Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1988)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.Antonio MONROY, aka Antonio Benitez, Defendant-Appellant.
No. 88-5223.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 7, 1989.* Decided Aug. 22, 1989.
Before JAMES R. BROWNING, FARRIS and CANBY, Circuit Judges.
MEMORANDUM**
Antonio Monroy appeals his conviction for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 846, 841(a) (1). Specifically, Monroy alleges that the government impermissibly used a peremptory challenge in jury selection to remove a Hispanic juror and that the district court erred in not requiring the government to state its reasons on the record for exercising the peremptory challenge. We disagree and affirm.
On March 8, 1988, jury selection commenced in Monroy's trial. After exercising two peremptory challenges, the government agreed to accept the panel as constituted, including a juror with the surname Martinez. However, after the government accepted the panel, the defense removed a proposed juror who was replaced by Manuel Calderon. When the court finished asking Mr. Calderon a series of voir dire questions, the government peremptorily challenged Mr. Calderon. Monroy's counsel made a timely objection to the government's challenge, citing Batson v. Kentucky, 476 U.S. 79 (1986).
At the ensuing sidebar conference, the following exchange occurred:
THE COURT: Does the record disclose that he (Calderon) is of Latin descent?
DEFENSE: I believe, your Honor, his first name, Manuel Calderon, he appeared to have an accent, he appeared to be a Latin.
THE COURT: Does the government wish to respond?
GOVERNMENT: Yes, your Honor. The government will note for the record that the case agent in this case is of Hispanic descent; that one of the other agents who will testify for the government is also of Hispanic descent, and the confidential informant who will testify for the government in this case is of Hispanic descent. The government would also note for the record that the government accepted the panel prior to Mr. Calderon being called. That panel also had on it a Mr. Martinez who, by his last name, appears to be of Latin descent.
If the Court wishes the government to outline its reason, the government is prepared to do so, but does not feel on this record that it needs to do so.
* * *
* * *
THE COURT: I would think it is only fair for the Court to say this: That the Court was very close in its own motion to excusing Mr. Calderon. I think he showed questionable competence to serve as a juror. He started out by telling us that this was going to be a funny one. I tried to be helpful and was not successful in responding to that by telling him, you go ahead and tell us whatever it is that is going to be so funny.
It not only wasn't funny. The only funny thing was that he would have said a thing like that, and his responses left at least some doubt in the Court's mind as to whether he was--he had that degree of competence that would enable him to serve as a juror.
On appeal, Monroy contends that the government's exercise of a peremptory challenge to remove Mr. Calderon from the petit jury deprived him of due process and that the district court committed reversible error in not requiring the prosecutor to state on the record his reasons for exercising the peremptory challenge.
This circuit recently set forth the requirements for establishing discriminatory selection of jurors:
[A] defendant must first establish a prima facie case of purposeful discrimination. See Batson v. Kentucky, 476 U.S. 79, 96 (1986). A defendant must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the jury members of the defendant's race. Id.; United States v. Thompson, 827 F.2d 1254, 1256-57 (9th Cir. 1987). Then, the defendant must demonstrate that these facts and any other relevant circumstances raise an inference that the prosecutor used the challenge to exclude such jurors on account of race. Batson, 476 U.S. at 96.
United States v. Chinchilla, 874 F.2d 695, 697 (9th Cir. 1989) (footnote omitted). Only after the defendant has made a prima facie showing of discrimination does the burden shift to the government to articulate an explanation for challenging jurors of the defendant's race. Id. (citing Batson, 476 U.S. at 97; United States v. Alcantar, 832 F.2d 1175, 1179 (9th Cir. 1987)).1
Considering "the combination of circumstances taken as a whole," id. at 698, we conclude that the government was not required to set forth an explanation for removing Mr. Calderon because Monroy failed to establish a prima facie case of purposeful discrimination. Although not all Hispanic jurors must be challenged for a prima facie case to exist, "the willingness of a prosecutor to accept minority jurors weighs against the findings of a prima facie case." Id. at 698 n. 4 (citations omitted). In this case the prosecutor used his first two peremptory challenges to strike two apparently non-Hispanic jurors. Then the prosecutor accepted the panel as constituted, including Mr. Martinez. It was only after Mr. Calderon was questioned by the court and "showed questionable competence" that the prosecutor exercised a challenge against a Hispanic juror. There is no evidence of a pattern of strikes against Hispanics and no suggestion that the prosecutor otherwise demonstrated bias during voir dire. See Batson, 476 U.S. at 97. Even assuming that the exercise of a single peremptory challenge can constitute a Batson violation, Monroy has not "offered sufficient facts and circumstances to raise an inference that the prosecutor used [peremptory] challenges to exclude jurors on account of race." Chinchilla, 874 F.2d at 698. See United States v. Lewis, 837 F.2d 415, 417 (9th Cir.) (no inference of prosecutorial bias shown "beyond the exercise of a peremptory strike against a black venireman"), cert. denied, 109 S. Ct. 544 (1988). See also United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir.) (finding that the systematic exclusion of blacks could not be inferred from the exclusion of the only two black veniremen), cert. denied, 108 S. Ct. 262, 295 (1987).2
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
"While establishing a prima facie case, the defendant may rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate." Chinchilla, 874 F.2d at 697 n. 3 (citing Batson, 476 U.S. at 96)
We express no opinion whether Monroy succeeded in establishing that he is a member of a cognizable racial group and that Mr. Calderon is a member of Monroy's race
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