U.S. v. Bergodere

• Decision Date: 08 November 1994
• Docket Number: No. 94-1520,94-1520
• Citation: 40 F.3d 512
• Parties: UNITED STATES of America, Appellee, v. Carlos BERGODERE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 512

40 F.3d 512

UNITED STATES of America, Appellee, v. Carlos BERGODERE, Defendant, Appellant.

No. 94-1520.

United States Court of Appeals, First Circuit.

Heard Nov. 8, 1994.

Decided Nov. 30, 1994.

David A.F. Lewis, for appellant.

Zechariah Chafee, Asst. U.S. Atty., with whom Sheldon Whitehouse, U.S. Atty., was on brief, for appellee.

Before SELYA, CYR, and STAHL, Circuit Judges.

SELYA, Circuit Judge.

This appeal raises questions of first impression in this circuit concerning how courts should apply the lessons of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. After answering those questions, we conclude that the district court did not err in permitting the government to eliminate the lone African-American juror by means of a peremptory challenge. Since appellant's other assignments of error are equally unavailing, we affirm the judgment below.

I. BACKGROUND

On March 9, 1993, a team of law enforcement officers executed a search warrant at the residence of defendant-appellant Carlos Bergodere in Providence, Rhode Island. When the officers arrived, only appellant and his wife, Cynthia Eastwood, were on the premises.

Appellant's apartment consisted of a kitchen, dining area, living room, and two bedrooms. During the search, the officers discovered three "browns" of heroin in the kitchen ¹ and an operable .9 millimeter Luger pistol, fully loaded, under the seat cushions of the living room sofa. Several rounds of live ammunition, not corresponding to the Luger, were found in appellant's bedroom. The officers arrested appellant and seized additional quantities of heroin from his person.

In due season, a federal grand jury returned an indictment charging appellant with possession of a firearm after a previous felony conviction, see 18 U.S.C. Sec. 922(g)(1), possession of heroin with intent to distribute, see 21 U.S.C. Sec. 841(a)(1) & (b)(1)(C), and using a firearm during and in relation to a drug-trafficking crime, see 18 U.S.C. Sec. 924(c)(1). Appellant entered a "not guilty" plea. In time, the court empaneled a jury. Contrary to the more common federal practice, the judge permitted the attorneys to conduct the voir dire.

In the course of jury selection, the following colloquy took place between the prosecutor and a black venireperson, Robert Goodrum.

Mr. Chafee: Mr. Goodrum, where do you work, sir?

Mr. Goodrum: I work in Newport. I'm area director for an adolescent outreach program.

Mr. Chafee: ... [A]re these young people who are having trouble in the community?

Mr. Goodrum: Yes, it varies from kids doing well, to kids in places like this.

* * * * * *

Mr. Chafee: Obviously you have a big heart for people in trouble. You're going to be asked to sit in judgment on somebody. Can you be fair and impartial to both the Government and the defendant in this case, listen to the evidence and call it ... according to the law given to you by Judge Lagueux?

Mr. Goodrum: Well, it will be a struggle but I know I can do it right, yeah.

Later on, defense counsel engaged in a colloquy with Mr. Goodrum.

Mr. Gillan: ... Why do you feel it would be a struggle for you to sit in judgment on this case?

Mr. Goodrum: I just have problems I guess with adults and drugs as I deal with kids and drugs.

* * * * * *

Mr. Gillan: And what if an adult is addicted to drugs. How does that make you feel?

Mr. Goodrum: ... I can deal with that. I mean, you know, when I think about people who might be soliciting I have problems.

Mr. Gillan: People might be soliciting children?

Mr. Goodrum: Right.

Mr. Gillan: Okay. but if that's not the evidence in this case then ... you won't have a problem with that?

Mr. Goodrum: Then I wouldn't have a problem with it.

The prosecution dismissed Goodrum from further service. Appellant objected. The district court upheld the strike, apparently finding that appellant failed to make a prima facie showing that the strike was motivated by a race-based animus. In the process, the judge specifically noted Goodrum's avowed doubts as to whether he could be an impartial juror.

A jury devoid of black members eventually convicted appellant on all counts. This appeal followed.

II. THE PEREMPTORY CHALLENGE

Appellant's most striking argument concerns the prosecution's challenge of the juror, Goodrum. We begin by tackling that matter.

A. The Framework for Inquiry.

The Supreme Court has recognized that in civil and criminal trials potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from group stereotypes rooted in, and reflective of, historical prejudice. See J.E.B. v. Alabama, --- U.S. ----, ----, 114 S.Ct. 1419, 1421, 128 L.Ed.2d 89 (1994) (finding gender, like race, to be an unconstitutional proxy for juror competence and impartiality); Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1990) (stating that racial discrimination in the selection of jurors offends the dignity of persons and the integrity of courts).

In evaluating an equal protection challenge to a prosecutor's use of a peremptory strike, a three-part framework should be employed. See Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-24; United States v. Perez, 35 F.3d 632, 635 (1st Cir.1994). First, the defendant must make a prima facie showing of discrimination in the prosecutor's launching of the strike. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1722-23. If the defendant fulfills this requirement by establishing, say, a prima facie case of a racially driven impetus, ² then the prosecutor must proffer a race-neutral explanation for having challenged the juror. See id. at 97, 106 S.Ct. at 1723; see also United States v. Lewis, 40 F.3d 1325, 1341-42 (1st Cir.1994). The prosecutor's burden is merely a burden of production, not a burden of persuasion. If the prosecutor complies, then, at the third and final stage, the district court must decide whether the defendant has carried the ultimate burden of proving that the strike constituted purposeful discrimination on the basis of race. See Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991) (discussing Batson ); Perez, 35 F.3d at 635.

In making a Batson challenge, the defendant retains the burden of proof throughout. As part and parcel of this burden, he must carry the devoir of persuasion regarding the existence of a prima facie case of race-based discrimination in the jury selection process. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1722-23. The combination of factors needed to establish a prima facie case are limned in Chakouian v. Moran, 975 F.2d 931, 933 (1st Cir.1992). Initially, the defendant must demonstrate that the prosecution's challenge was directed at a member of a cognizable racial group. ³ See Batson, 476 U.S. at 96, 106 S.Ct. at 1722; Chakouian, 975 F.2d at 933. Next, the defendant must show that the challenge was peremptory rather than for cause, thus bringing into play the Supreme Court's admonition that "peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' " Batson, 476 U.S. at 96, 106 S.Ct. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)). Finally, the defendant must show circumstances sufficient, when combined with the two antecedent facts, to raise an inference that the prosecutor struck the venireperson on account of race. See id. While the prima facie case requirement is not onerous, neither can it be taken for granted.

B. Standard of Review.

This court has yet to articulate the appropriate standard against which to test a trial court's ruling that a defendant has--or has not--made out a prima facie case in connection with a Batson challenge. We do so today.

A careful reading of Batson convinces us that, although this determination can be characterized as a mixed question of law and fact, it is fact-sensitive, and, therefore, should be reviewed under the familiar clear-error standard. See generally In re Howard, 996 F.2d 1320, 1328 (1st Cir.1993) ("The standard of review applicable to mixed questions usually depends upon where they fall along a degree-of-deference continuum: the more fact-dominated the question, the more likely it is that the trier's resolution of it will be accepted unless shown to be clearly erroneous."). Our holding is consistent with the Supreme Court's expression of confidence that trial judges, experienced in conducting and supervising voir dire, will likely be able to identify prima facie cases of discrimination. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Our holding is also consistent with the decisions of the five other courts of appeals that thus far have confronted the same standard-of-review problem and resolved it in like manner. See United States v. Vasquez-Lopez, 22 F.3d 900, 901 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994); United States v. Branch, 989 F.2d 752, 755 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993); United States v. Casper, 956 F.2d 416, 418 (3d Cir.1992); United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990); United States v. Grandison, 885 F.2d 143, 146 (4th Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1990).

C. Analysis.

We detect no clear error in the district court's rejection of appellant's proffered prima facie case. Although the striking of the only juror of a particular race can be sufficient to ground a permissive inference of discrimination in certain circumstances, see, e.g., United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir.), cert. denied, 490 U.S. 1028, 109 S.Ct. 1764, 104 L.Ed.2d 199 (1989), such a strike does not raise a necessary inference of discrimination, see Vasquez-Lopez, 22 F.3d at 902. Phrased another way, the mere fact that the prosecutor challenges the only juror of a particular race, without more, does...