* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Arthur L. Alarcon, Circuit Judge, Uni ted States Court of Appeals for the Ninth Circuit, sitting by designati on. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 15 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUAN MARTÍN SANCHEZ-MATA, Defendant - Appellant. No. 01-2075 (D.C. No. CR-00-873-JP) (District of New Mexico)

ORDER AND JUDGMENT *

Before MURPHY , ALARCON, ** and ANDERSON , Circuit Judges.

In this direct criminal appeal, the only issue befo re the court is whether the district court erred in denying the defendant’s Batson claim. See Batson v. Kentucky , 476 U.S. 79 (1986). Exercising jurisdiction und er 28 U.S.C. § 1291, this court affirms

.-2-

The facts in this case are undisputed. On December5, 1999, border patrol authorities questioned defendant Juan Martín Sanche z-Mata at the checkpoint on Highway 54 near Orogrande, New Mexico. Upon furthe r investigation, agents arrested Sanchez-Mata after discovering a large quantity of marijuana in the vehicle he was driving. A federal grand jury sitting in the United States D istrict Court for the District of New Mexico returned a one-count indictm ent against Sanchez-Mata for possession with the intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2. Sanchez-M ata’s first trial was declared a mistrial after the jury was unable to reach a verdi ct. On retrial, a jury found him guilty. Sanchez-Mata received a sentence of forty- one months’ imprisonment and two years of supervised release. During the voir dire of the venire pool at Sanchez-Mata’s second trial, the government exercised its peremptory challenges to s trike four venirepersons. Of those four, venirepersons Guzman, Ortega, and Garci a were Hispanic, and Mance was African-American. Sanchez-Mata made a timely Batson objection after the jury had been empaneled but before they were sworn in. The government then explained the reasons for peremptorily striking eac h of the four venirepersons. The government stated that Guzman, Ortega, and Manc e had previously served on juries which had returned not guilty verdicts. The government further offered that1 Originally, Sanchez-Mata also alleged that the district court failed to

comply with the Court Reporter’s Act by failing to ensure that a portion of the Batsonhearing was recorded. See 28 U.S.C. § 753(b). The parties agree that a portion of recorded hearing was not originally tran scribed. As the appellant, however, Sanchez-Mata had the duty to provide a transcript of all pertinent portions of the hearing. See Fed. R. App. P. 10; 10th Cir. R. 10.1(A)(1). The record does not indicate that Sanchez-Mata attempte d to obtain the missing portion of the transcript or otherwise prepare a st atement from the appellant’s recollection. See Fed. R. App. P. 10(c). In its supplemental appendi x, the government provides the missing portion of the tran script, which has been certified by the transcribing court reporter. Because Sanchez-Mata does not -3- Garcia and Guzman had previously served as jurors i n a case in which the judge directed an acquittal and spoke privately to jurors without counsel present. Moreover, the government explained that Ortega had expressed problems with immigration law and its enforcement during voir dire in another trial. The district court concluded that Sanchez-Mata had not made a prima facie showing of purposeful racial discrimination. It further concluded that, even if Sanchez-Mata had met his prima facie burden, the government’s explanations for striking the four venirepersons were racially neutr al. The district court then concluded that the four venirepersons had been stri cken for racially neutral reasons and added that “other members of the Hispan ic race and culture have been left on the jury, and the government did not exerci se its right to excuse them peremptorily. So with that, the Batson challenge i s refused.” Sanchez-Mata filed a timely appeal, raising only th e district court’s denial of his Batson claim. 1challenge the accuracy or completeness of the trans cription, this court deems the

issue conceded.

2 While the Batson claim in this case is directed at multiple perempt ory challenges, the analysis would be the same for a si ngle challenge. -4- In analyzing the district court’s disposition of a Batson claim, this court reviews de novo the proffered racially neutral explanations for pe remptory challenges. 2 See United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir. 1994). We review for clear error the district court’s ulti mate factual finding that there was no intentional discrimination. See id.
In Batson , the Supreme Court held that venirepersons cannot be stricken from a jury solely because of their race or on the assumption that jurors of a particular race will be unable to impartially consi der the case against the defendant. See United States v. Bedonie , 913 F.2d 782, 794 (10th Cir. 1990) (citing Batson , 476 U.S. at 89). The Batson court enunciated a three-step process to determine whether the defendant’s equal protecti on rights were violated. See
Batson , 476 U.S. at 96-98. The first step is for the defendant to make a prima facie showing that the peremptory strikes were discriminatory. See Purkett v. Elem , 514 U.S. 765, 767 (1995) (per curiam). To establish a prima facie case of intentional discrimination, the defendant must show that the prosecutor has exe rcised peremptory challenges to remove minority venire members as well as facts and relevant circumstances3Batsonhad previously required that the defendant be a me mber of a

cognizable racial group. See Batson v. Kentucky , 476 U.S. 79, 96 (1986). The Supreme Court, however, has since held that “a crim inal defendant may object to race-based exclusions of jurors effected through pe remptory challenges whether or not the defendant and the excluded juror share the same races.” Powers v. Ohio , 499 U.S. 399, 402 (1991). -5- which raise an inference that the government used i ts peremptory challenges to exclude venirepersons on account of their race. Cf. Bedonie , 913 F.2d at 794. 3
This court has noted that such factors could includ e the disproportionate impact of peremptory strikes on minority venirepersons, a pattern of strikes against jurors of a particular race, and the prosecutor’s question ing and statements during voir dire

. United States v. Esparsen , 930 F.2d 1461, 1465 (10th Cir. 1991). At this stage, the party making the Batson claim “is entitled to rely on the fact . . . that peremptory challenges constitute a jury selection p ractice that permits those to discriminate who are of a mind to discriminate.” Bedonie , 930 F.2d at 794 n.13 (quoting Batson , 476 U.S. at 96) (internal quotation marks omitted ). Once the defendant makes a prima facie showing, the burden shifts to the government to come forward with a racially neutral explanation for its peremptory challenges. See id. at 794. This step “does not demand an explanationthat is persuasive, or even plausible.” Elem , 514 U.S. at 767-68. Rather, the reviewing court looks to the facial validity of the prosecuto r’s explanation. Id. at 768. “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the-6-

reason offered will be deemed race neutral.” Id. (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion)). The Supreme Court has emphasized that a racially neutral reason is legiti mate so long as it does not deny equal protection. See id. at 769. The final step is for the trial court to determine whether the opponent of the strike has proved purposeful racial discrimination. See id. at 768. It is only at this step that the persuasiveness of the government ’s proffered explanation becomes relevant, and the district court may proper ly reject implausible or fantastic justifications as pretexts for purposeful discrimination. See id. While a
Batsonclaim involves a three-step process, the burden of persuasion always remains with the party opposing a peremptory challe nge. See id

. This court has stated that review of a prima facie showing becomes moot whenever the prosecutor offers a racially neutral e xplanation and the district court rules on the ultimate factual issue of whether the prosecutor intentionally discriminated. See United States v. Johnson , 941 F.2d 1102, 1108 (10th Cir. 1991) (citing Hernandez , 500 U.S. at 359). In this case, review of the fi rst inquiry is unnecessary because the government gave its explanations of the peremptory challenges and the district court made afinding that the government’s strikes were not racially motivated.-7-

At the second step of the Batson rubric, Sanchez-Mata apparently concedes that the government’s proffered explanations for striking the four minority venirepersons were racially neutral. Thus, Sanchez -Mata’s sole argument is that the district court erred at the third step of the Batson claim, i.e. , a determination whether the defendant has demonstrated that the gov ernment’s justifications were pretextual. He claims that the district court erre d at this final step by ruling in a summary fashion and failing to address each of the reasons articulated by the prosecutor. The Supreme Court has emphasized that at the final step, the trial court’s determination of intentional discrimination turns o n its evaluation of the prosecutor’s credibility. See Hernandez , 500 U.S. at 365. In most peremptory challenge inquiries,
the decisive question will be whether counsel’s rac e-neutral explanation for a peremptory challenge should be be lieved. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorneywho exercises the challenge. As with the state of mind of a juro r, evaluation of the prosecutor’s state of mind based on demeanor and cr edibility lies peculiarly within a trial judge’s province.

Id. (quotation omitted); see also United States v. Kunzman , 54 F.3d 1522, 1529 (10th Cir. 1995). Here, the district court chose t o credit the prosecutor’s racially neutral explanations for striking the four venirepe rsons.4For similar reasons, this court rejects Sanchez-Mat a’s argument that the

district court did not independently verify the ver acity of the government’s rationales for striking the four venirepersons. Al though it is true that none of the government’s explanations are verified by the recor d, it appears that the government’s knowledge about the stricken venireper sons is based on the practice in New Mexico requiring potential jurors to serve l ong jury duty terms. The record does reveal that many of the venirepersons i n Sanchez-Mata’s trial, including those the government peremptorily challen ged, had previously served in cases which were tried by the prosecutors in this c ase. As the party who carries the burden of persuasion, Sanchez-Mata does not argue that the government’s explanations are dising enuous or untrue. In any case, whether the district court believes the government’ s proffered reasons is based on its credibility determinations. -8- Given the broad deference to the district court’s d eterminations of credibility, this court has never held, and does no t hold today, that a district court must explicitly state its credibility determination s on the record for each proffered explanation. But see Galarza v. Keane , 252 F.3d 630, 636, 639 (2d Cir. 2001). 4 Moreover, there is no suggestion in the record thatthe district court conducted the
Batson analysis with undue haste or any procedural improp riety, as the district court apparently did in United States v. Stavroulaksis , 952 F.2d 686, 696 (2d Cir. 1992) (noting that the district court may have deni ed defense counsel the opportunity to articulate a prima facie case under Batson but affirming the district court’s denial of defendant’s Batson challenge). Finally, Sanchez-Mata argues that a trial court is not bound to accept the government’s facially neutral reasons which are uns upported by the record. In support of this proposition, he cites Johnson v. Vasquez , 3 F.3d 1327, 1331 (9th-9-

Cir. 1993). In Johnson , however, the record included strong indications that the government’s racially neutral explanations were pre textual. Id. at 1329-30. No such indications, however, are present in this case

. After a thorough review of the record, this court c oncludes that the district court’s finding of no intentional discrimination wa s not clearly erroneous. Our conclusion is strengthened by the district court’s uncontested finding that several Hispanic venirepersons were empaneled, even though the government had not exhausted its peremptory challenges. See United States v. Hartsfield, 976 F.2d 1349, 1356 (10th Cir. 1992). Accordingly, the district court’s denial of Sanchez -Mata’s Batson claim is
AFFIRMED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge