15

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United States v. Barro



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.

At a stated term of the United States Court of Appeals for the

Second Circuit, held at the Thurgood Marshall United States Courthouse, 40

Foley Square, in the City of New York, on the 23 rd day of September, two

thousand sixteen.

PRESENT: RICHARD C. WESLEY,

DEBRA ANN LIVINGSTON,

GERARD E. LYNCH,

Circuit Judges.

___________________ __________________

UNITED STATES OF AMERICA,

Appellee

,

v. 15

‐ 2468

SHERMAN BARRO,

Defendant

‐ Appellant

.

___________________ __________________2 FOR APPELLANT: ALLEGRA GLASHAUSSER, Federal Defenders

of New York, Inc., New York, NY.

FOR APPELLEE: PATRICK T. HEIN, Assistant United States

Attorney (Jo Ann M. Navikas, Assistant United

States Attorney, on the brief ), for Robert L. Capers,

United States Attorney for the Eastern District of

New York, Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Garaufis, J. ; Pollack, J. ; Korman, J. ). 1

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court is

AFFIRMED

.

Defendant

‐ Appellant Sherman Barro appeals from a judgment entered on

July 22, 2015, in the United States District Court for the Eastern District of New

York (Korman, J. ), convicting him, after a jury trial, of importing cocaine into the

United States, in violation of 21 U.S.C. § 952(a), and of possessing cocaine with

the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We assume the

parties’ familiarity with the underlying facts, the procedural history, and the

issues presented for review.

1 Judge Garaufis presided over the Speedy Trial Act motion, Judge Pollack presided

over voir dire

, and Judge Korman presided over the trial and sentencing.3 “The determination of whether to dismiss an indictment with or without

prejudice is committed to the discretion of the district court.” United States v.

Bert

, 814 F.3d 70, 77 (2d Cir. 2016) (alterations and internal quotation marks

omitted). Factors considered in this determination are (1) the seriousness of the

offense, (2) the facts and circumstances of the case which led to the dismissal, (3)

the impact of a reprosecution on the administration of the Speedy Trial Act and

the administration of justice, and (4) prejudice to the defendant. 18 U.S.C.

§ 3162(a)(2). “Where the crime charged is serious, the sanction of dismissal with

prejudice should ordinarily be imposed only for serious delay.” Bert

, 814 F.3d at

79 (alterations and internal quotation marks omitted). The seriousness of the

delay, however, is “not a standalone factor,” but rather “a component of both the

‘facts and circumstances’ factor and the ‘prejudice’ factor.” Id. at 79–80 (footnote

omitted).

Barro argues that the District Court erred in dismissing the indictment

against him without prejudice for a violation of the Speedy Trial Act. Barro’s

challenge must fail. The District Court thoroughly addressed each of the factors

set forth in § 3162, as supplemented by Supreme Court and Second Circuit

precedent. The District Court concluded that the seriousness of the offense4 alleged against Barro was high, reprosecution would serve the interests of justice

and not unfairly prejudice the defendant, and that the appropriate remedy was

accordingly to dismiss the indictment without prejudice and allow the

government to re

‐ file. We perceive no error that would warrant disturbing the

District Court’s careful analysis. See id. at 79 (“We will not lightly disturb ‘the

district court’s judgment of how opposing considerations balance,’ as long as all

‘the statutory factors are properly considered, and supporting factual findings

are not clearly in error.’” (quoting United States v. Taylor

, 487 U.S. 326, 337

(1988))). Nor does this Court’s decision in Bert

, issued after the District Court’s

decision in the present case, compel a different result.

Barro also contends that the Government’s peremptory challenge of a

black potential juror with ties to Jamaica was unconstitutionally discriminatory

under the rule of Batson v. Kentucky

, 476 U.S. 79 (1986). At trial, Barro objected to

the challenge as based on race, citing the Government’s strikes of two other black

female venire members as part of a pattern. The Government asserted racially

‐

neutral bases for the other two strikes, which the District Court accepted, and

argued that the challenge now in question was based not on race, but on the fact

that, in a case alleging importation of narcotics from Jamaica and a defense that5 the drugs had been planted in the defendant’s suitcase, it was concerned that the

juror had “connections to Jamaica,” including that “[h]er two kids live in

Jamaica.” App. 106. Defense counsel did not then argue that if that were so, the

challenge would be improperly based on national origin, but instead contended

that Jamaican origin was in effect a proxy for race, presumably due to the fact

that the population of Jamaica is overwhelmingly black. See App. 108 (“She’s

from Jamaica.

. . . I think that’s almost part of her race.”). The District Court

evidently so understood the argument, noting that “I don’t see it as a racial

thing,” and accepted the Government’s reason as race

‐ neutral, because “being

from Jamaica, she may very well be familiar with the issues and the problems

that confront people living there and coming to the United States.” App. 109–10.

The District Court later sustained a Batson challenge to the Government’s strike

of yet another black woman on the panel, leading the Government to withdraw

that challenge.

To the extent that Barro continued to press the argument that the strike

was based on race, a presiding judge’s determination as to the adequacy of a

proffered explanation of a challenge is essentially a factual finding that is entitled

to “great deference.” Hernandez v. New York

, 500 U.S. 352, 364 (1991). We cannot6 conclude that the trial court’s finding that the challenge was not based on race

was clearly erroneous.

To the extent that Barro now argues that the challenge was nonetheless

unlawful discrimination based on national origin, we have previously noted that

this Court has not yet decided “whether or when national origin discrimination

is a cognizable group for Batson protection.” Rodriguez v. Shriver

, 392 F.3d 505,

511 n.9 (2d Cir. 2004). Even assuming arguendo that it is, it is not clear that a

rationale such as that noted by the District Court here—that a venire member’s

familiarity with conditions in a particular country may be relevant to the case at

hand—would constitute unlawful discrimination based on national origin,

particularly where, as here, the Government’s proffered additional bases for the

peremptory strike were that the juror’s “two kids live in Jamaica,” and that she

“ha[d] issues with memory” after “paus[ing] for a while and it seemed like she

couldn’t remember” “what her husband used to do.” App. 106. Given the trial

court’s acceptance of the genuineness of the Government’s proffered explanation

and the great deference such a factual finding is to be accorded on appeal, see

Hernandez

, 500 U.S. at 353, we cannot say that the District Court clearly erred in7 crediting this national

‐ origin

‐ neutral explanation, particularly where, as here,

defense counsel did not press this basis below.

Accordingly, we AFFIRM the judgment of the District Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk