U.S. v. Bauer, s. 94-30073

• Decision Date: 19 July 1995
• Docket Number: Nos. 94-30073,s. 94-30073
• Citation: 75 F.3d 1366
• Parties: 96 Cal. Daily Op. Serv. 756, 96 Daily Journal D.A.R. 1188 UNITED STATES of America, Plaintiff-Appellee, v. Lexi Michelle BAUER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Calvin John TREIBER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Cameron Scott BEST, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dawn MEEKS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jodie Elleyn ISRAEL, a/k/a Jodie Treiber, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kelly WEGNER, Defendant, Jodie Elleyn ISRAEL, a/k/a Jodie Treiber, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ernie MARTINEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pedro Pereda RAMIREZ, Defendant-Appellant. through 94-30076, 94-30084, 94-30094, 94-30171 and 94-30178.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1366

75 F.3d 1366 96 Cal. Daily Op. Serv. 756, 96 Daily Journal
D.A.R. 1188 UNITED STATES of America, Plaintiff-Appellee,
v.
Lexi Michelle BAUER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Calvin John TREIBER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Cameron Scott BEST, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Dawn MEEKS, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jodie Elleyn ISRAEL, a/k/a Jodie Treiber, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Kelly WEGNER, Defendant, Jodie Elleyn ISRAEL, a/k/a Jodie
Treiber, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ernie MARTINEZ, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Pedro Pereda RAMIREZ, Defendant-Appellant. Nos. 94-30073 through 94-30076, 94-30084, 94-30094, 94-30171
and 94-30178. United States Court of Appeals,
Ninth Circuit. Argued and Submitted July 19, 1995 ^*.
Decided Feb. 2, 1996.

Page 1369

Stephen T. Potts, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana, for defendant-appellant Bauer. David F. Ness, Missoula, Montana, for defendant-appellant Treiber. Donald B. Fiedler, Omaha, Nebraska, for defendant-appellant Best. Palmer Hoovestal, Helena, Montana, for defendant-appellant Meeks. Wendy Holton, Helena, Montana, for defendant-appellant Israel, a.k.a. Treiber.

James E. Seykora, Assistant United States Attorney, Billings, Montana, for the plaintiff-appellee.

Appeals from the United States District Court for the District of Montana.

Before: FARRIS, JOHN T. NOONAN, and HAWKINS, Circuit Judges.

Opinion by Judge FARRIS for Sections I and III-XV.

Opinion by Judge NOONAN for Section II.

Dissent by Judge NOONAN from Section I.

FARRIS, Circuit Judge:

Cameron Best, Calvin Treiber, Jodie Israel-Treiber, Dawn Meeks, Lexi Bauer, Ernie Martinez, and Pedro Ramirez appeal on various grounds their convictions of conspiracy to manufacture and distribute marijuana and distribution of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2; of the lesser included offense of simple possession in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(a)(1)(B)(i); and of various related charges.

Page 1370

We affirm in part and vacate and remand in part.

FACTS

In 1991 Vern Williams informed the FBI that he was a trusted lieutenant in Cameron Best and Calvin Trieber's conspiracy to import, produce, and distribute marijuana in and around Billings, Montana. The government then initiated an investigation into this alleged conspiracy, code named "Reggae North." During the investigation, police apprehended a burglar who had illegally entered Best's home; he told police he had seen evidence of marijuana distribution in Best's residence. Police obtained a search warrant and discovered marijuana, L.S.D., a gun, and large amounts of U.S. Currency during the search. Searches of other locations uncovered additional marijuana, guns, and currency. When police searched Meeks' home, she was flushing marijuana down the toilet.

In exchange for leniency, several conspirators pled guilty and testified on behalf of the government. Their testimony revealed that Treiber and Best regularly received shipments of marijuana from Mexico, each weighing one to two hundred pounds; they had invested in the local growing operations of coconspirators; and they had used cash to make several large purchases, including a farm for $88,000 and several vehicles.

On November 20, 1992, a grand jury indicted twenty-six defendants in a 55 count indictment. Count I charged all defendants with conspiracy to manufacture and distribute marijuana, alleging 89 overt acts in furtherance of the conspiracy. Other counts included: money laundering, illegal use of telecommunications services, use of firearms in relation to drug trafficking, and possession with intent to distribute marijuana. The district court granted defendants' motion for severance and scheduled four separate trials. Treiber, Best, Bauer, Meeks and Israel-Treiber were all tried together.

Defendants moved to disqualify district court Judge Shanstrom based on public statements he made about marijuana and marijuana distributors. The motion was heard and denied by senior district court Judge Battin.

The district court denied motions to dismiss for: 1) duplicity in the indictment, and 2) selective prosecution.

During voir dire, the government used peremptory challenges to strike four members of the venire, two of whom were Native Americans from the Fort Peck Reservation. Defendants challenged these strikes as racially discriminatory under Batson. The court held that: 1) defendants had made a prima facie case of discrimination, 2) the government had articulated a race-neutral reason, and 3) defendants did not meet their ultimate burden of proof on the issue of purposeful racial discrimination. It denied the Batson challenges.

The court refused to give two jury instructions requested by the defendants on the ground that the content of those instructions was adequately covered by the instructions proposed by the court. After the jury's guilty verdict, the court denied defendants' Rule 29 motions for acquittal claiming: duplicity of the indictment, selective prosecution, the right to a religious use defense, and misleading jury instructions.

DISCUSSION

I. PEREMPTORY CHALLENGES

The defendants challenge the prosecution's use of its peremptory challenges to strike from the jury two Native Americans from the Fort Peck Reservation. After the voir dire, counsel for Dawn Meeks moved to discharge the jury "on the grounds that the government had exercised discriminatory peremptory challenges" in striking Ms. Elvira Low Dog and Mr. Tony Martell. All other defendants then joined the defense motion to discharge the jury on Batson grounds.

The defendants had the burden of proving purposeful discrimination as established in Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1722-24, 90 L.Ed.2d 69. They failed to do so.

The Supreme Court has outlined a three-step process for evaluating allegations

Page 1371

that the prosecution used peremptory challenges in violation of the Equal Protection Clause.

Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.

Purkett v. Elem., --- U.S. ----, ----, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995).

The district court held that the defendants satisfied step 1 by making a prima facie case of discrimination against Native Americans by striking Ms. Low Dog and Mr. Tony Martell. The burden of production then shifted to the prosecution to articulate a race-neutral explanation. Batson, 476 U.S. at 98, 106 S.Ct. at 1723-24. This burden "does not demand an explanation that is persuasive, or even plausible. 'At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation.' " Purkett, --- U.S. at ----, 115 S.Ct. at 1771 (1995) (citing Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866-67, 114 L.Ed.2d 395 (1991) (plurality opinion)).

The government explained that both Low Dog and Martell reside in the same geographical area as Arlie Shields, a government witness whose family had been threatened. It indicated that it feared these two potential jurors may be "anti-Arlie Shields" or anti-government based on where they live. The court was satisfied. It was not clear error to find that the government met its burden of production.

Defense counsel continued to argue discrimination, but offered no evidence to rebut the explanation of the prosecution. The court concluded that the defendants had not proven purposeful racial discrimination. This determination is not clearly erroneous. The correctness of the court's ruling must be considered in terms of the information that was before the court at the time that the Batson objection was raised. The only question is whether the rejection of the defendants' Batson objection was clearly erroneous in light of the information the district court had before it. United States v. Bishop, 959 F.2d 820, 826 (9th Cir.1992) ("[T]he findings of the trial judge will not be set aside unless clearly erroneous.").

Peremptory challenges are based upon professional judgment and educated hunches rather than research. "In short, counsel is entitled to exercise his full professional judgment in pursuing his client's 'legitimate interest in using [peremptory] challenges ... to secure a fair and impartial jury.' " Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.1994). In Burks, we concluded that "[p]eremptory strikes are a legitimate means for counsel to act on such hunches and suspicions." Id. at n. 3. See also J.E.B. v. Alabama ex rel. T.B., --- U.S. ----, ----, 114 S.Ct. 1419, 1431, 128 L.Ed.2d 89 (1994) (O'Connor, J. concurring) ("[A] trial lawyer's judgments about a juror's sympathies are sometimes based on experienced hunches and educated guesses.... That a trial lawyer's instinctive assessment of a juror's predisposition cannot meet the high standards of a challenge for cause does not mean that the lawyer's instinct is erroneous.")

The Supreme Court, recognizing "the contribution the [peremptory] challenge generally makes to the administration of justice," has placed the burden of proof on the opponent of the peremptory strike. Batson, 476 U.S. at 98-99, 106 S.Ct. at 1723-24. "[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett, --- U.S. at ----, 115 S.Ct. at 1771.

Following the government's...