Lead Opinion
Opinion by Judge GIBSON; Concurrence by Judge GRABER; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN.
Gwaine Lavon Collins was indicted, along with four other individuals, for six counts of conspiracy to possess with intent to distribute and to distribute methamphetamine, 21 U.S.C. §§ 846 and 841(a)(1), and possession of methamphetamine, 21 U.S.C. § 844. He was tried on the conspiracy count and on two counts of distribution: first, for distributing 919 grams of methamphetamine on August 10, 2004, and
We need not recount Collins’s participation in the two August methamphetamine transactions because Collins does not dispute his involvement in those sales. Rather, we set forth the facts alleged at trial that are necessary to understand Collins’s entrapment defense, which is largely drawn from Collins’s own testimony.
Collins and Kim befriended one another while incarcerated in the Metropolitan Detention Center in Los Angeles, California. While in prison, Kim and Collins discussed Kim helping Collins become involved with Kim’s import/export business of (non-narcotic) goods. According to Collins, when he was released he soon contacted Kim, and they proceeded together on several potential business ventures, none of which appears to have been executed. Unbeknownst to Collins, Kim was already preparing to work as a government informant as far back as their time in prison together.
The crux of Collins’s entrapment claim is that, according to Collins, in late June 2004, Kim became distraught because he needed a lot of money to pay off the escrow on his restaurant, which was subject to a lien. According to Collins, Kim asked him to find some drugs they could sell. Collins claimed Kim was agitated and intoxicated when he told him about the restaurant problem. Despite Kim’s predicament, Collins claimed that he initially refused because he had no desire to get back into the drug business. But, Collins testified, Kim repeatedly called him, with some new “drama,” and continued to ask him about selling drugs. Collins testified that he tried to convince Kim that they could make the money Kim needed through their other ventures and even offered to give Kim his share of the profits from a DVD import deal they had previously discussed. Kim, however, was unresponsive to any of Collins’s inquires regarding the other business. Finally, Collins relented and helped Kim procure methamphetamine in July, although Collins claimed that he received no money from that deal, but rather did it solely to help the distraught Kim. After the uncharged deal in July, Collins claimed that he initially refused to be involved further with drugs. Collins relented again and participated in the two August deals, which formed the basis for his convictions. He admitted that he intended to invest his own money in a pound of methamphetamine so he could sell it. Kim testified that Collins never said he did not want to do the drug deals, but that “he always wanted to do it.”
“[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Batson,
Collins objected when the prosecution struck Juror No. 9, the only remaining African-American member on the panel, and argued that she was struck on account of her race. The district court found that Collins failed to make a prima facie showing of discrimination and did not require the government to explain why it peremptorily removed Juror No. 9. We generally review a district court’s Batson determination for clear error because of the intrinsically factual nature of the claim. Tolbert v. Page,
When Collins objected to the government’s challenge of Juror No. 9, the district court offered the government the opportunity to respond but the government declined, stating, “I don’t believe sufficient showing has been made.” The district court proceeded to rule that no prima facie case had been made. “First [African-American panel member was] excused by defense. First time [the government] has
Based on the court’s brief statements, we conclude that it applied an improper standard by requiring Collins to demonstrate a pattern of strikes against a cognizable racial group before requiring the government to state a reason. Vasquez-Lopez,
The first two elements of a prima facie case do not appear to be in dispute; Juror No. 9 is a member of a cognizable racial group, and the prosecutor used a peremptory strike to remove her. Rather, the parties’ debate concerns whether the allegation gives “rise to an inference” of discrimination, which is a less burdensome standard of proof than the preponderance (“more likely than not”) standard. Johnson,
The government relies heavily upon Vasquez-Lopez,
Courts have discussed several situations in which a prima facie case of discrimination may exist. The Supreme Court has said that the existence of a pattern of striking minority panel members is a relevant consideration that may raise an inference of discrimination. Batson,
Despite a wealth of precedent in this area, this is a difficult case because none of the aforementioned considerations apply. Juror No. 9 was the only African-American panel member subject to a strike by the government:
Collins argues that the prosecutor retained white jurors who gave answers similar to those given by Juror No. 9. Comparative juror analysis, a tool for conducting meaningful appellate review of whether a prima facie case has been established, is useful in analyzing such a claim. See Boyd,
Juror No. 9 provided little information during voir dire. She lived in Compton, California, and was a medical records manager for USC Family Medicine. She did not state whether she was married or had children, but stated that no adult at home worked outside the house. Collins compares Juror No. 9’s answers to those of three other jurors who gave similar responses but were retained by the prosecutor: Juror No. 5, a health insurance claims examiner, who lived with her husband and 15 year-old son; Juror No. 6, a bookkeeper for a family-owned real estate business, who lived on the west side of Los Angeles and had prior civil jury experience; and Juror No. 10, a financial analyst whose husband worked in computer sales and who had an adult daughter living at home. Collins contends that none of these jurors, like Juror No. 9, reported any connections or negative experiences with law enforcement, illegal drugs, or the criminal justice system.
In response, the government argues that these jurors are not similarly situated to Juror No. 9 because they were either married with children (Juror No. 5 and Juror No. 6) or had prior civil jury experience (Juror No. 6).
Thus, based on our review of the record, we conclude that an inference of discrimination did exist in this case. Comparison of Juror No. 9’s characteristics with the characteristics of other similarly situated panel members who were allowed to serve reveals little distinction that could account for the prosecutor’s strike of Juror No. 9. In addition, the prosecutor did not pursue further questioning before striking the only remaining African-American panel member. See Esparza-Gonzalez,
Consequently, the district court erred by not advancing to step two of the Batson inquiry. We remand, with instructions that the court require the government to provide its reason for striking Juror No. 9. The district court should then determine, in the first instance, whether the strike was discriminatory.
II.
Collins next argues that the government failed to turn over an audiotape recording of a conversation between confidential informant Kim and Kim’s confederate Wen-ceslao Martinez, an individual not directly related to Collins’s case. The recording was finally disclosed, during post-trial proceedings. Collins contends that the recording establishes that informant Kim knew Oscar Torres, another drug dealer of Kim’s acquaintance, was looking to “get” Kim. Collins urges us to reverse his conviction because the suppression of the recording violated his right to due process under the Fourteenth Amendment. See Brady,
We review de novo an alleged Brady violation. United States v. Ross,
Collins gives three reasons why he believes the recording is favorable and material evidence. He contends that the recording (1) impeaches Kim by contradicting statements he made at trial, (2) similarly impeaches Agent Oz, and (3) is substantive proof that Kim had a motive to entrap Collins.
With regard to the impeachment of Kim and Agent Oz, the recording adds little value. Evidence relevant to the impeachment of a witness adverse to the defendant may be favorable and material when “the reliability of the witness may be determinative of the defendant’s guilt or innocence.” United States v. Bracy,
Collins argues that the district court disregarded the value of impeachment by contradiction because Kim testified that he had never heard that another drug dealer (Torres) was making threats against him. Collins argues that the recording would have been evidence that Kim was lying because the recording reveals that Martinez told Kim that Torres-was looking to “get him” and that he should stay away from Torres. However, Collins overstates the impeachment value of these statements. When asked about the phone conversation, Kim thrice said only that he did not remember learning about such a threat. Only after the fourth time, when asked by the district court, after some confusion, did Kim respond with a more definite “No, sir” to the question “Did anybody named Martinez ever call you up and talk to you about a threat on your life?” This exchange suggests that, even if Collins had the recording with which to impeach Kim, its impeachment value would have been little because on three occasions Kim said only that he did not remember a threat, not that one did not exist.
Moreover, the fact that the threat was admitted into evidence by way of Agent Oz, who had listened to the recording and
He didn’t perceive a threat on his life. If I was to go into more detail about the relationship between those people I think you would understand why he didn’t. ... The reason being ... [Martinez and Torres] were always in a feud trying to get [Kim’s] business because he was a good customer. He bought a lot of dope from both of them. When that conversation was made it was after James Kim was released from jail.
Her explanation is neither supported nor contradicted by the recording, and her explanation that she did not believe Kim took the threat seriously is not undermined by the tape. Consequently, we conclude that the recording has little value as impeachment evidence against either Kim or Oz. Certainly, it does not undermine our confidence in the verdict.
Finally, Collins contends the recording is material as proof that Kim actually knew about the threat and took it seriously. As we have explained, however, Agent Oz testified that a threat did exist. Kim admitted that he traded on his friendship with Collins to get Collins to find drugs for him on other occasions. Moreover, the existence of a threat was tangential to the question of whether Kim induced Collins to commit the crimes. In other words, Collins’s argument that the threat establishes a motive for Kim to entrap Collins— rather than setup more dangerous drug dealers threatening Kim — is attenuated at best. The audiotape recording, while relevant and favorable, is not material, and its suppression did not infringe Collins’s right to due process.
III.
Collins also argues that the suppression of the tape violated his Sixth Amendment right of confrontation because he was unable to use the suppressed recording to impeach Agent Oz and Kim. The primary purpose of the right of confrontation is “ ‘to secure for the opponent the opportunity of cross-examination.’ ” Davis v. Alaska,
Collins’s argument does not fit neatly within either claim because he is arguing, in effect, that suppression of material by the government, not the district court, violated his right to confront the witnesses against him in a meaningful manner. However, it is not clear that Collins’s contention is the law. See Pennsylvania v. Ritchie,
IV.
Finally, Collins argues that the district court erred in refusing to order the government to serve a subpoena upon informant Danny Yim, a resident of Hawaii. Yim was not involved in the two August transactions; rather, he was the buyer in an uncharged July methamphetamine deal, involving Collins and Kim. The government resisted disclosing Yim’s identity to Collins because of Yim’s status as a confidential informant and because the government was not pursuing charges based on the July transaction.
Collins, however, learned Yim’s identity independent of the government shortly before trial. Despite having learned Yim’s identity, Collins was unable to serve process upon Yim, as Yim avoided Collins’s investigators. The government, however, was still in contact with Yim, and Collins moved for the district court to order the government to produce Yim or to accept service on behalf of Yim. The district court was skeptical of Yim’s relevance because Collins was not charged with the July transaction. Collins made an in camera proffer of the relevance of Yim’s testimony. He expected that Yim would testify that it was Kim who actually handed the drugs from the July transaction to Yim, not Collins; that Kim smoked methamphetamine with Yim; that Kim kept $6,000 of unreported money from the transaction; and that Kim helped Yim complete the drug deal by encouraging him to cash money orders in order to pay for the drugs. Collins contended that this evidence would show how Kim was desperate to entrap Collins in order to satisfy his debt to the government as a cooperating witness. The district court subsequently denied Collins’s request, doubting its ability to order the government to serve a subpoena on behalf of the defense and remaining skeptical that Yim’s testimony was necessary to Collins’s entrapment defense.
In Ritchie, the Supreme Court said that “[o]ur cases establish, at a minimum, that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.”
Accordingly, and more specifically to the point in this case, we have said that, in some cases, the government has a duty to accept service of a subpoena for some confidential informants. United States v. Gonzalo Beltran,
The similarity among all of these circumstances is that the government (or the court) is actively restraining or impeding the defendant from using a witness at trial. By contrast, Collins knew Yim’s identity prior to trial; the government was not actively keeping Yim from testifying, either by preventing him from being served or by withholding his identity from the defense. Rather, Yim was resisting service of process. Collins argues that if the government had not resisted disclosing Yim’s identity, then he would have had more time in which to serve Yim. But, as Collins admits in his reply brief, he learned Yim’s identity before the district court had an opportunity to rule on the motion to compel disclosure. Consequently, we conclude that it was not the government’s fault that Yim did not testify and that there is no constitutional right that requires the government to accept service of subpoena for Yim. To hold in Collins’s favor would create a rule that the government must accept a subpoena on behalf of any previously confidential informant that the defendant has been unable to serve through no fault of the government. The district court did not err.
V.
The judgment of the district court is AFFIRMED in part and REVERSED and REMANDED in part for the district court to conduct proceedings consistent with our opinion.
Notes
. Collins does not raise a claim that the potential jurors were drawn from a nonrepre-
. In total, there were three African-Americans on the venire. The first was struck by the defense, the second was Juror No. 9, and the third, a potential alternate juror, was struck for cause by the district court because he said it was his personal belief that anyone who went to trial was guilty.
. As a threshold matter, we note that there is no requirement that jurors be identically situated in order for meaningful comparison to take place. See Miller-El,
. This is in stark contrast to the government’s other peremptory strikes, the reasons for which were readily apparent from the transcript.
. "Entrapment has two elements: (1) government inducement to commit the crime; and (2) the absence of predisposition to commit the crime. If the defendant is able to put entrapment in issue, the government bears the burden of negating the defense beyond a reasonable doubt.” Ross,
Concurrence Opinion
concurring:
I concur fully in the opinion. I write separately only to encourage prosecutors to state their reasons for peremptory strikes at the time of a Batson challenge.
As the opinion correctly holds, of course, if no prima facie case of discrimination has been made, a prosecutor is not required to give any explanation. The right to challenge a juror without cause is one that any litigant understandably wishes to guard. On the other hand, the burden of explaining the reasons for a challenge — in the alternative to arguing that no explanation is required — is minimal. Judicial economy would be well served. See, e.g., Paulino v. Harrison,
Concurrence Opinion
concurring in part and dissenting in part:
While I concur in Parts II, III, and TV of the court’s opinion, I cannot concur in Part I’s holding that there was a prima facie case of discrimination. Because I believe the panel majority applies the wrong standard of review and therefore reaches the wrong conclusion under Batson v. Kentucky,
I
Batson created a three-part burden shifting test which we must apply to ascertain if a juror was stricken for discriminatory reasons. See id. at 96-98,
I am not so persuaded. Clear error review is appropriate here. Collins’ attorney objected to the government’s peremptory challenge of the remaining African-American juror, Juror No. 9, in open court.
While the district court’s initial statement was perhaps inartfully worded, the court later clarified its language when responding to defendant’s motion for a new trial. The majority is correct to this extent: when rejecting Collins’ argument that he had established a prima facie Bat-son claim, the district court stated that it had “no reason to reverse the original ruling.” Maj. Op. at 919-20. But Judge Klausner — unlike the majority — did not stop there. The district court went on to say that “[tjhere is no indication ... that any of the facts or relevant circumstances have raised any inference that the challenge was racially motivated.” The point was reiterated: “There is nothing in this case that [suggests] any inference that the challenge was racially motivated.” Thus, regardless of what the statement at trial
II
The panel majority correctly notes that only the third element of a prima facie case of discrimination is at issue: namely, does “the totality of the circumstances raise[] an inference that the strike was motivated by race.” Boyd v. Newland,
I disagree. Considering the totality of circumstances, it is significant that Collins’ attorney struck the first African-American juror (Juror No. 2). Indeed, the prosecution had the opportunity to strike Juror No. 2 before Collins’ attorney did and declined to do so. While a pattern is not necessary for a finding of discrimination, the record nonetheless undermines any inference of discrimination. For similar reasons, it is relevant that Juror No. 9 was struck on the government’s third peremptory strike. Cf. United States v. Chinchilla,
Using comparative juror analysis, the panel majority and Collins claim that Juror No. 9 was situated similarly to Juror Nos. 5, 6, and 10.
Reasonable minds could differ as to the impact such disparities could have on a juror’s service. However, there is no doubt that as the government asserts, these are “race-neutral, non-trivial” distinctions which cut against Collins’ claims that similarly situated jurors were treated differently. Given the deferential standard under which we review such determinations, see Tolbert,
Ill
Because the majority employs the wrong standard of review and accordingly reaches what I believe to be an erroneous conclusion, I am unable to join the court’s decision to remand for further proceedings on the Batson claim. I respectfully dissent.
. Collins’ attorney had previously struck an African-American member of the venire. The district court, with the concurrence of both parties, also excused an African-American prospective alternate juror for cause.
. At oral argument and in his reply brief, Collins asserts that the district court's statement in response to the motion for a new trial should be considered a "post-hoc” justification, “entitled to little weight.” Collins cites United States v. Mannino,
. While the statement is true, of course, it is again worth noting that Juror No. 9 was not the only African-American member of the ve-nire in this case.
. As the panel majority states, comparative juror analysis is a tool by which a court seeks out inferences of discrimination through a side-by-side comparison of the stricken juror and other potential jurors who were allowed to serve. See Boyd,
.Collins also argues in his briefs that Juror No. 3 was similarly situated. However, unlike Juror No. 9, Juror No. 3 was dating a police officer and had previously served on a criminal jury.
. The panel majority and Collins argue that "prior jury experience” is not a sufficient basis upon which to distinguish Jurors No. 6 and No. 9 because the prosecutor accepted another juror (Juror No. 14) who, like Juror No. 9, had not previously served on a jury. At a minimum, the two are not similarly sitú-ated because Juror No. 14 indicated that he lived with people who worked outside the home, said he had a relative whose partner worked in law enforcement, and stated that he could identify certain tattoos which "indicate to [him] ... things that [potential witnesses] have done.”