Filed: Sep. 23, 2016
Latest Update: Mar. 03, 2020
Summary: 15-2468 United States v. Barro UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@
Summary: 15-2468 United States v. Barro UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@)..
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15‐2468
United States v. Barro
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States Courthouse, 40
Foley Square, in the City of New York, on the 23rd day of September, two
thousand sixteen.
PRESENT: RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 15‐2468
SHERMAN BARRO,
Defendant‐Appellant.
_____________________________________
FOR APPELLANT: ALLEGRA GLASHAUSSER, Federal Defenders
of New York, Inc., New York, NY.
FOR APPELLEE: PATRICK T. HEIN, Assistant United States
Attorney (Jo Ann M. Navikas, Assistant United
States Attorney, on the brief), for Robert L. Capers,
United States Attorney for the Eastern District of
New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Garaufis, J.; Pollack, J.; Korman, J.).1
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is
AFFIRMED.
Defendant‐Appellant Sherman Barro appeals from a judgment entered on
July 22, 2015, in the United States District Court for the Eastern District of New
York (Korman, J.), convicting him, after a jury trial, of importing cocaine into the
United States, in violation of 21 U.S.C. § 952(a), and of possessing cocaine with
the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We assume the
parties’ familiarity with the underlying facts, the procedural history, and the
issues presented for review.
1 Judge Garaufis presided over the Speedy Trial Act motion, Judge Pollack presided
over voir dire, and Judge Korman presided over the trial and sentencing.
2
“The determination of whether to dismiss an indictment with or without
prejudice is committed to the discretion of the district court.” United States v.
Bert, 814 F.3d 70, 77 (2d Cir. 2016) (alterations and internal quotation marks
omitted). Factors considered in this determination are (1) the seriousness of the
offense, (2) the facts and circumstances of the case which led to the dismissal, (3)
the impact of a reprosecution on the administration of the Speedy Trial Act and
the administration of justice, and (4) prejudice to the defendant. 18 U.S.C.
§ 3162(a)(2). “Where the crime charged is serious, the sanction of dismissal with
prejudice should ordinarily be imposed only for serious delay.” Bert, 814 F.3d at
79 (alterations and internal quotation marks omitted). The seriousness of the
delay, however, is “not a standalone factor,” but rather “a component of both the
‘facts and circumstances’ factor and the ‘prejudice’ factor.” Id. at 79–80 (footnote
omitted).
Barro argues that the District Court erred in dismissing the indictment
against him without prejudice for a violation of the Speedy Trial Act. Barro’s
challenge must fail. The District Court thoroughly addressed each of the factors
set forth in § 3162, as supplemented by Supreme Court and Second Circuit
precedent. The District Court concluded that the seriousness of the offense
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alleged against Barro was high, reprosecution would serve the interests of justice
and not unfairly prejudice the defendant, and that the appropriate remedy was
accordingly to dismiss the indictment without prejudice and allow the
government to re‐file. We perceive no error that would warrant disturbing the
District Court’s careful analysis. See id. at 79 (“We will not lightly disturb ‘the
district court’s judgment of how opposing considerations balance,’ as long as all
‘the statutory factors are properly considered, and supporting factual findings
are not clearly in error.’” (quoting United States v. Taylor, 487 U.S. 326, 337
(1988))). Nor does this Court’s decision in Bert, issued after the District Court’s
decision in the present case, compel a different result.
Barro also contends that the Government’s peremptory challenge of a
black potential juror with ties to Jamaica was unconstitutionally discriminatory
under the rule of Batson v. Kentucky, 476 U.S. 79 (1986). At trial, Barro objected to
the challenge as based on race, citing the Government’s strikes of two other black
female venire members as part of a pattern. The Government asserted racially‐
neutral bases for the other two strikes, which the District Court accepted, and
argued that the challenge now in question was based not on race, but on the fact
that, in a case alleging importation of narcotics from Jamaica and a defense that
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the drugs had been planted in the defendant’s suitcase, it was concerned that the
juror had “connections to Jamaica,” including that “[h]er two kids live in
Jamaica.” App. 106. Defense counsel did not then argue that if that were so, the
challenge would be improperly based on national origin, but instead contended
that Jamaican origin was in effect a proxy for race, presumably due to the fact
that the population of Jamaica is overwhelmingly black. See App. 108 (“She’s
from Jamaica. . . . I think that’s almost part of her race.”). The District Court
evidently so understood the argument, noting that “I don’t see it as a racial
thing,” and accepted the Government’s reason as race‐neutral, because “being
from Jamaica, she may very well be familiar with the issues and the problems
that confront people living there and coming to the United States.” App. 109–10.
The District Court later sustained a Batson challenge to the Government’s strike
of yet another black woman on the panel, leading the Government to withdraw
that challenge.
To the extent that Barro continued to press the argument that the strike
was based on race, a presiding judge’s determination as to the adequacy of a
proffered explanation of a challenge is essentially a factual finding that is entitled
to “great deference.” Hernandez v. New York, 500 U.S. 352, 364 (1991). We cannot
5
conclude that the trial court’s finding that the challenge was not based on race
was clearly erroneous.
To the extent that Barro now argues that the challenge was nonetheless
unlawful discrimination based on national origin, we have previously noted that
this Court has not yet decided “whether or when national origin discrimination
is a cognizable group for Batson protection.” Rodriguez v. Shriver, 392 F.3d 505,
511 n.9 (2d Cir. 2004). Even assuming arguendo that it is, it is not clear that a
rationale such as that noted by the District Court here—that a venire member’s
familiarity with conditions in a particular country may be relevant to the case at
hand—would constitute unlawful discrimination based on national origin,
particularly where, as here, the Government’s proffered additional bases for the
peremptory strike were that the juror’s “two kids live in Jamaica,” and that she
“ha[d] issues with memory” after “paus[ing] for a while and it seemed like she
couldn’t remember” “what her husband used to do.” App. 106. Given the trial
court’s acceptance of the genuineness of the Government’s proffered explanation
and the great deference such a factual finding is to be accorded on appeal, see
Hernandez, 500 U.S. at 353, we cannot say that the District Court clearly erred in
6
crediting this national‐origin‐neutral explanation, particularly where, as here,
defense counsel did not press this basis below.
Accordingly, we AFFIRM the judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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