United States of America, Plaintiff-appellee, v. Luis Santiago-martinez, Defendant-appellant, 58 F.3d 422 (9th Cir. 1995)

We hold that the equal protection analysis in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) does not apply to prohibit peremptory strikes on the basis of obesity.

The defendant in this case was convicted on felony drug charges and now seeks to use the striking of obese venire persons to overturn his conviction. A detailed recitation of the facts is not necessary. It suffices to say that the prosecutor struck three venire persons whom defendant's counsel claimed were obese. Defense counsel himself claimed to be obese, although he acknowledged that the defendant was not. The district court disagreed with defense counsel's claim of his own obesity, and also stated that it did not regard at least one of the struck venire persons to be obese. The district court denied defense counsel's challenge.

Batson held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. Id. at 89, 106 S. Ct. at 1718. Batson involved a strike based on race, but the Supreme Court has applied its rationale to forbid strikes based solely on gender as well. J.E.B. v. Alabama ex rel. T.B., 511 U.S. ----, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). The Court concluded in J.E.B. that peremptory strikes based solely on gender cannot survive "heightened scrutiny" under the Equal Protection Clause. Id. at ----, 114 S. Ct. at 1425-1426. The Court explained that " [p]arties may ... exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review." Id. at ----, 114 S. Ct. at 1429.

As the defendant candidly concedes, no court has yet held that discrimination on the basis of obesity is subject to "heightened scrutiny" under the Equal Protection Clause.¹  We are not surprised, and decline to be the first to so hold. The judgment is

AFFIRMED.