     08-5071-cr
     US v. PARIS


1                      UNITED STATES COURT OF APPEALS
2                          FOR THE SECOND CIRCUIT
3
4                                August Term 2009

5    Argued: July 13, 2010                   Decided: September 17, 2010)

6                              Docket No. 08-5071-cr

7


8    UNITED STATES OF AMERICA,

 9                                                Appellee,
10
11                                      v.

12   RONALD MARTINEZ, BRIAN FORBES, ANTONIO DOVE, also known as
13   Dontell Dove, also known as Tone, JEROME HARGROVE, also known as
14   June, WARREN WILLIAMS, CHRISTOPHER FANNING, KAZIMIERZ SULEWSKI,
15   also known as Kaz, STEVEN TANUIS, SHANAYA HICKS,
16
17                                                Defendants,

18   DENNIS PARIS, also known as Rahmyti,

19                                                Defendant-Appellant.


20

21   Before:       JACOBS, Chief Judge, and WESLEY and CHIN, Circuit
22                 Judges.

23                 Appeal from a judgment of the United States District

24   Court for the District of Connecticut (Droney, J.) convicting

25   defendant-appellant of sex trafficking crimes.

26                 AFFIRMED.
1                             JEREMIAH DONOVAN, Old Saybrook,
2                                  Connecticut, for Defendant-
3                                  Appellant.

4                             WILLIAM J. NARDINI, Assistant United
5                                  States Attorney (Nora R. Dannehy,
6                                  United States Attorney, and Sandra
7                                  S. Glover, Assistant United States
8                                  Attorney, District of Connecticut,
9                                  on the brief), for Appellee.

10   CHIN, Circuit Judge:

11             In this case, a jury convicted defendant-appellant

12   Dennis Paris of sex trafficking crimes, including sex trafficking

13   of minors and sex trafficking by force, fraud, or coercion.    The

14   evidence showed that for more than five years, Paris operated a

15   prostitution business in and around Hartford, Connecticut,

16   exploiting and abusing young women and teenage girls.    The

17   district court (Droney, J.) sentenced Paris principally to thirty

18   years' imprisonment.

19             During the jury selection process, each side raised an

20   objection pursuant to Batson v. Kentucky, arguing that the other

21   side had exercised peremptory strikes based on gender.    At the

22   outset of jury selection, Paris's counsel stated explicitly that

23   he wanted to strike female jurors because of their gender because

24   he believed that, in light of the nature of the charges, men

25   would be "fairer" to Paris than women.   The district court


                                    -2-
1    refused the request and prohibited defense counsel from

2    exercising peremptory challenges based on gender.    Later in jury

3    selection, after the Government used its first four peremptory

4    strikes against men, Paris objected under Batson.    The district

5    court overruled the objection, holding that Paris had not made a

6    prima facie showing that the Government was exercising its

7    peremptory challenges based on gender.

8              We affirm.   We hold that a defendant in a criminal case

9    may not, consistent with the Constitution, exercise peremptory

10   challenges based on gender.   Accordingly, the district court

11   correctly barred Paris from doing so.    We also affirm the

12   district court's ruling that Paris did not, merely by relying on

13   the fact that the Government's first four strikes were against

14   men, make a prima facie showing that the Government was

15   improperly exercising peremptory challenges based on gender.

16                          STATEMENT OF THE CASE

17   A.   The Facts

18             Construed in the light most favorable to the

19   Government, see United States v. Gomez, 580 F.3d 94, 97 (2d Cir.

20   2009), the evidence at trial showed the following:

21              From at least 1999 until his arrest in 2004, Paris

22   forced or induced teenage girls and young women to engage in sex

                                     -3-
1    with men for money.   Paris operated his prostitution business in

2    and around Hartford, and recruited his victims to work for him as

3    prostitutes from around Hartford and as far away as New

4    Hampshire.

5               In 1999, Paris induced a fourteen-year old ninth-grader

6    to work for him as a prostitute doing "calls" -- engaging in

7    sexual intercourse with men for money -- in a motel and at

8    customers' homes.   Over the course of a year and a half, she did

9    approximately 100 "calls" for Paris.

10              In 2002, Paris employed a sixteen-year old girl who had

11   run away from home as a prostitute for about two weeks.   When she

12   told Paris her age after she began working for him, he told her

13   to say that she was nineteen if she were asked her age.

14              In late 2003, Paris began using two eighteen-year old

15   girls as prostitutes.   Although he paid them at first, eventually

16   he held them against their will and exploited their addiction to

17   heroin.   He raped both of them, used force and intimidation

18   against both of them, and physically and psychologically abused

19   them.

20              Paris's prostitution business ended in June 2004 when

21   he was arrested by the Hartford Police for violating the terms of

22   his probation (imposed for unrelated crimes).   Following his

                                     -4-
1    arrest, one of Paris's victims left the motel where he had been

2    forcing her to stay and tried to work as a prostitute on the

3    street.   She was arrested and the ensuing investigation led to

4    the arrest and conviction of Paris and others on multiple sex

5    trafficking and related charges.

6    B.   Proceedings Below

7               Paris was indicted, with others, for conspiracy to use

8    an interstate facility to promote prostitution (18 U.S.C. § 371),

9    sex trafficking of a minor (18 U.S.C. § 1591), sex trafficking by

10   force, fraud, or coercion (18 U.S.C. § 1591), and use of an

11   interstate facility to promote prostitution (18 U.S.C. §

12   1952(a)(3)).1   He was the only defendant to go to trial.

13              Before trial, defense counsel submitted written notice

14   to the district court that Paris intended to exercise peremptory

15   challenges on the basis of gender.    Shortly after jury selection

16   began on May 23, 2007, defense counsel explained why he intended




          1
               Paris was also indicted for money laundering, but these
     counts, as well as one of the use of interstate facility counts,
     were dismissed at the request of the Government before the case
     was submitted to the jury.

                                     -5-
1    to exercise his peremptory challenges to strike women from the

2    jury:

 3             [W]omen feel about this case very, very, very
 4             differently from men. And . . . probably the
 5             major factor in how a juror will approach
 6             this case is her gender. And having reached
 7             that conclusion, I intend to make gender one
 8             of the primary -- one of my primary reasons
 9             for striking jurors . . . . I would doubt
10             that I will exercise a peremptory against a
11             male juror. My objective here is to get as
12             many male jurors on the jury as I can,
13             because I think that they will be fairer to
14             Mr. Paris than female jurors will be.

15   Defense counsel further stated that "gender probably, almost

16   surely, will be my primary reason for exercising peremptories."

17   The district court offered to rule on the constitutionality of

18   gender-based peremptory challenges prior to voir dire, but the

19   parties requested that the court wait to rule until the

20   peremptory challenge stage of the jury selection process.

21             After all challenges for cause were resolved, thirty-

22   six prospective jurors remained.   The district court randomly

23   selected twenty-eight -- fifteen men and thirteen women -- for

24   the initial peremptory challenge phase.   Paris used his first

25   four peremptory challenges to strike women.   Following Paris's

26   fourth strike, the Government raised a Batson challenge and

27   argued that Paris's openly expressed intention to strike women


                                    -6-
1    from the jury combined with his four straight strikes of female

2    jurors and the lack of a legitimate reason for excluding them

3    established a prima facie case of impermissible gender

4    discrimination.   Defense counsel then conceded that gender was at

5    least part of the reason for his peremptory challenges:

 6             When your honor read the nature of the
 7             charges to the jurors, I watched their
 8             reactions carefully and I noticed . . . a
 9             tightening of the lips and a frown on the
10             faces of many of the women jurors, whereas
11             the men had almost no response whatsoever.
12             This small perception is the kind of thing
13             that we use when we're picking jurors and it
14             confirms what I know, [which] is that women
15             will approach this case in a different manner
16             than men.

17   Defense counsel acknowledged that gender "absolutely" was one of

18   the reasons he exercised his first four peremptory challenges

19   against women, and even stated that in the end gender could be

20   the sole reason for some of his strikes.

21             The district court then ruled that gender-based

22   peremptory challenges violate the Equal Protection Clause of the

23   U.S. Constitution:   "[B]ased on the precedent of Batson v.

24   Kentucky, Georgia v. McCollum, and J.E.B. v. Alabama, the Court

25   finds that Mr. Paris may not exercise peremptory challenges based

26   on gender."   The district court then asked defense counsel to

27   explain the reasons for the exercise of his first four peremptory

                                     -7-
1    challenges.   When Paris articulated non-gender-based reasons for

2    those challenges, the Government withdrew its Batson challenge as

3    to one of Paris's strikes and the district court accepted Paris's

4    reasons for his remaining strikes.    Accordingly, the district

5    court allowed Paris's strikes to stand.

6              Paris used his next two peremptory challenges against

7    prospective female jurors, and then asked the district court to

8    reconsider its ruling forbidding gender-based challenges.    In

9    particular, Paris pointed out that the Government had exercised

10   its first three challenges against men and argued that he should

11   be permitted to strike female jurors to "balance" the jury

12   between men and women.   Paris's counsel argued:

13             [W]hen . . . the other side, whether it's for
14             reasons that are subject to question under
15             Batson or for totally other reasons, has
16             exercised its challenges all against one
17             gender, it's appropriate for me then to try
18             to compensate for that by . . . taking gender
19             into account in exercising my challenges.

20             After the district court reiterated its ruling that

21   Paris could not exercise peremptory challenges based on gender,

22   Paris used his seventh and eighth peremptory challenges to strike

23   a man and a woman.   Defense counsel then reiterated to the court

24   his goal of eliminating as many women as possible from the jury

25   and stated that he would have used both challenges against women

                                     -8-
1    "if your Honor had not ordered me otherwise."

2              Following Paris's seventh and eighth peremptory

3    challenges, the Government exercised its fourth peremptory

4    challenge, which, like each of its prior three challenges, was

5    against a man.   At that point, defense counsel raised a Batson

6    challenge on behalf of Paris:

 7             It's hard to believe that [the Government
 8             has] not taken into account gender in
 9             exercising each of the four peremptories that
10             they have against males. And so I think that
11             in a case like this where gender is such an
12             important issue, I think that issuing four
13             straight challenges against the male [panel
14             members] demonstrates . . . that the
15             Government is issuing its peremptories based
16             on gender . . . .

17   The Government expressed its willingness to articulate the

18   permissible reasons for its peremptory challenges, but argued

19   that Paris had not made out a prima facie case of discrimination.

20   In particular, the Government pointed out that Paris's Batson

21   challenge was based on nothing more than the fact that the

22   Government used its first four challenges against men.    Unlike

23   Paris, the Government never expressed any intention to strike

24   jurors on the basis of gender.   In response, Paris argued that

25   the nature of the case also raised an inference of improper

26   gender bias by the Government.   The district court rejected his


                                      -9-
1    argument and ruled that a prima facie case of gender

2    discrimination had not been established because Paris "has not

3    shown that the circumstances raised an inference of sex

4    discrimination by simply striking four men at this time."

5               Following the rejection of his Batson challenge, Paris

6    exercised his final two peremptory challenges against a man and a

7    woman.    Paris then reiterated that he would have used his seventh

8    peremptory challenge against a woman if he had been permitted to

9    consider gender.

10              In the end, the jury consisted of eight men and four

11   women.

12              On June 14, 2007, after seven days of evidence and one

13   day of deliberation, the jury convicted Paris on all pending

14   counts.   On October 14, 2007, the district court sentenced Paris

15   principally to thirty years' imprisonment.

16              This appeal followed.

17                                DISCUSSION

18              Two principal issues are presented:   first, whether the

19   district court erred in prohibiting Paris from exercising

20   peremptory challenges based on gender; and, second, whether the

21   district court erred in ruling that Paris had not made a prima

22   facie showing of a Batson violation based on the fact the

                                     -10-
1    Government's first four peremptory challenges were against men.

2    We address each issue in turn.

3    A.   Gender-Based Peremptory Challenges

4               The district court's holding that a defendant's use of

5    gender-based peremptory challenges in a criminal case violates

6    the Constitution presents a question of law that we review de

7    novo.   See United States v. Hester, 589 F.3d 86, 90 (2d Cir.

8    2009), cert. denied, 130 S. Ct. 2137 (Apr. 19, 2010).

9               In Batson v. Kentucky, the Supreme Court held that the

10   Equal Protection Clause forbids a prosecutor from exercising

11   peremptory challenges based on race.    476 U.S. 79, 89 (1986).   In

12   reaching its decision, the Supreme Court considered the right of

13   a defendant in a criminal case to a fair trial as well as the

14   rights of potential jurors to serve on the jury and the public's

15   perception of the jury system.    Id. at 87.   The Court held that

16   "[t]he harm from discriminatory jury selection extends beyond

17   that inflicted on the defendant and the excluded juror to touch

18   the entire community[,] . . . undermin[ing] public confidence in

19   the fairness of our system of justice."    Id.

20              The Supreme Court extended the prohibition against

21   race-based peremptory challenges to strikes by defendants in

22   criminal cases in Georgia v. McCollum, 505 U.S. 42, 55 (1992).

                                      -11-
1    The Court ruled that the exercise of a peremptory challenge by

2    any party, including a defendant in a criminal case, constitutes

3    state action because it is the exercise of the power to choose

4    "the institution of government on which our judicial system

5    depends."    Id. at 54.   A few years later, the Supreme Court held

6    in J.E.B. v. Alabama that peremptory challenges based on gender

7    by a defendant in a civil case are unconstitutional.    511 U.S.

8    127, 129 (1994) ("[G]ender, like race, is an unconstitutional

9    proxy for juror competence and impartiality.").

10               Paris correctly notes that neither the Supreme Court

11   nor the Second Circuit has decided a case in which a defendant in

12   a criminal case sought to exercise gender-based peremptory

13   challenges.2   In the absence of controlling precedent, Paris

14   argues that because gender is different from race, the district



          2
               As the district court noted, in United States v.
     Martinez-Salazar, 528 U.S. 304, 315 (2000), the Supreme Court
     held that "[u]nder the Equal Protection Clause, a defendant may
     not exercise a peremptory challenge to remove a potential juror
     solely on the basis of the juror's gender, ethnic origin, or
     race." (Emphasis added). This was dictum with respect to
     gender, however, as Martinez-Salazar did not involve gender-based
     peremptory challenges. Moreover, the Supreme Court cited as
     authority for the statement only J.E.B., which involved gender-
     based strikes in a civil case; Hernandez v. New York, 500 U.S.
     352 (1991), which involved ethnicity-based strikes in a criminal
     case; and Batson, which involved race-based strikes in a criminal
     case. Martinez-Salazar, 528 U.S. at 315.

                                      -12-
1    court should have permitted him to strike women from the panel

2    based on their gender.   For support, Paris relies heavily on

3    Justice O'Connor's concurring opinion in J.E.B., which argued

4    that the Court's holding "should be limited to the government's

5    use of gender-based peremptory strikes," 511 U.S. at 147,

6    explaining:

 7             We know that like race, gender matters. A
 8             plethora of studies make clear that in rape
 9             cases, for example, female jurors are
10             somewhat more likely to vote to convict than
11             male jurors. . . . Moreover, though there
12             have been no similarly definitive studies
13             regarding, for example, sexual harassment,
14             child custody, or spousal or child abuse, one
15             need not be sexist to share the intuition
16             that in certain cases a person's gender and
17             resulting life experience will be relevant to
18             his or her view of the case.

19   511 U.S. at 148-49 (citations omitted).   Paris also argues that

20   gender classifications are reviewed under a lower standard of

21   scrutiny than race-based classifications, and defends his gender-

22   based peremptory challenges on the ground that his interest in

23   eliminating biased jurors outweighed any harm caused by striking

24   female members of the panel.

25             We reject Paris's arguments, and hold that the

26   Constitution bars a defendant in a criminal case from exercising

27   peremptory challenges based on gender, for the following reasons:


                                    -13-
1                   First, the principles set forth by the Supreme Court in

2    Batson, McCollum, and J.E.B. apply with equal force to the

3    exercise of peremptory challenges by a defendant in a criminal

4    case.       As these cases make clear, discriminatory jury selection

5    harms not just the parties to the case but also the prospective

6    jurors as well as "the entire community" as it "undermine[s]

7    public confidence in the fairness of our system of justice."

8    Batson, 476 U.S. at 87.       There is no principled basis for

9    distinguishing between civil and criminal cases for these

10   purposes, or between the exercise of a peremptory strike by the

11   government and a defendant.

12                  Second, Paris's arguments as to the distinctions

13   between race and gender for purposes of a Batson analysis were

14   considered and rejected by the Supreme Court in J.E.B.       There,

15   the State of Alabama, acting on behalf of the mother of a child

16   born out of wedlock, sought to strike male jurors from a trial to

17   determine the identity of the child's father.3      Alabama justified


             3
             Because J.E.B. v. Alabama involved the use of peremptory
     challenges by the State of Alabama, the Supreme Court's equal
     protection analysis was pursuant to the Fourteenth Amendment.
     This case involves a criminal defendant in federal court, and
     thus our equal protection analysis is based on the Due Process
     clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S.
     497, 498-500 (1954). Of course, we approach equal protection
     claims under the Fifth Amendment in the same fashion as we do

                                        -14-
1    its discriminatory peremptory challenges on the grounds that men

2    "might be more sympathetic and receptive to the arguments" of the

3    putative father.   511 U.S. at 137-38.   Just as in the instant

4    action, the rationale for treating men and women differently was

5    based on a "quasi-empirical claim that women and men may have

6    different attitudes about certain issues justifying the use of

7    gender as a proxy."   Id. at 138 n.9.    The Supreme Court held that

8    "gender-based peremptory challenges are not substantially related

9    to an important government objective," and rejected the argument

10   that their use could be defended based on "'the very stereotype

11   the law condemns.'"   Id. at 137 n.6, 138 (quoting Powers v Ohio,

12   499 U.S. 400, 410 (1991)).   Although Paris's counsel was

13   emphatically blunt in explaining his reasons for striking women

14   from the jury, as the Supreme Court held, "[e]ven if a measure of

15   truth can be found in some of the gender stereotypes used to

16   justify gender-based peremptory challenges, that fact alone

17   cannot support discrimination on the basis of gender in jury

18   selection."   Id. at 139 n.11.

19             Third, although neither the Supreme Court nor this

20   Court has explicitly ruled on the use of gender-based peremptory


     such claims under the Fourteenth Amendment.     See Weinberger v.
     Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).

                                      -15-
1    challenges by a defendant in a criminal case, three Circuits have

2    held that the Constitution's equal protection guarantees bar

3    defendants in criminal cases from striking potential jurors on

4    the basis of gender.   See, e.g., United States v. Grant, 563 F.3d

5    385, 389 (8th Cir. 2009) ("[T]he government made a prima facie

6    showing of a J.E.B. gender violation when the government offered

7    its objection to the pattern of [defendant's] strikes and told

8    the district court that [defendant] exercised ten of her eleven

9    strikes on females."), cert. denied, 130 S. Ct. 1504 (2010);

10   United States v. Kimbrel, 532 F.3d 461, 466 (6th Cir. 2008)

11   ("Batson applies to peremptory challenges based on race or

12   gender.   And it applies to peremptory challenges by the

13   government and by criminal defendants.") (citations omitted);

14   United States v. De Gross, 960 F.2d 1433, 1439-40 (9th Cir. 1992)

15   (en banc) ("[E]qual protection principles prohibit striking

16   venirepersons on the basis of their gender. . . . We hold that

17   because the evils of discriminatory peremptory strikes result

18   from the misuse of peremptory challenges, regardless of which

19   party strikes the venireperson, the Fifth Amendment similarly

20   limits a federal criminal defendant's peremptory strikes.").

21   Moreover, as noted, the Supreme Court has concluded as much in

22   dictum.   See United States v. Martinez-Salazar, 528 U.S. at 315.

                                    -16-
1              In short, the district court correctly ruled that Paris

2    could not exercise peremptory challenges based on gender.4    The

3    Constitution "prohibits discrimination in jury selection on the

4    basis of gender."   J.E.B., 511 U.S. at 146.    That rule applies

5    whether the government or the defendant is exercising the

6    peremptory challenge, and whether the case is criminal or civil

7    in nature.

8    B.   The Claim of Gender Discrimination By The Government

9              Paris argues that the district court erred when it held

10   that he had failed to make out a prima facie showing of

11   discrimination by the Government.     We discuss the standard of

12   review to be applied to a district court's rejection of a Batson

13   challenge on this basis and we then consider the district court's

14   rejection of Paris's challenge to the Government's exercise of

15   its peremptory strikes.




          4
             Paris also argues that after the Government used its
     first three strikes against male jurors, he should have been
     permitted to strike female jurors based on gender "to get a jury
     that may be equally balanced between men and women." Accepting
     Paris's argument would subordinate the Constitution's equal
     protection guarantees whenever the venire panel is not equally
     divided between the sexes. The district court correctly rejected
     this argument.

                                    -17-
1         1.      Applicable Law

2                 a.   Batson's Burden-Shifting Framework

3                 When a party raises a Batson challenge, the trial court

4    uses a three-part burden-shifting framework to assess whether the

5    challenged peremptory strike is based on an impermissible

6    discriminatory motive.        See Batson, 476 U.S. at 93-98.   First,

7    the objecting party must make a prima facie case that opposing

8    counsel exercised a peremptory challenge on the basis of a

9    protected class.     Hernandez v. New York, 500 U.S. 352, 358-59

10   (1991).   To establish a prima facie case of purposeful

11   discrimination, the objecting party must show that the other

12   party challenged members of a specific group and that the

13   totality of the circumstances raises an inference of

14   discriminatory motive.        See Batson, 476 U.S. at 96-97.

15                Second, if a prima facie case is established, the

16   burden shifts to the challenged party to present a non-

17   discriminatory reason for striking the jurors in question.         See

18   id. at 97.    At this stage, proffered explanations are deemed

19   valid unless discriminatory intent is inherent in the challenged

20   party's explanation.     "Although the [challenged party] must

21   present a comprehensible reason, '[t]he second step of this

22   process does not demand an explanation that is persuasive, or

                                         -18-
1    even plausible'; so long as the reason is not inherently

2    discriminatory, it suffices."     Rice v. Collins, 546 U.S. 333, 338

3    (2006) (quoting Purkett v. Elem, 514 U.S. 765, 767-68 (1995)).

4                Finally, if a valid reason is articulated, the trial

5    court considers the totality of the circumstances to determine

6    whether the objecting party has carried its burden of proving

7    purposeful discrimination by a preponderance of the evidence.

8    Hernandez, 500 U.S. at 363-64.    Despite Batson's three part

9    framework, "the ultimate burden of persuasion regarding improper

10   motivation rests with, and never shifts from, the opponent of the

11   strike."   Rice, 546 U.S. at 333-34 (quoting Purkett, 514 U.S. at

12   768).

13              b.     Standard of Review

14              This Circuit has not ruled on the standard of review to

15   be applied to a district court's determination whether a party

16   has met the first prong of the Batson analysis by showing a prima

17   facie case of discrimination.    The Supreme Court has held that "a

18   trial court's ruling on the issue of discriminatory intent must

19   be sustained unless it is clearly erroneous," Snyder v.

20   Louisiana, 552 U.S. 472, 477 (2008), but it has not ruled on the

21   standard of review to be applied to a ruling on step one of the

22   Batson inquiry.    Other circuits have split on the question,

                                      -19-
1    dividing on whether the determination is subject to clear error

2    or de novo review.5

3              We hold that a district court's determination whether a

4    party has established a prima facie case under Batson is subject

5    to review for abuse of discretion.    The question whether a prima

6    facie case of discrimination has been shown presents a mixed

7    question of law and fact.   See Overton v. Newton, 295 F.3d 270,

8    276-77 (2d Cir. 2002) (threshold determination of whether Batson

9    prima facie case has been established "involves both issues of

10   fact and an issue of law") (citation omitted); accord Mahaffey,

11   162 F.3d at 484 (same).   The trial court is entitled to some

12   deference, as there clearly is an element of fact-finding to the

13   determination:   the trial court has heard the answers of the



          5
               Compare, e.g., Brewer v. Marshall, 119 F.3d 993, 1004
     (1st Cir. 1997) ("That same clear error standard applies to
     rulings on whether the defendant has made a Batson prima facie
     case."), and Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999)
     (en banc) ("A trial court's determination of whether a prima
     facie case of discrimination under Batson has been established is
     to be reviewed deferentially, on direct review for clear error,
     or in the habeas context, by application of the statutory
     presumption of correctness."), with Mahaffey v. Page, 162 F.3d
     481, 484 (7th Cir. 1998) ("Unlike the ultimate issue of
     discriminatory intent, which as a factual question is entitled to
     deferential review . . . , the preliminary question of whether a
     [Batson] prima facie case has been shown presents a mixed
     question of law and fact . . . , which the appellate courts
     should review de novo.") (citations omitted).

                                    -20-
1    prospective jurors and questions and statements of the lawyers in

2    voir dire and observed the demeanor of both.    See, e.g., Brewer,

3    119 F.3d at 1004.6   On the other hand, the inquiry is not

4    entirely factual, as the question of whether an inference of

5    discrimination can be drawn (e.g., from the fact of four straight

6    strikes against men) is often more a question of law than fact.

7    See, e.g., Mahaffey, 162 F.3d at 484; see also Overton v. Newton,

8    295 F.3d at 276-77 (once trial court performs its fact-finding,

9    it must decide, as matter of law, whether prima facie case of

10   discrimination has been established).   While one could fairly

11   argue that the determination of a Batson prima facie case could

12   be subject to a two-step review -- clear error for factual

13   findings and de novo for rulings of law -- in this context the

14   inquiries often are not clearly delineated.    Accordingly, we

15   conclude that the better course is to apply an abuse of

16   discretion standard of review.    See, e.g., Cooter & Gell v.

17   Hartmax Corp., 496 U.S. 384, 405 (1990) (holding that abuse of



          6
               See also United States v. Bergodere, 40 F.3d 512, 517
     (1st Cir. 1994) ("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.").

                                      -21-
1    discretion standard applies to review on appeal of determinations

2    of whether Fed. R. Civ. P. 11 was violated, as both factual and

3    legal inquiries are required).    Of course, the exercise of

4    discretion based on clearly erroneous facts or incorrect rulings

5    of law would necessarily constitute an abuse of discretion.     Id.;

6    accord Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.

7    2001) (citing Cooter & Gell v. Hartmax Corp., 496 U.S. at 405).

8         2.   Application

9              We conclude that the district court did not abuse its

10   discretion in holding that Paris had failed to show a prima facie

11   case of discrimination under Batson.

12             Paris's challenge was based on nothing more than the

13   Government's exercise of its first four peremptory challenges

14   against men.   In certain circumstances, a pattern of peremptory

15   challenges alone may give rise to an inference of impermissible

16   discrimination.   Batson, 476 U.S. at 97; see, e.g., Mahaffey, 162

17   F.3d at 485 (prima facie case shown by pattern of strikes where

18   prosecutor excused all seven prospective African-American

19   jurors); McCain v. Gramley, 96 F.3d 288, 292 (7th Cir. 1996)

20   (inference of discrimination may be drawn "where there are only a

21   few members of a racial group on the venire panel and one party

22   strikes each one of them").   Here, however, the district court

                                      -22-
1    did not abuse its discretion in concluding that the Government's

2    pattern of four strikes in a row against men did not, by itself,

3    establish a prima facie case of gender discrimination.

4              First, at the start of the peremptory challenge stage,

5    more than half of the prospective jurors were men, as there were

6    fifteen men and thirteen women.   Second, Paris (who had ten

7    strikes to the Government's six), used seven of his first eight

8    challenges against women, which increased the percentage of men

9    in the jury pool and the statistical likelihood that the

10   Government would use its peremptory challenges against men.    By

11   the time the Government exercised its third and fourth peremptory

12   challenges, the odds were nearly two to one, based just on the

13   numbers, that a male juror would be stricken.   See United States

14   v. Alvarado, 923 F.2d 253, 255-56 (2d Cir. 1991) ("Only a rate of

15   minority challenges significantly higher than the minority

16   percentage of the venire would support a statistical inference of

17   discrimination.").   Third, although Paris's counsel had announced

18   that he was going to strike women jurors because of their gender,

19   the Government had made no such statement about male jurors.

20             District courts have broad latitude to consider the

21   totality of the circumstances when determining whether a party

22   has raised an inference of discrimination.   Batson, 476 U.S. at

                                    -23-
1   96-97, 98 n.21.   Based on the record here, we conclude that the

2   district court did not abuse its discretion in determining that

3   Paris had failed to make a prima facie showing of discrimination

4   by the Government in its exercise of its peremptory strikes.

5                                CONCLUSION

6             We have considered Paris's remaining arguments on

7   appeal and conclude that they are without merit.

8             For the foregoing reasons, the judgment of conviction

9   and sentence are AFFIRMED.




                                    -24-
