please the honorable court richard schonfeld appearing on behalf of the appellant joel was we would like to try to reserve three minutes for right the first issue i would like to address in my opinion is the most significant issue and that is the constitutional equal protection violation that occurred as a result of what's commonly referred to as a batson violation in the jury selection process in this case mr osme is african american his counsel noted and commented on the record that the panel only had four african american jurors on it the court then correctly noted that as long as the panel is selected at random from people in the community that there is no issue as far as how many african americans are on that panel and whether or not it pro rationally is consistent with the community mr stein defense counsel at the time then said i am going to challenge all of them reverse  jury selection then commenced and at the conclusion of the jury selection by the time he gave a reason for that he didn't give a reason for his initial position that he was going to challenge the only four african american jurors ultimately when they got to the peremptory challenge stage the government raised an issue to the court and said we need to approach we are concerned because mr stein struck the only two remaining african american jurors that made it to the peremptory challenge stage the prosecutor then said we want to make sure that he did it for a strategic reason strategic reason falls nowhere in the  at that point in time mr stein responded and said i'll give you the reason sympathy for the victim the victim is also african american neither the prosecutor nor the court at that point employed the actual analysis when matter of fact the defense lawyer said i'm not doing that i'm not i'm not raising bats and so the defense attorney never raised it as a batson issue and so stated right yes the defen know that the defendant and the like but but he's challenging that you're because they would be more sympathetic to the victim that that is exactly his reason but the reason that they would be more sympathetic to the victims in his opinion is based on race and when we look at the bats in case there can be no explanation as to why you challenge a juror if it's based on race when we start with bats and that case it was the prosecutor  a black no they can but it has to have a race neutral explanation it wasn't a race neutral explanation because of all that because the jurors would be sympathetic you know do the prosecution and that's exactly i'm going to quote from the bats in case this court has rejected the view that assumptions of partiality based on race provide a legitimate basis for disqualifying a person as an impartial juror and that's precisely what was that is that that comment was made you know in a black on black situation it doesn't matter well why not have and i'll explain batson starts with a prosecutor striking an african american juror with an african american defendant that's when the court says there's a three part test is the defendant part of that race that's the first part is the juror part of that race that's the second part that's and then says the burden shifts to the person who employed that challenge to provide a race neutral basis we then go to georgia versus mccollum in that case there is a white defendant who's accused of battering a black individual the white defendants lawyer strikes african american juror the issue comes up that you're striking the juror based on race the first question that the court had to tackle and the district court was reversed on this is how is a defendant held to the constitutional standard of protecting the jurors and the defendant from equal protection they're not a state actor that was the district courts finding supreme court in georgia versus mccollum reverses and said because this is such an important part of the judicial process selecting a jury that is impartial a jury of your peers you are acting as a state actor because you are up holding our justice system and when you discriminate against a juror based on race you are causing an equal protection violation for the and in this case an equal protection violation for the defendant and what happens i understand that there can be a batson violation with race of everybody being the same but what happens when he says i'm not making a bad some violations you have any case that says where the defense attorney basically says i'm not making about some violation claim that the district court still has some serious ponty obligation to jump in ninth circuit p o t v and cia and it was cited by the government and what that one says is when the court fails to properly exercise the batson analysis it is review de novo and what i'm saying how that applies here but see that's a different case than the one i'm talking about my case i'm talking about is where that's where the court doesn't do it right and that's what happened here but that's when the court doesn't do it right what happens when the defense attorney says i'm not making that challenge the government made the challenge here well when the government make it made a challenge in this case the government said we need to approach because counsel stein said he was going to reverse batson and strike all jurors and then he did in fact strike all african so the government wants to know is there a batson challenge because the government's trying to protect the record because if there is a best and challenge the district court better do it right so the that were struck by the government were african american they were not were not no no no they just didn't make it to the final panel so that court to start with that was just through a natural process maybe there were more jurors than necessary so the actual fourteen that got to the box there was only two and that's really not before us here we don't have that because isn't that the proper way to get to this no respectfully it's a more significant issue than that because the jurors were openly discriminated against it was brought to the court's attention the government was clearly aware of it you meet the first two prongs of the bats and that there's a crime a facia showing that although the defendant's lawyer wasn't the one raising it at the point in time that both the government and the court were aware that there had been no race neutral explanation given the court and the government failed to protect the sanctity of the justice process they failed to protect the two african american jurors who were openly discriminated against write a lawyer you never know what a lawyer has mind they may have some reason why they don't want to do it and to have the court and the attorney be able to cross examine the lawyer why he wants to do this seems to me a little bit of a push it's not especially in the criminal case it's not because if we look at the georgia versus mccollum and i'm going to get to these with klein versus advocates which is two thousand and fourteen from this court it is required the court and the government had to ask defense counsel do you have a race neutral reason for striking these jurors instead they said was their strategy you can't be racist in jury selection based on ratatouille and they just did not employ the third prong of the bats in inquiry and in fact his response supported the fact that he was violating the two jurors equal protection rights as well as mr osborne's because his response was clearly based on race and not race neutral so let me ask you this can you figure out from the record have who are those two jurors journal or six and eight and if we look at the sealed excerpt of records number five and that's what the court did in the smith kline versus abbott case the court looked to say well let's see if there was anything else in this record that would have justified a race neutral approach and the reason the court did that is they were trying to determine similar to one of the last cases whether it should be remained or reversal and smith kline what happened was the juror was openly gay he was a male and three times he referred to his partner as he and that case there were two drug manufacturing companies suing each other over price fixing of aids medication hiv medication at the during the juror specifically stated that he had friends with hiv and that he had used some of the products that were manufactured by the defendant pharmaceutical company they get a jury peremptory challenge stage he's the first juror stricken by the defendants plaintiffs raises a batson inquiry challenge and the court says that sexual orientation does not fall within the paper right about you things rejection what about these jurors what did they say nothing and that's the point if we look at the record here there was absolutely nothing to support these jurors being stricken based on sympathy for the victim other than their rac you say we should treat it as a case in which a bastin challenge was properly raised in the trial court yes and in fact to a certain extent address yeah right did and that's what was done here yes and that's why it's not waived and that's why it's not subject to the plain error standard because we have a record that absolutely establishes everything that i have sat there he was and so you're saying though that these people to come and get it we kind of understand that so there's only two he telegraphed that he's going to strike any african american juror but when it comes to his opportunity there's only two left on the panel and that's jurors number six and everybody else was gone not through peremptory challenge so yes you can identify those two jurors you will find absolutely nothing in the barge or process that would indicate that either one of those jurors would have sympathy for the victim but for their race and mr stein telegraphed before they even started the jury selection process he was going to strike all african americans that if he wanted to was the actual people who were harmed were they americans who africans tend to get juror number six and they were both african people in the case yet the name victim in the case was african american we have an african american defendant african american named victim and two african american jurors that were stricken and the explanation after the  good morning your honest man please the court nancy all sinned and caring for the government i do you think this is a plain air question in this case be that because there wasn't a proper batson challenge raised i do want to point out as a threshold matter there made that question no so the government made a threshold inquiry to say look there were some comments made they were a little confusing because on the one hand you said there are not enough african americans but then you kind of made a remark about striking some of them and then we were going to strike them but you did so what gives the government wanted to see if there was anything to worry about as judgments you noted it was just to protect the record if there was a problem and because defense counsel said he had a strategy reason the government didn't have a crim don't have anything to go on in part one because if his strategy is yeah it's my strategy i don't like black people i don't like people on this jury that's a strategy is issue but it's not a defense under the constitution is it right that's absolutely right your honor if he would have said those words we would have had about some problem so what we need to look at as who are these two jurors that he struck and the smith kline beecham case that was referenced earlier that's exactly what you do you go back and look at because this is an unusual circumstance where that if and it's challenging his own strikes there is no ninth circuit or supreme court case that deals with this any party has found and so even if there if this court today announced some sort of serious antti duty it couldn't be plain chinchilla case there's a fight now where this court suggested to the district court perhaps if there might be a race issue the court could install some procedures that might look at these things in camera before hand but there's no hard and fast rule about what the court has to do l for jurors prospective jurors who are of americans of african descent if i understand correctly from your adversary if that point the judge has a responsibility to pursue the honor that's the whole point of the bateson inquiry if there is just because you strike someone that happens to be a particular race that in and of itself can't be enough to trigger their inquiry there has to be something going on and so as answer to your hypothetical i want to use what happened here which are six and eight and you could do this in any case the judge goes through the panel asked some all the same questions you hear a little bit about their background here about what maybe their sympathies or their problems maybe and then you could say is there something that puts the district judge on notice let's look at six and eight here and talk about why there is nothing to worry about there's there's twelve jurors sitting there the four that are americans can decide one two three four the defense lawyer knocks them off your position isn't have to look and you know if there were four what if there are four one two three four and all that has happened was they were stricken and there is nothing from in the record that's for i think we need a comment from defense counsel on the lines of an inappropriate racial strike i or case on that no there so but harry other circumstances that because we don't usually have this first comment which is i want to strike them all correct i mean is that  is you know what's happening but then the judge explains how pamela is drawn right randomly and everybody's happy with the panel at the beginning and then they go into the peremptory strikes correct so is there anything in these two jurors responses that would justify saying i'm worried that they're going to tilt against my client yes right we know who they are because the court said he's doing this in order so if you go and you read him an order you get to number six he's a retired air force service member which would suggest sort of a law and order bent this person had four children he was his current hobby was working on family genealogy he had just moved his all their elderly father out from florida to live with him in nevada so he's taking care of a sympathetic elderly parent and think of the victims in this case the sasser as were the adult of the victim who took the money and so this guy is going to have sympathy toward those victims because here he is caring for his father and thinking can you imagine if people terrorize my father in this way and again he has four kids similar to the  family connection in this the victims here turning to number eight this woman was retired from the food and beverage industry she had moved to las vegas for family connections to be with her brother so again we have a potential issue she can have sympathy about th against the family members the victim who fled california her sister went with her so there's sort of a sibling issue and also the food invent beverage industry i think ties and because the victims in this case that lived in las vegas their food and beverage store was burnt down in this arson so the first one was actually burnt and the second one they attempted to drive by but they were able to access i think what you're suggesting is if the judge addressed this i mean you were he were concluded maybe that well defendant gave it up knowing what he was giving up though is that your position or or or or what is your position there's no plane or because there's no racial basis for striking the stars you can look at the record as a whole no other player as you know is so he's making he's making you will see the motion now for the first i want to build range so the only review that motion i mean you're going to the merits of the motion no no what standard review anderson says that that is that what you're saying and that is now what you're saying i mean we we assess his best and claim now for playing air but i'm asking you is is it possible that that hand but that's part of my problem is this i mean how you make a reverse supreme court that you can make a reverse error claim right right what seems to me in that situation you're always in the face of this murky a vent then the judge should emitted germination to go back and let the judge make that determination in the first place  your honor i think that would upset the person and the purpose of having the batson challenge the way it is in the first place and that goes to the prejudice prying into substantial rights right from bateson is that you can fix it right away before trial exactly and the verdict and before trial before the jury is impaneled because if you let a defendant lie in wait with some sort of potential batson challenge any time after the jury is impaneled the only potential remedy is a new trial so you've already wasted those trial resources by letting the jury be impaneled whether it's day one of trial or verdict or new trial motion or even on appeal any of those stages you've already wasted that first jury so that is why it's very important you have to raise it before when it's still when you can still fix it when there are still other jurors you can bring in when you can make this record so invited error or have any application yes because they were his strengths so then you're kind of also down another path of analysis and to that prejudiced point i think when we talked about juror six and eight there's no prejudice for the reasons i said and the fourth problem plainer even assuming in this court on the first three this court will only fix those areas if it's going to work some sort of notion i guess of just going to the store with that the purpose of the best and challenge is to protect the rights of the near and the jurors as well as the defendant right that's right and so you know who's was protecting the rights of the person that is is being discriminated against that's a party to the case we do have cases and mr as beside it one or two in his reply brief it's an equal protection issue for the jurors so the government's not disputing that in any way and that's fine but i think the problem here and here points as do we do this plane are a fork a chair and so on the issue here is the government inquiry to see if there was an issue defense counsel said there was not an issue and we had enough on the record to look at those two jurors and say absolutely this could be trial strategy look at the two people that he struck so this isn't so much a gotcha forfeiture moment in a strange procedural posture of someone challenging their own strikes under act appeal i agree with judge mchugh in your point about this is an effective assistance of counsel claim that can be raised later but i think of the court relies on the record here you don't have to feel so much that this might be a forfeiture issue as opposed to something nothing to go on you can't make strikes challenge your own strikes on appeal and then claim that there could have been no strategy based on those jurors and so i mean they're going to be a forfeit before for just a little different than waiver five i won't comment on the merits because of course that's something that happens much later but it could certainly be a strange question of why you would say there's not enough blacks on the jury and then i'm going to strike them so there were several comments made that are internally inconsistent and then he did make the strikes i think with trial strategy reason but that can certainly be raised later this case just isn't going away probably not your honor thank you thank  you limited time so i'll try to get the points that i want to address one mr stein never said that this wasn't a batson issue the government raised the objection while i would welcome this court saying that the court and the government have an obligation to protect the rights of the jurors and the defendant by sue a sponsor raising a batson claim and i think that should be the standard the court doesn't have to find that standard to grant this appeal because the prosecutor says and this is in the excerpts of records just for the record purposes your  honor earlier mr stein had brought up bats and ultimately all african american jurors were struck from the jury it was raised to the court's attention the court and the prosecutor then had an obligation to protect the equal rights of the jurors and the defendant and it didn't happen there is no harmful error analysis when it comes to bats and you can't say well just because the african american jurors were stricken the result of the trial would have been the same no court has employed that analysis and the smith  versus abbott case which is one of the most recent cases from this court talking about bats and makes it really clear they even broadened the application of the equal protection rights of jurors to include sexual orientation they didn't remain and they looked at the cold record and in that case the person who had used drugs manufactured by the defendant had friends with hiv the court said there is nothing in this record to establish that it was other than sexual orientation motivated and therefore falls within bats  in this case there is nothing in the record to suggest that the sympathy for the victims was other than that based on race the court and the government had an obligation and i submit it should be a didn't overrule what about the what about the government you know restitution life experiences which could make them sympathetic to the victim as to juror number five from race right as to juror number eight because she's in the food and beverage industry that makes her have sympathy for a victim whose father's popcorn store got burned down that's why don't you think that that race neutral reason no and that wasn't a reason given you're not a very sympathetic while i just disagree i find this two people two jurors who have a right to participate in the jury process were openly discriminated against in violation of their equal protection rights and nobody did anything to stop it and everybody was aware of it when the government did make a comment i think the government at least raised the issue it can't do much more than raise the issue he didn't also really hard enough to decide that the judge there's nothing before the judge the judge had to proceed yeah it seems to me the government raised it and once it was raised the court had an lawyer you know keep raising something for the judge you never try another case before the judge but it seems to me that even setting that aside the ultimate issue is is whether the judge has a responsibility here based upon this case to proceed further i agree that once it was raised as we have cited in the record whether the government wants to call that an objection or challenge or not the issue was raised and brought to the attention of the court and then the bats in the georgia versus mccollum at appropriately addressed in a twenty two fifty five then i would submit the issue is not raised because as i've been ruled on thank you thank you very unusual case too much of the facts thank you both for the argument this morning