UNITED STATES v. SANTOS CORDERO (2018)

MEMORANDUM **

Marcelo Joel Santos-Cordero (Santos) appeals from the district court's denial on remand of his challenge to the government's peremptory challenge to a Hispanic juror. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In particular, Santos asserts that even on remand the district court misunderstood the purpose of a Batson proceeding and was overly concerned with labeling the prosecutor as racist. He also argues that the prosecutors should be compelled to submit their jury selection notes to the district court for in camera review. We affirm.¹

1. Whether the district court properly applied the Batson framework is reviewed de novo and its findings are reviewed for clear error. United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir. 2015). Also, the opponent to the strike has the burden of proving a challenge was improper by a preponderance of the evidence. Shirley v. Yates, 807 F.3d 1090, 1107 (9th Cir. 2015).

In Santos's initial appeal, the Ninth Circuit determined that the district court had violated the Batson framework when, “before offering defense counsel an opportunity to explain its objection, it offered its own speculation as to reasons the prosecutor might have challenged the juror.” United States v. Santos-Cordero, 669 F. App'x 417, 418 (9th Cir. 2016).

On remand, the district court, although asserting that it had not speculated, allowed Santos's counsel to explain the Batson objection and had the prosecutor state her reasons for the challenge. The court then held that the explanation—that Ms. Perez's answers had demonstrated a lack of confidence in her ability to be impartial—was racially neutral, conformed to the court's observation of Ms. Perez, and did not reflect a systematic pattern of discrimination. Santos offered nothing to suggest that Ms. Perez's answers did not reflect a lack of confidence.

Instead, Santos argues that because the district court's conclusion “was the result of a faulty process,” it cannot stand. But this elevates form over substance. The district court ultimately completed the three steps of the Batson process and the record fully supports the determination that Santos has failed to show a discriminatory purpose for the challenge.

2. Although courts have reviewed jury selection notes when adjudicating Batson challenges, no court has suggested that the prosecutor is compelled to disclose those notes, even for in camera inspection. Here, the evidentiary hearing on remand was only two years after voir dire, the original prosecutor participated in the hearing and had a clear memory of voir dire, and there are no inconsistencies or questionable representations by the prosecutor that might suggest a discriminatory purpose. Thus, even if in some instance a prosecutor might be compelled to disclose jury selection notes, Santos has not shown the need for such an unprecedented holding in this case.

The district court's rejection of Santos’ Batson claim is AFFIRMED.

FOOTNOTES

1.   Because the parties are familiar with the factual and procedural history of the case, we need not recount it here.