PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 09 2001
No. 99-13688
THOMAS K. KAHN
CLERK
D.C. Docket No.99-06044-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOLETA ALLEN-BROWN,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Florida
(March 9, 2001)
Before EDMONDSON and MARCUS Circuit Judges, and RESTANI*, Judge.
RESTANI, Judge:
*
Honorable Jane A. Restani, Judge of the US.Court of International Trade, sitting
by designation.
Appellant, Loleta Allen-Brown, seeks reversal of her conviction for
importing cocaine and possession with intent to distribute. Allen-Brown alleges
that Batson v. Kentucky,
476 U.S. 79 (1986), does not apply in this case or that it
was applied in an erroneous manner by the trial court. We hold that the trial court
properly inquired into the defense’s utilization of peremptory challenges and that
Batson applies to race-based peremptory challenges made for the purposes of
achieving a more diverse jury.
FACTS
1. Course of Proceedings and Dispositions in the Court Below.
On March 11, 1999, a federal grand jury in the Southern District of Florida
returned a two-count indictment charging appellant Loleta Allen-Brown with
importation of cocaine, in violation of
21 U.S.C. § 952(a) (1994) and
18 U.S.C. § 2
(Count I), and possession with intent to distribute cocaine, in violation of
21
U.S.C. § 841(a)(1) and
18 U.S.C. § 2 (Count II). The case proceeded to trial where
a jury returned a verdict finding Allen-Brown guilty as charged.
2. Facts Pertaining to the Jury Selection Process.
Following initial voir dire of thirteen seated prospective jurors, the
government raised two challenges for cause. Over defense counsel’s objection, the
district court excused one of the jurors, who was black, for cause; the government
2
then exercised a peremptory challenge to excuse the other, who was white. Jury
questionnaires indicate that of the eleven remaining seated jurors, ten were white.
The defense then attempted to remove six white prospective jurors using
peremptory challenges. Uncalled in the venire were ten white and eight black
prospective jurors. At this point, the prosecutor raised a challenge pursuant to
Batson, and the district court requested that defense counsel offer race-neutral
reasons for his peremptory challenges. Defense counsel stated that he wanted to
excuse two jurors because they had served on other juries; another three jurors
because they had indicated in voir dire that they would prefer to hear the
defendant’s testimony; and a sixth juror for “no particular reason.” R58 at 53-57.
Defense counsel denied that his six peremptory strikes of white jurors was
improperly racially motivated. He stated:
Judge, we have predominantly Caucasian and we have no
chance. We have the opportunity for peremptory
challenges and that’s what we are doing. It is not based
on race but just what we have been presented here.
R58 at 55.1
1
Citations to the record are indicated by an “R” followed immediately by the docket
exhibit number. The number following “at” refers to the page number.
3
The district court permitted the peremptory challenges as to three of the six
prospective white jurors whom the defense had attempted to strike. Defense
counsel objected, stating:
Judge, over the defense objection. Judge, we have
predominantly Caucasians and we have no choice in this
matter, Judge.
R58 at 59.
After new jurors were seated to replace those who had been dismissed,
defense counsel attempted to use peremptory challenges to exclude two of them -
an African-American female (who was employed by the Department of
Corrections) and a white male, Robert Mei. The prosecutor then requested that the
court solicit race-neutral reasons for defense counsel’s exclusion of Juror Mei.
Defense counsel responded:
Judge, we have every right to exclude on peremptory
challenges individuals that we don’t feel are, or we are
not comfortable. I don’t think I am required to give a
reason. There is no pattern. I have excluded an African-
American.
Judge, what this Government is saying is I cannot
exclude anybody. That is what they are saying, and I
don’t believe I am required to give a reason at this point.
R58 at 73.
4
The court understood defense counsel’s comments at the earlier sidebar as a
concession that he was attempting to exclude whites from the jury.
You basically in a way have conceded the last time at
sidebar that that is what you were attempting to do and
that is inappropriate, to base a peremptory challenge
strictly on race . . . .
R58 at 74.
Defense counsel responded:
Judge, for the record, I did not indicate I was excluding
anybody based on race. The panel presented before me
had one African-American. I had no choice in excusing
anybody. If what the Government is saying is that if I am
not allowed to exclude - if I want to exclude anybody it
must be limited to African-American. And, Judge, I will
not give a reason.
If Your Honor wants to rule in the Government’s favor
that is fine, Judge, over my objection, but I have no
choice and at this point. I would challenge the panel as
not being representative of the community.
R58 at 74-75.
The district court sustained the government’s objection to the use of the
peremptory challenge as to Mr. Mei. A replacement juror was called, and trial
commenced without further challenge.
5
STANDARDS OF REVIEW
The application of the equal protection principles enunciated in Batson to the
exclusion of whites from a jury is an issue of constitutional law that is subject to
plenary review. United States v. Gilbert,
130 F.3d 1458, 1461 (11th Cir. 1997),
cert. denied,
523 U.S. 1088 (1998) (“Issues of constitutional law and statutory
interpretation are subject to plenary review.”).
Courts reviewing the resolution of a Batson challenge give “‘great deference
to a district court’s finding as to the existence of a prima facie case.’” Cent. Ala.
Fair Housing Ctr., Inc. v. Lowder Realty Co., No. 99-6133,
2000 WL 1868145, at
*6 (11th Cir. Dec. 21, 2000) (quoting United States v. Stewart,
65 F.3d 918, 923
(11th Cir. 1995), cert. denied,
516 U.S. 1134 (1996)). De novo review is
inappropriate. See Stewart,
65 F.3d at 923 (citing United States v. Moore,
895
F.2d 484, 486 (8th Cir. 1990)). A district court’s finding as to why a juror is
excused is an issue of fact, and as such, it will not be disturbed on appeal “unless it
is clearly erroneous or appears to have been guided by improper principles of law.”
United States v. Williams,
936 F.2d 1243, 1246 (11th Cir. 1991), cert. denied,
503
U.S. 912 (1992).
6
DISCUSSION
Batson holds that “by denying a person participation in jury service on
account of his race, the State unconstitutionally discriminate[s] against the
excluded juror.”
476 U.S. at 87 (citation omitted). Although the peremptory
challenges at issue in Batson were made by a government prosecutor against
African-American jurors, by its terms Batson is not limited to members of racial
minorities. It applies to anyone who is excluded from jury participation “on
account of his race.”
Id. Since Batson, the Court has reaffirmed the central
meaning of Batson in holding that while “[a]n individual juror does not have a
right to sit on any particular petit jury, . . . he or she does possess the right not to be
excluded from one on account of race.” Powers v. Ohio,
499 U.S. 400, 409 (1991).
See also Edmonson v. Leesville Concrete Co.,
500 U.S. 614, 618 (1991) (“a
prosecutor’s race-based peremptory challenge violates the equal protection rights
of those excluded from jury service”). In Georgia v. McCollum,
505 U.S. 42, 48
(1992), in which a criminal defendant exercised the challenges at issue, the court
stated, “[D]enying a person participation in jury service on account of his race
unconstitutionally discriminates against the excluded juror.” As we stated in
Stewart,
65 F.3d at 923, “A defendant’s misuse of the power of the court to deny a
7
citizen her right to participate on a jury because of race is as reprehensible as a
prosecutor’s.”
The Batson three-step procedure for evaluating an objection to a peremptory
challenge is as follows: (1) the objector must make a prima facie showing that the
peremptory challenge is exercised on the basis of race; (2) the burden then shifts to
the challenger to articulate a race-neutral explanation for striking the jurors in
question; and (3) the trial court must determine whether the objector has carried its
burden of proving purposeful discrimination. See Lowder Realty,
2000 WL
1868145, at *6 (citing Batson,
476 U.S. at 96-98).
Plaintiff alleges that there was no prima facie showing of racial
discrimination. “No party challenging the opposing party’s use of a peremptory
strike . . . is entitled to an explanation for that strike . . . unless and until a prima
facie showing of racial discrimination is made.” Stewart,
65 F.3d at 925. In
Stewart, citing Batson and its progeny, we reaffirmed that a district court cannot
ignore the prima facie showing requirement, since to do so “would be to ignore the
Supreme Court’s repeated descriptions of that requirement as an integral part of
any Batson analysis.”
Id. See also Lowder Realty,
2000 WL 1868145, at *6
(“‘[T]he establishment of a prima facie case is an absolute precondition to further
inquiry into the motivation behind the challenged strike.”). We further quoted
8
Batson’s requirement that in order to determine whether a prima facie case has
been established,
the trial court should consider all relevant circumstances.
For example, a “pattern” of strikes against black jurors
included in the particular venire might give rise to an
inference of discrimination. Similarly, the [party’s]
questions and statements during voir dire examination
and in exercising his challenges may support or refute an
inference of discriminatory purpose. These examples are
merely illustrative.
Id. (quoting Batson,
476 U.S. at 96-97).
Applying the highly deferential standard of review required by our
precedent, see Stewart,
65 F.3d at 923, we find the trial court did not abuse its
discretion in moving to the second step of the Batson analysis. Although in a
vacuum the first six defense challenges might have caused no alarm, the district
court was able to assess all of the circumstances, such as the racial composition of
the pool of remaining potential jurors, the race and ethnicity of the defendant, and
the type of crime charged. Cf. Lowder Realty,
2000 WL 1868145, at *7 (finding
challenge to jurors of particular race, without further contextual evidence,
insufficient to create inference of racial discrimination). The trial judge did not
elaborate on the reasons for his suspicion that the Constitutional rights of the
prospective jurors potentially excluded from the jury on the basis of race were
being violated. The totality of the circumstances, however, was sufficient to allow
9
the district court to conclude that the first Batson step was met. The “prima facie”
requirement of Batson is not simply a limit on the court’s intrusion into counsel’s
thought processes; it also compels the trial court to act if it has a reasonable
suspicion that Constitutional rights are being violated in its presence.
Assuming arguendo that the trial court erred in its assessment of whether a
prima facie case of discriminatory jury selection was made, appellant is not entitled
to a new trial. The district court found that defense counsel’s statements on their
face demonstrated a prohibited racial motive. The trial court is not permitted to
ignore such statements, nor are we.
Stewart is no bar to this result. Had the trial court arrived at its factual
conclusion that peremptory strikes were being made on the basis of race, simply
because of insufficient neutral justification as to particular jurors, our statements in
Stewart as to the prima facie requirement would apply. In such a case an inference
is drawn from counsel’s explanations of its challenges. The inference may be
incorrect and the Constitutional rights at issue may in actuality be safe. In this
case, however, the trial court found that defendant’s counsel conceded that his goal
in striking the white jurors was to achieve a more racially diverse jury. Appellant
apparently draws the same conclusion from defense counsel’s statement that
defendant had no chance with a white jury and that that jury did not reflect the
10
community. See Appellant’s Br. at 17. The district court reasonably concluded
from defense counsel’s own characterization of the overall defense plan and its
objections to a predominantly white jury that the Constitutional rights of the jurors
were at stake.2 See R58 at 74.
This brings us to the final issue of whether race-based peremptory
challenges are permissible, if exercised by a criminal defendant to obtain a racially
diverse jury. The Constitutional right at issue here is the potential juror’s right not
to be excluded on the basis of race. As indicated, the rights of jurors do not depend
on which party to the case may assist in violating them. The jurors’ rights are
grounded in the Equal Protection Clause. See Batson,
476 U.S. at 85-89. Under
Supreme Court jurisprudence, race-based treatment is subject to strict scrutiny
under the Equal Protection Clause. Adarand Constructors, Inc. v. Pena,
515 U.S.
200, 235-37 (1995) (5-4 decision); Richmond v. J.A. Croson Co.,
488 U.S. 469,
493-94 (1989) (plurality opinion). The standard of review under the Equal
Protection Clause “is not dependent on the race of those burdened or benefited by a
particular classification.” Croson,
488 U.S. at 494 (plurality opinion). The Equal
2
This is not to say the objective of excluding jurors of a particular race in order to obtain
a racially diverse jury is fatal if combined with a non-race based motivation. See United States
v. Tokars,
95 F.3d 1520, 1533 (11th Cir. 1996), cert. denied,
520 U.S. 1151 (1997); Wallace v.
Morrison,
87 F.3d 1271, 1274 (11th Cir.), cert. denied,
519 U.S. 1044 (1996). In this case,
however, counsel did not attempt to establish that the jurors would have been challenged for
non-race based motives, as well.
11
Protection Clause contains a principle of “consistency” that recognizes that “any
individual suffers an injury when he or she is disadvantaged by the government
because of his or her race, whatever that race may be.” Adarand,
515 U.S. at 230.
There is no compelling justification for race-based discrimination here that
satisfies the strict scrutiny standards. Appellant does not claim that the Sixth
Amendment is implicated because a fair cross-section of the community was not
made available for jury selection. Cf.
28 U.S.C. § 1861 (“It is the policy of the
United States that all litigants in Federal courts entitled to trial by jury shall have
the right to grand and petit juries selected at random from a fair cross section of the
community . . . .”). Moreover, appellant has no fundamental federal right to
exercise challenges to particular jurors free from judicial examination. On the
contrary, such judicial examination is essential to ensure the Constitutional rights
of persons to be free of exclusion from jury service based on race. Finally, the
number of peremptory challenges allowed is subject to alteration simply by
amending the Federal Rules. See Fed. R. Civ. P. 47; Fed. R. Crim. P. 24.
However important fully peremptory challenges may be to trial counsel, the right
to exercise them is neither immutable nor unconditional. Cf. McCollum,
505 U.S.
at 57 (“[P]eremptory challenges are not constitutionally protected fundamental
12
rights; rather, they are but one state-created means to the constitutional end of an
impartial jury and a fair trial.”)
Accordingly, we find no error or abuse in the trial court’s scrutiny of
defendant’s peremptory challenges, nor in its grant of the government’s objections
to some of the challenges.
The judgment of the district court is
AFFIRMED.
13
