Petition for Writ of Certiorari — Patrick v. United States (No. 06-1246)

No. 6124 bri 9 ~ 2007

QFFICE OF THE CLERK —~

jn The

Supreme Court of the Anited States

TIMOTHY PATRICK,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

BENJAMIN L. COLEMAN

COLEMAN & BALOGH

433 G Street, Suite 202

San Diego, California 92101

Telephone (619) 652-9960

Attorneys for Petitioner

QUESTIONS PRESENTED

This petition presents three questions concerning

Batson v. Kentucky, 476 U.S. 79 (1986), J.E.B. v. Alabama

ex rel. T:B., 511 U.S. 127 (1994), and their progeny:

1. Whether the principles established in Bat-

son/J.E.B. apply to religion; specifically, whether the

principles established in Batson/J.E.B. are violated when

a prosecutor justifies his use of a peremptory challenge on

a black juror by explaining that the juror “sang in church

choir.”

2. What should a court do when a prosecutor offers

multiple justifications for a peremptory strike at the

second step of the Batson inquiry, one of which is im-

proper: should a court terminate the inquiry and find a

violation, or should a court conduct a “mixed motive”

analysis in which the-burden is shifted to the government

to justify the strike, or should the court simply proceed to

the third Batson step and ignore the improper justifica-

tion. at

3. Whether trial and reviewing courts must conduct

a “comparative juror analysis,” as set forth in Miller-El v.

Dretke, 545 U.S. 231, 241 (2005), when assessing the third

step of the Batson inquiry.

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS ..............cccceeeeeees 1

STATEMENT OF THE CASE .............:sssccecesseeeeeeeees 2

EES EEE SEN EDR 5

A. The Court Should Resolve The Conflict

Among The Lower Courts In Applying Batson/

J.E.B. And Hold That It Is Impermissible To

Justify A Peremptory Strike By Pointing To A

Juror’s Mere Involvement In Religious Ac-

ET haliituiiciuidenderesnavtseeesbeosserescssepevers 5

B. The Court Should Resolve The Conflict

Among The Lower Courts As To How To Pro-

ceed When A Prosecutor Offers Multiple Rea-

sons For A Peremptory Strike, One Of Which

eek cikweccdibeteintaeesbsveeubedeureteeess 14

C. The Court Should Clarify That Trial And

Reviewing Courts Must Conduct A “Com-

parative Juror Analysis,” As Set Forth In

Miller-El, When Assessing The Third Prong

NN ae 15

EES ECE AOC 17

as enasanoneveassrenennnreeres App. 1

TABLE OF AUTHORITIES

; Page

CASES

Batson v. Kentucky, 476 U.S. 79 (1986) .........ccsseeeeee passim

Casarez v. State, 913 S.W. 2d 468 (1994).....ccccscccsseceseeeeseees -

Davis v. Minnesota, 511 U.S. 1115, 114 S. Ct. 2120

CSIs ncssisnnciiarsictsvsitatiniapientainiiicslatniandidinestimnmaibeiiaaainmis 6,7

Hernandez v. New York, 500 U.S. 352 (1991)............00 6, 11

Howard v. Senkowski, 986 F.2d 24 (2d Cir. 1993)............ 15

J.E.B. v. Alabama ex rel. T:B., 511 U.S. 127 (1994) ...5, 7, 9, 10

Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006) (en

III scsvicicicnicsicisesentesaienapiaae aes encephalitis 14, 15

Lebron v. Nat'l Railroad Passenger Corp., 513 U.S.

FO CAE) csivncinsuiceiciscsustnateetieaiebiititdabuibimdsuuaiaiandsgiiaiiuaiaadas a

McCormick v. State, 803 N.E. 2d 1108 (Ind. 2004)........... 14

Miller-El v. Cockrell, 537 U.S. 322 (20038) .........ccccccceesserees 6

Miller-El v. Dretke, 545 U.S. 231 (2005)................ 15, 16, 17

Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205

=» CRE ovsiniesseic cuiineessisicendialesmsbitetiieerdatenuadaediaenmaiiaemmlanadiiadan 15

People v. Martin, 64 Cal. App. 4th 378, 75 Cal. Rptr.

Be BOT CRG vo scienicicccstecckoviinartunanecdiigueusmialicniecm riba 8

Rector v. State, 213 Ga. App. 450, 444 S.E.2d 862

Sa scstihivincinsadimpbaclinimapenieennieiaadcaaaiadaiasenmaaataes 15

State v. Fuller, 356 N.J. Super. 266, 812 A.2d 389

CREED cssisisinininiecniisisesdatesshihinktliiicsiniiciadamnnitcetemmcaaacta ties 8

State v. Hodge, 248 Conn. 207, 726 A.2d 531 (1999).......... 8

State v. Lucas, 199 Ariz. 366, 18 P.3d 160 (2001)............. 14

State v. Purcell, 199 Ariz. 319, 18 P.3d 113 (2001)............. 8

iv

TABLE OF AUTHORITIES -— Continued

Page

Thorson v. State, 721 So. 2d 590 (Miss. 1998)...........s:ss0000 8

United States v. Brown, 352 F.3d 654 (2d Cir. 2008).......... 7

United States v. DeJesus, 347 F.3d 500 (3d Cir.

ee Gistinsinitakisunsdesiiamuinticitatatiniicihanesiebaiinbianiinpgacciees 7, 8, 9, 11

Wilkerson v. Texas, 493 U.S. 924 (1989) ...........ccceeeeeees 14, 15

Yee v. Escondido, 503 U.S. 519 (1992) .........ccccccsccsssssocsevees 7

CONSTITUTION

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FEDERAL STATUTES

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TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS

Daniel M. Hinkle, Peremptory Challenges Based On

Religious Affiliation: Are They Constitutional?, 9

Buffalo Crim. L. Rev. 139 (2O05)..........ccssessessorscsesssseeees 13

John H. Mansfield, Peremptory Challenges to Jurors

Based Upon or Affecting Religion, 34 Seton Hall

L. Rev. 435 (2004)

STOO SHOT EST EHHESHHTEHESHRET THESE E HOHE EETHEEOTHEEEHESESE

1

OPINION BELOW

The court of appeals issued an unpublished opinion,

which is included in the Appendix and can be found at

2006 WL 3613214 (9th Cir. Dec. 11, 2006).

+

JURISDICTION

The opinion of the court of appeals was filed on

December 11, 2006. The Court has jurisdiction under 28

U.S.C. § 1254(1).

*

CONSTITUTIONAL PROVISIONS

1. U.S. Const. art. VI (“no religious Test shall ever be

required as a Qualification to any Office or public Trust

under the United States”).

2. U.S. Const. amend. I (“Congress shall make no

law respecting an establishment of religion, or prohibiting

the free exercise thereof”).

3. U.S. Const. amend. V (“[nlo person shall be... be

deprived of life, liberty, or property, without due process of

law”).

4. U.S. Const. amend. VI (“[i]n all criminal prosecu-

tions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury”).

5. U.S. Const. amend. XIV (“nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws”).

¢

STATEMENT OF THE CASE

A grand jury in the Southern District of California

returned an indictment charging petitioner, Timothy

Patrick, with conspiracy to possess with intent to distrib-

ute cocaine and possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1) and 846.’

Petitioner proceeded to a jury trial with a codefendant,

Edric Jordan. Petitioner and his codefendant are black. Of

the 28 potential jurors who could constitute the jury, only

two were black.”

With respect to the jury selection process, the district

court asked some general questions of all of the potential

jurors and then asked each juror to provide some basic

background information in response to a written set of

questions. The district court then allowed both the gov-

ernment and the defense to conduct voir dire of the poten-

tial jurors.

As part of its general questioning, the district court

asked the potential jurors whether any of them possessed

’ The district court asserted jurisdiction pursuant to 18 U.S.C.

§ 3231.

* In the federal system, 12 jurors are selected, the defendant

receives 10 peremptory challenges, and the government receives 6

peremptory challenges, see Fed. R. Crim. P. 24, thereby setting the list

of potential jurors at 28. A third juror on the venire was black, but she

was not among the first 28 potential jurors, and therefore she could

only be an alternate.

3

“any moral or religious beliefs” that would compel them to

follow their own conscience rather than the law as it would

be instructed to them. The district court received a negative

response from all of the potential jurors. In response to the

district court’s written questions about personal background,

one of the two potential black jurors responded as follows:

My name is Effie Lard. | reside here in San

Diego. I have lived in California for 45 years. I

am employed with Rainbow Day Care Center as

a site supervisor. I am widowed. I have two chil-

dren. My daughter spent ten years in the mili-

tary, and now she is a stay-at-home mom. My son

is 33, and he works as a special ed for the San

Diego and Vista School District. I have no mili-

tary experience. I served on a jury at Superior

Court four years ago. I feel that I can be fair and

impartial in this case.

During its voir dire, the government did not ask any

questions of potential juror Lard. The prosecutor did pose

a general question to the entire venire as to whether any

of the potential jurors had “religious or moral beliefs” that

would make it difficult or uncomfortable for them to stand

in judgment of another person. No potential juror, includ-

ing Ms. Lard, gave any such indication.

In its voir dire, the defense asked the potential jurors

to give a brief description of their hobbies and to identify

any crime television shows that they may watch. In

response, potential juror Lard stated: “My hobby is work-

ing in my church and I sing in the choir, and I do watch

Cold Case.”

The government used one of its peremptory challenges

to strike Ms. Lard, and the defense made a Batson chal-

lenge, pointing out that the prosecution struck one of the

4

few blacks on the venire leaving only one on the jury. The

district court found that “there has to be a prima facie

showing, and I think there has been. So maybe the next

step would be to find out from the government what is

their basis for it.”

The government gave the following explanation for its

peremptory strike of juror Lard:

We struck Mrs. Lard — well, for a combination of

reasons. The first reason was she has a back-

ground as a day care supervisor, and she also

mentioned she sang in church choir. These are

factors that she is usually susceptible to sympa-

thy.

Mr. Jackson [another potential juror] — she made

a face. I can’t remember the exact comment that

he made, but she made a face during one of his

comments. And I am not exactly sure what the

face meant, but it was a negative reaction. And it

wasn’t something that he said that would have

caused me to wonder, so I had a bad feeling about

that. For those reasons we struck her.

The district court then ruled: “I think that strike appears

to be, on the face of it, race-neutral, that there is African-

Americans on the jury. Apparently, there is also another

African-American that was not struck. So it does not

appear that race was singled out. And the reasons given

appear to be race-neutral. So for that reason I will over-

rule your objections.”

Of the eleven non-black jurors, four worked with

children. Juror Jesusa Marquez was a retired school

teacher. Juror Edith Jimenez was an instructional assis-

tant with San Diego City schools. Juror Cecilia Ciremele

was a high school English teacher. Juror Standlee Spencer

5

was a high school industrial arts teacher. Moreover, juror

Marquez, the retired school teacher, provided the following

statement regarding her hobbies: “My name is Jesusa

Marquez, and I teach religious education at my church. I

do Mary Kay, and I watch Cold Case.”

The jury convicted petitioner, and he appealed to the

United States Court of Appeals for the Ninth Circuit. On

appeal, petitioner raised several issues, including a Batson

claim. With little analysis, the Ninth Circuit rejected

petitioner’s contention that the prosecutor’s religion-based

explanation for the strike was improper. The Ninth Circuit

also summarily held that the district court did not clearly

err in finding no purposeful discrimination.

¢

ARGUMENT

A. The Court Should Resolve The Conflict Among

The Lower Courts In Applying -Batson/J.E.B.

And Hold That It Is Impermissible To Justify A

Peremptory Strike By Pointing To A Juror’s

Mere Involvement In Religious Activities.

In Batson v. Kentucky, 476 U.S. 79 (1986), the Court

held that the Equal Protection Clause prohibits a prosecu-

tor from challenging a juror based on race. In J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127 (1994), the Court

extended Batson to discriminatory challenges to jurors

based on gender. A three-step process is used to determine

whether a prosecutor has violated Batson: (1) a defendant

must make a prima facie showing that a peremptory

challenge has been exercised based on race: (2) if the

showing has been made, the prosecution must offer a

neutral basis for striking the juror in question; and (3) in

6

light of the parties’ submissions, the trial court must

determine whether purposeful discrimination has been

shown. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 328-29

(2003). In this instance, the prima facie showing is “moot”

because the district court found that it had been satisfied

and required the prosecutor to give a neutral explanation

under the second prong. See Hernandez v. New York, 500

U.S. 352, 359 (1991).

Petitioner contends that the government failed to

satisfy the second prong of the test when it explained that

it struck Ms. Lard because “she sang in church choir.” In a

similar case, Justice Thomas, in an opinion joined by

Justice Scalia, has explained that this is an issue worthy

of review. See Davis v. Minnesota, 511 U.S. 1115, 1145S. Ct.

2120 (1994) (Thomas, J., dissenting from denial of certio-

rari). In Davis, the prosecutor used a peremptory strike to

remove a black juror, and the defendant objected on

Batson grounds and requested a race-neutral explanation.

The prosecutor explained that she struck the juror because

he was a Jehovah’s Witness, who “are reluctant to exercise

authority over their fellow human beings... .” Davis, 114

S. Ct. at 2121. “On appeal, [Davis] contended that the

prosecutor’s explanation for the strike was race neutral,

but contended that Batson should be extended to prohibit

peremptory strikes based on religion.” Jd.° Justices Tho-

mas and Scalia explained:

-

* In this case, although acknowledging that petitioner clearly made

a Batson objection in the district court, the Ninth Circuit parsed-_the

objection into one based on race and another based on religion and then

reasoned that the religion-based aspect of the objection was not

sufficiently preserved, thereby subjecting it to plain error review. The

procedural posture of this case is identical to Davis, where the defen-

dant raised a race-based Batson challenge in the trial court and then

(Continued on following page)

~

7

[Gliven the Court’s rationale in J.E.B., no princi-

pled reason immediately appears for declining to

apply Batson to any strike based on a classifica-

tion that is accorded heightened scrutiny under

the Equal Protection Clause. The Court’s deci-

sion in J.E.B. was explicitly grounded on a con-

clusion that peremptory strikes based on sex

cannot survive “heightened scrutiny” under the

Clause, because such strikes “are not substan-

tially related to an important government ob-

jective.” In breaking the barrier between

classifications that merit strict equal protection

scrutiny and those that receive what we have

termed “heightened” or “intermediate” scrutiny,

J.E.B. would seem to have extended Batson’s

equal protection analysis to all strikes based on

the latter category of classifications — a category

which presumably would include classifications

based on religion.

Davis, 114 S. Ct. at 2121 (citations omitted).

In the more than ten years since the opinion of Jus-

tices Thomas and Scalia in Davis, the state and lower

federal courts have struggled with Batson’s application to

religion. See United States v. Brown, 352 F.3d 654, 666-67

(2d Cir. 2003) (collecting cases and noting conflict); United

States v. DeJesus, 347 F.3d 500, 509 n.7 (3d Cir. 2003)

argued on appeal that the religion-based explanation was improper. In

Davis, Justices Thomas and Scalia did not find that the religion-based

argument was insufficiently preserved. Moreover, the Court’s precedent

makes clear that the Batson objection in the trial court was sufficient to

preserve this argument. See Yee v. Escondido, 503 U.S. 519, 534 (1992)

(“Once a federal claim is properly presented, a party can make any

argument in support of that claim; parties are not limited to the precise

arguments they made below.”); see also Lebron v. Natl Railroad

Passenger Corp., 513 U.S. 374, 378-79 (1995).

8

(same). Some state courts have declared that strikes based

on religious affiliation are unconstitutional. See State v.

Purcell, 199 Ariz. 319, 18 P.3d 113, 120 (2001); State v.

Hodge, 248 Conn. 207, 726 A. -d 531, 552-54 (1999); People

v. Martin, 64 Cal. App. 4th 378, 75 Cal. Rptr. 2d 147, 150-

51 (1998). Others have held that religion-based peremp-

tory challenges are forbidden under state law. See State v.

Fuller, 356 N.J. Super. 266, 279, 812 A.2d 389, 397 (2002);

Thorson v. State, 721 So. 2d 590, 594 (Miss. 1998). Other

states, such as Texas, have held that religion-based per-

emptory challenges are not constitutionally improper. See

Casarez v. State, 913 S.W. 2d 468 (1994).

The confusion is perhaps best exemplified by the

Third Circuit’s divided opinion in DeJesus. There, the

Third Circuit addressed whether a potential juror’s par-

ticipation in religious activities can serve as a reason for a

peremptory challenge under Batson. In DeJesus, 347 F.3d

at 502, the prosecutor struck two potential black jurors.

One of the two black jurors, named McBride, stated that:

(1) his hobbies involve civic activities with his church; (2)

he reads the Christian Book Dispatcher; (3) he holds

several biblical degrees; (4) he is a deacon and Sunday

School teacher in the local church; and (5) he sings in a

couple of church choirs. The other potential black juror, —

named Bates, stated that: (1) he is an officer and trustee

in his church; (2) he only reads the Bible and related

literature; and (3) his hobbies are church activities. Jd. at

502. In defending the challenges, the prosecutor included

the potential jurors’ religious involvement. Jd. at 502-03.

In a 2-1 decision, the Third Circuit held that there

was no Batson violation. The majority explained that

because “the government’s strikes were based on the

jurors’ heightened religious involvement rather than their

9

religious affiliation, we need not reach the issue of

whether a peremptory strike based solely on religious

affiliation would be unconstitutional.” Jd. at 510 (empha-

ses added). In other words, the majority held that “[e]ven

assuming that the exercise of a peremptory strike on the

basis of religious affiliation is unconstitutional, the exer-

cise of a strike based on religious beliefs is not.” Id. at

510.

Judge Stapleton dissented. See DeJesus, 347 F.3d at

513-15 (Stapleton, J., dissenting). He first explained that

when the Court extended Batson to discrimination based

on gender, it “strongly suggested” that Batson would

extend to any classification receiving “heightened scru-

tiny.” Id. at 513-14 (citing J.E.B.). He then reasoned:

One may peremptorily strike a juror for being in-

articulate or uneducated. But one may not, I be-

lieve, assume that because a prospective juror is

of a particular race, gender, or religion, he is in-

articulate or uneducated, and then base a per-

emptory strike on that assumption. Similarly, a

prosecutor may undoubtedly strike a juror for be-

ing unwilling to sit in judgment of another hu-

man being. However, a prosecutor may not,

consistent with the Equal Protection Clause, in-

fer solely from a prospective juror’s race, gender,

or religion that he will be unwilling to sit in

* Even if there is any merit to the distinction between religious

affiliation and religious involvement, as drawn by the majority in

DeJesus, it is inapplicable here. All juror Lard said was that she worked

in her church and sang in the choir. The minimal activity described

cannot possibly constitute such “heightened” religious involvement as

to be a permissible basis to exercise a strike. Indeed, the jurors struck

in DeJesus described much more religious involvement.

~ 10

judgment of another, and then offer that unwill-

ingness as a permissible basis for a peremptory

challenge.

This does not mean that a litigant may not per-

emptorily strike a juror because of a belief that

happens to have a religious basis. But a litigant

cannot use a juror’s religious affiliation or prac-

tice as the sole basis for attributing such a par-

ticular belief to the juror. Here, the voir dire

transcript reveals no indication from either

McBride or Bates that they would be reluctant to

convict or pass judgment on another human be-

ing. If they had exhibited such a reluctance, the

government clearly would have been able to use

such a belief, regardless of whether it had a reli-

gious basis, as the reason behind a peremptory

strike. However, both McBride and Bates indi-

cated precisely the opposite of any such unwill-

ingness: that they would follow the law and base

a verdict only on the evidence in the case.

’ The record makes clear that the sole basis for the

government’s belief that such reluctance existed

was the fact that McBride and Bates were heav-

ily involved in the practice of their religious

faith. What the government did was to assume

that individuals heavily involved in the practice

of their religious faith, as a class, are likely to be

reluctant to sit in judgment of others. This is

precisely the kind of stereotyping that I believe is

foreclosed by the teachings of J.E.B. The Court

concludes, as did the District Court, that even

though striking a juror on account of his religious

affiliation may violate Equal Protection, striking

him because of his “heightened religious in-

volvement rather than a specific religious affilia-

tion” does not. I cannot agree. A classification

based on “heightenecl religious involvement” is

11 r

no less a classification based on religion than is a

classification based on religious affiliation. The

government has proffered no authority from

Equal Protection or Free Exercise jurisprudence

suggesting the contrary and I am aware of none.

Once a prosecutor begins discriminating against

individuals because they engage in religious ac-

tivities (regardless of what religion they are or

the degree to which they engage in those activi-

ties), or because they are non-religious (or engage

in only a limited number of religious activities),

the prosecutor’s actions must be subjected to

heightened scrutiny.

Because the prosecution discriminated against

Bates and McBride on account of their practice of

their religion, I would reverse the judgment of

the District Court.

DeJesus, 347 F.3d at 514-15 (footnote and citation omit-

ted).

The Court should resolve the conflict among the lower

courts and adopt Judge Stapleton’s analysis. As the Court

has stated, “stereotypical assumptions” are impermissible

under Batson. Hernandez, 500 U.S. at 361. The religion-

based explanation in this case was nothing more than a

“stereotypical assumption,” as juror Lard did not in any

way indicate that she could not sit in judgment of another

person or be fair and impartial based on her religious

beliefs. Indeed, one commentator has stated:

Almost inevitably, in such situations the lawyer

will respond that it is not the religious affiliation

signaled by the activity that is the reason for the

peremptory, but rather the intensity with which

the juror affiliates himself with the religion that

is the problem. While lawyers would perhaps not

12

put it so bluntly, in essence many feel that, for

example, the problem with wearing a yarmulke

is not that it signals that a person is Jewish, but

it signals that he is very Jewish. It is almost as

though the lawyer were saying that he was not

striking all the members of a religious affiliation,

-but just the “real ones” — the ones who are too se-

rious about it.

If Batson is going to be extended to religious af-

filiation and mean anything, this kind of per-

emptory challenge cannot be allowed. Otherwise,

it seems impossible to police lawyers, as they can

always say that the juror was struck not for reli-

gious affiliation but for the depth of his belief, as

signaled by whatever it was that gave away his

religious affiliation... .

To allow a juror to be struck merely for being “too

religious” seems almost as nonsensical as allowing

a@ prosecutor to strike based on skin tone if he

states that he is striking not all African Ameri-

cans but just the ones with particularly dark skin.

However, this does not mean that a person can-

not be struck for religious beliefs, at least where

they are plausibly relevant to the case at hand.

For example, assume a juror wearing a cross

states during voir dire that he is a regular

churchgoer. Based on that, the prosecutor may be

concerned that the juror is unable to judge oth-

ers. However, at this point the prosecutor’s con-

cern is not based on anything other than the

juror’s affiliation with his religion (and that he is

a particularly devout Christian) and hence has

not ripened into a legitimate reason for a per-

emptory challenge. If, however, the prosecutor

questions the juror and the juror states that, be-

cause of his religion, he believes it is not right to

13

judge others, that would be a legitimate reason

for a challenge (even if the juror states that he

can put that belief aside) since the concern is

now based not on a stereotype but on something

this particular juror said about his beliefs that is

plausibly relevant to his qualifications as a juror.

Daniel M. Hinkle, Peremptory Challenges Based on Reli-

gious Affiliation: Are They Constitutional?, 9 Buffalo Crim.

L. Rev. 139, 192-95 (2005) (“Hinkle”) (footnotes omitted).

Finally, the Court’s jurisprudence interpreting the

Free Exercise Clause of the First Amendment dictates that

striking a juror based on religious activity is impermissi-

ble. See John H. Mansfield, Peremptory Challenges to

Jurors Based Upon or Affecting Religion, 34 Seton Hall L.

Rev. 435 (2004) (conducting an exhaustive analysis of Free

Exercise jurisprudence in the context of peremptory

challenges).’ As Professor Mansfield has observed: “Surely

it [can]not be argued that though the strength of the

policies for peremptories remains the same, the substan-

tive right to be free from sex discrimination is more

powerful than the right to the free exercise of religion, a

right expressly set forth in the First Amendment.” Id. at

482. Indeed, some courts and scholars have determined

that religion-based peremptories violate both the Free

Exercise Clause and the Establishment Clause of the First

Amendment. See Hinkle, 9 Buffalo Crim. L. Rev. at 147-48

n.49 (2005) (collecting cases).°

* Professor Mansfield also notes that religion-based peremptories

may violate Article VI of the Constitution.

* Hinkle, however, concludes that the impermissibility of religion-

based peremptories is more clearly revealed under an Equal Protection

analysis.

14

In sum, the Court should grant the instant petition to

resolve the conflict among the lower courts and hold that a

peremptory strike cannot be justified by a juror’s mere

religious activities.

B. The Court Should Resolve The Conflict Among

The Lower Courts As To How To Proceed When

A Prosecutor Offers Multiple Reasons For A

Peremptory Strike, One Of Which Is Improper.

If the Court determines that the religion-based

explanation for the peremptory strike in this case was

improper, then another question that has confused the

lower courts arises. In this case, the government offered

three reasons for the strike: (1) the potential juror sang in

the church choir; (2) she was a day care supervisor; and (3)

she made an unknown face to an unknown comment by

another potential juror. Thus, if the Court determines that

the first reason is invalid, the prosecutor still offered two

“neutral” explanations. The lower courts have struggled in

applying Batson when a prosecutor offers both “neutral”

and improper reasons for a strike at the second stage of

the inquiry.

In Wilkerson v. Texas, 493 U.S. 924, 110 S. Ct. 292

(1989) (Marshall, J., dissenting from denial of certiorari),

Justices Marshall and Brennan suggested that once a

prosecutor articulates an improper rationale at the second

stage of the Batson inquiry, a violation has been estab-

lished and there is no further need to proceed to the third

stage of the inquiry. At least one federal judge and several

state courts have supported this approach. See, e.g., Kesser

v. Cambra, 465 F.3d 351, 376-77 (9th Cir. 2006) (en banc)

(Berzon, J., concurring); McCormick v. State, 803 N.E. 2d

1108, 1112-13 (Ind. 2004); State v. Lucas, 199 Ariz. 366, 18

15

P.3d 160, 163 (2001); Payton v. Kearse, 329 S.C. 51, 495

S.E.2d 205, 210 (1998); Rector v. State, 213 Ga. App. 450,

444 S.E.2d 862, 865 (1994).

Contrary to this authority, several federal courts of

appeals have held that, when confronted with this situa-

tion, a court should conduct a “mixed motive” analysis,

which shifts the burden to the government to demonstrate

that it still would have struck the juror without the

improper rationale. See Howard v. Senkowski, 986 F.2d 24

(2d Cir. 1993); see also Kesser, 465 F.3d at 373-74 (Ward-

law, J., concurring) (collecting cases), Still others have

suggested that the Court has not clarified the appropriate

framework and that perhaps the burden should not shift

to the government; instead, a court should proceed to the

third Batson prong, ignoring the improper rationale. See

Kesser, 465 F.3d at 383-84 (Rymer, J., dissenting).

The Court should grant the instant petition to provide

guidance as to this question, which has confused the lower

courts. Petitioner urges the Court to adopt the approach

suggested in Wilkerson. Alternatively, the Court should

adopt a mixed motive analysis which shifts the burden to

the government.

C. The Court Should Clarify That Trial And

Reviewing Courts Must Conduct A “Compara-

tive Juror Analysis,” As Set Forth In Miller-El,

When Assessing The Third Prong Of The Bat-

son Inquiry.

The Court has recently stated: “More powerful than

. bare statistics, however, are side-by-side comparisons

of some black venire panelists who were struck and white

panelists allowed to serve. If a prosecutor’s proffered

16

reason for striking a black panelist applies just as well to

an otherwise-similar nonblack who is permitted to serve,

that is evidence tending to prove purposeful discrimina-

tion to be considered at Batson’s third step.” Miller-El v.

Dretke, 545 U.S. 231, 241 (2005). In this case, the district

court and the Ninth Circuit failed to conduct a compara-

tive analysis at Batson’s third step, even though such an

analysis demonstrates purposeful discrimination in this

case.

The prosecutor offered three allegedly neutral reasons

for striking Ms. Lard: (1) she was a day care supervisor;

(2) she sang in the church choir; and (3) she made an

unknown face to an unknown comment by another poten-

tial juror. With respect to the first purported reason, Ms.

Lard stated that she was a “site supervisor” at a day care

center.’ The prosecutor explained, presumably based on

the assumption that the juror’s job involved work with

children, that she would be overly sympathetic. However,

the government did not strike four non-black jurors who

worked with children in various teaching capacities: a

retired school teacher, an instructional assistant with city

schools, a high school English teacher, and a high school

industrial arts teacher.

The prosecutor also noted that juror Lard sang in the

church choir. The prosecutor evidently believed that this

" It is not entirely clear what a “site supervisor” does. Although

given the opportunity, the government never questioned Ms. Lard to

determine whether her occupation could pose a problem, which shows

discrimination under the third prong. See Miller-El, 545 U.S. at 244

(“we expect the prosecutor would have cleared up any misunderstand-

ing by asking further questions before getting to the point of exercising

a strike”).

17

was a problem, although the jurors had been asked about

religious beliefs twice during voir dire, and Ms. Lard never

voiced any comment that would cause concern. Perhaps

more importantly, one of the non-black teachers who was

not struck stated that her hobby involved teaching “reli-

gious education at my church.” Once again, a comparative

analysis demonstrates discriminatory intent.”

In sum, in Miller-El, the Court explained that the

most “powerful” evidence to consider at the third Batson

stage is a comparative juror analysis. The Court should

clarify that such an analysis is required.

¢

CONCLUSION

For the foregoing reasons, the Court should grant the

instant petition for a writ of certiorari.

Respectfully submitted,

Dated: March 9, 2007 BENJAMIN L. COLEMAN

COLEMAN & BALOGH

433 G Street, Suite 202

San Diego, California 92101

Telephone (619) 652-9960

Attorneys for Petitioner

* The only rationale offered by the government that is not directly

refuted by a comparative analysis is the explanation that Ms. Lard

made a face when one of the other jurors made a comment. However,

the prosecutor could not remember the comment and did not know

what the face meant. If an unknown face to an unknown comment

made by another juror can justify a strike under Batson, then Batson

will cease to exist. Moreover, the district court never made a finding

that such a face was even made.

App. 1

2006 WL 3613214

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,}| No. 05-50907

Plaintiff-Appellee, D.C. No.

v CR-02-1714-MJL

EDRIC JORDAN, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA,} No. 06-50028

Plaintiff-Appellee, D.C. No.

” CR-02-1714-MJL

TIMOTHY PATRICK,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, District Judge, Presiding.

Submitted December 7, 2006**

Pasadena, California

(Filed Dec. 11, 2006)

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by Ninth

Circuit Rule 36-3.

** This panel unanimously finds this case suitable for decision

without oral argument. See Fed. R.App. P. 34(a)(2).

App. 2

Before: PREGERSON, SILVERMAN, and TALLMAN,

Circuit Judges.

Edric Charles Jordan and Timothy Patrick appeal

their jury trial convictions for conspiracy to possess with

intent to distribute cocaine and for possession with intent

to distribute cocaine. Jordan also appeals his conviction on

two additional counts — possession with intent to distrib-

ute cocaine and possession with intent to distribute

cocaine base. We now affirm. Because the parties are

familiar with the facts and procedural history of this case,

we need not recount them here.

I. Batson Claim

Defendants objected to the prosecution’s peremptory

strike of one of three prospective black jurors based on her

race.

We agree that the prosecutor’s explanation was race

neutral.’ See Purkett v. Elem, 514 U.S. 765, 768 (1995)

(noting that the explanation need not even be “persuasive,

or even plausible”). Furthermore, the district court did not

commit clear error when it found that there was no pur-

poseful discrimination after noting that the prosecutor had

not struck two other prospective black jurors in the venire.

' We reject the defendants’ religion-based Batson objection to the

prosecutor's explanation. No such objection was raised before the

district court, thus we review for plain error. See United States v.

Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir. 1996). As neither the

Supreme Court nor the Ninth Circuit has extended the reach of Batson

to peremptory challenges based on religion, any error here was not

“plain.”

App. 3

See United States v. Chinchilla, 874 F.2d 695, 698 n.4 (9th

Cir. 1989).

II. Reasonable Doubt Instruction

The district court gave the Ninth Circuit’s model

“reasonable doubt” instruction. See Ninth Cir. Crim. Jury

Inst. 3.5 (2003). Both contend that the model instruction is

defective.

Jordan cannot now challenge the use of Model Jury

Instruction 3.5. He requested that it be given in the first

place and therefore waived any error. See United States v.

Cain, 130 F.3d 381, 383-84 (9th Cir. 1997).

We review Patrick’s claim for plain error. When

Patrick proposed his alternative “reasonable doubt”

instruction, he failed to offer any argument on why the

model imstruction was defective. See United States v.

Klinger, 128 F.3d 705, 710 (9th Cir. 1997) (“A defendant’s

mere proposal of an alternate instruction does not satisfy

Rule 30’s standard of specificity.”). We have previously

held that the giving of this exact instruction was not plain

error. See United States v. Ruiz, 462 F.3d 1082, 1086-1087

(9th Cir. 2006).

III. Sufficiency of the Evidence (Jordan only)

Jordan contends that the evidence at trial was insuffi-

cient to convict him on Counts One and Two of the indict-

ment. We will not upset the verdict if “after viewing the

evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential ele-

ments of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

App. 4

Having reviewed the record, we find that the jury had

sufficient evidence on both counts.

A. Count One: Conspiracy to Possess

Viewing the evidence in a light most favorable to the

government, we hold that a jury could reasonably find that

Jordan and Patrick’s level of coordination was beyond that

of a simple buyer-seller arrangement, and instead con-

clude that Jordan was a member of the greater conspiracy.

B. Count Two: Possession

The basis for this charge was the 596 grams of cocaine

found in Sharea Moore’s car. We find that Jordan can be

held responsible for Moore’s conduct under Pinkerton

liability. See United States v. Long, 301 F.3d 1095, 1103

(9th Cir. 2002) (citing Pinkerton v. United States, 328 U.S.

640, 645-48 (1946)).

IV. Improper Vouching (Jordan only)

Because no objection was made before the district

court to the prosecution’s closing argument, we review

Jordan’s claims for plain error. See United States v. Combs,

379 F.3d 564, 568 (9th Cir. 2004). No such error is present.

The prosecutor’s comments were tied to the strength of the

evidence, not to the prosecutor’s personal beliefs or pres-

tige of the office. See United States v. Molina, 934 F.2d

1440, 1445 (9th Cir. 1991) (noting that the government has

“the freedom to argue reasonable inferences based on the

evidence”).

App. 5

V. Failure to Prove Drug Quantity Alleged in the

Indictment (Jordan only)

Jordan contends that he was entitled to a judgment of

acquittal on Count Four because the government did not

prove an essential element of the offense - the drug

quantity listed in the indictment. We review this claim de

novo. See United States v. Johnson, 357 F.3d 980, 983 (9th

Cir. 2004). im

Pa

The quantity allegation was not an element of the

offense. See United States v. Toliver, 351 F.3d 423, 431 (9th

Cir. 2003). When the jury found Jordan responsible for less

than the 50 grams, he “w[as] not entitled to a judgment of

acquittal; rather, the district court was restricted in the

maximum sentence it could impose.” Jd. As a result, this

. claim is without merit.

IV. Base Level] Calculation (Patrick Only)

Patrick asserts that the district court miscalculated

the quantity of cocaine — 2 kilograms instead of 1.596

kilograms — under U.S.8.G. § 2D1.1. Thus, his base offense

level under the Guidelines should have been set at 26, not

28.

We review the district court’s interpretation of the

Guidelines de novo, the district court’s application of the

Guidelines to the facts of this case for an abuse of discre-

tion, and the district court’s factual findings for clear error.

See United States v. Kimbrew, 406 F.3d 1149, 1151 (9th

Cir. 2005).

We see no error. The district court was within its

discretion in finding that two kilograms more accurately

reflected the scale of the offense. That is what Patrick paid

App. 6

for and thought he was getting. It was mere happenstance

that his purchase turned out to be a few ounces short. This

is in contrast to United States v. Felix, 87 F.3d 1057 (9th

Cir. 1996), in which a seller unilaterally delivered a lesser

amount of drugs than was originally agreed to.

VII. Leader/Organizer Enhancement

Patrick also attacks the district court’s reasons for

applying the “organizer or leacer” enhancement under

U.S.S.G. § 3B1.1. We review that determination for clear

error. See United States v. Berry, 258 F.3d 971, 977 (9th

Cir. 2001).

The district court offered the following reasons for the

enhancement:

I believe that the evidence is overwhelming that

Mr. Patrick was an organizer and leader of five

or more. He is very cool. You could tell on the

wire interceptions that took place during trial

that he was not an excitable individual. He was

very cool, calm and collected. His voice was gen-

erally relatively low and somewhat calm in his

demeanor. And he was the center, I should say of

— when a crisis or problem arose, Mr. Patrick

seemed to take the leadership role as to how to

proceed.

Now, I do believe that because of his role and

what was demonstrated primarily by listening to

the wire interceptions and also of the evidence,

that he should be attributed the plus 4 recom-

mended by probation in the probation report and

for the reasons set forth.

(emphasis added).

App. 7

Before applying the organizer/leader enhancement,

the court must find that the defendant exercised “some

degree of control or organizational authority over others.”

United States v. Mares-Molina, 913 F.2d 770, 773 (9th Cir.

1990).

That Patrick had a calm demeanor during the inter-

cepted conversations does not demonstrate a leadership

capacity over other individuals in the conspiracy. The

court did make conclusory statements about Patrick’s

leadership position, but they were divorced from any

reference to specific events or portions of the record.

Nonetheless, the district court also said that it was

applying the organizer/leader enhancement “recommended

by probation in the probation report.” Through this state-

ment, the court adopted the presentence report’s findings

on Patrick’s role in the offense. See United States v. Rigby,

896 F.2d 392, 394 (9th Cir. 1990). The report concluded

that “Patrick assumed the role of organizer and/or leader

during several recorded phone calls, meetings and other

activities in order to facilitate the drug distribution con-

spiracy.” This assessment tracks the report’s factual

findings (and the evidence from the government’s wire

intercepts presented at trial) showing that Patrick (i)

coordinated the two deliveries of the cocaine first from

Carlos Rodriguez and Paul Naehrine to Jason Lee McKit-

trick, then to him, and finally to Jordan and Moore, and

(i) organized a series of conversations with other con-

spirators about Moore’s arrest and shortfalls in the deliv-

eries from Rodriguez.

App. 8

By adopting the presentence report, the district court

made a sufficient factual record for its enhancement.

Those findings were not clearly erroneous.

AFFIRMED.