                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 12 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30082

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00257-JLR-2

  v.
                                                 MEMORANDUM *
WARREN TAYLOR,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                        Argued and Submitted May 3, 2011
                               Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Warren Taylor appeals from his conviction for conspiracy to distribute

Ectasy asserting that (1) the government violated his rights under the Equal

Protection Clause when it challenged two minority jurors; (2) the district court

violated his rights under the Confrontation Clause when it limited the scope of his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
counsel’s cross-examination of a cooperating witness; and (3) the district court’s

statement to the jury concerning the evidence that would be presented at trial

compromised the jury’s role as the ultimate finder of fact. We affirm.1

      1.   When a defendant alleges a violation of his rights under Batson v

Kentucky, 476 U.S. 79 (1986), we apply a three-part burden shifting test to

determine if the potential juror was challenged on the basis of impermissible

discrimination. United States v. Collins, 551 F.3d 914, 919 (9th Cir. 2009). First,

the defendant “must make a prima facie showing that the challenge was based on

an impermissible ground, such as race.” Id. Second, “if the trial court finds the

defendant has made a prima facie case of discrimination, the burden then shifts to

the prosecution to offer a race-neutral reason for the challenge that relates to the

case”; and third, “if the prosecutor offers a race-neutral explanation, the trial court

must decide whether the defendant has proved the prosecutor’s motive for the

strike was purposeful racial discrimination.” Id., quoting Green v. LaMarque, 532

F.3d 1028, 1030 (9th Cir. 2008) (internal quotation marks omitted).

      Here, assuming that Taylor had made a prima facie showing that the

challenges to Jurors 18 and 23 were based on impermissible grounds, the



      1
             The parties are familiar with the facts, and we repeat them here only
as necessary to explain our decision.

                                           2
prosecutor’s proffered reasons for excusing the jurors were not facially

discriminatory. He stated that he excused Juror 18, who had the appearance of

being Muslim, because she stated that she would probably feel uncomfortable

being tried by twelve persons who looked different from her, and she smiled at

defendant’s counsel after making this statement. The prosecutor noted that he

excused Juror 23, who was of Southeast-Asian heritage, because she had not said

anything during voir dire, and because her “body slips down in her seat . . . [s]he

makes herself small and tiny . . . [and] barely made eye contact.” As to each juror,

the district court ultimately concluded that the prosecutor’s reasons were not

pretexts for discriminatory purposes. Our review of the record shows that the

district court’s determinations are reasonable and they are entitled to deference.

See Felkner v. Jackson, 131 S. Ct.1305, 1307 (2011) (noting that the trial court’s

determination is entitled to “great deference” and should be sustained “unless

clearly erroneous”). The government’s excusing of Jurors 18 and 23 did not

violate Taylor’s rights under the Equal Protection Clause.

      2. Although the district court limited defense counsel’s cross-examination

of cooperating witness Banks, the restriction was limited to the details of one

telephone conversation. Such a limitation on cross-examination is reviewed for

abuse of discretion. United States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007)


                                          3
(en banc) (“A challenge to a trial court's restrictions on the manner or scope of

cross-examination on nonconstitutional grounds is thus reviewed for abuse of

discretion.”). In light of the extensive evidence of Banks’ questionable character

that the defense was allowed to produce, the limitation was not an abuse of

discretion. Moreover, even if the limitation were error, it was harmless in light of

the overwhelming evidence against Taylor. See Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986) (holding that “the constitutionally improper denial of a

defendant’s opportunity to impeach a witness for bias, like other Confrontation

Clause errors, is subject to Chapman harmless-error analysis”).

      3. The district court’s statement that the evidence presented at trial, by both

sides, would be more reliable than whatever a juror might discover on the Internet

was correct, not an abuse of discretion, and did not invade the jury’s province of

evaluating the evidence produced at trial. See Quercia v. United States, 289 U.S.

466, 469 (1933); see also United States v. Sager, 227 F.3d 1138, 1145 (9th Cir.

2000) (“A district court has discretion to comment on the evidence, as long as it

makes clear that the jury must ultimately decide all questions of fact.”).

      Taylor’s conviction is AFFIRMED.




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