Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

MEMORANDUM^* 

Defendant Vincent George Parks, Jr. appeals from his conviction for bank robbery and use of a firearm during commission of a bank robbery in violation of 18 U.S.C. §§ 2113(a) (d), 924(c) and 924(d) (1). He claims that: (1) the government's use of peremptory challenges to exclude two black jurors violated due process; (2) the district court erred in holding that his prior bank robbery conviction would be used to impeach him if he testified; (3) the court deprived him of an impartial jury and a fair trial by holding an ex parte conference with the jury, and (4) there was insufficient evidence to convict him. Because we conclude that Parks' claims are without merit, we affirm.

* Parks, who is black, claims that the government's use of peremptory challenges to exclude two black jurors, Esther Hudson and Juanita Givens, was constitutionally infirm because, he says, the jurors were excused solely based on their race. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (government may not use peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race). The government used its first peremptory challenge to exclude Hudson and its second to exclude Givens. The district court found no constitutional violation.

We review a district court's findings regarding purposeful discrimination in the jury selection process for clear error. See United States v. De Gross, 913 F.2d 1417, 1425 (9th Cir. 1990), rehr'g en banc granted, 930 F.2d 695 (9th Cir. 1991); United States v. Chinchilla, 874 F.2d 695, 697-98 (9th Cir. 1989).

After the government excluded the two jurors, the government and defense counsel held a sidebar meeting with the district judge. Upon questioning by the judge, the government denied that it was planning to excuse every black from the jury.¹  At defense counsel's request, the judge asked the government to articulate its reasons for challenging the prospective black jurors. The government said that Givens was challenged because of her background in social work and that Hudson was challenged because she had previously served as a juror in a case in which the prosecutor had been involved. Reporter's Transcript, Voir Dire ("RT/VD") at 57. The judge then stated that the government was warranted in exercising its challenge of Givens,²  but did not make a specific ruling relating to Hudson.³  Id.

To raise a Batson challenge, the defendant must first establish a prima facie case of discriminatory jury selection. See Batson, 476 U.S. at 96.⁴  The burden then shifts to the government to articulate a neutral, nondiscriminatory reason for the peremptory challenge. See id. at 97-98. The trial court must then determine "if the defendant has established purposeful discrimination." Id. at 98.

On appeal, Parks asserts that he established a prima facie case of discrimination because the government used its first two peremptory challenges to exclude blacks from the jury.⁵  Moreover, he argues that the government's reasons for excluding the jurors were merely a pretext for racial discrimination. Specifically, Parks argues that the government waited to exercise its peremptory challenge against Hudson until after it had discovered that the next prospective juror was white. In addition, he notes that the trial judge already had asked Hudson in open court whether she would be able to be fair and unbiased in light of her involvement in the previous case and that she had responded affirmatively. RT/VD at 49. Accordingly, he argues, the government's claim that it "would look better" if Hudson did not sit on the jury was not plausible.

Parks likewise argues that the government's statement that it had removed Givens because " [s]he was studying to be a social worker," RT/VD 57, was vague and non-specific. The government offered no explanation, he contends, as to how the study of social work would interfere with a person's ability to serve impartially as a juror. Accordingly, he contends, the government's explanations were a mere pretext for discrimination.

Finally, Parks argues that the district court failed to conduct the proper adversarial hearing to allow defense counsel to examine the prosecutor's statements. See United States v. Alcantar, 832 F.2d 1175, 1180 (9th Cir. 1987), appeal after remand, 897 F.2d 436 (9th Cir. 1990) (court must allow defense to hear and respond to the prosecutor's explanations in order to "help the judge decide whether the government's reasons were pretextual"). The court's failure to conduct such a hearing, Parks argues, deprived him of due process.

Although we agree that the prosecutor's explanations for rejecting the witnesses are tenuous, we do not evaluate them because we hold that Parks has failed to establish a prima facie case of discrimination. The mere striking of two black jurors, without more, does not establish a "pattern" of challenges against black jurors sufficient to raise an inference of discrimination. Chinchilla, 874 F.2d at 698. Moreover, defense counsel failed to make a record of other probative facts such as whether the government accepted any blacks on the jury. See Chinchilla, 874 F.2d at 698 n. 4 (willingness of prosecutor to accept minority jurors weighs against finding of prima facie case); De Gross, 913 F.2d at 1425-26 (striking of only Hispanic juror established prima facie case of discrimination).

In Chinchilla, we held that the defendant had met its evidentiary burden by showing that the prosecutor "(1) challenged all Hispanic jurors; (2) used his first peremptory challenge to strike the only Hispanic juror; and (3) exercised his sole challenge to the alternate pool to remove the only other Hispanic in the jury pool." Id. at 698 (emphases added) (citation omitted). Parks has made no showing, as the defendant did in Chinchilla, that the government singled out blacks for exclusion. He thus has failed to establish a prima facie case of discrimination. Because Parks has not met the threshold burden, we do not consider whether the government's explanations for striking the two jurors were adequate or whether the court conducted a proper hearing.

II

Parks contends that the district court erred in holding that his prior armed robbery bank conviction could be used to impeach him if he testified. He contends that his prior conviction was not automatically admissible for impeachment purposes under Federal Rule of Evidence 609(a) (2) because, he says, it was not a crime involving "dishonesty" or "false statement." Accordingly, he argues that admission of the felony conviction was subject to the balancing test of Rule 609(a) (1) and that the prejudicial impact of admitting the evidence far outweighed its probative value.⁶ 

Parks' claim is without merit. Because Parks did not testify, he waived his right to preserve for review his claim of improper impeachment with a prior conviction. See Luce v. United States, 469 U.S. 38, 43 (1984); United States v. Bagley, 837 F.2d 371, 376 (9th Cir.), cert. denied, 488 U.S. 924 (1988). Moreover, even if Parks had testified, his claim of improper impeachment would fail because in our circuit, a prior conviction for armed robbery is automatically admissible. See United States v. Kinslow, 860 F.2d 963, 968 (9th Cir. 1988), cert. denied, 110 S. Ct. 96 (1989) (armed robbery is a crime involving "dishonesty").

III

Parks claims that the court deprived him of an impartial jury and a fair trial by holding an ex parte conference with the jury. After the jury had completed its deliberations, it sent a note to the judge stating that a verdict had been reached. The jury also sent a second note stating: "To the judge--Members of the jury have concerns about their safety and request to speak to you or a member of your staff about same." CR 51; RT IV at 20-22, 24-26. At a sidebar conference, the court informed counsel that it planned to communicate ex parte with the jury about their fears. See RT IV at 20-21. Although defense counsel expressed concern that the jurors' fears may have influenced the verdict, the judge stated that there was no reason to interrogate the jury. See RT IV at 22. The jury returned to the courtroom and the verdict was announced. The court then asked the jurors to return to the jury room so it could speak to them. See RT IV at 23-24. After soliciting advice from counsel, the judge questioned the jurors about the basis of their fears and told them not to be concerned.

Parks argues that the trial judge improperly refused to question the jurors about whether, despite their fears, they had been able to view the evidence impartially. In addition, Parks argues that the ex parte meeting violated his due process and criminal procedure rights to be present at all stages of the trial under Fed. R. Crim. P. 43.

Parks' claims are unpersuasive. Parks has made no showing that he was actually prejudiced by the trial judge's ex parte contact with the jurors. See United States v. Madrid, 842 F.2d 1090, 1093-95 (9th Cir.), cert. denied, 488 U.S. 912 (1988); see also United States v. Birges, 723 F.2d 666, 671 (9th Cir.), cert. denied, 466 U.S. 943 (1984). Because the contact occurred after the jury had returned its verdict, it did not affect the verdict. See Madrid, 842 F.2d at 1093-95. In addition, although the judge informed counsel in open court of her intention to communicate ex parte with the jury and solicited suggestions from counsel as to how to proceed, see RT IV 24, defense counsel made no request to attend the conference nor did he make any post-trial motions. Accordingly, Parks waived any Rule 43 objection he might have had.

Moreover, the trial judge investigated the alleged jury bias and found that the jurors' fears were based on generalized concerns, rather than exposure to any extrinsic material. Although, as Parks points out, the trial judge did not conduct an evidentiary hearing to determine whether the generalized fears affected the jury's verdict, the court was not required to do so in this circumstance. As we stated in United States v. Soulard, 730 F.2d 1292, 1305 (9th Cir. 1984), " [a] trial court has considerable discretion in determining whether to hold an investigative hearing on allegations of jury misconduct or bias and in defining its nature and extent." We find no basis for holding that the trial court abused its discretion.

We also conclude that Parks was not deprived of his right to be present at trial because " 'the mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror.' " United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting Justice Stevens' concurring opinion in Rushen v. Spain, 464 U.S. 114, 125-26 (1983)). Rather, a defendant has a due process right to be present when his presence " 'is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only' " Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)).

As in Gagnon, defense counsel's presence at the meeting was not necessary to ensure fundamental fairness or a " 'reasonably substantial ... opportunity to defend against the charge.' " Id. (quoting Snyder) (page citation omitted)). Based on counsel's recommendations, the trial judge asked the jurors about the basis of their fears and concluded that they were insubstantial. Moreover, the court sought to allay the jurors' fears. As in Gagnon, defense counsel's presence at this meeting would not have altered the outcome or provided any helpful information. Accordingly, we find no procedural or due process violation.

IV

Parks claims there was insufficient evidence to convict him. In determining the sufficiency of the evidence, the standard of review is whether, viewing the evidence in the light most favorable to the government, a rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. See United States v. Power, 881 F.2d 733, 736-37 (9th Cir. 1989).

According to the evidence, defendant and his brother Kenneth drove to the apartment of Parks' girlfriend, Michelle Wallace, in defendant's white Mustang with a black top. Wallace testified that she later gave Kenneth the keys to her gray-silver Thunderbird. When defendant left, he was wearing a sweatshirt and sweatpants. At about 9:10 A.M. the next day, a masked man wearing a gray sweatshirt robbed the Bank of America branch about 1.4 miles from Wallace's apartment. The robber ran outside and sped away in a car identified as Wallace's Thunderbird. A bank customer identified Kenneth as the driver of the getaway car.

At about 9:15 A.M. the Thunderbird was observed speeding into the parking lot of Wallace's apartment complex with two black men in the front of the car. Parks was seen running to the door of Wallace's apartment and then running towards the driveway. A few minutes later, a white Mustang with a black roof was observed speeding out of the apartment complex. Wallace testified that between 9:30 and 10 A.M. Parks called her and told her his brother had thrown the keys to the Thunderbird on the steps of her apartment; that she should not use her car, and that the police might be coming to her apartment. When Wallace later told Parks that the police had impounded the Thunderbird in order to dust for fingerprints, he responded that they were wearing gloves. That evening, Parks and Kenneth met with Wallace and told her about the robbery and that witnesses had better remain quiet or they would not make it to court. On October 10 when FBI agents searched Parks' home, they seized a pair of "British Knights" high-top tennis shoes that were the same type worn by the bank robber in the surveillance photographs.

We conclude that this evidence is more than sufficient to support the jury verdict.

AFFIRMED.