United States Court of Appeals

For the First Circuit

No. 07-1244

UNITED STATES OF AMERICA,

Appellee,

v.

MARGARET GIROUARD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Robert L. Sheketoff for appellant.

Thomas E. Kanwit, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney and Randall E. Kromm,

Assistant United States Attorney, were on brief for appellee. 

March 28, 2008
Batson applies to proceedings in federal courts under the Fifth 1

Amendment's Due Process Clause. See Edmonson v. Leesville Concrete

Co., 500 U.S. 614, 616 (1991) (citing Bolling v. Sharpe, 347 U.S.

497 (1954)). 

Powers v. Ohio, 499 U.S. 400 (1991) held that the race of the 2

litigant challenging the strike was irrelevant. J.E.B. v. Alabama

ex rel. T.B., 511 U.S. 127 (1994), extended the Batson framework to

claims of gender discrimination in jury selection. Edmonson, 500

U.S. 614, applied Batson to jury selection in civil cases. Georgia

v. McCollum, 505 U.S. 42 (1992) held that Batson governed

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HOWARD, Circuit Judge. Margaret Girouard was convicted

by a jury of one count of consumer product tampering in violation

of 18 U.S.C. § 1365. On appeal, she claims the empanelment of the

jury that convicted her was tainted by religious discrimination in

violation of the Constitution. The district court implicitly found

that Girouard had failed to establish a prima facie case that the

prosecutor's peremptory strike was motivated by discriminatory

animus. Finding no clear error in this determination, we affirm

the conviction. 

1. Batson

In order to frame the facts properly, we first examine

the analytical and procedural framework imposed on jury selection

by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). 

That case held that the defendant's equal protection rights under

the Fourteenth Amendment were violated where jury selection at his

trial had been affected by invidious racial discrimination.1

Although the scope of Batson has been broadened by subsequent

decisions, the basic framework for challenging jury composition 2
peremptory strikes by a criminal defendant.

The Supreme Court has so far declined to resolve this issue. See 3

Davis v. Minnesota, 511 U.S. 1115, 1115 (1994) (denial of

certiorari in a case raising the issue). Some courts have made the

distinction between one's religious affiliation and one's religious

beliefs. See United States v. Brown, 352 F.3d 654, 669 (2d Cir.

2003); United States v. DeJesus, 347 F.3d 500, 511 (3d Cir. 2003)

("The distinction drawn by the District Court between a strike

motivated by religious beliefs and one motivated by religious

affiliation is valid and proper."); United States v. Stafford, 136

F.3d 1109, 1114 (7th Cir. 1998) (noting in dicta that it might be

"necessary to distinguish among religious affiliation, a religion's

general tenets, and a specific religious belief"). 

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has remained unchanged. See Snyder v. Louisiana, No. 06-10119,

2008 LEXIS 2708 (U.S. Mar. 19, 2008) (applying Batson). 

We have never held that Batson applies to cases of

religious discrimination in jury selection. Even assuming, 3

arguendo, that Batson does apply to claims of religious

discrimination, we find no clear error in the district court's

action. It is therefore unnecessary to resolve the open question

of whether Batson does indeed apply to religious discrimination. 

The Batson framework requires three steps. See Snyder,

at * 10 (referring specifically to race discrimination).

First, the defendant must make a prima facie

showing of discrimination in the prosecutor's

launching of the strike. If the defendant

fulfills this requirement by establishing,

say, a prima facie case of a racially driven

impetus, then the prosecutor must proffer a

race-neutral explanation for having challenged

the juror. If the prosecutor complies, then,

at the third and final stage, the district

court must decide whether the defendant has

carried the ultimate burden of proving that
We presume that she did this because outright theft of the patches 4

would have been readily detected by the VA's protocols for control

of narcotics.

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the strike constituted purposeful

discrimination on the basis of race.

United States v. Bergodere, 40 F.3d 512, 515 (1st Cir. 1994)

(citing Batson, 476 U.S. at 96-97) (internal citations omitted).

The three-step process attempts to balance the time-honored

principle of unfettered exercise of the peremptory challenge with

a need to conform trial process to the Constitution. The opponent

of a strike bears the burden of proof throughout the inquiry. Id.

2. Facts

We set out only the most salient aspects of Girouard's

criminal behavior, taking them in the light most favorable to the

verdict. United States v. Turner, 501 F.3d 59, 63 (1st Cir. 2007).

We then treat jury selection in more detail. Girouard was a nurse

with the veterans' administration ("VA"). She pricked or cut

transdermal patches through their wrapping, thereby removing some

of the narcotics they contained. She left the patches in the drug

cart for later use on patients. A prick or cut on the ventral 4

side of the patch risked an overdose when the patch was applied to

a patient; in any event, extraction of the medication rendered the

patches less effective at managing pain. When the tampering was

discovered Girouard was arrested. The superseding indictment

charged her with nine counts of obtaining controlled substances by
Section 1365 provides criminal penalties for 5

[w]hoever, with reckless disregard for the

risk that another person will be placed in

danger of death or bodily injury and under

circumstances manifesting extreme indifference

to such risk, tampers with any consumer

product that affects interstate or foreign

commerce, or the labeling of, or container

for, any such product, or attempts to do so .

. . . 

Although we cannot be sure, we refer to these two as Jewish. We 6

note also that other venirepersons might have been Jewish as well,

but declined to mention the holiday at sidebar because they were

not as observant, because they believed the district court's

assurance that the trial would not last that long, or for some

other reason. 

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subterfuge in violation of 18 U.S.C. § 843(a)(3), one count of

making false statements on her application to work at the VA in

violation of 18 U.S.C. § 1001, and one count of consumer product

tampering in violation of 18 U.S.C. § 1365(a). Girouard pled 5

guilty to the other ten counts, proceeding to trial only on the

consumer product tampering charge.

The district court made introductory remarks to the

venire, including a statement that the trial was not expected to

last into the next week. Then the court heard venirepersons with

questions or conflicts individually at sidebar. Two of the

venirepersons expressed concern that the trial might run into the

next week and conflict with a Jewish high holiday. The first of 6

these was a clinical psychologist, and the second was an attorney

who had once "had a case against" the United States Attorney's
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office and indicated that she "might" know one of the witnesses.

The district court assured both that the court would honor the

holiday in the unlikely event the jury's service was required into

that week.

When the time came to seat the jury, the prosecutor

exercised four peremptory challenges relevant here. First, the

prosecutor struck the first Jewish juror described above. Defense

counsel did not object. Next, the prosecutor struck a woman who

was apparently Asian-American. Defense counsel objected that the

strike was based on racial discrimination, invoking the familiar

Batson framework for handling such challenges. The prosecutor,

required by the district court to give a race-neutral explanation

for the strike, said he struck this juror because she was a public

school teacher who lived in inner-city Boston. The district court

accepted this explanation. Third, the prosecutor struck an

African-American man. This time the district court, sua sponte,

asked the prosecutor why. The prosecutor explained that the man

had said he spent most of his time in service activities related to

his church. The district court rejected the proffered reason as

impermissibly based on the man's religion. Notwithstanding the

prosecutor's explanation that it was the degree of the man's

involvement with his church that motivated the strike, and not the
Indeed, as the prosecutor pointed out, the man had not even 7

revealed his religious affiliation. 

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man's particular religion, the district court did not allow the 7

strike and seated the juror over the prosecutor's objection.

Fourth and most importantly for present purposes, the prosecutor

struck the second Jewish juror described above. Defense counsel

objected, pointing out that both self-identified Jewish

venirepersons had been struck. The district court, without asking

the prosecution to justify the strike, replied, "[O]ne can think of

many reasons why we wouldn't want an attorney on a criminal case.

And I'm not leery about the principle of peremptory challenges.

I'm simply trying to enforce Batson, and I am. So your objection's

overruled." The strike was therefore upheld, the trial conducted,

and Girouard convicted. The only issue in this appeal is whether

the district court erroneously applied Batson to the strike of the

second Jewish juror. 

3. Discussion

Girouard claims that the district court erred when it

declined to demand from the prosecutor a nondiscriminatory reason

for striking the second Jewish venireperson. Girouard styles that

rejection as a refusal to treat religious discrimination in jury

selection under the Batson framework, but we disagree. We
This is in keeping with past practice. See United States v. 8

Bergodere, 40 F.3d 512, 517 (1st Cir. 1994) (analyzing judge's

refusal to ask prosecutor for a race-neutral explanation as an

implicit ruling that defense had failed to make a prima facie case

under Batson).

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interpret the district court's action as an implicit rejection of

Girouard's prima facie case of a Batson violation.8

We review preserved Batson claims for clear error,

including cases in which the trial court finds no prima facie case

of discrimination. Brewer v. Marshall, 119 F.3d 993, 1004 (1st

Cir. 1997). The government urges us to apply plain error review to

this case, on the ground that the objection to the second Jewish

juror was not sufficiently clear for the district court to have

treated the question of discrimination by virtue of religion. We

do apply plain error review to unpreserved Batson claims, see

United States v. Pulgarin, 955 F.2d 1, 2 (1st Cir. 1992), but that

is irrelevant here. From the record it appears that the district

court was aware of the specific basis for the objection. The

defense rested its Batson objection explicitly on the fact that the

two self-identified Jewish jurors had been struck. Indeed, the

court had seated one juror already over the prosecutor's strike

based on the man's level of religious involvement. Regardless of

whether that action was required or warranted, it does show that

the district court was cognizant of possible discrimination on the

basis of religion in jury selection. In any event, we have never

held that a Batson objection to a particular strike is insufficient
Snyder's mandate undoubtedly applies to other kinds of 9

discrimination that fall under Batson. Therefore, because we

assume for the purposes of this opinion, that Batson applies to

religious discrimination, this statement in Snyder would apply to

religious discrimination as well.

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to preserve the issue as to that strike for clear error review on

appeal. 

In order to establish a prima facie case of

discrimination, "the moving party must 'raise an inference that the

prosecutor used [peremptory challenges] to exclude the veniremen

from the petit jury' because of their membership in a protected

class." Aspen v. Bissonette, 480 F.3d 571, 574 (1st Cir. 2007)

(quoting Batson, 476 U.S. at 96) (alteration in original). Aspen

also notes the trial judge's wide latitude to consider all relevant

circumstances. Id. ("The judge may consider all 'relevant

circumstances' in making this determination." (quoting Batson, 476

U.S. at 96)). This approach was recently reaffirmed by the Supreme

Court. See Snyder, at *11. Indeed, Snyder goes further and

requires the consideration of all circumstances bearing on the

issue. Id. ("[I]n considering a Batson objection, or in reviewing

a ruling claimed to be Batson error, all of the circumstances that

bear upon the issue of racial animosity must be considered."

(citing Miller-El v. Dretke, 545 U.S. 231, 239 (2005))). We 9

follow this approach of looking at all relevant circumstances even

in cases where we are reviewing a district court's finding that no

prima facie case has been made. See Bergodere, 40 F.3d at 516-17
Bergodere is quite similar to this case. There, the district 10

court responded to a Batson challenge by itself supplying a raceneutral reason for the strike instead of demanding one from the

prosecution. We saw this as an implicit rejection of the defense's

prima facie case and found no error. On review, we examined the

circumstances surrounding the strike in order to glean whether

there was clear error in this finding of no prima facie case.

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(examining, in assessing whether a prima facie case was made,

surrounding circumstances such as: the number of strikes involved

in the objected-to conduct; the nature of the prosecutor's other

strikes; and, as the "capstone," the presence of an alternative,

race-neutral explanation for the strike).

The burden imposed on the opponent of the strike is "not

substantial." Id. But "neither can it be taken for granted."

Bergodere, 40 F.3d at 516. The Supreme Court has held that

requiring the opponent of the strike to prove it "more likely than

not" that the strike was discriminatory offends the Constitution.

Johnson v. California, 545 U.S. 162, 170 (2005). In Aspen, we held

that merely requiring the opponent of the strike to demonstrate at

the first step that discrimination was the "likely" reason for the

strike likewise misreads Batson and sets the bar too high. Aspen,

480 F.3d at 574.

Girouard objected to the second strike only on the ground

that both of the self-identified Jewish members of the venire had

been struck. We have cautioned those who object to peremptory

strikes that they should "come forward with facts, not just numbers

alone." Bergodere, 40 F.3d at 516. But we have never decided 10
Indeed, even in the context of racial discrimination, Batson 11

challenges often highlight uncertainty over the racial identity of

venirepersons. See Caldwell, 159 F.3d at 645 n.7 (noting "some

question about whether this juror was indeed African-American");

Brewer, 119 F.3d at 996 n.4 (noting "some dispute between the court

and defense counsel as to whether [a] juror was black or

Hispanic").

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whether mere numbers may establish a prima facie case. See Brewer,

119 F.3d at 1005. In any case, it is clear that even if bare

statistics can make out a prima facie case, that does not mean that

any statistical proffer will satisfy the burden.

A fundamental problem with Girouard's prima facie case

leaves us unable to find clear error. Even Girouard's bare

numerical argument is incomplete. No effort was made to discern or

quantify the number of Jewish people in the venire. The objection

at trial relied solely on the incomplete information provided by

voluntary self-identification. It was Girouard's burden to bring

forward other reasons and to flesh out the record with regard to

the numerical claim. Here, we simply do not have the information

to evaluate even the bare numerical assertion that all, or most,

Jewish persons in the venire were struck. This lack of information

is one of the essential problems with applying Batson to religious

groups. Compared to race and gender, religious affiliation is

relatively hard to discern from appearances. Without even 11

baseline statistics of how many Jewish people were in the venire

and how many ended up on the jury, we cannot say on this record

that the district court clearly erred when it found that two
We are mindful of the standard of review. We do not imply that 12

a prima facie case would have been impossible to find on the scant

facts before us. We are simply unable, without the rest of the

statistical picture, to say the district court clearly erred. 

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strikes directed at members of one religion failed to raise a prima

facie case. In some cases, the makeup of the remaining venire

might be critical to an assessment of whether a prima facie case

was made. See United States v. Escobar-de Jesus, 187 F.3d 164,

164-65 (1st Cir. 1999) (no prima facie case where two black

venirepersons were struck but six or seven remained).12

4. Conclusion 

We find no clear error in the district court's implicit

finding that the defense failed to raise a prima facie case of

discrimination in jury selection. The verdict of the district

court is affirmed.