United States v. Huey

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 94-30504



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                               versus


                     ARTHUR S. HUEY, IV and
                     ANTONIO A. GARCIA

                                                 Defendants-Appellants.



            Appeal from the United States District Court
                for the Eastern District of Louisiana

                         (February 16, 1996)



Before JOLLY, DUHÉ and WIENER, Circuit Judges.

WIENER, Circuit Judge:

     Defendants-Appellants Arthur S. Huey, IV and Antonio A. Garcia

appeal their convictions on charges of conspiring to distribute

marijuana, making threats or using violence in order to collect an

extension of credit, and using a firearm in relation to a crime of

violence.   Concluding that the jury selection process in this case

violated Batson v. Kentucky1 and its progeny, we reverse and remand



     1
         476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986).
for a new trial.

                                        I

                           FACTS AND PROCEEDINGS

      The convictions underlying this appeal arise from the drug-

related activities of Defendants-Appellants Arthur S. Huey, IV, a

Caucasian, and Antonio A. Garcia, an Hispanic-American.                    Over a

period of a year and one-half, Huey and Garcia sold marijuana to

Marshall Howell.        The instant case concerns Huey's and Garcia's

last sale to Howell. On this particular occasion, Howell paid Huey

two-thirds of the purchase price for the marijuana, but did not did

not have the remaining funds due for the drugs.              Howell became fed

up with defendants' efforts to collect the balance due, so he

anonymously contacted the Federal Bureau of Investigation (FBI) and

offered information.       Subsequently, he met with an FBI agent and

explained the series of events.             Howell agreed to cooperate with

the   FBI   and   was   provided   a   tape     recording    device   to   record

telephone     conversations.           Howell     taped     several   telephone

conversations in which Huey and Garcia made demands for the money

owed them.        These tapes were later used by the government as

evidence against Huey and Garcia.

      The Grand Jury for the Eastern District of Louisiana returned

a three-count indictment against Huey and Garcia, to which both

pleaded not guilty and went to trial.

      At the close of the voir dire of the venire, counsel for Huey

moved to exclude six potential jurors.             As noted on the record by

Huey's counsel, these six jurors constituted all of the African-


                                        2
Americans and persons with Hispanic surnames in the jury pool.

Huey's counsel explained that the government would be playing tapes

and offering transcripts that contained harsh and offensive racial

epithets.    Accordingly, argued counsel for Huey, no minority juror

would be able to make an unbiased decision regarding Huey's guilt

or innocence after hearing these tapes.2

     The     district   court    refused      the    request   to exclude the

prospective    jurors   who    were   African-American       or    had   Hispanic

surnames, but did state that it would voir dire the individuals

with respect to whether any of them would be influenced by the

tapes'   racial   slurs.        The   district      court   then   advised       the

prospective    jurors   that    the   tapes    contained     racial      slurs    of

significant proportion involving African-Americans and Hispanic-

Americans and inquired whether such language would affect their

ability to hear the case in a fair and impartial manner.                  None of

the prospective jurors responded that the content of these tapes

would influence their decision-making process with respect to

determining the defendants' guilt or innocence.

     Following this voir dire by the district court, jury selection

began.     The defendants' ten peremptory challenges were allocated

equally, five to Huey and five to Garcia.             Counsel for Huey began

the selection process by striking three African-Americans from the

jury pool.    Both the government and counsel for Garcia made Batson

     2
        Prior to trial, Huey's counsel filed a Motion in Limine
seeking to exclude these tape recordings from evidence because
of, inter alia, the derogatory and offensive references to race,
religion, ethnicity, and gender they contain. The district court
ruled that the tapes would be played.

                                       3
objections, asserting that these strikes were improperly made on

the basis of race.3    The district court stated that Huey's counsel

could respond to the objections if he wished, but that the court

did not find it necessary for him to do so; and the record reflects

no response from Huey's counsel.

     The   selection   process   continued,    and   the   government   and

Garcia's counsel were given opportunities to exercise some of their

peremptory challenges. When it was Huey's turn again, counsel used

his two remaining peremptory challenges to strike two more African-

Americans.   Again, counsel for Garcia made a Batson objection.

After noting this objection, the district court without further

comment allowed Huey's five peremptory challengesSQall of which had

been used to strike African-AmericansSQto stand, and the trial

proceeded.

     The following day, the jury returned with a verdict of guilty

on all counts as to both Huey and Garcia.            Huey and Garcia now

appeal, both arguing inter alia that the jury selection process

violated Batson v. Kentucky and its progeny.

                                   II

                                 ANALYSIS

     We review a trial court's decision on a Batson challenge under

the clearly erroneous standard.4        Garcia insists that the district


     3
        The government no longer challenges the peremptory
strikes.
     4
        United States v. Seals, 987 F.2d 1102, 1108-09 (5th
Cir.), cert. denied, __ U.S. __, 114 S. Ct. 155, 126 L.Ed.2d 116
(1993).

                                    4
court committed reversible error by failing to protect the equal

protection rights of the five African-American prospective jurors

who were peremptorily challenged.     We agree.

     In Batson v. Kentucky,5 the Supreme Court held that equal

protection principles prohibit a prospective juror from being

peremptorily challenged on the basis of race.     The protection of

Batson from the harms of racial discrimination in jury selection is

not extended solely to individual defendants, but also to the

excluded jurors.6     "An individual juror does not have a right to

sit on any particular petit jury, but he or she does possess the

right not to be excluded from one on account of race."7       Thus,

discrimination in the form of excluding a prospective juror because

of the juror's raceSQeven a race that is different from that of the

defendantSQconstitutes a violation of the excluded juror's equal

protection rights.8    Whether the discriminatory challenge is made

by the prosecution or a defendant makes no difference.9

     Under Powers v. Ohio, a defendant has standing to raise the

prospective juror's claim of an equal protection violation by way

     5
         476 U.S. 79, 106 S. Ct. 1712, 90 L.E.2d 69 (1986).
     6
        Batson v. Kentucky, 476 U.S. 79, 87, 106 S. Ct. 1712,
1718, 90 L.E.2d 69 (1986).
     7
        Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364, 1370,
113 L.E.2d 1017 (1991).
     8
         Id.
     9
        Georgia v. McCollom, 505 U.S. 42, 49, 112 S. Ct. 2348,
2353, 120 L.E.2d 33 (1992). A criminal defendant's exercise of
peremptory challenges constitutes state action for purposes of
the Equal Protection clause. Id. 505 U.S. at 50-55, 112 S. Ct.
at 2354-57.

                                  5
of a Batson challenge.10     Although the instant case is atypical, in

that one defendant is challenging the peremptory strikes of a co-

defendant, the rationale articulated in Powers for holding that a

defendant has standing to raise this claim on behalf of prospective

jurors    is   equally   cogent   and       applicable     in   this   situation.

Therefore, we conclude that Garcia has standing to challenge the

juror selection process based on his co-defendant's improper racial

use of peremptory challenges.

     A three-step inquiry is made to determine whether a party has

used peremptory     challenges    in    a     way   that   violates    the   Equal

Protection clause.       First, the opponent of the strike must make a

prima facie showing that the proponent of the strike exercised it

on the basis of a juror's cognizable racial background.11                     The

burden then shifts to the proponent of the strike to articulate a

race-neutral explanation for removing the juror in question.12

Finally, the trial court must determine whether the opponent of the

strike has proved purposeful discrimination.13

     Huey's counsel used all five of his peremptory challenges to


     10
          Powers, 499 U.S. at 415, 111 S. Ct. at 1373.
     11
        United States v. Seals, 987 F.2d 1102, 1108 (5th Cir.
1993), cert. denied, __ U.S. __, 114 S. Ct. 155, 126 L.Ed.2d 116
(1993).
     12
        Id. at 1108-09. The Supreme Court has recently refined
this step by holding that this race-neutral explanation tendered
by the proponent need not be persuasive, or even plausible.
Purkett v. Elem, __ U.S. __, 115 S. Ct. 1769, 1771, 131 L.E.2d
834 (1995). The persuasiveness of this explanation becomes
relevant in the third step of the inquiry. Id.
     13
          Seals, 987 F.2d at 1109.

                                        6
strike African-Americans from the venire.                  These strikes followed

on the heels of the court's rejection of Huey's counsel's request

that   all    of   the    African-Americans     and    persons      with    Hispanic

surnames be excluded for cause.         This request was based not on any

particular characteristics of the individual prospective jurors but

on counsel's belief that all members of these groups were incapable

of being impartial in the face of the racially offensive content of

the tape recordings that the jury would hear.                  We have no doubt,

nor does the government contest, that Garcia met his first-step

burden of making a prima facie case that Huey's counsel exercised

these challenges on the basis of race.

       The burden then shifted to Huey's counsel to offer a race-

neutral explanation for these strikes. Although the district court

stated that it did not find it necessary for Huey's counsel to

respond to the Batson objections, it did provide an opportunity for

Huey's counsel to make such a response.           Yet no explanationSQrace-

neutral      or    otherwiseSQwas    proffered        in     response      to   these

objections.

       The government argues that it may be that Huey's attorney

simply did not believe the prospective jurors' responses to the

court's voir dire and that this is a sufficient race-neutral

explanation.        The    record,   however,    in    no     way   supports     this

argument.     The only reason articulated in the record for why these

jurorsSQas a class and not individuallySQshould not serve is that

they would be biased after hearing the derogatory language and

racial slurs contained on the tapes. This reason was premised only


                                       7
on the race of these jurors; no mention was ever made of any non-

racial     characteristic       of    any       individual   juror.         Thus,   the

explanation in the record for these strikes is nothing more than an

assumption of partiality based on race and a form of racial

stereotyping, both of which have been repeatedly condemned by the

courts.14    The Supreme Court has firmly "rejected the view that

assumptions of partiality based on race provide a legitimate basis

for disqualifying a person as an impartial juror."15                  We do so again

today.

      As the district court failed to discharge its clear duty

either to elicit a race-neutral explanation for the peremptory

challenges    or   deny   the    use    of       those   challenge,    it    committed

reversible      error   in   determining           implicitly    that       the   equal

protection rights of these jurors had not been violated.                            Such

error requires a new trial as to both Garcia and Huey.

      We are not unaware that there is some irony in reversing

Huey's conviction given that it was his counsel who made the

discriminatory strikes.              We are convinced, however, that this

result is consistent with the teachings of Batson and its progeny.

In   addition    to   harming    individual         defendants   and    prospective

jurors, racial discrimination in the selection of jurors impugns

      14
        E.g., Georgia v. McCollom, 505 U.S. 42, 59, 112 S. Ct.
2348, 2359, 120 L.E.2d 33 (1992) ("the exercise of a peremptory
challenge must not be based on either the race of the juror or
the racial stereotypes held by the party."); Powers v. Ohio, 499
U.S. 400, 410, 111 S. Ct. 1364, 1370, 113 L.E.2d 1017 (1991) ("We
may not except as a defense to racial discrimination the very
stereotype the law condemns.").
      15
           McCollom, 505 U.S. at 59, 112 S. Ct. at 2359.

                                            8
the integrity of the judicial system and the community at large.

"Be it at the hands of the State or the defense, if a court allows

jurors to be excluded because of a group bias, it is a willing

participant       in   a   scheme    that   could       only   undermine     the    very

foundation of our system of justiceSQour citizens' confidence in

it."16

       The   discriminatory         jury   selection      process      of   this   trial

offends the Constitution and calls into question the integrity of

our judicial system.          We conclude that only by repudiating all

results from such a trial can public confidence in the integrity of

this     system   be   preserved,      even      when    it    means   reversing     the

conviction of the very defendant who exercised the discriminatory

challenges.       Although we recognize that some might fear that this

resolution could become a source of mischief in the hands of some

co-defendants, we believe that not only is this resolution mandated

by Batson and its progeny, but that such mischief can be avoided

with relative ease by the exercise of diligent oversight and sound

judgment on the part of trial judges, and through their proper

application of the well-known three-step inquiry for ensuring race-

neutral use of peremptory challenges.

                                           III

                                      CONCLUSION

       As the district court failed to ensure the Equal Protection

rights of the prospective jurors in accordance with Batson and its


       16
        Id. 505 U.S. at 49-50, 112 S. Ct. at 2354 (internal
quotation marks and citation omitted).

                                            9
progeny, we

REVERSE and REMAND for a new trial consistent with this opinion.




E. GRADY JOLLY, Circuit Judge, with whom DUHE’, Circuit Judge, join

in concurring specially:



     I concur in the majority opinion and write briefly to express

my concern over what appears to me to be an indisputable abuse of

the Batson v. Kentucky17 rule by the defendant, Arthur Huey.            In the

simplest of terms, Huey has gained an unwarranted advantage of the

ruling as follows:   1) he uttered racial epithets in the course of

committing a crime; 2) faced with mounting a defense before a jury

of some individuals whose race he had insulted, he sought to

preclude their service as jurors by requesting the court to remove

all African Americans and all persons with Hispanic surnames; 3)

when that request was denied, he used his peremptory strikes to

preclude their   service    as   jurors     in   violation   of    Batson;   4)

although   successfully    purging    the    jury,   he   was     nevertheless

convicted; 5) he then appeals, complaining essentially of his own

unconstitutional acts, and we now reverse his conviction and grant

him a new trial on grounds that he created and benefitted from.

     The majority correctly observes that under the Supreme Court


     17
      Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986).

                                     10
rationale it is "[t]he discriminatory jury selection process of

this trial" that offends the Constitution and demands reversal.

The majority is also correct that such abuses in the future must be

avoided by the diligence of trial judges.      Nevertheless, "the

integrity of the jury system," a principle underlying the Batson

decision, is not well served by the result we reach today, because

the public trust will be undermined when a convicted criminal can

win a new trial based on his own abuse of the justice system.