*1 argues that erroneously Corsello America, UNITED STATES complaint to file a third amended
motion Plaintiff-Appellee, delayed our was because of decision not explain why Corsello does Clausen. v. moved to amend five months after the he Moreover, decision issued. Clausen OCHOA-VASQUEZ, Fabio Julio, a.k.a. Clausen not articulate new standard did Pepe, Defendant-Appellant. a.k.a. required an extensive amendment to complaint; interpreted Corsello’s Clausen America, States existing standard that Corsello had Plaintiff-Appellee, failed to meet. The district did court also not err wheii allowing
it determined that Corsello to Bergonzoli, Juan Defendant, Nicholas complaint amend his fu- would been tile, proposed complaint because Corsello’s Ochoa-Vasquez, Fabio Interested still failed to meet standard of Rule Party-Appellant. 9(b). The of the deficiencies second complaint pro- amended remained 03-14400, Nos. 04-10718. posed complaint: allegations proposed complaint unlimited in were tem- United States of Appeals, Court scope poral geographic failed to Circuit. Eleventh specific plead instances fraudulent sub- addition, missions to Oct. government. proposed alleged complaint that “sales do ...
people spe- have access to the billing
cific information is submitted government,”
to the which evidenced that complaint
the revised still lacked sufficient court, of reliability.
indicia The district
therefore, did not abuse its discretion it
when denied motion to amend. Corsello’s
IV. CONCLUSION complaint
Because Corsello’s failed to fraud
plead particularity with and the dis-
trict court did not abuse its discretion
when it denied motion Corsello’s to file a complaint,
third amended the dismissal of complaint second
Corsello’s amended denial of his motion amend that
complaint are
AFFIRMED. *6 Schultz, Smachetri,
Anne R. Emily Bowen, Miami, FL, Dawn for U.S. Sutton, Stacey Fields, Kim P.A., Carlton Beach, FL, FL, West Palm for ACLU Amicus Curiae.
Lucy Dalglish, Committee, A. Reporters VA, Arlington, Reporters Committee Press, for Freedom of the Amicus Curiae. HULL, Before BARKETT and Circuit Judges, EDENFIELD*, District Judge.
EDENFIELD, Judge: District opinion This consolidates and decides . appeals Ochoa-Vasquez Fabio (“Ochoa”) in United States v. Ochoa-Vas quez, 03-14400, Case Number in which defendant, Ochoa is a criminal and United Bergonzoli, States v. Case Number 04- 10718,in which Ochoa is intervenor. Ochoa-Vasquez, appeals his convic tion drug trafficking and sentence for vio lations, denying two orders him access to *7 judicial records, proceedings and and the of a docketing system. use secret In Ber gonzoli appeals Ochoa the district court’s striking pro of his motion to unseal court records, ceedings and and its refusal to defendant disqualify Bergonzoli’s Nicolás counsel, Perez, Joaquin prior to that rul ing. I. BACKGROUND Strafer, Strafer,
G. Richard G. Richard P.A., Black, Black, a Roy high-ranking E. the 1980s Ochoa was Strebnick & Miami, FL, Kornspan, Appellants. of Medellin drug member cartel based * Edenfield, Georgia, sitting by designation. Honorable B. Avant United States Judge District for the Southern District of evidence, the However, on extensive ties. Based pur- Medellin, of Colombia.
out conspiracy pos- surren- to of leniency program, he Ochoa to a convicted suant early in the authorities to Colombian five kilo- dered to distribute intent sess with a in Colombian 1990s, years served six cocaine, of 21 in violation of or more grams Two released 1997. and was prison, 841(a)(1) conspira- §§ U.S.C. indicted States the United later years more kilograms or five cy import to narcotics post-1997 in a part for his Ochoa U.S., in violation of into the cocaine Alejandro involving trafficker operation §§ 952 and 963. U.S.C. Bernal. at trial evidence sought to Ochoa admit Drug Enforcement States The United the “Reha- called illegal scheme “Opera- about (DEA) targeted Bernal in Agency Millennium,” drug-trafficking Traffick- large Program a of Narcotics bilitation tion Co- jointly with conducted investigation (the Program was The “Program”).1 ers” in 1999- agencies law enforcement lombian informant Baruch in which DEA scheme ac- agents Millennium Operation to surren- drug traffickers Vega solicited tapes from audio surveillance quired by promising government der to U.S. revealing office Bogotá of Bernal’s wiretap The deals. arrange phony cooperation to opera- drug-trafficking coordination his join they could told were traffickers various other and the participation tions large sums mon- Program paying in- reveal Ochoa’s tapes defendants. surrendering drugs to U.S. authori- ey and au- Accordingly, Colombian volvement. The con- phony drug busts. through ties on a U.S. based Ochoa arrested thorities to be attributed drugs would then fiscated was ex- and he in October warrant recruits Program’s traffickers. The other country in 2001. this tradited they receive credit would were told sub- trial, presented At enabling them “cooperation,” for their including guilt, of Ochoa’s evidence stantial from U.S. plea bargains obtain favorable co-conspirators, testimony Ochoa’s It remains unclear whether prosecutors. They testi- Hector Londoño. Bernal carried promises were ever any of these conspiracy that Ochoa entered fied case out,2 in Ochoa’s prosecutors and the debt assuming narcotics-related Vega’s scheme any knowledge of disavow trafficker, drug to another owed Bernal Following prior earlier to Ochoa’sindictment. his Bergonzoli. Nicolás Colombia, cash- Ochoa incarceration arrest, awaiting extradi- After his while Bernal’s paid thus land-rich. He poor Colombia, was solicited tion from Ochoa in ex- with real estate Bergonzoli debt million cash join Program for $30 repay promise to change for Bernal’s meet- narcotics. Several and “confiscated” drug-traffick- future cash from with *8 Ochoa’s brother ings place took between investment, his secure ing operations. To Ber- Program participant alleged Jorge, other- Bernal and actively advised Ochoa attorney, Joaquin Bergonzoli’s and gonzoli, activi- trafficking facilitated Bernal’s wise name, ment, Program was Vega maintains that Spanish is a 1. This translation drug de to induce traf- "Programa simply Narcotrafi- a fabrication used de Resocialización cantes,” organizer, Ba- its allegedly coined He D.E. 1071 6. to surrender. fickers Vega. ruch "corruption pitch” awas explained that the drug traffickers useful lie because Colombian money launder- Vega later indicted for 2. bribery to law enforce- as solution viewed charges justice, but ing and obstruction problems. Id. ment According govern- to the were dismissed. encouraged A. Bergonzoli Perez. Ochoa to and on Appeal Trial in Ochoa- Issues Vasquez join Prograna spoke openly and of his staged drug in transactions participation - trial, Before Ochoa' moved to dismiss resulting leniency and the he received. indictment, suppress evidence from all during meetings claims that these Ochoa witnesses involved in the Program, and he retained Perez as counsel to assist him disqualify Perez from representing Ber- a deal with authorities. negotiating U.S. gonzoli, who Ochoa alleged was a potential However, ultimately join Ochoa refused to against witness him. He claimed viola- Program, February and in he process tions due in that Program Meanwhile, purportedly fired Perez. outrageous constituted government con- family secretly Ochoa’s had recorded the duct and prosecution because his was a meetings and tapes turned the over to the vindictive and retaliatory response to his Attorney’s alleges U.S. Office. Ochoa blowing the whistle on the Program. tapes, plus pressure from U.S. Cus- The district court denied Ochoa’s mo toms, sparked an investigation internal tions, finding that “Defendant [had] failed Vega ultimately and resulted in the Pro- to demonstrate nexus Vega’s between gram’s termination. misconduct and the indictment prose and cution of Defendant.” It subsequently trial, Prior to sought his Ochoa to obtain granted government’s motion in li relating various documents to the partic- prevent mine to him from making refer ipation Bergonzoli and others in the Program ence to the at trial. judge The Program. Apparently, government granted also government’s motion for and the agreed co-defendants had to seal an “innominate3 partially sequestered and many progressed. as the cases documents jury” security because of concerns. Ochoa thus moved to unseal documents case, relevant to co-defendants in his own Ochoa now appeals his conviction motions, orders, including tran- hearing sentence, arguing and scripts, pleadings. He also moved as erroneously: court an intervenor to unseal documents (1) government allowed the to construc- separate criminal case Bergonzoli. tively amend the indictment or material- district judges The those cases eventual- ly vary proof its -at trial from the allega- ly majority unsealed the of the documents indictment; tions in the However, sought. Bergonzoli few (2) refused to disqualify Bergonzoli’s at- documents, including plea colloquies, sen- torney; memoranda, tencing downward-departure (3) pre- denied Ochoa’s post-trial motions, sentencing hearings, still re- without evidentiary hearing; motions subject main sealed are the of this appeal. excluded government evidence about judge anonymous and district de- the term innominate rather than "innominate,” Id.; "anony- negative scribed to avoid the connotation. see Bowman, previously mous.” We have noted that the also United States However, "anonymous” (11th Cir.2002). word every connote a "clandes- 1236 n. 1 *9 tine, forbidden, jury panel. appellate and obscure” other federal court to address the Carpa, v. "anonymous,” States 271 F.3d 963 n. 1 issue uses the word so for the (11th Cir.2001). Thus, only jurors' consistency, where sake of we do so here. District names, addresses, places and of work are courts continue to use the word "innomi- concealed, addressing jurors. the courts in this Circuit have used nate” when of a asserts the use He Program;4 records. participation witnesses’ sealed files improperly and secret docket (5) anonymous jury; de- empaneled alia, Bergon- in, Ochoa-Vasquez and inter dire voir request for additional nied his zoli, rights Amendment his First violated per- to refused jury questionnaires; and his, Fifth and under the rights” “trial and potential investigation mit an Sixth Amendments. misconduct; prosecu- permitted and racially discrim- jurors in tion to strike Appeal B. Intervention Ochoa’s manner; inatory Bergonzoli for im- (6) to dismiss his motion denied files, attempting to unseal Ochoa While venue; and proper fate of Ber- information about the sought (7) him for offenses tried and sentenced to drug Bernal’s debt gonzoli, who sold for which he was extra- than those other attempted to recruit and later Ochoa dited. argued that Program. into the He Ochoa of the alleges, Bergon- as a information concerning also Ochoa he needed member Program Amendment in the because participation of his First zoli’s public, violations trial potential was a witness.5 Bergonzoli judicial proceedings to right of access Second, of bias in order to raise inferences theory Londo- was that Bernal and 4. Ochoa’s him, ño, attempted whistle-blowing, against had he would have who testified from Ochoa’s Program, way (1) that the buy into the to their prove at trial the existence had to destroyed Ochoa’s Program (2) had been Program, and Londoño were that Bernal whistle-blowing, Bernal’s and that because it, attempting join each phony cooperation potential and Londoño's against Program severed Ochoa’s actions Ochoa, they deals were thus ruined were plea bargain. hopes a favorable This their for falsely testify against him. How- motivated significant portion would have consumed ever, evidence district court excluded trial, as Ochoa would have to call numer- trial, Program from and therefore about the presumably supply reams witnesses and ous such evidence to could not introduce spectacle evidence. That also of contested considering evi- , their bias. “In demonstrate jury's have diverted the attention would bias, judge must [proffered] to show dence disproved proved nor evidence that neither and, probative of bias whether it is determine prejudiced guilt. And Ochoa’s it would so, outweighs probative value its if whether prosecution by exposing the to evi- attending prejudice its admis- risks of (DEA) alleged "government” mis- dence of Diecidue, 603 F.2d sion.” United States 535, that was unrelated to Ochoa’s indict- conduct' (5th Cir.1979); see also F.R.Evid. government’s prosecution of his ment or the proof of bias is a matter 403. “The extent Hence, say we that the district case. cannot judge of the trial reserved to the discretion excluding this court abused its discretion in judgment will be disturbed on review and the prejudice attend- evidence because the risk of only is where an abuse of that discretion distracting ing its admission and the risk of Diecidue, 550. shown.” jury from the true issues in the case court did not abuse its discre- The district substantially probative value. exceeded its excluding having this evidence as little tion in serving simply probative to distract value and Though Bergonzoli arguably potential was a the case. jury from the true issues in participat- Ochoa’s trial because he witness in First, extensively permit did Ochoa to it three-way swap supra, ed in the land detailed Londoño, even cross-examine Bernal testify. government called him to never Vega. concerning their families' contacts with Moreover,' explain the rela- Ochoa does not Moreover, question them it allowed him to tionship Bergonzoli’s potential testi- between they concerning any potential would benefits mony Bergonzoli’s partic- on that issue and testifying receive from the sought ipation Program. Ochoa Thus, in the permitted to against him. Ochoa was in the the latter information discover the witnesses him and ex- confront D.E. at 4. many potential seáled files. pose sources of bias. *10 Bergonzoli ing He had case discovered “the entire case file should be in through a record the U.S. District Court unsealed” and “the court should disqualify Connecticut, for the District of where the attorney Perez from continuing repre- to filed, containing case was first post- sent Bergonzoli.” Bergonzoli The district assigned transfer case number by the judge concluded that Ochoa’s renewed mo- of Florida. it Southern.District After was tion violated Local Rule governing repo- transferred into the Southern District of sited and that it motions reasserted issues 3/23/99, every proceeding Florida on and previously argued in Ochoa’s own case. record under was filed seal and the case So, she struck the motion and its related name, number, case and docket sheet were papers, including a supplemental 1/29/04 also undisclosed. motion filed Ochoa. Ochoa now appeals order, arguing that: trial,
Prior to Ochoa moved the Ochoa- Vasquez judge district for access to the “Supplemental his Motion to 1/29/04 and records proceedings sealed Matters,” Unseal New Sealed which the Bergonzoli judge. district govern- The district cohrt denied as a related paper, ment that the responded Ochoa-Vasquez did not duplicate previously litigated judge district did not authority matters; have
unseal in assigned records a case to a (2) the order was issued in violation of judge. judge different The Ochoa’s denied his First Amendment and common-law rested, prosecution motion. After rights judicial proceedings access motion, Ochoa his renewed before records; Ochoa-Vasquez judge, district citing a (3) the government judicially was es- need to Bergon- whether to call determine topped motion; from opposing his zoli as a defense The witness. Ochoa- (4) the again district court erred in re- Vasquez judge, doubting district his au- fusing to disqualify Bergonzoli’s attor- thority to judge’s sealing overturn another ney, Perez, ruling before on Ochoa’s mo- order, Ochoa to instructed intervene tion. Bergonzoli case to obtain relief. Bergonzoli We consolidated this appeal Ochoa thus intervened in the Bergonzoli with appeal Ochoa’s his own case case, moving to unseal the entire case file. 0Ochoa-Vasquez) and now consider them judge But the presiding over that case was together, unavailable, so Ochoa’s motion ran- domly reassigned judge to the presiding II. FIRST AMENDMENT AND over own Ochoa’s case. in the Ber- Acting RELATED CLAIMS case, then, gonzoli he held an in camera Bergonzoli A. Denial Access Order in hearing and entered a un- order 5/23/03 name, number, sealing case case dock- Bergon As an intervenor in the sheet, et and most of the individual files.6 case, zoli argues appeal Ochoa did not that order. court erred it when struck and refused Instead, he filed a renewed motion on consider his renewed motion to docu unseal case, Bergonzoli again claim- ments.7 Bergonzoli judge 7/3/03 struck unsuccessfully sought, among 6. Ochoa government challenges jurisdiction other 7. The our things, appeal to hear Ochoa's from a continuance of his this order. criminal trial § grants jurisdiction ap- U.S.C. us investigate over exposed by further matters peals “from all final decisions district newly documents. unsealed We the United States.” courts also *11 1026 motion, Bergonzoli first Fla. Ochoa’s it violated S.D. motion because
this
7.1(F)8
requested
it
judge,
rehashed
presented
R.
and because
to substitute
Looal
.in the
upon
Ochoa-
already ruled
His sec
matters
case be unsealed.
that the entire
Vasquez
(49
case.
pages
long with 1000
pages
motion
ond
exhibits),
presiding
presented to
of
7.1(F)
mov-
requires parties
Rule
Local
7/3/03,
It
the same relief.
judge
sought
on
upon
part,
in whole or
ing for “relief
Rule
ambit of Local
of
thus fell within the
different state
any alleged
same or
motion,
7.1(F)
but
to a different
refused
previously
submitted
as
previously
facts”
setting
affidavit,
“affidavit
forth
to
an
as
judge,
clarifying
submit
did not file
Ochoa
circumstances sur-
facts and
the material
fails to
appeal, he
requires.
Rule
On
The
prior application.”
rounding each
appli
court’s
any
cite
error
to
on the movant
puts
Rule
the burden
Rule,
none.9
and
find
of that
cation
we
in or-
rulings
prior
illuminate
motions
Instead,
out that his
points
duplication,
inconsistent
prevent
to
der
Motion to Unseal
“Supplemental
judicial resources.
waste of
rulings, and
1/29/04
part, or has
in whole or in
been refused
appeals from non-final
jurisdiction to hear
' conditionally,
granted
and a subse-
or
within the "collateral
been
decisions that fall
application made to a
Supreme
quent
or
is
motion
doctrine established
der”
Judge
Judge Magistrate
for the
Loan
or
Cohen v.
Industrial
different
Court in
Beneficial
541,
1221,
part, upon the
L.Ed.
or in
Corp.,
U.S.
69 S.Ct.
93
in whole
337
same relief
facts,
(1949).
any alleged
order doc
of
Under the collateral
different state
same or
trine,
continuing duty
party
an
jurisdiction over
interlocu
of each
we have
it shall be the
"(1) conclusively
tory
seeking
present
determines
attorney
order if it
such relief to
(2)
impor
disputed question,
Judge
Judge Magistrate
resolves
to whom
to
or
completely separate from the merits
issue
an affi-
subsequent application
tant
is made
action,
(3)
effectively unreview
is
setting
facts and
forth the material
davit
judgment.”
appeal
ap-
a final
Sell
surrounding
prior
able on
from
each
circumstances
176,
States,
166,
(1)
123 S.Ct.
v. United
539 U.S.
plication, including:
when and to what
2174,
(2003) (citation and
application
lennium,
to seal
parties agreed
appear-
At his initial
hearing.
proceedings.
criminal
of the
status/bond
-hearing, both
ance
right
his First' Amendment
Asserting
judge
to seal
counsel asked
Sanchez’s
as a’mem-
proceedings
access to criminal
transcript.
magistrate
the order
asked the Ochoar-
public,
ber
ruling,
by making an oral
consented
judge
files
court to unseal
district
Vasquez
keep records
of court to
ordering the clerk
cases,
He also
including his own.11
seven
*13
in
sealed,
they
“that
be held
directing
and
docketing pro-
the use of secret
challenged
and not docketed.”13
the vault
in three of
by the district court
cedures
Bergonzoli,
Ochoa-Vasquez,
those cases:
Amendment
First
1. The Public’s
He
v.
and
States
Correa-Valdez.
Pro-
Right
Access to Criminal
Ochoa-Vasquez
of
in the
pointed to entries
'
ceedings
system under
that
an ad hoc
record
reveal
judicial pro-
court sealed
which
enjoy qual
a
public
and
press
The
records,
criminal
and entire
ceedings,
right of access
First Amendment
ified
scrutiny.12
public
from
cases
Newspa
proceedings.
trial
Globe
criminal
County
Court
per
Superior
Co. v.
magistrate judges
Ochoar-Vasquez,
In
of
2613,
596, 603, 102
Norfolk, 457
S.Ct.
U.S.
transcripts
proceedings
of
kept
and
orders
(1982); Chicago Tribune
L.Ed.2d 248
73
in at least
two
public
from the
docket
Inc., 263
co-defendant,
Bridgestone/Firestone,
v.
Or- Co.
to a
pertaining
instances
Cir.2001).14
(11th
(Sanchez): (1)
1304,
Open
F.3d
lando Sanchez-Cristancho
My feeling
you just
is that
Ochoa-Vasquez
Bergonzoli,
THE COURT:
and
11. Besides
you can.
I don’t
sought access to
in United
work that out however
records
Correa-Valdez,
it, you
No. 95-Cr-813-MID-
want to—
States v.
know what to do with
if
(S.D.Fla.),
defer,
v. Ra
verbally
United States
guess
DLEBROOKS
or-
I
I could
me
(S.D.Fla.),
mon, No. 99-71-Cr-HIGHSMITH
custody
retain
of
der that —that the clerk
Saldarriaga,
v.
No. 99-
United States
they
that
be filed
these documents and
Escaf de
(S.D.Fla.), United States v. Pra
Cr-433-SEITZ
[Magis-
Wednesday
either on
or however
do,
No.
99-27-Cr-DIMITROULEAS
it,
Judge
orders
and that
Vitunac
trate]
(S.D.Fla.),
Springette,
States v.
No.
and United
they
in the vault and not docket-
be held
(S.D.Ga.).
98-Cr-49-BOWEN
ed.
us,
would work for
That
[Government]:
Although
provides for
5.4
12.
S.D.Fla.Loc.R.
Judge.
upon
request
par-
sealing
of a
documents
works, your
That
Hon-
counsel]:
[Sanchez’s
ty,
procedures exist
which district
no
under
or.
public
an item from the
court can remove
filing.
publicly
or refuse to
docket
docket
So, guess they
just
...
I
can
THE COURT:
fact,
implies that sealed
In
the Local Rule
put it in the vault—
placed
on the
are to be
and remain
matters
fine, Judge.
That’s
[Government]:
docket, requiring
public
the Clerk’s office to
docketing.
THE COURT:—without
envelope the date
file’s]
on each [sealed
"note
procedure
at San-
A similar
was followed
entry
filing
number.” S.D. Fla.
and docket
hearing.
chez's status and bond
5.4(B)(1).
Local R.
right
extends not
criminal
14. This
colloquy
full
was as follows:
13.
itself,
integral parts
also to other
trial
but
Anything
...
else that I’ve
THE COURT:
proceedings
process
the trial
such as voir dire
out?
left
hearings. Press-Enterprise
preliminary
and
just—
Judge, there’s
counsel]:
[Sanchez's
California,
Superior
464 U.S.
Court
Co.
the matter of dock-
There’s
[Government]:
501,
819,
(1984)
trial” for centuries. Richmond
555, 569,
Virginia, 448 U.S.
pers v.
Constitutionality
Secret Docket-
(1980)
(plurality
what each had been the district court asked the venire whether (if exposed any) to and what effect that any they family had or friends law publicity might individually have had.21 It questioned enforcement. It then those jurors questioned knowledge who had responded who to determine the nature of the case to determine the nature of the the law-enforcement connection and what publicity they exposed, to which had been it ability effect would have on their to they if opinion, whether had formed an perform fairly and impartially. The dis- publicity ability would affect their to perform fairly impartially. The trict court struck for cause those court venire then excused those who stated that it suggested members whose answers ability perform impar- would affect their they might aby be affected law-enforce- tially. Ultimately, no one who had been questioned potential ment tie. It also exposed pretrial publicity served as a expose any bias based on juror or alternate. drug-related charges, nature of the reit- erating government’s allegations court district next asked the venire if did not previously of them had served as a constitute evidence juror in state or federal court. It individu- In response question Ochoa.22 to this first, cocaine, although wording tions as the varied with intent to distribute and the conspiracy import in some other cocaine. instances. anything Is there about the nature of allegations your those that would affect potential 21. The district court addressed the ability impartial juror to be a fair and in the you as follows: "I indicated to They say allegations case? deal with case, defendant, the name of the and the anybody any feelings cocaine. Does allegations against empha- the defendant. I way you one or the other would be again they allegations, size are not evidence *17 put your feelings thoughts unable to own or any anybody anything kind. Does know allegations your about those out of mind for coming about this case before into court? purposes basing your solely verdict on TV, Anything you might that have seen on you the evidence that hear in this court- radio, paper, read in the heard on the or from room and follow the Court’s instructions as any you other source? If have heard or seen to what the law is? case, anything please your about this raise think, people example, Some for that the hand.” relating possession importation laws to and harsh, of cocaine are too some think Specifically, the district court addressed they’re Regardless your person- lenient. the venire as follows: views, you al will be asked to set them aside you I mentioned to earlier what the alle- from consideration in this case and base case, gations again were in the and I un- your solely you verdict the on evidence hear they allegations derscore that are and not in this case and the Court’s instruction to any essentially you evidence of kind. But on the law. counts, allegations posses- are two one anybody feeling strongly Does a so conspiracy you sion with put intent to distribute or held that would not be able to them for an room, court asked members the venire fifth of one more than chal- Ochoa for the strike explanation explana- provided hands their raised responded that lenged. government The juror or a ultimately as served tion. None juror photographer, a potential was alternate. with empanel jurors to it wanted whereas problem, had a anyone if asking After background. The professional of a more prevent that would disability, or schedule explanation accepted court district juror, the district as a serving from them and did challenge government’s fourth family and em- on to elicit moved court ethnicity of the or the race not determine venire from each information ployment had been ex- jurors who other stricken each individually questioned It member. cused. employ- or her juror about his potential sixth government’s challenged employ- Ochoa status, spouse’s ment, marital challenge under Batson peremptory ment. argued government time the This well. state venire to It then asked the juror Hispanic, was potential that the able not be why they might other reason he was him that it had struck because on the evi based a verdict render fair to want It did not clerk. state court a in the court’s in accord with dence jury se- in the participates somebody who. gov law, anything the on structions jury. The serving on process lection to know. might want or defense ernment govern- accepted the again court district to opportunity took Several both the At all explanation. times ment’s feelings on their about information disclose main- district court and the problems. drug-related drugs or ties not determine they could tained juror expressed potential example, For one Hispanic jurors were potential whether because drug issue regarding a bias hearing at them and looking, simply from overdosed; revealed another friend had voices.23 their as a witness had served that her husband not call back strong did case; The court expressed district another drug in a de- jurors or otherwise another re excused drugs; previously and still about feelings the trial. ethnicity during their undercover son was an termine that his vealed supplement court did trial mem those venire After Each of agent. DEA ju- wherein questionnaires with record by the court. bers excused ethnic back- racial and their indicated rors selection, objected During jury jurors, re- The names ground. peremp- of its fourth use prosecution’s undisclosed. mained demon- claiming that had -challenge, it tory Hispanic excluding pattern strated Empanel an Decision The Court’s A. Kentucky. of Batson v. males violation Jury24 Anonymous explain each government offered relatively anonymity is Juror jurors had strike, since the other but prior use reported first Its concept. modern the court- and left been excused already *18 1863(b)(7), § a district 28 you U.S.C. 24. Under case? If of this purposes aside for any jury anonymous may empanel an court that, your hand. please raise do can’t re- justice so “the interests case in which anony- earlier, empanel an during quire.” voir dire Its decision discussed 23. As discretion. for abuse of jury is reviewed did not mous defense counsel government and 1507, Ross, 1519 33 F.3d self-reported States v. United any or the names of Cir.1994). (11th information. ethnic race 1034
inwas a 1977 involving trial fifteen defen- attempts to judicial interfere with the Harlem, (4) dants from a York process, that, New crime potential if convict- syndicate. Barnes, ed, United States v. 604 the defendant will lengthy suffer a (2d Cir.1979). then, F.2d 121 Since howev- incarceration and substantial monetary er, significant (5) numbers of federal penalties, and state and extensive publicity throughout courts country have uti- that could possibility enhance the that procedure lized the to protect jurors, pre- jurors’ names public would become and jury vent tampering limit and media influ- expose them to intimidation and harass- ence.25 ment. Applying factors, Id. these
This Court has we have held recognized that anonymous that an jury may anonymous justified use of an be jury ais “drastic even when measure” the defendant has implicates attempt the defendant’s ed to interfere with the right proceed constitutional' to a current presumption of ings, belongs if he group innocence to a “raising] that has a specter history of interfering judicial the defendant is a with dangerous person other from proceedings. whom the See protected must United States v. Bow be ...” man, Ross, (11th 302 Thus, F.3d F.3d at 1519. 1238-39 Cir. court 2002) (upholding should empanel anonymous use of anonymous jury an jury “in when defendant was carefully limited and the leader of a cir motor delineated ” cycle gang with history cumstances. Id. at 1519. “In violence and general, intimidation). witness the court should Similarly, not order Fifth empaneling anonymous (a) of an has although held allega without mere conclud Circuit tions or ing that inferences potential there is a strong reason risk are an to believe (b) the jury needs insufficient basis for an protection, anonymous taking jury, lesser precautions showing might “[a] reasonable adequate .be minimize prejudicial specific where effects on evidence linking the defendant exists and to organized ensure that defendant to his crime” rights fundamental and where are protected.” (citation justice obstruction of Id. at 1520 violence are the inter omitted). organization’s nal quotation marks “normal course of business.” Krout, States v. Ross, explained we that some combi- (5th Cir.1995). & n. 7 nation of the following factors support the empanelment anonymous of an jury: Here sufficient sup evidence (1) the defendant’s involvement in orga- ported all five of the Ross factors. Specif (2) crime,
nized partic- defendant’s ic evidence linked Ochoa to an organized ipation in a group with capacity criminal organization history awith of vio (3) jurors, harm past defendant’s lence and justice.26 obstruction of A DEA arguments 25. For for and the use agent's 26. A DEA affidavit also detailed the anonymous Hill, juries, see State v. 92 Ohio efforts of the Medellin cartel to subvert the St.3d 749 N.E.2d (upholding 1980s, judiciary Colombian in the and de- a local rule that anonymity makes history scribed Ochoa's of affiliation with that practice); standard King, NJ. organization, Nameless Jus- noting that the Medellin Cartel tice: The Case the Routine Anony- Use funded a 1985 assault on the Colombian Pal- Trials, mous Juries in Criminal 49 Vand.L.Rev. ace of Justice to kill members of the Colombi- (1996); Edelstein, Abramovsky A. and J.I. judiciary destroy files. Anonymous Exigent Juries: In information, rely however, Circumstances We do not on this Only, 13 St. Legal Comment. because it is not current and it is unclear John’s J. (1999). whether particular Ochoa still has ties to this
1035 to consider them anonymity allowed that ef- contemporary outlined affidavit agent’s and assured apprehension without traffickers, the case drug by Colombian forts the defendant that both Op- of extradition to response Colombia’s trial)). a fair receive defendants, Millennium eration to.obstruct kill sus- to establishing group a by however, justice case, we not In a recent more Moreover, Ochoa informants.27 give to pected court’s failure district that “the ed convicted, and if lengthy sentence a faced reversal.” warrant instruction does not the cartel Medellin to the connections prior the Bowman, his 1239. Because F.3d at 302 trial. high-profile a this to make request such promised did not in Bowman defendant supports these factors of he had instruction, any right combination he waived an special needed jury that the conclusion the it, only appeal on basis a he could to find no abuse Id.; therefore We States also United protection. error. see plain empan- (7th to court’s decision Mansoori, Cir. the F.3d 652 discretion 304 v. jury. 2002) willing anonymous an the district court’s (despite el re cautionary give to instruction ness Precautionary Measures B. to defendants’ failure anonymity, garding issue); arising that it to do- so waived concerns remind two distinct cite Courts (defendant (1) Vario, did jury: F.2d at 241 anonymous of an 943 the use from charge and jury meaningful object district the to court’s inhibit anonymity will that explicit in right waived therefore his challenges; peremptory exercise anonymity). juror on structions presump- the anonymity will diminish that appear- raising the by innocence tion adamantly argued Here Ochoa dangerous ais defendant that ance curative instruction. the use Vario, F.2d v. States person. a cura telling jury that He contended Cir.1991). (2d 236, 241 inevitably compound he would tive on the second focused anonymity The Ross be panel juror imposed by prejudice that, anonymity that noting jury, at when concern “it is inconceivable cause “rea- requires case, measure” that such a “drastic be fooled is this would least in Moreover, any prejudicial he minimize steps to D.E. 982 at sonable lies.” It 1519, 1521-22. a truthful F.3d at giving effects.” that claimed pre- his unduly prejudice to a defendant’s the threat that explanation noted would when at 10. “minimized Id. is of innocence. sumption presumption of innocence position plausible hedge his gives did trial court While “should hiding their court for reason district nonprejudicial claiming (even ultimately if (citing United agreeable Id. at fashion identities.” (2d ineffectual) he jury,” Thomas, instruction F.2d v. States during an instruction Cir.1985) anonymity request such failed (jurors were told attention) He jury charge. or in the final voir dire press unwanted prevent towas plain issue absent waived F.2d has thus Scarfo, 850 States and United none.28 finds error, Court Cir.1988) of which this (3d (jurors told were 1026-28 M.A.S.A., Snitches”) had American der to assuming it exists. None- still organization, suspected of people five already killed at least theless, evidence of current is sufficient there enforcement. law cooperating with U.S. reasonably could entities that connections jury. pose a threat to deemed be did not instruct district court 28. While anonymity procedure, explicitly on the venire alleged that this government's affidavit 27. The repeatedly and ("Mur- instruct it did Sapos A Americanos” group, "Muerte *20 1036
In addition implicating gently exercise both his per- for-eause and presumption innocence, defendant’s ju emptory challenges. Barnes, of See 604 F.2d anonymity ror at 142. deprives the defendant of may information that helpful be in making Here Ochoa “juror contends that appropriate challenges, especially peremp anonymity security and enhanced were tory challenges, during jury selection. material issues that [he] constitution Mansoori, 650; 304 F.3d at United States ally explore dire,” entitled to in voir DiDomenico, 294, (7th v. 78 F.3d 301-02 that the district court erred preventing Cir.1996); Edmond, United States v. 52 him from doing case, so. Yet he cites no 1080, (D.C.Cir.1995). F.3d 1090 Thus, none, and we found have supporting this
where anonymity warranted, is “the position. Nor have we found a case even defendant’s right fundamental to an unbi suggesting voir dire as a means combat jury ased sufficiently is guaranteed by the ing potential prejudice to a defendant’s court’s conduct of a voir dire that can presumption of innocence may that arise any uncover bias towards issues in the from anonymity. Rather, anonymity de case or to the defendant Ross, himself.” parties’ creases the knowledge ju court, 33 F.3d 1520. A at district then, rors, thus diminishing ability their to use must elicit sufficient information during peremptory Mansoori, challenges. 304 permit voir dire to a defendant to intelli- F.3d at 650. then, Voir dire is highlighted, length presumption about you innocence. character that willing rely would be During voir dire the district court reiterated upon and act it without hesitation in the duty perform have a impartially; tó important your most you affairs. If are they only should consider the evidence in convinced that a proved defendant has been conclusions; coming case in that the guilty beyond say a reasonable doubt so. If government bore the burden of proving you are say not convinced so. guilt; Ochoa’s and that Ochoa was not re- earlier, you As I said only consider must quired proof to submit of his innocence. Ad- evidence I have admitted in the ditionally, closing arguments after case. The term evidence includes the testi- again court jury: instructed the mony of witnesses and the exhibits admit- your duty It bewill to decide whether the ted in the anything record. Remember that proved beyond Government has a reason- lawyers say is not evidence in the case. able specific necessary doubt facts your It is own interpreta- recollection and find guilty defendant of the crimes tion of the evidence that controls. What charged in the indictment. You must make lawyers say binding upon is not you. your decision on the basis of the testi- you Also not anything should assume from I mony and presented other evidence here may have said that opinion I have an con- during you the trial and must not be influ- cerning any of the issues in this case. Ex- any way enced sympathy either cept my you instruction to on the law prejudice for or the defendant or you disregard anything should I the Government. said during the arriving your trial in at own The indictment charge or formal concerning decision .... facts against any defendant not is evidence of Other circuits have part upon relied in guilt. every Indeed presumed is defendant district court’s regarding instructions innocent[;] the law to be law does presumption of affirming innocence when require prove defendant to innocence See, anonymous-jury convictions in cases. or to produce evidence at all. The Vario, e.g., 241; Mansoori, F.2d 943 Government has the 304 proving burden 652; Edmond, F.3d at United guilty beyond States v. defendant F.3d reasonable doubt (D.C.Cir.1995); and if it fails to you do so must find United States v. Crockett, guilty (7th defendant not Cir.1992); ... F.2d beyond Tutino, Proof a reasonable doubt States proof (2d is therefore Cir.1989). such a convincing
1037 courts many (noting that supra at 457 of for this lack compensating of as a means anony- an using for of the reason 652, a means conceal real not as at knowledge, id. provide non-prej- ano- instead jury effect and potential the mous investigating jury); Eleventh ability presume to to the jurors’ explanation the nymity on udicial (Crimi- Jury Instructions innocent. Pattern defendant Circuit (2003) nal) anonym- that (explaining at 533 juror preju- where instances In some inquiries from discourage to ity “will serve courts re- suspected, reasonably dices are otherwise seeking information those specif- to address questions dire voir quire ... unwant- your privacy preserve Carolina, 409 v. South Ham ic See topics. telephone publicity, unsolicited ed 848, 46 L.Ed.2d 524, 527, 35 93 S.Ct. U.S. like”).29 letters, calls, questions, case); (racial (1973) rights civil bias jury to have the Thus, right no 735-36, had 719, Ochoa Illinois, 504 U.S. Morgan v. anonymi- about specifically questioned 492 2222, L.Ed.2d 119 112 S.Ct. ty procedure.30 v. Jordan penalty); views on death (jurors’ (11th 1265, 1281-82 763 F.2d Lippman, that the use also claims Cir.1985) (extensive publicity). pre-trial per his jury rendered anonymous opinions numerous have been While there he because challenges ineffective emptory sug- juries, none anonymous discussing addresses, names, jurors’ not know did simi- should be juror anonymity gests that that He claims employment. places of or dire specific voir with larly addressed by which information lacked sufficient he fact, ques- requiring such questions. strikes, resulting his exercise prudently to contrary to be that score would tions on agent on his of an IRS placement in the mini- accepted practice generally ju among skepticism (not There exists jury. downplay is to which mizing prejudice, lawyers pick to ability of about the rists accentuate) of the significance DiDomenico, F.3d at 78 jurors, Abramovsky, favorable See procedure. anonymity embarrassment); Boyd, v. States United Ross, See, 27 from & n. at 1520-21 e.g., 33 F.3d 29. ("rea 1083, (N.D.Ill.1992) F.Supp. an 1095 explanation that 792 (affirming district court's downplay of the to precautions used because were taken onymity procedure was sonable jury protect and to publicity using juror's high degree of numbers significance of media, “be by not names”). Scarfo, contact from unwanted 850 But see of their instead part of this apprehension on the any cause of to (suggesting it is better that at 1026-28 F.2d endangered been you would Court that provide them than frank with be your pressures if improper subject ano reason for their non-prejudicial with a disclosed”); States v. United been names had nymity). Cir.1995) (8th 1507, Darden, 1533 70 F.3d by prejudice was (concluding minimized that Ross, a mini- at suggests that The dissent 30. jurors were explanation trial court’s mum, questioned con- requires be expo protect them media anonymous to from at anonymity procedures. cerning the Infra Childress, sure); 58 F.3d States v. United However, did court in Ross 1041. (D.C.Cir.1995) (minimizing prejudice 702 anonymity served jurors that their tell proce anonymity significance downplaying defendant, alone let protect from them Thai, 801 dure); 29 v. F.3d States United ano- concerning whether the question them 1994) anonymity (2d (downplaying Cir. ability to would their nymity procedure affect practice a common suggesting that it is Ross, 33 presume defendant innocent. Paccione, courts); 1193 F.2d at federal Hence, Ross & nn. F.3d 1520-21 Thomas, (public F.2d at 1364 (publicity); questioned jurors be require that does not (common Tutino, prac at 1133 ity); anonymity response to regarding their tice); Ferguson, F.2d States 843 , dissent cite does procedure. Nor Cir.1985) anonymity (2d (explaining requiring this. case protect privacy save was used 301, even when granted access unfettered nation for each government’s race- during Moreover, voir dire.31 even if they strikes, specific combined with its failure can gainfully employ the they information to make reviewable findings on the three receive, “the purpose the voir dire is to test, prongs the Batson is reversible *22 disqualifications, ascertain not to in- afford error. analysis in depth permit
dividual
party
choose a
that fits into some mold
1. Standard
review
of
that he believes appropriate for his case.”
The Supreme
in
Court Batson
Schlinsky
States,
v.
735,
United
379 F.2d
established the
three-part
now-familiar
in
(1st Cir.1967).
738
And we
keep
must
quiry for evaluating whether a peremptory
mind that prosecutors are equally harmed
by
strike
motivated
racial or ethnic
by
anonymity in
respect,
this
they
as
79,
discrimination.
MR. ... RYAN: as to this last person government’s After strike, sixth you about, asked we note that again objected he Ochoa on the basis of a profession listed his as photographer. “pattern” of racial strikes in violation of We are seeking jurors Batson, who more [have] and the following exchange took professional of a background. place:
TEE Okay. COURT: Object MR. again BLACK: under Bat- son, MR. BLACK: ... All he same racial said he characteristic. was a photographer, his wife is ac- counting. they If have a challenge for MR. Honor, Your GREGORIE: Dick that other than racial or place of natural Gregorie for government. Mr. [origin], again pure would guesswork. be Black, as he ones, was with previous I So think it is improper. wrong. is This man Hispanic.33 is not Well, THE COURT: I think he has The reason for excusing him is he’s a given a reason for this latest challenge. County Dade clerk. And we did How do you know who these peo- other not want somebody part who’s
ple were? process selection jury. on the But *24 MR. I kept BLACK: track of them. Hispanic, he is not Your Honor. Mr. THE again Black is you speculating COURT: How do they and being know wrong. were Hispanic?
MR. BLACK: Since don’t we their MR. BLACK: I know don’t [know] how we names, can’t tell say we from the can he is not. surnames.
THE you’re COURT: So going on the THE COURT: How can you say he is? looking basis of at them? MR. BLACK: Looking at him. Let’s MR. BLACK: What else do we have? get his name and find out. I think we THE need something record, COURT: I on the don’t know. You but we object didn’t under challenge They make Batson. at the are using time and I every have way challenge in knowing no if a racially what that’s —racial characteristic, they were. improper. it is Ask if speaks him he Spanish. MR. BLACK: We bring can them back.
Why don’t we ask THE to have them back COURT: He has given a reason put on the what for his exercise. record their back- ground is? We made note from either accent or way they looked. MR. BLACK: One thing, other we
THE COURT: I Okay. will note the request would government —since objection on this one— it, has made an issue of we would ask MR. you RYAN: Can put on the record juror that the forms that are filled out juror 494, number who govern- by the five who were by excused ment accepted, is a male who appears to part be made of the record talk with an [accent] that would indicate because there will be a designation as to Hispanic background, govern- and the they whether Hispanic are or not. We ment accepted.32 would ask juror those forms be fact, 32. questionnaires showing Again, self- questionnaires shown pro- reported ethnicity, produced trial, trial, after the duced after juror referenced juror show that Hispanic. 494 is 124) (juror actually Hispanic. is I MR. BLACK: Then would ask the if Your Honor clerk and by the collected to ask them. part and make them Court to seal them wants help can make so that we of the record THE I don’t know that that’s COURT: that issue. record on my burden. Okay. THE COURT: I permis- BLACK: Then would ask MR. Honor, only re- RYAN: Your MR. sion to ask them. is I to make on the record sponse want you THE But I don’t think COURT: really they they aren’t whether are you have made what is an have question as we’re sit- made— serve the doesn’t allegation. You are the unsupported here, really know whether ting we don’t it, making one not me. someone were they are or aren’t unless us that. their hand and tell to raise MR. But Your Honor does not BLACK: part ... will make it THE we COURT: to ask questionnaire, allow us to have can government] and [the of the record I questions, go so have to with what they didn’t know because argue that I can. All I can do is see and listen. anyway. forms they didn’t have those THE What is it that —what COURT: juror slots were After the and alternate you I would like to power do have? filled, objection on the renewed his that, people look at and know. Batson issue: you exactly. I MR. BLACK: I will tell put ... I want to on the MR. BLACK: County over have lived in Dade for well man; Hispanic record that 51 is accents of years. I can tell males; Hispanic Hispanic people their voices. We listened *25 male; male. Hispanic and 124 was an could tell which were speaking, so we peremptory six So five out of their can and which weren’t. We Hispanic jury went to His- challenges as to the at their facial features are look what challenge panic peremptory males. One pretty color. And it is obvi- their skin .... did not they that judgments me that the ous to [Also], of the object makeup I to the made are correct. County Dade jury and move to strike. eight African Americans. We have way it Hispanic. But the percent is 58 judg- to make a pretty That’s obvious now, I think there be one.34 So is if the Court And I would ask ment on. all plan to exclude government’s the put on the record any question, has let’s very jury the has been Hispanics from they whether people and have the state successful, Bat- and we add that to our American, American, white are African challenge .... son Hispanic. you how I don’t know THE COURT: Well, that I’m not sure THE COURT: the of what arrive at the determination pass them that would by looking at jury of the is. makeup ethnic I mean. test. [.Daubert] By looking at them. MR. BLACK: my if I be shocked MR. BLACK: would you know that
THE I don’t COURT: so rights could be client’s Constitutional they where people at and tell can look easily disregarded. are from. ethnicity guesses, dur- ultimately pro- the defense counsel’s Actually, questionnaires ing objection, were inaccurate the Batson jury six His- contained duced show that Thus, well. jurors panics, and two alternates. four prosecution you. DEL team MR. Thank
MR.
TORO:
BLACK: Yes.
has not been able to
determine[]
you.
THE
Thank
COURT:
background
ethic
who is a
Thus,
court
found
photographer because he did not have
prima
could not establish a
facie case
accent,
spoke
kind of an
standard
discrimination because no one could ascer-
English,
appear clearly
didn’t
to be His-
anonymous
tain which
venire members
panic.
Hispanic.36
govern-
this trial were
If the
I
jurors
have noticed two of the
im-
ethnicity
ment could not determine the
jurors in
paneled as alternates or as
this
jurors
venire,
potential
then it
accents,
Spanish
they
case do have
improperly
could not
strike them on that
are both males.35
say
basis. We therefore cannot
that the
course,
government
Of
is not ex-
findings
district court’s
on the Batson is-
cluding
Hispanics
male
from this
clearly
sue are
erroneous.
position
Neither is the dissent
I’m glad
government
MR. BLACK:
here,
contrary
fact-find to the
see infra
agreed
you
could
Hispanic
tell the
(“I
am
gov-
also unconvinced
accent,
joined
so the
has
argument
ernment’s
that it
not
could
have
me.
violated Batson
it
because
did
know
MR. DEL
I
TORO:
said the
one—
... ethnicity
of the prospective
I
panel,
could tell the two on the
at the time it
peremptory
exercised its
opposite of the
challenge,
Batson
did not
strikes”). This is a circumstance where
spoke
discernible accents. He
the district court is in a
position
better
English.
standard American
than this Court to make the factual deter-
MR.
If I
interrupt?
RYAN:
could
This
James,
mination.
States
Cf.
morning
Mr. Black
asked
(7th Cir.1997) (district
F.3d
court
government,
stricken
that their was in a
position
appellate
better
than
preserved.
records be
I would ask that
judge
juror’s
court to
expression as a
jurors’
all the
preserved.
records be
I
peremptory challenge).
basis for a
think
supports
it
us.
*26
While the district court might have ben-
THE
All right.
COURT:
knowing
efitted from
the exact number of
MR.
I support
BLACK:
that.
jurors
Hispanic
government
that the
dis-
(whether
THE
I
say
COURT: Do need to
government
denied? missed
the
knew it
fact,
Hispanics
impaneled
In
six
part
were
as
prose-
forms]
of the record and [the
jurors.
alternates
argue
or
And one of the two
they
can
cutors]
that
didn’t know be-
jurors
prosecutors
the
had
they
identified as His-
any-
cause
didn’t have those forms
494)
panic (juror
actually Hispanic.
was not
way”/'!
you
don’t know how
arrive at the
makeup
determination of what the ethnic
jury
the
you
don't know that
suggests
36. The
can look at
dissent
that the district
is”/"I
court
people
they
from'V'you
findings
made
tell
are
no discernible
on the Batson
where
However,
unsupported allega-
made what is an
issues. See
at 1054 n. 14.
infra
power
you
is it
each of
district court's comments reflect
that —what
do
tion”/"What
that,
opinion
have?
its
I would like to have
that in this case one could not
look at
know”/"Well,
people
particular
ju-
by
determine
whether
stricken
I’m not sure that
Hispanic (e.g.,
looking
you
pass
rors were
at them
"How do
know
that would
the [Daubert]
test”).
they
Hispanic?”/'!
way
were
We
have no
think it
reasonable
construe
knowing
they
judge's
if that’s what
denying
were
can
that as the district
basis for
"/"How
you say
[Hispanic]
"pattern”
he is
challenge
[the
will make
Ochoa’s
under Batson.
?”/"we
(without
names)
their
so
not),
first-hand whether
nire members
it could observe
or
about
appropriate
could be made
that
record for Batson
judgments
visible
venire. Con-
juror’s ethnicity
during
jury
each
selection
could be made
wheth-
way
knowing
no
versely, we have
the record in this case re-
process. As
could tell whether
government
er
veals,
only
identifying
alternative to
only
Hispanics. The
jurors it struck were
self-reported
ethnicity
race or
of the
are the
available to this Court
evidence
is to establish it based on
venire members
venire
of the
district court’s observations
demeanor, accent, and other
appearance,
prosecutors’
and the
at-
in the record
thereby empha-
physical characteristics —
jurors
being
as
tempts
identify specific
selection,
jury
racial
sizing
distinctions
objected. And
Hispanic
those
after
jurisprudence
which our Batson
seeks to
judgments were incorrect.
post-objection
eliminate.37
attorney
correctly
did
de-
While Ochoa’s
jurors
trial that the five struck
termine at
a
8. Ochoa’s Failure to State
Prima
himself at trial misiden-
Hispanic,
were
he
Facie Case
jurors
Hispanic
when he
tified five other
jury
that the
contained
one
indicated
if
adopted
unsup-
Even we
the dissent’s
fact,
juror.
Hispanics
six
Hispanic
government
ported view
could
or alternates.
empaneled
were
ethnicity
jurors,
potential
determine the
to the district
We must
therefore defer
we would still reach the same result here
finding of fact that one could not
court’s
law,
because, as a matter of
Ochoa failed to
identify
particular
in this
Hispanic
prima
establish a
facie case under Batson.
by
and ac-
simply
appearance
case
their
regard,
In that
note that the district
we
cent.
challenge
court denied his
without deter-
there was a sufficient
mining whether
in an
practice
The better
“pattern”
of strikes
certainly
anonymous-jury case would
be to
But
create
inference
discrimination.
parties, upon request,
to the
disclose
contains the neces-
self-reported
ethnicity
appeal
race and
of the ve-
the record on
clearly
reading
disagree
A fair
37. We do not
with the dissent "that
claim was
erroneous.
peremptory challenges
constitute
selec-
transcript
and the district court’s com-
practice
permits
those to discrimi-
that,
tion
judge finding
ments reveals
discriminate,”
nate who are of a mind to
identity,
self-reported
without the names and
judgments
party
"subjective”
or
could make
reliably
juror’s
could not
determine
one
stereotyped guesses
the race
even
about
merely by looking
ethnicity
at this
race or
ethnicity
particular juror
having
of a
without
mis-identifications
venire. And the numerous
juror's self-reported
to the
race or eth-
access
finding.
parties
confirm that
seems to
*27
nicity,
party
that a
decided to make
and
who
Finally, although
practice would
the better
subjective judgments
guesses about
such
give
parties
self-report-
have been to
both
ethnicity
juror
race and
and then strike a
due
upon request
ethnicity
in order to
ed race or
juror's perceived
ethnicity
to that
race or
stereotyping by
any speculative
those
avoid
Dissent,
at
would violate Batson.
1055
infra
discriminate,
recognize
we
with a mind to
omitted).
(internal quotes and
n. 15
cite
Thus,
may say
court’s not
that some
that the district
agree
we
with the dissent that
also
potential
"[ljitigants
doing
actually
not need to know the
to reduce
do
so
has
self-re-
ethnicity
juror
ported race or
of a
to violate
impermissible discrimination because the
82,
(emphasis
Batson." Id. at
sary
thorough
1002
statistical information for a
243 F.3d at
analysis,
will
prima-facie-case
which we
in
(evaluating
pattern
light
1298
the strike
now undertake.38
composition
remaining po-
of the racial
of
Stewart,
jurors);
tential
1045
Second, we have considered whether
three black venire
second of
struck the
a
disparity
there is
substantial
between
Puentes,
members);
v.
50
States
United
jurors
particular
of
of a
percentage
the
Cir.1995)
(11th
(“Although
1578
F.3d
ethnicity
percent-
race or
struck and the
jurors
of African-American
presence
age
representation
of their
on the venire.
allegation of race-
of an
dispose
does not
Lowder,
example,
at 1537 where Applying these three factors here jurors, though he three black even totality served that the leads to the conclusion challenges “pat not reveal a enough peremptory had the circumstances does of discrimination.40 Here jurors”). tern” strike all thé black jurors, potential black caus- do not consti- strike 3 of the 39. factors discussed here potentially ing black member. relevant to have one tute an exhaustive list of determining a whether an inference district court found factors in 65 F.3d 925. The Rather, the heart of prima of discrimination arises. facie case of race discrimination argument be that the statis- seems to Ochoa's Id. This Court noted this Court affirmed. "pattern” of discrimi- against tical evidence creates particular number of strikes that "no nation, rele- and thus we focus on the factors automatically the existence of blacks indicates However, establishing pattern. case,” vant to such prima that a facie but it concluded cases, may other other factors be relevant. part prima case existed in because facie being example, may prosecuted "the for a ra- For the court consider defendants were those who were struck blacks. cially voir dire answers of motivated hate crime contrast, were compared the answers of those who there is no contention Id. In Lowder, at 637. struck.” relevant. subject matter in case is Ochoa's claims, subject matter of the some Batson Here, govern- court did ask the racially or ethni- be relevant if it is case Stewart, explanations the five struck of two of example, ment for cally For sensitive. however, requires, precedent challenges jurors. Our peremptory defense used its *29 (54%) (No. 399),43 Hispanic venire members identified them- it used its first strike (No. 051). Hispanic. government juror selves as The used against Hispanic The (56%) peremptory five of its nine strikes government accepted then another His- against jurors.41 (No. 232) Ochoa used sev- Hispanic panic jury, who served on the peremptory his thirteen (No. en of strikes striking Hispanic before a second (54%) jurors. against Hispanic Six of the 221). accepted Hispanic It then a third (35%) jurors or alternates were seventeen subsequently by who was struck the de- Hispanic.42 (No. 146). government fense then The against used its third and fourth strikes govern- court allotted the The district (No. 379).44 Hispanic jurors Its for the selection of the strikes ment six fifth and sixth were strikes then used and three strikes for the jurors twelve (No. 009) against a non-Hispanic and a jurors, five alternate for selection of a total (No. 124), Hispanic juror respectively. Af- government The used five nine strikes. strikes, government ter the exhausted its against Hispanics in its six strikes se- jurors jury, lecting placed the first twelve and used seven more were on the (No. against Hispanics none of its three strikes including Hispanics two more 447 and 246). in alternate selection. The defense used against Hispanics five of its ten strikes Then, during the selection of alternates selecting jury panel and two of its government used each of its three against Hispanics selecting
three strikes
against
jurors,
non-Hispanic
strikes
while
jurors.
alternate
(No.
(1)
511)
accepting
Hispanic
one
who
defense;
subsequently
by
government’s
strikes oc
struck
(No. 420)
accepting
Hispanic
curred
this manner. After
one
whom the court
prima
question
that we
answer
facie
first
Juror 399 was later removed for cause.
43.
ruling
and affirm the district court’s
if no
prima facie case was established. See Low
largely
44. The dissent focuses
on the status of
der,
necessarily
appropriate way
to uncover
(7th Cir.2002),
635
the Seventh Circuit
juror anonymity
bias that arises from
it-
that a
rights
found
defendant’s
were ade-
cautionary
self. Both the
and
instruction
quately protected
though
even
the court
thorough
in
voir dire discussed
Ross
provided
explanation
jurors’
no
ano-
safeguard
must therefore be understood to
nymity, because the court
an
“conducted
presumption
both the
of innocence and the
...
extremely thorough voir dire
over the
right
impartial jury.
to an
days”3
course of three and one-half
this,
In a
like
emphasized
presumption
case
where
defendant
of innocence
instruction,2
cautionary
government’s
have
a
and the
in
proof
waived
burden of
important,
voir dire
its
at
exceptionally
becomes
instructions.
Id.
652. The court
primary
safeguarding
as it is the
specifically
means
noted
defendants
“[t]he
in
rights.
aspect
both of these
When
held
have identified no
in which the dis-
”
we
Bowman,
wanting
v.
trict
voir
....
United States
In
other cases where defendants have
to be neutral.
instruction,
cautionary
permit
failed to ask for a
district court did not
either defense
courts,
relief,
denying
empha-
lawyers
ques-
or the
to ask
while
trial
topic.
sized that voir dire
the lack tions on this
Nor would the
counteracted
in
anony-
topics
of an
court include these
its own voir
explanatory instruction
Vario,
I
jurors.
questions.
mous
States v.
dire
believe this violated both'
United
(D.E.982.)
argument
against Nonethe-
2. Ochoa’s adamant
cau-
would be ineffective.
less,
trial,
request
cautionary
tionary
instruc-
did not
but
he did not
instruction
occur
during
proceedings.
any point
trial
tion at
opposition
rather
in the context
his
to the
government's
anony-
empanel
motion to
case,
contrast,
jury,
pre-
dire
mous
when he contended that
In this
the entire voir
day.
cautionary
might
completed
less
measures
the court
take
in
than one
Ross,
1519-20;
F.3d at
process
and due
See
Amendment
Ochoa’s Sixth
(2d
Amuso,
1251,
though
Even
Constitution
v.
F.3d
rights.
“[t]he
States
Cir.1994) (“In
for voir
...
not dictate a catechism
does
whether the dis-
deciding
Illinois,
dire,”
504 U.S.
Morgan
sequestered
properly granted
trict court
729, 112
119 L.Ed.2d
S.Ct.
anonymous jury, we must balance the
(1992),
can
its discretion
a court
abuse
conducting
mean-
defendant’s interest
prospective
on
failing
question
maintaining
and in
ingful voir dire
example,
For
topics.
certain relevant
innocence,
jury
presumption
requires
topics
voir dire on
Constitution
from
remaining
member’s interest
free
the death
racial
attitudes toward
prejudice,
public
real or threatened violence and the
exposure
pre-trial publicity
penalty,
having
render a fair
interest
trial.
issues are relevant to the
when those
verdict.”).
In our
ad-
impartial
cases
Carolina,
Ham v.
409 U.S.
See
South
explic-
dressing pre-trial publicity, we have
*33
527,
848,
power you I do have? would like to spoke English. standard American that, look at people and know. MR. RYAN:13 If I could interrupt? you exactly. MR. I I BLACK: will tell morning This Mr. Black asked that County have lived Dade for well jurors by stricken the govern- years. I over 40 can tell the ac- ment, that preserved. their.records be cents their voices. We listened to I jurors’ would ask that all the records people speaking, so we could tell preserved. be I think it supports us. Hispanic which were and which wer- THE All right. COURT: en’t. We can look at what their facial MR. I support features are and their skin color. BLACK: that. pretty And it is obvious to me that the THE I say COURT: Do need to denied?
judgments they made are correct. MR. BLACK: Yes. Thank you. eight We have African Americans. THE Thank you. COURT: pretty That’s obvious to a judg- make ment I on. And would ask if the (D.E.1468, 86-88.) any Court question, put has let’s on trial, After the district court supple- the record and people have the state mented the record with the racial and American, they whether are African ethnic information from jury question- American, Hispanic. white naires. Rather than supporting gov- MR. DEL prosecution TORO:11 The information, ernment this available at the team has not been able to determined dire, time of voir confirmed that all five of the ethic background [sic] [sic] of the allegedly jurors Hispanic stricken [juror who is a photographer prosecution Hispanic. were in fact 379] because he did not have kind accent,
of an spoke English, standard Despite “great give deference” we appear clearly didn’t Hispanic. be finding court’s as to the exis I have noticed two of the im- case, prima tence of a Batson “[t]he facie paneled as alternates or as in application equal protection princi accents, Spanish this case do have *36 ples in enunciated Batson to the exclusion they are both males. particular of racial or group] [a ethnic government Of course the is not ex- jury from a is an of issue constitutional law cluding Hispanics jury. male from this subject that is to plenary review.” United The mere fact that manages Allen-Brown, someone 1293, 1296 States v. 243 F.3d to it in anything (11th Cir.2001). make doesn’t have Indeed, Supreme as the challenge. do with the Batson us, Court has now twice reminded “defer MR. I’m glad government preclude BLACK: ence does not definition re — Dretke,
agreed you —, that Hispan- could tell the lief.” Miller-El v. U.S. accent, 2317, 2325, 196, ic so has 125 S.Ct. 162 L.Ed.2d (2005) joined Cockrell, me. (quoting Miller-El v. government'. 11. Counsel for the government. 13.Counsel for the Presumably juror 12. evi- step by producing Batson’s first 322, 340, 154 L.Ed.2d 123 S.Ct.
U.S.
omitted).14
judge
trial
permit
(2003))(internal
dence sufficient
marks
that discrimination
to draw an inference
violation,
party
a
prove
To
Batson
has occurred.
peremptory
of
strikes
challenging the use
added) (internal quo-
(emphasis
at 2417
Id.
facie case
prima
out a
“must make
omitted).
tation marks
totality of
relevant
showing that
to an inference of discrimi-
gives rise
facts
majority
opinion,
in the
As noted
Johnson,
at
125 S.Ct.
natory purpose.”
two
enumerated
Batson
Supreme Court
omitted).
(internal
marks
quotation
may sup-
examples of circumstances
recently emphasized
Court
Supreme
The
inference
discrim-
impermissible
of
port an
objecting party’s burden
estab-
(1)
“pat-
engages
if
a
party
ination:
a
case is one of
Batson
lishing prima
a
facie
members of
against venire
tern” of strikes
persuasion.
Id. at
and not of
production
race,
party
if a
makes
particular
a
clear that
n. 7.
It also made
2417-18 &
during voir
questions
statements or asks
requires
production
of
although the burden
challenges suggesting
exercising
or in
dire
sup-
produce
facts
objecting party
discriminatory pur-
a
that its
strikes
discrimination, that
porting an inference
Batson,
106 S.Ct.
476 U.S.
pose.
likely
most
one
not be the
inference need
1712;
Housing
Fair
Ctr. Inc.
Central Ala.
likely
that is more
or even one
possible,
Co.,
629, 636
Realty
236 F.3d
v. Lowder
correct,
only be
instead need
than not
but
Cir.2000).
(11th
where a Batson
In cases
among many:
inference
one conceivable
only
impermissible
challenge
alleges
against venire mem-
step
“pattern” of strikes
first
[Batson’s]
did not intend
We
race,
challenge rate
particular
would bers of
that a defendant
to be so onerous
minority per-
significantly greater than the
judge
the ba-
persuade the
have to
—on
strongly supports a
facts,
centage of the venire
of which are
of all the
some
sis
Ala.
Batson claim. Central
prima
to know
impossible for the defendant
facie
Ctr.,
(citing
at 637
Housing
Fair
236 F.3d
challenge
certainty
with
—that
Alvarado,
pur-
States v.
likely
product
than not the
more
(2d Cir.1991),
Instead,
in which the court held
a de- 255
poseful discrimination.
challenge
greater
rate 172%
than
that a
requirements
fendant satisfies
Hispanic,
five
correctly
give
he himself at trial misidentified
majority
notes that "we
14. finding
great
court’s
Hispanic jurors
deference to a district
other
when he indicated
prima
impermissible
facie case
whether
Hispanic juror.
contained
one
established,” and
discrimination has been
fact,
ju-
Hispanics
empaneled
six
were
Allen-Brown, 243 F.3d at
decision in
cites our
defer
rors or alternates. We must therefore
1296-97,
proposition that
district
"[a]
for the
finding
court’s
of fact that one
district
is
finding
why a
is excused
court's
as to
Hispanic jurors
par-
identify
in this
could not
such,
fact,
not be
and as
it will
an issue of
simply by
appearance and
ticular case
their
clearly
appeal unless it is
errone-
disturbed on
warranted,
accent.” This deference is not
by improp-
guided
appear
ous or
to have been
*37
however,
it mischaracterizes what
because
case, however,
principles
This
is
er
of law.”
determination,
fact-finding
a
the court did as
guided
one
district court was
in which the
specifically
court
when in fact the district
By refusing
"improper principles
to
of law.”
making
The
avoided
such a determination.
pertinent
permit
put the
facts
the defendant to
any finding by
of
record is devoid
record,
ethnicity
relating
juror's
on the
to the
identify Hispanic
not
court that one could
misapplied
the court
the law of Batson.
Instead,
together
jurors.
majority cobbles
Furthermore,
majority also notes that
as such a find-
comments which it construes
correctly
attorney
Ochoa's
did
deter-
"[w]hile
majority op.
jurors
ing.
n. 36.
were
See
mine at trial that the five struck
minority percentage
the estimated
of the
tion rests on
Central
moving party.
prima
Ctr.,
venire established a
case of
Ala. Fair Housing
defeat
per
had to
636,
court
at
the district
Clause,
F.3d
especially
Protection
Equal
the
mem
identify which venire
to
mit Ochoa
security risk in
no
can be
there
since
not.
which were
Hispanic and
were
racial in
bers
self-reported
to
access
granting
court
the district
exactly what
(if
that is
publ
the
Yet
not to
litigants
to
formation
Instead,
that Ochoa
it ruled
information,
to do.
refused
ic).17
a
basic
this
Without
case
a prima
make out
could not
pri
a
establish
almost
could
never
litigant
facie
very
produce the
he could not
because
discrimination
case of racial
ma facie
him
precluded
it had
strikes,
information
ethnic
jury
of
since
“pattern”
aon
based
doing, I
the
obtaining.
In so
believe
from
a sta
usually
upon
rest
showing will
equal protec
misapplied “the
court
com district
venire’s racial
of the
analysis
tistical
Batson,” Al
in
enunciated
principles
tion
Housing
Fair
Ala.
Central
See
position.
1296,
len-Brown,
and commit
F.3d at
And,
as
Ctr.,
the
at 636-37.
reversible error.
to iden
ted
reveals,
only alternative
record
ethnicity
or
race
self-reported
tifying the
addition,
court’s refusal
the district
In
is to establish it
members
the venire
jurors’ self-reported
or release
consult
voice,
demeanor,
and
appearance,
on
based
until after trial —infor
information
racial
thereby
physical
other
characteristics —
was “crucial
recognized
that it
mation
stereotyp
invidious
the same
perpetuating
1)—
(D.E.1552,
claim”
Batson
[Ochoa’s]
juris
Batson
that our
ing
in
selection
of whether
subjected the determination
See, e.g.,
seeks
eliminate.
prudence
case to
prima
a
had made out
facie
T.B.,
rel.
511 U.S.
v. Alabama ex.
J.E.B.
about
judicial speculation
impermissible
L.Ed.2d
127, 140,
114 S.Ct.
Johnson,
makeup.
racial
See
the venire’s
(“The
harmed
community is
it
(holding that
violat
125 S.Ct.
2418-19
perpetuation
in
participation
State’s
speculate
court to
Batson for
state
ed
the inevit
stereotypes and
group
invidious
reasons
plausible race-neutral
about
judicial sys
in our
loss of confidence
able
jurors
determining whether
striking
in
in
discrimination
that state-sanctioned
tem
case
prima
out a
defense had made
facie
engenders.”).
courtroom
Wheeler, 22
Cal.3d
People
under
(1978),
P.2d 748
Cal.Rptr.
short,
in order
evaluate
merits
uncertainty
inherent
noting that
light
“[t]he
claim
of Ochoa’s Batson
pur
inquiries
discriminatory
present
and restrictions
anonymity measures
in needless
against engaging
dire,
pose counsels
thereby comply with Cen-
on voir
when a direct
speculation
imperfect
man-
Housing Center’s
Alabama Fair
tral
by asking simple
[moving]
can be
answer
obtained
whether
to “examine
date
Moreover, the district court’s
question”).
‘relevant cir-
sufficient
party has shown
during
the racial data
refusal to release
inference
to raise an
cumstances’
any inquiry
needlessly deferred
pro- voir dire
[]
to exclude
party seeks
opposing
jurors by
alone. This
Indeed,
observation
keep
race
reason to
racial
I see no
cases,
anonymous jurors
easy
many
sealed at
such
about
is not an
task
information
challenge could have
"light-skinned
Batson
party
Ochoa's
all.
so-called
when
strikes
anonymity
easily
for the
resolved but
been
And
from the venire.
or
blacks”
"mulattos”
Moreover,
litigants know
assessment,
if
measures.
it
court
in its racial
if the
errs
ethnicity
self-reported
race
discriminatory inju-
adding
to the
risks
insult
dire,
appellate
voir
before
already
suf-
ry
the stricken
thorny ques-
with the
will not be faced
courts
fered.
litigants could discern the
whether the
tion of
*39
into
prosecution’s
the
motives to
la-
C.J.,
some
(Burger,
dissenting)
(noting that
date,
ter
when
passage
of time and “[the Batson] Court states as fact that ‘a
impermissible hindsight bias might cloud jury composed only of
persons
white
”
any proffered race-neutral reasons for the
solely
selected’
on the basis of
prose-
Dretke,
strikes. See
v.
Miller-El
125 S.Ct.
cutor’s statement
that
looking
“[in]
at
at 2326 n. 1
that
(noting
present-
evidence
them, yes; it’s an
jury”
all-white
and not-
ed at
hearing
a Batson
conducted two ing the possibility that the “proper inquiry
years after trial
subject
“was
to the usual
[under Batson] concerns not the actual
risks of imprecision and distortion from race of
jurors
who
excluded,
are
but
time”) (internal
the passage of
quotation rather
subjective
counsel’s
impressions as
marks
omitted);
and citation
id. at 2328 to what race they spring from”);
96,
id. at
to credit
(refusing
a
explana-
race-neutral
(“[T]he
I am also by unconvinced constitute a govern- jury practice selection that argument permits ment’s that it not those to could discriminate who are aof violated discriminate.”) (internal Batson mind because it did not know quotation the self-reported ethnicity omitted); marks prospec- Dretke, Miller-El v. tive at the time it S.Ct. exercised at 2341 (Breyer, J., (not- its concurring) peremptory strikes.19 Litigants ing do that not racial bias in the jury selection need to know the self-reported process race can automatic, or be unconscious, and ethnicity juror a unintentional); violate Batson. Edmonson v. Leesville Rather, the Supreme recognizes Co., Court Inc., Concrete 500 U.S.
that
can
litigants
and will
discriminate dur- S.Ct.
(1991) (“To
1859, L.Ed.2d 114 Black to be appear who (“[A] striking cusing persons all who policy opinion) under case regard to facie prima without language, would establish given speak trial or Wheeler”).20 of the circumstances particular jurors, responses the individual reasons, I believe foregoing For the pretext judge to be by the trial be found by an trial a new entitled to Ochoa is discrimination.”); People also see for racial with in accordance jury selected impartial 596, Cal.Rptr. 217 Motton, Cal.3d 39 v. Process and Due Protection Equal (1985) (addressing 176, 180 P.2d 704 of our Constitution. Clauses through the discrimination racial improper People v. strikes under peremptory use Cal.Rptr. Wheeler, 22 Cal.3d “it is (1978), stating P.2d true racial
unnecessary establish jurors; discrimi challenged
identity of appearances on based more often
nation is descent, a showing racial
than verified
State, 679 So.2d
(Fla.
juror under Melbourne
State,
can
884 So.2d
Stephens v.
20. Cf.
1996),
prosecutor
(Fla.
fact that the
(holding
when a crimi
Dist.Ct.App.2004)
juror’s race”
prospective
know
"did not
prima
out a
made
had
nal defendant
facie
itself,
constitute, by
a race-neutral
did not
prosecu
regarding the
of discrimination
case
law).
under Florida
the strike
explanation for
ostensibly
African-Ameri-
strike
tion’s
notes
dis-
ments,
supervisory pow-
jury repeatedly
and not based
our
"instruct[ed]
on
trict court
Jordan,
length
presumption
ers.
and at
about the
of inno-
See