13-525-cr
United States v. Bontzolakes


                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th
day of September, two thousand thirteen.

PRESENT:
                    JOSÉ A. CABRANES,
                    CHESTER J. STRAUB,
                    SUSAN L. CARNEY,
                                  Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                    Appellee,

                               v.                                   No. 13-525-cr

JACQUELINE BONTZOLAKES,

            Defendant-Appellant.
_____________________________________

FOR DEFENDANT-APPELLANT:                             TRACY HAYES, (MaryBeth Covert, Jayme L.
                                                     Feldman, Of Counsel, on the brief) Federal
                                                     Public Defender’s Office, Buffalo, NY.

FOR APPELLEE:                                        MONICA J. RICHARDS, Assistant United States
                                                     Attorney for William J. Hochul, United States
                                                     Attorney for the Western District of New
                                                     York, Buffalo, NY.
        Appeal from a judgment of conviction entered on January 28, 2013 by the United States
District Court for the Western District of New York (Billy Roy Wilson, Judge).*

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the cause be REMANDED to the District Court under
instructions to conduct a “reconstruction hearing,” or, if it is no longer possible to do so effectively,
to enter an order that the defendant is entitled to a new trial. See Barnes v. Anderson, 202 F.3d 150,
157 (2d Cir. 1999); Tankleff v. Senkowski, 135 F.3d 235, 250 (2d Cir. 1998).

        Defendant-appellant Jacqueline Bontzolakes appeals from the District Court’s judgment of
conviction, following a jury trial, for two counts of international parental kidnaping, in violation of
18 U.S.C. § 1204, and one count of making false statements, in violation of 18 U.S.C. § 1001(a)(1).
On appeal, defendant, represented by counsel, claims that the government’s use of peremptory
challenges against female members of the venire violated Batson v. Kentucky, 476 U.S. 79 (1986).1 We
assume the parties’ familiarity with the facts and procedural history of this case, to which we refer
only as necessary to explain our decision to remand the cause to the District Court.

                                                  BACKGROUND

         Defendant is a single mother of four children, including two minor daughters of different
fathers, N.G. and Z.B (jointly “daughters”). During the relevant period, defendant did not have
custody of N.G. and was in custody proceedings regarding Z.B. On October 13, 2009, defendant
applied for passports for her daughters, omitting the name of Z.B.’s father from the application.
The undisputed evidence presented at trial established that defendant then travelled with her
daughters, without permission or consent from their fathers or a court, to Barbados on February 15,
2010. Having overstayed her visa, defendant was arrested on March 23, 2010, deported from
Barbados to the United States, and then arrested by American law enforcement agents. At that time,
defendant stated that she had left the country with her children in order to protect N.G. from her
abusive father.

       A federal grand jury subsequently indicted defendant for two counts of international parental
kidnaping and one count of making false statements and the case proceeded to trial on September
24, 2012. During jury selection, after dismissals “for cause,” 31 jurors remained in the venire,

*The Honorable Billy Roy Wilson, United States District Judge for the Eastern District of Arkansas, sitting by
designation.

1 Defendant also raises a number of other claims on appeal, including that (1) the District Court erred in not granting her
a judgment of acquittal with respect to the international parental kidnaping counts; (2) the District Court erred in three
evidentiary rulings relating to her affirmative defense; and (3) the District Court committed procedural and substantive
error in sentencing. Given our remand of the cause based on defendant’s Batson challenge, we do not reach her other
claims.
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including 12 women. The government then employed five of its seven peremptory strikes to dismiss
women from this jury pool. Defense counsel raised a timely Batson challenge to the government’s
use of its peremptory strikes, arguing that this pattern of strikes and the resulting jury pool
constituted intentional discrimination on the basis of sex. In response, the District Court directed
the government to provide explanations for having stricken each of the female jurors. Following the
government’s proffer of reasons for most of the jurors, the District Court simply stated that the
government’s reasons were sufficient. After hearing the government’s explanations for dismissing
all five female veniremembers, the District Court denied defendant’s Batson challenge and the case
proceeded to trial. On September 27, 2012, the jury reached a guilty verdict on all counts.

        This timely appeal followed. Following oral argument on August 21, 2013, we requested,
and have now received, supplemental briefing by the parties on the degree of explanation a district
court is required to give with respect to the third step of the analysis set forth by the Supreme Court
in Batson.

                                           DISCUSSION

          On appeal, defendant claims that the government’s use of peremptory challenges against five
female members of the venire violated the Supreme Court’s holding in Batson v. Kentucky, 476 U.S. 79
(1986), and its progeny that a prosecutor’s use of certain peremptory challenges during jury selection
is prohibited by the United States Constitution. Although first announced in the context of race, we
note that since Batson, the Supreme Court has extended this doctrine to sex. See, e.g., United States v.
Martinez-Salazar, 528 U.S. 304, 315 (2000); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994); United
States v. Martinez, 621 F.3d 101, 107 (2d Cir. 2010).

        Batson adopted a burden-shifting approach for determining whether peremptory challenges
have been used in a discriminatory manner. First, the moving party must establish a prima facie case
of discrimination; the opposing party must then provide a neutral justification for the exercise of the
challenge; and, finally, the district court must evaluate whether the moving party has satisfied his
ultimate burden of establishing that the peremptory challenge was the result of “purposeful
discrimination.” Batson, 476 U.S. at 93–98; Martinez, 621 F.3d at 108-09.

        In the instant case, we are persuaded that defendant established a prima facie case of
discrimination based on sex, based on the government’s use of five peremptory strikes against
women, and the resulting composition of the venire. See Brown v. Alexander, 543 F.3d 94, 101 (2d
Cir. 2008) (“[W]e have said that we have no doubt that statistics, alone and without more, can, in
appropriate circumstances, be sufficient to establish the requisite prima facie showing.” (internal
quotation marks omitted)). Likewise, the record is clear that the District Court properly inquired
into the government’s sex-neutral justifications for dismissing each of the five female jurors. At
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issue, then, is the third step of the Batson inquiry, which requires a district court to make “an ultimate
determination on the issue of discriminatory intent based on all the facts and circumstances.” United
States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991).

         We have explained that “[t]he third-stage analysis [under Batson] compels courts to determine
the credibility of the proffered explanations.” Barnes v. Anderson, 202 F.3d 150, 156 (2d Cir. 1999).
Here, the District Court’s terse acceptances of the government’s sex-neutral justifications left
unclear whether it actually performed the determination required at the third step of Batson. Id. at
157 (finding error where “[i]t [was] not clear . . . whether the district court [ ] found that defendants’
explanation was credible and, therefore, that plaintiffs had failed to carry their ultimate burden of
proof or, instead, that defendants’ explanation merely sufficed to satisfy their second-step burden of
articulating a non-racial explanation.”). To the extent that the District Court made any
determinations at the third step of Batson—as opposed to merely accepted the government’s
statement of sex-neutral explanations at the second step of Batson—it did not, in most instances,
provide any basis for its determinations. Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000) (holding
that “the district court’s conclusory statement that the prosecutor’s explanations were [ ] neutral did
not satisfy Batson’s third step.”); Barnes, 202 F.3d 156-57 (“We cannot square the district court’s
explicit refusal to rule on the credibility of either attorney’s explanation with the court’s duty under
the third step of Batson.”); Alvarado, 923 F.2d at 257; cf. Jordan, 206 F.3d at 200 (“We also have
disapproved a trial court conducting its review of a Batson application with undue haste and ruling in
a summary fashion.”). In these circumstances, we remand the cause for the District Court to
conduct a “reconstruction hearing,” that is, “a hearing to reconstruct the prosecutor’s state of mind
at the time of jury selection, and thereby determine whether the proffered [sex]-neutral
explanation[s] for the striking of the [female] juror[s] w[ere] pretextual.” Dolphy v. Mantello, 552 F.3d
236, 240 (2d Cir. 2009). If, however, the District Court determines that the passage of time or other
factors have “unduly impaired” its ability “to make a fair determination of the prosecution’s intent,”
Alvarado, 923 F.2d at 256, it shall enter an order that the defendant is entitled to a new trial. See
Barnes, 202 F.3d at 157 (noting that the usual course of action is to “remand to the district court with
instructions either to re-conduct the Batson analysis or, if the district court determined that it was no
longer possible to do so effectively, to order a new trial.”); Tankleff, 135 F.3d at 250.




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                                           CONCLUSION

        For the reasons stated above, we REMAND the cause to the District Court under
instructions to conduct a “reconstruction hearing,” or, if it is no longer possible to do so effectively,
to enter an order that the defendant is entitled to a new trial. See Barnes v. Anderson, 202 F.3d 150,
157 (2d Cir. 1999); Tankleff v. Senkowski, 135 F.3d 235, 250 (2d Cir. 1998).

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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