the district court must decide whether the

defendant has carried the ultimate 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)

(discussing Batson); Perez, F.3d at [slip op. at 3-4].

In making a Batson challenge, the defendant retains the

burden of proof throughout. As part and parcel of this burden,

he must carry the devoir of persuasion regarding the existence of

a prima facie case of race-based discrimination in the jury

selection process. See Batson, 476 U.S. at 96-97. The

combination of factors needed to establish a prima facie case are

limned in Chakouian v. Moran, 975 F.2d 931, 933 (1st Cir. 1992).

Initially, the defendant must demonstrate that the prosecution's

challenge was directed at a member of a cognizable racial

group.3 See Batson, 476 U.S. at 96; Chakouian, 975 F.2d at 933.

Next, the defendant must show that the challenge was peremptory

rather than for cause, thus bringing into play the Supreme

Court's admonition that "peremptory challenges constitute a jury

selection practice that permits `those to discriminate who are of

a mind to discriminate.'" Batson, 476 U.S. at 96 (quoting Avery

v. Georgia, 345 U.S. 559, 562 (1953)). Finally, the defendant

must show circumstances sufficient, when combined with the two

antecedent facts, to raise an inference that the prosecutor

3The defendant and the challenged juror need not be members
of the same race. See Powers, 499 U.S. at 409-10 (eliminating

Batson's "racial identity" requirement); Chakouian, 975 F.2d at

934. Thus, the fact that appellant is not himself of African-
American ancestry does not end our inquiry.

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struck the venireperson on account of race. See id. While the

prima facie case requirement is not onerous, neither can it be

taken for granted.

B. Standard of Review.
B. Standard of Review.

This court has yet to articulate the appropriate

standard against which to test a trial court's ruling that a

defendant has or has not made out a prima facie case in

connection with a Batson challenge. We do so today.

A careful reading of Batson convinces us that, although

this determination can be characterized as a mixed question of

law and fact, it is fact-sensitive, and, therefore, should be

reviewed under the familiar clear-error standard. See generally

In re Howard, 996 F.2d 1320, 1328 (1st Cir. 1993) ("The standard

of review applicable to mixed questions usually depends upon

where they fall along a degree-of-deference continuum: the more

fact-dominated the question, the more likely it is that the

trier's resolution of it will be accepted unless shown to be

clearly erroneous."). Our holding is consistent with the Supreme

Court's expression of confidence that trial judges, experienced

in conducting and supervising voir dire, will likely be able to

identify prima facie cases of discrimination. See Batson, 476

U.S. at 97. Our holding is also consistent with the decisions of

the five other courts of appeals that thus far have confronted

the same standard-of-review problem and resolved it in like

manner. See United States v. Vasquez-Lopez, 22 F.3d 900, 901

(9th Cir.), cert. denied, 115 S. Ct. 239 (1994); United States v.

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Branch, 989 F.2d 752, 755 (5th Cir.), cert. denied, 113 S. Ct.

3060 (1993); United States v. Casper, 956 F.2d 416, 418 (3d Cir.

1992); United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990);

United States v. Grandison, 885 F.2d 143, 146 (4th Cir. 1989),

cert. denied, 495 U.S. 934 (1990).

C. Analysis.
C. Analysis.

We detect no clear error in the district court's

rejection of appellant's proffered prima facie case. Although

the striking of the only juror of a particular race can be

sufficient to ground a permissive inference of discrimination in

certain circumstances, see, e.g., United States v. Roan Eagle,

867 F.2d 436, 441 (8th Cir.), cert. denied, 490 U.S. 1028 (1989),

such a strike does not raise a necessary inference of

discrimination, see Vasquez-Lopez, 22 F.3d at 902. Phrased

another way, the mere fact that the prosecutor challenges the

only juror of a particular race, without more, does not

automatically give rise to an inescapable inference of

discriminatory intent. A defendant who advances a Batson

argument ordinarily should "come forward with facts, not just

numbers alone." Moore, 895 F.2d at 485; accord United States v.

Dawn, 897 F.2d 1444, 1448 (8th Cir.), cert. denied, 498 U.S. 960

(1990).

Here, the defendant provided nothing in the way of

either direct or circumstantial proof to buttress the naked

statistic on which he relies. This failure is all the more

glaring because the circumstances attendant to the Goodrum strike

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point away from an inference of discrimination. This case

involves a single strike, not multiple strikes. The government's

other peremptories were exercised in an unexceptionable manner.

Appellant essayed no proffer showing that either the particular

prosecutor or the prosecutor's office regularly engaged in a

pattern of suspicious strikes. The prosecutor's questions and

statements during voir dire do not suggest racial discrimination,

but, instead, seem to reflect a concern with the prospective

juror's ability to reach a fair and impartial verdict. This is

of considerable importance, as the Court has directed trial

judges in such circumstances to examine "the prosecutor's

questions and statements during voir dire" for signs of

purposeful discrimination. Batson, 476 U.S. at 97.

The capstone, of course, is that the colloquy between

the prospective juror and the two lawyers reflects a legitimate,

nondiscriminatory reason why conscientious counsel might desire

to exclude the juror from further service. After all, Goodrum

admitted that it would "be a struggle" to achieve impartiality,

and that he had a "problem" with cases involving "adults and

drugs." The prosecutor, understandably concerned that the

talesman "ha[d] a big heart for people in trouble," had no

obligation either to ignore these comments or to accept at face

value Goodrum's prediction that, in the end, he could put aside

his "problem" and "do it right."

Voir dire represents not only the introduction of

potential jurors to the factual and legal issues to be aired at

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trial, see Powers, 499 U.S. at 412, but also the lawyers'

introduction to the venire. Its core purpose is to provide a

firm foundation for ferreting out bias. A healthy byproduct is

that a careful voir dire eliminates any need to rely on

stereotypes. See J.E.B., 114 S. Ct. at 1429; United States v.

Whitt, 718 F.2d 1494, 1497 (10th Cir. 1983). Withal, the line

between discriminatory and nondiscriminatory strikes is not

always easily drawn. As courts labor to plot it, trial lawyers

are entitled, at a bare minimum, to a bit of breathing room. In

the end, jury selection is not an exact science. Its watchwords

are judgment, flexibility, and discretion. Although attorneys

cannot be permitted to exercise peremptory challenges based on

race or gender, they are not prohibited altogether from striking

venirepersons of a particular race or gender.

We will not paint the lily. Evaluative judgments

concerning juror suitability are often made partially in response

to nuance, demeanor, body language, and a host of kindred

considerations. Thus, the trial judge, who sees and hears both

the prospective juror and the opposing attorneys in action, is in

the best position to pass judgment on counsel's motives.

Recognizing that we ought to cede considerable deference to a

district judge who observes the voir dire at first hand, see

Batson, 476 U.S. at 97, we refuse to second-guess Judge Lagueux's

implicit finding that the prosecutor struck Goodrum because of

doubts about Goodrum's "big heart" and impending "struggle,"

rather than for some evil purpose. It follows that the court did

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not err in finding that appellant failed to establish a prima

facie case of race-based discrimination in the prosecution's use

of its peremptory challenges.4

III. OTHER ASSIGNMENTS OF ERROR
III. OTHER ASSIGNMENTS OF ERROR

Appellant advances three additional assignments of

error. We consider two of them, both of which relate to matters

of evidentiary sufficiency.5 Appellant's final assignment of

error raises the boggart of ineffective assistance of trial

counsel. This claim was not asserted in the district court and

is not properly before us on direct appeal. See United States v.

Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (holding that absent

extraordinary circumstances, fact-specific claims asserting

ineffective assistance of counsel are not cognizable on direct

appeal; collecting cases to like effect), cert. denied, 114 S.

Ct. 1839 (1994).

A. Standard of Review.
A. Standard of Review.

The path that this court traverses to review

4Because appellant failed to make the requisite first-stage
showing, the burden never shifted to the prosecutor to articulate
a race-neutral explanation for the strike. Even so, it might
have been wise for the judge to have asked the prosecutor to
proffer an explicit statement of the basis for the strike, if
only to confirm the judge's intuition and flesh out the record on
appeal. See United States v. Johnson, 873 F.2d 1137, 1140 n.3

(8th Cir. 1989), cert. denied, 498 U.S. 924 (1990).

5The jury convicted appellant on three counts, namely,
possession of a firearm after a previous felony conviction (count
1), possession of heroin with intent to distribute (count 2), and
using a firearm in relation to a drug-trafficking crime (count
3). In the district court, appellant unsuccessfully sought
judgment of acquittal on all three counts. On appeal, however,
he challenges the sufficiency of the evidence only in regard to
counts 2 and 3.

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sufficiency challenges is well worn. We inspect the evidence in

the light most friendly to the verdict, indulging all reasonable

inferences in the verdict's favor and resolving all credibility

disputes in the same way. We then determine whether a rational

jury could find guilt beyond a reasonable doubt. See, e.g.,

United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993);

United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir. 1991);

United States v. Boylan, 898 F.2d 230, 243 (1st Cir.), cert.

denied, 498 U.S. 849 (1990). The conviction stands so long as

the guilty verdict comports with "a plausible rendition of the

record." United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.

1992), cert. denied, 113 S. Ct. 1005 (1993).

C. Count 2.
C. Count 2.

To sustain a conviction under 21 U.S.C. 841(a)(1),

the prosecution must establish beyond a reasonable doubt that the

defendant knowingly or intentionally possessed a controlled

substance with intent to distribute it. See, e.g., United States

v. De Jesus-Rios, 990 F.2d 672, 680 (1st Cir. 1993). The element

of possession can be satisfied by evidence that demonstrates

either actual or constructive possession. See United States v.

Gomez-Vallamizar, 981 F.2d 621, 624 (1st Cir. 1992).

Appellant does not seriously contest the element of

possession, but, instead, concentrates his fire on the element of

specific intent. He alleges that the evidence, taken most

congenially to the government's case, merely shows that he

possessed heroin (say, for personal consumption), not that he

12

intended to distribute it. We read the record differently. An

intent to distribute drugs does not demand proof by direct

evidence but can be made manifest through circumstantial evidence

alone. See Echeverri, 982 F.2d at 678; United States v.

Desmarais, 938 F.2d 347, 352 (1st Cir. 1991). In this

connection, we have long recognized that factors such as the

quantity and purity of the drugs confiscated by the authorities

can support an inference of intent to distribute. See, e.g.,

Echeverri, 982 F.2d at 678; United States v. Ocampo-Guarin, 968

F.2d 1406, 1410 (1st Cir. 1992); United States v. Batista-

Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991).

In this case, the evidence easily sustained a finding

of intent to distribute. The officers seized three browns from

appellant's kitchen and eleven glassines from his pocket. Thus,

both the quantity of heroin and the method of packaging militated

toward a conclusion that appellant was himself a dealer. The

total value of the heroin seized over $1,500 suggested the

same conclusion. Furthermore, an experienced detective testified

that, in his expert opinion, the quantity, packaging, and value

of the heroin indicated that it was intended for distribution.

To be sure, this evidence was not ironclad. As

appellant notes, it did not rule out the possibility that he

possessed the heroin for personal consumption. But the law

requires only that the evidence, fairly viewed, be capable of

supporting the jury's verdict, not that it exclude every

hypothesis consistent with a claim of innocence. See Echeverri,

13

982 F.2d at 678; Boylan, 898 F.2d at 243. Accordingly, we find

no infirmity in appellant's conviction for possession of heroin

with intent to distribute.

D. Count 3.
D. Count 3.

The final portion of appellant's sufficiency challenge

concerns the charged violation of 18 U.S.C. 924(c)(1). It is

well settled that, under this statute, the emphasis is on a

firearm's availability for use, regardless of whether the weapon

is actually used in the commission of a drug-trafficking crime.

See United States v. Paulino, 13 F.3d 20, 26 (1st Cir. 1994);

United States v. Hadfield, 918 F.2d 987, 998 (1st Cir. 1990)

(collecting cases), cert. denied, 500 U.S. 936 (1991). The

instant case falls squarely within the boundaries established in

Hadfield, a case in which we stated that, under section 924(c),

the principal inquiry should focus on the presence or absence of

a "facilitative nexus" between the charged offense and the

discovered firearm. See Hadfield, 918 F.2d at 998. In applying

Hadfield, an inquiring court's primary concern is not whether the

gun was "instantly available" or "exclusively dedicated to the

narcotics trade," but whether it was "available for use" in that

regard. Id.; accord United States v. Castro-Lara, 970 F.2d 976,

983 (1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993). Under

this test, if an operable firearm is found in close proximity to

a room or rooms in which drug distribution, processing, or

storage occurs, then the factfinder ordinarily is free to

conclude that a defendant having evident ties to the premises and

14

the drugs knew about the gun and intended it to be available for

use in relation to the narcotics enterprise. See Hadfield, 918

F.2d at 998.

The authorities arrested appellant in his apartment.

From the quantity of heroin found on the premises the jury could

reasonably conclude that the dwelling served as a storehouse for

at least some of appellant's heroin or, perhaps, a retail sales

outlet. See, e.g, Echeverri, 982 F.2d at 678. As a lessee of

the apartment and a person residing there, appellant had a

significant degree of control over the contents of the premises.

See id. Within wide limits, he had the ability to determine who

and what could enter his place of abode. Officers located the

weapon under the seat cushions of the living room couch

proximate to the drugs and easily accessible to an individual who

knew its whereabouts. Of pivotal importance, the gun was fully

loaded. The police found additional ammunition in appellant's

bedroom which, although, of a different caliber, indicated that

appellant was no stranger to firearms. On this basis, a rational

juror surely could conclude that appellant kept a loaded gun

handy to protect his heroin supply. As we have said before,

"[t]he law is not so struthious as to compel a criminal jury to

ignore that which is perfectly obvious." United States v.

Ingraham, 832 F.2d 229, 240 (1st Cir. 1987), cert. denied, 486

U.S. 1009 (1988).

We recognize that the government's case was not open-

and-shut. For example, the proof at trial established that

15

appellant's landlord, Felipe Moronto, actually owned the pistol,

and appellant makes much of this fact. We agree that this datum

is relevant but it is hardly determinative. What matters is

that the totality of the evidence suffices to permit and in our

estimation to support quite amply a finding that a facilitative

nexus existed between the weapon and appellant's drug-

distribution activities. See, e.g., United States v. Reyes-

Mercado, 22 F.3d 363, 367 (1st Cir. 1994); Paulino, 13 F.3d at

26; Castro-Lara, 970 F.2d at 983. Therefore, the claim of

evidentiary insufficiency fails.

IV. CONCLUSION
IV. CONCLUSION

We need go no further. For aught that appears,

appellant was fairly tried and justly convicted before a lawfully

constituted jury. For the reasons stated herein, we affirm the

judgment of conviction, without prejudice, however, to

appellant's right to pursue his ineffective assistance of counsel

claim at a proper time and in a proper venue.

It is so ordered.
It is so ordered.

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