
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1320                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     JULIO PEREZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                     Coffin and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Raymond E. Gillespie for appellant.            ____________________            Frank A. Libby,  Jr., Assistant United States Attorney, with  whom            ____________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   October 7, 1994                                 ____________________               COFFIN,  Senior  Circuit Judge.    This is  an  appeal under                        _____________________          Batson  v. Kentucky, 476 U.S.  79 (1986), from  the trial court's          ______     ________          allowance  of a  prosecutor's peremptory  challenge to  a Spanish          surnamed  juror.  Finding that  it was not  clearly erroneous for          the trial court to  reject appellant's claim that the  strike was          racially motivated, we affirm the judgment of conviction.               During  jury selection  in  a  drug  conspiracy  prosecution          against appellant and several  co-defendants, all bearing Spanish          surnames, one of  the first twelve  names drawn was that  of Ruth          Santiago.    At  sidebar  the  court  questioned  several  of the          prospective jurors and excused three.   Then the government moved          to strike Ms. Santiago.  The following colloquy took place.               MR. LIBBY:     The government would strike No. 40, Juror                               No. 3.               MR. BROWN:     Your Honor, note my  objection to that.  This                              woman is the only  Spanish surnamed person on                              this jury list.               THE COURT:     Perhaps  Mr.  Libby  would explain  why  he's                              challenging that juror.               MR. LIBBY:     Has nothing  to  do with  her  surname,  your                              Honor.   We note that in  discussion with co-                              counsel,  she's  a  receptionist   at  Boston                              Housing Authority.               THE COURT:     Therefore?               MR. LIBBY:     Therefore, we believe that if she's in the                               inner city, she may have, who knows, more                               contact with seeing drugs in BHA operated                               apartments.  Who knows how that cuts?  It has                              nothing to do with the basis of her surname.               MR. GILLESPIE: Join in the objection.               MR. GEDIMAN:   I would like to join in the objection.               MR. KERNER:    Outrageous, your Honor.                                         -2-               MR. GEDIMAN:   Outrageous.  The reasoning makes no sense.               MR. BROWN:     Case  law is  very clear,  as you  know, your                              Honor.               MR. LIBBY:     Can you give us a second?               [Pause.]               MR. LIBBY:     Your   Honor,   government's  objection   has                              nothing to  do with her surname,  we stand on                              the strike.               THE COURT:     I understand.  The defendants have any?               MR. BROWN:     Just a few, your Honor.               Jury selection  then continued,  the  government making  one          other peremptory challenge and  one of appellant's  co-defendants          making several.   After  making the defendants'  final collective          peremptory challenge, co-defendant's counsel asked for additional          challenges "[i]n  light of the government's  outrageous strike of          the only Hispanic surname[d] person of the jury."  The court gave          one  additional   challenge,  saying,  "[n]ot   because  of   any          outrageousness, but general sense of fairness."  Finally,  a jury          of  twelve  and two  alternates  was  chosen,  and,  without  any          objection, sworn.                                      Discussion                                      __________               A  three  part test  is  used to  evaluate  equal protection          challenges to  a prosecutor's  exercise of peremptory  strikes of          potential jurors.   Batson, 476  U.S. at 96-98.   Initially,  the                              ______          burden is upon the defendant  to make a prima facie  showing that          the prosecutor has struck a potential  juror because of race.  At          the second stage, once a prima  facie case has been made out, the          burden  shifts to  the  prosecutor to  articulate a  race-neutral                                         -3-          explanation  for   the  strike.    Finally,   if  the  prosecutor          articulates  a race-neutral  reason, the  trial court  is charged          with deciding  whether the defendant  has carried  his burden  of          proving that the strike constituted purposeful  discrimination on          the basis of race.  See Hernandez v. New York, 500 U.S. 352, 358-                              ___ _________    ________          59 (1991) (citing Batson).    We  pass,   without  analysis,  the                            ______          question  whether  appellant had  made a  prima facie  showing of          intentional  discrimination, inasmuch  as the  prosecutor offered          his  explanation  and  the  trial   court,  by  its  comment,  "I          understand,"  and  its   upholding  of  the  challenged   strike,          effectively  "ruled  on  the  ultimate  question  of  intentional          discrimination."  Hernandez,  500 U.S. at 359.   Whether or not a                            _________          prima facie showing of discrimination was made is therefore moot.               The next step of  the inquiry is whether the  prosecutor met          his burden  of articulating a race-neutral basis for striking Ms.          Santiago.   In this context, an explanation may be "race neutral"          even though  it does  not produce uniform  results across  racial          lines.  See  id. at 362 ("[D]isparate  impact . .  . will not  be                  ___  ___          conclusive in the preliminary  race-neutrality step of the Batson                                                                     ______          inquiry.").   Rather, an explanation is race neutral simply if it          is               based on something  other than the  race of the  juror.               At  this step of the  inquiry, the issue  is the facial               validity  of the  prosecutor's explanation.   Unless  a               discriminatory intent is  inherent in the  prosecutor's               explanation,  the  reason offered  will be  deemed race               neutral.          Id.  at 360.  Here,  the prosecutor's stated  reason for striking          ___          Ms. Santiago was  that her  employment as a  receptionist at  the                                         -4-          Boston Housing Authority in the "inner city" may have exposed her          to drugs.  Regardless  of whether one accepts  that this was  the          prosecutor's true  motive, on its  face this explanation  is race          neutral.  First, it  is based on "something other"  than the race          of the  juror.   Second,  racially discriminatory  intent is  not          inherent  in striking a potential juror, in a drug trial, because          of suspicion of possible exposure to drugs during employment at a          city  housing authority.    Said differently,  this same  concern          might  motivate exercise  of  a peremptory  challenge  to a  non-          Hispanic potential juror as well.1                 We  note that  this  explanation certainly  might have  been                                                           _____          offered  as pretext  to  cover the  prosecutor's  true intent  to          strike Ms.  Santiago because  she was  Hispanic.  Indeed,  "inner          city exposure to drugs" is quite susceptible to impermissible use          as proxy  for the  race-based exercise of  peremptory challenges.          But, at the  second stage of the Batson inquiry,  we believe that                                           ______          this explanation  falls within the Supreme  Court's definition of          being  race neutral.   The  fact that,  if this  explanation were          applied  generally, it  may serve  to exclude  a disproportionate          number  of  minority  jurors,  is used  only  "as  circumstantial          evidence of discriminatory intent at the third stage and not as a                                        ____________________               1    Appellant claims that  the prosecutor's explanation was          facially   pretextual,  laying   particular  emphasis   upon  the          prosecutor's reference  to Ms. Santiago's residence  as being "in          the inner city."  On appeal, he now identifies for the first time          two other jurors without Spanish surnames with jobs or residences          at inner city  locations.   But appellant's focus  on inner  city          living skips  over the prosecutor's stated  apprehension that the          challenged  juror, because of her job as a receptionist, may have          had "more contact with seeing drugs in BHA operated apartments."                                         -5-          controlling  legal factor  in  the  second."   United  States  v.                                                         ______________          Uwaezhoke, 995 F.2d 388, 393 (3d Cir. 1993), cert. denied, 114 S.          _________                                    ____________          Ct. 920 (1994).                At  the third stage, once the defendant's burden to make out          a  prima facie case and  the prosecutor's burden  to articulate a          race- neutral explanation for the strike have been met, it is for          the  trial court to decide  the ultimate question  of whether the          defendant has proved  that the prosecutor's strike was,  in fact,          motivated by race.  Hernandez, 500 U.S. at 359; Batson,  476 U.S.                              _________                   ______          at 98.   In other words,  the trial court must  choose whether to          believe the prosecutor's race-neutral explanation or to find that          the explanation  was pretext to  cover race-based motives.   This          determination turns upon  an assessment of the credibility of the          prosecutor's  explanation, the  "best evidence"  of  which "often          will  be  the  demeanor   of  the  attorney  who  exercises   the          challenge."   Hernandez, 500 U.S.  at 365.   Since "evaluation of                        _________          the  prosecutor's   state  of   mind  based  upon   demeanor  and          credibility lies `peculiarly within the trial judge's province,'"          id.  (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)), "the          ___           __________   _____          trial court's  decision on  the ultimate issue  of discriminatory          intent  represents a finding of  fact of the  sort accorded great          deference  on appeal."   Id.  at 364.   We  would reverse  such a                                   ___          finding only if it is clearly erroneous.  Id. at 369.                                                    ___               Here, appellant's  co-defendant raised the  Batson challenge                                                           ______          and the trial  court elicited  from the  prosecutor his  facially          race-neutral  explanation  for the  strike.    Several other  co-                                         -6-          defendants, including  appellant, then  joined in  the objection.          After  conferring,  government  prosecutors  reiterated  that the          strike was  not race based,  and, apparently  confident that  the          explanation already given was  sufficient, stated that they would          "stand  on the  strike."   The  court  responded by  stating,  "I          understand," and proceeded to  ask defendants if they elected  to          exercise any of their remaining peremptory challenges.                 In  effect,   therefore,   the  court   denied   defendants'          challenge,   presumably   crediting   the  prosecution's   stated          explanation  and finding  that the  strike was  not impermissibly          motivated.  The district judge, who may  have been aware of major          areas of  drug activity in the  Boston area, and who  was able to          assess the  prosecutor's demeanor  at the moment  the explanation          was  given, evidently believed  that the  stated reason  had some          basis in fact.  We cannot say that the prosecutor's stated reason          was  so illogical that it failed, as  a matter of law, to support          the trial judge's finding.   As in Hernandez, "[t]he  trial court                                             _________          did not commit  clear error  in choosing to  believe the  reasons          given by the prosecutor."  Hernandez, 350 U.S. at 372.                                     _________               Although we uphold the  judgment in this case, as  a general          matter  district  courts should  articulate  the  bases of  their          factual findings  related to Batson challenges  more clearly than                                       ______          occurred here.  Specifically, especially in the face of continued          disagreement by  defense counsel,  a district court  should state          whether  it finds the proffered reason for a challenged strike to          be  facially race neutral or inherently discriminatory and why it                                         -7-          chooses to credit or discredit the given explanation.  Indicating          these  findings  on  the  record has  several  salutary  effects.          First,  it fosters  confidence in  the administration  of justice          without  racial animus.  Second,  it eases appellate  review of a          trial court's Batson ruling.   Most importantly, it ensures  that                        ______          the  trial   court  has  indeed  made   the  crucial  credibility          determination that is afforded such great respect on appeal.                 The fact that no  such express findings were made  here does          not convince us to reverse.  We  note that this is the first time          our Circuit has announced the desirability of express Batson fact                                                                ______          findings.  Moreover, after  the court allowed Ms. Santiago  to be          struck without  making express fact  findings, just as  in United                                                                     ______          States  v. Pulgarin, 955 F.2d 1, 1  (1st Cir. 1992), "[t]here was          ______     ________          no  further comment from defense counsel by way of elaboration of          his  thought, objection,  dissatisfaction  with the  prosecutor's          explanation,  or  request for  examination."   At that  point, if          defense  counsel felt that the trial court had failed to actually          assess the prosecutor's credibility or  had made a precipitous or          erroneous  judgment, it  should have pointed  this out.   Counsel          could   have  explained   why  the  prosecutor's   rationale  was                                    ___          "outrageous,"  "made  no  sense,"  and  did  not  deserve  to  be          credited.    The  prosecutor   then  could  have  elaborated  his          reasons2 and the court presumably  would have expressly made  the                                        ____________________               2    Indeed, in  oral argument before us  the prosecutor did          elaborate on the  reason for  his association  of BHA  apartments          with  possible exposure  to drugs:  The United  States Attorney's          Office had,  in the  prior year,  been  engaged in  a major  drug          prosecution  against  more  than   fifty  defendants  accused  of                                         -8-          above  two findings.  Since defendant failed to pursue the matter          further  at voir dire, upsetting the judgment  for lack of a more          detailed explanation by the  trial court in this case  would make          little sense.                   Affirmed.               _________                                        ____________________          carrying  on their  organized  operations out  of Boston  Housing          Authority apartments.   Ostensibly,  if defense counsel  had more          extensively argued that the  proffered reason was pretextual, the          prosecutor  might have informed the  trial judge of  this fact as          well.                                         -9-
