                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAR 15 2002
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 01-2075
v.                                                (D.C. No. CR-00-873-JP)
                                                  (District of New Mexico)
JUAN MARTÍN SANCHEZ-MATA,

          Defendant - Appellant.




                              ORDER AND JUDGMENT *


Before MURPHY, ALARCON, ** and ANDERSON, Circuit Judges.



      In this direct criminal appeal, the only issue before the court is whether the

district court erred in denying the defendant’s Batson claim. See Batson v.

Kentucky, 476 U.S. 79 (1986). Exercising jurisdiction under 28 U.S.C. § 1291,

this court affirms.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       The Honorable Arthur L. Alarcon, Circuit Judge, United States Court of
      **

Appeals for the Ninth Circuit, sitting by designation.
      The facts in this case are undisputed. On December 5, 1999, border patrol

authorities questioned defendant Juan Martín Sanchez-Mata at the checkpoint on

Highway 54 near Orogrande, New Mexico. Upon further investigation, agents

arrested Sanchez-Mata after discovering a large quantity of marijuana in the

vehicle he was driving.

      A federal grand jury sitting in the United States District Court for the

District of New Mexico returned a one-count indictment against Sanchez-Mata for

possession with the intent to distribute marijuana, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(D), and 18 U.S.C. § 2. Sanchez-Mata’s first trial was declared a

mistrial after the jury was unable to reach a verdict. On retrial, a jury found him

guilty. Sanchez-Mata received a sentence of forty-one months’ imprisonment and

two years of supervised release.

      During the voir dire of the venire pool at Sanchez-Mata’s second trial, the

government exercised its peremptory challenges to strike four venirepersons. Of

those four, venirepersons Guzman, Ortega, and Garcia were Hispanic, and Mance

was African-American. Sanchez-Mata made a timely Batson objection after the

jury had been empaneled but before they were sworn in. The government then

explained the reasons for peremptorily striking each of the four venirepersons.

The government stated that Guzman, Ortega, and Mance had previously served on

juries which had returned not guilty verdicts. The government further offered that


                                         -2-
Garcia and Guzman had previously served as jurors in a case in which the judge

directed an acquittal and spoke privately to jurors without counsel present.

Moreover, the government explained that Ortega had expressed problems with

immigration law and its enforcement during voir dire in another trial.

      The district court concluded that Sanchez-Mata had not made a prima facie

showing of purposeful racial discrimination. It further concluded that, even if

Sanchez-Mata had met his prima facie burden, the government’s explanations for

striking the four venirepersons were racially neutral. The district court then

concluded that the four venirepersons had been stricken for racially neutral

reasons and added that “other members of the Hispanic race and culture have been

left on the jury, and the government did not exercise its right to excuse them

peremptorily. So with that, the Batson challenge is refused.”

      Sanchez-Mata filed a timely appeal, raising only the district court’s denial

of his Batson claim. 1


      1
        Originally, Sanchez-Mata also alleged that the district court failed to
comply with the Court Reporter’s Act by failing to ensure that a portion of the
Batson hearing was recorded. See 28 U.S.C. § 753(b). The parties agree that a
portion of recorded hearing was not originally transcribed. As the appellant,
however, Sanchez-Mata had the duty to provide a transcript of all pertinent
portions of the hearing. See Fed. R. App. P. 10; 10th Cir. R. 10.1(A)(1). The
record does not indicate that Sanchez-Mata attempted to obtain the missing
portion of the transcript or otherwise prepare a statement from the appellant’s
recollection. See Fed. R. App. P. 10(c). In its supplemental appendix, the
government provides the missing portion of the transcript, which has been
certified by the transcribing court reporter. Because Sanchez-Mata does not

                                         -3-
      In analyzing the district court’s disposition of a Batson claim, this court

reviews de novo the proffered racially neutral explanations for peremptory

challenges. 2 See United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir. 1994).

We review for clear error the district court’s ultimate factual finding that there

was no intentional discrimination. See id.

      In Batson, the Supreme Court held that venirepersons cannot be stricken

from a jury solely because of their race or on the assumption that jurors of a

particular race will be unable to impartially consider the case against the

defendant. See United States v. Bedonie, 913 F.2d 782, 794 (10th Cir. 1990)

(citing Batson, 476 U.S. at 89). The Batson court enunciated a three-step process

to determine whether the defendant’s equal protection rights were violated. See

Batson, 476 U.S. at 96-98.

      The first step is for the defendant to make a prima facie showing that the

peremptory strikes were discriminatory. See Purkett v. Elem, 514 U.S. 765, 767

(1995) (per curiam). To establish a prima facie case of intentional discrimination,

the defendant must show that the prosecutor has exercised peremptory challenges

to remove minority venire members as well as facts and relevant circumstances



challenge the accuracy or completeness of the transcription, this court deems the
issue conceded.
      2
       While the Batson claim in this case is directed at multiple peremptory
challenges, the analysis would be the same for a single challenge.

                                         -4-
which raise an inference that the government used its peremptory challenges to

exclude venirepersons on account of their race. Cf. Bedonie, 913 F.2d at 794. 3

This court has noted that such factors could include the disproportionate impact

of peremptory strikes on minority venirepersons, a pattern of strikes against jurors

of a particular race, and the prosecutor’s questioning and statements during voir

dire. United States v. Esparsen, 930 F.2d 1461, 1465 (10th Cir. 1991). At this

stage, the party making the Batson claim “is entitled to rely on the fact . . . that

peremptory challenges constitute a jury selection practice that permits those to

discriminate who are of a mind to discriminate.” Bedonie, 930 F.2d at 794 n.13

(quoting Batson, 476 U.S. at 96) (internal quotation marks omitted).

      Once the defendant makes a prima facie showing, the burden shifts to the

government to come forward with a racially neutral explanation for its peremptory

challenges. See id. at 794. This step “does not demand an explanation that is

persuasive, or even plausible.” Elem, 514 U.S. at 767-68. Rather, the reviewing

court looks to the facial validity of the prosecutor’s explanation. Id. at 768.

“Unless a discriminatory intent is inherent in the prosecutor’s explanation, the



      3
        Batson had previously required that the defendant be a member of a
cognizable racial group. See Batson v. Kentucky, 476 U.S. 79, 96 (1986). The
Supreme Court, however, has since held that “a criminal defendant may object to
race-based exclusions of jurors effected through peremptory challenges whether
or not the defendant and the excluded juror share the same races.” Powers v.
Ohio, 499 U.S. 399, 402 (1991).

                                          -5-
reason offered will be deemed race neutral.” Id. (quoting Hernandez v. New York,

500 U.S. 352, 360 (1991) (plurality opinion)). The Supreme Court has

emphasized that a racially neutral reason is legitimate so long as it does not deny

equal protection. See id. at 769.

      The final step is for the trial court to determine whether the opponent of the

strike has proved purposeful racial discrimination. See id. at 768. It is only at

this step that the persuasiveness of the government’s proffered explanation

becomes relevant, and the district court may properly reject implausible or

fantastic justifications as pretexts for purposeful discrimination. See id. While a

Batson claim involves a three-step process, the burden of persuasion always

remains with the party opposing a peremptory challenge. See id.

      This court has stated that review of a prima facie showing becomes moot

whenever the prosecutor offers a racially neutral explanation and the district court

rules on the ultimate factual issue of whether the prosecutor intentionally

discriminated. See United States v. Johnson, 941 F.2d 1102, 1108 (10th Cir.

1991) (citing Hernandez, 500 U.S. at 359). In this case, review of the first

inquiry is unnecessary because the government gave its explanations of the

peremptory challenges and the district court made a finding that the government’s

strikes were not racially motivated.




                                         -6-
      At the second step of the Batson rubric, Sanchez-Mata apparently concedes

that the government’s proffered explanations for striking the four minority

venirepersons were racially neutral. Thus, Sanchez-Mata’s sole argument is that

the district court erred at the third step of the Batson claim, i.e., a determination

whether the defendant has demonstrated that the government’s justifications were

pretextual. He claims that the district court erred at this final step by ruling in a

summary fashion and failing to address each of the reasons articulated by the

prosecutor.

      The Supreme Court has emphasized that at the final step, the trial court’s

determination of intentional discrimination turns on its evaluation of the

prosecutor’s credibility. See Hernandez, 500 U.S. at 365. In most peremptory

challenge inquiries,


      the decisive question will be whether counsel’s race-neutral
      explanation for a peremptory challenge should be believed. There
      will seldom be much evidence bearing on that issue, and the best
      evidence often will be the demeanor of the attorney who exercises
      the challenge. As with the state of mind of a juror, evaluation of the
      prosecutor’s state of mind based on demeanor and credibility lies
      peculiarly within a trial judge’s province.


Id. (quotation omitted); see also United States v. Kunzman, 54 F.3d 1522, 1529

(10th Cir. 1995). Here, the district court chose to credit the prosecutor’s racially

neutral explanations for striking the four venirepersons.



                                           -7-
      Given the broad deference to the district court’s determinations of

credibility, this court has never held, and does not hold today, that a district court

must explicitly state its credibility determinations on the record for each proffered

explanation. But see Galarza v. Keane, 252 F.3d 630, 636, 639 (2d Cir. 2001). 4

Moreover, there is no suggestion in the record that the district court conducted the

Batson analysis with undue haste or any procedural impropriety, as the district

court apparently did in United States v. Stavroulaksis, 952 F.2d 686, 696 (2d Cir.

1992) (noting that the district court may have denied defense counsel the

opportunity to articulate a prima facie case under Batson but affirming the district

court’s denial of defendant’s Batson challenge).

      Finally, Sanchez-Mata argues that a trial court is not bound to accept the

government’s facially neutral reasons which are unsupported by the record. In

support of this proposition, he cites Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th



      4
        For similar reasons, this court rejects Sanchez-Mata’s argument that the
district court did not independently verify the veracity of the government’s
rationales for striking the four venirepersons. Although it is true that none of the
government’s explanations are verified by the record, it appears that the
government’s knowledge about the stricken venirepersons is based on the practice
in New Mexico requiring potential jurors to serve long jury duty terms. The
record does reveal that many of the venirepersons in Sanchez-Mata’s trial,
including those the government peremptorily challenged, had previously served in
cases which were tried by the prosecutors in this case.
       As the party who carries the burden of persuasion, Sanchez-Mata does not
argue that the government’s explanations are disingenuous or untrue. In any case,
whether the district court believes the government’s proffered reasons is based on
its credibility determinations.

                                          -8-
Cir. 1993). In Johnson, however, the record included strong indications that the

government’s racially neutral explanations were pretextual. Id. at 1329-30. No

such indications, however, are present in this case.

      After a thorough review of the record, this court concludes that the district

court’s finding of no intentional discrimination was not clearly erroneous. Our

conclusion is strengthened by the district court’s uncontested finding that several

Hispanic venirepersons were empaneled, even though the government had not

exhausted its peremptory challenges. See United States v. Hartsfield, 976 F.2d

1349, 1356 (10th Cir. 1992).

      Accordingly, the district court’s denial of Sanchez-Mata’s Batson claim is

AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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