# Petition for Writ of Certiorari — Ochoa-Vasquez v. United States (No. 05-1524)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

O05 1524 | FILED
No. MAY 26 2006
_OPRICR OF THE CLERK |
IN THE

Supreme Court of the United States

October Term, 2006

+

FABIO OCHOA-VASQUEZ,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

4

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

*

PETITION FOR WRIT OF CERTIORARI

+

G. Richard Strafer, Esq.
G. Richard Strafer, P.A.

2400 S. Dixie Highway
Suite 200

Miami, FL 33133
(305) 857-9090
[Counsel of Record}

Roy E. Black, Esq.

Howard M. Srebnick, Esq.

Black, Srebnick, Kornspan &
Stumpf, P.A.

201 South Biscayne Boulevard

Suite 1300

Miami, FL 33131

(305) 371-6421

QUESTIONS PRESENTED FOR REVIEW

During the selection of the jury that convicted a Hispanic male
of criminal offenses, prosecutors used 5 of their 6 peremptory
challenges to strike Hispanic males. The district court, however,
found that this pattern of both ethnic and gender-based strikes was not
enough to require even an explanation from the prosecutors under
Batson v. Kentucky, 476 U.S. 79, 90 L.Ed. 2d 69, 106 S.Ct. 1712
(1986). The Eleventh Circuit then affirmed this ruling by deferring
to the district court’s discretion. The Eleventh Circuit’s ruling creates
at least two splits in the circuits warranting review by this Court:

I. SHOULD THE COURT RESOLVE TWO SPLITS IN THE CIRCUITS
CONCERNING THE CONSTRUCTION OF BATSON V. KENTUCKY: (A)
WHETHER THE FIRST PRONG OF BATSON’S THREE-PART TEST
CAN BE ESTABLISHED THROUGH STATISTICS ALONE; AND (B)
WHETHER AN APPELLATE COURT SHOULD REVIEW A DISTRICT
COURT’S REJECTION OF A DEFENDANT’S PRIMA FACIE SHOWING
UNDER AN ABUSE OF DISCRETION OR DE Novo STANDARD?

In extraditing Petitioner to stand trial in the United States, the
Colombian government and court system expressly conditioned the
extradition on Petitioner receiving no more than 12 years in prison —
the maximum sentence he could have received under Colombian law
for the same offenses. Over objection, the district court proceeded to
sentence Petitioner to 365 months in prison, and the Eleventh Circuit
affirmed without elaboration, creating yet another split in the circuits
warranting review by this Court:

II. WHETHER AN EXTRADITED DEFENDANT HAS THE RIGHT TO
ENFORCE THE LIMITS PLACED ON HIS SENTENCE BY THE

REQUESTED COUNTRY?

INTERESTED PARTIES

There are no parties to the proceeding other than those named
in the caption of the case.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..........-+: veaweseule
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ph BE ee a er ae

PEUITUN bose Kécecees PE VP TEST OE TOOT TT TTT ETT OE TEES
OPINION BELOW ........... perry rrr re codialee whe 1
BTATEOCENT OF FURIBIICTION ccc ccvccevctvcuscccecsoeens 1
CONSTITUTIONAL AND STATUTORY
PP OMOEA ences be cecdesveuveeues Siemans pace
SPACERS CO THEIR o.oo 5 icc vo ov cc cdeees ch eses oe
A. PROCRURAL THIOTORE Sccovvcccavdeccesusi 2
B. PUA TANEITE OF THE PACTS cc sivcccsvccdocnees 2
1. THE ANONYMOUS JURY AND
ENHANCED SECURITY ......-ccccecces 2
= THE BATSON CHALLENGES
RE PS va hi ae hobs ccnue seas 3
i? THE TRIAL EVIDENCE ....ccccescccves 5
<. THE ELEVENTH CIRCUIT’S DECISION ......... 5
REASONS FOR GRANTING THE WRIT .....cccccccccccccees 7
3 THE COURT SHOULD GRANT THIS PETITION TO

RESOLVE TWO CIRCUIT SPLITS CONCERNING Tili
PROPER CONSTRUCTION OF BATSON V. KENTUCKY:
(A) How OR UNDER WHAT CIRCUMSTANCES
STATISTICS ALONE CAN BE USED To ESTABLISH A

iil

DEFENDANT’S PRIMA FACIE CASE OF
DISCRIMINATION; AND (B) THE PROPER STANDARD
OF APPELLATE REVIEW WHEN A TRIAL JUDGE HAS
FOUND THAT A DEFENDANT HAS FAILED TO
ESTABLIGH A PRIMA FACIE CASE .ccccccccsscce TF

Il. THE COURT SHOULD GRANT THIS PETITION TO
RESOLVE A CIRCUIT SPLIT CONCERNING THE
RIGHT OF A DEFENDANT, WHO HAS BEEN
FORMALLY EXTRADITED FROM A FOREIGN
COUNTRY TO STAND TRIAL IN THE UNITED
STATES, TO ENFORCE LIMITS ON HIS SENTENCE
IMPOSED BY THE FOREIGN (REQUESTED) COUNTRY

SS eeeee Dk dd pEAoe a ed eae oka
A. EXTRADITIONS FROM COLOMBIA
WES TUE SIMTTE ATES. v.éciccsdcedtacscetaa 19
B. CEROA'S EATRAIIIION hi vic ddiccdcdssoweecaes 19
. THE DOCTRINE OF SPECIALTY:
GENERAL PRINCIPLES..... aA eee Pry ae FE oe 22
D. THE VIOLATION IN OCHOA ..... ER ARS 24
es ee ge a se ey eres 25
APPENDIX
DECISION OF THE COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT IN UNITED STATES V. OCHOA-
VASQUEZ, 428 F.3D 1015 (11™ Cir. 2005) ........... A

ELEVENTH CIRCUIT ORDER DENYING REHEARING
DATES ZAMUARS Fac BOO 62 sch bak RO eor eens che B

iV

TABLE OF AUTHORITIES

CASES:

Alexander v. Louisiana,
405 U.S. 625, 31 L.Ed.2d 536,

Orare Vee eer...

Alvarado v. United States,
497 U.S. 543, 111 L.Ed.2d 439,

NOGCr 908 0D oo ee.

Batson v. Kentucky,
476 U.S. 79, 90 L.Ed. 2d 69,

SOEs S7LG REPO 65 9 ibn 8% ee 0 Ve ose

Brinson v. Vaughn,

398 F.3d 225 (3 Cir.), cert. denied, _U.S._

163 L.Ed. 2d 359,

Sac TAREE eK 003 $3 Li eres aah aes

Bui v. Haley,

Brie OB ko 28 6 gk eS a

Castaneda v. Partida,
430 U.S. 482, 51 L.Ed. 2d 498,

PE See IT Fe eas

Cochran v. Herring,

G3 F.3d 1404 11" Ce. 1908) Co cies

Davis v. Sec. For the Dept. of Corrections,

Pek Bode SEES Sc ED ass ig A hs

Demjanjuk v. Petrovsky,
776 F.2d 571 (6" Cir. 1985)
cert. denied, 475 U.S. 1016. 74 L.Ed.2d 602.
103 S.Ct. 447 (1986), vacated on other grounds,
10 F.3d 338 (6" Cir. 1993), cert. denied,
513 U.S. 914, 130 L.Ed.2d 205,

Pa ae URE POON Cree e Secs uw tk po wie ne

ee

Eagle v. Linahan,
279 F.3d 926 (11" Cir. MORE Gite. Ces cee 13, 14

Evans v. Smith,
2 P38 506 10 Cle DOOD ok. eS 8

Fernandez v. Roe,
286 F.3d 1073 (9" Cir.), cert. denied,
537 U.S. 1000, 154 L.Ed.2d 395,
Se ee GEE 5 ec wk 6 Gekdies i pncdnwie Dae wae 10

Fiocconi v. Attorney General,
462 F.2d 475 (2™ Cir.) cert. denied,
409 U.S. 1059, 34 L.Ed.2d 511,
PF A SIREN TER ree ices eu eke eee ic wae

Gallo-Chamorro v. United States,
as IO tee tl Ge Se oe ree 22

Harrison v. Ricks,
150 Fed, Aone F5 GO) es eae 14

Holloway v. Horn,
355 F.3d 707 COP Oe Ne soc ek ce hehe ee 10, 13. 14

J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127,
128 L.Ed. 2d 89,
SO cls BU CR iss Eh Sk a eee eee aS 16

Jones v. Ryan,
O07 Fe see Ce 9 oe ee eee 11,13

Johnson v. California,
545 U.S. 162,
162 L.Ed.2d 129,
RPS eR Rt CRORE ok ccs Co eec cen bees 7, 9, 10, 15, 16

Jones v. Ryan,
ORT £20 900 OC" Cie 1988) ok So Siig ies 11,13

Lancaster v. Adams,
324 F.3d 423 (6" Cir.) cert. denied,
540 U.S. 1004, 157 L.Ed.2d 409,
Ce tks SUE a so weed ce vaeedaroas 12

Leighnor v. Turn |
SOO Ee ed Ce TIO. ae a ee 23

Lewis v. Lewis.,
S2t F.3d B26 Oe, POO) os hs SS 18

Mahaffey v. Page,
102 8:36 401 7" Cee 1998) i ea, 15, 18

Matta-Ballesteros v. Henman,
S06 26 TSS) CR. I ee EAS RI 23

Miller-El v. Cockrell,
537 US. 322,
154 L.Ed.2d 931,
Fad Os Ges RA Et as hed ON ee edie eee 16

Miller-El v. Dretke,
545 U.S. 231,
162 L. Ed. 2d 196,
Sa Rs CPU P OS i os ies cose reer 14, 15, 17

Paulino v. Castro,
STU SAITO Cr 2008 3 eee ee 10

Purkett v. Elem,
514 U.S. 765,
131 L.Ed.2d 834,
HIS SACL 1769 (4995) (er curiam). 6.5 7,18

Riley v. Taylor,
277 F.3d 261 (3 Cir. 2001) (en banc)............... 18

Robinson v. United States,
$78 A.2¢6 1273 (D.C. App. 2005) 2... 53. 11, 15, 16

Vil

Shapiro v. Ferrandina,
478 F.2d 894 (2™ Cir. 1973), cert. dismissed,
414 US. 884,
38 L.Ed.2d 133,
TE 6s 6 iii dah 00s $00 e rc owraseesien 23

State v. Pang,
940 P.2d 1293 (Wash.), cert. denied,
522 U.S. 1029,
139 L.Ed.2d 608,
ee ela yews arveews 23

Texas Department of Community Affairs v. Burdine,
450 U.S. 248,
67 L. Ed 2d 207,
We OPA EOED ho cde ve wnvaververcvcesios 8,9

Thomas v. State,
659 So.2d 3 (Ala. 1994) ....... See awee Mia ena a 11,12

Tolbert v. Page,
182 F.3d 677 (9" Cir. 1999) (en banc)............... 12

Turner v. Marshall,
ee OO IOS) eect vce esadeens 12

United States v. Abello-Silva,
a ad & 20 |) ag ee 24

United States v. Alvarado,
891 F.2d 439 (2™ Cir. 1989) , vacated on other grounds,
497 US. 543,
111 L.Ed.2d 439,
HG. 2999 C99)... 5. eee. Fok are a a ee en 15

United States vy. Alvarado,
ee ee Oe, EGG]) oc ce ccc cece ewes i 2

United States v. Battle,
RMT CME, EGGT) os cee cece eeseens 13

Vill

United States v. Campbell,
300 F.3d 202 (2™ Cir. 2002), cert. denied,
538 U.S. 1049,
155 L.Ed.2d 1090,
pe fe Bio! Sy. : SRR nee wanaee nse Riemer ane Tegra cr: 24

United States v. Cuevas,
OOF Fe FELT Or" Cos: 1908). og oe i sh ee Bend. 23

United States v. David,
Os Fe TSF CAT Ce PO oss sy chic 14

United States v. Davis,
BSE 20 TEE OE GM: FON i vicki civics enced 23

United States v. DiTommaso,
St7 P26 20b Ce 1967) ao cc ei es, 23

United States v. Harris,
Oe Oe SI Ce I nb co ei ee 12

United States v. Joe,
CP DEO Ce HO): oi 12, 13

United States v. Lane,
Oa Fe ce 0 a Pe ib oi cs oA aa 13

United States v. LeBaron,
OR eS a ks oo eh ck bee te ees

United States v. Munoz-Solarte,
No. 93-2723 & 93-3811 (7" Cir. July 18, 1994),
TPIT PU Te WRI E a a Sic ob 00 Ua Meu ee%

United States v. Najohn,
785 F.2d 1420 (9" Cir.), cert. denied,
479 U.S. 1009,
93 L.Ed.2d 707,
PEF RE ETE oS Fk cd Flee hae Gove eer

United States v. Ochoa-Vasquez,
428 F.3d at 1015 (11" Cir. 2005) ......

ix

United States v. Overton,
ee A A, EY o's vk os sv ed wes ces 8,9, 10

United States v. Paroutian,
re a ee BOD ea ko des oi eee 23

United States v. Puentes,
50 F.3d 1567 (11" Cir.), cert. denied,
516 U.S. 933,
133 L.Ed.2d 239,
Ce kes Pe GE 5 ooo 0 0 oo tbe ee oes eee i bite 23

United States v. Rauscher,
119 U.S. 407, 30 L.Ed. 425,
Fe AE eb 8 26 oc co ota hae co bcde ey eeeaeen 22

United States v. Riviere,
Oe cae tr CE: FOES cos oc bag Sek eases: 23

United States v. Saccoccia,
ie Pe ee Ee CUED oo ors oa bs ba bcoe seks ek.

United States v. Sensi,
Ee Fe es BE oo vec esse tieikesews 23

United States v. Stephens,
Rat FE er’ Ce BOO) 6 keds eee 10,14, 15

Washington v. Davis,
426 U.S. 229, 48 L.Ed.2d 597,

Ue eo ee ee aa aie 8
Williams v. Runnels,

Oe ee ee a vc evo Sew ees 10
STATUTORY AUTHORITY _
ee ee RS is Sea PE Re l
a a RR oa a a 1,6
Are Ca, I, Ee a a eo pecke epee er ees 2

MU A ee ae

MISCELLANEOUS

Matthew W. Henning, Extradition

Controversies: How Enthusiastic Prosecutions

Can Lead To International Incidents, 22 B.C.

INT'L & Comp. L. REV. 347, 355-56 (1999) ................ 24

Ved P. Nanda, Essay: Bases For Refusing

International Extradition Requests -

Capital Punishment and Torture,

2S PUMAMINT UL. 5 F908 COD) i once cee cine cece eeyes 24

Craig R. Roecks, Extradition, Human Rights,

and the Death Penalty: When Nations Must

Refuse To Extradite a Person Charged With

a Capital Crime, 25 CAL. W. INT'LL.J. 189 (1994) ........... 24

Xl

PETITION FOR WRIT OF CERTIORARI

Fabio Ochoa-Vasquez respectfully petitions the Supreme
Court of the United States for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Eleventh
Circuit, rendered and entered in 11th Cir. Case Nos. 03-14400 and
04-10718 on October 20, 2005, and reported at 428 F.3d 1015 (11"
Cir. 2005).

OPINION BELOW

A copy of the decision of t..2 United States Court of Appeals
for the Eleventh Circuit, which affirmed the judgment and conviction
of the United States District Court for the Southern District Florida,
is contained in the APPENDIX A. Ochoa’s petition for rehearing en
banc was denied on January 12, 2006. See APPENDIX B.

STATEMENT OF JURISDICTION

This Petition has been filed within the extended time period
granted by this Court by order dated April 3, 2006, permitting this
Petition to be filed by May 27, 2006. The Court’s jurisdiction is
invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The constitutional provisions, statutes and rules involved in
this case are:

U.S. Const. amend VY:

No person shall be ... deprived of life, liberty, or
property, without due process of law{.]

U.S. Const. amend VI:

In all criminal prosecutions, the accused shall enjoy
the right to a... trial, by an impartial jury....

1

U.S. Const. amend. XIV, § 1:

acted No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
...deny to any person within its jurisdiction the equal
protection of the law.

STATEMENT OF THE CASE

A. PROCEDURAL HISTORY

In early 1999, law enforcement officials in the United States
and Colombia commenced a joint narcotics investigation, “Operation
Millennium,” that resulted in a series of indictments in the Southern
District of Florida, including the one returned against Petitioner Fabio
Ochoa-Vasquez (“Ochoa”). (DE111; DE349: 44-49, 161.) Ochoa
was charged with conspiring with 43 co-defendants to distribute and
import cocaine into the United States between December 17, 1997,
and August 26, 1999. (DE 106.) On October 13, 1999, he was
arrested in Colombia and subsequently extradited to Miami. (DE
508-509.) After a 3-week trial in May 2003, he was convicted of both
counts¥and, on August 26, 2003, sentenced to 365 months in prison.
(DE 1581, 1562.)

B. STATEMENT OF THE FACTS =
1. The anonymous jury and enhanced security —

Before trial the government moved for an anonymous and
“partially sequestered” jury, asserting that Ochoa — allegedly a former
leader of the “Medellin Cartel” — posed a threat to obstruct justice
during his trial. (DE 966.) The government contended that Ochoa’s
rights could be adequately protected by an expansive voir dire and a
lengthy jury questionnaire. (DE 966: 12.) Ochoa opposed the motion

' Extraditions are legal in Colombia but only for crimes committed
after December 16, 1997. See Argument Section II infra.

Fs

and, in the alternative, requested that an “extensive jury question-

naire” be used. The district court granted the government’s motion

for an anonymous jury but denied Ochoa’s (unopposed) motion for

a jury questionnaire. (DE: 1195, 1267, 1318.) (DE 982: 1,'13; DE

1271.) Thereafter, U.S. Marshals were used to transport jurors to tral
in vans from staging areas.

2. The Batson challenges and rulings

Of the 82 venire members from which Ochoa’s jury was
chosen, 44 (54%) identified themselves as Hispanic.’ The district
court allotted the government 6 peremptory strikes for the selection
of the 12 jurors and 3 strikes for the section of 5 alternates. None of
the alternates chosen actually served on Ochoa’s jury.’

As an extradited Colombian national, Ochoa was an Hispanic
male. The prosecutors proceeded to use all of their first 4 strikes to
eliminate Hispanic males (juror numbers 051, 221, 234 and 379) from
the jury. When defense counsel objected that the prosecutors’
conduct violated Ochoa’s right to equal protection under Batson v.
Kentucky, 476 U.S. 79, 90 L.Ed. 2d 69, 106 S.Ct. 1712 (1986), the
prosecutors responded that “we haven’t used our challenges for all
Hispanic males.” (DE 1468: 45-48, 86.) The Eleventh Circuit later
found that this denial was incorrect. See Ochoa-Vasquez, 428 F.3d
at 1039 (“[t]he evidence would later reveal that [the prosecutors] had”
used their first 4 strikes on Hispanic males).

* As discussed below, Ochoa was denied access to these statistics
until after he was convicted — and long after his Batson challenges
had been rejected by the district court.

> The Eleventh Circuit did not disagree but believed that the record
was “not clear whether any alternates ultimately participated in the

final verdict.” Ochoa-Vasquez, 428 F.3d at 1046, n. 42.

3

The prosecutors also claimed that they had accepted an
Hispanic male juror (No. 494). The Eleventh Circuit later found that
this assertion was also incorrect. See Ochoa-Vasquez, 428 F.3d at
1010, n. 32 (“[iJn fact, the questionnaires showing self-reporting
ethnicity, produced after the trial, show that juror 494 is not
Hispanic”).

Finally, the prosecutors claimed that they could not have
known that the strikes were against Hispanics because the jurors’
names had been withheld from both sides. Despite counsel’s
rejoinder that he had lived “in Dade County for well over 40 years”
and that the Hispanic origin of the stricken jurors was “obvious” from
their accents, facial features and skin color, the district court refused
to require the prosecutors to provide ethnic-neutral reasons for the
strikes. (DE 1468: 87.)

Thereafter, the prosecutors used | of their last 2 peremptories
to eliminate another Hispanic male (for a total of 5 of their 6
peremptories). Counsel again objected and requested, several times,
for the stricken jurors to be brought back so that their ethnic
backgrounds could be confirmed on the record. The court refused,
finding that Ochoa could not establish a prima facie case of
discrimination because no one could allegedly ascertain which
anonymous venire members were Hispanic. (DE 1468: 47-48, 87.)
While the court also again refused to require explanations from the
prosecutors, they nonetheless volunteered an ethnic-neutral reason for
striking Juror No. 379, who had been identified as a photographer,
claiming that they were “seeking jurors who [were] of a professional
background.” (DE 1468: 45-47, 53, 87-88.) Ochoa, however,
demonstrated that this explanation was a pretext due to several non-
professional, non-Hispanic jurors the prosecutors had accepted. (DE
1468: 86-88.)

Following Ochoa’s conviction, the court agreed to release
information about the ethnicity of the jurors. The information
confirmed that the 5 stricken jurors were indeed Hispanic, as alleged
by defense counsel. The statistics also revealed that 4 of the 12 jurors

4

(30%) were Hispanic. However, 2 of the Hispanic jurors were
selected only after the prosecutors had exhausted all of their 6
peremptory challenges.

3. The trial evidence

For purposes of this Petition, Ochoa adopts the factual
recitation contained in the Eleventh Circuit’s opinion, Appendix A.
These facts are not germane to the questions presented.

C. THE ELEVENTH CIRCUIT’S DECISION

On appeal to the Eleventh Circuit, Ochoa challenged the
necessity of the anonymous jury and the district court’s refusal to
take affirmative curative steps, before, during or after trial, to ensure
that he was not prejudiced by the security measures imposed. He
further argued that the government exploited these defective
procedures to violate Ochoa’s rights to due process and equal
protection under Batson. Finally, Ochoa challenged his conviction
and sentence as in violation of the terms of his extradition from
Colombia and international law.

On October 20, 2005, the Eleventh Circuit — in a 2-1 majority
opinion — affirmed Ochoa’s conviction and sentence, rejecting his
constitutional challenges to jury selection. See Appendix A.‘ With
respect to the procedures utilized during voir dire, the majority ruled
that Ochoa was not entitled to any specific questions about how the
anonymous procedures and security measures could have affected
Ochoa’s presumption of innocence. See Ochoa-Vasquez, 428 F.3d at
1037 (Ochoa “had no right to have the jury questioned specifically
about the anonymity procedures” since voir dire was “not ... a means
of investigating the potential effect of anonymity on the jurors’ ability

. The Eleventh Circuit also rejected Ochoa’s challenge to his
conviction and sentence under the “rule of specialty” without
discussion.

to presume the defendant innocent”). The majority also affirmed the
district court’s construction of Batson, agreeing that Ochoa had not
even satisfied the first step of Batson ~ demonstrating a prima facie
claim of discrimination, triggering an explanation from the
prosecutors for their behavior. Jd.

According to the majority, Ochoa could not satisfy his burden
since the members of the venire were identified only by numbers.
While the majority acknowledged that “Ochoa’s attorney did
correctly determine at trial that the five struck jurors were Hispanic,”
it nonetheless found that “we have no way of knowing whether the
government could tell whether the jurors it struck were Hispanics.”
Id. at 1043. Alternatively, the majority ruled that the prosecutors use
of 5 of their 6 challenges to eliminate Hispanic males did not
establish a prima facie case under Batson, even in combination with
the prosecutors’ statements. /d. at 1043-44. The majority rejected
Ochoa’s statistical showing since some Hispanics managed to sit on
the jury and because Ochoa’s counsel had also exercised challenges
against some Hispanics. /d. at 1044-45.

Judge Barkett dissented from the majority’s rulings. Judge
- Barkett found that the district court’s express refusal to ask specific
questions about the heightened security “violated both Ochoa’s Sixth
Amendment and due process rights.” /d. at 1049-50. Judge Barkett
also disagreed with the majority’s construction of the first prong of
Batson. Judge Barkett believed that Ochoa had plainly made a prima
facie showing of discrimination by correctly establishing that the
prosecutors used their first 4 peremptories — a challenge rate of 100%
—and 5 of their first 6 peremptories — a challenge rate of 83.3 % — to
eliminate Hispanic males from the venire. /d. at 1055 & n. 16. Judge
Barkett also condemned the district court for using the juror
anonymity to block Ochoa’s efforts to satisfy his prima facie burden
under Batson. “As important as juror anonymity measure may be,
they cannot be permitted to defeat jurors’ and litigants’ rights under
the Equal Protection Clause, especially since there can be no security
risk in granting access to self-reported racial information to litigants
(if not to the public).” Jd at 1055-56.

6

REASONS FOR GRANTING THE WRIT
I

THE COURT SHOULD GRANT THIS PETITION TO RESOLVE TWO
CIRCUIT SPLITS CONCERNING THE PROPER CONSTRUCTION OF
BATSON V. KENTUCKY: (A) HOW OR UNDER WHAT
CIRCUMSTANCES STATISTICS ALONE CAN BE USED TO ESTABLISH —
A DEFENDANTS PRIMA FACIE CASE OF DISCRIMINATION; AND (B)
THE PROPER STANDARD OF APPELLATE REVIEW WHEN A TRIAL
JUDGE HAS FOUND THAT A DEFENDANT HAS FAILED TO
ESTABLISH A PRIMA FACIE CASE.

In Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct.
1712 (1986), this Court held that the use of race-based peremptory
challenges violated the Equal Protection Clause of the Fourteenth
Amendment. Batson, 476 U.S. at 86, 90 L.Ed.2d at 80, 106 S.Ct. at
1717. The Court also established a three-step process for determining
when a constitutional violation is committed. First, the defendant
must make out a prima facie case “of purposeful discrimination in
selection of the petit jury.” Jd., 476 U.S. at 93-94, 90 L.Ed 2d at 85-
86, 106 S.Ct. at 1721. Second, once the defendant has made out a
prima facie case, the “burden shifts to the [government] to explain
adequately the racial exclusion” by offering permissible non-
discriminatory justifications for the strikes. /d., 476 U.S. at 94, 90
L.Ed.2d at 86, 106 S.Ct. at 1721. Third, “[i]f a race-neutral explan-
ation is tendered, the trial court must then decide ... whether the
opponent of the strike has proved purposeful ... discrimination.”
Purkett v. Elem, 514 U.S. 765, 767, 131 L.Ed.2d 834, 115 S.Ct. 1769
(1995) (per curiam).

On two occasions, first in Batson itself and more recently in
Johnson v. California, 545 U.S. 162, 162 L.Ed.2d 129, 125 S.Ct.
2410 (2005), the Court has discussed the minimal nature of the first
step. However, as discussed below, the Court has yet to delineate the
precise manner in which a defendant may establish his or her prima
facie case.

In Batson, the Court ruled that a defendant made out a prima
facie case “by showing that the totality of the relevant facts gives rise

7

to an inference of discrimination.” Batson, 476 U.S. at 93-94, 90
L.Ed 2d at 85-86, 106 S.Ct. at 1721, citing Washington v. Davis, 426
U.S. 229, 239-242, 48 L-Ed.2d 597, 96 S.Ct. 2040 (1976). Although
the Court did not limit a defendant to one particular method of proof,
the Court did intimate that a statistical disparity in a prosecutor’s
pattern of strikes could alone by sufficient to establish a prima facie
case of discrimination. Specifically, the Court stated:

In deciding whether the defendant has made the
requisite [prima facie] showing, the trial court should
consider all relevant circumstances. For example, a
“pattern” of strikes against black jurors included in
the particular venire might give rise to an inference of
discrimination. Similarly, the prosecutor’s questions
and statements during voir dire examination and in
exercising his challenges may support or refute an
inference of discriminatory purpose. These examples
are merely illustrative.

Batson, 476 U.S. at 96-97, 90 L.Ed.2d at 88, 106 S.Ct. at 1723
(emphasis added).

Batson did clearly establish that, whatever the method of
proof, the defendant’s burden in establishing a prima facie claim of
discrimination was not intended to be a heavy one. Thus, the Court
specifically directed lower courts to its Title VII jurisprudence, where
it had previously “explained the operation of prima facie burden of
proof rules.” /d., 476 U.S. at 94 n. 18, 90 L.Ed. 2d at 86, 106 S.Ct.
at 1721. See also United States v. Overton, 295 F.3d 270, 279 n. 10
(2d Cir. 2002) (“[t]he familiar three-step evidentiary framework that
the Supreme Court imported into the Batson context ‘is derived from
the Supreme Court’s equal protection and Title VII jurisprudence”),
quoting Evans v. Smith, 220 F.3d 306, 312 (4" Cir. 2000). In Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 67
L. Ed 2d 207, 101 S.Ct. 1089 (1981), specifically cited in Batson as
a source of the framework the Court was applying, the Court held that
“the burden of establishing a prima facie case of [discrimination] is
not onerous.” The explicit incorporation of Burdine’s analytic

structure into the Batson opinion unequivocally signaled the Court’s
decision to retain, in the jury selection context, the minimal threshold
required of claimants making a prima facie case of discrimination in
employment cases in order to shift the burden of production to the
non-movant. See Overton, 295 F.3d at 279 n. 10 (noting that “the
minimal burden put on a defendant to make a prima facie showing
under Batson{] [is] a burden similar to that placed on plaintiffs in
Title VII and equal protection jurisprudence”). The Court has since
confirmed the limited nature of the showing required by Batson to
make a prima facie case:

We did not intend the first step to be so onerous that
a defendant would have to persuade the judge — on the
basis of all the facts, some of whicl *re impossible for
the defendant to know with certainty — that the
challenges was more likely than not the product of
purposeful discrimination. Instead, a defendant
satisfies the requirements of Batson’s first step by
producing evidence sufficient to permit the trial judge
to draw an inference that discrimination has occurred.

a

[T]he Batson framework is designed to produce actual
answers to suspicions and inferences that
discrimination may have infected the jury selection
process. The inherent uncertainty present in inquiries
of discriminatory purpose counsels against engaging
in needless and imperfect speculation when a direct
answer can be obtained by asking a simple question.

Johnson, 545 U.S. at___- 162 L.Ed.2d at 139, 125 S.Ct. at 2417-18.

The Court in Batson also strongly suggested that a defendant
could satisfy his prima facie burden simply through a statistical
analysis of the prosecutor’s conduct in exercising his or her
peremptory challenges. Thus, after stating that “[t]he showing
necessary to establish a prima facie case of purposeful discrimination
in selection of the venire may be discerned in this Court’s decisions,”
the Court cited as examples, Castaneda v. Partida, 430 U.S. 482, 51

9

L.Ed. 2d 498, 97 S.Ct. 1272 (1977), and Alexander v. Louisiana, 405
U.S. 625, 31 L.Ed.2d 536, 92 S.Ct. 1221 (1972). See Batson, 476
USS. at 94, 90 L.Ed.2d at 86, 106 S.Ct. at 1722. In Castaneda, the
Court found that a defendant had made out a prima facie case of
discrimination against Mexican-Americans in Texas grand juries
based entirely on a statistical analysis of the grand jury selection
process. See Castaneda, 430 U.S. at 495-96, 51 L.Ed. 2d at 511-12,
97 S.Ct. at 1280-81.

Numerous courts have construed Batson and Johnson as (1)
requiring only a minimal threshold showing by a defendant (2) that,
in most cases, can be satisfied solely by showing a pattern of strikes
against a particular racial or ethnic group. See, e.g., Williams v.
Runnels, 432 F.3d 1102, 1107 (9" Cir. 2006) (reaffirming Ninth
Circuit rule that “a defendant can make a prima facie showing based
on a statistical disparity alone” and finding that prosecutor’s use of 3
of his first 4 peremptories on African-Americans satisfied the
defendant’s prima facie burden, even though other African-
Americans were selected for the jury) (citations omitted); United
States v. Stephens, 421 F.3d 503, 513-14 (7" Cir. 2005) (where
prosecutors used 6 of their 7 peremptories to eliminate minorities
from the jury, defendant established a prima facie case); Paulino v.
Castro, 371 F.3d 1083, 1091 (9" Cir. 2004) (“a defendant can make
a prima facie showing based on statistical disparities alone” and
holding that a prosecutor’s use of 5 of 6 peremptories to exclude
African-Americans established a prima facie case); Holloway v.
Horn, 355 F.3d 707, 722 (3 Cir. 2004) (prosecutor’s use of 7 of 8
peremptories against African-American’s “was certainly strong
enough to suggest an intention of keeping blacks off the jury)
(citations omitted); Overton, 295 F.3d at 278-79 (“we have no doubt
that statistics, alone and without more, can, in appropriate circum-
tances, be sufficient to establish the requisite prima facie showing
under Batson” ... [a]nd “‘we believe that to hold otherwise would
undermine the general antidiscrimination principle established by
Batson”); Fernandez v. Roe, 286 F.3d 1073, 1077-80 (9" Cir.)
(defendant made a prima facie showing based on only statistical
disparities), cert. denied, 537 U.S. 1000, 154 L.Ed.2d395, 123 S.Ct.

10

514 (2002); Jones v. Ryan, 987 F.2d 960, 971 (3% Cir. 1993)
(holding that a prima facie case was made where minorities
comprised 20% of the venire, but the prosecutor’s exclusion rate was
75%); United States v. Alvarado, 923 F.2d 253, 256 (2™ Cir. 1991)
(“[w]Je think a challenge rate nearly twice the likely minority

percentage of the venire strongly supports a prima facie case under
Batson); Robinson v. United States, 878 A.2d 1273, 1285 (D.C. App.
2005) (“[u]nexplained statistical disparities” of a sufficient
“magnitude” are sufficient “to establish a prima facie case of
discrimination,” and finding a prima facie case where the prosecutor
used 6 of 10 peremptories to eliminate black females from the jury);
Ex parte Thomas v. State, 659 So.2d 3, 8 (Ala. 1994) (prosecutor’s
use of “9 of his 10 strikes to strike blacks from the venire ... made a
prima facie showing of a Batson violation”). Even the Eleventh
Circuit, prior to its ruling in Ochoa, had adhered to this principle.
See, e.g., Davis v. Sec. For the Dept. of Corrections, 341 F.3d 1310,
1316 (11" Cir. 2003) (prima facie case of discrimination established
when prosecutor used 2 peremptories to strike 2 blacks from the jury
when none had been seated among the first 10 jurors accepted); Bui
v. Haley, 321 F.3d 1304, 1316 (11 Cir. 2003) (defendant established
prima facie showing of possible discrimination by pointing out that
the prosecutor used 9 of 13 peremptories to eliminate African-
Americans from the jury) .

The Eleventh Circuit’s ruling in Ochoa that the composition
of the jury ultimately chosen in the defendant’s case supported the
district court’s refusal to proceed through any of the three-step Batson
analysis was also directly contrary to this Court’s ruling in Alvarado
v. United States, 497 U.S. 543, 111 L.Ed.2d 439, 110 S.Ct. 2995
(1990) (per curiam). In Alvarado, the Court squarely rejected the
Second Circuit’s rule that no inquiry into the merits of a prosecutor’s
discriminatory exercise of peremptory challenges was required if the
jury finally chosen represented a fair cross section of the community.
And, other circuits have since made clear that a prima facie showing
that a prosecutor has used peremptory challenges in a discriminatory
fashion is not nullified by evidence that “the prosecutor passes up the
Opportunity to strike some [minority] jurors,” Brinson v. Vaughn,

1]

398 F.3d 225, 233 (3 Cir.), cert. denied, _U.S.__, 163 L Ed. 2d
359, 126 S.Ct. 473 (2005), or that the jury ultimately chosen includes
some members of the group the prosecutor was seeking to exclude.

A skilled but racially biased attorney could learn to
manipulate the strike process so as to be able to strike
a certain number of blacks from the venire on the
basis of race, and yet not be called to account for the
racially based strikes, as long as some blacks were left
on the jury. Such a result should not be approved.

Thomas, 659 So.2d at 7. Accord Lancaster v. Adams, 324 F.3d 423,
434 (6" Cir.) (“[w]here purposeful discrimination has occurred, to
conclude that the subsequent selection of an African-American juror
can somehow purge the taint of a prosecutor’s impermissible use of
a peremptory strike to exclude a venire member on the basis of race
confounds the central teachings of Batson”), cert. denied, 540 U.S.
1004, 157 L.Ed.2d 409, 124 S.Ct. 536 (2003); United States v.
Harris, 192 F.3d 580, 587 (6" Cir. 1999) (rejecting the argument that
“the failure to exclude one member of a protected class is sufficient
to insulate the unlawful exclusion of others”); Turner v. Marshall, 63
F.3d 807, 813 (9" Cir. 1995) (holding that a prima facie case was
established when the government used 56% of its peremptory
challenges against African Americans, despite the fact that 4 African
Americans remained on the jury), overruled on other grounds sub
nom., Tolbert v. Page, 182 F.3d 677 (9" Cir. 1999) (en banc); United
States v. Joe, 928 F.2d 99, 103 (4" Cir. 1999) (“[t]he district court
erred in ruling that a Batson violation did not occur since members of
the defendants’ racial group were seated on the jury”); Alvarado, 923
F.2d at 256 (“[a] prosecutor may not avoid the Batson obligation to
provide race-neutral explanations for what appears to be a statistically
significant pattern of racial peremptory challenges simply by forgoing
the opportunity to use all of his challenges against minorities”).

That some minority jurors managed to get chosen is largely
irrelevant, especially at the prima facie stage, because Batson was
“designed to ensure that a [prosecutor] does not use peremptory
challenges to remove any [minority] juror because of his race.”

12

Batson, 476 U.S. at 99 n. 22, 90 L.Ed.2d at 89 n. 22, 106 S.Ct. at
1724 n. 22 (emphasis added). Accord Jones v. Ryan, 987 F.2d 960,
972 (3% Cir. 1993) (“the exclusion of even one juror on the basis of
race may be sufficient to establish a prima facie case”); Horn, 355
F.3d at 722 (pattern of strikes established prima facie case even
though some African-Americans ultimately served on the jury)
(citations omitted); United States v. Lane, 866 F.2d 103, 106 (4"
Cir. 1989) (“striking only one black prospective juror for a
discriminatory reason violates a black defendant’s equal protection
rights, even when other black jurors are seated and even when valid
reasons are articulated for challenges to other black prospective
jurors”); United States v. Battle, 836 F.2d 1084, 1086 (8" Cir. 1987)
(“under Batson, the striking of a single black juror for racial reasons
violates the equal protection clause, even though other black jurors
are seated, and even when there are valid reasons for the striking of
some black jurors”).°

Once again, at least before its ruling in Ochoa, the Eleventh
Circuit had also adhered to this principle. See, e.g., Eagle v. Linahan,
279 F.3d 926, 942 (11" Cir. 2001) (black defendant raised prima

* At the first step of Batson, it also makes no sense to require an
evaluation of the eventual ethnic composition of the jury that is
ultimately picked. At the time of Ochoa’s first Batson objection, the
district court was called upon to determine whether a pattern of 4 out
of 4 strikes used against Hispanic males was sufficient to require an
explanation from the prosecutors. At that point, of course, neither the
parties nor the district court could know the eventual composition of
the jury. Yet, the district court was called upon to determine whether
a prima facie case had been established to require contemporaneous
explanations from the prosecutors. See Horn, 355 F.3d at 728
(finding that a thorough statistical analysis was more pertinent at the
third step in Batson , rather than at the prima facie stage, since the
defendant’s objections are lodged during the voir dire process but
before its conclusion and holding that requiring more at the first stage
“places an irrelevant hurdle in the way of reaching the second step in
the Batson process); Joe, 928 F.2d at 103 (criticizing district court’s
delay in assessing Batson challenge).

13

facie inference of discrimination when prosecutors used 9 of 10
peremptory challenges to strike black jurors, even though 4 blacks
served on jury); Cochran v. Herring, 43 F.3d 1404, 1412 (11" Cir.
1995) (when prosecutors used 7 of 14 peremptories to strike 7 of 9
blacks on the venire, defendant established prima facie case of
discrimination, even though jury contained 2 black members); United
States v. David, 803 F.2d 1567, 1571 (11 Cir. 1986) (“{ujnder
Batson, the striking of 1 black juror for a racial reason violates the
Equal Protection Clause, even where other black jurors are seated,
and even when valid reasons for the striking of some black jurors are
shown”).

This Court, as well as circuits, have also rejected the
argument, relied upon by the Eleventh Circuit in Ochoa, that the
inference of a prosecutor’s discriminatory use of peremptories is
somehow nullified if the defense also uses their peremptories to strike
minorities. See Miller-El v. Dretke, 545 U.S.231,___ n. 14, 162 L.
Ed. 2d 196, 223 n. 14, 125 S.Ct. 2317, 2333 n. 14 (2005) (defendant’s
conduct “flatly irrelevant” to the question of whether the prosecutor’s
conduct revealed a desire to exclude African-Americans); Stephens,
421 F.3d at 514 (characterizing as “an irrelevant proposition” how the
defense exercised its peremptories); Brinson, 398 F.3d at 234 (the
trial court’s “reliance on the fact that ‘the defense struck blacks’ was
misplaced” since “legitimate defense strike[s] would not open the
door for illegitimate prosecution strikes”); Eagle v. Linahan, 279
F.3d 926 (11" Cir. 2001) (potential Batson violation by prosecutor
not cured by court’s observation that the defendant may have also
been using peremptory challenges in a discriminatory manner; Batson
is meant to vindicate the rights of venire members, not just
defendants); Harrison v. Ricks, 150 Fed. Appx 95 (2™ Cir. 2005)
(“{t]he manner in which the defendant exercises his or her own
peremptory challenges cannot reasonably be said to buttress — or
undermine — an inference of discrimination by the prosecution”).

The Eleventh Circuit’s ruling in Ochoa that no prima facie
pattern of discriminatory strikes was established by the prosecutors’
use of 5 of their 6 peremptories against Hispanic males flies in the

14

face of both this Court’s precedents in Batson, Johnson and Miller-El,
and the holdings of other circuits interpreting Batson. Ochoa was an
Hispanic male and the prosecutors used 5 of their 6 peremptory
challenges to strike Hispanic males from the jury. Although a
defendant does not have to be of the same race or ethnicity of the
jurors discriminated against, the fact that Ochoa was an Hispanic
male should have added to the suspicion of discriminatory intent.
Horn, 355 F.3d at 722 (race of defendant relevant factor in Batson
analysis). Even standing alone, the prosecutors’ use of 5 of their 6
peremptories to exclude members of Ochoa’s sex and ethnic
background from the jury “raise[{d] an inference” of discriminatory
intent. The Eleventh Circuit’s views that the defense strikes plus the
fact that 4 Hispanics managed to stay on the jury effectively nullified
the statistical disparity also were directly contrary to this Court’s
precedents and the overwhelming view of other circuits.

The instant Petition should be granted to resolve the split in
the circuits created by the Eleventh Circuit’s opinion in Ochoa and to
give more guidance to the circuits concerning the use of statistical
evidence to establish a defendant’s prima facie burden under Batson.
Moreover, in addition to departing from other circuits on how to
construe the first step in Batson, the Eleventh Circuit decision to
“give great deference to” the district court’s finding “that Ochoa had
not satisfied his burden of demonstrating a prima facie case, Ochoa-
Vasquez, 428 F.3d at 1039, has also created a conflict concerning
concerning the standard of review. Compare Stephens, 421 F.3d at
510-11 (‘although deference is afforded fact findings in a Batson
challenge, the prima facie determination is subject to de novo
review’’) (citation omitted). Accord Mahaffey v. Page, 162 F.3d 481,
484 (7" Cir. 1998); United States v. Alvarado, 891 F.2d 439, 443 (2™4
Cir. 1989) , vacated on other grounds, 497 U.S. 543, 111 L.Ed.2d
439, 110 S.Ct. 2995 (1990). See also Robinson, 878 A.2d at 1283
(characterizing the issue of whether a defendant has satisfied his
prima facie burden under Batson as “a question of law”).

15

The Court should also grant the Petition to define the duty of
federal courts to protect a defendant’s equal protection rights when
“anonymous” juries are employed. As Judge Barkett correctly
reasoned in her dissent, the fact that the jurors’ names were withheld
from the parties did not prevent the prosecutors from discriminating
against Hispanic males and, therefore, should not be permitted to be
used to insulate the equal protection violation. As this Court has said,
“happenstance is unlikely to produce” a statistically significant
“disparity.” Miller-El v. Cockrell, 537 U.S. 322, 342, 154 L.Ed.2d
931, 123 S. Ct. 1029 (2003) (prosecutor’s use of 10 of 14 strikes
against African-Americans was evidence of race-based use of
peremptories, even though one African-American served on the jury).
The chance that the prosecutors just “happened” to use 5 of their 6
strikes against Hispanic males, in a case involving an Hispanic male
defendant, is equally “unlikely.” At the very least, the district court
should have attempted to resolve any uncertainty “by asking a simple
question” — a neutral reason (as to both ethnicity and gender) for the
strikes. Johnson, 545 U.S. at «162 L.Ed.2d at 139, 125 S.Ct. at
2417-18.

° The Eleventh Circuit’s Batson analysis was defective for yet another
reason — it ignored the fact that Ochoa’s objections were based on
both ethnicity and gender. See J. E.B. v. Alabama ex rel. T.B., 511
U.S. 127, 128 L.Ed. 2d 89, 114 S.Ct. 1419 (1994) (extending Batson
to prohibit discrimination on the basis of gender). The Eleventh
Circuit should have considered Ochoa’s challenge as directed to the
category of “Hispanic males” and not just “Hispanics” generally. See
Robinson v. United States, 878 A.2d 1273, 1284 (D.C. App. 2005)
(reversing trial court for believing that “black females” was not a
suspect category for equal protection purposes, finding that
“discrimination against black females in jury selection is both
discrimination against certain female jurors solely because they are
black and discrimination against certain black jurors solely because
they are female” and, hence, it is “both racial discrimination of the
kind condemned in Batson and gender discrimination of the kind
condemned in J. £.B.”) (emphasis added). The gender of the venire
in Ochoa’s case was, of course, readily apparent despite the
concealment of the jurors’ names. |

16

The Eleventh Circuit’s construction of Batson’s first step also
cannot be squared with other courts because the inference of
discriminatory intent drawn from the statistics was bolstered by the
prosecutors’ own statements and explanations. The prosecutors —
taking their cue from the district court’s questions to defense counsel
about how they could know that the stricken jurors were Hispanic
since their names had been withheld — initially denied that they could
be discriminating for that same reason. See Ochoa-Vasquez, 428 F.3d
at 1041 (quoting prosecutor as claiming “‘we don’t really know
whether they are or aren’t [Hispanic] unless someone were to raise
their hand and tell us that’”). However, as the argument continued,
the prosecutors contradicted themselves, arguing that they had, in
fact, accepted some jurors who they believed were Hispanic from
their accents. See id, 428 F.3d at 1040 (quoting prosecutor’s
assertion that he could determine that juror number 494 was Hispanic
because he “‘appears to talk with an [accent]’”). Since the
prosecutors, by their own eventual admissions, cou/d tell the ethnic
background of the jurors from their accents and were, in fact,
extraordinarily accurate in their assessments, as reflected by the
statistics belatedly released by the court, the prosecutors’ initial false
statements denying any ability to tell the ethnic background of the
jurors should have been viewed by both the district court and the
Eleventh Circuit as supporting an inference of discriminatory intent,
at least at the prima facie stage.

In addition to making inconsistent statements about their
ability to determine the jurors’ ethnicity, the prosecutors voluntarily
gave a patently pretextual explanation for striking Juror No. 379. See
p. 4 supra. Ochoa, however, easily established that the prosecutors’
explanation was pretextual based on other, non-Hispanic jurors they
had accepted. Jd This pretextual explanation should have bolstered
the inference of discriminatory intent created by the statistical
disparity in the prosecutors’ use of their challenges and contradictory
statements about whether they could determine the jurors’ ethnicity.
See Miller-El, 545 US. at __, 162 L. Ed. 2d at 214, 125 S.Ct. at
2325 (“[i]f a prosecutor’s proffered reason for striking a black
panelist applies just as well to an otherwise-similar nonblack who is

17

permitted to serve, that is evidence tending to prove purposeful
discrimination”); Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed.2d
834, 115 S.Ct. 1769 (1995) (per curiam) (“[i]mplausible or fantastic
justifications may (and probably will) be found to be pretexts for
purposeful discrimination”). Accord Lewis v. Lewis., 321 F.3d 824,
830 (9 Cir. 2003) (“[i]f a review of the record undermines the
prosecutor’s stated reasons, or many of the proffered reasons, the
reasons may be deemed a pretext for racial discrimination”); See
Riley v. Taylor, 277 F.3d 261, 284 (3 Cir. 2001) (en banc) (“[a}
comparison between a stricken black juror and a sitting white juror is
relevant to determining whether the prosecution’s asserted
justification for striking the black juror is pretextual”); MaHaffey v.
Page, 162 F.3d 481, 485 (7" Cir. 1998) (“if an excused [juror] had
characteristics and opinions that were similar to those of a juror who
sat, for example, then an obvious inference ... would be that the strike
was racially motivated”).

The combination of the statistical disparity in the prosecutors’
exercise of peremptory challenges against Hispanic males with their
inconsistent and pretextual statements would have satisfied a
defendant’s prima facie burden under the law as construed by
virtually every other circuit. The Eleventh Circuit’s deference to the
district court’s conduct also directly conflicts with the de novo
standard of review approved by the Seventh and Second Circuits. See
p. 15 supra. The Court should grant this Petition to resolve these
conflicts.

18

II.

THE COURT SHOULD GRANT THIS PETITION TO RESOLVE A
CIRCUIT SPLIT CONCERNING THE RIGHT OF A DEFENDANT, WHO
HAS BEEN FORMALLY EXTRADITED FROM A FOREIGN COUNTRY
TO STAND TRIAL IN THE UNITED STATES, TO ENFORCE LIMITS ON
His SENTENCE IMPOSED BY THE FOREIGN (REQUESTED) |
COUNTRY.

A. EXTRADITIONS FROM COLOMBIA TO THE UNITED STATES

The United States and Colombia entered into an extradition
treaty on September 14, 1979. By 1981, both countries had ratified it.
Articles 15(1) and 15(2) of the Treaty, codified the so-called
“doctrine of specialty,” the principle of international law that limits
the power of the requesting country to try and punish the defendant
for the charges agreed upon by the requested country. (DE1535:2.)
Thus, Article 15(1) of the Treaty provided that “[a] person extradited
under the treaty shall not be detained, tried or punished in the
requesting State for an offense other than that for which extradition
has been granted.” (DE1535:2; emphasis added.) Article 15(2)
similarly provided that the requesting country could only alter the
charges if “the defendant is sudject to be sentenced to a period of
incarceration which does not exceed that provided for the offense for
which that person was extradited.” (DE1535:2.)

In 1986, however, the Supreme Court of Colombia found a
defect in the ratification process. (DE1535:3, Ex. 3.) Because of this
ruling, the treaty itself lacks force in Colombia. However, on
December 16, 1997, the Congress of Colombia amended its
Constitution to permit the extradition of Colombian nationals through
the Colombian Criminal Code. (DE1535:4.) However, the amend-
ment only applies to crimes that occur after the effective date of the
amendment, December 16, 1997. (DE1535:4.)

B. OCHOA’S EXTRADITION

Following Ochoa’s indictment, the United States submitted
Verbal Note No. 1028 to Colombian authorities, seeking Ochoa’s

19

arrest. Approximately one week later, on October 13, 1999, Ochoa
was arrested and detained. Shortly thereafter, on November 26, 1999,
the United States formally submitted its extradition request to
Colombian authorities through Verbal Note No. 1183. (DE 1535:5.)

Ochoa contested his extradition and, simultaneously, urged
the Colombian authorities to place restrictions on any extradition that
was granted to conform to Article 512 of the Procedural Penal Code
of Colombia. Article 512 also codified the doctrine of specialty but
with an explicit emphasis on the maximum sentence the requesting
country could impose, stating that an extradited defendant could
neither be tried “nor submitted to sanctions different from those that
would have been imposed in the sentence” for the same conduct in
Colombia. (DE1535:6, Ex. 5; emphasis and numbering added.)

At his sentencing on August 26, 2003, Ochoa attempted to
call two expert witnesses to explain the meaning of Article 512 to the
district court: (1) Professor Luz Estella Nagle, a former Colombian
Judge who immigrated to the United States and now worked as an
Associate Professor of Law at Stetson University College of Law; and
(2) Edgar Fernando Mendez Pinzon, a Colombian attorney who
served as a judge in Colombia between 1980 and 1990. (DE1581:41-
43.) The district court refused to consider their testimony, or the
merits of Ochoa’s objections to his sentence, because the government
of Colombia had not lodged an objection to Ochoa’s sente. «¢.
(DE1581:6, 14, 15.) The district court, however, allowed Ochoa’s
counsel to proffer that both Professor Nagle and Mr. Pinzon would
have testified that Article 512 precluded a defendant from receiving
a higher sentence in the requesting country than he or she would have
received for the same conduct in Colombia — in this case 12 years.
(DE1581:42-43.)

Professor Nagle’s and Mr. Pinzon’s proffered testimony
concerning the meaning of Article 512 was consistent with the
Opinions issued by the Colombian courts in response to Ochoa’s
extradition litigation. On August 22, 2001, the Snreme Court of
Colombia approved the extradition request but, in conformity with

20

Article 512, held that under Colombian law the drug charges in the
indictment would be punished in Colombia by a sentence of 6-12
years. (DE1535:7, Ex. 7, Opinion No. 122, Supreme Court of Justice,
August 22, 2001, pp. 70-71; DE1581:21.)

Five days after the decision of the Supreme Court of
Colombia, the Ministry of Justice authorized Ochoa’s extradition
pursuant to Resolution No. 100. (DE1535:7, Ex. 8, Resolution 100.)
In doing so, the Ministry of Justice expressly recognized that the
Supreme Court’s opinion was “binding” upon the Colombian
government and that the opinion “establishe[d] that the requirements
established by law to grant extradition have been met.” (DE1535:7,
Ex. 8, Resolution No. 100, Section 9, p. 27.) In §10 of Resolution
No. 100, the Ministry of-Justice expressly incorporated the
Sentencing limitation imposed by Article 512 and the Supreme Court:

10. The Colombian Government may subordinate
granting this extradition to whatever conditions it
deems appropriate and, in any event, for the
extradition to be granted, the requesting State must
agree that the extradited defendant [1] will not be
tried for prior actions other than those that gave rise to
the extradition request, and [2] that the defendant will
not be subjected to punishment different from what
would have been imposed in a sentence according to
— One, Article 512 of the Criminal Procedure
Code.

(DE1535:7, Ex. 8, Resolution 100, § 10, p. 28; emphasis and
numbering added).’

Based on the August 22, 2001, decision of the Supreme Court
of Colombia and the executive resolutions, Ochoa was extradited to

” Section 11 of Resolution 100 contained an additional caveat that
Ochoa’s extradition must be conditioned on the requirement that “the
extradited person will not be subject to ... life in prison ... pursuant to
Article 11, 12, and 34 of the Political Constitution.” (DE1535:7-8.)

21

the United States. At his sentencing, over repeated objections, the
district court refused to follow the sentencing limitations imposed by
the executive and judicial branches of the Colombian government and
sentenced Ochoa to 365 months (30 years, 5 months) in prison.
(DE1581:102.) On appeal, Ochoa continued to challenge his
sentence as a violation of international law and the “doctrine of
specialty.” While noting the issue, the Eleventh Circuit summarily
rejected it. See Ochoa-Vasquez, 428 F.3d at 1024, 1047.

C. THE DOCTRINE OF SPECIALTY: GENERAL PRINCIPLES

The “doctrine of specialty” prohibits an extradited defendant
from being tried for crimes other than those for which extradition is
permitted by international agreements, for which extradition is
requested, sufficient evidence is presented and extradition granted.
United States v. Rauscher, 119 U.S. 407, 30 L.Ed. 425, 7 S.Ct. 234
(1886). Since the doctrine is derived from international law, it is as
binding as statutory law in the United States. Gallo-Chamorro v.
United-States, 233 F.3d 1298, 1305 (11" Cir. 2000) (characterizing
the rule of specialty as “‘a doctrine based on international comity,’”
rather than on the terms of a treaty) (citation omitted). Therefore, it
applies to extraditions based on Colombian decrees, as well as those
through extradition treaties. “Because the surrender of the defendant
requires the cooperation of the surrendering state, preservation of the
institution of extradition requires that the petitioning state live up to
whatever promises it made in order to obtain extradition.” Gallo-
Chamorro, 233 F.3d at 1302 (rule of specialty barred extradited
Colombian national from being tried on 18 U.S.C. § 2) (citation
omitted). See also Fiocconi v. Attorney General, 462 F.2d 475, 479-
80 (2" Cir.) (Friendly, J.) (applying rule of specialty to extradition
granted as a matter of “comity” between nations rather than through
an extradition treaty), cert. denied, 409 U.S. 1059, 34 L.Ed.2d 511,
93 S.Ct. 552 (1972).

6ee

However, there is a long-standing split in the circuits on
whether a defendant has “standing” to allege a violation of the
doctrine of specialty, at least absent a formal protest from the

pe

requested nation. Prior to its decision in Ochoa, the Eleventh Circuit
did not require such a protest. United States v. Puentes, 50 F.3d
1567, 1575 (11" Cir.), cert. denied, 516 U.S. 933, 133 L-Ed.2d 239,
116 S.Ct. 341 (1995). The Third, Eighth, Ninth and D.C. Circuits
also afford standing without a protest from the requested country.’
See, e.g. United States v. Riviere, 924 F.2d 1289, 1301 (3% Cir.

1991); Leighnor v. Turner, 884 F.2d 385, 389 (8" Cir. 1989); United
States v. Cuevas, 847 F.2d 1417, 1426 (9" Cir. 1988); United States
v. Najohn, 785 F.2d 1420, 1422 (9" Cir.), cert. denied, 479 U.S.
1009, 93 L.Ed.2d 707, 107 S.Ct. 652 (1986); United States v. Sensi,
879 F.2d 888, 895 (D.C. Cir. 1989). The State of Washington has
also taken this position. See State v. Pang, 940 P.2d 1293 (Wash.),
cert. denied, 522 U.S. 1029, 139 L.Ed.2d 608, 118 S.Ct. 628 (1997).

However, the Second and Seventh Circuits have adopted a
contrary position. See, e.g., United States v. DiTommaso, 817 F.2d
201, 212 (2™ Cir. 1987); Shapiro v. Ferrandina, 478 F.2d 894, 905
(2™ Cir. 1973), cert. dismissed, 414 U.S. 884, 38 L.Ed.2d 133, 94
S.Ct. 404 (1973); United States v. Paroutian, 299 F.2d 486, 490 (2
Cir. 1962); United States v. Munoz-Solarte, No. 93-2723 & 93-3811
(7" Cir. July 18, 1994), 1994 U.S. App. LEXIS 18128; Matta-
Ballesteros v. Henman, 896 F.2d 255, 259 (7" Cir. 1990). The Sixth
Circuit has also indicated a willingness to follow a restrictive
approach to standing. See Demjanjuk v. Petrovsky, 776 F.2d 571,
583-844 (6" Cir. 1985) (“there is a serious question whether [the
defendant] has standing to assert the principle of specialty”), cert.
denied, 475 U.S. 1016, 74 L.Ed.2d 602, 103 S.Ct. 447 (1986),
vacated on other grounds, 10 F.3d 338 (6™ Cir. 1993), cert. denied,
513 U.S. 914, 130 L.Ed.2d 205, 115 S.Ct. 295 (1994). The First,
Fourth and Fifth Circuits have recognized the split in authority but
have not yet taken clear positions. See United States v. LeBaron, 156
F.3d 621, 627 (5" Cir. 1998); United States v. Saccoccia, 58 F.3d
754, 767 n. 6 (1" Cir. 1995); United States v. Davis, 954 F.2d 182
(4" Cir. 1993).

23

D. THE VIOLATION IN OCHOA

The Eleventh Circuit’s summary affirmance of the district
court’s 365 month sentence for Ochoa provides this Court with the
stark set of facts upon which to resolve this long-standing conflict,
since Ochoa’s sentence was nearly three times the maximum set by
Colombia.

Just as the requested country has the right to define and limit
the scope of the charges to which an extradited defendant may be
forced to defend in the requesting country, the requested country has
the right to define and limit the penalty the extradited defendant may
be forced to serve upon his conviction in the requesting country. In
homicide cases, for example, the United States typically agrees to
forgo the death penalty in order to obtain favorable extradition rulings
from the Requested countries. See generally Ved P. Nanda, Essay.
Bases For Refusing International Extradition Requests - Capital
Punishment and Torture, 23 FORDHAM INT'L L. J. 1369 (2000);
Matthew W. Henning, Extradition Controversies: How Enthusiastic
Prosecutions Can Lead To International Incidents, 22 B.C. INT'L &
Comp. L. REV. 347, 355-56 (1999); Craig R. Roecks, Extradition,
Human Rights, and the Death Penalty: When Nations Must Refuse
To Extradite a Person Charged With a Capital Crime, 25 CAL. W.
INT'L L.J. 189 (1994).

Other sentencing limitations are also enforceable under the
doctrine of specialty. Indeed, the Eleventh Circuit’s refusal to enforce
the limitations in Ochoa is in direct conflict with the Second Circuit’s
decision in United States v. Campbell, 300 F.3d 202, 211 (2™ Cir.
2002), cert. denied, 538 U.S. 1049, 155 L.Ed.2d 1090, 123 S.Ct. 2114
(2003). In that case, the Second Circuit agreed that the 155-year
sentence the district court imposed on Campbell violated the terms of
his extradition from Costa Rica, which limited Campbell’s potential
sentence to a maximum of 50 years. The Second Circuit then
approved the manner in which the district court enforced this
limitation. The district court imposed a sentence of 155 years but
“then attached to the judgment of conviction an order stating that

24

to the Second Circuit, “[t]hat order constitutes an integral part of the
judgment, and it clearly and dispositively establishes that the
‘maximum sentence’ to be served by Campbell — his ‘real serving
time’ — is 50 years.” Jd. See also United States v. Abello-Silva, 948
F.2d 1168, 1171 n. 1 (10" Cir. 1991) (approving defendant’s sentence
of 30 years, the maximum permitted by the terms of his extradition,
recognizing that “[t]he length of appellant’s imprisonment [was]
limited by agreement between the United States and Colombia’).

The Colombian extradition decrees involving Ochoa were
entitled to a similar deference. Accordingly, prior to his sentence,
Ochoa expressly requested that the district court either sentence
Ochoa to a sentence of 6-12 years or, as in Campbell, attach to
Ochoa’s judgment an order stating that Ochoa “shall be released after
he serves a period of incarceration not greater than 12 years.” (DE
1535) The district court refused and the Eleventh Circuit subse-
quently allowed Ochoa’s 365 month sentence to stand without any
limitations.

CONCLUSION

For all the reasons presented in the foregoing petition, the
Court should grant the requested writ of certiorari to the Court of
Appeals for the Eleventh Circuit.

Respectfully submitted,

G. Richard Strafer, Esquire

G. Richard Strafer, P.A.

2400 South Dixie Highway, Suite 200
Miami, Florida 33133

Telephone: (305) 857-9090
[Counsel For Petitioners]

Roy E. Black, Esquire

Howard M. Srebnick, Esquire

Black, Srebnick, Kornspan &
Stumpf, P.A.

25

201 South Biscayne Boulevard
Suite 1300

Miami, Florida 33131
Telephone: (305) 371-6421

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0973%3A1. Public record. Not legal advice.