United States v. Serino ( 1999 )

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________





No. 97-2217



                          UNITED STATES,



                            Appellee,



                                v.



                         ANTHONY SERINO,



                      Defendant, Appellant.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. William G. Young, U.S. District Judge]



                       ____________________



                              Before



                      Boudin, Circuit Judge,



Bownes and Reavley, Senior Circuit Judges.



                      _____________________



     Frederick R. Ford, by appointment of the Court, for appellant.

     Geoffrey E. Hobart, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief, for

appellee.





                       ____________________



                       December 30, 1998

                       ____________________          REAVLEY, Circuit Judge.  Anthony Serino was convicted of

conspiracy to distribute cocaine and of possession with intent to

distribute cocaine; he was sentenced to three years imprisonment.

We reverse and remand for retrial because he was erroneously denied

a peremptory juror challenge.

          Serino was apprehended as the result of an intensive

investigation by the Drug Enforcement Administration of the Salem

chapter of the Hells Angels Motorcycle Club.  He was not a club

member but served its drug trafficking as a courier.  A DEA special

agent posed as a buyer desiring to purchase thirty ounces of

cocaine.  He was told to meet ten different couriers at ten

different locations each half hour, and that each courier would

deliver three ounces of the drug in a brown paper bag.  At 3:00

p.m. he was to meet "Anthony," a "skinny little kid" who would know

the intended buyer's car.  Defendant Serino drove alongside the

buyer's car at the appointed time and place, introduced himself as

"Anthony" and, without invitation, entered the car and produced

three ounces of cocaine in an unsealed brown paper bag.  Serino

watched, without comment, as the buyer activated a secret latch and

placed the bag in a hidden compartment, and then he parted by

agreeing that he and the buyer would probably see each other in the

near future.

          The evidence supported the conviction.  The extra-

judicial statements of the co-conspirators were admissible under

Fed. R. Evid. 801(d)(2)(E), and Serino's agreement about the future

meetings was proof of his knowledge that multiple crimes were

intended.  A new trial, however, is necessitated by the court's

seating of a juror despite the defendant's peremptory challenge.

                 The Peremptory Challenge Ruling

The Record

          The district judge conducted the voir dire of the jury

panel by general questions and asked Ching Cheung only to state the

occupations of herself and her husband.  We know nothing about her

except her name, her Asian appearance, and this response to the

court:  "I am a social worker, work with Union Square Nursing

Center.  My husband works as a financial analyst."

          When the defense attorney challenged Ms. Cheung, the

judge disapproved.

            THE COURT:  Ms. Cheung, she's our only

            Asian American, why are you challenging

            her?



            MR. BURNS:  Social worker; background.



            THE COURT:  Why should that be a ground of

            challenge?  I mean, you understand what

            I'm doing, I have a Batson problem with

            her.  I think you may be challenging her

            because of her ethnic heritage.



            MR. BURNS:  I'm not.  I told you, her

            background, what she does, what her

            husband does.



            THE COURT:  And what's that?  When you say

            a social worker, why don't you want a

            social worker?



            MR. BURNS:  Financial analyst, her husband

            is.



            THE COURT:  What does that have to do with

            anything pertaining to drugs?  I just

            don't see the connection.  No, I'm

            disallowing that challenge.



          Counsel for the defendant renewed his objection after the

jury was seated and moved for a mistrial.  In the hearing on that

motion, counsel explained that he was confused by the court's

inquiry of his reason for asking that Ms. Cheung be excused; and

that when the judge mentioned Batson, counsel thought that case had

no applicability to his challenge.  The judge then explained his

ruling:

            THE COURT:  [W]ell, here's what it has to

            do, here's the logic of Batson.  Because

            every citizen has a right equally to serve

            on the juries of this nation.  Jury

            service is as I explain to juries that

            most vital expression of direct democracy

            that exists.  No one can be denied, in the

            view of this Court, the right.  It's their

            right.  You don't have to have racial

            issues in a case.  I don't suggest that

            there were.  I suggest that every single

            person qualified for jury service has a

            constitutional right, which I think is

            within the Sixth and Seventh Amendments,

            to serve on the nation's juries.  They

            cannot be denied that right on the grounds

            of gender, race, or national origin.



                            . . . . .



            MR. BURNS: . . . I submit to the Court

            that the reason was, in a drug case, she

            was a social worker and we didn't want her

            on the jury and you told me that that

            wasn't sufficient.



                            . . . . .



            THE COURT:  I understand that's the

            position.  There is a factual piece to

            fill in.



               Let me be clear.  I did not credit your

            explanation from your demeanor and the

            interchange in the record.  I thought you

            were in fact challenging her because she

            was different than the other jurors,

            different because she was an Asian

            American.  I ordered her seated. . . .



                            . . . . .



            MR. BURNS:  I gave you the valid reason

            and then you told me that was not

            sufficient.  I believe the record will

            reflect it.



            THE COURT:  I don't believe it.  I didn't

            then, I don't now.



          The Government argues here that the judge simply made a

credibility finding, a finding that is not clearly erroneous.

Discussion

          While the entitlement to peremptory challenges is

restricted by the equal protection rights of defendants and the

challenged jurors, it remains an essential factor in securing

fairness and impartiality of trial by jury.  This court has said

that this "is one of the most important rights of the accused."

United States v. Gonz lez Vargas, 585 F.2d 546, 547 (1st Cir.

1978).  The restriction imposed by the Supreme Court in Batsoncases goes no further than to prevent purposeful invidious

discrimination and assure selection of jurors pursuant to

nondiscriminatory criteria.  Batson v. Kentucky, 476 U.S. 79, 86,

106 S. Ct. 1712, 1717, 90 L. Ed. 2d 69 (1986).

          Implementation of the restriction against discrimination

is by looking, first, for a prima facie showing of discrimination;

second, calling for a race-neutral explanation for the tendered

challenge; and, finally, decision by the trial court on whether the

objection to the challenge meets the burden of proving the reason

given to be pretexual for purposeful racial discrimination.

Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770-71, 131

L. Ed. 2d 834 (1995).  We will pass the question of whether a prima

facie case of ethnic discrimination was presented when a man named

Serino challenges the only Asian American on the jury venire in a

Boston trial and go to the question of whether all of the

circumstances proved purposeful discrimination.  The defendant's

lawyer gave a perfectly understandable reason for the challenge; he

preferred not to have a social worker decide a drug charge.  We are

at a loss to find any evidence to prove that this reason was a

pretext for actual discrimination against Asian-Americans.  SeeCaldwell v. Maloney, --- F.3d ---, ---, 1998 WL 7571651, at *7-*8

(1st Cir. Nov. 2, 1998) (noting various indications that might

demonstrate a pretextual Batson explanation, such as if the

proffered reason is equally applicable to a non-challenged juror of

a different race; the facts in the record are objectively contrary

to the proffered race-neutral explanation; counsel inadvertently

admits that race played some role in striking the juror; there is

direct evidence of racial bias; or a series of strikes considered

together suggest racial bias, though taken separately each

explanation is race-neutral); see also United States v. P‚rez, 35

F.3d 632, 636 (1st Cir. 1994) (noting that the trial court must

make express findings of fact when it decides to discredit a given

explanation).

          If the judge disbelieved defense counsel, it was because

the judge did not accept an objection to a social worker as a valid

reason for not wanting that person on the jury.  The only reason

apparent to the judge was the difference between Ms. Cheung and the

other jurors, a difference in ethnicity, rather than occupation or

background.  The judge simply saw no connection between the social

worker experience of Ms. Cheung and her decision as a juror in a

drug case.  But the defense attorney did see a connection

(obviously, that a social worker might be especially sensitive to

the harm wrought by drugs), and it was race- and ethnicity- and

gender-neutral.  If the judge found that reasoning to be

pretextual, there is no support for the finding and it was clearly

erroneous.

          To enforce the entitlement to the peremptory challenge,

we reverse the conviction without proof of prejudice or proceeding

to consider harmlessness.  See United States v. Schneider, 111 F.3d

197, 204 (1st Cir. 1997); United States v. Annigoni, 96 F.3d 1132,

1134 (9th Cir. 1996) (en banc).

          Judgment reversed.  Case remanded.