*1 Likewise, Congress’s status of the socio-economic desire avoid unwarranted and rural midlands insinuation the sentencing disparities brevity and the of somehow shares blame with that the bank the sentence fails to reflect the seriousness irrelevant determinants ex- are Givens offense, promote respect for the law sentencing colloquy and cer- pressed in the just or provide punishment. 18 U.S.C. particular tainly support this down- do (6). 3553(a)(1)(A), § Finally, limiting departure. Givens’ ward help him jail time in order to retain his III. CONCLUSION relevant, community, worth in the while extraordinary nothing There is so here support depar- does not the extent of the supports a substantial deviation from Thus, ture on the factors here. based contemplated by Congress the results court upon relied the district at sen- resulting the sentence is unreasonable. tencing to arrive at the non-custodial sen- Accordingly, judgment the of the district casе, im- departure tence court is vacated and the case is remanded permissible and the district court abused resentencing for consistent with this opin- its discretion. ion. light of our conclusion that discretion, court its district abused we im determine that the sentence likewise
posed As to the rea was unreasonable. inquiry, though
sonableness even a district categorically court need not rehearse each MORAN, Appellant, Thomas Plaintiff — 3553(a) of im the section factors when it poses enough its sentence-it is calculate CLARKE; Haar; Anne-Marie Robert range accurately explain why Wayman Smith, III; Jeffery F. Jami defendant more or fur deserves less-the son; Harmon, comprising Clarence judge’s departs ther sentence from the Board of Police Commissioners sentence, guidelines the more compelling City Louis; Ronald 3553(a) St. justification the section must be. Henderson; Nocchiero; Greg Paul M. judge must offer reasons that allow Thirdkill, ory Hawkins; appeals Klein; the court of to assess the reason Al Willie United imposed. ableness of the sentence ppellees. Defe ndants—A Dieken, (8th States v. No. 04-2902. Cir.2006). Further, will not infer a “we Appeals, United States Court of reasoned exercise discretion from a rec Eighth Circuit. suggests ord that otherwise is silent.” Dalton, United States Submitted: Oct. 2005. Cir.2005). April Filed: gave case the district court sig- In this Rehearing and En Rehearing Banc weight history to Givens’ char- nificant May Denied 2006.* great sym- and showed a deal acteristics gave toward him. The court pathy too weight
much these factors and not portions to the other
enough section
3553(a). plus The “time-served” house ar- properly does not
rest sentence consider * grant petition Judge part Beam would for re- no in the consideration or decision of hearing by panel. Judge Gruender took this matter. *3 Background
I.
This case arises from the aftermath of
Bell,
beating Gregory
the notorious 1997
teenager, by
mentally-impaired
black
St.
offiсers. The incident cata-
police
Louis
lyzed
community.
tensions
racial
officials,
alleged
city
Moran’s lawsuit
black,
him a
several of whom are
made
he is
scapegoat
beating
for Bell’s
because
no
white. Moran contended
evidence
beating.
him
The factual and
linked
to the
*4
history of
case is well-
procedural
Clarke,
296 F.3d
documented. Moran
(Stan-
Louis,
Karsh, argued,
Eli
St.
MO
(8th
Clarke,
Cir.2002);
638
Moran v.
309
Goldstein,
Louis,
brief),
on the
E.
St.
ley
(8th Cir.2002);
Clarke;
Moran v.
appellant.
for
(2002),
F.Supp.2d
Moran v.
Clarke,
(2004); Moran v.
Dunne,
Louis,
Moran two race-neutral reasons II. Discussion to peremptory challenge for the Challenges A. Cause (1) for during voir Jones: Jones testified dire jury that he had served on a federal re- appeals Moran the district judge’s cently but could not remember the challenges court’s denial of his for cause (2) outcome, or case Jones name the against Norman-Cook and Greene. Jurors questionnaire indicated in his voir dire that We review denial of strikes fоr cause un he watched TV but testified that he did not der an abuse of discretion standard. Unit hearing widely about the tele- remember Amerson, ed States v. 938 F.2d 118 Notwithstanding vised Bell incident. the Cir.1991). (8th Appellants must clear a foregoing proffered race-neutral reasons high hurdle to obtain reversal of a district Greene, Tate, striking for Jurors regarding court’s decision the dismissal of Jones, the district court concluded that the juror presume for cause. The courts proffered pretext. reasons The dis- were juror a prospective impartial, is and a rejected trict court Moran’s race-neutral party seeking to strike a venire member requiring reasons without defendants to for prospective cause must show that the why proffered pre- state the reasons were juror lay is unable to aside or his her text. impressions opinions and render a ver merits,
Following jury trial on presented dict bаsed on the evidence found in favor of the defendants. Moran court. Wright, United States v. 340 F.3d (8th Cir.2003). trial, alleging Essentially, then moved for a new error to fail standard, in the denial of his profess for-cause must his peremptory challenges. pub- inability impartial its to be and resist dire, 2. At the end of voir and on his own ment was hostile and that Tate was also initiative, expressed Tate his belief that the slightly antagonistic during voir dire. Defen- attorneys had not clear about what been dispute dants both claims. case was about. Moran claims that this state- Wolk, ry.” United States position. his See rehabilitate attempt to (8th Cir.2003). Second, propo- “[t]he id. peremptory challenge of the must nent and Greene Norman-Cook Both explanation articulate a race-neutral then of the recollection their expressed Third, challenge.” Id. a race- “[i]f for the emotionally. them beating affected Bell offered, is the chal- explanation neutral difficulty being impar acknowledged Both lenger explanation must show that the is None tial, strong emotions. their given Id. We review pretext for discrimination.” they theless, consistently stated both challenge pur- peremptory the denial of a court ac The district impartial. could to for clear error. United suant Batson jurors assuf genuineness cepted Elliott, F.3d States v. motion to strike denied Moran’s ances and Cir.1996). cause. Given the jurors two these position gauge superior court’s district all of chal Moran directed his say that credibility, we cannot jurors’ peremptory— lenges for cause and —both its discretion.3 district court abused of the venire. at the black members four Thus, prima the defendants established a Challenges Peremptory B. Batson, attempt facie case under as the court’s appeals the district Moran also all black members of the venire and strike chal attempted peremptory denial of his raises an inference of a dis no one else members of lenges to all four black Travis, criminatory purpose. Green al the district court Specifically, venire. Cir.2005) (2d (holding that Norman-Cook, juror, one black lowed to use all of its prosecution’s attempt challenge but by peremptory be stricken challenges to for-cause and three, of the other the dismissal denied *6 jurors estab Hispanic strike black and reasons ad concluding race-neutral the of discrimination prima lished a facie case by pretextual Moran to be vanced Kuhlmann, Batson); Harris v. 346 under Batson, by prohibited therefore Cir.2003) (2d 330, (holding 346-47 F.3d 69, 79, 1712, 90 L.Ed.2d and its 106 S.Ct. for “objectively unreasonable” that it was progeny. peti hold that appellate court to the state Batson, prima make a facie case tioner failed to Supreme In Court set prospective all five Batson where analysis peremptory for under three-step forth a by jurors perempto were eliminated Protection black challenges Equal under Batson, Supreme In ry challenge). the Fourteenth Amendment. Clause of ‘pattern’ “a of strikes “First, stated that peremptory of the Court opponent jurors partic included in the against black prima a facie challenge must establish might give rise to an inference ular venire showing challenge that the is discriminato- 873, (8th Ortiz, matter, Cir. v. 315 F.3d 892 court's fail- States 3. As a related the district 2002) (holding there was no abuse of discre- Norman-Cook for cause is moot. ure to strike juror by by to strike a subsequently tion district court’s refusal dismissed Norman-Cook ultimately did not peremptory cause because the the court after Moran's successful Therefore, using necessity jury and “the of challenge. motion sеrve on the the denial of the moot, challenge not establish actu- especially peremptory does cause is to strike her for Paskett, Fetterly prejudice”); 163 peremptory al had unused chal- since Moran cf. 1144, Cir.1998) dire, i.e., (9th (holding that remaining F.3d 1148 lenges at the end of voir prejudice due did not suffer actual he defendant it could not be said that suffered part pretrial publicity in because defendant having peremptory to prejudice by to use a chal- challenges). all of his did not use lenge to strike Norman-Cook. See United Batson, 476 U.S. at striking by reasons for Tate discrimination.” ex- pat 1712. This case involves a pressing 106 S.Ct. concern over unemploy- Tate’s pro to all using tern of strike ment allegedly antagonistic and his be- jurors By from the venire. spective black during Finally, havior voir dire. Moran pattern pri- that this established a finding provided striking race-neutral reasons for cаse, we do not suggest ma facie that by Juror Jones expressing concern over negate prima alone create numbers inability key Jones’s to remember facts under Batson. See Luckett v. facie case service, jury about his recent as well as (8th Cir.2000) Kemna, F.3d widely his lack of recollection of publi- the number of African-Ameri (“Although despite claiming cized Bell incident determining cans is relevant struck watching primary hobby. television was a prima a defendant has made a whether case, that evidence alone is facie insuffi part This case turns on three case.”). negate cient or create such a analysis presents Batson Luckett, the defendant’s Batson chal court typical with a difficult issue. In a primarily lenged rested on the fact that case, party once the making perempto prosecutor per “the had used most of his ry challenge justificа states a race-neutral emptory challenges against potential Afri Batson, part tion under the second jurors.” can-American Id. We held that opposing party “may attempt then prima numbers alone could establish a prove facially valid reason is mere Here, contrast,
facie case.
Moran’s pretext
the real reason for the
attempt to
all of the black
strike
members
strike was discrimination.” United States
of the venire and no one else
constituted
Elliott,
(8th Cir.1996)
89 F.3d
pattern
using challenges
gave
rise
Elem,
(citing
not demand is Yet, case, in an exceptional as sive, plausible”). or even Moran’s stated here, principle this comes into tension with about Juror concerns Norman-Cook’s viv a judicial more fundamental principle: de injuries of Bell’s id recollections and the of credibility, including terminations her own those experiences flashbacks to as an dire, nurse, surrounding peculiarly voir are as well within ICU as the fact that she province the of the mentally district court. challenged nephew, had a were See Elliott, (“On By citing appeal, race neutral. concerns over Ju we are mindful of repeated expressions ror of the fact that evаluation of Greene’s emo incident, prosecutor’s the anger tion and over the Bell state of mind upon based provided facially credibility Moran also race-neu demeanor and peculiarly lies (citations tral judge’s province.” reason for the exclusion of Greene. within a trial Also, omitted)). provided facially Moran quotations race-neutral emphasize the rare nature of this departed from We court
The district importance making of de- The case and the play. Batson typical of the script the findings support tailed on the record challenger of not turn to the court did ruling challenge on a under put peremptory forth evidence challenge peremptory Inc., Xpress Enterprises, The district court Batson. U.S. pretext. probative Inc., Transp., with J.B. Hunt 320 F.3d justifications pretext to be found the Cir.2003) (“We Tate, Greene, strongly urge, howev- and Jones to Jurors respect er, judges in the past, from the defen as we have trial hearing argument without rulings articulating make on-the-record why Moran’s race-neutral regarding dants underlying a determination on a question reasoning The justifications pretext. were objection.”). has judicial determina Batson The First Circuit face is whether this we challenge importance general with articulated the of the in a Batson pretext tion of from as follows: demanding proof pretext procedure out first greater challenge of the proponent findings on the record Indicating these of the implicit in the evidence than that First, salutary effects. it has several requires case reversal. prima facie confidence in the administration fosters justice without racial animus. Sec- extraordinary nature of Given ond, appellate eases review of a trial .it case, say that the district we cannot this ruling. important- court’s Batson Most clearly erroneous. findings court’s were ly, it ensures that the trial court has in this case at its became a factor Race credibility made the crucial de- indeed process due inception. plaintiffs The very great that is afforded such termination that race arises from his belief claim itself appeal. respect on decision-making pro city’s influenced the Perez, United States police of a incident in the aftermath cess (1st Cir.1994). un minority. The racial a racial affecting conclusion, we affirm the district this case permeating and tensions dertones of Moran’s motion for new court’s denial escaped the notice would not have court did not abuse its trial. The district procedure preferred district court.4 challenges by denying Moran’s discretion been to court would have for the district cause, cleаr error and it did not commit step provide take the third Batson of Moran’s by denying three pre opportunity to show defendants racial back- given peculiar case, can exceptional we text. But drop of this case. warranted, that a new trial is say Bat- court decided the where the district BEAM, Judge, dissenting. Circuit credibility as upon its query son based long reasons, and, gone has on far too While this case proffered sessment of *8 resolution, the matter nonethe- without a is made that the sub argument where no jury that the selection of a required less trial lacked fairness because sequent just defen- parties, all to was fair to juror give the same deference bias. We occur, respect- I that did not whether it is to dants. Since court’s decision district fully dissent. reject challenge. a Batson approve race, Indeed, with race becomes embroiled began starts with distriсt court its discus-
4. (quoting Id. Moran "played with race.” by acknowledging race an and climaxes sion Clarke, Moran, F.Supp.2d 1074-76 in this case.” enormous role (E.D.Mo.2002) (Judge opinion of vol- quoted Shaw’s then F.Supp.2d at 980. The court recusal)). untary Judge case "[t]his Shaw’s statement case,” disagreement with the court on I am this ante at were enormous. issues, requires one of which only regard, quotes two this the court the first as- I discuss the issues in order signed judge opinion reversal. will trial from his of recu- “[tjhis equitable jury said, importance race, selec- sal of their who case starts with tion, I it. as see becomes embroiled with race and climaxes Unfortunately, with race.” Ante at n. 4. juror I both While believe number may have been an understatement. Norman-Cook, juror Ms. number Greene, should have been Mr. stricken Thus, it was within this framework that cause, clearly court more the district com- dire, jury the voir and trial selection was refusing grant mitted error in reversible forth, clarity, to be undertaken. For I set challenge Moran’s of Greene. in part, by record what was said Explanation of this requires conclusion about Greene and several of the oth- important elucidation of a few facts and er venirepersons during of both races voir of some of repetition the court’s own dire: observations. [plaintiffs attorney]: Mr. Goldstein Moran, Plaintiff/Appellant a Caucasian Greene, Juror No. you Mr. do remem- sergeant, alleges that police defendants/ap- ber the I incident that started to ask officials, pellees, City majori- St. Louis about? ty African-American, of whom are made No. 4: Very vaguely. him a scapegoat their effort to diffuse you Mr. Goldstein: Do remember that- public indignation, especially within occasion, an two officers answered the community, the African-American result- burglar alarm and that what hap- had ing beating. from Mr. Bell’s Ante pened was that a melee ensued and that Although, my as noted in opinion in young injured? man you Do re- Clarke, Moran v. anything member further about Cir.2002), the record does not clearly set case? police forth the race of the various officers you Juror No. 4: Do want me to recall preceded who Moran to the scene of the what I remember? beating and who their own admission Sure, Mr. Goldstein: absolutely. Bell,5 struck and brutalized the evidence some, all, suggests that at least if not Juror No. 4: I remember officers re- early arriving these officers were African- sponded to a burglary in progress, and American. It is clear that the police chief apparently my there was a—from recol- investigation who led the of the incident again lection was a mentally- —there Moran prosecu- and referred for criminal challenged roof, man on the and appar- tion was African-American. It is also ently he lived there and the officers only clear that Moran was the St. Louis that, didn’t know but since he was men- police officer of race recommended for tally impaired, he was explain unable to prosecution, criminal a prosecution that the situation to the officers. That’s all I failed. remember. correctly
The court notes that ra- Mr. Goldstein: you “[t]he Do remember that Moran, 'cial undertones tensions permeating Tom matter, the Plaintiff in this *9 stated, participant "only 5. One such Jesus can Vol. Ill Tr., many count [how times I hit Bell].” Trial prepared you on to tell me that can’t do criminal offenses indicted for that? that incident?
account of anybody way? Is there who feels that No, I of that. No. 4: wasn’t aware Juror Mr. Greene? you are aware that And Mr. Goldstein: Juror No. [Mr. Greene]: coverage? had media that event being hоnest. Now that we’re talk- Just I 4: That’s how heard Juror No. Yes. -more, ing about the case it. Right. Mr. Dunne: press Both the written
Mr. Goldstein: im- remembering Juror No. 4:—I’m coverage? and television ages that were shown on and how TV No. 4: Yes. Juror badly man And young this was beaten. any of youDo remember Mr. Goldstein: I’m going on that information and what press coverage? remembering, it would be hard because No. 4: No. images you. those stick with anything there about Mr. Goldstein: Is painful Mr. Dunne: It was a vivid and you keep that would you what remember incident at the time. a fair trial to Tom Moran giving from Exactly. 4: Juror No. already you’ve that been and the claims African- Mr. Dunne: Mr. Bell’s an concerning mali- that he has made told you Do that? person. American recall process? prosecution and abuse of cious Juror No. 4: Yes. Absolutely 4: not. Juror No. know, right. you All You Mr. Dunne: you. Thank Mr. Goldstein: Well, just “I’m to be say, being honest.” Tr., you, Dire I at 72-74. all we’re perfectly Voir Vol. frank with еveryone. Okay? entitled to that from Attorney]: [Defendants’ Mr. Dunne ‘Well, somebody I could saying, It’s like your Anybody you raise else? Could thing fair.” There’s no such be sort of again, you hands those of who recall jurors being sort of fair. We need as incident? fair, fair, fair completely can be be who question that anybody answer Would he’s entitled to Mr. Moran. That’s what Lynch answered differently than Miss Defendants; that’s what to. Fair to the words, anything it? In is there other entitled to. we’re incident you about what recall about the same anybody Is that feels the there just coming that into that I’ve described they recall way as Mr. Greene that what you don’t believe it’s morning, court his for them painful about the incident is possible you to listen the evidence regardless of what the evidence case you’re going to hear this were, they give couldn’t in this case being on the claims and base verdict to both sides? impartial fair and trial the De- brоught by against Mr. Moran Dunne, I think Miss The Court: Mr. fendants in this case on the evidence hand raised. Norman-Cook has her side to you give hear here and each Id. at 93-94. impartial case a fair and trial which this from some of jurors Mr. Dunne: We’ve heard your obligation as is and
is what it you told me that would you, receive from who have what we’re entitled to impartial], that you difficult for frankly? anybody [be Is there who would you, so to that, just isn’t the case for doing questions have a hard time that, speak. they simply can do or are whether *10 has not ex- No. 4: Yes. anybody else who Juror there
Is who feels them? thoughts those pressed Id. at 99-100.
(Silence) was, course, Dunne one of the Mr. was, in attorneys job defendants’ and his you. Thank attempt to to venire- part, rehabilitate Greene, very I clear want to be Mr. his client wish to have on person might I something you, with sir. don’t about demonstrate, And, I it jury. as will later talking you to pick you by on mean to apparent that wanted is the defendants on you telling Are me that based again. and all African-Ameri- Mr. Greene other case, you of the your recollection Mor- venirepersons jury, can on the while aside, your your feelings not set could an, contrary, to the wanted all Caucasian aside, listen to the evi- memories and jurors, venirepersons possible. as if a verdict in this case and return dence Karsh, dire, completion At Mr. you on the evidence hear? voir based to lawyers, one of Moran’s moved strike I’m it would be saying No. 4: venirepersons, including for cause several just saying I’m it would be impossible. explained specifically Karsh Greene. a lot because that did stir difficult Greene, Mr. and Juror No. “Juror No. in in me I’m sure it did emotions which African- Miss Norman-Cook an [also because, just say, you like I people lot of venireperson]6 American testified to both I’m that. And sure that can’t erase fair difficulty remaining extreme their brought up, is going information be during images this trial on of the the basis memo- going and it’s rekindle some They they Gregory have of a Bell. beaten said, I impossible Like it’s not but ries. they angry, indicated that were both difficult. it would be clearly setting anger aside their would And Mr. Dunne: I don’t want to assume problem.” an enormous Id. at 113. true, anything is but let’s face it. This motions to strike for overruled. cause were something you angry that made was sought then chal- peremptorily Karsh Am I happened. right the time it about (Mr. Greene), 8, jurors lenge numbered 4 that? (Mr. Tate)7 (Ms. Norman- Oh, 4: Juror No. all means. Cook), all of African-American venire- I to stir possible Mr. Dunne: mean it’s persons. point, interposed At this Dunne pleasure happiness, emotions but objection proposed a Batson strikes to the talking that’s not what we’re about here. of the at 119. on behalf defendants. Id. something you angry. that made This is (as step Karsh then two of the advanced Oh, definitely. 4: Juror No. рrocedure legitimate Batson requires) you’re saying And although Mr. Dunne: nondiscriminatory seeking to reasons for difficult, you? it could be could potential jurors. again spe- strike the He 4: Juror No. Yes. cifically pointed out that “Mr. Greene testi- And, chosen, you? Mr. Dunne: if would Gregory fied that his recollections on the During response objection, 6. Ms. testified she re- Norman-Cook had his to the Batson Karsh, nondiscriminatory showing for his membered the Bell incident and that it would challenge, pointed support be difficult to sit as a in the case. She unemployed Tate had out that Mr. also stated that she worked in an intensive expressed antagonism some toward counsel nephew. care unit and that had a retarded she parties offput- was "somewhat which Tr., Voir Dire Vol. 1 at 96-98. Tr., ting.” Dire Voir Vol. I at 120-21.
657
race,
discrimination,
angry
age
gender
made Mm
and he
and
“[u]n-
Bell
incident
very
being
add,
Honor,
hesitant about
your
was
to
[Greene]
less-I was about
and
a
put
to
aside his emotions
render
proposed
able
person being challenged
venire
is
At
impartial
fair and
verdict.” Id. at 120.
of a protected
[apparently
member
class
discussion,
court,
of this
the conclusion
referring only to the African-Americans]
requiring
permitting anything
without
right to
ought
protected
whose
serve
to be
any party, granted the Nor-
more from
by the Court.” Id. When the court noted
said,
peremptory challenge and
man-Cook
to Karsh that “all
left [for
that’s
the defen-
are overruled.
I think
other three
“[t]he
Caucasians,”
123,
is
at
dants]
id.
Karsh
nondiscriminatory
legitimate
are not
those
by
jurors 4,
noting
corrected the court
They’re staying.”
Id. at 121.
reasons.
17,
venireper-
8 and
the African-American
attempted
“re-emphasize”
Karsh
to
When
strike,
attempted
sons he had
remained
him,
stopped
the court
anger,
Greene’s
available.
my ruling,
“I
counsel. You
stating, made
course,
by
Of
when reminded Karsh that
your
lawyers
record.” Id. Moran’s
made
Co.,
Edmonson v. Leesville Concrete
and the three
attempted no further strikes
2077,
then works
permeated
being
so
with race. That
class Business Law.
case
He also teaches
*12
said,
have
person
perhaps
parties
that
a
both
should
such
tends
my
It’s
belief
been
to
more
opinions
permitted
which I
use
liberalized
stronger
prefer
to have
challenges
“cause”
juries
accompanied
that I select in
bases for
among
not
by
chal
“peremptory”
the elimination of
teaching profession.
school
altogether.
lenges
See Hon. Theodore
apparently frequents
a tav-
Juror No.
Petrini,
&
J.
Bat
Christopher
McMillian
I also
He
place
ern
where
live.
near
Kentucky:
son
A
Unfulfilled,
Promise
karaoke,
I
to
objected
happen
to
which
361,
(1989-90);
58 UMKC L.Rev.
enjoy,
points
I didn’t like his
of
and so
Cromedy,
A.2d
State v.
158 N.J.
those matters
con-
view where
were
(1999) (“[I]n
‘in
prosecution
a
thought
I also
that Juror No.
cerned.
by
a patent
which race
definition is
factor
somewhat, although refreshing-
a
had
[,
must
taken into
to
race]
be
account
of a flippant
but
somewhat
ly flippant
trial.’”) (alteration
fail'
origi
assure a
in
humor.
of
sense
nal)
Harris,
(quoting State v.
156 N.J.
Giessing,
No. Miss
said that
(1998) (Handler, J.,
I
with the court
there is
the trial
discriminatory
court for
ani-
precedent
proposition
for the
that the chal- mus, even
prima
after the
facie case was
lenging
venireper-
of all African-American
gone, no such
emerged
animus
from the
by a
plaintiff
sons
Caucasian
is sufficient
by
reasons stated
Karsh. Under
rea-
evidence of racial motivation to establish a
evaluation,
credibility
sonable
justifica-
prima facie case of race discrimination.
tions advanced Karsh as to Mr. Greene
But,
sufficient,
a prima facie case is not
clearly
instance,
were
nonpretextual. For
alone,
standing
purposeful
to establish
ra- no
unchallenged
other
venirepersons of
*13
cial discrimination if nondiscriminatory,
any race who remеmbered the Bell inci-
nonpretextual
reasons for the
expressed
dent
problems with giving Mor-
by
plaintiff.
are advanced
the
At the same
Indeed,
an a fair trial.
the evidence tend-
time,
(and
the
proposed
defendants’
ulti-
direction,
ed to run in
is,
another
successful)
mately
challenges of the four
possibility
toward a
that Greene would
lower-numbered
venirepersons
Caucasian
giving
have trouble
Moran a fair trial.
In
were also
prima
sufficient to establish a
fact, the recitation of Greene’s own testi-
facie case of race discrimination. This is
mony about his concerns over
ability
his
to
so because it was obvious that the result
be fair to
anger
Moran because of his
over
intended was to maximize the number of
beating
negate,
Bell’s
tended to
not estab-
jury.
African-Americans
seated on the
lish, an invidious racial reason for the
Thus, contrary to the trial court’s initial
And,
challenge.
Greene
though the defen-
inclinations, the defendants likewise
had
so,
required
dants were not
to
they
do
did
duty
nondiscriminatory,
to advance
non-
any
offer
information to the contrary.
pretextual
reasons
for
proposed
sure,
To be
weakly
Greene was
rehabilitat-
strikes.
Dunne,
by
but,
ed
the defendants’ counsel
however,
importantly,
More
after exami-
fair, only barely
to be
so. As the Ninth
nation of
proposed
Karsh’s reasons for the
out,
pointed
Circuit has
rehabilitation is
strikes,
the district court obvi-
only sparse
ability
fairly
evidence of
ously recognized that the articulation con-
serve. “In determining whether a district
cerning Ms. Norman-Cook was sufficient.
court
in refusing
has abused its discretion
showing
The Norman-Cook
was based
bias,
remove
for actual
this court
upon
testimony concerning
her own
significant weight
juror’s
accords
to a
de-
Bell incident. The challenge
propеrly
was
impar-
finitive statement that he can serve
presented
sustained. Mr. Greene
almost
Nevertheless,
tially.
juror’s
‘the
assur-
exactly the same set of circumstances ex-
equal
ances that he is
to this task cannot
cept that he did not
at
work
an ICU or
”
dispositive
rights.’
the accused’s
disability.
have a relative with a
There
Gonzalez,
1109,
United States v.
F.3d
absolutely nothing
was
incredible about
(9th Cir.2000)
1112 n. 3
(quoting Murphy
testimony.
Karsh’s recitation of Greene’s
Florida,
794, 800,
2031,
v.
95 S.Ct.
It
straight
from the evidence before
(1975)) (citation omitted).
spective
who
this case” were enor
permeating
tensions
solely on the
group,
racial
defendant’s
hand, I
at
the other
mous. Ante
653. On
facially
are
irrele-
factors which
basis of
the court that the “sto
agree
likewise
with
of whether
question
vant
to the
ried,
suggests
lengthy” history of the case
juror
to serve as
person
qualified
is
in order.
ending
an
of some kind would be
case,
must
prosecution
particular
But,
consistently find
Ante at 649.
courts
plausible race-
articulate some
at least
juror
of even one
who
that the existence
fac-
believing those
neutral reason for
excluded
have been either seated or
should
person’s
affect
tors will somehow
requiring automatic
a structural defect
is
duties as a
ability
his or her
perform
States, 403 F.3d
reversal. Becht v. United
juror.
Cir.2005)
(8th
541,
(citing Neder v.
547
8,
States,
1,
527
119 S.Ct.
so,
Supreme
U.S.
said the
United
661
(2000)
trial);
];
Annigoni,
States v.
United
Mosely,
United States v.
(9th Cir.1996) (en banc)
1132,
93,
F.3d
Cir.),
denied,
cert.
(“
impairment
right
‘The denial or
U.S.
108 S.Ct.
banc), denied, cert. 479 U.S. (1986) (same);
S.Ct.
Carr 597 F.2d
Cir.1979) (impairment right per
emptory challenge is “reversible error
without a showing prejudice”). Other recognized
circuits have the automatic
reversal rule dicta. See United Cambara,
States v.
(1st Cir.1990) (“restricting a defendant’s
use of the lawful
number of
America,
UNITED STATES of
challenges is
if
reversible error
a chal
Appellee,
denied”)
lenge for
erroneously
cause is
[abrogated
grounds by
on other
United
Martinez-Salazar,
States
WESTON,
Appellant.
S.Ct.