913 F.2d 1417 (9th Cir. 1990), 87-5226, United States v. De Gross

Docket Nº:87-5226.
Citation:913 F.2d 1417
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Juana Espericueta De GROSS, Defendant-Appellant.
Case Date:September 10, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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913 F.2d 1417 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Juana Espericueta De GROSS, Defendant-Appellant.

No. 87-5226.

United States Court of Appeals, Ninth Circuit

September 10, 1990

Argued and Submitted March 10, 1988.

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[Copyrighted Material Omitted]

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Edmundo Espinoza, San Diego, Cal., for defendant-appellant.

Larry A. Burns, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before PREGERSON, WIGGINS and BRUNETTI, Circuit Judges.

WIGGINS, Circuit Judge:

A jury convicted Juana Espericueta De Gross of two counts of aiding and abetting the transportation of an alien within the United States. De Gross appeals her conviction, contending that the district court erred in: (1) denying her peremptory challenge of a male venireperson; and (2) accepting the government's peremptory challenge of the only Hispanic venireperson. We have jurisdiction under 28 U.S.C. Sec. 1291 (1988). We reverse.


De Gross pled not guilty to three counts of aiding and abetting the transportation of an alien within the United States. 1 During voir dire, the government objected to De Gross' peremptory challenge of Wendell Tiffany, a male venireperson. At that point, De Gross had successfully exercised seven peremptory challenges against male venirepersons. The government argued that this pattern of striking males established De Gross' discriminatory intent to exclude male venirepersons in violation of their constitutional rights to the equal protection of the laws. The district court ruled that the government had established a prima facie case of purposeful discrimination, and required De Gross to justify her challenge. De Gross offered no explanation. The court then disallowed her peremptory challenge of Tiffany.

De Gross also made an equal protection objection during voir dire. De Gross objected to the government's challenge of Herminia Tellez, a Hispanic woman. Tellez was then the only Hispanic on the venire. 2 The district court ruled that De Gross established a prima facie case of discrimination, and required the government to justify its challenge. Government counsel responded that his main reason for challenging Tellez was "to get a more representative community of men and women on the

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jury." 3 The court accepted the government's explanation and struck Tellez.

The impaneled jury, consisting of three men, including Tiffany, and nine women, convicted De Gross of the crimes charged. De Gross timely appealed.


Whether equal protection principles prohibit a party from exercising peremptory challenges on the basis of a venireperson's gender is a question of law that we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).


I. De Gross' Challenge of Tiffany

De Gross argues that the district court erred in denying her peremptory challenge of Tiffany, a male venireperson. At trial, the government had objected to De Gross' challenge on the ground that De Gross exercised it with discriminatory intent, and therefore, if the district court struck Tiffany, that would violate Tiffany's equal protection rights. 4 We must first decide whether the government has standing to make this objection. If so, we must decide whether equal protection principles prohibit a criminal defendant from exercising her peremptory challenges on the basis of a venireperson's gender. If equal protection principles do prohibit such conduct, we must decide finally whether De Gross did exercise her peremptory challenge with discriminatory intent.

A. The Government's Standing to Object to De Gross' Peremptory Challenge

In Batson v. Kentucky, the Court held that a prosecutor's discriminatory peremptory challenge violates the defendant's right to equal protection of the laws because the defendant is entitled to be tried by a jury chosen pursuant to racially nondiscriminatory criteria. 476 U.S. at 85-89, 106 S.Ct. at 1716-19. The Court also held, however, that "racial discrimination in the selection of jurors harms not only the accused," but also the excluded juror and the entire community. Id. at 87, 106 S.Ct. at 1718. The Court stated that "by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror." Id. (citing Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 329-30, 90 S.Ct. 518, 523-24, 24 L.Ed.2d 549 (1970)). We hold that the United States may object to a criminal defendant's discriminatory peremptory challenge because the United States has standing to assert the equal protection rights of the venireperson sought to be excluded. 5

First, the government's relationship to the venireperson is sufficient to ensure that it will vigorously defend his or her rights. See Singleton v. Wulff, 428 U.S. 106, 114-15, 96 S.Ct. 2868, 2874-75, 49 L.Ed.2d 826 (1976). The government has a direct interest in protecting the rights of its

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citizens, including potential jurors. Additionally, the government has an interest in maintaining a venireperson's perception of the criminal justice system as fair, impartial, and free from discrimination. The mere existence of discriminatory practices in jury selection "cast[s] doubt on the integrity of the whole judicial process." Peters v. Kiff, 407 U.S. 493, 502-03, 92 S.Ct. 2163, 2168-69, 33 L.Ed.2d 83 (1972). Selection procedures that violate a venireperson's equal protection rights "undermine public confidence in the fairness of our system of justice." Batson, 476 U.S. at 87, 106 S.Ct. at 1718.

Second, several obstacles exist to prevent an excluded venireperson from asserting his own rights. See Singleton, 428 U.S. at 115-16, 96 S.Ct. at 2874-75. In the context of racial discrimination, Justice Kennedy has noted that:

Individual jurors subjected to peremptory racial exclusion have the legal right to bring a suit on their own behalf, Carter v. Jury Comm'n of Greene County, 396 U.S. 320 [90 S.Ct. 518, 24 L.Ed.2d 549] (1970), but as a practical matter this sort of challenge is most unlikely. The reality is that a juror dismissed because of his race will leave the courtroom with a lasting sense of exclusion from the experience of jury participation, but possessing little incentive or resources to set in motion the arduous process needed to vindicate his own rights.

Holland, 110 S.Ct. at 812 (Kennedy, J., concurring). Even if a civil suit were brought by excluded jurors, it may prove to be an ineffective remedy against discrimination by defendants. See Note, Discrimination by the Defense: Peremptory Challenges After Batson v. Kentucky, 88 Colum.L.Rev. 355, 367 (1988).

In other situations, a venireperson may not be aware initially that he or she has been discriminated against. Such discrimination may not become apparent until a number of similarly situated venirepersons have been struck. Also, the venireperson is not a party to the litigation and, therefore, may not be in a position to complain to the trial judge that her right not to be excluded from jury service on the basis of her group membership has been violated. Thus, she may lack an immediate remedy for her unconstitutional exclusion from the trial.

Third, violation of the venireperson's rights injures the United States by impugning the jury system. In addition, when a criminal defendant, through discriminatory peremptory challenges, attempts to achieve a jury partial to her, the government's interest in fair trials is injured. See Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965) ("[T]he Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result.")

We therefore conclude that the government has standing to object to De Gross' peremptory challenge of Tiffany under these circumstances.

B. Gender-Based Peremptory Challenges 6

In Batson, the Supreme Court held that the equal protection clause of the fourteenth amendment prohibits a prosecutor from exercising peremptory challenges on the basis of a venireperson's race. 476 U.S. at 89, 106 S.Ct. at 1719. We now address the question whether the principles established in Batson compel us to prohibit the exercise of peremptory challenges on the basis of the venireperson's gender. 7 At

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the outset, however, we must note that the constitution treats gender classifications differently than racial classifications. While the constitution will not allow racial classifications unless they are suitably tailored to serve a compelling state interest, the constitution tolerates gender classifications that are substantially related to the achievement of important governmental objectives. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985) (discussing the different levels of constitutional scrutiny to which different classifications are subjected). Peremptory challenges are a necessary means for achieving the important governmental objective of impaneling a fair and impartial jury. See Swain v. Alabama, 380 U.S. 202, 211-12, 85 S.Ct. 824, 831-32, 13 L.Ed.2d 759 (1965); Batson, 476 U.S. at 123, 106 S.Ct. at 1737 (Burger, C.J., dissenting). A party is not always able to justify his sudden and immediate impression that a particular venireperson will be partial. See id.; Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892).

But challenges explained by a venireperson's gender are not based on a party's sudden impression of a particular venireperson's ability to be impartial. Rather, like racial challenges, they are...

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