Appeal from the United States District Court for the Central District of California; Mariana R. Pfaelzer, District Judge, Presiding; D.C. No. CR-89-0879-MRP-1.
Hug, Norris, and Leavy, Circuit Judges.
Defendant Vincent George Parks, Jr. appeals from his conviction for bank robbery and use of a firearm during commission of a bank robbery in violation of 18 U.S.C. §§ 2113(a)(d), 924(c) and 924(d)(1). He claims that: (1) the government's use of peremptory challenges to exclude two black jurors violated due process; (2) the district court erred in holding that his prior bank robbery conviction would be used to impeach him if he testified; (3) the court deprived him of an impartial jury and a fair trial by holding an ex parte conference with the jury, and (4) there was insufficient evidence to convict him. Because we conclude that Parks' claims are without merit, we affirm.
Parks, who is black, claims that the government's use of peremptory challenges to exclude two black jurors, Esther Hudson and Juanita Givens, was constitutionally infirm because, he says, the jurors were excused solely based on their race. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (government may not use peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race). The government used its first peremptory challenge to exclude Hudson and its second to exclude Givens. The district court found no constitutional violation.
We review a district court's findings regarding purposeful discrimination in the jury selection process for clear error. See United States v. De Gross, 913 F.2d 1417, 1425 (9th Cir. 1990), rehr'g en banc granted, 930 F.2d 695 (9th Cir. 1991); United States v. Chinchilla, 874 F.2d 695, 697 - 98 (9th Cir. 1989).
After the government excluded the two jurors, the government and defense counsel held a sidebar meeting with the district judge. Upon questioning by the judge, the government denied that it was planning to excuse every black from the jury.*fn1 At defense counsel's request, the judge asked the government to articulate its reasons for challenging the prospective black jurors. The government said that Givens was challenged because of her background in social work and that Hudson was challenged because she had previously served as a juror in a case in which the prosecutor had been involved. Reporter's Transcript, Voir Dire ("RT/VD") at 57. The judge then stated that the government was warranted in exercising its challenge of Givens,*fn2 but did not make a specific ruling relating to Hudson.*fn3 Id.
To raise a Batson challenge, the defendant must first establish a prima facie case of discriminatory jury selection. See Batson, 476 U.S. at 96.*fn4 The burden then shifts to the government to articulate a neutral, nondiscriminatory reason for the peremptory challenge. See id. at 97 - 98. The trial court must then determine "if the defendant has established purposeful discrimination." Id. at 98.
On appeal, Parks asserts that he established a prima facie case of discrimination because the government used its first two peremptory challenges to exclude blacks from the jury.*fn5 Moreover, he argues that the government's reasons for excluding the jurors were merely a pretext for racial discrimination. Specifically, Parks argues that the government waited to exercise its peremptory challenge against Hudson until after it had discovered that the next prospective juror was white. In addition, he notes that the trial judge already had asked Hudson in open court whether she would be able to be fair and unbiased in light of her involvement in the previous case and that she had responded affirmatively. RT/VD at 49. Accordingly, he argues, the government's claim that it "would look better" if Hudson did not sit on the jury was not plausible.
Parks likewise argues that the government's statement that it had removed Givens because "[s]he was studying to be a social worker," RT/VD 57, was vague and non-specific. The government offered no explanation, he contends, as to how the study of social work would interfere with a person's ability to serve impartially as a juror. Accordingly, he contends, the government's explanations were a mere pretext for discrimination.
Finally, Parks argues that the district court failed to conduct the proper adversarial hearing to allow defense counsel to examine the prosecutor's statements. See United States v. Alcantar, 832 F.2d 1175, 1180 (9th Cir. 1987), appeal after remand, 897 F.2d 436 (9th Cir. 1990) (court must allow defense to hear and respond to the prosecutor's explanations in order to "help the judge decide whether the government's reasons were pretextual"). The court's failure to conduct such a hearing, Parks argues, deprived him of due process.
Although we agree that the prosecutor's explanations for rejecting the witnesses are tenuous, we do not evaluate them because we hold that Parks has failed to establish a prima facie case of discrimination. The mere striking of two black jurors, without more, does not establish a "pattern" of challenges against black jurors sufficient to raise an inference of discrimination. Chinchilla, 874 F.2d at 698. Moreover, defense counsel failed to make a record of other probative facts such as whether the government accepted any blacks on the jury. See Chinchilla, 874 F.2d at 698 n.4 (willingness of prosecutor to accept minority jurors weighs against finding of prima facie case); De Gross, 913 F.2d at 1425 - 26 (striking of only Hispanic juror established prima facie case of discrimination).
In Chinchilla, we held that the defendant had met its evidentiary burden by showing that the prosecutor "(1) challenged all Hispanic jurors; (2) used his first peremptory challenge to strike the only Hispanic juror; and (3) excercised his sole challenge to the alternate pool to remove the only other Hispanic in the jury pool." Id. at 698 (emphases added) (citation omitted). Parks has made no showing, as the defendant did in Chinchilla, that the government singled out blacks for exclusion. He thus has failed to establish a prima facie case of discrimination. Because Parks has not met the threshold ...