FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-50339
Plaintiff-Appellee,
D.C. No.
v.
CR-04-01222-RGK-
GWAINE LAVON COLLINS, 01
a/k/a Gwaine Collins,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted
March 6, 2008—Pasadena, California
Filed January 7, 2009
Before: John R. Gibson,* Diarmuid F. O’Scannlain, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Gibson;
Concurrence by Judge Graber;
Partial Concurrence and Partial Dissent by
Judge O’Scannlain
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
65
UNITED STATES v. COLLINS 69
COUNSEL
Karen L. Landau, Oakland, California, for the defendant-
appellant.
Patrick R. Fitzgerald, Assistant U.S. Attorney, Criminal Divi-
sion, Los Angeles, California, for the plaintiff-appellee.
OPINION
GIBSON, Circuit Judge:
Gwaine Lavon Collins was indicted, along with four other
individuals, for six counts of conspiracy to possess with intent
to distribute and to distribute methamphetamine, 21 U.S.C.
§§ 846 and 841(a)(1), and possession of methamphetamine,
21 U.S.C. § 844. He was tried on the conspiracy count and on
two counts of distribution: first, for distributing 919 grams of
methamphetamine on August 10, 2004, and second, for dis-
tributing 3,124 kilograms of methamphetamine on August 17,
2004. Collins was convicted of each count after a trial by jury.
At trial, Collins admitted to his participation in the drug sales,
but he argued that he was entrapped to perform those sales by
government informant James Kim. On appeal, he raises three
arguments: (1) the district erred in refusing to require the gov-
ernment to state its reason for striking the sole remaining
African-American from the potential jury, Batson v. Ken-
tucky, 476 U.S. 79 (1986); (2) the government suppressed an
audiotape recording of a conversation between Kim and
another drug dealer in contravention of Collins’s constitu-
tional rights under the compulsory process clause, Brady v.
70 UNITED STATES v. COLLINS
Maryland, 373 U.S. 83 (1963), and the confrontation clause;
and (3) the district court erred when it refused to require the
government to accept a subpoena for confidential informant
Danny Yim, a principal witness in the uncharged misconduct
of the defendant that Collins argued supported his entrapment
defense. We affirm in all respects except the Batson issue, on
which we reverse and remand for an evidentiary hearing.
We need not recount Collins’s participation in the two
August methamphetamine transactions because Collins does
not dispute his involvement in those sales. Rather, we set
forth the facts alleged at trial that are necessary to understand
Collins’s entrapment defense, which is largely drawn from
Collins’s own testimony.
Collins and Kim befriended one another while incarcerated
in the Metropolitan Detention Center in Los Angeles, Califor-
nia. While in prison, Kim and Collins discussed Kim helping
Collins become involved with Kim’s import/export business
of (non-narcotic) goods. According to Collins, when he was
released he soon contacted Kim, and they proceeded together
on several potential business ventures, none of which appears
to have been executed. Unbeknownst to Collins, Kim was
already preparing to work as a government informant as far
back as their time in prison together.
The crux of Collins’s entrapment claim is that, according
to Collins, in late June 2004, Kim became distraught because
he needed a lot of money to pay off the escrow on his restau-
rant, which was subject to a lien. According to Collins, Kim
asked him to find some drugs they could sell. Collins claimed
Kim was agitated and intoxicated when he told him about the
restaurant problem. Despite Kim’s predicament, Collins
claimed that he initially refused because he had no desire to
get back into the drug business. But, Collins testified, Kim
repeatedly called him, with some new “drama,” and continued
to ask him about selling drugs. Collins testified that he tried
to convince Kim that they could make the money Kim needed
UNITED STATES v. COLLINS 71
through their other ventures and even offered to give Kim his
share of the profits from a DVD import deal they had previ-
ously discussed. Kim, however, was unresponsive to any of
Collins’s inquires regarding the other business. Finally, Col-
lins relented and helped Kim procure methamphetamine in
July, although Collins claimed that he received no money
from that deal, but rather did it solely to help the distraught
Kim. After the uncharged deal in July, Collins claimed that he
initially refused to be involved further with drugs. Collins
relented again and participated in the two August deals, which
formed the basis for his convictions. He admitted that he
intended to invest his own money in a pound of methamphet-
amine so he could sell it. Kim testified that Collins never said
he did not want to do the drug deals, but that “he always
wanted to do it.”
I.
[1] “[T]he Equal Protection Clause forbids the prosecutor
to challenge potential jurors solely on account of their race or
on the assumption that black jurors as a group will be unable
impartially to consider the State’s case against a black defen-
dant.” Batson, 476 U.S. at 89. When a defendant alleges a
Batson violation, a three-part burden shifting test is used to
determine if the potential juror was challenged on the basis of
impermissible discrimination. At the outset, the defendant
must make a prima facie showing that the challenge was
based on an impermissible ground, such as race. Id. at 96.
“This is a burden of production, not a burden of persuasion.”
Green v. Lamarque, 532 F.3d 1028, 1029 (9th Cir. 2008);
accord Johnson v. California, 545 U.S. 162, 170-71 (2005).
“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.” Green, 532 F.3d at 1030; accord Bat-
son, 476 U.S. at 97. “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
72 UNITED STATES v. COLLINS
was purposeful racial discrimination.” Green, 532 F.3d at
1030; accord Johnson, 545 U.S. at 168; Batson, 476 U.S. at
98.
[2] Collins objected when the prosecution struck Juror No.
9, the only remaining African-American member on the
panel, and argued that she was struck on account of her race.
The district court found that Collins failed to make a prima
facie showing of discrimination and did not require the gov-
ernment to explain why it peremptorily removed Juror No. 9.
We generally review a district court’s Batson determination
for clear error because of the intrinsically factual nature of the
claim. Tolbert v. Page, 182 F.3d 677, 681-82 (9th Cir. 1999)
(en banc). However, where the district court applies the
wrong legal standard, we review the claim de novo. See
Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004) (con-
cluding that the state court applied the wrong standard by
requiring defendant to “show a strong likelihood” of bias).
The correct test for a prima facie case of discrimination is
whether the defendant has shown that “(1) the prospective
juror is a member of a cognizable racial group, (2) the prose-
cutor used a peremptory strike to remove the juror, and (3) the
totality of the circumstances raises an inference that the strike
was motivated by race.” Boyd v. Newland, 467 F.3d 1139,
1143 (9th Cir. 2006) (internal quotation marks omitted), cert.
denied, 127 S. Ct. 2249 (2007). A pattern of striking panel
members from a cognizable racial group is probative of dis-
criminatory intent, but a prima facie case does not require a
pattern because “the Constitution forbids striking even a sin-
gle prospective juror for a discriminatory purpose.” United
States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994);
accord United States v. Esparza-Gonzalez, 422 F.3d 897, 904
(9th Cir. 2005) (holding that prima facie case was shown
where prosecutor struck the only Latino prospective juror as
well as the only Latino potential alternate juror).
When Collins objected to the government’s challenge of
Juror No. 9, the district court offered the government the
UNITED STATES v. COLLINS 73
opportunity to respond but the government declined, stating,
“I don’t believe sufficient showing has been made.” The dis-
trict court proceeded to rule that no prima facie case had been
made. “First [African-American panel member was] excused
by defense. First time [the government] has excused any
[African-American panel members]. No pattern. No. Overrule
without prejudice.” Collins protested, “I’m objecting that it
can’t be a pattern because it’s the only one [African-American
panel member] left.” The court did not address Collins’s argu-
ment, but said “Okay. With the defense,” and voir dire contin-
ued.”
[3] Based on the court’s brief statements, we conclude that
it applied an improper standard by requiring Collins to dem-
onstrate a pattern of strikes against a cognizable racial group
before requiring the government to state a reason. Vasquez-
Lopez, 22 F.3d at 902. The government’s attempts on appeal
to interpret the district court’s comments in any other way are
unconvincing. Moreover, we conclude that the district court
did not correct its error when Collins renewed his Batson
motion after trial. Although the court recited the proper stan-
dard at the post-trial hearing, it did not recognize its prior
error: it said, “I have no reason to reverse the original ruling.”
Consequently, we cannot be certain that the district court was
not under the impression that a “pattern” of strikes was
required. Therefore, we review de novo Collins’s equal pro-
tection argument.
[4] The first two elements of a prima facie case do not
appear to be in dispute; Juror No. 9 is a member of a cogniza-
ble racial group, and the prosecutor used a peremptory strike
to remove her. Rather, the parties’ debate concerns whether
the allegation gives “rise to an inference” of discrimination,
which is a less burdensome standard of proof than the prepon-
derance (“more likely than not”) standard. Johnson, 545 U.S.
at 168. “[T]he burden for making a prima facie case is not an
onerous one.” Boyd, 467 F.3d at 1151. At the prima facie
stage of a Batson challenge, the burden of proof required of
74 UNITED STATES v. COLLINS
the defendant is small, especially because proceeding to the
second step of the Batson test puts only a slight burden on the
government. This is because the government never bears the
ultimate burden of persuading the district court that it did not
act with a discriminatory purpose; that burden persists with
the defendant. Johnson, 545 U.S. at 170-71. Rather, an easily
met burden of proof momentarily shifts, at step two, to the
government: to meet its burden, the government need only
disclose its (nondiscriminatory) purpose for striking the
potential juror. See id. at 171 (stating that the government sat-
isfies its burden of proof even if it presents “only a frivolous
or utterly nonsensical justification for its strike”). The ulti-
mate burden then returns to the defendant at step three, and
the defendant must persuade the district court that the govern-
ment’s (nondiscriminatory) reason is pre-textual. Id. A single
inference of discrimination based on “all [the] relevant cir-
cumstances” and the “totality of relevant facts” is sufficient to
move the Batson inquiry to step two. See, e.g., Batson, 476
U.S. at 94, 96.
[5] The government relies heavily upon Vasquez-Lopez, 22
F.3d at 902, where we said that “the fact that the juror was the
one [b]lack member of the venire does not, in itself, raise an
inference of discrimination.” See id. (applying clear error
standard of review). This should not be a controversial state-
ment because it is not the prosecutor who chooses the panel
members. Therefore, under a Batson challenge, we do not
hold against the government the fact that the panel lacked
African-American members.1 The lack of diversity in the
panel, along with the removal of each African-American,
however, does justify close scrutiny of the challenge. See
United States v. Chinchilla, 874 F.2d 695, 698 n.5 (9th Cir.
1989) (“However, although the striking of one or two mem-
bers of the same racial group may not always constitute a
1
Collins does not raise a claim that the potential jurors were drawn from
a nonrepresentative cross-section of the community. See Duren v. Mis-
souri, 439 U.S. 357, 363-64 (1979).
UNITED STATES v. COLLINS 75
prima facie case, it is preferable for the court to err on the side
of the defendant’s rights to a fair and impartial jury.”). More-
over, if we do not look closely at the prosecutor’s challenge
of the sole African-American, it would be impossible for a
defendant in Collins’s position to establish a case of prima
facie discrimination.
Courts have discussed several situations in which a prima
facie case of discrimination may exist. The Supreme Court
has said that the existence of a pattern of striking minority
panel members is a relevant consideration that may raise an
inference of discrimination. Batson, 476 U.S. at 96-97. We
have found an inference of discrimination where the prosecu-
tor strikes a large number of panel members from the same
racial group, or where the prosecutor uses a disproportionate
number of strikes against members of a single racial group.
Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002). Strik-
ing members of more than one protected group is also rele-
vant and may indicate a discriminatory intent. Id. at 1079-80.
A prosecutor’s questions and statements to the venire are rele-
vant because they might provide insight into her motive. Bat-
son, 476 U.S. at 97. Likewise, the fact that the prosecutor fails
to “engage in meaningful questioning of any of the minority
jurors” might indicate the presence of discrimination. Fernan-
dez, 286 F.3d at 1079.
[6] Despite a wealth of precedent in this area, this is a diffi-
cult case because none of the aforementioned considerations
apply. Juror No. 9 was the only African-American panel
member subject to a strike by the government:2 The lack of
other African-Americans in the jury pool renders mathemati-
cal trends and patterns meaningless. The prosecutor may have
only used 25% of his four challenges on African-Americans,
2
In total, there were three African-Americans on the venire. The first
was struck by the defense, the second was Juror No. 9, and the third, a
potential alternate juror, was struck for cause by the district court because
he said it was his personal belief that anyone who went to trial was guilty.
76 UNITED STATES v. COLLINS
but by the same logic, the prosecutor struck 100% of the
remaining African-Americans from the jury. Moreover, the
district court questioned the panel; therefore, we do not have
the benefit of analyzing the prosecutor’s questions for dis-
criminatory meaning.
Collins argues that the prosecutor retained white jurors who
gave answers similar to those given by Juror No. 9. Compara-
tive juror analysis, a tool for conducting meaningful appellate
review of whether a prima facie case has been established, is
useful in analyzing such a claim. See Boyd, 467 F.3d at 1149-
50 (holding that it was error for state appellate court not to
review complete voir dire transcript because without such
review there could be no comparative juror analysis);
Esparza-Gonzalez, 422 F.3d at 904 (stating that it is “relevant
for the court to consider the differing treatment of similarly
situated potential jurors”). Comparative juror analysis
involves comparing the characteristics of a struck juror with
the characteristics of other potential jurors, particularly those
jurors whom the prosecutor did not strike. See Miller-El v.
Dretke, 545 U.S. 231, 241, 247-48 (2005) (applying compara-
tive juror analysis); Kesser v. Cambra, 465 F.3d 351, 360 (9th
Cir. 2006) (en banc). An inference of discrimination may
arise when two or more potential jurors share the same rele-
vant attributes but the prosecutor has challenged only the
minority juror.
Juror No. 9 provided little information during voir dire. She
lived in Compton, California, and was a medical records man-
ager for USC Family Medicine. She did not state whether she
was married or had children, but stated that no adult at home
worked outside the house. Collins compares Juror No. 9’s
answers to those of three other jurors who gave similar
responses but were retained by the prosecutor: Juror No. 5, a
health insurance claims examiner, who lived with her husband
and 15 year-old son; Juror No. 6, a bookkeeper for a family-
owned real estate business, who lived on the west side of Los
Angeles and had prior civil jury experience; and Juror No. 10,
UNITED STATES v. COLLINS 77
a financial analyst whose husband worked in computer sales
and who had an adult daughter living at home. Collins con-
tends that none of these jurors, like Juror No. 9, reported any
connections or negative experiences with law enforcement,
illegal drugs, or the criminal justice system.
[7] In response, the government argues that these jurors are
not similarly situated to Juror No. 9 because they were either
married with children (Juror No. 5 and Juror No. 6) or had
prior civil jury experience (Juror No. 6).3 The government
cites these facts as potential non-racially motivated justifica-
tions for a strike. Collins points out, however, that the govern-
ment accepted another prospective juror, Juror No. 14, who
was single and had no prior jury experience. Moreover, the
record does not show whether Juror No. 9 actually had a hus-
band or children. The court only asked the jurors to state
whether there were “any adults living in the home that are
employed outside of the home.” While several jurors used this
question to identify the working adults as spouses or children,
the court posed no question asking if jurors had a spouse or
child. Juror No. 9 merely answered the question without giv-
ing unsolicited answers. If the prosecutor was interested in
marital or parenthood status, he does not appear to have asked
the court to inquire specifically about that issue with Juror
No. 9. Accordingly, comparative juror analysis does not
reveal any meaningful distinctions between Juror No. 9 and
other panel members who were retained by the government.
[8] Thus, based on our review of the record, we conclude
that an inference of discrimination did exist in this case. Com-
parison of Juror No. 9’s characteristics with the characteristics
of other similarly situated panel members who were allowed
to serve reveals little distinction that could account for the
prosecutor’s strike of Juror No. 9. In addition, the prosecutor
3
As a threshold matter, we note that there is no requirement that jurors
be identically situated in order for meaningful comparison to take place.
See Miller-El, 545 U.S. at 247 n.6.
78 UNITED STATES v. COLLINS
did not pursue further questioning before striking the only
remaining African-American panel member. See Esparza-
Gonzalez, 422 F.3d at 905 (“[T]he prosecutor had very little
hard information to base this decision on. Although the prose-
cutor has no obligation to question all potential jurors, his
failure to do so [before] removing a juror of a cognizable
group . . . may contribute to a suspicion that this juror was
removed on the basis of race.”). Finally, none of Juror No. 9’s
answers to the court’s questions suggests a reason for her
removal: nothing she said indicated a predisposition toward
the defendant or a bias against the government.4 See Boyd,
467 F.3d at 1147 (“[N]othing in the struck juror’s voir dire
responses intimated a legitimate basis for removal.”).
Although any of these factors standing alone may have been
insufficient to establish a prima facie case, the totality of the
circumstances raises an inference of impermissible discrimi-
nation.
[9] Consequently, the district court erred by not advancing
to step two of the Batson inquiry. We remand, with instruc-
tions that the court require the government to provide its rea-
son for striking Juror No. 9. The district court should then
determine, in the first instance, whether the strike was dis-
criminatory.
II.
Collins next argues that the government failed to turn over
an audiotape recording of a conversation between confidential
informant Kim and Kim’s confederate Wenceslao Martinez,
an individual not directly related to Collins’s case. The
recording was finally disclosed, during post-trial proceedings.
Collins contends that the recording establishes that informant
Kim knew Oscar Torres, another drug dealer of Kim’s
acquaintance, was looking to “get” Kim. Collins urges us to
4
This is in stark contrast to the government’s other peremptory strikes,
the reasons for which were readily apparent from the transcript.
UNITED STATES v. COLLINS 79
reverse his conviction because the suppression of the record-
ing violated his right to due process under the Fourteenth
Amendment. See Brady, 373 U.S. at 87.
[10] We review de novo an alleged Brady violation. United
States v. Ross, 372 F.3d 1097, 1107 (9th Cir. 2004).
“[S]uppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment . . . .” Brady, 373
U.S. at 87. “Evidence is material and favorable if there is a
reasonable probability that the disclosure of the evidence
would have changed the trial’s result.” Ross, 372 F.3d at
1107. “A defendant need not show that she would more likely
than not have received a different verdict with the evidence.”
United States v. Jernigan, 492 F.3d 1050, 1054 (9th Cir.
2007) (en banc) (internal quotation marks omitted). “Defen-
dants need only show ‘that the favorable evidence could rea-
sonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.’ ” Id. at 1054 n.7
(quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). In con-
sidering this, “judges must undertake a careful, balanced eval-
uation of the nature and strength of both the evidence the
defense was prevented from presenting and the evidence each
side presented at trial.” Id. at 1054 (internal quotation marks
omitted). “In other words, the withheld evidence must be ana-
lyzed in the context of the entire record.” Id. (internal quota-
tion marks omitted).
Collins gives three reasons why he believes the recording
is favorable and material evidence. He contends that the
recording (1) impeaches Kim by contradicting statements he
made at trial, (2) similarly impeaches Agent Oz, and (3) is
substantive proof that Kim had a motive to entrap Collins.5
5
“Entrapment has two elements: (1) government inducement to commit
the crime; and (2) the absence of predisposition to commit the crime. If
the defendant is able to put entrapment in issue, the government bears the
burden of negating the defense beyond a reasonable doubt.” Ross, 372
F.3d at 1108 (citation omitted).
80 UNITED STATES v. COLLINS
We consider together his two impeachment arguments.
First, we observe that this is not a case in which the defense
lacked notice of the alleged impeaching facts, such as the
existence of the threat to Kim. Cf. Jernigan, 492 F.3d at 1054-
55. A Drug Enforcement Agency report of the recording was
disclosed to Collins and documented the existence of the
threat. Moreover, Collins asked Kim and Agent Oz about the
threat on cross-examination. The question, then, is whether
the recording of the actual conversation where the threat is
relayed (as opposed to the fact of the threat) undermines con-
fidence in the verdict.
[11] With regard to the impeachment of Kim and Agent
Oz, the recording adds little value. Evidence relevant to the
impeachment of a witness adverse to the defendant may be
favorable and material when “the reliability of the witness
may be determinative of the defendant’s guilt or innocence.”
United States v. Bracy, 67 F.3d 1421, 1428 (9th Cir. 1995).
Kim’s reliability was important in refuting Collins’s conten-
tion that he resisted committing the crimes and was convinced
only through Kim’s persistence and withholding of other busi-
ness opportunities upon which they were already involved
together. However, there was already substantial evidence
introduced at trial of Kim’s bias toward the government and
his incentive to lie. For example, Kim admitted that he had
been arrested for sending five pounds of methamphetamine to
Hawaii and that he was cooperating with the government in
exchange for several benefits, including release from jail
without having to post a bond, cash, sentencing leniency, and
immunity for other crimes. Furthermore, Kim’s restaurant, the
source of his livelihood, was bought with drug money, and
Kim admitted that the government had not (at the time of
trial) made any inclination toward seizing the property or
charging him with money laundering. In addition, the evi-
dence of his bad character was overwhelming: Kim admitted
that he smoked marijuana in jail, that he had been dealing
drugs his entire adult life, that he dealt in quantities of drugs
that netted him at least a million dollars in less than two years,
UNITED STATES v. COLLINS 81
that he was arrested for committing domestic violence, and
that he was arrested on another occasion where a handgun and
a quarter pound of methamphetamine were seized from his
house. Finally, Kim agreed that he was not the “type of per-
son upon whose word someone can rely and count on.”
Collins argues that the district court disregarded the value
of impeachment by contradiction because Kim testified that
he had never heard that another drug dealer (Torres) was mak-
ing threats against him. Collins argues that the recording
would have been evidence that Kim was lying because the
recording reveals that Martinez told Kim that Torres was
looking to “get him” and that he should stay away from Tor-
res. However, Collins overstates the impeachment value of
these statements. When asked about the phone conversation,
Kim thrice said only that he did not remember learning about
such a threat. Only after the fourth time, when asked by the
district court, after some confusion, did Kim respond with a
more definite “No, sir” to the question “Did anybody named
Martinez ever call you up and talk to you about a threat on
your life?” This exchange suggests that, even if Collins had
the recording with which to impeach Kim, its impeachment
value would have been little because on three occasions Kim
said only that he did not remember a threat, not that one did
not exist.
Moreover, the fact that the threat was admitted into evi-
dence by way of Agent Oz, who had listened to the recording
and admitted that Martinez relayed a threat to Kim, under-
mines the recording’s impeachment value as contradicting
Kim’s trial testimony. Collins points out, however, that Agent
Oz improperly characterized Kim’s response to that threat
when she said, “I believe [Kim’s] comment [when told Torres
was looking to kill him] was ‘I don’t think so.’ ” No such
statement appears in the transcript of the recording. This, too,
is weak impeachment evidence. Oz’s statement was tentative;
she said, “I believe his comment was.” Furthermore, if we
82 UNITED STATES v. COLLINS
keep reading Oz’s testimony, it is evident that she had a rea-
son to believe that Kim did not take the threat seriously:
He didn’t perceive a threat on his life. If I was to go
into more detail about the relationship between those
people I think you would understand why he didn’t.
. . . The reason being . . . [Martinez and Torres] were
always in a feud trying to get [Kim’s] business
because he was a good customer. He bought a lot of
dope from both of them. When that conversation was
made it was after James Kim was released from jail.
Her explanation is neither supported nor contradicted by the
recording, and her explanation that she did not believe Kim
took the threat seriously is not undermined by the tape. Con-
sequently, we conclude that the recording has little value as
impeachment evidence against either Kim or Oz. Certainly, it
does not undermine our confidence in the verdict.
[12] Finally, Collins contends the recording is material as
proof that Kim actually knew about the threat and took it seri-
ously. As we have explained, however, Agent Oz testified that
a threat did exist. Kim admitted that he traded on his friend-
ship with Collins to get Collins to find drugs for him on other
occasions. Moreover, the existence of a threat was tangential
to the question of whether Kim induced Collins to commit the
crimes. In other words, Collins’s argument that the threat
establishes a motive for Kim to entrap Collins—rather than
setup more dangerous drug dealers threatening Kim—is atten-
uated at best. The audiotape recording, while relevant and
favorable, is not material, and its suppression did not infringe
Collins’s right to due process.
III.
Collins also argues that the suppression of the tape violated
his Sixth Amendment right of confrontation because he was
unable to use the suppressed recording to impeach Agent Oz
UNITED STATES v. COLLINS 83
and Kim. The primary purpose of the right of confrontation
is “ ‘to secure for the opponent the opportunity of cross-
examination.’ ” Davis v. Alaska, 415 U.S. 308, 315-16 (1974)
(emphasis omitted) (quoting 5 J. Wigmore, Evidence § 1395
(3d ed 1940)). Cross-examination affords an opportunity to
demonstrate an adverse witness’ potential biases and motiva-
tions. United States v. Larson, 495 F.3d 1094, 1102 (9th Cir.
2007) (en banc), cert. denied, 128 S. Ct. 1647 (2008). We
have two standards of review for violations of the confronta-
tion clause. De novo review applies when the district court
excludes an area of inquiry. Larson, 495 F.3d at 1101. But we
review for abuse of discretion a district court’s limitation on
the scope of questioning. Id.
[13] Collins’s argument does not fit neatly within either
claim because he is arguing, in effect, that suppression of
material by the government, not the district court, violated his
right to confront the witnesses against him in a meaningful
manner. However, it is not clear that Collins’s contention is
the law. See Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987)
(plurality opinion) (stating that the confrontation clause is not
a “constitutionally compelled rule of pretrial discovery”). We
need not decide whether Ritchie controls this case, however,
because we conclude that any violation was harmless beyond
a reasonable doubt, for the same reasons we concluded that
the recording was not material. See Larson, 495 F.3d at 1107-
08 (applying harmless error standard to confrontation clause
claim). The recording was not so valuable as impeachment
evidence that it affected Collins’s substantial rights.
IV.
Finally, Collins argues that the district court erred in refus-
ing to order the government to serve a subpoena upon infor-
mant Danny Yim, a resident of Hawaii. Yim was not involved
in the two August transactions; rather, he was the buyer in an
uncharged July methamphetamine deal, involving Collins and
Kim. The government resisted disclosing Yim’s identity to
84 UNITED STATES v. COLLINS
Collins because of Yim’s status as a confidential informant
and because the government was not pursuing charges based
on the July transaction.
Collins, however, learned Yim’s identity independent of
the government shortly before trial. Despite having learned
Yim’s identity, Collins was unable to serve process upon
Yim, as Yim avoided Collins’s investigators. The govern-
ment, however, was still in contact with Yim, and Collins
moved for the district court to order the government to pro-
duce Yim or to accept service on behalf of Yim. The district
court was skeptical of Yim’s relevance because Collins was
not charged with the July transaction. Collins made an in
camera proffer of the relevance of Yim’s testimony. He
expected that Yim would testify that it was Kim who actually
handed the drugs from the July transaction to Yim, not Col-
lins; that Kim smoked methamphetamine with Yim; that Kim
kept $6,000 of unreported money from the transaction; and
that Kim helped Yim complete the drug deal by encouraging
him to cash money orders in order to pay for the drugs. Col-
lins contended that this evidence would show how Kim was
desperate to entrap Collins in order to satisfy his debt to the
government as a cooperating witness. The district court subse-
quently denied Collins’s request, doubting its ability to order
the government to serve a subpoena on behalf of the defense
and remaining skeptical that Yim’s testimony was necessary
to Collins’s entrapment defense.
In Ritchie, the Supreme Court said that “[o]ur cases estab-
lish, at a minimum, that criminal defendants have the right to
the government’s assistance in compelling the attendance of
favorable witnesses at trial and the right to put before a jury
evidence that might influence the determination of guilt.” 480
U.S. at 56 (citing cases). In Ritchie, and in the cases cited
therein, the defendant was impeded from admitting favorable
evidence because the government or the court took some
action to block the defendant’s attempts. See id. at 56-58 (due
process required that trial court review in camera confidential
UNITED STATES v. COLLINS 85
report protected from disclosure by state law to determine if
it was material to the defense); Cool v. United States, 409
U.S. 100, 102-03 (1972) (per curiam) (trial court violated
defendant’s Sixth Amendment right to present exculpatory
testimony of accomplice-witness when it instructed the jury
that they could credit testimony only if they were convinced
it was true “beyond a reasonable doubt”); Webb v. Texas, 409
U.S. 95, 97-98 (1972) (per curiam) (trial court impermissibly
singled out convict-witness by implying that it expected the
witness to lie and threatening the witness with prosecution for
perjury where witness then refused to testify); Washington v.
Texas, 388 U.S. 14, 23 (1967) (state violated defendant’s
Sixth Amendment right of compulsory process by prohibiting
defendant from admitting the testimony of an accomplice-
witness).
[14] Accordingly, and more specifically to the point in this
case, we have said that, in some cases, the government has a
duty to accept service of a subpoena for some confidential
informants. United States v. Gonzalo Beltran, 915 F.2d 487,
488-89 (9th Cir. 1990) (per curiam). “A district court’s refusal
to order the government to accept a subpoena for a confiden-
tial informer produced the same effects as a decision to allow
the government to exercise its privilege not to disclose the
identity of a confidential informer.” Id. at 488. We also stated
that “[a]llowing the government to refuse to accept a sub-
poena for an informer is also analogous to allowing the gov-
ernment to deport witnesses whom a defendant may wish to
subpoena.” Id. at 489. In such cases, a “defendant cannot
establish a violation of his right to compulsory process unless
the defendant can show the testimony would have been ‘both
material and favorable to the defense.’ ” Id. (quoting United
States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
[15] The similarity among all of these circumstances is that
the government (or the court) is actively restraining or imped-
ing the defendant from using a witness at trial. By contrast,
Collins knew Yim’s identity prior to trial; the government
86 UNITED STATES v. COLLINS
was not actively keeping Yim from testifying, either by pre-
venting him from being served or by withholding his identity
from the defense. Rather, Yim was resisting service of pro-
cess. Collins argues that if the government had not resisted
disclosing Yim’s identity, then he would have had more time
in which to serve Yim. But, as Collins admits in his reply
brief, he learned Yim’s identity before the district court had
an opportunity to rule on the motion to compel disclosure.
Consequently, we conclude that it was not the government’s
fault that Yim did not testify and that there is no constitutional
right that requires the government to accept service of sub-
poena for Yim. To hold in Collins’s favor would create a rule
that the government must accept a subpoena on behalf of any
previously confidential informant that the defendant has been
unable to serve through no fault of the government. The dis-
trict court did not err.
V.
The judgment of the district court is AFFIRMED in part
and REVERSED and REMANDED in part for the district
court to conduct proceedings consistent with our opinion.
GRABER, Circuit Judge, concurring:
I concur fully in the opinion. I write separately only to
encourage prosecutors to state their reasons for peremptory
strikes at the time of a Batson challenge.
As the opinion correctly holds, of course, if no prima facie
case of discrimination has been made, a prosecutor is not
required to give any explanation. The right to challenge a
juror without cause is one that any litigant understandably
wishes to guard. On the other hand, the burden of explaining
the reasons for a challenge—in the alternative to arguing that
no explanation is required—is minimal. Judicial economy
UNITED STATES v. COLLINS 87
would be well served. See, e.g., Paulino v. Harrison, No. 07-
55429, slip op. at 12179 (9th Cir. Sept. 4, 2008) (in a second
appeal, upholding habeas relief in a Batson case when the
prosecutor could not remember her reasons for exercising
peremptory challenges at an evidentiary hearing held eight
years after the trial). So would confidence in the fairness of
a trial because, in fact, prosecutors usually have good and per-
missible reasons for their challenges; refusing to state them
can create unnecessary suspicion, as well as unnecessary liti-
gation.
O’SCANNLAIN, Circuit Judge, concurring in part and dis-
senting in part:
While I concur in Parts II, III, and IV of the court’s opin-
ion, I cannot concur in Part I’s holding that there was a prima
facie case of discrimination. Because I believe the panel
majority applies the wrong standard of review and therefore
reaches the wrong conclusion under Batson v. Kentucky, 476
U.S. 79 (1986), I respectfully dissent from Part I of the court’s
opinion.
I
Batson created a three-part burden shifting test which we
must apply to ascertain if a juror was stricken for discrimina-
tory reasons. See id. at 96-98. Generally, we review a district
court’s determinations at stage one of this test—whether a
defendant has established a prima facie case of discrimination
—for clear error. See Tolbert v. Page, 182 F.3d 677, 681-85
(9th Cir. 1999) (en banc). The panel majority, however,
adopts a de novo standard of review, asserting that the district
court applied the improper legal standard. See Maj. Op. at 72-
73 (citing Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir.
2004)).
88 UNITED STATES v. COLLINS
I am not so persuaded. Clear error review is appropriate
here. Collins’ attorney objected to the government’s peremp-
tory challenge of the remaining African-American juror, Juror
No. 9, in open court.1 The district court overruled the objec-
tion. According to the panel majority, the district court’s
response suggests it believed a “pattern” of discrimination had
to be shown. See Maj. Op. at 72-73. The majority rightly
notes that under our precedent, such a showing is not required
(and indeed would be impossible in situations where there is
only one African-American juror on the panel). See United
States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994).
Rather, the Supreme Court has held that when assessing a
stage-one Batson claim, the district court must determine
whether the defendant has produced “evidence sufficient to
permit the trial judge to draw an inference that discrimination
has occurred.” Johnson v. California, 545 U.S. 162, 170
(2005) (emphasis added).
While the district court’s initial statement was perhaps
inartfully worded, the court later clarified its language when
responding to defendant’s motion for a new trial. The major-
ity is correct to this extent: when rejecting Collins’ argument
that he had established a prima facie Batson claim, the district
court stated that it had “no reason to reverse the original rul-
ing.” Maj. Op. at 73. But Judge Klausner—unlike the
majority—did not stop there. The district court went on to say
that “[t]here is no indication . . . that any of the facts or rele-
vant circumstances have raised any inference that the chal-
lenge was racially motivated.” The point was reiterated:
“There is nothing in this case that [suggests] any inference
that the challenge was racially motivated.” Thus, regardless of
what the statement at trial might suggest, the district court
clearly indicated that the “inference of discrimination” stan-
dard enshrined in Johnson was applied. At the very least, any
1
Collins’ attorney had previously struck an African-American member
of the venire. The district court, with the concurrence of both parties, also
excused an African-American prospective alternate juror for cause.
UNITED STATES v. COLLINS 89
potential legal error was cured.2 Accordingly, we should
review the district court’s findings for clear error.
II
The panel majority correctly notes that only the third ele-
ment of a prima facie case of discrimination is at issue:
namely, does “the totality of the circumstances raise[ ] an
inference that the strike was motivated by race.” Boyd v. New-
land, 467 F.3d 1139, 1143 (9th Cir. 2006). The fact that the
juror stricken was “the one [b]lack member of the venire does
not, in itself, raise an inference of discrimination,”3 as the
majority also appropriately emphasizes. Vasquez-Lopez, 22
F.3d at 902 (“[I]t is not per se unconstitutional, without more,
to strike one or more [b]lacks from the jury.” (citing Batson,
476 U.S. at 101)); see also Maj. Op. at 74. Thus, to determine
whether an “inference” of racial discrimination exists, the
panel majority has only the nebulous “totality of the relevant
facts” and circumstances to assess. Batson, 476 U.S. at 94;
Boyd, 467 F.3d at 1146. After such assessment, including the
use of comparative juror analysis,4 the panel majority con-
2
At oral argument and in his reply brief, Collins asserts that the district
court’s statement in response to the motion for a new trial should be con-
sidered a “post-hoc” justification, “entitled to little weight.” Collins cites
United States v. Mannino, 212 F.3d 835, 846 (3d Cir. 2000), in support of
this claim. However, Mannino is inapposite, because in that case, the dis-
trict court was hypothesizing about how it would have ruled in an alterna-
tive scenario. In this case, the district court was not hypothesizing, but
rather specifically stating the grounds for its decision.
3
While the statement is true, of course, it is again worth noting that
Juror No. 9 was not the only African-American member of the venire in
this case.
4
As the panel majority states, comparative juror analysis is a tool by
which a court seeks out inferences of discrimination through a side-by-
side comparison of the stricken juror and other potential jurors who were
allowed to serve. See Boyd, 467 F.3d at 1147-48; Kesser v. Cambra, 465
F.3d 351, 362 (9th Cir. 2006); see also Miller-El v. Dretke, 545 U.S. 231,
241 (2005) (“If a prosecutor’s proffered reason for striking a black panel-
ist applies just as well to an otherwise-similar nonblack who is permitted
to serve, that is evidence tending to prove purposeful discrimination
. . . .”).
90 UNITED STATES v. COLLINS
cludes that the prosecutor’s actions “raise[ ] an inference of
impermissible discrimination.” Maj. Op. at 78.
I disagree. Considering the totality of circumstances, it is
significant that Collins’ attorney struck the first African-
American juror (Juror No. 2). Indeed, the prosecution had the
opportunity to strike Juror No. 2 before Collins’ attorney did
and declined to do so. While a pattern is not necessary for a
finding of discrimination, the record nonetheless undermines
any inference of discrimination. For similar reasons, it is rele-
vant that Juror No. 9 was struck on the government’s third
peremptory strike. Cf. United States v. Chinchilla, 874 F.2d
695, 698 (finding an inference of discrimination where the
government used its first peremptory strike against a minority
juror).
Using comparative juror analysis, the panel majority and
Collins claim that Juror No. 9 was situated similarly to Juror
Nos. 5, 6, and 10.5 They assert that because the government
struck Juror No. 9 but permitted the latter group to remain on
the jury, a prima facie case of discrimination exists. However,
an analysis of the voir dire transcript suggests entirely innocu-
ous reasons for the government to dismiss Juror No. 9, but
keep Nos. 5, 6, and 10.
According to the transcript, Juror No. 9 was a female with
no relationship to anyone in law enforcement, no negative
experiences with law enforcement, and no prior jury experi-
ence. Her familial status was unclear, but she stated that she
did not live with any working adults. Juror Nos. 5, 6, and 10
are similar in some respects, but there are significant differ-
ences. Most notably, Juror No. 6 had prior civil jury experience,6
5
Collins also argues in his briefs that Juror No. 3 was similarly situated.
However, unlike Juror No. 9, Juror No. 3 was dating a police officer and
had previously served on a criminal jury.
6
The panel majority and Collins argue that “prior jury experience” is not
a sufficient basis upon which to distinguish Jurors No. 6 and No. 9
UNITED STATES v. COLLINS 91
while Juror No. 5 and Juror No. 10 both indicated that they
lived with another adult who worked outside the home. In
fact, both Juror No. 5 and Juror No. 10 stated that they were
married with children.
Reasonable minds could differ as to the impact such dispar-
ities could have on a juror’s service. However, there is no
doubt that as the government asserts, these are “race-neutral,
non-trivial” distinctions which cut against Collins’ claims that
similarly situated jurors were treated differently. Given the
deferential standard under which we review such determina-
tions, see Tolbert, 182 F.3d at 681-85, on these facts, I cannot
conclude that the district court committed clear error in ruling
that no prima facie Batson claim was established.
III
Because the majority employs the wrong standard of
review and accordingly reaches what I believe to be an erro-
neous conclusion, I am unable to join the court’s decision to
remand for further proceedings on the Batson claim. I respect-
fully dissent.
because the prosecutor accepted another juror (Juror No. 14) who, like
Juror No. 9, had not previously served on a jury. At a minimum, the two
are not similarly situated because Juror No. 14 indicated that he lived with
people who worked outside the home, said he had a relative whose partner
worked in law enforcement, and stated that he could identify certain tat-
toos which “indicate to [him] . . . things that [potential witnesses] have
done.”