UNITED STATES of America, Plaintiff-Appellee, v. Rafael GUERRERO, Defendant-Appellant, 595 F.3d 1059

Opinion by Judge TALLMAN; Dissent by Judge GOULD. TALLMAN, Circuit Judge: Defendant-Appellant Rafael Guerrero appeals his jury conviction for conspiracy to possess a listed chemical with intent to manufacture. After the jury was selected and sworn and jeopardy attached, Guerrero raised a Batson objection to the prosecutor’s use of peremptory challenges to strike two minority jurors. The district court held an abbreviated hearing, denied the challenge, and the trial proceeded.

Guerrero was convicted and now appeals, arguing that the district court’s failure to follow all three steps of the Batson analysis entitles him to a new trial. Because we agree with the district court that there was no colorable basis to raise a Batson challenge, we affirm. I Rafael Guerrero was one of six individuals indicted in June 2007 for conspiring to possess pseudoephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(

c) and 846. Guerrero and one of his co-defendants, Santos Mendoza, demanded a jury trial. Jury selection occurred on the morning of July 14, 2008. Prior to voir dire, each juror had completed the standardized district court Juror Qualification Questionnaire. Information regarding the venire members’ race/ethnicity was redacted from the copies of the Questionnaire provided to counsel.

The district court conducted the bulk of the questioning during voir dire, asking each of the thirty-one venire members basic questions about where they were from, where they worked, and whether the nature of the case led any prospective juror to doubt his or her ability to be impartial. After the district judge finished questioning the venire, the prosecuting and defense attorneys each had a few minutes to ask follow-up questions. At the close of voir dire, one juror was excused for cause and the parties exercised peremptory challenges.

The clerk identified the fourteen jurors who remained after the strikes were exercised and assembled them into the panel. Each attorney was asked if the panel “appear[ed] to be proper.” All three attorneys — the prosecutor, counsel for Mendoza, and counsel for Guerrero — agreed that it was and the jury was sworn. Immediately thereafter, counsel for Mendoza approached the bench and raised a Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 89, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The following exchange then took place. THE COURT: What’s the problem? MR.

SCOTT [counsel for Mendoza]: Because I want to request — I want to make a Batson challenge. Counsel for the government has removed — counsel for the government has removed Mr. E.S., Juror No. 10, as well as D.T., Juror No. 12, both of which [sic] are minorities, and what has resulted is that we have a very white jury. THE COURT: What about Miss D.T., Juror No. 12? Is she a minority? MR. SCOTT: She looked like she may have some native American or Hispanic background. Person of color.

THE COURT: I didn’t observe anything unusual of her, and I don’t think she’s the type of person that would be subject to Batson challenge. MR. ANDERSON [the prosecutor]: I don’t know how this particular one, Miss D.T., Juror No. 12, applies as far as a Batson challenge. THE COURT: I deny the Batson challenges. The court then took a lunch recess. After reviewing the juror questionnaires over lunch, the judge saw that Juror No. 12 identified herself as “Native Hawaiian/Pacific Islander” on her questionnaire. Following the recess, the district court revisited the Batson issue outside the presence of the jury.

THE COURT: Now, before we bring the jury in, Mr. Anderson, there was an issue raised as to a Batson challenge to one of the jurors, and apparently you challenged her. I think her name is Ms. D.T., Juror No. 12. MR. SCOTT: I made the Batson challenge, Your Honor. Mr. Anderson struck her as one of the perempts. THE COURT: Right. And I just thought you might want to make a record as to your justification for challenging her. I didn’t pick up on the fact that she was a minority and subject to a Batson, but I have heard — somebody did say that she may have looked like she was.

And then I looked at the questionnaire, and I see that there was a connection to Hawaii. She may have come from Hawaii or something. I’m not sure. But do you remember the reason? MR. ANDERSON: To be honest with you, I didn’t pick up on the minority aspect of it at all. I wasn’t looking at that at the time. THE COURT: What were you looking at? MR. ANDERSON: I was going back and forth with my case agent, and we made the decision, I recall, to challenge her. And MR. ANDERSON: It was because of the relation. I know she had relation [sic] in Hawaii that was in law enforcement.

She also had relation [sic], it was my understanding from the questionnaire, a nephew that had been prior convictions [sic] for assault and battery. Just because of that mix, I thought it appropriate that I would exercise a challenge. THE COURT: If there’s anything you want to say to supplement that later on, after you’ve had a chance — • MR. ANDERSON: Thank you. THE COURT: I think we’re ready to bring the jury in. The trial lasted two days. Neither the prosecutor nor counsel for Guerrero or Mendoza revisited the Batson challenge.

On the second day of trial, the jury found Guerrero and Mendoza guilty on the sole count of the indictment. Guerrero was sentenced to 204 months in prison to be followed by three years of supervised release. The district court entered judgment on February 3, 2009. Guerrero filed a timely notice of appeal on February 11, 2009. II A prosecutor may not challenge potential jurors solely on account of their race. Batson, 476 U.S. at 89, 106 S.Ct. 1712.

The problem here is that there is no evidence that race played any role in the decision to strike the prospective juror because neither the prosecutor nor the judge recognized her as a minority. We think it particularly significant that both sides accepted the panel as drawn, the oath was administered to empanel the jury, and only then was the issue belatedly raised by defense counsel after jeopardy attached. We hold that Guerrero failed to state a prima facie case of discrimination sufficient to invoke Batson.

A three-step burden shifting test is used to determine whether a potential juror was struck in violation of Batson. Green v. LaMarque, 532 F.3d 1028, 1029-30 (9th Cir.2008). First, “the defendant must make a prima facie showing the challenge was based on an impermissible basis, such as race.” Id. at 1029 (citing Batson, 476 U.S. at 96, 106 S.Ct. 1712). If the defendant fails to present sufficient evidence to establish a prima facie case, the challenge may be denied and the court need not continue to step two.

Id. at 1030. “Second, if the trial court finds the defendant has made a prima facie case of discrimination, the burden then shifts to the prosecution to offer a race-neutral reason for the challenge that relates to the case.” Id. (citing Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005)). “Third, if the prosecutor offers a race-neutral explanation, the trial court must decide whether the defendant has proved the prosecutor’s motive for the strike was purposeful racial discrimination.” Id. (citations omitted).

To state a prima facie case of discrimination at step one a defendant must establish three elements: that “(1) the prospective juror is a member of a cognizable racial group, (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motivated by race.” United States v. Collins, 551 F.3d 914, 919 (9th Cir.2009) (quoting Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir.2006)).

The government concedes that Juror No. 12 is a member of a cognizable racial group and that the prosecutor used a peremptory strike to remove her from the panel. Therefore, the only element of the prima facie case at issue is whether Guerrero raised an inference that the strike was motivated by race under the totality of the circumstances. We review for clear error a district court’s step one determination as to whether a defendant has stated a prima facie case of discrimination under Batson. Tolbert v. Page, 182 F.3d 677, 685 (9th Cir.1999) (en banc).

A finding is clearly erroneous if it is “(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in inferences that may be drawn from the facts in the record.’ ” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). Guerrero contends that the district court committed structural error when it invited the prosecutor to justify the strike of Juror No. 12, the traditional step two analysis, and subsequently failed to reach step three of the Batson analysis, as our case law requires.

See United States v. Alanis, 335 F.3d 965, 967-68 (9th Cir.2003) (holding that when a trial court has reached step two of the Batson analysis, it must continue on to step three). Guerrero is correct that the district court did not clearly explain its reasoning for denying his Batson challenge. However, the court did rule, when the issue was raised, that defense counsel had failed to state a prima facie case of discrimination as to Juror No. 12 because the court did not believe that Batson applied to that juror.

After lunch, out of what appears to be an abundance of caution, the district court asked the prosecutor why he had stricken Juror No. 12. We do not interpret this brief questioning as a reversal of the court’s previous ruling that the defendant failed to establish all three elements of the prima facie case at step one. Nor do we hold that a district court judge may complete step two of Batson without continuing to step three, in violation of Alanis, 335 F.3d at 967-68.

We limit our analysis to evaluating whether, under the totality of the circumstances, Guerrero presented enough evidence of discrimination to establish a prima facie case at step one. Here, it appears that the district court wanted to ensure that the prosecutor had a legitimate reason for striking Juror No. 12 before continuing with the trial. This further investigation into the totality of the circumstances surrounding the strike supports, rather than negates, the previous holding that Guerrero’s Batson challenge failed to raise an inference of discrimination at step one.

The conversation between the court and the attorneys makes clear that no one knew the race/ethnicity of Juror No. 12. The prosecutor did not recognize her as a minority at all. Counsel for Mendoza thought she might be a minority, but instead of Native Hawaiian/Pacific Islander he thought she was Native American or Latina. The record demonstrates that the court not only believed the prosecutor when he stated that he did not recognize Juror No. 12 as a minority, but the presiding judge also failed to recognize Juror No. 12 as a minority.

The court explicitly stated, “I didn’t pick up on the fact that she was a minority and subject to Bat-son.” The dissent argues that we have allowed the prosecutor’s claimed perception of Juror No. 12’s race/ethnicity to control our step one analysis. That is not the case. We here examine the district court’s analysis of the applicability of Batson under the three required elements of the prima facie case at step one. The totality of the circumstances supports the district judge’s conclusion that Guerrero failed to state a prima facie case of discrimination under Batson.

The district judge witnessed the prosecutor’s behavior during voir dire and jury selection and was in a far better position than we are to evaluate whether the defendant raised an inference of discrimination regarding the prosecutor’s strike of Juror No. 12. The totality of the circumstances here does not raise an inference that the prosecutor’s strike of Juror No. 12 had anything to do with race. The district court’s original ruling that Guerrero had failed to state a prima facie case at step one of Batson was, therefore, not illogical, implausible, or without support in the record.

See Hinkson, 585 F.3d at 1262. Ill Guerrero failed to make a prima facie case of discrimination. Because he did not meet step one of Batson there was no need for the district court to continue on to steps two and three. There was no structural error. The challenge was properly denied. AFFIRMED. . Counsel for Guerrero joined in the motion after lunch. The government does not challenge the timeliness of the motion. . Guerrero does not challenge the strike against Juror No. 10 on appeal. Thus, the analysis in this opinion is limited to Juror No. 12. .

The dissent contends that Batson applies when a person is a minority, not merely when they look like a minority and that in the modern world it can be difficult, if not impossible, to accurately identify the race/ethnicity of everyone we meet. We do not quarrel with that statement generally, but we note that Batson is predicated not on the potential juror’s actual race/ethnicity, but on the prosecutor's perception of that race/ethnicity as the reason for striking an otherwise qualified venire person.

This is true because Batson is seeking to cure government misconduct based on racial prejudice, not to simply guarantee an ethnically diverse juiy. See Batson, 476 U.S. at 85 n. 6, 106 S.Ct. 1712 ("[TJhough the Sixth Amendment guarantees that the petit jury will be selected from a pool of names representing a cross

section of the community, we have never held that the Sixth Amendment requires that petit juries actually chosen must mirror the community and reflect the various distinctive groups in. the population. Indeed, it would be impossible to apply a concept of proportional representation to the petit jury in view of the heterogeneous nature of our society.” (internal citations and quotation marks omitted)).