United States v. Perez

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1320

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO PEREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Torruella, Chief Judge,

Coffin and Campbell, Senior Circuit Judges.

Raymond E. Gillespie for appellant.

Frank A. Libby, Jr., Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.

October 7, 1994

COFFIN, Senior Circuit Judge. This is an appeal under

Batson v. Kentucky, 476 U.S. 79 (1986), from the trial court's

allowance of a prosecutor's peremptory challenge to a Spanish

surnamed juror. Finding that it was not clearly erroneous for

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

racially motivated, we affirm the judgment of conviction.

During jury selection in a drug conspiracy prosecution

against appellant and several co-defendants, all bearing Spanish

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

Santiago. At sidebar the court questioned several of the

prospective jurors and excused three. Then the government moved

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

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

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

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

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

THE COURT: Therefore?

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

MR. GILLESPIE: Join in the objection.

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

MR. KERNER: Outrageous, your Honor.

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

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

MR. LIBBY: Can you give us a second?

[Pause.]

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

THE COURT: I understand. The defendants have any?

MR. BROWN: Just a few, your Honor.

Jury selection then continued, the government making one

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

making several. After making the defendants' final collective

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

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

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

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

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

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

objection, sworn.

Discussion

A three part test is used to evaluate equal protection

challenges to a prosecutor's exercise of peremptory strikes of

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

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

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

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

burden shifts to the prosecutor to articulate a race-neutral

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explanation for the strike. Finally, if the prosecutor

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

with deciding whether the defendant has carried his burden of

proving that the strike constituted purposeful discrimination on

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

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

question whether appellant had made a prima facie showing of

intentional discrimination, inasmuch as the prosecutor offered

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

understand," and its upholding of the challenged strike,

effectively "ruled on the ultimate question of intentional

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

prima facie showing of discrimination was made is therefore moot.

The next step of the inquiry is whether the prosecutor met

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

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

even though it does not produce uniform results across racial

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

conclusive in the preliminary race-neutrality step of the Batson

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

is

based on something other than the race of the juror.
At this step of the inquiry, the issue is the facial
validity of the prosecutor's explanation. Unless a
discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed race
neutral.

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

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

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

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

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

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

of the juror. Second, racially discriminatory intent is not

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

of suspicion of possible exposure to drugs during employment at a

city housing authority. Said differently, this same concern

might motivate exercise of a peremptory challenge to a non-

Hispanic potential juror as well.1

We note that this explanation certainly might have been

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

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

city exposure to drugs" is quite susceptible to impermissible use

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

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

this explanation falls within the Supreme Court's definition of

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

applied generally, it may serve to exclude a disproportionate

number of minority jurors, is used only "as circumstantial

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

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

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

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

Ct. 920 (1994).

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

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

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

the trial court to decide the ultimate question of whether the

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

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

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

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

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

determination turns upon an assessment of the credibility of the

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

will be the demeanor of the attorney who exercises the

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

the prosecutor's state of mind based upon demeanor and

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

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

trial court's decision on the ultimate issue of discriminatory

intent represents a finding of fact of the sort accorded great

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

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

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

and the trial court elicited from the prosecutor his facially

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

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defendants, including appellant, then joined in the objection.

After conferring, government prosecutors reiterated that the

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

explanation already given was sufficient, stated that they would

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

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

exercise any of their remaining peremptory challenges.

In effect, therefore, the court denied defendants'

challenge, presumably crediting the prosecution's stated

explanation and finding that the strike was not impermissibly

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

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

assess the prosecutor's demeanor at the moment the explanation

was given, evidently believed that the stated reason had some

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

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

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

did not commit clear error in choosing to believe the reasons

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

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

matter district courts should articulate the bases of their

factual findings related to Batson challenges more clearly than

occurred here. Specifically, especially in the face of continued

disagreement by defense counsel, a district court should state

whether it finds the proffered reason for a challenged strike to

be facially race neutral or inherently discriminatory and why it

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chooses to credit or discredit the given explanation. Indicating

these findings on the record has several salutary effects.

First, it fosters confidence in the administration of justice

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

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

the trial court has indeed made the crucial credibility

determination that is afforded such great respect on appeal.

The fact that no such express findings were made here does

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

our Circuit has announced the desirability of express Batson fact

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

struck without making express fact findings, just as in United

States v. Pulgarin, 955 F.2d 1, 1 (1st Cir. 1992), "[t]here was

no further comment from defense counsel by way of elaboration of

his thought, objection, dissatisfaction with the prosecutor's

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

defense counsel felt that the trial court had failed to actually

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

erroneous judgment, it should have pointed this out. Counsel

could have explained why the prosecutor's rationale was

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

credited. The prosecutor then could have elaborated his

reasons2 and the court presumably would have expressly made the

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

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above two findings. Since defendant failed to pursue the matter

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

detailed explanation by the trial court in this case would make

little sense.

Affirmed.

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

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