959 F.2d 820 (9th Cir. 1992), 89-50560, United States v. Bishop

Docket Nº:89-50560.
Citation:959 F.2d 820
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Leo BISHOP, Defendant-Appellant.
Case Date:March 25, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 820

959 F.2d 820 (9th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


Leo BISHOP, Defendant-Appellant.

No. 89-50560.

United States Court of Appeals, Ninth Circuit

March 25, 1992

Submission Vacated May 1, 1991. Argued and Submitted Feb. 8, 1991.

Submission Vacated May 1, 1991.

Resubmitted Sept. 4, 1991.

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Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Robert L. Brosio, and John S. Gordon, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

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

Before: BROWNING, D.W. NELSON and REINHARDT, Circuit Judges.

D.W. NELSON, Circuit Judge:

With this case, we are called upon to examine the boundaries of the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant Leo Bishop alleges that the prosecutor in his criminal trial unconstitutionally exercised a peremptory challenge to exclude a prospective black juror on the basis of her race. The prosecutor explained the challenge as based in part on the fact the black juror lived in a predominantly low-income, black neighborhood and was therefore likely to believe the police "pick on black people." We must determine whether this constituted an adequate race-neutral explanation for the strike. 1 Guided by the Court's recent analysis in Hernandez v. New York, --- U.S. ----,

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111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), we hold that it did not and now reverse.


Leo Bishop was tried and convicted on three narcotics trafficking counts and six counts of assault on a federal officer. On appeal, he disputes both the sufficiency of the evidence on the assault charge and the constitutionality of the government's use of a peremptory challenge.

Jury selection began on July 25, 1989. Out of a possible seven peremptory challenges, the government exercised five. Three were used to strike white jurors; the remaining two were directed at black jurors. Citing Batson, defense counsel objected to the last challenge aimed at Ms. Burr, a black eligibility worker living in Compton. He moved for a mistrial or, in the alternative, the reseating of the challenged juror.

The prosecutor then volunteered an explanation for his decision. He stated that he felt that an eligibility worker in Compton

is likely to take the side of those who are having a tough time, aren't upper middle class, and probably believes that police in Compton in South Central L.A. pick on black people.

To some extent the rules of the game down there are probably different than they are in upper middle class communities. And they probably see police activity, which is, on the whole, more intrusive than you see in communities that are not so poor and violent.

Excerpt of Record ("E.R.") at 21. In response to a question from the bench, he added that "her primary sympathy ... is likely to lay with people whom she comes into contact with every day." Id. at 30.

In addition, the prosecutor pointed to the fact that Ms. Burr's husband was himself an eligibility worker and, later in the hearing, suggested that her age was also a factor in his decision, because it was approximately that of the defendant's mother. Id. at 25. Finally, in support of his contention that he had not stricken Ms. Burr on the basis of race, he stressed that two blacks remained on the jury and asserted both that he would not have challenged a black eligibility worker from an affluent community and that he would have challenged a white eligibility worker from Compton. Id. at 27, 33.

Defense counsel reiterated his concern, contending that the reasons provided by the government were not race-neutral. Specifically, in view of the fact that approximately three quarters of Compton's population was black, he argued that residence in this case served as a mere surrogate for race. 2

The trial judge, while questioning the logic behind the prosecutor's actions and expressing some concern over Compton's racial composition, accepted his statement as to the government's motives. 3 The judge also apparently believed that, even if the grounds for striking Ms. Burr were "questionable," he should let the case proceed "if the jury still ends up being representative." Id. at 31, 34. In other words, the impermissible striking of a juror would constitute harmless error if the proportion of blacks on the final jury panel was at least as great as their proportion on the original venire. Id. at 31, 34-35.

At the close of the trial, the court returned to this issue anew, explaining:

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[E]ven if the excusal of the one juror would be deemed improper, and I don't say that it is, but even if it's deemed improper by review of some appellate court, it's this court's belief that the defendants have not thereby been deprived of representative jurors. So it's a no-harm, no-foul situation in my opinion.

Id. at 116. At that point, the prosecutor remarked that after striking Ms. Burr, he did not strike Ms. Bryant who also was a black eligibility worker--only this time, living in Van Nuys, and married to someone who worked for the Sheriff's Department. Id. at 117.

Appellant's motion concerning discriminatory use of peremptory challenges was denied and, on August 1, 1989, the jury found him guilty of the three cocaine charges and six counts of assault on a federal officer. Bishop timely appealed.


"For over a century, [the Supreme Court] has been unyielding in its position that a defendant is denied equal protection of the laws when tried before a jury from which members of his or her race have been excluded by the State's purposeful conduct." Powers v. Ohio, 499 U.S. ----, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). In case after case, the Court has imbued this generous principle with concrete meaning, applying it to the exercise of peremptory challenges, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), allowing a defendant to raise a constitutional challenge premised on discriminatory jury strikes occurring in the course of his own trial, Batson, 476 U.S. at 96, 106 S.Ct. at 1722, permitting objections to challenges against prospective jurors of a race other than the defendant's, Powers, and extending the rule to civil trials. Edmonson v. Leesville Concrete Co., --- U.S. ----, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).

Bishop's claim focuses on the use of a criterion closely tied to race and raises the following question: Under what circumstances does such a criterion cease being race-neutral and become a surrogate for impermissible racial biases? 4 The Supreme Court has never directly addressed this issue. 5 Nevertheless, its discussion in Hernandez, supra, provides helpful guidance.

In Hernandez, the defendant objected to the prosecutor's use of two peremptory challenges to exclude Latino venirepersons. Explaining his decision, the prosecutor stated that he feared the potential jurors, because

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they were bilingual, might not defer to the translator as "the final arbiter of what was said by each of the witnesses." 111 S.Ct. at 1864-65. The defendant maintained that this justification served to conceal a race-based exclusion, given the inextricable link between ethnicity and Spanish-language ability. Id. at 1866. The Supreme Court disagreed.

After noting that discriminatory impact alone could not suffice to establish an equal protection violation, id. at 1866, the Court turned to the heart of Hernandez' argument:

Petitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a consequence, it violates the Equal Protection Clause to exercise a peremptory challenge on the ground that a Latino potential juror speaks Spanish. He points to the high correlation between Spanish-language ability and ethnicity in New York, where the case was tried. We need not address that argument here, for the prosecutor did not rely on language ability without more, but explained that the specific responses and the demeanor of the two individuals during voir dire caused him to doubt their ability to defer to the official translation of Spanish-language testimony.

The prosecutor here offered a race-neutral basis for these peremptory strikes. As explained by the prosecutor, the challenges rested neither on the intention to exclude Latino or bilingual jurors, nor on stereotypical assumptions about Latinos or bilinguals. The prosecutor's articulated basis for these challenges divided potential jurors into two classes: those whose conduct during voir dire would persuade him they might have difficulty in accepting the translator's rendition of Spanish-language testimony and those potential jurors who gave no such reason for doubt.

Id. at 1866-67 (footnote omitted).

With the help of these considerations, we now turn to Bishop's claim.


Batson describes a three-part analysis to determine whether the prosecutor's peremptory strike violates the Constitution. Initially, the defendant must establish a prima facie case of purposeful discrimination. 476 U.S. at 96-97, 106 S.Ct. at 1722-23. Next, the prosecutor must explain the challenges on race-neutral grounds. Id. at 97-98, 106 S.Ct. at 1723-24. Finally, it is up to the trial court to "determine if the defendant has established purposeful discrimination." Id. at 98, 106 S.Ct. at 1723.


Ordinarily, when a defense counsel contends that a prosecutor's exercise of a peremptory challenge violates equal protection principles, he must first establish a prima facie case of discrimination. 6 In this instance, although the district court suggested that the government would be required at some point...

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