# UnitedStates C ou rt o f App eals For th e First C ircuit

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, 2008Batson applies to proceedings in federal c o u rts 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 (1 9 9 2) held that Batson governed -2- 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 e x a m i ne 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 affe c ted by invidious racial discrimination. 1 Although the scope of Batson has bee n b r o adened by subsequent decisions, the basic framework for challenging jury composition 2peremptory 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 ( 1 994) (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"). -3- has remained unchange d
. See Snyder v. Louisiana, No. 06-10119, 2008 LEXIS 2708 (U.S. Mar. 19, 2008) (applying Batson).

We have n e v er held that Batson applies to cases of rel i gious 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 defend a n t must make a prima facie showing of discrimination in the prosecutor's launching of the strike. If the de f e n d ant fulfills this requirement by establishing, say, a p rima 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 th e t h ird and final stage, the district court must decide whether the defendant has carried the ultimate burden of proving thatWe 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. -4-

t h e s t r i k e c o n s t i t u ted purposeful discrimination on the basis of race.
United States v. Bergodere, 40 F.3d 512, 515 (1st Cir. 1994) (ci t i n g Batson, 476 U.S. at 96-97) (internal citations omitted). The three-ste p 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 as p e c t s 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 pric k e d o r 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 v entral 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 a rrested. The superseding indictment charged her with nine counts of obtaining controlled substances bySection 1365 provides criminal penalties for 5 [w]hoever, with reckless disregard for the

risk t h a t a n o t h e rp e r s o n w i l l b e p l a c e din danger of death or bod i l y 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 re f e r t o t h e se 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, be c a u se they believed the district court's assurance that the trial would not last that lo n g , or for some other reason. -5- subterfuge in violation of 18 U.S.C. § 843(a)(3), one count of making false statements on her application to w o r k a t t he VA in violation of 18 U.S.C. § 1001, and one count o f c onsumer product
t a mp ering in violation of 18 U.S.C. § 1365(a). Girouard pled 5 guilty t o t h e o t h e r t e n c o u n t s , p r o c e e d i n g t o t r i a l o n l y on the consumer product tampering charge.

The district co u rt 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-6-

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. Wh e nt h e t i m e c a m e t o s e a t t h e j u r y , t h e p r o s ecutor exercised four peremptory challenges relevant here. First, the prosecutor struck the first Jewish juror described above. Defense counsel did not object. Ne x t , the prosecutor struck a woman who was apparently Asian-American. Defense counsel objected that the strike w a s 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-Ame r i c a n 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 d e gree of the man's involvement with his church that motivated the strike, and not theIndeed , a s the prosecutor pointed out, the man had not even 7 revealed his religious affiliation. -7- m a n 's particular religion, the district court did not allow the 7 strike and seated the juror over the prosecutor's objec t i o n. Fourth and most importantly for present purpo s e s , the prosecutor
str u c k t he 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 prin c i ple 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 t r e a t religious discrimination in jury selection under the Batso n f r a mework, but we disagree. WeThis 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). -8- interpret the district court's action as an implicit rejection of Girouard's prima facie case of a Batson violation. 8

We review p r e s erved 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 c a s e , 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 unpr e s e r v ed 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 w a s a w a r e 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. Inde e d , the court had seated o n e 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 insufficientSnyder'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. -9- 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 [perempto r y 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. I d
. ("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 c i rcumstances 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 ra c i al animosity must be considered." (citing Miller-El v. Dretke, 545 U.S. 2 3 1 , 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 516-17Bergodere is quite similar to this case. T h e r e , the district 10court 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 t o g lean whether there was clear error in this finding of no prima facie case. -10- ( e x a m ining, 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 p r o s ecutor's other
str i k e s ; 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 " n either can it be taken for granted." Bergod e r e , 4 0 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 10Indeed , e ven 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 wh e t h er 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"). -11- 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 Giro u a r d'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 informat i o n p rovided by voluntary self-identification. It was Girouard's burden to bring forward other reasons and to f l e s h 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 discer n f rom appearances. Without even 11 baseline statistics of how many Jewish people were in the venire and how many ended up on the j u r y, we cannot say on this record that the district court clearly erred when it found that twoWe are mindful of the standard of review. We do no t i mp l ythat 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. -12- strikes directed at members of one religion failed to raise a prima facie c a s e . In some cases, the makeup of the remaining venire might be critical to an assessment of whether a p rima facie case was made. See United States v. E s c o b a r - d e 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 t o raise a prima facie case of discrimination in jury selection. The verdict of the district court is affirmed
.