08-5428-cv
U.S. v. Mayo


                      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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3rd day of November, two thousand eleven.

PRESENT: GERARD E. LYNCH,
         DENNY CHIN,
         SUSAN L. CARNEY,
                   Circuit Judges.

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UNITED STATES OF AMERICA,
                        Plaintiff-Appellee,

                     v.                                               No. 08-5428-cv

777 GREENE AVENUE, Real Property located at 777 Greene
Avenue, Brooklyn, NY 11221, 115 LYRIC CIRCLE, Real
Property located at 115 Lyric Circle, also known as 115
Whispering Woods, Brodheadsville, PA 18322, and $7,106
in U.S. CURRENCY seized from 777 Greene Avenue,
Brooklyn, NY 11221,
                                   Defendants-in-rem,

MARY MAYO,
                                   Claimant-Appellant.

–––––––––––––––––––––––––––––––––––––––––––––––––
FOR APPELLANT:               Stephen J. Marzen, Shearman & Sterling LLP, Washington,
                             D.C. (Forrest W. Treat and Jaclyn A. Barnao, on the brief).

FOR APPELLEE:                Tanya Y. Hill, Assistant United States Attorney (Varuni
                             Nelson and Evan S. Weitz, on the brief) for Loretta E. Lynch,
                             United States Attorney for the Eastern District of New York,
                             Brooklyn, New York.

       Appeal from the United States District Court for the Eastern District of New York

(Gleeson, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the decision of the district court is AFFIRMED.

       Plaintiff-appellee United States brought this civil forfeiture action against various

properties and currency pursuant to 18 U.S.C. § 981(a)(1)(C) and 21 U.S.C. § 881(a)(6) as

proceeds traceable to the exchange of controlled substances in violation of the Controlled

Substances Act, 21 U.S.C. §§ 801-976, and pursuant to 18 U.S.C. § 981(a)(1)(A) as property

involved in a money-laundering transaction in violation of 18 U.S.C. § 1956. Claimant-

appellant Mary Mayo asserted an ownership interest in the property, contending that the

property had been purchased with her legitimate earnings. During jury selection before a

magistrate judge (Mann, M.J.), the government used a peremptory challenge against the jury

panel’s only African American member. Mayo objected under Batson v. Kentucky, 476 U.S.

79, 83 (1986), and Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630 (1991) (applying

Batson to civil cases). The magistrate judge overruled Mayo’s objection, and the district

court subsequently refused, “on procedural grounds,” to entertain Mayo’s attempted appeal,

raised as it was (1) without providing the court with a transcript of the voir dire, (2) without


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having asked the magistrate judge to retain the challenged juror, and (3) only after the jury

had been summoned for empanelment. The jury having returned a verdict of forfeiture,

Mayo now appeals the district court’s Batson ruling. We assume the parties’ familiarity with

the underlying facts and procedural history of the case.

       The merits of Mayo’s initial Batson objection are not before us. Instead, we decide

whether the district court abused its discretion by finding, effectively, that Mayo had

forfeited her Batson appeal by her method of raising it. See United States v. Thomas, 303

F.3d 138, 142 (2d Cir. 2002) (reviewing similar case for abuse of discretion).

       It is well established that a defendant may default on a Batson challenge if she does

not timely object. Batson, 476 U.S. at 99; see also McCrory v. Henderson, 82 F.3d 1243,

1249 (2d Cir. 1996) (“[T]he failure to object to the discriminatory use of peremptory

challenges prior to the conclusion of jury selection waives the objection.”). An additional

level of procedural complexity results when voir dire is conducted before a magistrate judge,

apparently a common practice in the Eastern District of New York. See Thomas, 303 F.3d

at 140. In Thomas, we considered when an adverse ruling by the magistrate judge on a

Batson objection must be appealed to the district court in order to preserve the issue for

appeal to us. We held in Thomas that

              when jury selection is performed by a magistrate judge, it makes
              sense and serves the policies of Batson (which protect the rights
              of prospective jurors as well as the rights of the parties) for
              parties to appeal adverse Batson rulings to the district judge as
              promptly as may be done. In the future, delay in advising the
              district judge of a Batson issue promptly, and in any event
              before the jury is sworn, may (depending on circumstances, the
              remedies available, and the discretion of the court) result in
              waiver.

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Id. at 143-144. Thomas thus establishes that objections to a magistrate judge’s adverse ruling

must be put to the district judge “as promptly as may be done,” and that even objections

raised before the jury is sworn may result in waiver, depending on the totality of the

circumstances.

        Mayo had sufficient opportunity to appeal the magistrate’s ruling to the district court.

One and one-half days intervened between voir dire and the first day of trial, during which

time Mayo submitted a motion in limine, a proposed joint pretrial order, and several letters

to the district court. Despite these other pre-trial submissions, Mayo showed no interest in

raising the Batson issue until the district court, having ruled on the other motions and invited

the jury to enter the courtroom, almost off-handedly asked the parties whether there were

“any problems in connection with jury selection” that the parties wanted to address.

Although Mayo’s counsel responded affirmatively to this inquiry, he acknowledged that he

had made no attempt to obtain a transcript on which the district court might evaluate the

magistrate judge’s ruling and had not sought to have the magistrate judge retain the juror in

question so that she could be seated if the objection to the challenge were sustained. Asked

then by the district judge what relief he would propose, counsel had no answer, stating

instead that he raised the Batson issue simply in response to the judge’s question about

problems during jury selection. When pressed further on the incompleteness of the attempted

Batson appeal, counsel “frank[ly]” conceded that he had not addressed the issue with the

other motions because he “didn’t get to it in the list of other motions in limine” that he had

just argued to the district court.

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        Assuming arguendo that under some circumstances a last-minute appeal of a

magistrate judge’s Batson ruling would be timely, under the circumstances of this case, we

find no abuse of discretion in the district judge’s refusal to entertain the appeal. In order to

properly present an appeal, a party must provide the district court with sufficient information

on which to evaluate the magistrate judge’s ruling. If the party waits until moments before

empanelment to raise the issue, fails to present a proper record of the proceedings before the

magistrate judge, and fails to take steps to ensure the continued availability of the juror

whose exclusion is at issue, then under all the circumstances, including “the remedies

available,” Thomas, 303 F.3d at 143, the district court does not abuse its discretion by

deeming that appeal waived.

        Finally, Mayo complains that the recording of the relevant sections of voir dire was

inaudible, rendering the subsequent transcript incomplete. But this fact would be relevant

only if she had requested the transcript prior to raising the Batson issue before the district

court, which she did not do. The problems with the transcript did not come to light until well

after the jury was empaneled, when they were discovered by the district court itself. Had

Mayo timely sought a transcript and raised the issue, it would have been a simple matter for

the district court to have the magistrate judge relate what had occurred. As that was not

done, the eventual discovery that a transcript could not be prepared is irrelevant to the

disposition of the case. Accordingly, Mayo’s contention that the district court was obligated

to reconstruct the record before ruling on the appeal – something she never requested the

district court to do – is unavailing.



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       We have considered Mayo’s other arguments and find them to be without merit. For

the foregoing reasons, the judgment of the district court is AFFIRMED.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




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