USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-1520
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS BERGODERE,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
_________________________
Before
Selya, Cyr, and Stahl, Circuit Judges.
______________
_________________________
David A.F. Lewis for appellant.
________________
Zechariah Chafee, Assistant United States Attorney, with
_________________
whom Sheldon Whitehouse, United States Attorney, was on brief,
__________________
for appellee.
_________________________
November 30, 1994
_________________________
SELYA, Circuit Judge. This appeal raises questions of
SELYA, Circuit Judge.
_____________
first impression in this circuit concerning how courts should
apply the lessons of Batson v. Kentucky, 476 U.S. 79 (1986), and
______ ________
its progeny. After answering those questions, we conclude that
the district court did not err in permitting the government to
eliminate the lone African-American juror by means of a
peremptory challenge. Since appellant's other assignments of
error are equally unavailing, we affirm the judgment below.
I. BACKGROUND
I. BACKGROUND
On March 9, 1993, a team of law enforcement officers
executed a search warrant at the residence of defendant-appellant
Carlos Bergodere in Providence, Rhode Island. When the officers
arrived, only appellant and his wife, Cynthia Eastwood, were on
the premises.
Appellant's apartment consisted of a kitchen, dining
area, living room, and two bedrooms. During the search, the
officers discovered three "browns" of heroin in the kitchen1 and
an operable .9 millimeter Luger pistol, fully loaded, under the
seat cushions of the living room sofa. Several rounds of live
ammunition, not corresponding to the Luger, were found in
appellant's bedroom. The officers arrested appellant and seized
additional quantities of heroin from his person.
In due season, a federal grand jury returned an
indictment charging appellant with possession of a firearm after
____________________
1A "brown" is a common unit of sale in the heroin trade.
One brown comprises 50 glassine packets, each containing a dose
of heroin. A brown has a street value of approximately $500.
2
a previous felony conviction, see 18 U.S.C. 922(g)(1),
___
possession of heroin with intent to distribute, see 21 U.S.C.
___
841(a)(1) & (b)(1)(C), and using a firearm during and in relation
to a drug-trafficking crime, see 18 U.S.C. 924(c)(1).
___
Appellant entered a "not guilty" plea. In time, the court
empaneled a jury. Contrary to the more common federal practice,
the judge permitted the attorneys to conduct the voir dire.
In the course of jury selection, the following colloquy
took place between the prosecutor and a black venireperson,
Robert Goodrum.
Mr. Chafee: Mr. Goodrum, where do you work,
Mr. Chafee:
sir?
Mr. Goodrum: I work in Newport. I'm area
Mr. Goodrum:
director for an adolescent outreach program.
Mr. Chafee: . . . [A]re these young people
Mr. Chafee:
who are having trouble in the community?
Mr. Goodrum: Yes, it varies from kids doing
Mr. Goodrum:
well, to kids in places like this.
* * *
Mr. Chafee: Obviously you have a big heart
Mr. Chafee:
for people in trouble. You're going to be
asked to sit in judgment on somebody. Can
you be fair and impartial to both the
Government and the defendant in this case,
listen to the evidence and call it . . .
according to the law given to you by Judge
Lagueux?
Mr. Goodrum: Well, it will be a struggle but
Mr. Goodrum:
I know I can do it right, yeah.
Later on, defense counsel engaged in a colloquy with
Mr. Goodrum.
Mr. Gillan: . . . Why do you feel it would
Mr. Gillan:
be a struggle for you to sit in judgment on
3
this case?
Mr. Goodrum: I just have problems I guess
Mr. Goodrum:
with adults and drugs as I deal with kids and
drugs.
* * *
Mr. Gillan: And what if an adult is addicted
Mr. Gillan:
to drugs. How does that make you feel?
Mr. Goodrum: . . . I can deal with that. I
Mr. Goodrum:
mean, you know, when I think about people who
might be soliciting I have problems.
Mr. Gillan: People might be soliciting
Mr. Gillan:
children?
Mr. Goodrum: Right.
Mr. Goodrum:
Mr. Gillan: Okay. but if that's not the
Mr. Gillan:
evidence in this case then . . . you won't
have a problem with that?
Mr. Goodrum: Then I wouldn't have a problem
Mr. Goodrum:
with it.
The prosecution dismissed Goodrum from further
service. Appellant objected. The district court upheld the
strike, apparently finding that appellant failed to make a prima
facie showing that the strike was motivated by a race-based
animus. In the process, the judge specifically noted Goodrum's
avowed doubts as to whether he could be an impartial juror.
A jury devoid of black members eventually convicted
appellant on all counts. This appeal followed.
II. THE PEREMPTORY CHALLENGE
II. THE PEREMPTORY CHALLENGE
Appellant's most striking argument concerns the
prosecution's challenge of the juror, Goodrum. We begin by
tackling that matter.
A. The Framework for Inquiry.
A. The Framework for Inquiry.
_________________________
4
The Supreme Court has recognized that in civil and
criminal trials potential jurors, as well as litigants, have an
equal protection right to jury selection procedures that are free
from group stereotypes rooted in, and reflective of, historical
prejudice. See J.E.B. v. Alabama, 114 S. Ct. 1419, 1421 (1994)
___ ______ _______
(finding gender, like race, to be an unconstitutional proxy for
juror competence and impartiality); Powers v. Ohio, 499 U.S. 400,
______ ____
402 (1990) (stating that racial discrimination in the selection
of jurors offends the dignity of persons and the integrity of
courts).
In evaluating an equal protection challenge to a
prosecutor's use of a peremptory strike, a three-part framework
should be employed. See Batson, 476 U.S. at 96-98; United States
___ ______ _____________
v. Perez, ___ F.3d ___, ___ (1st Cir. 1994) [No. 93-1320, slip
_____
op. at 3-4]. First, the defendant must make a prima facie
showing of discrimination in the prosecutor's launching of the
strike. See Batson, 476 U.S. at 96-97. If the defendant
___ ______
fulfills this requirement by establishing, say, a prima facie
case of a racially driven impetus,2 then the prosecutor must
proffer a race-neutral explanation for having challenged the
juror. See id. at 97; see also United States v. Lewis, ___ F.3d
___ ___ ____ ____ _____________ _____
___, ___ (1st Cir. 1994) [No. 93-1819, slip op. at 32]. The
prosecutor's burden is merely a burden of production, not a
burden of persuasion. If the prosecutor complies, then, at the
____________________
2The three-part framework is the same for gender as for
race. See J.E.B., 114 S. Ct. at 1429.
___ ______
5
third and final stage, the district court must decide whether the
defendant has carried the ultimate 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)
___ _________ ________
(discussing Batson); Perez, ___ F.3d at ___ [slip op. at 3-4].
______ _____
In making a Batson challenge, the defendant retains the
______
burden of proof throughout. As part and parcel of this burden,
he must carry the devoir of persuasion regarding the existence of
a prima facie case of race-based discrimination in the jury
selection process. See Batson, 476 U.S. at 96-97. The
___ ______
combination of factors needed to establish a prima facie case are
limned in Chakouian v. Moran, 975 F.2d 931, 933 (1st Cir. 1992).
_________ _____
Initially, the defendant must demonstrate that the prosecution's
challenge was directed at a member of a cognizable racial
group.3 See Batson, 476 U.S. at 96; Chakouian, 975 F.2d at 933.
___ ______ _________
Next, the defendant must show that the challenge was peremptory
rather than for cause, thus bringing into play the Supreme
Court's admonition that "peremptory challenges constitute a jury
selection practice that permits `those to discriminate who are of
a mind to discriminate.'" Batson, 476 U.S. at 96 (quoting Avery
______ _____
v. Georgia, 345 U.S. 559, 562 (1953)). Finally, the defendant
_______
must show circumstances sufficient, when combined with the two
antecedent facts, to raise an inference that the prosecutor
____________________
3The defendant and the challenged juror need not be members
of the same race. See Powers, 499 U.S. at 409-10 (eliminating
___ ______
Batson's "racial identity" requirement); Chakouian, 975 F.2d at
______ _________
934. Thus, the fact that appellant is not himself of African-
American ancestry does not end our inquiry.
6
struck the venireperson on account of race. See id. While the
___ ___
prima facie case requirement is not onerous, neither can it be
taken for granted.
B. Standard of Review.
B. Standard of Review.
__________________
This court has yet to articulate the appropriate
standard against which to test a trial court's ruling that a
defendant has or has not made out a prima facie case in
connection with a Batson challenge. We do so today.
______
A careful reading of Batson convinces us that, although
______
this determination can be characterized as a mixed question of
law and fact, it is fact-sensitive, and, therefore, should be
reviewed under the familiar clear-error standard. See generally
___ _________
In re Howard, 996 F.2d 1320, 1328 (1st Cir. 1993) ("The standard
____________
of review applicable to mixed questions usually depends upon
where they fall along a degree-of-deference continuum: the more
fact-dominated the question, the more likely it is that the
trier's resolution of it will be accepted unless shown to be
clearly erroneous."). Our holding is consistent with the Supreme
Court's expression of confidence that trial judges, experienced
in conducting and supervising voir dire, will likely be able to
identify prima facie cases of discrimination. See Batson, 476
___ ______
U.S. at 97. Our holding is also consistent with the decisions of
the five other courts of appeals that thus far have confronted
the same standard-of-review problem and resolved it in like
manner. See United States v. Vasquez-Lopez, 22 F.3d 900, 901
___ ______________ _____________
(9th Cir.), cert. denied, 115 S. Ct. 239 (1994); United States v.
_____ ______ _____________
7
Branch, 989 F.2d 752, 755 (5th Cir.), cert. denied, 113 S. Ct.
______ _____ ______
3060 (1993); United States v. Casper, 956 F.2d 416, 418 (3d Cir.
_____________ ______
1992); United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990);
_____________ _____
United States v. Grandison, 885 F.2d 143, 146 (4th Cir. 1989),
_____________ _________
cert. denied, 495 U.S. 934 (1990).
_____ ______
C. Analysis.
C. Analysis.
________
We detect no clear error in the district court's
rejection of appellant's proffered prima facie case. Although
the striking of the only juror of a particular race can be
sufficient to ground a permissive inference of discrimination in
certain circumstances, see, e.g., United States v. Roan Eagle,
___ ____ _____________ __________
867 F.2d 436, 441 (8th Cir.), cert. denied, 490 U.S. 1028 (1989),
_____ ______
such a strike does not raise a necessary inference of
discrimination, see Vasquez-Lopez, 22 F.3d at 902. Phrased
___ _____________
another way, the mere fact that the prosecutor challenges the
only juror of a particular race, without more, does not
automatically give rise to an inescapable inference of
discriminatory intent. A defendant who advances a Batson
______
argument ordinarily should "come forward with facts, not just
numbers alone." Moore, 895 F.2d at 485; accord United States v.
_____ ______ _____________
Dawn, 897 F.2d 1444, 1448 (8th Cir.), cert. denied, 498 U.S. 960
____ _____ ______
(1990).
Here, the defendant provided nothing in the way of
either direct or circumstantial proof to buttress the naked
statistic on which he relies. This failure is all the more
glaring because the circumstances attendant to the Goodrum strike
8
point away from an inference of discrimination. This case
involves a single strike, not multiple strikes. The government's
other peremptories were exercised in an unexceptionable manner.
Appellant essayed no proffer showing that either the particular
prosecutor or the prosecutor's office regularly engaged in a
pattern of suspicious strikes. The prosecutor's questions and
statements during voir dire do not suggest racial discrimination,
but, instead, seem to reflect a concern with the prospective
juror's ability to reach a fair and impartial verdict. This is
of considerable importance, as the Court has directed trial
judges in such circumstances to examine "the prosecutor's
questions and statements during voir dire" for signs of
purposeful discrimination. Batson, 476 U.S. at 97.
______
The capstone, of course, is that the colloquy between
the prospective juror and the two lawyers reflects a legitimate,
nondiscriminatory reason why conscientious counsel might desire
to exclude the juror from further service. After all, Goodrum
admitted that it would "be a struggle" to achieve impartiality,
and that he had a "problem" with cases involving "adults and
drugs." The prosecutor, understandably concerned that the
talesman "ha[d] a big heart for people in trouble," had no
obligation either to ignore these comments or to accept at face
value Goodrum's prediction that, in the end, he could put aside
his "problem" and "do it right."
Voir dire represents not only the introduction of
potential jurors to the factual and legal issues to be aired at
9
trial, see Powers, 499 U.S. at 412, but also the lawyers'
___ ______
introduction to the venire. Its core purpose is to provide a
firm foundation for ferreting out bias. A healthy byproduct is
that a careful voir dire eliminates any need to rely on
stereotypes. See J.E.B., 114 S. Ct. at 1429; United States v.
___ ______ _____________
Whitt, 718 F.2d 1494, 1497 (10th Cir. 1983). Withal, the line
_____
between discriminatory and nondiscriminatory strikes is not
always easily drawn. As courts labor to plot it, trial lawyers
are entitled, at a bare minimum, to a bit of breathing room. In
the end, jury selection is not an exact science. Its watchwords
are judgment, flexibility, and discretion. Although attorneys
cannot be permitted to exercise peremptory challenges based on
race or gender, they are not prohibited altogether from striking
venirepersons of a particular race or gender.
We will not paint the lily. Evaluative judgments
concerning juror suitability are often made partially in response
to nuance, demeanor, body language, and a host of kindred
considerations. Thus, the trial judge, who sees and hears both
the prospective juror and the opposing attorneys in action, is in
the best position to pass judgment on counsel's motives.
Recognizing that we ought to cede considerable deference to a
district judge who observes the voir dire at first hand, see
___
Batson, 476 U.S. at 97, we refuse to second-guess Judge Lagueux's
______
implicit finding that the prosecutor struck Goodrum because of
doubts about Goodrum's "big heart" and impending "struggle,"
rather than for some evil purpose. It follows that the court did
10
not err in finding that appellant failed to establish a prima
facie case of race-based discrimination in the prosecution's use
of its peremptory challenges.4
III. OTHER ASSIGNMENTS OF ERROR
III. OTHER ASSIGNMENTS OF ERROR
Appellant advances three additional assignments of
error. We consider two of them, both of which relate to matters
of evidentiary sufficiency.5 Appellant's final assignment of
error raises the boggart of ineffective assistance of trial
counsel. This claim was not asserted in the district court and
is not properly before us on direct appeal. See United States v.
___ _____________
Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (holding that absent
____
extraordinary circumstances, fact-specific claims asserting
ineffective assistance of counsel are not cognizable on direct
appeal; collecting cases to like effect), cert. denied, 114 S.
_____ ______
Ct. 1839 (1994).
A. Standard of Review.
A. Standard of Review.
__________________
The path that this court traverses to review
____________________
4Because appellant failed to make the requisite first-stage
showing, the burden never shifted to the prosecutor to articulate
a race-neutral explanation for the strike. Even so, it might
have been wise for the judge to have asked the prosecutor to
proffer an explicit statement of the basis for the strike, if
only to confirm the judge's intuition and flesh out the record on
appeal. See United States v. Johnson, 873 F.2d 1137, 1140 n.3
___ _____________ _______
(8th Cir. 1989), cert. denied, 498 U.S. 924 (1990).
_____ ______
5The jury convicted appellant on three counts, namely,
possession of a firearm after a previous felony conviction (count
1), possession of heroin with intent to distribute (count 2), and
using a firearm in relation to a drug-trafficking crime (count
3). In the district court, appellant unsuccessfully sought
judgment of acquittal on all three counts. On appeal, however,
he challenges the sufficiency of the evidence only in regard to
counts 2 and 3.
11
sufficiency challenges is well worn. We inspect the evidence in
the light most friendly to the verdict, indulging all reasonable
inferences in the verdict's favor and resolving all credibility
disputes in the same way. We then determine whether a rational
jury could find guilt beyond a reasonable doubt. See, e.g.,
___ ____
United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993);
_____________ _________
United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir. 1991);
_____________ _____
United States v. Boylan, 898 F.2d 230, 243 (1st Cir.), cert.
______________ ______ _____
denied, 498 U.S. 849 (1990). The conviction stands so long as
______
the guilty verdict comports with "a plausible rendition of the
record." United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.
_____________ _____
1992), cert. denied, 113 S. Ct. 1005 (1993).
_____ ______
C. Count 2.
C. Count 2.
_______
To sustain a conviction under 21 U.S.C. 841(a)(1),
the prosecution must establish beyond a reasonable doubt that the
defendant knowingly or intentionally possessed a controlled
substance with intent to distribute it. See, e.g., United States
___ ____ _____________
v. De Jesus-Rios, 990 F.2d 672, 680 (1st Cir. 1993). The element
_____________
of possession can be satisfied by evidence that demonstrates
either actual or constructive possession. See United States v.
___ _____________
Gomez-Vallamizar, 981 F.2d 621, 624 (1st Cir. 1992).
________________
Appellant does not seriously contest the element of
possession, but, instead, concentrates his fire on the element of
specific intent. He alleges that the evidence, taken most
congenially to the government's case, merely shows that he
possessed heroin (say, for personal consumption), not that he
12
intended to distribute it. We read the record differently. An
intent to distribute drugs does not demand proof by direct
evidence but can be made manifest through circumstantial evidence
alone. See Echeverri, 982 F.2d at 678; United States v.
___ _________ ______________
Desmarais, 938 F.2d 347, 352 (1st Cir. 1991). In this
_________
connection, we have long recognized that factors such as the
quantity and purity of the drugs confiscated by the authorities
can support an inference of intent to distribute. See, e.g.,
___ ____
Echeverri, 982 F.2d at 678; United States v. Ocampo-Guarin, 968
_________ _____________ _____________
F.2d 1406, 1410 (1st Cir. 1992); United States v. Batista-
_____________ ________
Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991).
_______
In this case, the evidence easily sustained a finding
of intent to distribute. The officers seized three browns from
appellant's kitchen and eleven glassines from his pocket. Thus,
both the quantity of heroin and the method of packaging militated
toward a conclusion that appellant was himself a dealer. The
total value of the heroin seized over $1,500 suggested the
same conclusion. Furthermore, an experienced detective testified
that, in his expert opinion, the quantity, packaging, and value
of the heroin indicated that it was intended for distribution.
To be sure, this evidence was not ironclad. As
appellant notes, it did not rule out the possibility that he
___________
possessed the heroin for personal consumption. But the law
requires only that the evidence, fairly viewed, be capable of
supporting the jury's verdict, not that it exclude every
hypothesis consistent with a claim of innocence. See Echeverri,
___ _________
13
982 F.2d at 678; Boylan, 898 F.2d at 243. Accordingly, we find
______
no infirmity in appellant's conviction for possession of heroin
with intent to distribute.
D. Count 3.
D. Count 3.
_______
The final portion of appellant's sufficiency challenge
concerns the charged violation of 18 U.S.C. 924(c)(1). It is
well settled that, under this statute, the emphasis is on a
firearm's availability for use, regardless of whether the weapon
is actually used in the commission of a drug-trafficking crime.
See United States v. Paulino, 13 F.3d 20, 26 (1st Cir. 1994);
___ ______________ _______
United States v. Hadfield, 918 F.2d 987, 998 (1st Cir. 1990)
______________ ________
(collecting cases), cert. denied, 500 U.S. 936 (1991). The
_____ ______
instant case falls squarely within the boundaries established in
Hadfield, a case in which we stated that, under section 924(c),
________
the principal inquiry should focus on the presence or absence of
a "facilitative nexus" between the charged offense and the
discovered firearm. See Hadfield, 918 F.2d at 998. In applying
___ ________
Hadfield, an inquiring court's primary concern is not whether the
________
gun was "instantly available" or "exclusively dedicated to the
narcotics trade," but whether it was "available for use" in that
regard. Id.; accord United States v. Castro-Lara, 970 F.2d 976,
___ ______ ______________ ___________
983 (1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993). Under
_____ ______
this test, if an operable firearm is found in close proximity to
a room or rooms in which drug distribution, processing, or
storage occurs, then the factfinder ordinarily is free to
conclude that a defendant having evident ties to the premises and
14
the drugs knew about the gun and intended it to be available for
use in relation to the narcotics enterprise. See Hadfield, 918
___ ________
F.2d at 998.
The authorities arrested appellant in his apartment.
From the quantity of heroin found on the premises the jury could
reasonably conclude that the dwelling served as a storehouse for
at least some of appellant's heroin or, perhaps, a retail sales
outlet. See, e.g, Echeverri, 982 F.2d at 678. As a lessee of
___ ___ _________
the apartment and a person residing there, appellant had a
significant degree of control over the contents of the premises.
See id. Within wide limits, he had the ability to determine who
___ ___
and what could enter his place of abode. Officers located the
weapon under the seat cushions of the living room couch
proximate to the drugs and easily accessible to an individual who
knew its whereabouts. Of pivotal importance, the gun was fully
loaded. The police found additional ammunition in appellant's
bedroom which, although, of a different caliber, indicated that
appellant was no stranger to firearms. On this basis, a rational
juror surely could conclude that appellant kept a loaded gun
handy to protect his heroin supply. As we have said before,
"[t]he law is not so struthious as to compel a criminal jury to
ignore that which is perfectly obvious." United States v.
______________
Ingraham, 832 F.2d 229, 240 (1st Cir. 1987), cert. denied, 486
________ _____ ______
U.S. 1009 (1988).
We recognize that the government's case was not open-
and-shut. For example, the proof at trial established that
15
appellant's landlord, Felipe Moronto, actually owned the pistol,
and appellant makes much of this fact. We agree that this datum
is relevant but it is hardly determinative. What matters is
that the totality of the evidence suffices to permit and in our
estimation to support quite amply a finding that a facilitative
nexus existed between the weapon and appellant's drug-
distribution activities. See, e.g., United States v. Reyes-
___ ____ ______________ ______
Mercado, 22 F.3d 363, 367 (1st Cir. 1994); Paulino, 13 F.3d at
_______ _______
26; Castro-Lara, 970 F.2d at 983. Therefore, the claim of
___________
evidentiary insufficiency fails.
IV. CONCLUSION
IV. CONCLUSION
We need go no further. For aught that appears,
appellant was fairly tried and justly convicted before a lawfully
constituted jury. For the reasons stated herein, we affirm the
judgment of conviction, without prejudice, however, to
appellant's right to pursue his ineffective assistance of counsel
claim at a proper time and in a proper venue.
It is so ordered.
It is so ordered.
________________
16
