United States v. Rafael Chinchilla and Carlos Alberto Escobar
874 F.2d 695
9th Cir.
1989
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*1 acquit 1382 and her of destruction of § government property under 1361. See § America, UNITED STATES of States,

Sansone United Plaintiff-Appellee, 1004, 1009, (1965) (“[T]he lesser offense must in- be Rafael CHINCHILLA and Carlos Alber- not, cluded within but on facts of the Escobar, Defendants-Appellants. completely encompassed be by the greater”). presented, Under the facts Nos. 5112. trespass lesser offense of was completely encompassed by greater United offense of de- States Court Appeals, struction of property. A ra- Ninth Circuit.

tional could not find that Komisaruk Argued and Submitted Dec. 1987. military entered the base to violate the law finding May 11, without also under Decided facts 1989. presented accomplished pur- that she that

pose. The district court did not err in

refusing give jury instruction on tres-

pass.

III. CONCLUSION produced uncontradict-

ed wilfully evidence that Komisaruk de-

stroyed computer components which were

owned government.

The record shows that Komisaruk orches-

trated carefully planned scheme to de-

stroy government property and to manu- publicize

facture and prior her defenses

her arrest. She knowledge admitted

federal laws prohibiting her conduct and

acknowledged designed pro- laws

tect military property federal applied to

her.

Although the in limine order was unam-

biguous, repeatedly Komisaruk violated the by volunteering

order she evidence knew during

was inadmissible her direct exami- Again,

nation. closing argument, in she

violated the court’s admonitions and

presented her theory that she acted in ac- higher

cordance with law.

The trial court did not abuse its discre- misapply

tion or granting the law in limine,

motion rejecting irrelevant re- evidence and denying

buttal the instruc-

tion on the lesser included offense of tres-

pass. judgment is AFFIRMED. *2 Aaron, D. Weissel-

Cynthia G. Charles Federal Defenders of berg, Attorney, Trial Dobro, Inc., Die- I. San Diego, Maxine San Cal., defendants-appellants. go, for Baldwin, Atty., San D. Asst. William Cal., Diego, plaintiff-appellee. LEAVY, and O’SCANNLAIN Before WILLIAMS,* Judges, and Circuit Judge. District WILLIAMS, District SPENCER Judge: con- appeal their

Chinchilla importation for crimes related viction princi- Their marijuana. possession discriminatory use of alleges pal attack jury selection. agree and reverse. We AND FACTS PROCEEDINGS 1, 1986, Fuentes Amoldo On November containing marijuana across drove van After States border. the Mexico-United border, found the authorities crossing the marijuana and arrested Fuentes. had agents Chinchilla told Fuentes from (1) him the van paid drive $150 (2) Angeles; intro- Los Tijuana, Mexico to Escobar, then drove him to who duced Ysidro, California, city to San Fuentes border; given to the adjacent needed call if he a number to Fuentes help. additional helped authorities then Fuentes incrim- into Chinchilla Escobar drawing inating tape-recorded conversations. arrest, Fuentes called Shortly after him had broken and told the van Chinchilla that he smelled San Ysidro and down in said he in the van. marijuana help bring the van Escobar would send he would now Chinchilla also said back. $4,000 $5,000 bring pay Fuentes van back.

* fornia, Williams, sitting by designation. States Spencer United The Honorable Judge of Cali- Northern District District later, Several hours Escobar arrived. To establish a claim of discrimina told Escobar Fuentes that Chinchilla had tory jurors, selection of a defendant must told him before he left trip on this second first establish a pur case of to the border that twenty pounds of mari- poseful discrimination. See Batson v. Ken juana were in the van. Soon after Esco- 79, 96, 106 tucky, 476 U.S. 1712, 1722, S.Ct. arrival, bar’s the authorities arrested him. *3 (1986). A defendant must arrested, After Escobar was Fuentes called show that he is a cognizable member of a again. Chinchilla He told Chinchilla that group racial prosecutor and that the has the van had again. broken down Chinchilla exercised peremptory challenges to remove agreed to meet Fuentes. When Chinchilla from the jury members of the defendant’s arrived, the authorities arrested him. Id.; race. Thompson, government The charged Chinchilla and 1254, 827 F.2d (9th Cir.1987). 1256-57 Escobar on relating various counts to the Then, the defendant must demonstrate that importation, possession, and distribution of these facts any other relevant circum marijuana. stances raise an inference prosecu that the tor used challenge the 24, February ju

On exclude such jury 1987 selection be- gan rors on joint Batson, for a account of trial of race. Chinchilla and 476 Esco- 96, government at bar. The 106 per- its S.Ct. at 1722.3 used first emptory challenge to only strike the His- Once the defendant makes pri panic on jury panel. the The ma facie showing, the also burden shifts to only used its the challenge to the alternate pool explanation articulate an Hispanic strike the sole in that group.1 challenging jurors. 97, such Id. at 106 1723; S.Ct. at Alcantar, United States v. When the objected, defendants prose- the 1175, (9th 832 F.2d Cir.1987). 1179 To responded cutor that he removed the His- finding avoid a of purposeful discrimina panic jury member based on where the tion, prosecutor the must articulate a neu juror lived and type of employment. explanation tral particular related prosecutor stated he challenged that Batson, case tried. 98, 476 U.S. at 106 Hispanic juror alternate because of his explanation S.Ct. at 1723. This cannot be a age appeared he how in court. The general assertion that denies a discrimina rejected objection, defense’s find- tory motive or good claims faith individu ing government’s explanation that selections; however, al prosecutor’s ex satisfactory. planation need not rise the level justify jury convicted Chinchilla and Esco- ing challenge exercise of a for cause. Id. bar on all counts. timely Both filed ap- at 106 S.Ct. at 1723-24. peals. The trial court then determines if the DISCUSSION defendant purposeful has established dis- 98, crimination. Id. at Chinchilla and 106 S.Ct. at 1723. Escobar contend that the Since government’s the district exercise court’s determination peremptory of lenges peremptory to remove the whether a only Hispanic juror challenge constitut- only Hispanic and the juror alternate ed de- discrimination turns on an prived process. them of due agree We credibility evaluation of prosecutor’s of the reverse.2 explanation, give we findings should those out, it actually 1. As turned deciding establishing prima alternate selected 3.While the de- sat in the case. may rely fendant on the fact that challenges jury practice constitute a selection issue, 2. Because we reverse on the selection permits those to discriminate who are aof we do not reach the other claims raised Batson, 96, mind to discriminate. 476 U.S. at involving and Escobar Chinchilla the instruc- 106 S.Ct. at 1722. evidence, importation, sufficiency tion on trial, competency to Escobar’s stand and the testimony hearsay. of certain exclusion as 698 21, and circumstances to raise at 98 n. sufficient facts

great deference. Id. 21; United States v. used the at 1724 n. accord an inference that (5th Cir.1987) Williams, 822 F.2d on account of jurors to exclude (court court’s find- appeals gives district Accordingly, race. we find that Chinchilla deference); great ings of no discrimination out a facie case of and Escobar made Cloyd, 819 F.2d 837- United States v. discrimination. Cir.1987) (court gives (8th appeals addition, although this court In great to district court’s determi- deference gives great judge’s to the district deference prima facie case discrimina- nation that that Chinchilla and Escobar conclusion rebutted). had tion been purposeful exclusion failed to establish the Hispanics are Batson, Hispanic at jurors, see and, therefore, cogniza- of a are members n. this court 98 n. 106 S.Ct. at 1724 juror group. Both the and the ble racial *4 government's explanation finds that the in prosecutor by the juror alternate removed sufficiently this case was not “clear and important empha- to Hispanics. It is were 20, reasonably specific.” 98 n. 106 Id. at minority challenge of two size that the S.Ct. at 1723 n. 20. itself, not, in of create a jurors does and discrimina- prima facie case of explained prosecutor in this case magic There is no number of chal- tion. challenges purported that the bases for the lenged jurors shifts the burden to which age, type employment, of and resi- were expla- government provide a neutral the to dence. The stated that it re- Rather, the nation for its actions. combi- (La jected to his residence juror Osuna due as a nation of circumstances taken whole (restaurant Mesa) employment and his must be considered. However, unchallenged manager). another Furthermore, juror in the lived La Mesa. (1) prosecutor In this case the prosecutor the alter- (2) claimed that he struck challenged Hispanic jurors4; used all age juror Vasquez nate of his and challenge because peremptory to strike the his first court, appearance yet jurors in did (3) the Hispanic exercised his only juror; and record, ages for the and this challenge pool not state their sole to the alternate to re prospec- jury in court has no other of the only Hispanic the other the evidence move age. offered alternate’s pool.5 Chinchilla and Escobar have tive struck, (although Hispanic jurors two blacks re The fact that all the were one black 4. denied, 1004, challenged significant though required jury), is not mained on cert. 481 U.S. 107 1625, (1987); prima example, facie case to exist. For in a S.Ct. prima Dennis, 1208, Thompson, (11th 827 F.2d at a facie v. 804 F.2d 1210-11 Cir. prosecutor excluded, used four 1986) (three case existed where the but two blacks blacks peremptory challenges denied, 1037, to exclude all four blacks jury), remained on cert. Alcantar, jury pool. Similarly, in the in 832 1973, (1987). S.Ct. L.Ed.2d 814 107 95 1177, prima F.2d at a facie case existed where prosecutor challenged Hispanics prosecutor all three the 5. It is true that a with non-discrimi- Battle, jury pool. natory only the But see United States v. motives who has struck the minori- 1084, (8th Cir.1987) (govern ty prospective juror 836 F.2d 1085-86 be in an awkward situ- will (83%) minority ment’s use of five of its six allowable ation when faced with a alternate that However, of the to strike five seven may he or she want to strike as well. (71%) jury panel blacks from the sufficient although striking the of one or two members of case). prima establish a facie group may always same not constitute the racial prima preferable is for the court However, facie it willingness the of a rights err on side of the defendant’s to a the minority jurors weighs against accept the find- impartial jury. might and It be advisable fair ings prima of a facie case. See United States v. pre-selection 847, (8th Cir.1987) for the court and counsel have Montgomery, 819 F.2d 851 cognizable (1) camera in which the (no discussion case where the blacks; group during (2) identified. Then a'jury racial is accepted which included two selection, of counsel could ask for a remaining peremptory course its could have used blacks; explain for an lenges remaining recess and in advance the reasons these and strike- blacks, (or peremptory challenge attempt intended of a member of till as did not to exclude could); group. judge pass many on the suffi- it accord United States could blacks as 1253, (5th Cir.1986) Ratcliff, ciency at that time. 806 F.2d 1256 of the reason age appearance grounds remain —the only two left with Thus, court is occupation juror and of the alternate challenges: poor bases acceptable of these lat- In its valuation Osuna. juror choice of for the alternate appearance govern- for the reasons three stated Al ter juror. potential for the employment found no challenges, the trial ment’s normally be criteria would these though hispanic exlusion systematic at evidence taken explanations “neutral” adequately govern- with and was satisfied jurors four value, that two fact face though it Summary explanation. up under ment’s hold not reasons do proffered be, finding should have been might such their suf against militates scrutiny judicial required by “great deference” Hall, accorded 35 Cal. See, People e.g., ficiency. 197 Cal. Batson. P.2d 3d expla (1983) (prosecutor’s 71, 75-76 Rptr. jurors because black he struck

nation that de in which state with their connection resided, ju white when previously fendant left defendant city as same

ror from inadequate because

unchallenged, was strongly is disparate treatment “[s]uch have bias, in itself could suggestive PAROLE COMMIS- STATES UNITED prosecu that the the conclusion warranted SION, Plaintiff-Appellee, *5 exercising peremptory tor was reasons”). impermissible VIVEROS, George E. appellants Thus, hold that we Defendant-Appellant. prima facie have established and that purposeful discrimination case No. 88-4019. adequate present an not did Appeals, Court for his use explanation Ninth Circuit. Hispanic jurors. strike all lenges to RE- are Therefore, convictions appellants’ 8, 1989. Feb. Argued and Submitted VERSED. 12, 1989. May Decided Judge, O’SCANNLAIN, Circuit

dissenting: of dis- case that a agree I agree that I out. made crimination n.98 Kentucky,

Batson 90 L.Ed.2d n. defer- “great give requires us to judge’s determina- trial

ence” to has established the defendant whether

tion selec- discrimination

tion context. however, reasons, I would very For those pur- ruling of no Thompson’s Judge affirm op- of his better because exclusion

poseful credibility gauge

portunity Although one explanation.

government’s challenge enunciated the bases place of residence —the an inadequate because

juror Osuna—was lo- same juror resided

unchallenged legitimate possible

cation, other three