                                                                                  PUBLISH

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                           MAR 09 2001
                                        No. 99-13688
                                                                        THOMAS K. KAHN
                                                                             CLERK

                           D.C. Docket No.99-06044-CR-WJZ


UNITED STATES OF AMERICA,
                                                                           Plaintiff-Appellee,

       versus

LOLETA ALLEN-BROWN,
                                                                       Defendant-Appellant.



                  Appeal from the United States District Court for the
                             Southern District of Florida

                                      (March 9, 2001)



   Before EDMONDSON and MARCUS Circuit Judges, and RESTANI*, Judge.



RESTANI, Judge:

       *
               Honorable Jane A. Restani, Judge of the US.Court of International Trade, sitting
by designation.
      Appellant, Loleta Allen-Brown, seeks reversal of her conviction for

importing cocaine and possession with intent to distribute. Allen-Brown alleges

that Batson v. Kentucky, 476 U.S. 79 (1986), does not apply in this case or that it

was applied in an erroneous manner by the trial court. We hold that the trial court

properly inquired into the defense’s utilization of peremptory challenges and that

Batson applies to race-based peremptory challenges made for the purposes of

achieving a more diverse jury.


                                       FACTS

1.    Course of Proceedings and Dispositions in the Court Below.

      On March 11, 1999, a federal grand jury in the Southern District of Florida

returned a two-count indictment charging appellant Loleta Allen-Brown with

importation of cocaine, in violation of 21 U.S.C. § 952(a) (1994) and 18 U.S.C. § 2

(Count I), and possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count II). The case proceeded to trial where

a jury returned a verdict finding Allen-Brown guilty as charged.

2.    Facts Pertaining to the Jury Selection Process.

      Following initial voir dire of thirteen seated prospective jurors, the

government raised two challenges for cause. Over defense counsel’s objection, the

district court excused one of the jurors, who was black, for cause; the government

                                          2
then exercised a peremptory challenge to excuse the other, who was white. Jury

questionnaires indicate that of the eleven remaining seated jurors, ten were white.

The defense then attempted to remove six white prospective jurors using

peremptory challenges. Uncalled in the venire were ten white and eight black

prospective jurors. At this point, the prosecutor raised a challenge pursuant to

Batson, and the district court requested that defense counsel offer race-neutral

reasons for his peremptory challenges. Defense counsel stated that he wanted to

excuse two jurors because they had served on other juries; another three jurors

because they had indicated in voir dire that they would prefer to hear the

defendant’s testimony; and a sixth juror for “no particular reason.” R58 at 53-57.

       Defense counsel denied that his six peremptory strikes of white jurors was

improperly racially motivated. He stated:

              Judge, we have predominantly Caucasian and we have no
              chance. We have the opportunity for peremptory
              challenges and that’s what we are doing. It is not based
              on race but just what we have been presented here.

R58 at 55.1


       1
          Citations to the record are indicated by an “R” followed immediately by the docket
exhibit number. The number following “at” refers to the page number.




                                               3
      The district court permitted the peremptory challenges as to three of the six

prospective white jurors whom the defense had attempted to strike. Defense

counsel objected, stating:

             Judge, over the defense objection. Judge, we have
             predominantly Caucasians and we have no choice in this
             matter, Judge.

R58 at 59.

      After new jurors were seated to replace those who had been dismissed,

defense counsel attempted to use peremptory challenges to exclude two of them -

an African-American female (who was employed by the Department of

Corrections) and a white male, Robert Mei. The prosecutor then requested that the

court solicit race-neutral reasons for defense counsel’s exclusion of Juror Mei.

Defense counsel responded:

             Judge, we have every right to exclude on peremptory
             challenges individuals that we don’t feel are, or we are
             not comfortable. I don’t think I am required to give a
             reason. There is no pattern. I have excluded an African-
             American.

             Judge, what this Government is saying is I cannot
             exclude anybody. That is what they are saying, and I
             don’t believe I am required to give a reason at this point.

R58 at 73.




                                          4
      The court understood defense counsel’s comments at the earlier sidebar as a

concession that he was attempting to exclude whites from the jury.

             You basically in a way have conceded the last time at
             sidebar that that is what you were attempting to do and
             that is inappropriate, to base a peremptory challenge
             strictly on race . . . .

R58 at 74.

      Defense counsel responded:

             Judge, for the record, I did not indicate I was excluding
             anybody based on race. The panel presented before me
             had one African-American. I had no choice in excusing
             anybody. If what the Government is saying is that if I am
             not allowed to exclude - if I want to exclude anybody it
             must be limited to African-American. And, Judge, I will
             not give a reason.

               If Your Honor wants to rule in the Government’s favor
             that is fine, Judge, over my objection, but I have no
             choice and at this point. I would challenge the panel as
             not being representative of the community.

R58 at 74-75.

      The district court sustained the government’s objection to the use of the

peremptory challenge as to Mr. Mei. A replacement juror was called, and trial

commenced without further challenge.




                                         5
                            STANDARDS OF REVIEW

      The application of the equal protection principles enunciated in Batson to the

exclusion of whites from a jury is an issue of constitutional law that is subject to

plenary review. United States v. Gilbert, 130 F.3d 1458, 1461 (11th Cir. 1997),

cert. denied, 523 U.S. 1088 (1998) (“Issues of constitutional law and statutory

interpretation are subject to plenary review.”).

      Courts reviewing the resolution of a Batson challenge give “‘great deference

to a district court’s finding as to the existence of a prima facie case.’” Cent. Ala.

Fair Housing Ctr., Inc. v. Lowder Realty Co., No. 99-6133, 2000 WL 1868145, at

*6 (11th Cir. Dec. 21, 2000) (quoting United States v. Stewart, 65 F.3d 918, 923

(11th Cir. 1995), cert. denied, 516 U.S. 1134 (1996)). De novo review is

inappropriate. See Stewart, 65 F.3d at 923 (citing United States v. Moore, 895

F.2d 484, 486 (8th Cir. 1990)). A district court’s finding as to why a juror is

excused is an issue of fact, and as such, it will not be disturbed on appeal “unless it

is clearly erroneous or appears to have been guided by improper principles of law.”

United States v. Williams, 936 F.2d 1243, 1246 (11th Cir. 1991), cert. denied, 503

U.S. 912 (1992).




                                           6
                                     DISCUSSION


       Batson holds that “by denying a person participation in jury service on

account of his race, the State unconstitutionally discriminate[s] against the

excluded juror.” 476 U.S. at 87 (citation omitted). Although the peremptory

challenges at issue in Batson were made by a government prosecutor against

African-American jurors, by its terms Batson is not limited to members of racial

minorities. It applies to anyone who is excluded from jury participation “on

account of his race.” Id. Since Batson, the Court has reaffirmed the central

meaning of Batson in holding that while “[a]n individual juror does not have a

right to sit on any particular petit jury, . . . he or she does possess the right not to be

excluded from one on account of race.” Powers v. Ohio, 499 U.S. 400, 409 (1991).

See also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618 (1991) (“a

prosecutor’s race-based peremptory challenge violates the equal protection rights

of those excluded from jury service”). In Georgia v. McCollum, 505 U.S. 42, 48

(1992), in which a criminal defendant exercised the challenges at issue, the court

stated, “[D]enying a person participation in jury service on account of his race

unconstitutionally discriminates against the excluded juror.” As we stated in

Stewart, 65 F.3d at 923, “A defendant’s misuse of the power of the court to deny a



                                             7
citizen her right to participate on a jury because of race is as reprehensible as a

prosecutor’s.”

       The Batson three-step procedure for evaluating an objection to a peremptory

challenge is as follows: (1) the objector must make a prima facie showing that the

peremptory challenge is exercised on the basis of race; (2) the burden then shifts to

the challenger to articulate a race-neutral explanation for striking the jurors in

question; and (3) the trial court must determine whether the objector has carried its

burden of proving purposeful discrimination. See Lowder Realty, 2000 WL

1868145, at *6 (citing Batson, 476 U.S. at 96-98).

       Plaintiff alleges that there was no prima facie showing of racial

discrimination. “No party challenging the opposing party’s use of a peremptory

strike . . . is entitled to an explanation for that strike . . . unless and until a prima

facie showing of racial discrimination is made.” Stewart, 65 F.3d at 925. In

Stewart, citing Batson and its progeny, we reaffirmed that a district court cannot

ignore the prima facie showing requirement, since to do so “would be to ignore the

Supreme Court’s repeated descriptions of that requirement as an integral part of

any Batson analysis.” Id. See also Lowder Realty, 2000 WL 1868145, at *6

(“‘[T]he establishment of a prima facie case is an absolute precondition to further

inquiry into the motivation behind the challenged strike.”). We further quoted


                                             8
Batson’s requirement that in order to determine whether a prima facie case has

been established,

             the trial court should consider all relevant circumstances.
             For example, a “pattern” of strikes against black jurors
             included in the particular venire might give rise to an
             inference of discrimination. Similarly, the [party’s]
             questions and statements during voir dire examination
             and in exercising his challenges may support or refute an
             inference of discriminatory purpose. These examples are
             merely illustrative.

Id. (quoting Batson, 476 U.S. at 96-97).

      Applying the highly deferential standard of review required by our

precedent, see Stewart, 65 F.3d at 923, we find the trial court did not abuse its

discretion in moving to the second step of the Batson analysis. Although in a

vacuum the first six defense challenges might have caused no alarm, the district

court was able to assess all of the circumstances, such as the racial composition of

the pool of remaining potential jurors, the race and ethnicity of the defendant, and

the type of crime charged. Cf. Lowder Realty, 2000 WL 1868145, at *7 (finding

challenge to jurors of particular race, without further contextual evidence,

insufficient to create inference of racial discrimination). The trial judge did not

elaborate on the reasons for his suspicion that the Constitutional rights of the

prospective jurors potentially excluded from the jury on the basis of race were

being violated. The totality of the circumstances, however, was sufficient to allow

                                           9
the district court to conclude that the first Batson step was met. The “prima facie”

requirement of Batson is not simply a limit on the court’s intrusion into counsel’s

thought processes; it also compels the trial court to act if it has a reasonable

suspicion that Constitutional rights are being violated in its presence.

      Assuming arguendo that the trial court erred in its assessment of whether a

prima facie case of discriminatory jury selection was made, appellant is not entitled

to a new trial. The district court found that defense counsel’s statements on their

face demonstrated a prohibited racial motive. The trial court is not permitted to

ignore such statements, nor are we.

      Stewart is no bar to this result. Had the trial court arrived at its factual

conclusion that peremptory strikes were being made on the basis of race, simply

because of insufficient neutral justification as to particular jurors, our statements in

Stewart as to the prima facie requirement would apply. In such a case an inference

is drawn from counsel’s explanations of its challenges. The inference may be

incorrect and the Constitutional rights at issue may in actuality be safe. In this

case, however, the trial court found that defendant’s counsel conceded that his goal

in striking the white jurors was to achieve a more racially diverse jury. Appellant

apparently draws the same conclusion from defense counsel’s statement that

defendant had no chance with a white jury and that that jury did not reflect the


                                           10
community. See Appellant’s Br. at 17. The district court reasonably concluded

from defense counsel’s own characterization of the overall defense plan and its

objections to a predominantly white jury that the Constitutional rights of the jurors

were at stake.2 See R58 at 74.

       This brings us to the final issue of whether race-based peremptory

challenges are permissible, if exercised by a criminal defendant to obtain a racially

diverse jury. The Constitutional right at issue here is the potential juror’s right not

to be excluded on the basis of race. As indicated, the rights of jurors do not depend

on which party to the case may assist in violating them. The jurors’ rights are

grounded in the Equal Protection Clause. See Batson, 476 U.S. at 85-89. Under

Supreme Court jurisprudence, race-based treatment is subject to strict scrutiny

under the Equal Protection Clause. Adarand Constructors, Inc. v. Pena, 515 U.S.

200, 235-37 (1995) (5-4 decision); Richmond v. J.A. Croson Co., 488 U.S. 469,

493-94 (1989) (plurality opinion). The standard of review under the Equal

Protection Clause “is not dependent on the race of those burdened or benefited by a

particular classification.” Croson, 488 U.S. at 494 (plurality opinion). The Equal

       2
          This is not to say the objective of excluding jurors of a particular race in order to obtain
a racially diverse jury is fatal if combined with a non-race based motivation. See United States
v. Tokars, 95 F.3d 1520, 1533 (11th Cir. 1996), cert. denied, 520 U.S. 1151 (1997); Wallace v.
Morrison, 87 F.3d 1271, 1274 (11th Cir.), cert. denied, 519 U.S. 1044 (1996). In this case,
however, counsel did not attempt to establish that the jurors would have been challenged for
non-race based motives, as well.

                                                 11
Protection Clause contains a principle of “consistency” that recognizes that “any

individual suffers an injury when he or she is disadvantaged by the government

because of his or her race, whatever that race may be.” Adarand, 515 U.S. at 230.

      There is no compelling justification for race-based discrimination here that

satisfies the strict scrutiny standards. Appellant does not claim that the Sixth

Amendment is implicated because a fair cross-section of the community was not

made available for jury selection. Cf. 28 U.S.C. § 1861 (“It is the policy of the

United States that all litigants in Federal courts entitled to trial by jury shall have

the right to grand and petit juries selected at random from a fair cross section of the

community . . . .”). Moreover, appellant has no fundamental federal right to

exercise challenges to particular jurors free from judicial examination. On the

contrary, such judicial examination is essential to ensure the Constitutional rights

of persons to be free of exclusion from jury service based on race. Finally, the

number of peremptory challenges allowed is subject to alteration simply by

amending the Federal Rules. See Fed. R. Civ. P. 47; Fed. R. Crim. P. 24.

However important fully peremptory challenges may be to trial counsel, the right

to exercise them is neither immutable nor unconditional. Cf. McCollum, 505 U.S.

at 57 (“[P]eremptory challenges are not constitutionally protected fundamental




                                           12
rights; rather, they are but one state-created means to the constitutional end of an

impartial jury and a fair trial.”)

       Accordingly, we find no error or abuse in the trial court’s scrutiny of

defendant’s peremptory challenges, nor in its grant of the government’s objections

to some of the challenges.

       The judgment of the district court is

       AFFIRMED.




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