USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1320
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO PEREZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin and Campbell, Senior Circuit Judges.
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Raymond E. Gillespie for appellant.
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Frank A. Libby, Jr., Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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October 7, 1994
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COFFIN, Senior Circuit Judge. This is an appeal under
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Batson v. Kentucky, 476 U.S. 79 (1986), from the trial court's
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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
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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
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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-
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59 (1991) (citing Batson). We pass, without analysis, the
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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
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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
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conclusive in the preliminary race-neutrality step of the Batson
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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
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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
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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
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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
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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.
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Uwaezhoke, 995 F.2d 388, 393 (3d Cir. 1993), cert. denied, 114 S.
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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.
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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
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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
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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
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finding only if it is clearly erroneous. Id. at 369.
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Here, appellant's co-defendant raised the Batson challenge
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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
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did not commit clear error in choosing to believe the reasons
given by the prosecutor." Hernandez, 350 U.S. at 372.
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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
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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
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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
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findings. Moreover, after the court allowed Ms. Santiago to be
struck without making express fact findings, just as in United
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States v. Pulgarin, 955 F.2d 1, 1 (1st Cir. 1992), "[t]here was
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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
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"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
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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.
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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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