1 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986). IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-30504

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTHUR S. HUEY, IV and

ANTONIO A. GARCIA

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

(February 16, 1996)

Before JOLLY, DUHÉ and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Defendants-Appellants Arthur S. Huey, IV and Antonio A. Garcia

appeal their co nvictions on charges of conspiring to distribute

marijuana, making threats or using violence in order to collect an

extension of credit, and using a firearm in relation to a crime of

violence. Concluding that the jury selection process in this case

violated Batson v. Kentucky 1 and its progeny, we reverse and remand2

for a new trial.

I

FACTS AND PROCEEDINGS

The convictions underlying this appeal arise fro m the drugrelated activities of Defendants-Appellants Arthur S. Huey, IV, a

Caucasian, and Antonio A. Garcia, an Hispanic-American. Over a

period of a year and one-half, Huey and Garcia sold marijuana to

Marshall H owell. The instant case concerns Huey's and Garcia's

last sale to Howell. On this particular occasion, Howell paid Huey

two-thirds of the purchase price for the marijuana, but did not did

not have the remaining funds due for the drugs. Howell became fed

up with defendants' efforts to collect the balance due, so he

anonymously contacted the Federal Bureau of Investigation (FBI) and

offered information. Subsequently, he met with an FBI agent and

explained the series of events. Howell agreed to cooperate with

the FBI and was provided a tape recording device to record

telephone conversations. Howell taped several telephone

conversations in which Huey and Garcia made demands for the money

owed them. These tapes were later used by the government as

evidence against Huey and Garcia.

The Grand Jury for the Eastern District of Louisiana returned

a three-count indictment against Huey and Garcia, to which both

pleaded not guilty and went to trial.

At the close of the voir dire of the venire, counsel for Huey

moved to exclude six potential jurors. As noted on the record by

H uey's counsel, these six jurors constituted all of the Afric an-2 Prior to trial, Huey's counsel filed a Motion in Limine

seeking to exclude these tape recordings from evidence because

of, inter alia , the derogatory and offensive references to race,

religion, ethnicity, and gender they contain. The district court

ruled that the tapes would be played.

3 Americans and persons with Hispanic surnames in the jury pool.

Huey's counsel explained that the government would be playing tapes

and offering transcripts that contained harsh and offensive racial

epithets. Accordingly, argued counsel for Huey, no minority juror

would be able to make an unbiased decision regarding Huey's guilt

or innocence after hearing these tapes. 2

The district court refused the request to exclude the

prospective j urors who were African-American or had Hispanic

surnames, but did state that it would voir dire the individuals

with respect to whether any of them would be influenced by the

tapes' racial slurs. The district court then advised the

prospective jurors tha t the tapes contained racial slurs of

significant proportion involving African-Americans and HispanicAmericans and inquired whether such languag e would affect their

ability to hear the case in a fair and impartial manner. None of

the prospective juror s responded that the content of these tapes

would influence their decision-making process with respect to

determining the defendants' guilt or innocence.

Following this voir dire by the district court, jury selection

began. The defendants' ten peremptory challenges were allocated

equally, five to Huey and five to Garcia. Counsel for Huey began

the selection process by striking three African-Americans from the

jury pool. Both the government and counsel for Garcia made B atson3 The government no longer challenges the peremptory

strikes.

4 United States v. Seals , 987 F.2d 1102, 1108-09 (5th

Cir.), cert. denied , __ U.S. __, 114 S. Ct. 155, 126 L.Ed.2d 116

(1993).

4 objections, asserting that these strikes were improperly made on

the basis of race. 3 The district court stated that Huey's counsel

c ould respond to the objections if he wished, but that the court

did not find it necessary for him to do so; and the record reflects

no response from Huey's counsel.

The selection process continued, and the government and

Garcia's counsel were given opportunities to exercise some of their

peremptory challenges. When it was Huey's turn again, counsel used

his two remaining peremptory challenges to strike two more AfricanAmericans. Again, counsel for Garcia made a B atson objection.

After noting this objection, the district court without fu rther

comment allowed Huey's five peremptory challenges SQ all of which had

been used to strike African-America ns S Q to stand, and the trial

proceeded.

The following day, the jury returned with a verdict of guilty

on all counts as to both Huey and Garcia. Huey and Garcia now

appeal, both arguing inter a lia that the jury selection process

violated Batson v. Kentucky and its progeny.

II

ANALYSIS

We review a trial court's decision on a Batson challenge under

the clearly erroneous standard. 4 Garcia insists that the district5 476 U.S. 79, 106 S. Ct. 1712, 90 L.E.2d 69 (1986).

6 Batson v. Kentucky , 476 U.S. 79, 87, 106 S. Ct. 1712,

1718, 90 L.E.2d 69 (1986).

7 Powers v. Ohio , 499 U.S. 400, 409, 111 S. Ct. 1364, 1370,

113 L.E.2d 1017 (1991).

8 Id.

9 Georgia v. McCollom , 505 U.S. 42, 49, 112 S. Ct. 2348,

2353, 120 L.E.2d 33 (1992). A criminal defendant's exercise of

peremptory challenges constitutes state action for purposes of

the Equal Protection clause. Id. 505 U.S. at 50-55, 112 S. Ct.

at 2354-57.

5 court committed reversible error by failing to protect th e equal

protection rights of the five African-American prospective jurors

who were peremptorily challenged. We agree.

In Batson v. Kentucky

, 5 the Supreme Court held that equal

protection principles prohibit a prospective juror from b e ing

peremptorily challenged on the basis of race. The protection of

Batson from the harms of racial discrimination in jury selection is

not extended solely to individual defendants, but al so to the

excluded jurors. 6 "An individual juror does not have a right to

sit on any particular petit jury, but he or she does possess the

right not to be exclu ded from one on account of race." 7 Thus,

discrimination in the form of excluding a prospective juror because

of the juror's race SQ even a race that is different from that of the

defendant SQ

co nstitutes a violation of the excluded juror's equal

protection rights. 8 Whether the discriminatory challenge is made

by the prosecution or a defendant makes no difference. 9

Under Powers v. Ohio

, a defendant has standing to raise the

prospective juror's claim of an equal protection violation by way10 Powers , 499 U.S. at 415, 111 S. Ct. at 1373.

11 United States v. Seals , 987 F.2d 1102, 1108 (5th Cir.

1993), cert. denied , __ U.S. __, 114 S. Ct. 155, 126 L.Ed.2d 116

(1993).

12 Id. at 1108-09. The Supreme Court has recently refined

this step by holding that this race-neutral explanation tendered

by the proponent need not be persuasive, or even plausible.

Purkett v. Elem , __ U.S. __, 115 S. Ct. 1769, 1771, 131 L.E.2d

834 (1995). The persuasiveness of this explanation becomes

relevant in the third step of the inquiry. Id.

13 Seals , 987 F.2d at 1109.

6 of a Batson challenge. 10 Although the instant case is atypical, in

that one defendant is challenging the peremptory strikes of a codefendant, the rationale articulated in Powers for holding that a

defendant has standing to raise this claim on behalf of prospective

jurors is equally cogent and applicable in this situation.

Therefore, we conclude that Garcia has standi ng to challenge the

juror selection process based on his co-defendant's improper racial

use of peremptory challenges.

A three-step inquiry is made to determine whether a party has

used peremptory challenges in a way that violates the Equal

Protection clause. First, the opponent of the strike must make a

prima facie showing that the proponent of the strike exercised it

on the basis of a juror's cognizabl e racial background. 1 1 The

burden then shifts to the proponent of the strike to articulate a

race-neutral explanation for removing the juror i n question. 1 2

Finally, the trial court must determine whether the opponent of the

strike has proved purposeful discrimination. 13

Huey's counsel used all five of his peremptory challenges to7

strike African-Americans from the venire. These strikes followed

on the heels of the court's rejection of Huey's counsel's request

that al l of the African-Americans and persons with Hispanic

surnames be excluded for cause. This request was based not on any

particular characteristics of the individual prospective jurors but

on counsel's belief that all members of these groups were incapable

of being impartial in the face of the racially offensive content of

the tape recordings that the jury would hear. We have no doubt,

nor does the government contest, that Garcia me t his first-step

burden of making a prima facie case that Huey's counsel exercised

these challenges on the basis of race.

The burden then shifted to Huey's counsel to offer a raceneutral explanation for these strikes. Although the district court

stated that it did not find it necessary for Huey's counsel to

respond to the Batson objections, it did provide an opportunity for

Huey's counsel to make such a response. Yet no explanation S Qraceneutral or otherwise SQ was proffered in response t o these

objections.

The government argues that it may be that Huey's attorney

simply did no t believe the prospective jurors' responses to the

court's voir dire and that this is a sufficient race- neutral

explana tion. The record, however, in no way supports this

argument. The only reason articulated in the record for why these

jurors SQ

as a class and not individually S Q should not serve is that

they would be biased after hearing the derogatory language and

racial slurs contained on the tapes. This reason was premised only14 E.g.

, Georgia v. McCollom , 505 U.S. 42, 59, 112 S. Ct.

2348, 2359, 120 L.E.2d 33 (1992) ("the exercise of a peremptory

challenge must not be based on either the race of the juror or

the racial stereotypes held by the party."); Powers v. Ohio , 499

U.S. 400, 410, 111 S. Ct. 1364, 1370, 113 L.E.2d 1017 (1991) ("We

may not except as a defense to racial discrimination the very

stereotype the law condemns.").

15 McCollom , 505 U.S. at 59, 112 S. Ct. at 2359.

8on the race of these jurors; no mention was ever made of any nonracial characteristic of any individual juror. Thus, the

explanation in the record for these strikes is nothing more than an

assumption of partiality based on race and a form of racial

stereotyping, both of which have been repeatedly condemned by the

courts. 1 4 The Supreme Court has firmly "rejected the view that

assumptions of partiality based on race provide a legitimate basis

for disqualifying a person as an impartial juror." 15 We do so again

today.

As the district court failed to discharge its clear duty

either to elicit a ra ce-neutral explanation for the peremptory

challenges or deny the use of those challenge, it committed

reversibl e error in determining implicitly that the equal

protection rights of these jurors had not been violated. Such

error requires a new trial as to both Garcia and Huey.

We are not unaware that there is some irony in reversing

Huey's conviction given that it was his counsel who made the

discriminatory strikes. We are convinced, however, that this

result is consistent with the teachings of Batson and its progeny.

In addition t o harming individual defendants and prospective

jurors, r acial discrimination in the selection of jurors impugns16 Id. 505 U.S. at 49-50, 112 S. Ct. at 2354 (internal

quotation marks and citation omitted).

9 the integrity of the judicial system and the community at large.

"Be it at the hands of the State or the defense, if a court allows

jurors to be excluded becau se of a group bias, it is a willing

parti cipant in a scheme that could only undermine the very

foundatio n of our system of justice S Q our citizens' confidence in

it." 16

The discriminatory jury selection process of this trial

offends the Constitution and calls into question the integrity of

our judicial system. We conclude that only by repudiating all

results from such a trial can public confidence in the integrity of

this syst em be preserved, even when it means reversing the

conviction of the very defendant who exercised the discriminatory

challenges. Although we recognize that some might fear that this

resolution could become a source of mischief in the hands of some

co-defendants, we believe that not only is this resolution mandated

by Batson and its pro geny, but that such mischief can be avoided

with relative ease by the exercise of diligent oversight and sound

judgment on the part of trial judges, and through their proper

application of the well-known three-step inquiry for ensuring raceneutral use of peremptory challenges.

III

CONCLUSION

A s the district court failed to ensure the Equal Protection

rights of the prospective jurors in accordance with Batson and its1 7 Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d

69 (1986).

10 progeny, we

REVERSE and REMAND for a new trial consistent with this opinion.

E. GRADY JOLLY, Circuit Judge, with whom DUHE’, Circuit Judge, join

in concurring specially:

I concur in the majority opinion and write briefly to express

my concern over what appears to me to be an indisputable abuse of

the Batson v. Kentucky 17 rule by the defendant, Arthur Huey. In the

simplest of terms, Huey has gained an unwarranted advantage of the

ruling as follows: 1) he uttered racial epithets in the course of

committing a crime; 2) faced with mounting a defense before a jury

of some individuals whose race he had insulted, he sought to

preclude their service as jurors by requesting the court to remove

all African Americans and all persons with Hispanic surna mes; 3)

when that request was denied, he used his peremptory strikes to

preclude their service as jurors in violation of Batson ; 4)

although successfully purging the jury, he was nevertheless

convicted; 5) he then appeals, complaining essentially of his own

unconstitutional acts, and we now reverse his conviction and grant

him a new trial on grounds that he created and benefitted from.

The majority correctly observes that under the Supreme Courtrat ionale it is "[t]he discriminatory jury selection process of

this trial" that offends the Constitutio n and demands reversal.

The majority is also correct that such abuses in the future must be

avoided by the dil igence of trial judges. Nevertheless, "the

integrity of the jury system," a principle underlying the B atson

decision, is not well served by the result we reach today, because

the public trust will be undermined when a convicted criminal can

win a new trial based on his own abuse of the justice system.