          United States Court of Appeals
                     For the First Circuit

No. 13-1575

                         UNITED STATES,

                            Appellee,

                               v.

                       SHARON KAY BOWLES,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
                   Souter,* Associate Justice,
                    and Selya, Circuit Judge.


     Edward J. McCormick, III for appellant.
     Paul G. Levenson, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, and Lori J. Holik,
Assistant United States Attorney, were on brief, for appellee.


                           May 7, 2014




     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
             SOUTER, Associate Justice.            Sharon Bowles appeals her

conviction after jury trial on five counts of theft of government

funds, in violation of 18 U.S.C. § 641.              We affirm.

                                        I

             Bowles was found guilty of fraudulently collecting a

total of $77,379 in federal civil service retirement survivor

annuity payments made in 2005 through 2009 and intended for her

mother, Ann Bowles.        As the surviving spouse of a civil service

employee, Ann Bowles had been entitled to a monthly annuity that

should have stopped after she died in 2004.               After getting notice

of her death from the Social Security Administration in January

2005, the United States Office of Personnel Management (OPM) sent

a verification form to Ann Bowles’s old mailing address, which had

been and remained Sharon Bowles’s as well.                The form was returned

to OPM signed "Ann M. Bowles," with a notation falsely indicating

that Ann Bowles was still alive and eligible for the monthly

payments. Twice again, in August 2005 and September 2009, the same

sequence ensued:       OPM sent an address verification form to Sharon

Bowles’s address, and the form was returned with the false notation

that   Ann    Bowles    was   a   living     annuitant.        Based   on   this

misinformation, OPM continued to send monthly checks to Ann Bowles,

each   of    which   was   negotiated       with    the    purported   signature

endorsement of “Ann M. Bowles” on the back.                 Some of the checks

also bore the spurious signature of Sharon Bowles’s deceased


                                     -2-
father, some included the signature of Sharon Bowles, and some

included all three. In September 2007, Sharon Bowles gave Citizens

Bank a signed form (including the supposed signature of "Ann M.

Bowles") with the effect of adding her mother’s name as that of a

joint owner on her personal bank account.       Thereafter, the monthly

annuity payments were deposited into this account, at first by

paper check and then by electronic transfer.

           The jury convicted Bowles on all counts.            The district

court sentenced her to time served plus 30 days of incarceration

and ordered her to pay $77,379 in restitution.        Bowles raises four

claims of error.

                                    II

           She first contends that the district court erred in

disallowing her peremptory challenge to a member of the venire and

in seating the challenged individual on the jury.             We review the

district court’s finding that counsel’s challenge was motivated by

the prospective juror’s race, in violation of Batson v. Kentucky,

476 U.S. 79 (1986), for “clear error.” United States v. Bergodere,

40 F.3d 512, 516 (1st Cir. 1994).

           At   voir   dire,   Bowles’s   counsel   raised    a    peremptory

challenge to strike “Juror Number 5, Ms. Tran.”               The following

exchange ensued:

     The   Court:   Ms. Tran is Asian-American.              Why   are   you
                     challenging her?



                                   -3-
     [Counsel]: I’m excusing her because--it has nothing to do
                with the fact she’s Asian American.
     The Court: Why are you challenging her?
     [Counsel]: I don’t like her.
     The Court: Why?   That’s not good enough.
     [Counsel]: Her age.
     The Court: Well, are you going to challenge the forelady?
     [Counsel]: No?
     The Court:   That’s unacceptable.   She’s seated.

App. 240-241.

          Prior to this colloquy, there was nothing in the record

apart from the strike to indicate that defense counsel’s peremptory

strike was motivated by race.    This suggests that the district

court’s sua sponte initiation of a Batson enquiry into counsel’s

motivations was in error, “reflect[ing] a good faith, if arguably

overzealous, effort to enforce the antidiscrimination requirements

of [the Supreme Court’s] Batson-related precedents,” Rivera v.

Illinois, 556 U.S. 148, 160 (2009); see also Johnson v. California,

545 U.S. 162, 168 (2005) (prima facie case that a party is

exercising its peremptory challenges in a discriminatory manner is

established “by showing that the totality of the relevant facts

gives rise to an inference of discriminatory purpose.”).1
     1
      In recognition of the fact that “the trial judge is in the
best position to evaluate context, nuance, and the demeanor of the
prospective jurors and the attorneys,” “a trial judge’s Batson
findings are given substantial weight.” Caldwell v. Maloney, 159
F.3d 639, 649 (1st Cir. 1998). Here, however, appellate review is
hampered by the lack of express factual findings in the record with
regard to why the district court initiated the Batson enquiry and

                                -4-
          That said, counsel’s responses to the court do raise the

scent of possible pretext.      While both of defense counsel’s

proffered reasons for seeking to exclude Ms. Tran were race-

neutral, his shifting rationale for the strike could support an

inference that neither reason was genuine.    See Purkett v. Elem,

514 U.S. 765, 769 (1995) (focus of court’s enquiry in evaluating a

proffered reason for a strike is on the “genuineness of the motive”

asserted by counsel).    Even aside from that, counsel’s second

reason implicates our recognition that “facially plausible” reasons

for exercising a peremptory strike may “raise a serious question of

pretext where [counsel’s] explanation . . . is equally applicable

to a juror of a different race or gender who has not been

stricken.” Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir. 1998).

Here, the district court’s comments indicate that counsel’s second

rationale for striking Ms. Tran, her age, applied quite as well to

a juror whom counsel did not challenge.

why it decided to disallow the strike. See United States v. Perez,
35 F.3d 632, 636 (1st Cir. 1994) (“[D]istrict courts should
articulate the bases of their factual findings related to Batson
challenges more clearly than occurred here. . . .        Indicating
[factual] findings on the record . . . eases appellate review of a
trial court’s Batson ruling” and “ensures that the trial court has
indeed made the crucial credibility determination that is afforded
such great respect on appeal.”). Though there is no need to go
further into the trial judge’s reasons in order to decide this
appeal, we are skeptical that counsel’s mere exercise of a
peremptory challenge against a member of a protected class, without
more, will ever suffice to establish a prima facie case of
discrimination. We think that a trial judge should rarely engage
sua sponte in a Batson enquiry absent surrounding circumstances,
identified by the court on the record, that are strongly suggestive
of discrimination.

                               -5-
           We can, however, bypass the question whether the district

court acted within its discretion, because any error was harmless.

See Rivera, 556 U.S. at 160 (affirming application of harmlessness

standard of review to trial court’s error in denying a defendant

his right to a peremptory strike under state law).        Although our

own pre-Rivera precedent held that the mistaken refusal to accept

a defendant’s exercise of peremptory challenges was structural

error requiring automatic reversal of a conviction, see United

States v. Vargas, 606 F.2d 341, 346 (1st Cir. 1979), we have since

recognized that “the Supreme Court [in Rivera] . . . disavowed the

sort of reasoning used in Vargas and . . . indicated that mistaken

denials   of   peremptory   challenges   do   not   ordinarily   warrant

automatic reversal.”2 United States v. Gonzales-Melendez, 594 F.3d

28, 33 (1st Cir. 2010) (applying harmlessness review to district

court’s erroneous failure to designate which jurors are alternates

before allowing the parties an additional peremptory challenge

pursuant to Fed. R. Crim. P. 24(c)(4)).       Every one of our sister

circuits to have considered the question has similarly held that,

under Rivera, error in sustaining a Batson challenge is subject to

harmless error analysis.    See Jimenez v. City of Chicago, 732 F.3d

710, 715 (7th Cir. 2013)(civil); United States v. Williams, 731

     2
      We say “ordinarily” because the Supreme Court in Rivera held
open the possibility that it might violate due process for a “trial
judge . . . repeatedly or deliberately [to] misappl[y] the law or
ac[t] in an arbitrary or irrational manner” in denying a
defendant’s right to exercise peremptory challenges. 556 U.S. at
160. Bowles makes no such claim here.

                                  -6-
F.3d 1222 (11th Cir. 2013)(criminal); Alaska Rent–A–Car, Inc. v.

Avis Budget Group, Inc., 709 F.3d 872, 880 (9th Cir. 2013)(civil);

Avichail v. St. John’s Mercy Health System, 686 F.3d 548, 552–53

(8th Cir. 2012)(civil).

           As Bowles’s counsel conceded at oral argument, nothing in

the   record   indicates   that   Ms.   Tran   was   biased   or   otherwise

unqualified to serve on the jury.        Accordingly, any error by the

district court in seating her was harmless, as it did not “affec[t]

the defendant’s substantial rights.”       United States v. Maryea, 704

F.3d 55, 74 (1st Cir. 2013); see also Rivera, 556 U.S. 558-59

(right to impartial jury satisfied where no member of the jury was

removable for cause).

                                   III

           Next, Bowles says the district court violated the rule

against hearsay by admitting into evidence photocopies of the

annuity checks that were deposited into her bank account.               “We

review a district court’s decision to admit or to exclude evidence

for abuse of discretion.” See United States v. Scott, 270 F.3d 30,

46 (1st Cir. 2001).

           Bowles does not object to the admission of the checks

themselves,3 but rather contends that the signature endorsements on
      3
      We note that the checks appear to fall within the public
records exception to the rule against the admission of hearsay,
given that the checks were drawn directly on the United States
Treasury and the copies were stored or recorded as part of a
government recordkeeping system.    See Fed. R. Evid. 803(8),
advisory committee’s note (citing “[t]reasury records of

                                   -7-
the backs of the checks were the inadmissible hearsay.                    The

objection fails for two reasons.        First, the large majority of the

endorsements in question purport to represent the signatures of

Bowles’s deceased parents.        See App. 68-179.      These endorsements

were all written after Bowles’s parents had died, are indisputably

false, and therefore cannot have been offered to prove the truth of

what they implicitly state.           See Fed. R. Evid. 801 (defining

“hearsay” as a “statement . . . offer[ed] in evidence to prove the

truth of the matter asserted”); United States v. Vigneau, 187 F.3d

70, 74 (1st Cir. 1999) (“Whoever wrote the name ‘Patrick Vigneau’

on the [money order forms] was stating in substance: ‘I am Patrick

Vigneau . . . .’”).

            Second, the endorsements were offered as one step in

proving    fraudulent    action   (i.e.,    check   issued   to   predeceased

person, endorsement by someone pretending to be that person,

evidence    indicating    defendant    wrote   endorsement    and    received

money).    Each signature endorsement was thus a legally operative

verbal act of imposture for a fraudulent purpose, see Fed. R. Evid.

801(c), advisory committee’s note (the hearsay definition excludes

"the entire category of ̀verbal acts’ . . . in which the statement

itself affects the legal rights of the parties . . . .”), an

integral step in what the law has traditionally called the actus

reus of the repeated theft offense charged.           See United States v.

miscellaneous receipts and disbursements” as examples of public
records not subject to the hearsay bar).

                                      -8-
Pang, 362 F.3d 1187, 1192 (9th Cir. 2004).           In this respect, the

endorsements are comparable to words offering a bribe or making a

threat, which we have recognized as verbal acts that are not

hearsay.     United States v. Diaz, 597 F.3d 56, 65 n. 9 (1st Cir.

2010).

            Accordingly, the only remaining hurdle to admitting the

endorsements into evidence is the burden on the government, as

proponent, to authenticate each endorsement as the defendant’s act,

that is, to establish a reasonable likelihood that the proffered

“item is what the proponent claims it is.”          Fed. R. Evid. 901(a);

see United States v. Savarese, 686 F.3d 1, 11 (1st Cir. 2012).

Here, it is undisputed that the checks had been mailed to Bowles’s

home address after her mother’s death and then deposited in

Bowles’s personal bank account.        This circumstantial evidence is

more than sufficient to establish a reasonable likelihood that the

endorsements on the checks were written by Bowles.                 See United

States v. Gonzalez-Maldonado, 115 F.3d 9, 20 (1st Cir. 1997)

(“[C]ircumstantial evidence is permitted to authenticate [an]

item.”).

            On top of that, there were two documents admitted without

objection    that   included   examples    of   Bowles’s    handwriting   and

signature.    See App. 56-57.     It therefore would have been within

the district court’s discretion to admit the endorsements based on

the   evidence   of   authenticity    apparent    from     those   comparable


                                     -9-
examples of Bowles’s signature already in the record.             See Fed. R.

Evid. 901(b)(4) (Evidence may be authenticated by its “appearance,

contents,    substance,   internal    patterns,     or   other   distinctive

characteristics, taken in conjunction with circumstances.”).

                                     IV

             Bowles’s third argument is that the district court abused

its discretion by admitting into evidence a copy of a Massachusetts

Registry of Motor Vehicles record of information about her driver’s

license.      The   Registry   record,     which   contains    the   apparent

signature of Sharon Bowles as well as her personal information, was

admitted to give the jury an additional example for comparing

Bowles’s handwriting with the signature endorsements on the checks.

See 28 U.S.C. § 1731 (“The admitted or proved handwriting of any

person   shall   be   admissible,    for   purposes      of   comparison,   to

determine genuineness of other handwriting attributed to such

person.”).     Bowles conceded the Registry record’s authenticity at

trial, see App. 215, but says it should not have been admitted into

evidence without “some element of proof that the signature [on the

Registry record] was [hers].”        Appellant’s Br. 29.4
     4
      The nature of Bowles’s objection to the Registry record is a
bit unclear. Her counsel conceded below that the Registry record
was authentic, but argued that it was not relevant to any disputed
issue at trial. See App. 215 (Bowles’s counsel stating “obviously
there’s . . . no objection as to authenticity . . . . But what I’m
objecting to is relevance.”).      Although she thus styled her
objection as going to the Registry record’s relevance, at no point
has Bowles disputed that evidence of her handwriting is relevant to
determining whether she signed the fraudulent endorsements on the
annuity checks. Instead, the substance of Bowles’s objection is

                                    -10-
           The argument lacks merit.       First, Bowles herself admits

that the “proof” she seeks could have consisted of “evidence . . .

establish[ing] that it might be the custom or requirement of the

Registry” to compel persons acquiring driver’s licenses “to sign

the license.”      Id.    But no such evidence was needed because

Massachusetts law provides that “[e]very person licensed to operate

motor vehicles . . . shall endorse [her] name in full in a legible

manner on the margin of the license, in the space provided for the

purpose, immediately upon receipt of such license . . . .”             Mass.

Gen. Laws Ann. ch. 90 § 8.    This suffices to establish a reasonable

likelihood that the signature on Bowles’s license is what it

purports to be.    Second, and more broadly, the Registry record is

a prototypical public record that is self-authenticating under the

Federal Rules. The mandate for a licensee’s immediate signature on

receipt   makes   it   reasonable   to   infer   that   the   photo   of   the

signature is as much a part of the “record” as any notation of fact

contained within it.       See Fed. R. Evid. 902(4) (“A copy of an

official record” is self-authenticating “if the copy is certified

as correct by . . . the custodian or another person authorized to

make the certification.”).      Here, the Registry record is on its

face “a true copy of the records” held by the Registry, and was

that the government did not prove that the signature on the record
was hers. See id. at 216 (Bowles’s counsel stating “there’s no
evidence to show that . . . this is [Bowles’s] signature”);
Appellant’s Br. 29 (same). This is best understood as an objection
to the signature’s authenticity, but not to that of the underlying
record.

                                    -11-
certified as such by the then-Registrar of Motor Vehicles.            App.

35-36.   Third, for the same reason discussed above with respect to

the signature endorsements on the checks, the district court would

have been within its discretion to find the signature on the

Registry record authentic based on a comparison with the examples

of Bowles’s signature that were already in the record. See Fed. R.

Evid. 901(b)(4).

                                      V

             Finally, Bowles contends that it was error for the

district court to deny her post-trial motion for a judgment of

acquittal.    But her argument is that, excluding what she terms the

erroneously admitted checks and the Registry record, there was

insufficient evidence from which the jury could find that she

committed the charged offenses.        Since that evidence was properly

admitted, that is the end of the issue, though we note that the

evidence of Bowles’s guilt was overwhelming:       OPM forms were three

times sent to Bowles’s address, and three times returned with

fraudulent notations indicating that Ann Bowles was alive and

eligible to receive annuity payments; all of these payments were

deposited into Bowles’s personal bank account; and the several

examples of Bowles’s handwriting and signature were an ample basis

for the jury to find that she had written the fraudulent signature

endorsements    on   the   annuity   checks.   There   was   no   error   in




                                     -12-
concluding that a reasonable jury could find Bowles guilty of

stealing government funds.

                               VI

          The judgment of the district court is affirmed.

          It is so ordered.




                              -13-
