U.S. v. Vasquez-Lopez, VASQUEZ-LOPE

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 22 F.3d 900
• Docket Number: D,No. 93-50155,VASQUEZ-LOPE,93-50155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julio Cesarefendant-Appellant.
• Decision Date: 18 April 1994

Page 900

22 F.3d 900 UNITED STATES of America, Plaintiff-Appellee,
v.
Julio Cesar VASQUEZ-LOPEZ, Defendant-Appellant. No. 93-50155. United States Court of Appeals,
Ninth Circuit. Argued and Submitted March 8, 1994.
Decided April 18, 1994.

Page 901

Oswald Parada, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Christopher Tayback, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Before: WALLACE, Chief Judge; FARRIS, and KLEINFELD, Circuit Judges.

Appeal from the United States District Court for the Central District of California, Harry L. Hupp, District Judge, Presiding.

FARRIS, Circuit Judge:

Julio Cesar Vasquez-Lopez appeals his conviction for cultivating marijuana and using a firearm during and in relation to a drug trafficking offense. 21 U.S.C. Sec. 841(a)(1); 18 U.S.C. Sec. 924(c)(1). He argues that the government's peremptory challenge of the only Black prospective juror violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm.

BACKGROUND

During jury selection, defense counsel objected to the government's peremptory challenge to the only Black juror on the panel. The government began to offer an explanation for the challenge--the prosecutor's perception that the prospective juror was inattentive and not interested in being a juror--when the judge interrupted and told defense counsel to explain what facts supported an inference of intentional discrimination. Vasquez-Lopez's counsel stated that the challenged juror was the only Black juror on the entire panel and that she lived in South Central Los Angeles, as did Vasquez-Lopez. Counsel further contended that there was no reason to believe that the challenged juror, an accountant and mother of four children, would be an unqualified or biased juror. The district court ruled that Vasquez-Lopez had failed to establish a prima facie case of purposeful discrimination and excused the juror.

The government exercised a total of three peremptory challenges. As finally constituted, the jury consisted of seven men and five women. One of the jurors had a Latino surname and another, an Asian surname.

DISCUSSION

A district court's findings regarding purposeful discrimination in the jury selection process will not be disturbed unless clearly erroneous. United States v. De Gross, 960 F.2d 1433, 1442 (9th Cir.1992) (en banc).

The Constitution forbids all parties in either criminal or civil trials from challenging prospective jurors solely on account of their race. Georgia v. McCollum, --- U.S. ----, ----, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, ----, 111 S.Ct. 2077, 2088, 114 L.Ed.2d 660 (1991); Batson, 476 U.S. at 89, 106 S.Ct. at 1719. ¹ Peremptory challenges based solely on race are prohibited even if, as in this case, the defendant is of a different race than the juror being struck. Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1991). Vasquez-Lopez bore the initial burden of establishing a prima facie case by showing that the circumstances surrounding the peremptory challenge of the juror raised an inference of

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purposeful...