FILED
NOT FOR PUBLICATION MAY 12 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30082
Plaintiff - Appellee, D.C. No. 2:08-cr-00257-JLR-2
v.
MEMORANDUM *
WARREN TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted May 3, 2011
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Warren Taylor appeals from his conviction for conspiracy to distribute
Ectasy asserting that (1) the government violated his rights under the Equal
Protection Clause when it challenged two minority jurors; (2) the district court
violated his rights under the Confrontation Clause when it limited the scope of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
counsel’s cross-examination of a cooperating witness; and (3) the district court’s
statement to the jury concerning the evidence that would be presented at trial
compromised the jury’s role as the ultimate finder of fact. We affirm.1
1. When a defendant alleges a violation of his rights under Batson v
Kentucky, 476 U.S. 79 (1986), we apply a three-part burden shifting test to
determine if the potential juror was challenged on the basis of impermissible
discrimination. United States v. Collins, 551 F.3d 914, 919 (9th Cir. 2009). First,
the defendant “must make a prima facie showing that the challenge was based on
an impermissible ground, such as race.” Id. Second, “if the trial court finds the
defendant has made a prima facie case of discrimination, the burden then shifts to
the prosecution to offer a race-neutral reason for the challenge that relates to the
case”; and third, “if the prosecutor offers a race-neutral explanation, the trial court
must decide whether the defendant has proved the prosecutor’s motive for the
strike was purposeful racial discrimination.” Id., quoting Green v. LaMarque, 532
F.3d 1028, 1030 (9th Cir. 2008) (internal quotation marks omitted).
Here, assuming that Taylor had made a prima facie showing that the
challenges to Jurors 18 and 23 were based on impermissible grounds, the
1
The parties are familiar with the facts, and we repeat them here only
as necessary to explain our decision.
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prosecutor’s proffered reasons for excusing the jurors were not facially
discriminatory. He stated that he excused Juror 18, who had the appearance of
being Muslim, because she stated that she would probably feel uncomfortable
being tried by twelve persons who looked different from her, and she smiled at
defendant’s counsel after making this statement. The prosecutor noted that he
excused Juror 23, who was of Southeast-Asian heritage, because she had not said
anything during voir dire, and because her “body slips down in her seat . . . [s]he
makes herself small and tiny . . . [and] barely made eye contact.” As to each juror,
the district court ultimately concluded that the prosecutor’s reasons were not
pretexts for discriminatory purposes. Our review of the record shows that the
district court’s determinations are reasonable and they are entitled to deference.
See Felkner v. Jackson, 131 S. Ct.1305, 1307 (2011) (noting that the trial court’s
determination is entitled to “great deference” and should be sustained “unless
clearly erroneous”). The government’s excusing of Jurors 18 and 23 did not
violate Taylor’s rights under the Equal Protection Clause.
2. Although the district court limited defense counsel’s cross-examination
of cooperating witness Banks, the restriction was limited to the details of one
telephone conversation. Such a limitation on cross-examination is reviewed for
abuse of discretion. United States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007)
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(en banc) (“A challenge to a trial court's restrictions on the manner or scope of
cross-examination on nonconstitutional grounds is thus reviewed for abuse of
discretion.”). In light of the extensive evidence of Banks’ questionable character
that the defense was allowed to produce, the limitation was not an abuse of
discretion. Moreover, even if the limitation were error, it was harmless in light of
the overwhelming evidence against Taylor. See Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986) (holding that “the constitutionally improper denial of a
defendant’s opportunity to impeach a witness for bias, like other Confrontation
Clause errors, is subject to Chapman harmless-error analysis”).
3. The district court’s statement that the evidence presented at trial, by both
sides, would be more reliable than whatever a juror might discover on the Internet
was correct, not an abuse of discretion, and did not invade the jury’s province of
evaluating the evidence produced at trial. See Quercia v. United States, 289 U.S.
466, 469 (1933); see also United States v. Sager, 227 F.3d 1138, 1145 (9th Cir.
2000) (“A district court has discretion to comment on the evidence, as long as it
makes clear that the jury must ultimately decide all questions of fact.”).
Taylor’s conviction is AFFIRMED.
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