                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             APR 11 2000
                                    TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                          No. 99-4097
           v.                                                   (D. Utah)
 LUIS ALBERTO RAMIREZ-SOBERANES,                        (D.C. No. 97-CR-301-C)

                Defendant - Appellant.


                              ORDER AND JUDGMENT           *




Before BRISCOE , ANDERSON , and LUCERO , Circuit Judges.



       Luis Alberto Ramirez-Soberanes appeals his conviction for possession of a

firearm by an illegal alien, in violation of 18 U.S.C. § 922(g)(5), contending that

his constitutional rights under    Batson v. Kentucky , 476 U.S. 79 (1986), were

violated by the prosecutor’s use of a peremptory challenge to remove an African-

American from the jury panel. Specifically, he argues that the district court erred

in crediting the government’s proffered race-neutral explanation for the



       This order and judgment is not binding precedent, except under the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.
peremptory challenge. Ramirez-Soberanes also asserts that the district court erred

in instructing the jury on constructive possession of a firearm, and that the

prosecutor’s comments during closing argument constituted a constructive

amendment of the indictment and impermissibly shifted the burden of proof to the

defense. For the reasons set forth below, we affirm.



                                 BACKGROUND

      On September 25, 1997, law enforcement officials executed a search

warrant on a Park City, Utah, condominium, based on information that a suspect

named Carlos was selling cocaine out of the unit. After entering the

condominium, officers ordered the nine Hispanic males present, including the

defendant, to lie face down on the floor while officers performed a protective

sweep of the premises. Officers then asked the men if any firearms were in the

apartment. Deputy Sheriff Brad Wilde testified that defendant responded, “I have

a gun, and it’s in the closet.” R. Vol. VII at 90. In the closet, police found a .45

caliber semi-automatic handgun, a loaded magazine, and a box of .45 caliber

ammunition. The defendant was taken to the sheriff’s office, where, after

waiving his Miranda rights, he admitted that he was a Mexican citizen, that he

was present in the United States illegally, and that he had purchased the .45

caliber handgun from a pawn shop approximately six months before.


                                         -2-
      On October 2, 1997, a federal grand jury indicted defendant for possession

of a firearm by an illegal alien, and possession of ammunition by an illegal alien,

both in violation of 18 U.S.C. § 922(g)(5).

      At jury selection, defendant objected to the prosecution’s peremptory strike

of Ms. Hannah Brown, an African-American woman. Upon the objection, the

district court judge and counsel retired to the judge’s chambers, where the

prosecutor, Mark Vincent, explained his justification for removing Ms. Brown:

      MR. VINCENT:        The reason is her place of employment; has
                          nothing to do with her ethnic background.

      THE COURT:          Where does she work?

      MR. VINCENT:        She works at McDonald’s.

      THE COURT:          The reason–she works at McDonald’s and you
                          find that significant is what?

      MR. VINCENT:        Nothing more than they have a tendency in fast-
                          food restaurants to deal with–in lot of areas
                          minority groups, legals, illegals. There may be
                          some sympathies that are there one way or the
                          other. And just to eliminate any sense of
                          prejudice one way or the other, we felt that it was
                          appropriate to strike her.

R. Vol. VII at 49. In restating his grounds for the peremptory challenge, Mr.

Vincent explained:

      Well, I’m not prejudiced against her for being black. . . . If she was
      white, if she was Hispanic, if she was any other ethnicity, it is my
      experience that people who work at McDonald’s have a lot of
      dealings with a large group of people, including aliens. And I don’t

                                         -3-
       know if there’s any sympathies one way or the other, but because
       there is a propensity for her to have dealings with a large group of
       people, that may or may not have prejudiced her. I don’t know. I
       just feel that it’s sufficient.

Id. at 50. To support his assertion that he had not removed Ms. Brown because of

her race, Mr. Vincent emphasized that he had not used peremptory challenges to

remove two Hispanic jurors from the venire.

        After listening to Mr. Vincent’s explanation, the district court accepted his

proffered reason, stating: “Mr. Vincent has given an answer that I think satisfies

Batson . He says that in his experience people who work at McDonald’s might

have some personal experiences that might, and I think he said, either way affect

their ability to be impartial.”   Id. Ms. Brown was excused from the jury.

       At the conclusion of trial, the district court discussed the proposed jury

instructions with counsel. Defendant objected to proposed Instruction No. 19,

arguing that it inadequately defined constructive possession, and suggested that

the court instead adopt the definition contained in    United States v. Mills , which

stated that “[a] person has constructive possession when he or she knowingly

holds ownership, dominion, or control over the object and the premises where it is

found.” 29 F.3d 545, 549 (10th Cir. 1994). After reviewing         Mills , the court

agreed that it set forth the proper definition of constructive possession, and made

several attempts at rephrasing the instruction to conform to the     Mills language.



                                            -4-
Due to some apparent confusion about how the instruction would read, the court

then stated:

        I’ll tell you what. Let me have [the clerk] type it up, and then I will
        go over [instruction number] 19 with you again at our next break. . . .
        I’ll make a copy of the 19 for you so that we make sure that we’re all
        on the same track, and we’ll go over it one more time before
        instructing the jury, okay?

R. Vol. VII at 151. After the change was made, the court read the amended

instruction to both counsel. Though the amended instruction omitted some of the

Mills language, defendant’s counsel accepted the instruction without objection.

Copies of the final instructions were given to both counsel, and neither party

objected to any of the instructions when they were subsequently presented to the

jury.

        In his closing argument, Mr. Vincent reviewed the evidence, arguing that

the government had proven each element of the charges beyond a reasonable

doubt. With respect to defendant’s possession of the gun, he told the jury that “to

possess means to have something within your control,” R. Vol. VII at 179, and

suggested that the defendant first possessed the gun when he purchased it on

March 15, 1997. He then stated: “We have not heard any evidence that that

firearm was ever sold, was ever given, was ever transferred to any other

individual in this case.”   Id. Upon objection by defense counsel, the court

admonished the jury that “the burden is always on the government to prove its


                                           -5-
case. The defendant does not have to do anything. The defendant does not have

to contest evidence.”   Id.

      Mr. Vincent continued with his argument that defendant had possessed the

gun both when he purchased it on March 15, and at the time of the search, on

September 25. He stated to the jury that “either of those dates works” because the

indictment charged that “on or about September 25, 1997,” defendant had

possessed the firearm, and that “within reason, and within six months, that is

reasonable.” Id. at 184.

      Defendant did not object to this argument, though he vigorously contested

it in his own closing argument, telling the jury that the indictment’s charge could

not be stretched to cover defendant’s possession at the time of the March 15

purchase. He argued that if the government had wanted to prove the March 15

possession, it should have charged the offense as a March 15 possession.

Defendant argued that the government had failed to prove that he had possessed

either the gun or the ammunition on September 25, 1997.

      In his rebuttal argument, the prosecutor focused entirely on the September

25 search, arguing that defendant’s own statements made during the search

demonstrated that he held control and dominion over the gun at that time. He

then stated that “ownership, although isn’t conclusive of possession, it goes a




                                         -6-
long ways to say that you have possession of something, you have dominion and

control.” R. Vol. VII at 195.

       The jury found defendant guilty of possession of a firearm by an illegal

alien, but acquitted him of the possession of ammunition charge.



                                      DISCUSSION

                               I. Peremptory Challenge

       Defendant first argues that the district court erred in allowing the

prosecutor to remove Ms. Brown from the jury panel. In            Batson v. Kentucky , 476

U.S. 79 (1986), the Supreme Court held that the Constitution prohibits a

prosecutor from using a peremptory challenge to strike a potential juror on

account of her race. Under the three-step procedure set forth in         Batson , a

defendant must first make a prima facie showing of purposeful racial

discrimination in the selection of the jury.         See id. at 96. “Once the defendant

makes a prima facie showing, the burden shifts to the [prosecution] to come

forward with a neutral explanation” for the peremptory challenge.           Id. at 97. If

the court concludes that the prosecution’s articulated reason is race neutral, it

must then determine whether the defendant has carried his burden of proving

purposeful discrimination.     See id. The question of whether a proffered

explanation is race neutral is a matter of law we review de novo,         see United


                                               -7-
States v. Sneed , 34 F.3d 1570, 1580 (10th Cir. 1994), while the ultimate question

of whether intentional discrimination occurred is a question of fact we review

under the clearly erroneous standard,    see United States v. Davis , 40 F.3d 1069,

1077 (10th Cir. 1994).

       Defendant focuses on step two    1
                                            of the Batson analysis, arguing that the

prosecutor’s articulated reason for striking Ms. Brown was not race neutral. A

neutral explanation is one “based on something other than the race of the juror,”      2



and “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation,

the reason offered will be deemed race neutral.”       Hernandez v. New York , 500

U.S. 352, 360 (1991). The proffered reason need not be “persuasive, or even




       1
        While the district court made no preliminary finding that defendant had
made a prima facie case of purposeful discrimination, this preliminary issue
becomes moot once the prosecutor has offered a race-neutral explanation for
peremptory challenges, and the district court has ruled on the ultimate question of
intentional discrimination. See Hernandez v. New York, 500 U.S. 352, 359
(1991).
       2
        The dissent defines a race neutral reason as “a reason other than race,”
relying on part of a sentence from      Hernandez . 500 U.S. at 371. However, both
the plurality and concurring opinions in      Hernandez make clear that the focus of
the Batson analysis is the race of the juror.    See id. at 359 (“A neutral
explanation in the context of our analysis here means an explanation based on
something other than the race of the juror .”) (Kennedy, J., plurality) (emphasis
added); id. at 373 (“Consistent with our established equal protection
jurisprudence, a peremptory strike will constitute a     Batson violation only if the
prosecutor struck a juror because of the juror’s race .”) (O’Connor, J., concurring)
(emphasis added).

                                              -8-
plausible,” so long as it is facially valid.    Purkett v. Elem , 514 U.S. 765, 768

(1995).

       Here, the prosecutor asserted that he struck Ms. Brown from the venire

because she worked at McDonald’s, and that, in his experience, persons who work

in fast-food restaurants might have sympathies or prejudices for or against

minorities or aliens. Defendant does not seriously contest the government’s

assertion that it also would have struck a white McDonald’s employee, an

assertion supported by the district court’s finding. Essentially, defendant argues

that under Batson , no juror can be struck for suspected bias favorable to

co-workers or customers with whom the juror is in close daily contact, if the

co-workers or customers are members of a minority group. We are not persuaded

that Batson and Hernandez go that far.

       Federal courts have consistently upheld peremptory challenges based upon

the employment of the juror.       See United States v. Alvarado , 951 F.2d 22 (2d Cir.

1991) (allowing peremptory strike because juror was a social worker);        United

States v. Lane , 866 F.2d 103 (4th Cir. 1989) (current and past employment are

legitimate race-neutral grounds for peremptory strikes);      United States v. Johnson ,

905 F.2d 222 (8th Cir. 1990) (allowing peremptory strike where juror worked for

state family services agency);     United States v. Johnson , 941 F.2d 1102 (10th Cir.

1991) (allowing peremptory challenge where juror worked as Legal Aid


                                               -9-
secretary). Each of these explanations is race neutral because it is “based on

something other than the race of the juror.”          Hernandez , 500 U.S. at 360.   3



       When reviewing peremptory challenges, “we must keep firmly in mind that

Batson ’s holding rests squarely on the Equal Protection Clause.”            United States v.

Uwaezhoke , 995 F.2d 388, 393 (3d Cir. 1992). In the context of             Batson , the

Equal Protection Clause does not protect an individual from being removed from

a jury because of the particular viewpoints she is suspected of holding; it only

prohibits the removal of a juror for viewpoints attributed to the juror because of

her race. Where a prosecutor alleges that an individual may have acquired

sympathies or prejudices through her employment,            4
                                                                and not simply because she




       3
        In the two cases defendant cites on this issue, the prosecutors’ articulated
reasons for exercising peremptory challenges were based, at least in part, upon the
race of the juror. See United States v. Wilson, 884 F.2d 1121, 1124 (8th Cir.
1989); Thompson v. Florida, 548 So. 2d 198, 202 (Fla. 1989). Hence, because the
reason given in the present case was based on the juror’s employment, the cited
cases are inapposite to our analysis. We recognize that the Ninth Circuit, in
United States v. Bishop, 959 F.2d 820 (9th Cir. 1992), found the government’s
strike of a black juror because she lived in a high-crime neighborhood to be an
impermissible surrogate for racial bias. However, that case and similar state
cases are distinguishable from this case on their facts and, in any event, do not
control our decision.


      Contrary to the dissent’s assertion, the holding in this case does not extend
       4

beyond the place of employment, as the text makes clear.

                                               -10-
shares the race of the defendant, the prosecutor has articulated a race-neutral

explanation.    5



       Of course, the trial court is not obligated to believe the reason given by the

prosecution. If it concludes that the juror was actually struck because of his or

her race, it may reject the government’s proffered reason as pretextual. However,

the question of whether a prosecutor’s explanation is merely a pretext for racial

bias should be addressed in step three of the       Batson analysis, see Purkett , 514

U.S. at 768; at the second stage “the issue is the facial validity of the prosecutor’s

explanation.”       Hernandez , 500 U.S. at 360. In the present case, after the

prosecutor articulated his race-neutral reason for striking Ms. Brown, and after

defendant offered his counter argument, the district court accepted the

prosecutor’s explanation. Because this decision rests primarily on credibility

determinations, we give great deference to the district court’s findings.       See

Batson , 476 U.S. at 98 n.21. In reviewing the record, we find no clear error.

       In sum, we hold that, as a matter of law, the prosecutor offered a race-

neutral explanation for his peremptory strike of Ms. Brown, and that the district

court did not err in its ultimate conclusion that the defendant failed to prove

purposeful racial discrimination.


       5
        Indeed, the defense in this case could have exercised a peremptory
challenge to remove a McDonald’s worker from the jury pool, on the theory that
his or her workplace associations may have produced an anti-minority bias.

                                             -11-
                                  II. Jury Instructions

       The indictment charged that

       on or about September 25, 1997, in the Central Division of the
       District of Utah, Luis Alberto Ramirez-Soberanes, the defendant
       herein, then being an alien illegally and unlawfully in the United
       States of America, did knowingly possess in and affecting interstate
       commerce a firearm . . . in violation of Title 18, United States Code
       § 922(g)(5).

Indictment at 1-2, R. Vol. I, Doc. 10. In a § 922(g) case, the government may

prove possession that is either actual or constructive.    See United States v.

Cardenas , 864 F.2d 1528, 1533 (10th Cir. 1989). On this requirement, the district

court instructed the jury as follows: “If you find that the defendant either had

actual possession or had ownership, dominion, or control over the firearm, even

though it may have been in the physical possession of another, you may find that

the government has proved possession.” Instruction No. 19, R. Vol. I, Doc. 91.

       Defendant contends that, under      Mills , constructive possession occurs only

when a person “knowingly holds ownership, dominion, or control over the object

and the premises where it is found,” 29 F.3d at 549 (emphasis added), and that the

district court erred by omitting the words “and the premises where it is found”

from the instruction.

       Because defendant did not object to the instruction given, we review for

plain error only.   See United States v. Fabiano , 169 F.3d 1299, 1302 (10th Cir.

1999). However, we note that the standard of review does not control our

                                             -12-
decision, as we conclude that, under any standard, the omission of the words “and

the premises where it is found” was not erroneous.

       In United States v. Culpepper , 834 F.2d 879 (10th Cir. 1987), we

reaffirmed a twenty-year-old holding that a person has constructive possession of

an item when he “knowingly hold[s] the power and ability to exercise dominion

and control over it.”      Id. at 881 (citing United States v. Massey , 687 F.2d 1348,

1354 (10th Cir. 1982); United States v. Zink , 612 F.2d 511, 516 (10th Cir. 1980);

Amaya v. United States , 373 F.2d 197, 199 (10th Cir. 1967)). We restated the

“dominion and control over the item” rule in         United States v. Parrish , 925 F.2d

1293, 1296 (10th Cir. 1991),       abrogated on other grounds by    United States v.

Wacker , 72 F.3d 1453 (10th Cir. 1996), and added that, in some instances,

“[e]xercising dominion and control over a residence where contraband is

concealed may constitute constructive possession of the narcotics.”          Id.

       After Parrish , a panel of this circuit stated that   “[g]enerally, a person has

constructive possession of narcotics if he knowingly has ownership, dominion or

control over the narcotics     and the premises where the narcotics are found      .”

United States v. Hager , 969 F.2d 883, 888 (10th Cir. 1992) (emphasis added),

abrogated on other grounds by       Bailey v. United States , 516 U.S. 137 (1995). For

this proposition, the Hager panel cited only Parrish . However, in suggesting a

two-part test that lists    in the conjunctive the requirements that a person have


                                              -13-
ownership, dominion or control over the contraband            and over the premises where

it is found , Hager departed from both Parrish and the constructive possession

standards of other circuits that use similar language but list the factors in the

disjunctive . 6

       Since Hager , many of our cases (including the          Mills case cited by

defendant) have repeated this general statement, although none of them have been

decided based on a conjunctive requirements of dominion over an item                and the

premises. However, in other recent cases, we have cited the             Culpepper definition,

finding constructive possession where the defendant has the power to exercise

control and dominion over the item alone.            See, e.g. , United States v. Sullivan ,

919 F.2d 1403, 1430 (10th Cir. 1990);       United States v. Simpson , 94 F.3d 1373,

1380 (10th Cir. 1996).   In any event, Culpepper is the law in this circuit;

therefore, constructive possession exists where the defendant has the power to

exercise control or dominion over the item.           See 834 F.2d at 881. Control or



       6
        See, e.g., United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992)
(constructive possession when evidence shows “ownership, dominion, or control
over the contraband itself or the premises or vehicle in which the contraband is
concealed”) (emphasis added); United States v. McKnight, 953 F.2d 898, 901 (5th
Cir. 1992) (constructive possession when evidence shows “ownership, dominion,
or control over the contraband itself or over the premises in which the contraband
is located”) (emphasis added); United States v. Wainwright, 921 F.2d 833, 836
(8th Cir. 1990) (constructive possession over contraband when evidence shows
“ownership, dominion or control over the contraband itself, or dominion over the
premises in which the contraband is concealed”) (emphasis added).

                                              -14-
dominion over the premises where the item is found is therefore a factor,      see

Parrish , 925 F.2d at 1296, but not a requirement, for finding constructive

possession of the item itself. Accordingly, the district court’s omission of the

words “and the premises where it is found,” whether intentional or accidental,

was not error.

       Defendant also complains that, under the instruction given, mere ownership

of the gun would be sufficient to constitute constructive possession. However,

defendant did not make this specific objection in any of the discussions of the

jury instructions. Accordingly, we will not reverse unless the district court

committed plain error.    See Fabiano , 169 F.3d at 1302. Such an error must be

obvious and affect the defendant’s substantial rights.      See United States v. Olano ,

507 U.S. 725, 731 (1993). We see no obvious error in the district court’s

instruction, and furthermore, see nothing that “‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’”     United States v. Young ,

470 U.S. 1, 15 (1985) (quoting     United States v. Atkinson , 297 U.S. 157, 160

(1936)). Accordingly, we find no plain error.



                            III. Constructive Amendment

       Defendant next contends that the prosecutor’s statements in closing

argument, where he told the jury that possession on either March 15 or


                                            -15-
September 25 was sufficient for conviction, constructively amended the

indictment and allowed the jury to convict him for possessing the gun on a date

not charged in the indictment. We disagree.

       The Supreme Court has emphasized that the Fifth Amendment does not

“permit a defendant to be tried on charges that are not made in the indictment.”

Stirone v. United States , 361 U.S. 212, 217 (1960). A constructive amendment

occurs when the evidence presented, together with the jury instructions, raises a

substantial likelihood that the defendant was convicted of an offense other than

that charged in the indictment,   United States v. Hornung , 848 F.2d 1040, 1046

(10th Cir. 1998), and requires reversal per se.

       Even if we assume that the March 15 possession was a different offense

than the “on or about September 25” possession charged in the indictment, we

conclude that there is no substantial likelihood that the jury convicted defendant

for his March 15 purchase. The court’s instructions to the jury properly limited

the charges on which defendant could be convicted to those occurring “on or

about September 25.” Instruction No. 17, R. Vol. I, Doc. 91. In its opening

charge, the court instructed the jury that “the statements, the arguments, the

objections by the attorneys are not evidence” and that they “must not consider

them.” R. Vol. VII at 53. In its final instructions, the court instructed the jury

that if any difference appears between the law as stated by counsel and that stated


                                          -16-
by the court in its instructions, the instructions govern.        See Instruction No. 1, R.

Vol. I, Doc. 91. We must presume that the jurors remained loyal to their oaths

and conscientiously followed the district court's instructions.         See Francis v.

Franklin , 471 U.S. 307, 324 n.9 (1985). Furthermore, the prosecutor’s rebuttal

argument focused entirely on the evidence of defendant’s September 25

constructive possession.

       Accordingly, we conclude that the prosecutor’s stray comments during

closing argument did not constructively amend the indictment.            Cf. United States

v. Williams , 106 F.3d 1173, 1176 (4th Cir. 1997) (no impermissible amendment

when indictment alleged distribution of methamphetamine and prosecutor’s

closing argument indicated that admission to distribution of marijuana proved

guilt, because jury instructed that closing argument not evidence);         United States

v. Russo , 708 F.2d 209, 212-14 (6th Cir. 1983) (no impermissible amendment of

indictment charging extortion by threats of economic loss when evidence

introduced at trial demonstrated extortion by threats or fear of violence because

jury instructions clearly limited charge to extortion by threat of economic loss).



                                   IV. Burden Shifting

       Defendant’s final contention is that the prosecutor’s comments in closing

argument impermissibly shifted the burden of proof to the defense. In reviewing


                                             -17-
the prosecutor’s remarks, we think they are more properly characterized as an

attempt to summarize the evidence and comment on its probative value.

However, even assuming arguendo that the prosecutor’s comments implied a

burden shift, the district court immediately gave a curative instruction that was

accurate and straightforward. The prosecutor's closing arguments did not deprive

defendant of a fair trial.   See United States v. Dickey , 736 F.2d 571, 595-96 (10th

Cir. 1984).



                                     CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge




                                           -18-
99-4097, United States v. Ramirez-Sobreranes

LUCERO , Circuit Judge, concurring in part and dissenting in part.

       I concur in the majority opinion except as to the      Batson claim. As to that

issue, because the prosecution’s proffered reason for its peremptory challenge is

expressly race-based, I dissent.     Batson and its progeny clearly disallow the result

reached today.

       “[A] race-neutral reason for a peremptory challenge means a reason other

than race.” Hernandez , 500 U.S. at 371. In the present case, the prosecution

proffered an explicitly race-based explanation for its peremptory challenge

against venireperson Brown, an African American:

       S he works at McDonald’s . . . . [McDonald’s employees] have a
       tendency in fast-food restaurants to deal with—in lot of areas minority
       groups, legals, illegals. There may be some sympathies that are there
       one way or the other.

(VII R. at 49.) The record demonstrates that appellant is a member of a racial

minority. I simply cannot read the prosecution’s comment as being race-neutral

and thus conclude the trial court’s decision violates      Batson .

       Hernandez , involving a peremptory challenge to venirepersons because of

their language skills, holds that any race-neutral reason meets the prosecution’s

second-step burden. This case, by contrast, simply does not involve a race-

neutral reason.   7
                      In United States v. Bishop , 959 F.2d 820, 825-26 (9th Cir.


       7
           This case is also easily distinguishable from the other cases cited by the
                                                                         (continued...)
1992), the Ninth Circuit holds unconstitutional a peremptory challenge based on

a venireperson’s “sympathy for minorities” arising from her residence in a

minority neighborhood.       Bishop declares the prosecutor’s proffered reason

“amounted to little more than the assumption that one who lives in an area

heavily populated by poor black people could not fairly try a black defendant.”

Id. at 825. Contrary to the majority’s contention,       Bishop struck down the same

reason the prosecution proffered in the instant case—“sympathy for

minorities”—and thus is not distinguishable on its facts. With its holding today,

the majority creates a circuit split in this area of    Batson jurisprudence.

       Most importantly, I am troubled by the short shrift the majority opinion

accords to the core constitutional concerns underlying        Batson . The instant case

differs factually from    Batson only in that the prosecution has challenged the

venireperson, an African American, because of her          sympathies for minorities, not

because she is herself a minority. That factual difference does not render the

government’s explanation constitutionally acceptable.          See Bishop , 959 F.2d at

825-26. Under the majority’s approach,          Batson is stripped of all practical

significance: To justify the exercise of peremptory challenges, parties seeking to



       (...continued)
       7

majority in support of the constitutionality of “peremptory challenges based upon
the employment of the juror.” (Maj. Order at 9.) None of those cases uphold
peremptory challenges for which a party proffered a race-based reason.


                                              -2-
exclude minority venirepersons from juries, in deliberate contravention of the

Supreme Court’s Batson jurisprudence, henceforth need offer only “sympathy for

minorities,” by virtue of residence, family connections, or place of employment,

as a transparent proxy for venirepersons’ race, thereby eviscerating “‘the very

idea of a jury . . . composed of the peers or equals of the [defendant]; that is, of

his neighbors, fellows, [and] associates.’”     Batson , 476 U.S. at 86 (quoting

Strauder v. West Virginia , 100 U.S. 303, 308 (1879)) (further citation omitted).      8



       I would remand for a new trial.




       8
         That is not to say that the principle of Batson race-neutrality need be
taken to absurd extremes, for example, to prohibit the striking of a venireperson
who professes the intent to nullify with respect to minority jurors. Cf. Heno v.
Sprint/United Managment Co., Nos. 98-1085, 98-1093, 98-1154, at 1-4 (10th Cir.
April 3, 2000) (slip op.) (Seymour, Chief Circuit Judge, concurring) (discussing
the scope of the constitutional concerns underlying   Batson and Hernandez ). But
we do not face that situation in the present case, in which there is no allegation
that venireperson Brown had any such intention.

                                              -3-
