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UNITED STATES v. MOORE

May 12, 1998

UNITED STATES OF AMERICA, - v - KEITH MOORE, Defendant.


The opinion of the court was delivered by: RAKOFF

MEMORANDUM ORDER

 JED S. RAKOFF, U.S.D.J.

 On January 29, 1998, defendant Keith Moore was convicted after a jury trial of possessing a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k), and of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). *fn1" On February 4, 1998, defendant moved for a new trial pursuant to Fed. R. Crim. P. 33, on the ground that the Court, in preventing Moore from exercising one of his peremptory challenges for what the Court found was a discriminatory purpose, had erroneously applied the doctrine of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) and its progeny. For the reasons stated below, the motion is denied.

 On January 26, 1998, jury selection was conducted using the "jury box" method, in which an initial twelve members of the array were selected by lot and then, as individually excused (for cause or peremptorily), individually replaced by other members of the array likewise chosen by lot. Pursuant to Fed. R. Crim. P. 24(b), the Government was accorded six peremptory challenges and the defendant ten. These were to be exercised in six rounds, with the Government exercising one challenge per round and the defense exercising two challenges in each of the first four rounds and one challenge in each of the final two rounds.

 In each of the first three rounds, the defendant used his two peremptory challenges to strike white males. At a sidebar conference following the third round, the Government asked the Court to take note of "initial indications of [a prohibited] pattern on [defense counsel's] part," Trial transcript ("Tr.") at 37, but made no further application at the time. At the start of the fourth round, the defendant indicated his intention to strike two more white males -- which would have been eight consecutive such strikes. The Government then sought a sidebar conference, at which it made a "reverse Batson challenge" to defendant's use of his peremptorily in this fashion (Tr. 42).

 Without requesting a ruling on whether the prosecution had established a prima facie case of discrimination, defense counsel responded to the Government's challenge by stating that his reasons for seeking to strike these latest two white males were that one was an attorney and that the other (Juror # 11):

 
works in a regulatory affairs department of a pharmaceutical company and I thought that it was my thinking that in view of the regulatory nature of serial numbers and all those kinds of things with a firearm that he was, in my estimation, particularly ill suited to serve as a juror in this case.

 (Tr. 43-44). When asked by the Court to elaborate on this rationale, defense counsel was unable to do so, simply reiterating, essentially verbatim, his initial statement. (Tr. 44)

 The Court, noting that special circumstances relating to the attorney juror had previously led defense counsel to (unsuccessfully) challenge him for cause, permitted the peremptory challenge as to that juror. (Tr. 44) But as to the challenge of Juror # 11, the Court stated as follows:

 
THE COURT: Always in a peremptory situation I have to give substantial weight to counsel's judgment, but of course it can't carry the day fully or there would be nothing to Batson and its progeny. We have here what appears on its face to be a statistical pattern that departs very, very considerably from what would randomly have been the case if challenges had been randomly exercised with respect to this panel, which was both a racially and gender-mixed panel.
 
We have a reason articulated by the defense that, with great deference Mr. Stavis to your judgment and to your good faith, which the Court does not in any way suspect, strikes me as not having any firm rational roots and therefore will operate, even if not intended to operate, in a prejudicial and pretextual manner.
 
So I am going to disallow that challenge. You can look at the board again and exercise your second challenge on some other person.

 (Tr. 44-45)

 Despite this invitation, defendant chose to waive his second fourth-round challenge. (Tr. 45) He also waived his remaining two challenges, as did the Government, thus completing selection of the twelve member panel. Defendant also chose not to exercise his allotted ...


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