United States v. Cezaire ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1721
UNITED STATES OF AMERICA,
Appellee,
v.
LYNROLTE CEZAIRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
James M. Falvey for appellant.
Robert E. Richardson, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
September 23, 2019
BARRON, Circuit Judge. Lynrolte Cezaire challenges her
2017 convictions, after trial in the United States District Court
for the District of Massachusetts, for disclosure of social
security numbers, in violation of 42 U.S.C. § 408(a)(8), and
aggravated identity theft, in violation of 18 U.S.C. § 1028A. She
was sentenced to one day of imprisonment for the first conviction
and to twenty-four months of imprisonment for the second. Cezaire,
who is Haitian American, raises only one issue on appeal: whether
the District Court abused its discretion by refusing her "request
for generalized and public race-based voir dire."
In arguing that the District Court abused its
discretion, Cezaire relies on Rosales-Lopez v. United States, 451
U.S. 182 (1981). There, the Supreme Court of the United States
held that, under the federal Constitution, a trial judge in a
criminal case must ask prospective jurors, at least as a group,
about their potential racial biases during voir dire when "racial
issues [are] 'inextricably bound up with the conduct of the
trial,'" such as when a defendant asserts that he was framed
because of his race. Id. at 189. The Court also held pursuant to
its supervisory powers over the federal judiciary that "federal
trial courts must [voir dire prospective jurors, at least as a
group, regarding racial bias] when requested by a defendant accused
of a violent crime and where the defendant and the victim are
members of different racial or ethnic groups," id. at 192, but
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that, otherwise, a federal district court's "[f]ailure to honor [a
defendant's] request . . . will be reversible error only where the
circumstances of the case indicate that there is a reasonable
possibility that racial or ethnic prejudice might have influenced
the jury," id. at 191.
Cezaire contends that, under Rosales-Lopez, her
convictions cannot stand. She asserts that she requested that the
District Court ask the prospective jurors as a group a question
during voir dire about whether any of them harbored racial bias,
the District Court denied that request, and there was a "reasonable
possibility" that racial bias might have affected the jury.1 Id.
To support that last contention, Cezaire notes that her "Haitian
background came up throughout the trial," as both Cezaire and the
government's main witness, Emeline Lubin, offered testimony
regarding their shared Haitian heritage and the Haitian practice
of establishing "sols" with family members in Haiti.
According to Cezaire, a "sol" is a "Haitian term that
refers to 'a short-term money saving method among a group of
people.'" Cezaire's testimony about "sols" was key, she claims,
because it helped to show that potentially incriminating text
messages between Cezaire and Lubin were actually about money she
1 Cezaire did not request that the District Court ask the
prospective jurors individually about their possible racial
biases, and so we do not address that issue.
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needed to withdraw from a "sol" she shared with an associate of
Lubin's brother.
To assess the merits of Cezaire's challenge, we begin by
reviewing the following colloquy between Cezaire's counsel and the
District Court that occurred during voir dire:
DEFENSE COUNSEL: Okay. I –- I didn’t ask
for this, but I wonder if the Court would
consider giving a race question to the jury.
My client’s Haitian American. I note that
the cooperating witness is also Haitian
American, but there obviously are going to be
witnesses who are not. I’m wondering if the
Court would give that type of instruction.
THE COURT: I don’t see anything in the case
that would make it necessary. It’s not that
kind -– you know, it’s not a -–
DEFENSE COUNSEL: It is not that kind of case,
but I just given the current climate in the
–-
THE COURT: I think –-
DEFENSE COUNSEL: -- country, I always think
it’s prudent to err on the side of caution to
the extent that any jurors might give –-
THE COURT: I think that the issue will be
–- anyone who would answer the question
adversely to their public image would answer
one of my other questions that way, I think.
DEFENSE COUNSEL: Okay.
THE COURT: So let’s see.
DEFENSE COUNSEL: Thank you.
Cezaire contends that this colloquy shows that she
requested that a question concerning racial bias be asked of the
group of prospective jurors during voir dire and that the District
Court denied her request, such that her challenge is preserved and
our review is for abuse of discretion. But, we do not agree.
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The District Court did not respond to the initial
suggestion by Cezaire's counsel to ask a question about racial
bias during voir dire by simply refusing to grant it. The District
Court instead stated that, although it did not see anything about
the case that indicated a need to ask such a question, it would be
willing to consider that request after it had an opportunity to
question the prospective jurors about their biases in general. As
the District Court put it, "anyone who would answer the [race]
question adversely to their public image would answer one of my
other questions that way, I think."
But, at that point, Cezaire's counsel did not then object
to the proposed course of action. Instead, she simply said,
"[o]kay," to which the District Court then added, "let's see."
And Cezaire's counsel then brought the exchange to a close by
saying only, "[t]hank you."
The record further shows that, after the District Court
asked the prospective jurors about whether they harbored any biases
that might affect their impartiality, Cezaire's counsel did not
then request that the District Court ask an additional question
that probed specifically for racial bias. Instead, Cezaire's
counsel chose not to raise the issue at all until she did so in
her opening brief to us on appeal.
Accordingly, we conclude that, even if the record does
not suffice to show that Cezaire waived the objection to the
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District Court's failure to ask a question about racial bias during
voir dire, it does suffice to show that the objection was at least
forfeited.2 Our review, therefore, is only for plain error. United
States v. Espinal-Almeida, 699 F.3d 588, 600 (1st Cir. 2012)
(citing United States v. Rivera-Rodríguez, 617 F.3d 581, 600–04
(1st Cir. 2010)).3 And, as Cezaire fails to make any argument as
to how she can meet that demanding standard, her claim must fail.
To be sure, there is precedent to indicate that jurors
will be forthcoming in some instances in disclosing their racial
biases, even when asked in a group setting. See United States v.
Casanova, 886 F.3d 55, 59 (1st Cir. 2018) (noting that three jurors
stood up to answer "yes" when asked if they "had 'any feelings of
any kind that may affect [their] ability in any way to be a fair
and impartial juror in the trial of an African American
defendant'"); State v. Long, 575 A.2d 435, 469 (N.J. 1990)
(Handler, J., concurring in part and dissenting in part) (stating
2"Forfeiture is the failure to make the timely assertion of
a right, an example of which is an inadvertent failure to raise an
argument. Waiver, in contrast, is the intentional relinquishment
or abandonment of a known right." Barna v. Bd. of Sch. Dirs. of
Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017)
(alteration omitted) (internal quotation marks omitted) (citations
omitted).
3United States v. Bates, 590 F. App'x 882 (11th Cir.
2014) -- on which Cezaire relies in contending that she properly
objected during voir dire -- is not to the contrary, as there the
district court was faced with a request to ask a question
concerning bias on the basis of sexual orientation in "clear and
simple" terms and "specifically denied it." Id. at 885 n.2.
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that "[f]our jurors answered 'yes'" when asked "[w]ould the fact
that the defendant is black and one of the victims is white affect
or influence your judgment in this case?"). But, while this
precedent would appear to confirm the value of asking questions
specifically probing for racial bias, Cezaire fails to show that
the District Court's decision not to ask such a question here was
a clear or obvious error. In fact, far from making out that case,
Cezaire states in her reply brief that her challenge, on this
record, is "inconsistent" with our prior ruling in United States
v. Gelin, 712 F.3d 612 (1st Cir. 2013).
There, the criminal defendants, who were also Haitian
Americans being tried for federal health-care fraud charges,
objected to the district court's failure to ask prospective jurors
about racial bias during voir dire. See id. at 615-16. On appeal,
the defendants challenged the district court's failure to ask about
racial bias on the ground that "race became a highly relevant issue
through the trial because extensive portions of the testimony
pointed to their Haitian heritage 'in [a] very inflammatory
manner.'" Id. at 621 (alteration in original). We rejected that
challenge, notwithstanding that the testimony of one government
witness did contain "racial overtones." Id. at 622. We explained
that the defendants did not address the relevant case law in their
briefs, including Rosales-Lopez, see id. at 621, and that most of
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the trial "concentrated exclusively on the details of the
underlying fraudulent scheme," id. at 622.
Cezaire makes no argument that Gelin itself is
distinguishable. Instead, she contends only that it may not
control because we have decided other cases since Gelin that have
considered challenges to a district court's decision regarding the
asking of prospective jurors about racial bias, such as United
States v. Parker, 872 F.3d 1 (1st Cir. 2017), cert. denied, 138 S.
Ct. 936 (2018), and Casanova, 886 F.3d 55. But, neither case in
any way suggests that, given Gelin, it was clear or obvious error
for the District Court in this case to refuse to ask such a
question.
Accordingly, the judgment is affirmed.
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