United States v. Rafael Guerrero ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-30066
Plaintiff-Appellee, D.C. No.
v.  2:07-cr-02071-
RAFAEL GUERRERO, Esquire, WFN-3
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted
December 7, 2009—Seattle, Washington
Filed February 18, 2010
Before: Robert R. Beezer, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman;
Dissent by Judge Gould
2571
2574 UNITED STATES v. GUERRERO
COUNSEL
Dan B. Johnson, Law Offices of Dan B. Johnson, Spokane,
Washington, for defendant-appellant Rafael Guerrero.
Gregory M. Shogren (argued), Shawn N. Anderson, United
States Attorney’s Office, Yakima, Washington; James A.
McDevitt, United States Attorney, for plaintiff-appellee
United States of America.
OPINION
TALLMAN, Circuit Judge:
Defendant-Appellant Rafael Guerrero appeals his jury con-
viction for conspiracy to possess a listed chemical with intent
to manufacture. After the jury was selected and sworn and
jeopardy attached, Guerrero raised a Batson objection to the
prosecutor’s use of peremptory challenges to strike two
minority jurors. The district court held an abbreviated hearing,
denied the challenge, and the trial proceeded. Guerrero was
convicted and now appeals, arguing that the district court’s
failure to follow all three steps of the Batson analysis entitles
him to a new trial. Because we agree with the district court
that there was no colorable basis to raise a Batson challenge,
we affirm.
I
Rafael Guerrero was one of six individuals indicted in June
2007 for conspiring to possess pseudoephedrine with the
intent to manufacture methamphetamine in violation of 21
U.S.C. §§ 841(c) and 846. Guerrero and one of his co-
defendants, Santos Mendoza, demanded a jury trial. Jury
selection occurred on the morning of July 14, 2008.
UNITED STATES v. GUERRERO 2575
Prior to voir dire, each juror had completed the standard-
ized district court Juror Qualification Questionnaire. Informa-
tion regarding the venire members’ race/ethnicity was
redacted from the copies of the Questionnaire provided to
counsel. The district court conducted the bulk of the question-
ing during voir dire, asking each of the thirty-one venire
members basic questions about where they were from, where
they worked, and whether the nature of the case led any pro-
spective juror to doubt his or her ability to be impartial. After
the district judge finished questioning the venire, the prose-
cuting and defense attorneys each had a few minutes to ask
follow-up questions.
At the close of voir dire, one juror was excused for cause
and the parties exercised peremptory challenges. The clerk
identified the fourteen jurors who remained after the strikes
were exercised and assembled them into the panel. Each attor-
ney was asked if the panel “appear[ed] to be proper.” All
three attorneys—the prosecutor, counsel for Mendoza, and
counsel for Guerrero—agreed that it was and the jury was
sworn.
Immediately thereafter, counsel for Mendoza approached
the bench and raised a Batson challenge.1 See Batson v. Ken-
tucky, 476 U.S. 79, 89, 96-98 (1986). The following exchange
then took place.
THE COURT: What’s the problem?
MR. SCOTT [counsel for Mendoza]: Because I want
to request—I want to make a Batson challenge.
Counsel for the government has removed—counsel
for the government has removed Mr. E.S., Juror No.
10,2 as well as D.T., Juror No. 12, both of which
1
Counsel for Guerrero joined in the motion after lunch. The government
does not challenge the timeliness of the motion.
2
Guerrero does not challenge the strike against Juror No. 10 on appeal.
Thus, the analysis in this opinion is limited to Juror No. 12.
2576 UNITED STATES v. GUERRERO
[sic] are minorities, and what has resulted is that we
have a very white jury.
...
THE COURT: What about Miss D.T., Juror No. 12?
Is she a minority?
MR. SCOTT: She looked like she may have some
native American or Hispanic background. Person of
color.
THE COURT: I didn’t observe anything unusual of
her, and I don’t think she’s the type of person that
would be subject to Batson challenge.
MR. ANDERSON [the prosecutor]: I don’t know
how this particular one, Miss D.T., Juror No. 12,
applies as far as a Batson challenge.
THE COURT: I deny the Batson challenges.
The court then took a lunch recess. After reviewing the juror
questionnaires over lunch, the judge saw that Juror No. 12
identified herself as “Native Hawaiian/Pacific Islander” on
her questionnaire. Following the recess, the district court
revisited the Batson issue outside the presence of the jury.
THE COURT: Now, before we bring the jury in, Mr.
Anderson, there was an issue raised as to a Batson
challenge to one of the jurors, and apparently you
challenged her. I think her name is Ms. D.T., Juror
No. 12.
MR. SCOTT: I made the Batson challenge, Your
Honor. Mr. Anderson struck her as one of the
perempts.
UNITED STATES v. GUERRERO 2577
THE COURT: Right. And I just thought you might
want to make a record as to your justification for
challenging her. I didn’t pick up on the fact that she
was a minority and subject to a Batson, but I have
heard—somebody did say that she may have looked
like she was. And then I looked at the questionnaire,
and I see that there was a connection to Hawaii. She
may have come from Hawaii or something. I’m not
sure. But do you remember the reason?
MR. ANDERSON: To be honest with you, I didn’t
pick up on the minority aspect of it at all. I wasn’t
looking at that at the time.
THE COURT: What were you looking at?
...
MR. ANDERSON: I was going back and forth with
my case agent, and we made the decision, I recall, to
challenge her. And
...
MR. ANDERSON: It was because of the relation. I
know she had relation [sic] in Hawaii that was in law
enforcement. She also had relation [sic], it was my
understanding from the questionnaire, a nephew that
had been prior convictions [sic] for assault and bat-
tery. Just because of that mix, I thought it appropri-
ate that I would exercise a challenge.
THE COURT: If there’s anything you want to say to
supplement that later on, after you’ve had a chance
—
MR. ANDERSON: Thank you.
2578 UNITED STATES v. GUERRERO
THE COURT: I think we’re ready to bring the jury
in.
The trial lasted two days. Neither the prosecutor nor coun-
sel for Guerrero or Mendoza revisited the Batson challenge.
On the second day of trial, the jury found Guerrero and Men-
doza guilty on the sole count of the indictment. Guerrero was
sentenced to 204 months in prison to be followed by three
years of supervised release. The district court entered judg-
ment on February 3, 2009. Guerrero filed a timely notice of
appeal on February 11, 2009.
II
[1] A prosecutor may not challenge potential jurors solely
on account of their race. Batson, 476 U.S. at 89. The problem
here is that there is no evidence that race played any role in
the decision to strike the prospective juror because neither the
prosecutor nor the judge recognized her as a minority. We
think it particularly significant that both sides accepted the
panel as drawn, the oath was administered to empanel the
jury, and only then was the issue belatedly raised by defense
counsel after jeopardy attached. We hold that Guerrero failed
to state a prima facie case of discrimination sufficient to
invoke Batson.
[2] A three-step burden shifting test is used to determine
whether a potential juror was struck in violation of Batson.
Green v. LaMarque, 532 F.3d 1028, 1029-30 (9th Cir. 2008).
First, “the defendant must make a prima facie showing the
challenge was based on an impermissible basis, such as race.”
Id. at 1029 (citing Batson, 476 U.S. at 96). If the defendant
fails to present sufficient evidence to establish a prima facie
case, the challenge may be denied and the court need not con-
tinue to step two. Id. at 1030. “Second, if the trial court finds
the defendant has made a prima facie case of discrimination,
the burden then shifts to the prosecution to offer a race-neutral
reason for the challenge that relates to the case.” Id. (citing
UNITED STATES v. GUERRERO 2579
Johnson v. California, 545 U.S. 162, 168 (2005)). “Third, if
the prosecutor offers a race-neutral explanation, the trial court
must decide whether the defendant has proved the prosecu-
tor’s motive for the strike was purposeful racial discrimina-
tion.” Id. (citations omitted).
[3] To state a prima facie case of discrimination at step one
a defendant must establish three elements: that “(1) the pro-
spective juror is a member of a cognizable racial group, (2)
the prosecutor used a peremptory strike to remove the juror,
and (3) the totality of the circumstances raises an inference
that the strike was motivated by race.” United States v. Col-
lins, 551 F.3d 914, 919 (9th Cir. 2009) (quoting Boyd v. New-
land, 467 F.3d 1139, 1143 (9th Cir. 2006)). The government
concedes that Juror No. 12 is a member of a cognizable racial
group and that the prosecutor used a peremptory strike to
remove her from the panel. Therefore, the only element of the
prima facie case at issue is whether Guerrero raised an infer-
ence that the strike was motivated by race under the totality
of the circumstances.
We review for clear error a district court’s step one deter-
mination as to whether a defendant has stated a prima facie
case of discrimination under Batson. Tolbert v. Page, 182
F.3d 677, 685 (9th Cir. 1999) (en banc). A finding is clearly
erroneous if it is “(1) ‘illogical,’ (2) ‘implausible,’ or (3) with-
out ‘support in inferences that may be drawn from the facts
in the record.’ ” United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc) (quoting Anderson v. City of
Bessemer City, 470 U.S. 564, 577 (1985)).
Guerrero contends that the district court committed struc-
tural error when it invited the prosecutor to justify the strike
of Juror No. 12, the traditional step two analysis, and subse-
quently failed to reach step three of the Batson analysis, as
our case law requires. See United States v. Alanis, 335 F.3d
965, 967-68 (9th Cir. 2003) (holding that when a trial court
2580 UNITED STATES v. GUERRERO
has reached step two of the Batson analysis, it must continue
on to step three).
[4] Guerrero is correct that the district court did not clearly
explain its reasoning for denying his Batson challenge. How-
ever, the court did rule, when the issue was raised, that
defense counsel had failed to state a prima facie case of dis-
crimination as to Juror No. 12 because the court did not
believe that Batson applied to that juror. After lunch, out of
what appears to be an abundance of caution, the district court
asked the prosecutor why he had stricken Juror No. 12. We
do not interpret this brief questioning as a reversal of the
court’s previous ruling that the defendant failed to establish
all three elements of the prima facie case at step one. Nor do
we hold that a district court judge may complete step two of
Batson without continuing to step three, in violation of Alanis,
335 F.3d at 967-68. We limit our analysis to evaluating
whether, under the totality of the circumstances, Guerrero
presented enough evidence of discrimination to establish a
prima facie case at step one. Here, it appears that the district
court wanted to ensure that the prosecutor had a legitimate
reason for striking Juror No. 12 before continuing with the
trial. This further investigation into the totality of the circum-
stances surrounding the strike supports, rather than negates,
the previous holding that Guerrero’s Batson challenge failed
to raise an inference of discrimination at step one.
[5] The conversation between the court and the attorneys
makes clear that no one knew the race/ethnicity of Juror No.
12. The prosecutor did not recognize her as a minority at all.
Counsel for Mendoza thought she might be a minority, but
instead of Native Hawaiian/Pacific Islander he thought she
was Native American or Latina. The record demonstrates that
the court not only believed the prosecutor when he stated that
he did not recognize Juror No. 12 as a minority, but the pre-
siding judge also failed to recognize Juror No. 12 as a minor-
UNITED STATES v. GUERRERO 2581
ity. The court explicitly stated, “I didn’t pick up on the fact
that she was a minority and subject to Batson.”3
The dissent argues that we have allowed the prosecutor’s
claimed perception of Juror No. 12’s race/ethnicity to control
our step one analysis. That is not the case. We here examine
the district court’s analysis of the applicability of Batson
under the three required elements of the prima facie case at
step one. The totality of the circumstances supports the dis-
trict judge’s conclusion that Guerrero failed to state a prima
facie case of discrimination under Batson.
[6] The district judge witnessed the prosecutor’s behavior
during voir dire and jury selection and was in a far better posi-
tion than we are to evaluate whether the defendant raised an
inference of discrimination regarding the prosecutor’s strike
of Juror No. 12. The totality of the circumstances here does
not raise an inference that the prosecutor’s strike of Juror No.
12 had anything to do with race. The district court’s original
ruling that Guerrero had failed to state a prima facie case at
step one of Batson was, therefore, not illogical, implausible,
or without support in the record. See Hinkson, 585 F.3d at
1262.
3
The dissent contends that Batson applies when a person is a minority,
not merely when they look like a minority and that in the modern world
it can be difficult, if not impossible, to accurately identify the
race/ethnicity of everyone we meet. We do not quarrel with that statement
generally, but we note that Batson is predicated not on the potential juror’s
actual race/ethnicity, but on the prosecutor’s perception of that
race/ethnicity as the reason for striking an otherwise qualified venire per-
son. This is true because Batson is seeking to cure government misconduct
based on racial prejudice, not to simply guarantee an ethnically diverse
jury. See Batson, 476 U.S. at 85 n.6 (“[T]hough the Sixth Amendment
guarantees that the petit jury will be selected from a pool of names repre-
senting a cross section of the community, we have never held that the
Sixth Amendment requires that petit juries actually chosen must mirror the
community and reflect the various distinctive groups in the population.
Indeed, it would be impossible to apply a concept of proportional repre-
sentation to the petit jury in view of the heterogeneous nature of our soci-
ety.” (internal citations and quotation marks omitted)).
2582 UNITED STATES v. GUERRERO
III
[7] Guerrero failed to make a prima facie case of discrimi-
nation. Because he did not meet step one of Batson there was
no need for the district court to continue on to steps two and
three. There was no structural error. The challenge was prop-
erly denied.
AFFIRMED.
GOULD, Circuit Judge, dissenting:
The majority makes new and ill-advised doctrine on a mat-
ter that is properly resolved with a remand, after which the
district court could honor the procedures required by Batson.
The new rule adopted by the majority—that a Batson chal-
lenge will fail if the prosecutor says he or she does not recog-
nize the struck juror as a minority—is inconsistent with the
reasoning at the heart of Batson. This ill-advised rule evades
and short circuits the evidence-producing process that trial
courts implementing Batson need and have necessarily used
to determine the existence of discriminatory intent, and that
appellate courts likewise need fairly to review a Batson claim
on appeal. Batson requires that the prosecutor offer a reason
for a strike and that thereafter the district court make a finding
whether the strike was a case of intentional discrimination,
outlawed by Batson and inimical to the best interests of our
society, or was made for a bona fide and legitimate reason.
Because the majority’s rule lets the prosecutor veto the entire
and well-constructed Batson process merely by saying “I
didn’t think race was involved,” I must respectfully dissent.
I
The three-step Batson inquiry is a tool for producing the
evidence necessary to the difficult task of “ferreting out dis-
UNITED STATES v. GUERRERO 2583
crimination in selections discretionary by nature.” See Miller-
El v. Dretke (Miller-El II), 545 U.S. 231, 238 (2005). A pros-
ecutor is unlikely to admit candidly to striking a juror because
of race. Batson recognized this, prohibiting the prosecutor
from rebutting a Batson challenge “merely by denying that he
had a discriminatory motive or affirming his good faith in
making individual selections.” Batson v. Kentucky, 476 U.S.
79, 98 (1986) (internal quotation marks and alterations omit-
ted). The Batson Court observed, “If these general assertions
were accepted as rebutting a defendant’s prima facie case, the
Equal Protection Clause ‘would be but a vain and illusory
requirement.’ ” Id. (quoting Norris v. Alabama, 294 U.S. 587,
598 (1935)).
The logic of the Batson Court’s step-two discussion applies
equally to the prima facie determination at step one. A general
assertion that the prosecutor did not recognize a juror as a
minority should not halt the Batson inquiry. Rather, the trial
court must consider “all relevant circumstances” to determine
whether an inference of purposeful discrimination arises. Id.
at 96. The relevant circumstances are many. Courts consider
the percentages and order of minority strikes as compared to
non-minority strikes. See, e.g., Miller-El II, 545 U.S. at
240-41; Paulino v. Castro, 371 F.3d 1083, 1090-92 (9th Cir.
2004); Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir. 2000).
The prosecutor’s statements and questions during jury selec-
tion are also relevant. Batson, 476 U.S. at 97. An inference of
discrimination could arise if minority jurors are questioned
especially closely, or conversely if they are largely ignored.
See Fernandez v. Roe, 286 F.3d 1073, 1079 (9th Cir. 2002).
The same is true where a prosecutor poses markedly different
questions to minority and non-minority jurors. Miller-El II,
545 U.S. at 254-63. A corollary source of evidence is the
answers that jurors give. Where “nothing in the struck juror’s
voir dire responses intimated a legitimate basis for removal,”
it is more likely that the defendant will meet the “quite low”
step-one threshold. Boyd v. Newland, 467 F.3d 1139, 1145,
1147 (9th Cir. 2006).
2584 UNITED STATES v. GUERRERO
Analytical tools are useful at step one because they can
reveal the possibility of an unspoken discriminatory motive.
The majority indicates that it seeks to evaluate all the circum-
stances, but the majority employs none of these analytical
tools, indeed it cannot do so fully in light of the state of the
record, relying instead solely on the prosecutor’s and judge’s
impressions of Juror No. 12’s race.1 While the prosecutor’s
avowal of ignorance of a stricken juror’s race might be one
appropriate consideration at step one, see Fernandez, 286
F.3d at 1079, the purpose behind the step-one inquiry is to
develop evidence about the prosecutor’s true motives, admit-
ted or not.2 The trial judge must weigh all the evidence at step
one, and make findings of fact, so that a reviewing court can
marshal virtually centuries of appellate experience in review-
ing whether a fact finding was supported by the evidence. We
should not turn Batson’s first step into a hollow exercise by
allowing one piece of evidence—the prosecutor’s claimed
perception of a juror’s race—to control, and thereby to side-
step all other tools, including a factual finding by the trial
judge, that properly bear on whether discrimination was afoot.
1
Given the written strike system used here, the timing of the Batson
objection sheds no light on the presence or absence of discriminatory
intent on the part of the prosecutor. The members of the jury were
announced after the clerk compiled the written challenges. “The pattern of
the prosecution’s peremptory challenges might not have been apparent
until the jury was selected, so the objection could not . . . have been raised
much earlier.” United States v. Thompson, 827 F.2d 1254, 1257 (9th Cir.
1987) (rejecting a tardy-objection argument made by the government in
response to a Batson challenge). Here, the government did not challenge
the timeliness of the Batson objection.
2
In Fernandez, we were skeptical of “the prosecutor’s claim that he did
not know the ethnicity of the prospective jurors” because “their [Hispanic]
surnames appeared on the [juror] questionnaires.” 286 F.3d at 1079. In
finding that the defendant had made out a prima facie case of discrimina-
tion, the court noted that it may not be proper to consider the prosecutor’s
explanations for strikes at step one. Id. Even if a prosecutor’s claim not
to have noticed a juror’s race can be considered at step one, it still must
be considered alongside all the other relevant circumstances, as it was in
Fernandez. Id. at 1078-80.
 UNITED STATES v. GUERRERO 2585
II
My second ground for disagreeing with the majority’s hold-
ing is that it makes appellate review in cases like this one dif-
ficult or impossible. There is no sensible method for
reviewing, on a cold record, a prosecutor’s subjective state-
ment that he did not notice a prospective juror’s race. The
majority takes some comfort from the fact that the trial judge
shared the prosecutor’s confusion about Juror No. 12’s race,
but the trial judge’s perception about whether Juror No. 12
was a minority is equally unreviewable. How can we mean-
ingfully evaluate, on appeal, whether Juror No. 12 “looked
like” a minority, such that the prosecutor’s claim not to recog-
nize her race should be questioned? Should we require the
appellate record to include photographs of the venirepersons?
Must photographs be in color, or be of a certain type and
quality? Are we to examine the prospective juror’s surnames
for evidence of ethnic heritage? If the prosecutor and trial
judge agree that a juror is not a minority, is that always to be
the end of the inquiry? Does this majority view make sense?
Respectfully, I think not.
We are past the point as a society where minority-group
membership properly can turn on the mere observational say
so of a participant in the judicial process. If we as judges peer
out into our crowded courtrooms, or if we as people observe
others in the street or shops or businesses, are we really able
to say who has a minority heritage and who has not by our
observation? The whole point of Batson is that minority status
can’t be taken into account in jury selection when exercising
peremptory challenges. A person with a minority heritage
may bring valuable perspective to the factfinding process, and
that is so whether or not the prospective juror “looks like” a
minority to the prosecutor or trial judge.3
3
It is interesting that as long ago as 1879, in Strauder v. West Virginia,
100 U.S. 303, 312 (1879), even in the aftermath of Reconstruction and
with widespread antipathy toward blacks, the United States Supreme
2586 UNITED STATES v. GUERRERO
The practical difficulties introduced by the majority’s hold-
ing are demonstrated by the facts of this case. The trial judge
and prosecutor apparently did not recognize Juror No. 12’s
minority status, and that may well have been true. But the
defense attorney clearly did recognize the juror as being a
member of a minority; he referred to her as a “person of
color.” That he did so recognize the potential juror as a minor-
ity is absolutely clear from the fact that he raised a Batson
objection to her being struck from the jury. Other evidence of
Juror No. 12’s minority status, available to the district court
at the time of the strike, was Juror No. 12’s self-identification
as a Native Hawaiian or Pacific Islander on her questionnaire.
If the juror identified herself as a minority, and the defense
attorney independently recognized that fact, these are two
important reasons to think that the prosecutor conceivably
might have recognized it, too. That is why the step three pro-
cess should have been fully engaged with a factual determina-
tion by the trial court to resolve this matter.
I would credit the juror’s self-identification as a Native
Hawaiian or Pacific Islander on her questionnaire, which the
district court reviewed during the lunch recess. The prosecu-
tor and judge’s joint error about Juror No. 12’s race thus
revealed, the district court should have simply resumed and
completed the familiar Batson steps.
III
My final point of disagreement with the majority regards
the proper reading of the record below. I would not read this
record creatively, as the majority has, to contain any “rul[ing]
Court recognized that a law barring blacks from juries was invalid. In
doing so, the Court in part emphasized that the civil rights of the black
defendants were at stake, not merely the political rights of the excluded
jurors. See, e.g., Michael J. Klarman, From Jim Crow to Civil Rights: The
Supreme Court and the Struggle for Racial Equality 40 (2004).
UNITED STATES v. GUERRERO 2587
. . . that defense counsel had failed to state a prima facie case”
at step one. See Maj. Op. at 2580. One can search high and
search low in every word uttered by the district court on this
issue. Nowhere did the district court ever mention a “prima
facie” case and suggest expressly or by implication, as the
majority holds, that the defense counsel didn’t present a
“prima facie” case. I would call the abbreviated proceeding
below what it was: a Batson hearing that was unmoored from
the three-step process and that contained no findings at all.4
When the defense attorney raised the Batson objection,
Batson’s procedures required the district court to determine
whether the circumstances of the strike raised an inference of
discrimination. Batson, 476 U.S. at 95. The district court
skipped step one, however, and jumped to step two by asking
the prosecutor, “What were you looking at?” in striking Juror
No. 12. After the prosecutor gave his response at step two that
Juror No. 12 had a relation to law enforcement and a nephew
with criminal convictions, the district court stated, “I think
we’re ready to bring the jury in.” The Batson inquiry thus
abruptly ended without a ruling at step three.
It is a well-settled rule in this circuit that once the trial court
reaches step two, the court “must always reach step three,
because it is not until step three of the Batson process that the
court ‘determines whether the opponent of the strike has car-
ried his burden of proving purposeful discrimination.’ ”
Paulino, 542 F.3d at 702 (quoting Yee v. Duncan, 463 F.3d
893, 898 (9th Cir. 2006)); see also Green v. LaMarque, 532
F.3d 1028, 1031 (9th Cir. 2008) (reversing the denial of a
habeas petition where the state court “failed to reach step
4
While there was no express finding at any level, one might think that
when the district court asked the prosecutor for reasons for making a
strike, that indicates the district court had implicitly decided that a prima
facie case was made sufficient for step one. Then, having proceeded to
step two, the district court should have completed the process by assessing
the answers given and making a finding of fact on whether a peremptory
strike was tainted by discrimination.
2588 UNITED STATES v. GUERRERO
three in the Batson analysis”); United States v. Alanis, 335
F.3d 965, 967 (9th Cir. 2003) (emphasizing that the trial court
has a “duty to proceed to step three”). While the majority
assures us that its decision is consistent with this rule, it does
not explain how. To state my perspective simply: The district
court went to step two by inquiring after the prosecutor’s rea-
sons for the strike, but having done so, the district court did
not correctly follow through by making a finding at step three
as to whether there was or was not purposeful discrimination.
As applied here, in my view our precedent required that the
trial court also reach step three.
Where the trial court prematurely ends the Batson process,
the proper remedy is a remand for an evidentiary hearing so
that complete findings can be made. See, e.g., United States
v. Collins, 551 F.3d 914, 923 (2009) (remanding for comple-
tion of the Batson steps); United States v. Esparza-Gonzalez,
422 F.3d 897, 906 (9th Cir. 2005) (same); Fernandez, 286
F.3d at 1079-80 (same). I would remand this case for the dis-
trict court to answer the “critical question” of whether the
prosecutor’s justifications for striking Juror No. 12 are per-
suasive or are instead a pretext for purposeful discrimination.
See Miller-El v. Cockrell, 537 U.S. 322, 338-39 (2003). If the
district court is able sensibly to make step-three findings
using the record, testimony from the attorneys, and the court’s
own recollection about this case, that might be a simple way
to resolve the Batson procedural error. I therefore think a
remand is the appropriate remedy. If, on remand, the district
court has insufficient direct or circumstantial evidence to con-
duct the step-three analysis, I would direct it to vacate Guerre-
ro’s conviction and grant him a new trial because of the high
import of enforcing the rule that the Supreme Court estab-
lished in Batson. See United States v. Alcantar, 897 F.2d 436,
440 (9th Cir. 1990); United States v. Thompson, 827 F.2d
1254, 1262 (9th Cir. 1987).