good morning your honour's christy hughes from federal defenders on behalf of mr santos cardio this court and supreme court have stressed that for a bath and challenge it does not matter that the prosecutor might have had good reasons for the strike what matters is the real reason the prospective  stricken and yet here the district court denied mr sanchez quarter of bats and challenge at the first step based entirely on why i thought the prosecutor had struck mr pres but why isn't that within the spirit of circumstances when the judge when judge burns has conducted the war gear himself has been present for every second of which people been exposed to this to this juror and explains that had the government moved for a far cause circumstances which is a part of the overall test why doesn't this meet that test well because your honor even at a later stage even if judge barnes had made this is definite step three if it still would have been the wrong standard because judge burn this on what he thought the prosecutor's reasons for the strike were and that's never appropriate it's not even except three he didn't say she was nervous he said the main reason for the government's challenge is the way that she kind of came across an answer the questions that you are one sixteen he said i can well understand why someone who has to prove that this fellow is guilty would say you know what i don't want to take the risk that her strong feelings are going to bleed into the assessment here and you know understand the formality i understand the formality of the of the way in which you would like the district court to have proceeded here but when the district court feels that that that the answer is just obvious to everybody present why doesn't that satisfy the test well because this court in curry in the supreme court in johnson this court and paulino and surely the same exact thing happened the prosecutor made a strike the defense raised a challenge and in each of these cases the judge said great let me go through it while this juror had a fraud conviction this person is young and  i don't find a prima facie case and this court said and the supreme court said in johnson that's the wrong standard if you don't supply a reason to the prosecutor you certainly don't do it at step one but you don't ever supply a reason for the prosecutor so here judge byrne should have looked at the the circumstances that raise an inference of discrimination realize that's a very low standard for mr santos court era to meet we have argued he should have found an inference of discrimination and then move to step two step one this court and the supreme court again have said that burden it's up one is very low because it requires very little of the government to step to the government has to come for with only a frivolous or an utterly nonsensical reason to clear their burden and step two and then you are never going to keep saying that that judge byrn said that the government's reason was that she appeared nervous but that's not what is in the transcript but the court the current immediately upon the objection the card says ok the court finds no prime of a she case here of which are discriminatory reasons that the judge speculates about and then he says he doesn't see anything here about it being an invid jurors who hesitated when they were asked any questions the record doesn't reflect that defense counsel at a later break before the trial started said that there was one juror who was similarly has a tent but all of the parties had problems recalling which particular juror that was and so the record doesn't really reflect this has and see the other problem i have with this case is that all the cases seem to say ok proceed generally the district car did not follow what batson requires so let's send it back and have him ask the prosecutor what was his legitimate reason for striking the juror i don't i don't understand that at all come up with something i don't see that is a memory at all but that seems to be what the lies i agree your honor i mean at this point the prosecutor could say she was hesitant knowing that judge barnes is going to accept that as a reason because he already thinks that's a valid reason and then we sort of cleared step one  diverse jury pool to begin with the government struck a hispanic juror mr suttles critter was was hispanic and collins this court noted that when the jury pool is already non diverse and the government strikes even a single juror that that deserves closer scrutiny and the reason is someone in the position of mr collins where there was only one strike of an african american juror or mr sometimes court arrow really can never clear that burden at step one if we don't give these challenges closer scrutiny when there is not a diverse or seem to be quite a bit of controversy and the a lot of discussion between the district court and council over what the composition of the pool was and whether we ended up with a hispanic juror so what's the what's your sense what are the what aside defense counsel no she had a hispanic surname it appeared to be a mary dame name she appeared white and she had said during the year that she was married and no one no one really challenge that ok all right but we don't we don't we don't really know and we have as we know from immigration problems we often we often imputed characteristics so the fact that she was that her last name was ruiz might have suggested that she was hispanic or that she would have been sympathetic to hispanics having being being married to wife she because she was not herself no one really there's a dispute about mr pearl's race no one really had an answer everyone said he was nonwhite but no one really and when was he in that was he was he struck was impaneled was see he was struck struck by the government it's not clear from the record so misuse is the only evidence that the defense relies on to make its prime official case the fact that his presence hispanic in that it was a case of a wants to discriminate can easily use this was a non diverse jury pool to begin with the prosecutor also struck mr no fuente who was a member of another protected class and so all of the circumstances together give rise to an inference of discrimination because again it's just a very low burden for us to meet to progress to step to if judge burns didn't follow the correct procedure but the defense didn't make a crime a face a case regarding the discrimination  is there still a reversal i'm sorry if the judge if judge burns didn't follow the correct procedure but did or did not did not follow the crowd she journey and it doesn't appear to be a lot of dispute that he didn't allow the government to give its justification but the panel concludes that there was not a official case does that resolve the matter does that end the challenge no your honor it should still be remanded for deferred judge barnes to go through the proper procedure and then determine where that whether there's a prima facia case that that determination should be made by the district court in the first instance after following the proper procedure but what do you think that the that what you like the court to do is to reverse and send this back for the process the judge were bought described for an evidentiary hearing yes where we go back and we start step two and step three i would request remain to a different judge i know that we didn't raise that in our brief but i think given these facts and given that the prosecutor already knows the reason that judge barnes is going to accept remain on to a different judge on the property how could a different judge i mean this happens in haiti as cases all the time sometimes ten years later where all we're dealing with is a transfer have nervousness can wouldn't burn wouldn't the new district judge have an obligation to be deferential to judge burns assessment of the demeanor i think so your honor yes but that again would come up i think it step three because this court said in fan that those race neutral reasons don't come in at step one they come in at step three otherwise there's really no no meaning behind the low burden at step one if we just collapse the two steps into each other and the defendant has to raise an actual case of discrimination based on all the circumstances that's step one i still it's really him troubled by the practicality of the situation it seems quite futile that you know a challenge to this procedural thing to just do it whether it's judge burns or any other judge it's not likely to result in that juror being stricken or a new trial i mean if if if the jury were stricken with their then be a new trial and you'd have to empanel a new case and now we have to go here the government's reason well i mean what this court has done previously in collins and as far as it involves is go back for steps two and three i understand your court's frustration i the court's frustration and i share it it does seem futile that's the process this court has employed i do think though in other cases for instance in johnson the trial court gave a reason and when it came time for the prosecutor later the prosecutor said oh no that wasn't my reason my actual reason was x y and z and so i mean it may be that the prosecutor can't proffer race neutral reason for the strike i don't know because she was never given well she was given the option she never took the opportunity to give a race neutral reason for the strike which is also something that i think that's not really a proper consideration at step one because normally it comes in at step three but in our prima facie case because that did occur here the fact that the prosecutor couldn't proffer a frivolous or an utterly nonsensical reason i mean she could have said she was has a ten year honor and that i think would have probably cleared her bird in the fact that she didn't do that is also good morning my pizza cortical reflux for the united states i think that there is absolutely nothing wrong with the procedure that was used in this case the district court followed the proper that's an analysis and in that framework looked at step one of the the circumstances and the judge's observations about this juror and the hesitancy the emotion in her voice the distress in her answers are all part of is judged by be acknowledged part of the totality of the circumstances and in fact that's exactly the type of observations that when you have a case such as this one where you have the strength of a single juror and you have to compare that juror in a comparative journals as to other jurors the type of considerations that naturally have to be made in that analysis and even again it's for as the court did in collins for this court to look to novo at the record and decide whether mr stanton scored darrow has made a prima fascia case and the facts that the circumstances that were addressed below and court has said indeed in correct hernandez herrera this court has a similar situation we had a thirteen twenty six illegal reentry case we have the strike of a single juror who is hispanic and a defendant who is a spanish in those circumstances standing alone were insufficient to make the prima fascia case and the other circumstances the fact that the jury pool wasn't diverse the fact that the prosecutor didn't you know take take it upon herself to move to step two when the district court had already sort of finished at step one  insufficient to sort of meet that burden so do you have is there any basis in this record to decide which with the government would have said was it's the gentlemen reason for striking this juror no and there need not be this court has said that if the district court determines at step one that there that the defendant hasn't met his or her burden that the analysis and there are examination has to be a look at the record and determine if there is a these types of challenges to procedural challenges of step one that's exactly what the court has and that's what the court if united states forces collins which was a case on direct appeal unlike many of the other cases where it's where hey vs cases even united states versus collins the court review did novo the step one analysis determined that a prima fascia case had been made and remained it's that the district court could move on to steps two and three i think that where the direction of the cases is going however is there been more judges apparently in more cases where the judges judge is just step too because in the end now it's just of the prime of a shoe case he's bringing in the what the government would give as its you know legitimate reason and that i think with the supreme court said shouldn't be done that you need to follow this procedure certainly and i agree for example in johnson versus fans that's that's sort of what happened is that there was a statistical disparity you had three out of three black potential jurors who were struck and rather than say ok well at this point the burden has been met so let's move on to step two and talk about riis why the prosecutor might why the prosecutor did strike those jurors the court when and into its own analysis jerm by juror compare and deciding sort of what hypothetical reasons and the court said in johnson versus finn that these once they're sort of that statistical disparity which we do not have in this case at that point the existence of legitimate hypothetical race neutral reasons can't negate the existence of a prima fascia case once it's made but we simply don't have that here we don't have us just said to stick with asperity we don't have a pattern of strikes against hispanics jurors and indeed that's exactly what judge barnes noted in his very first initial analysis before he gave defense counsel i believe it was three opportunities to try to make the case he said the government has not challenge people reentry and the cure was a mexican national who had come to our country and gone through the lawful proceedings to become an immigrant so i think it's more than just hispanic surname i think it's actually mexican national coming to the u s and i think that brings it closer because in the sense that there's so similarly situated that anyway i did i just think it's brings it closer makes it a closer question and i understand and i agree that those those are relevant to the totality of the circumstances analysis but by that logic any time you have a thirteen twenty six case which we have many of them in th southern district you have a new immigrant with a spanish background from mexico on the jury and i guess is really a mexican national often more often these days probably from central america right i think we have a we have a legitimate to strike peremptory challenge someone who was an immigrant even if they weren't hispanic i i think i'm not sure the supreme court has addressed that question but i do think that what what defense be you know a way to do a comparative journal says i think if the prosecutor had said you know because this is a case dealing with illegal immigration if it had been for example a chinese immigrant on the jury i'm not sure that that would even trigger sort of a a problem to say because this person has experience with the immigration system that may and especially where you have a juror who's expressing feelings about the immigration system are or feelings about immigration in general that that certainly wouldn't give rise to an inference of discrimination first that would be in a question at step two and because all of the discussion at step one was focused on her hispanic background and not her immigrant status that that issue never came up and i don't understand