Appeal from the September 29, 1988, judgment of the District Court for the Eastern District of New York (John R. Bartels, Judge) convicting defendant, after a jury trial, of extortion and conspiracy to commit extortion, in violation of 18 U.S.C. §§ 1951-1952 (1982 & Supp. V 1987), and sentencing him to a three-year term of imprisonment and four years' probation. Appellant alleges discriminatory use of peremptory challenges by the prosecutor.
Newman, Pratt, and Mahoney, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal concerns primarily the implementation of the holdings in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984), vacated and remanded, 478 U.S. 1001, 92 L. Ed. 2d 705, 106 S. Ct. 3289 (1986), appeal dismissed, No. 84-2026 (2d Cir. Oct. 23, 1986), proscribing a prosecutor's use of peremptory challenges on the basis of race or other impermissible categories. Horacio Alvarado appeals from the September 29, 1988, judgment of the District Court for the Eastern District of New York (John R. Bartels, Judge) convicting him, after a jury trial, of extortion and conspiracy to commit extortion, in violation of 18 U.S.C. §§ 1951-1952 (1982 & Supp. V 1987), and sentencing him to a three-year term of imprisonment and a four-year term of probation. Alvarado, who is described by his counsel as half Black and half Puerto Rican, contests as discriminatory the Government's use of its peremptory challenges against Blacks and Hispanics and also seeks resentencing on the ground that the District Court did not make clear whether an unresolved factual dispute influenced its sentence. For reasons set forth below, we affirm.
Jury selection was conducted before a magistrate without objection, a practice we have recently approved. See United States v. Vanwort, 887 F.2d 375, slip op. at 5876-77 (2d Cir. 1989). The jury was chosen using the "jury box" system, with challenges exercised in "rounds." See United States v. Blouin, 666 F.2d 796 (2d Cir. 1981). In round one, the prosecution used its challenge against a Black, William Clark; in round two, against a White; in round three, against an Hispanic, Mario Garcia; in round four, against a Black, Essie Callier; in round five, the challenge was waived; and in round six, against a White. In the selection of the three alternates, the Government used its one challenge against a Black, Sondra Brown.
At that point, counsel for Alvarado asked the Magistrate to require the prosecution to state its reasons for using four of its challenges against Black and Hispanic members of the venire. The prosecution's initial reply disputed the existence of a prima facie case of discriminatory use of peremptory challenges sufficient to require a statement of reasons. The prosecutor pointed out that in selecting the jury of 12, only three of six challenges had been used against minority members of the venire and that at the time a challenge was waived in the fifth round, two Hispanics and one Black were seated in the jury box, available to be challenged. The Magistrate then said he would afford the prosecutor an opportunity to state reasons "[if] you wish to say anything," whereupon the prosecutor said that he was willing to respond but thought that a "finding" had to be made before the Government was obliged to state reasons. The Magistrate replied that "if you wish . . . to explain I think it would be quite helpful of [sic] finding in this particular case" but made clear that no reasons were being required: "I'm giving you the opportunity to explain any of your challenges. I'm giving you that opportunity if you choose that's your prerogative."
The prosecutor then volunteered reasons for the four minority challenges: Clark was challenged because his youth and lack of experience made him an inappropriate candidate for foreman, which the prosecutor assumed he would become by virtue of his being juror number one; Garcia was challenged because his lack of fluency in English caused concern that he might have difficulty understanding tape recordings; Callier was challenged because, with children the age of the defendant, she might be unduly sympathetic; Brown was challenged because she was a social worker.*fn1
After hearing these explanations, the Magistrate rejected defense counsel's complaint about the prosecutor's use of peremptory challenges, but the ruling left it unclear whether the Magistrate was determining as a matter of law that the defense had failed to establish a prima facie case of discriminatory use of challenges or was determining as a matter of fact that a discriminatory use of challenges had not occurred. First, the Magistrate accepted the prosecutor's explanations for the challenges to Clark and Brown. No explicit finding was made concerning the explanations for the challenges to Garcia and Callier. Then, seeming to reject a prima facie case as a matter of law, the Magistrate referred to the defendant's "initial burden" to "show a pattern . . . of conduct to exclude minority members" and said "there is no pattern." However, seeming to rule on the ultimate issue as a matter of fact, the Magistrate also stated that "the government has explained itself in sufficient detail for me to make the following findings without hesitation" and concluded that "there was not an intent to make or deprivation of a right to a jury trial by peers."
The jury of twelve as empaneled included one Black and two Hispanics.
When a defense counsel contends that a prosecutor is exercising peremptory challenges in violation of the Equal Protection Clause, the initial issue for the judge is whether a prima facie case of discrimination has been shown. Batson v. Kentucky, 476 U.S. at 93-96. To make a prima facie showing of discriminatory peremptory challenges, a defendant must demonstrate that members of his or her cognizable racial group were excluded from the jury and that the facts are sufficient to support an inference of purposeful racial discrimination.
[The] defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, [430 U.S. 482, 494, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977)], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Avery v. Georgia, [345 U.S. 559, 562, 97 L. Ed. 1244, 73 S. Ct. 891 (1953)]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.
Batson v. Kentucky, 476 U.S. at 96.
As the proceedings in the instant case reveal, confusion sometimes arises as to what is meant by "prima facie case" in this context and what procedure should be followed in ascertaining whether such a case has been presented. Normally, "prima facie case" means a presentation of evidence that suffices as a matter of law to warrant submission of an issue for decision by the trier of fact. 9 J. Wigmore, Evidence § 2494 (J. Chadbourn rev. ed. 1981). In the context of determining the existence of discriminatory intent, however, "prima facie case" has a different meaning. In this setting, as the Supreme Court explained in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), the phrase means presentation of evidence sufficient to establish what the Court called "a legally mandatory, rebuttable presumption," id. at 254 n.7. The Court used this somewhat cumbersome phrase to convey the idea that where the evidence suffices to establish a "prima facie case" of discriminatory intent, the party claiming the existence of such intent is entitled to prevail if (a) the fact-finder believes the claimant's evidence and (b) the party resisting the claim offers no evidence. Id. at 254. The difference between the traditional and the special meanings of "prima facie case" is subtle: With the former, the fact-finder first decides whether to credit the claimant's evidence of the underlying facts and then is entitled to, but need not, draw ...