84 F.3d 1549 United States Court of
Appeals, Ninth Circuit. UNITED STATES of
America, Plaintiff-Appellee, v. Lexi Michelle BAUER, Defendant-Appellant. UNITED STATES of
America, Plaintiff-Appellee, v. Calvin John TREIBER, Defendant-Appellant. UNITED STATES of
America, Plaintiff-Appellee, v. Cameron Scott BEST, Defendant-Appellant. UNITED STATES of
America, Plaintiff-Appellee, v. Dawn MEEKS, Defendant-Appellant. UNITED STATES of
America, Plaintiff-Appellee, v. Jodie Elleyn ISRAEL, a/k/a Jodie Treiber, Defendant-Appellant. UNITED STATES of
America, Plaintiff-Appellee, v. Kelly WEGNER, Defendant, Jodie Elleyn ISRAEL,
a/k/a Jodie Treiber, Defendant-Appellant. UNITED STATES of
America, Plaintiff-Appellee, v. Ernie MARTINEZ, Defendant-Appellant. UNITED STATES of
America, Plaintiff-Appellee, v. Pedro Pereda RAMIREZ, Defendant-Appellant. Nos. 94-30073 through
94-30076, 94-30084, 94-30094, 94-30171 and 94-30178. Argued and Submitted
July 19, 1995 [FN*] . FN* United
States v. Martinez, No. 94-30171 and United States v. Ramirez, No. 94-30178
were submitted without argument on July 19, 1995 pursuant to 9th Cir.R. 34-4
and Fed.R.App.P. 34(a). Decided Feb. 2, 1996. As Amended May 20,
1996. Defendants were convicted in the United States District Court for
the District of Montana, Jack D. Shanstrom, J., of conspiracy to manufacture
and distribute marijuana, distribution of marijuana, possession of marijuana,
and various related charges. Defendants appealed. The Court of Appeals
consolidated appeals and, per Farris and Noonan, Circuit Judges, held that: (1)
defendants failed to prove Batson violations; (2) Religious Freedom Restoration
Act (RFRA) was no defense to conspiracy and money laundering charges; (3)
defendants received effective assistance of counsel; but (4) prosecution had
obligation to show that application of marijuana laws to defendants was in
furtherance of compelling government interest and that it was least restrictive
means of furthering that goal. Affirmed in part, vacated and remanded in part. Noonan, Circuit Judge, filed opinion dissenting in part. 75 F.3d 1366, Superseded. [*1553] COUNSEL: Stephen T.
Potts, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana, for
defendant-appellant Bauer. David F. Ness, Missoula, Montana, for defendant-appellant
Treiber. Donald B. Fiedler, Omaha, Nebraska, for defendant-appellant Best.
Palmer Hoovestal, Helena, Montana, for defendant-appellant Meeks. Wendy Holton,
Helena, Montana, for defendant-appellant Israel, a.k.a. Treiber. James E. Seykora, Assistant United States Attorney, Billings,
Montana, for the plaintiff-appellee. Appeals from the United States District Court for the District of
Montana. JUDGES: Before: FARRIS, JOHN T. NOONAN, and HAWKINS,
Circuit Judges. Opinion by Judge FARRIS for Sections I and III-XV. Opinion by Judge NOONAN for Section II. Dissent by Judge NOONAN from Section I. OPINION FARRIS, Circuit Judge: Cameron Best, Calvin Treiber, Jodie Israel-Treiber, Dawn Meeks,
Lexi Bauer, Ernie Martinez, and Pedro Ramirez appeal on various grounds their
convictions of conspiracy to manufacture and distribute marijuana and
distribution of marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 846 and 18 U.S.C.
§ 2; of the lesser included offense of simple possession in
violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and
1956(a)(1)(B)(i); and of various related charges. We affirm in part and vacate and remand in part. FACTS In 1991 Vern Williams informed the FBI that he was a trusted
lieutenant in Cameron Best and Calvin Triebers conspiracy to import,
produce, and distribute marijuana in and around Billings, Montana. The
government then initiated an investigation into this alleged conspiracy, code
named Reggae North. During the investigation, police
apprehended a burglar who had illegally entered Bests home; he told
police he had seen evidence of marijuana distribution in Bests
residence. Police obtained a search warrant and discovered marijuana, L.S.D., a
gun, and large amounts of U.S. Currency during the search. Searches of other
locations uncovered additional marijuana, guns, and currency. When police
searched Meeks home, she was flushing marijuana down the toilet. In exchange for leniency, several conspirators pled guilty and
testified on behalf of the government. Their testimony revealed that Treiber
and Best regularly received shipments of marijuana from Mexico, each weighing
one to two hundred pounds; they had invested in the local growing operations of
coconspirators; and they had used cash to make several large purchases,
including a farm for $88,000 and several vehicles. On November 20, 1992, a grand jury indicted twenty-six defendants
in a 55 count indictment. Count I charged all defendants with conspiracy to manufacture
and distribute marijuana, alleging 89 overt acts in furtherance of the
conspiracy. Other counts included: money laundering, illegal use of
telecommunications services, use of firearms in relation to drug trafficking,
and possession with intent to distribute marijuana. The district court granted
defendants motion for severance and scheduled four separate trials.
Treiber, Best, Bauer, Meeks and Israel-Treiber were all tried together. Defendants moved to disqualify district court Judge Shanstrom
based on public [*1554]
statements he made about marijuana and marijuana distributors. The motion was
heard and denied by senior district court Judge Battin. The district court denied motions to dismiss for: 1) duplicity in
the indictment, and 2) selective prosecution. During voir dire, the government used peremptory challenges to
strike four members of the venire, two of whom were Native Americans from the
Fort Peck Reservation. Defendants challenged these strikes as racially
discriminatory under Batson. The court held that: 1) defendants had made a
prima facie case of discrimination, 2) the government had articulated a
race-neutral reason, and 3) defendants did not meet their ultimate burden of
proof on the issue of purposeful racial discrimination. It denied the Batson
challenges. The court refused to give two jury instructions requested by the
defendants on the ground that the content of those instructions was adequately
covered by the instructions proposed by the court. After the jurys
guilty verdict, the court denied defendants Rule 29 motions for
acquittal claiming: duplicity of the indictment, selective prosecution, the
right to a religious use defense, and misleading jury instructions. DISCUSSION I. PEREMPTORY CHALLENGES The defendants challenge the prosecutions use of its
peremptory challenges to strike from the jury two Native Americans from the
Fort Peck Reservation. After the voir dire, counsel for Dawn Meeks moved to
discharge the jury on the grounds that the government had exercised
discriminatory peremptory challenges in striking Ms. Elvira Low Dog
and Mr. Tony Martell. All other defendants then joined the defense motion to
discharge the jury on Batson grounds. The defendants had the burden of proving purposeful discrimination
as established in Batson v. Kentucky, 476
U.S. 79, 96-98, 106 S.Ct. 1712, 1722- 24, 90 L.Ed.2d 69. They
failed to do so. The Supreme Court has outlined a three-step process for evaluating
allegations that the prosecution used peremptory challenges in violation of the
Equal Protection Clause. Under our Batson jurisprudence, once the opponent of a peremptory
challenge has made out a prima facie case of racial discrimination (step 1),
the burden of production shifts to the proponent of the strike to come forward
with a race-neutral explanation (step 2). If a race-neutral explanation is
tendered, the trial court must then decide (step 3) whether the opponent of the
strike has proved purposeful racial discrimination. Purkett v. Elem, 514 U.S. 765, , 115 S.Ct. 1769,
1770-71, 131 L.Ed.2d 834 (1995). The district court held that the defendants satisfied step 1 by making
a prima facie case of discrimination against Native Americans by striking Ms.
Low Dog and Mr. Tony Martell. The burden of production then shifted to the
prosecution to articulate a race-neutral explanation. Batson, 476 U.S.
at 98, 106 S.Ct. at 1723-24. This burden does not demand an
explanation that is persuasive, or even plausible. At this [second]
step of the inquiry, the issue is the facial validity of the
prosecutors explanation. Purkett, 514 U.S.
at , 115 S.Ct. at 1771 (1995) (citing Hernandez v. New
York, 500 U.S. 352, 360, 111 S.Ct. 1859,
1866-67, 114 L.Ed.2d 395 (1991) (plurality opinion)). The government explained that both Low Dog and Martell reside in
the same geographical area as Arlie Shields, a government witness whose family
had been threatened. It indicated that it feared these two potential jurors may
be anti-Arlie Shields or anti-government based on where
they live. The court was satisfied. It was not clear error to find that the
government met its burden of production. Defense counsel continued to argue discrimination, but offered no
evidence to rebut the explanation of the prosecution. The court concluded that
the defendants had not proven purposeful racial discrimination. This
determination is not clearly erroneous. The correctness of the courts
ruling must be [*1555] considered
in terms of the information that was before the court at the time that the
Batson objection was raised. The only question is whether the rejection of the
defendants Batson objection was clearly erroneous in light of the
information the district court had before it. United States v. Bishop, 959 F.2d
820, 826 (9th Cir.1992) ( [T] he findings of the
trial judge will not be set aside unless clearly erroneous. ). Peremptory challenges are based upon professional judgment and
educated hunches rather than research. In short, counsel is entitled
to exercise his full professional judgment in pursuing his clients
legitimate interest in using [peremptory]
challenges
to secure a fair and impartial
jury. Burks v. Borg, 27 F.3d
1424, 1429 (9th Cir.1994). In Burks, we concluded that
[p] eremptory strikes are a legitimate means for
counsel to act on such hunches and suspicions. Id. at n. 3.
See also J.E.B. v. Alabama ex rel. T.B., 511
U.S. 127, , 114 S.Ct. 1419, 1431, 128 L.Ed.2d
89 (1994) (OConnor, J. concurring) ( [A]
trial lawyers judgments about a jurors sympathies are
sometimes based on experienced hunches and educated guesses
. That a
trial lawyers instinctive assessment of a jurors
predisposition cannot meet the high standards of a challenge for cause does not
mean that the lawyers instinct is erroneous.) The Supreme Court, recognizing the contribution the [peremptory]
challenge generally makes to the administration of justice, has
placed the burden of proof on the opponent of the peremptory strike. Batson, 476 U.S.
at 98-99, 106 S.Ct. at 1723-24. [T] he ultimate
burden of persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike. Purkett, 514 U.S.
at , 115 S.Ct. at 1771. Following the governments race-neutral explanation,
defense counsel supported its opposition of the strike by stating: Mr. Fiedler: Your Honor, Batson does state that a prosecutor
cannot challenge potential jurors on the assumption that, for instance, in the
Batson case it was a Black juror, as a group would be unable to consider the
states case against the defendant impartially. Well, the preoffer [sic] that was made by Mr.
Seykora went to both groups, the church and to the members of the Crow Nation.
That was because of the fact of Arlie Shields that they wouldnt be
able to listen to the case impartially
. but as Mr. Seykora pointed out,
there were questions asked to the jurors and they didnt raise their
hands. So he had no basis as individuals to think that the taint from the group
would attach to the individual jurors. Tr. at 204. The court rejected the defendants
objections. Its determination that purposeful racial discrimination had not
occurred is entitled to great deference. It should be reversed only if clearly
erroneous. Bishop, 959 F.2d at 826; Hernandez, 500 U.S. at 364, 111
S.Ct. at 1868-69. Since the trial judges findings in the
context under consideration here largely will turn on evaluation of
credibility, a reviewing court ordinarily should give those findings great
deference. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at
1724 n. 21. As the Supreme Court made clear in Hernandez, evaluation
of the prosecutors state of mind based on demeanor and credibility
lies peculiarly within a trial judges
province. Hernandez, 500 U.S.
at 365, 111 S.Ct. at 1869 (citation omitted). See also Bishop, 959 F.2d
at 826 (noting the great deference to which the
trial courts factual findings regarding purposeful discrimination in
the jury selection are entitled.). The dissent echoes defense counsels argument that the
racial nature of the prosecutors explanation would lead to every
single Native American Indian being stricken as a juror. We disagree. The
race-neutral explanation articulated by the prosecutor for striking the two
jurors was based on where they live, not their racial background. The fact,
later determined, that the geographical area is approximately half Caucasian
was not before the court at the time of its ruling. We refuse to speculate on
what the court may or may not have done, had that fact been brought to its
attention. [T] he ultimate burden of persuasion
regarding racial [*1556]
motivation rests with, and never shifts from the opponent of the
strike. Purkett, 514 U.S. at , 115 S.Ct.
at 1771. The district courts determination is not clearly erroneous. NOONAN, Circuit Judge. II. RELIGIOUS USE DEFENSE UNDER THE RELIGIOUS FREEDOM RESTORATION
ACT Calvin Treiber, Dawn Meeks, and Lexi Bauer have presented
themselves as Rastafarians. We focus here on an issue of first impression: the
interaction of the Religious Freedom Restoration Act of 1993 with the claim of
use by Rastafarians of marijuana for religious purposes. Treiber, Meeks, and Bauer asserted that they are Rastafarians and
were Rastafarian at the time of the charged offenses, and that Rastafarianism
is a recognized religion. It is a religion which first took root in Jamaica in
the nineteenth century and has since gained adherents in the United States. See
Mircea Elidade, Encyclopedia of Religion
96-97 (1989). It is among the 1,558 religious groups sufficiently stable and
distinctive to be identified as one of the existing religions in this country.
See J. Gordon Melton, Encyclopedia of
American Religions 870-71 (1991). Standard descriptions of the religion
emphasize the use of marijuana in cultic ceremonies designed to bring the
believer closer to the divinity and to enhance unity among believers.
Functionally, marijuanaknown as ganja in the language of the
religion operates as a sacrament with the power to raise the
partakers above the mundane and to enhance their spiritual unity. A. Proceedings The religious issue was first raised in June 1993 by Meeks who
sought funds under 18 U.S.C. § 3006A(e)(1), which provides
that counsel for a person financially unable to obtain expert services
necessary for adequate representation may request the funds in an ex parte
application. Counsel for Meeks sought money to pay for a physician to testify
as an expert on her medical needs and a theologian to testify as an expert on
her use of marijuana for both religious and medicinal reasons. The motion was
denied by the district court. On September 24, 1993, the district court granted the
governments motion in limine to preclude the appellants from
presenting testimony or evidence on their possession or use of marijuana for
religious purposes as a legal defense. The district court granted the motion
upon review of the pleadings. The district court relied on Employment
Division v. Smith, 494
U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). On September 27, 1993, the district court granted Lexi
Bauers motion to adopt all pretrial motions by her codefendants and
Dawn Meekss motion to join all other motions. Subsequently,
the district court granted Lexi Bauers motion to join all other
defense motions. The trial began on October 3, 1993. Meanwhile the Religious
Freedom Restoration Act was proceeding through Congress. It had been introduced
with one hundred twenty cosponsors and was passed by the House on May 11, 1993.
It was passed by the Senate with amendments on October 27, 1993. On November 3,
1993, the House and Senate agreed to amendments, and the bill was sent to
President Clinton, who signed it into law on November 16, 1993. On November 17, 1993, the defendants drew the district
courts attention to the report of the Presidents signing of
the bill and, while professing not to know whether it was retroactive, renewed
their objection to the courts in limine ruling. Counsel for Treiber
moved to reverse the courts order with regard to the First
Amendment defense. Counsel for Meeks joined in Treibers
motion. Bauer was already recognized as joining all relevant defense motions.
The court did not change its position. Meeks also requested the district court
to instruct the jury to use the balancing test of Sherbert v. Verner, 374
U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v.
Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32
L.Ed.2d 15 (1972), in accordance with the Religious Freedom Restoration Act. The
district court refused to grant the request. [*1557] After the trial,
Treiber moved for acquittal under Rule 29 of the Federal Rules of Criminal
Procedure because of the courts exclusion of evidence of the
religious purposes of the defendants possessing or using marijuana.
Defendants filed motions to join, but on January 27, 1994, the Government filed
a notice that it would not respond further to the motions to join, apparently
relying on the courts prior order that all defendants were deemed to
have joined in motions by their codefendants. In ruling on the Rule 29 motion,
the district court analyzed and applied the Religious Freedom Restoration Act. The district court first found that the challenged law
substantially burdened the free exercise of the Rastafarian religion. Relying
on several earlier appellate cases, the district court held, however,
that the government has an overriding interest in regulating
marijuana. The district court quoted Leary v. United States, 383 F.2d
851, 861 (5th Cir.1967), revd on other grounds, 395 U.S. 6, 89 S.Ct.
1532, 23 L.Ed.2d 57 (1969), as follows: It would
be difficult to imagine the harm which would result if the criminal statutes
against marihuana were nullified as to those who claim the right to possess and
traffic in this drug for religious purposes. For all practical purposes the
anti-marihuana laws would be meaningless, and enforcement
impossible. The district court concluded that the
governments in limine motion would have been granted even if the
Religious Freedom Restoration Act had been the law of the land at the time. Bauer, Meeks and Treiber appeal the district courts
rulings as to the religious use of marijuana. B. The Statute The statute is new and so far has not been construed by any
appellate court in a case involving the religious use of marijuana. We have
applied the new law in a case where a school districts no
knives policy and Cal.Penal Code § 626.10(a) led
the school district to prohibit Sikh children from wearing seven-inch kirpans
(small swords) to school, as their faith required. Reversing the district
court, which had misapprehended the law, we directed the
court to protect the safety of the students and accommodate the religious
requirements of the Cheema children. See Cheema v. Thompson, 67 F.3d
883, 887 (9th Cir.1995) (Wiggins, J., dissenting) (quoting unpublished
disposition). The ordinary canons of legislative interpretation require us to
give attention to each of the provisions of the new statute in the context of
federal criminal law on marijuana. To begin with, Congress found that the framers of the
Constitution, recognizing free exercise of religion as an unalienable right,
secured its protection in the First Amendment to the Constitution ;
that laws which are neutral toward religion may burden religious
exercise as surely as laws intended to interfere with religious
exercise ; that governments should not substantially burden
religious exercise without compelling justification; and that in Employment
Division v. Smith, 494
U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the
Supreme Court virtually eliminated the requirement that the government justify
burdens on religious exercise imposed by laws neutral toward
religion. 42 U.S.C. § 2000bb(a). Congress then declared that the purposes of the Act were: (1) to restore the compelling interest test as set forth in Sherbert
v. Verner, 374 U.S. 398,
83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526,
32 L.Ed.2d 15 (1987) and to guarantee its application in all cases where free
exercise of religion is substantially burdened; and (2) to provide a claim or
defense to persons whose religious exercise is substantially burdened by
government. § 2000bb(b). In the light of these findings and
purposes, Congress provided as follows: § 2000bb-1.
Free exercise of religion protected (a) In general Government shall not
substantially burden a persons exercise of religion even if the
burden results from a rule of general applicability, except as provided in
subsection (b) of this section. [*1558] (b)
Exception Government may
substantially burden a persons exercise of religion only if it
demonstrates that application of the burden to the person (1) is in furtherance
of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest. (c) Judicial relief A person whose religious exercise has been burdened in violation
of this section may assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a government. Standing to
assert a claim or defense under this section shall be governed by the general
rules of standing under article III of the Constitution. Congress also provided definitions, which read as follows: (1) the term
government includes a branch, department, agency,
instrumentality, and official (or other person acting under color of law) of
the United States, a State, or a subdivision of a State; (2) the term
State includes the District of Columbia, the Commonwealth
of Puerto Rico, and each territory and possession of the United States; (3) the term
demonstrates means meets the burdens of going forward with
the evidence and of persuasion; and (4) the term
exercise of religion means the exercise of religion under
the First Amendment to the Constitution. § 2000bb-2. We note the following specific features of the legislation: First.
While implicitly criticizing Smith, the statute does not present itself as an
interpretation of the Constitution overruling Smith; rather it consists of a
command that must be followed as a matter of federal law. The command results
in setting aside a common rationale for applying a statute to burden religious
exercise, the rationale that the statute has general
applicability and was not intended to discriminate against, or
otherwise inhibit, a religious practice. Second. The statute goes beyond the
constitutional language that forbids the prohibiting of the
free exercise of religion and uses the broader verb burden:
a government may burden religion only on the terms set out by the new statute.
Third. There is an unusual statutory incorporation of two decisions of the
Supreme Court, to which Congress refers as guides to the purposes of the
statute. Fourth. There is one explicit reference to the Constitution in that
what is meant by the exercise of religion is to be determined in terms of the
First Amendment to the Constitution. Fifth. If there is a substantial burdening
of a persons exercise of religion, the government must meet two tests.
The government must demonstrate that the application of the
burden to this particular person furthers a compelling governmental
interest. The government must demonstrate that
this application is the least restrictive means of furthering that
compelling governmental interest. Sixth. What is meant by
demonstrate is explicitly defined in terms of the
governments burdens of going forward with the evidence and
of persuasion. Seventh. The statute explicitly includes the United
States and its officers among those who must meet the two burdens imposed. The effects of the Religious Freedom Restoration Act are
widespread. The Act legislatively overturned a number of recent Supreme
Court decisions
by defining a statutory (if not a constitutional)
right to the free exercise of religion. Werner v. McCotter, 49 F.3d
1476, 1479 (10th Cir.1995) (holding that the standards set by Turner v.
Safley, 482 U.S. 78,
107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and OLone v. Estate of
Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), no longer
apply in determining a state prisoners right to the free exercise of
his religion in prison); see also Bryant v. Gomez, 46 F.3d
948 (9th Cir.1995) (applying the Act but finding no substantial burden on the
prisoners exercise of his religion). The power of Congress to provide federal protection in addition to
that accorded by the great guarantees of the Bill of Rights has been exerted in
other contexts. E.g., the Privacy Protection Act of 1980, 42 U.S.C.
§§ 2000aa-2000aa-12 (restricting government
investigators seeking documents from [*1559] the media
and limiting the effect of Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970,
56 L.Ed.2d 525 (1978)); the Church Audit Procedure Act of 1984, 26 U.S.C.
§ 7611 (strictly regulating church tax
inquiry and church tax examination by the
Internal Revenue Service); and the Exemption Act of 1988, 26 U.S.C.
§ 3127 (providing a special Social Security tax exemption for
employers and their employees who are members of a recognized
religious sect whose established tenets oppose
participation in the Social Security Act program). The last exemption freed the
Old Order Amish from the impact of United States v. Lee, 455 U.S.
252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), which declined to recognize the
Amish free exercise of religion claim on the ground that national compulsory
uniformity was essential in the collection of the tax. C. The Application of the Statute in This Case The district court treated the existence of the marijuana laws as
dispositive of the question whether the government had chosen the least
restrictive means of preventing the sale and distribution of marijuana. The
district court relied on a drug case decided before the enactment of the
Religious Freedom Restoration Act. We do not exclude the possibility that the
government may show that the least restrictive means of preventing the sale and
distribution of marijuana is the universal enforcement of the marijuana laws.
Under RFRA, however, the government had the obligation, first, to show that the
application of the marijuana laws to the defendants was in furtherance of a
compelling governmental interest and, second, to show that the application of
these laws to these defendants was the least restrictive means of furthering
that compelling governmental interest. The Act was relevant to the counts of
simple possession. As to the counts relating to conspiracy to distribute, possession
with intent to distribute, and money laundering, the religious freedom of the
defendants was not invaded. Nothing before us suggests that Rastafarianism
would require this conduct. These counts stand. As to the three counts on which
the appellants were convicted of simple possession, the exclusion of the
religious defense was in error. Treiber, Meeks and Bauer may be retried on the possession counts.
The government should be free to cross-examine them on whether they, in fact,
are Rastafarians and to introduce evidence negating their asserted claims. It
is not enough in order to enjoy the protections of the Religious Freedom
Restoration Act to claim the name of a religion as a protective cloak. Neither
the government nor the court has to accept the defendants mere
say-so. The court may conduct a preliminary hearing in which the defendants
will have the obligation of showing that they are in fact Rastafarians and that
the use of marijuana is a part of the religious practice of Rastafarians. FARRIS, Circuit Judge. III. EXTRAORDINARY FUNDS FOR THEOLOGY EXPERT Meeks appeals the denial of her request for extraordinary funds to
retain a theology expert. Meeks representation was publicly funded
under the Criminal Justice Act, 18 U.S.C. § 3006A. This Act
provides Counsel for persons who are financially unable to obtain expert
services necessary for adequate representation. § 3006A(e).
The district court is only required to authorize defense services for an
indigent defendant in circumstances in which a reasonable attorney
would engage such services for a client having the independent financial means
to pay for them. United States v. Sims, 617 F.2d 1371, 1375
(9th Cir.1980) (quoting United States v. Bass, 477 F.2d 723, 725
(9th Cir.1973)). On remand, Meeks will have to demonstrate that she is, in
fact, a Rastafarian. The district court will have to determine, in light of our
holding, whether a reasonable attorney would engage the services of a theology
expert for Meeks if she had the independent financial means to pay for them. IV. MOTION TO DISQUALIFY JUDGE SHANSTROM Treiber, Israel-Treiber, Bauer and Meeks filed a motion to have
Judge [*1560] Shanstrom
disqualified based on statements attributed to him in three articles published
in the Billings Gazette. Judge Shanstrom referred the motion to Senior Judge
Battin who properly denied it. The denial of a motion to disqualify or recuse a judge is reviewed
for abuse of discretion. Yagman v. Republic Ins., 987 F.2d 622, 626
(9th Cir.1993). Judge Shanstroms statements indicate a view that
marijuana distribution is a serious and pervasive social problem. A
judges views on legal issues may not serve as the basis for motions
to disqualify. United States v. Conforte, 624 F.2d 869, 882 (9th
Cir.1980). To disqualify a judge, only the alleged bias must amount to
animus more active and deep-rooted than an attitude of disapproval
toward certain persons because of their known conduct. Id. at 881. V. SELECTIVE PROSECUTION Best, Treiber, Meeks, Israel-Treiber, and Bauer all contend that
the district court erred in denying their motions to dismiss the indictment on
the ground of selective prosecution. A ruling on selective prosecution is
reviewed for clear error. United States v. Gutierrez, 990 F.2d
472, 475 (9th Cir.1993). A prosecutors decision to bring charges is
beyond judicial review unless the defendants can make a prima facie showing
that the decision rested on an impermissible basis. United States v. Davis, 36 F.3d
1424, 1432 (9th Cir.1994). To do this, a defendant must show that: 1) others
similarly situated were not prosecuted, and 2) the prosecution of the defendant
was based on an impermissible motive. Id. After an evidentiary
hearing, the district court ruled that the decision to prosecute had been based
not on prejudice, but on information derived from informants and the
governments own investigation. This holding was not clearly
erroneous. VI. DUPLICITY OF THE INDICTMENT [19] The appellants
argue that Count I of the indictment was duplicitous because it charged
multiple conspiracies as a single conspiracy. We review the sufficiency of an
indictment, de novo. United States v. Dischner, 974 F.2d 1502, 1518
(9th Cir.1992). An indictment is not duplicitous merely because it charges a
conspiracy to commit more than one offense. United States v. Begay, 42 F.3d
486, 501 (9th Cir.1994). The question whether a single conspiracy,
rather than multiple conspiracies, has been proved is a question of sufficiency
of the evidence. Id. A single conspiracy can include
subgroups or subagreements and the evidence does not have to exclude every
hypothesis other than that of a single conspiracy. United States v.
Patterson, 819 F.2d 1495, 1502 (9th Cir.1987). A single
conspiracy exists, as compared with multiple conspiracies, where there is
one overall agreement to perform various functions to
achieve the objectives of the conspiracy. Id.
(citations omitted). A reasonable jury could properly find the conspiracy as
charged in Count I of the indictment. VII. MISLEADING JURY INSTRUCTIONS The defendants also argue that the jury instructions were
misleading because they instructed the jury that a separate crime is
charged in each count and did not instruct the jury to acquit if it
found that a series of separate conspiracies existed rather than the
single conspiracy charged Count I, as they requested. They contend
that the combination of these instructional errors deprived them of their key
defense: that the government lumped several separate buyer-seller transactions
into one conspiracy. We review the jury instructions as a whole, United States v.
Joetzki, 952 F.2d 1090, 1095 (9th Cir.1991), and accord the trial judge
substantial latitude so long as the instructions fairly and adequately covered
the issues presented. United States v. Powell, 955 F.2d 1206, 1210
(9th Cir.1991). The district court instructed the jury that a single
conspiracy exists, as compared with multiple conspiracies, where there is an
overall agreement to perform various functions to achieve the objectives of the
conspiracy. It further instructed the jury that it must
return a verdict of not guilty for any defendant unless the evidence showed
beyond a reasonable doubt that the defendant knew the purpose of the [conspiracy]
and deliberately entered into the agreement intending
to accomplish [its]
goal or purpose. The district court also gave the Ninth Circuit Model
Instruction on multiple conspiracies which reads in
pertinent part: If you find that the
conspiracy charged did not exist, then you must return a not guilty verdict,
even though you may find that some other conspiracy existed. Similarly, if you
find that any defendant was not a member of the charged conspiracy, then you
must find that defendant not guilty, even though the defendant may have been a
member of some other conspiracy. The instructions, taken as a whole, adequately covered the
multiple conspiracy defense. VIII. CALCULATION OF BASE OFFENSE LEVELS Treiber, Meeks, and Israel-Treiber each challenge the district
courts calculation of their base offense levels. [FN1]
They argue that they were sentenced for quantities of drugs not reasonably
foreseeable to them. Whether conduct in furtherance of a conspiracy was
reasonably foreseeable is a factual finding reviewed for clear error. United
States v. Torres-Rodriguez, 930 F.2d 1375, 1389 (9th Cir.1991). In United
States v. Diaz Rosas, 13 F.3d 1305, 1308 (9th Cir.1994), we held
that: FN1. Bauer does not
raise this argument in her opening brief, but adopts all arguments made by her
co-appellants by reference in her reply brief. A defendant who is
guilty of conspiracy to possess and distribute cocaine may properly be held
accountable for any cocaine possessed or distributed by coconspirators, so long
as that cocaine was foreseeable to him. It is not necessary that the defendant
personally possessed all of the cocaine for which he is held accountable. Citing U.S.S.G. § 1B1.3; U.S. v. Conkins, 987 F.2d
564 (9th Cir.1993). The same is true for conspiracies involving marijuana. The
record establishes that the district court did not err in its calculation of
the base offense levels. IX. MOTIONS TO SUPPRESS EVIDENCE Treiber [FN2] , Best, and Israel-Treiber each
argue that the district court erred when it denied their separate motions to
suppress evidence found in three separate searches. We review de novo the
district courts determinations on motions to suppress but we review
factual findings for clear error. United States v. Becker, 23 F.3d
1537, 1539 (9th Cir.1994). FN2. Bauer joins in Treibers
argument. A. Treiber Treiber and Bauer challenge the district courts finding
of probable cause, which was based on an affidavit, to search the residence of
Treibers brother Todd. The affidavit did not contain the prior
criminal record of the source of the information supporting probable cause. The
affidavit in support of the warrant did contain extensive detail concerning the
operation and the likely quantity and location of marijuana stored at Todd Treibers
residence, as well as that expected to be found at other locations contained in
the affidavit. The district court did not err in denying the motion to
suppress. B. Best The affidavit in support of the search warrant for Bests
residence was based in part on a statement by Edgar Franz who was apprehended
shortly after burglarizing Bests home. The district court found that
the affidavit did not contain false statements. This finding of fact was not clearly
erroneous. The affidavit supported a finding of probable cause. C. Israel-Treiber Israel-Treiber argues that the police illegally seized marijuana
after a warrantless search of her purse in violation of the Fourth Amendment.
The purse was opened by a nurse, after Israel-Treibers consent, in an
attempt to verify her true name from her drivers license. The officer
smelled and saw *1562 the marijuana when the nurse opened the purse. The
district court denied her motion to suppress on the ground that she had
in effect put the incriminating evidence within the plain view
of the police officer. It held the search to be a private search not
in violation of Israel-Treibers Fourth Amendment rights. See United
States v. Jacobsen, 466 U.S. 109, 104 S.Ct.
1652, 80 L.Ed.2d 85 (1984). The district courts factual finding that
the marijuana was in plain view was not clearly erroneous. X. MOTIONS FOR MISTRIAL Best, Treiber, Bauer, and Israel-Treiber appeal the district
courts denial of defense motions for a mistrial. One motion was based
on the admission of testimony of Luke Mills. The other was based on a stricken
comment from Captain OBrien made on redirect examination. Denial of a
motion for mistrial is reviewed for abuse of discretion. United States v.
Homick, 964 F.2d 899, 906 (9th Cir.1992). The record reflects no basis
for mistrial. There was no abuse of discretion. XI. SUFFICIENCY OF THE EVIDENCE Bauer and Israel-Treiber argue that their money laundering
convictions should be reversed due to insufficient evidence presented by the
government at trial. These conviction will be upheld if the evidence,
when viewed in the light most favorable to the government, establishes that any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979). The test was met. XII. DISCRETIONARY REFUSAL TO DEPART FROM THE GUIDELINES Bauer appeals the district courts refusal to grant a
downward departure for acceptance of responsibility. The district court
exercised its discretion not to depart downward based on its finding that at no
time during the course of the trial had Bauer ever accepted responsibility. A
district courts discretionary refusal to depart from the Sentencing
Guidelines is not reviewable on appeal. United States v. Eaton, 31 F.3d
789, 792 (9th Cir.1994). XIII. MOTION FOR CONTINUANCE Best contends that he was deprived effective assistance of counsel
when the district court denied his request for a continuance so that his
attorney could adequately prepare. The decision to deny a motion for
continuance is reviewed for an abuse of discretion. United States v.
Gonzalez-Rincon, 36 F.3d 859, 865 (9th Cir.1994), cert. denied, 514 U.S.
1008, 115 S.Ct. 1323, 131 L.Ed.2d 203 (1995). To reverse a trial courts
denial of a continuance, an appellant must show that the denial prejudiced her
defense. Id. [ Bests attorney, Donald Fiedler, was appointed to
represent Best on May 13, 1993 after the court found Best indigent. Fiedler
admitted to having already spent months trying to become familiar
with case, working on the detention hearing, working with Cameron [Best]
and working with his family. Best requested a continuance from the
original June 21, 1993 trial date to a November 1993 trial date. Fiedler did
not appear at the hearing to set a new trial date, and the court set the date
for September 20, 1993. The district court did not abuse its discretion in
denying Bests motion for continuance. Best has not shown actual prejudice
resulting from the denial. See United States v. Tham, 960 F.2d
1391, 1396 (9th Cir.1991). XIV. MARTINEZ Martinez argues that the district court denied him effective
assistance of counsel by refusing to grant him extra time at the May 12, 1994
hearing. He was not denied effective assistance of counsel. Martinez entered a guilty plea, along with three codefendants, on
March 22, 1994. He agreed to a sentence of 78 months. Within sixty days of
entering the plea, the three codefendants filed motions to withdraw their
pleas. Martinez never filed a motion to withdraw his plea. During the
sentencing hearing [*1563] on May 12, 1994,
counsel for Martinez requested additional time to confer with Martinez. The
court denied the request, noting that Martinez had not filed any of the motions
under consideration. It also denied the codefendants motions to
withdraw. Martinez was sentenced to the agreed 78 months. The issue of effective assistance of counsel is more
appropriately addressed in a habeas corpus proceeding because it requires an
evidentiary inquiry beyond the official record. United States v.
Carr, 18 F.3d 738, 741 (9th Cir.1994). However, the claim can be
resolved on direct appeal when the record is sufficiently developed
to permit the reviewing court to resolve the issue. United States
v. Daly, 974 F.2d 1215, 1218 (9th Cir.1992). The record is sufficiently
developed to show that counsel for Martinez did not fall below the objective
standard of reasonableness required by Strickland v. Washington, 466 U.S. 668, 690-92, 104
S.Ct. 2052, 2065-67, 80 L.Ed.2d 674 (1984). He asked the judge for time to
confer with Martinez and was denied. It was too late to join the motions to
withdraw. Further, Martinez was not prejudiced by his counsels
failure to join the motions. The motions were denied and we affirmed the
denial. United States v. Best, Nos. 94-30172, 94-30175, 94-30176,
1995 WL 218502 (Filed April 13, 1995). Martinez failed to challenge the amount of marijuana attributed to
him in the presentence report at the district court. He has waived his right to
challenge that amount on appeal. United States v. Visman, 919 F.2d
1390, 1393 (9th Cir.1990). XV. RAMIREZ Ramirez agreed to an offense level of 31 as part of his plea,
giving him a sentencing range of 108 to 135 months. He now challenges his
sentence of 120 months, arguing that the amount of marijuana attributed to him
in the presentence report was not supported by the facts. He failed to
challenge the presentence report in the district court and agreed to the
sentence in his plea. We reject his challenge. Visman, 919 F.2d
at 1393. Affirmed in part. Vacated and remanded in part. The convictions of
Bauer, Meeks and Treiber on Counts 15 and 54 and of Meeks on Count 13 are
VACATED and the case on those counts is REMANDED to the district court. NOONAN, Circuit Judge, Dissenting from part I: A key issue on this appeal is the prosecutions
disqualification of two Native American Indians from the Fort Peck Reservation.
Judge Shanstrom conducted the voir dire, reading off the names of a witness
list that consisted of approximately 150 witnesses. The court asked the
potential jurors to raise their hands if they knew any of the witnesses.
Several potential jurors said they had personal knowledge of particular
witnesses (sixteen such witnesses in all), and the court dismissed two of those
potential jurors for cause. Among the witnesses whose names were called was
Arlie Shields, a Native American Indian from Wolf Point, a town within the Fort
Peck reservation occupied by both Caucasians and members of various Indian
tribes. No juror indicated knowledge of Arlie Shields. At the conclusion of the
voir dire, fifteen jurors were sworn. The prosecutor questioned jurors about
their knowledge of government witnesses but asked them nothing as to their
knowledge of Arlie Shields. Counsel for Dawn Meeks moved to discharge the jury on
the grounds that the government had exercised discriminatory peremptory
challenges. Counsel noted: juror Number 25 is Ms. Elvira
Low Dog. She is Crow Indian or either Assiniboin, Sioux or Crow Indian. I think
she was from Wolf Point, as well as Tony Martell. Tony Martell appeared to be Crow
as well. All of these jurors, your honor, of color, were discharged by the
government
. The only reasonable conclusion that you can draw from the
fact that they knocked off these jurors is that they discriminated against them
on the basis of race. We had some people of color and now we have basically an
all white jury. All other defendants then joined the defense motion
to discharge the jury on Batson grounds. The government [*1564]
responded that the defendants had failed to make the required prima facie case
of racial discrimination. The court ruled: I think they have, and
I m going to ask you to respond to it. In response, the government said in reference to Elvira Low Dog: We didnt
really learn too much about her. One of the witnesses that the government has
in this particular case is Arlie Shields. Arlie Shields has been having, within
the confines of even being incarcerated at the present time, is a member of the
Fort Peck Tribe up there [sic] . It is very difficult to
discern thathis family has been threatened. We do
notwithout getting into sounding like a racial type question to
individual members of the Tribe, as I recall both of them are located in the
Fort Peck area. We have had numerous people that we have prosecuted in that
area. We have tried to flesh out some of these questions, asking, and the court
asked, whether any relatives had been charged and so on. I dont have
any direct information about any of the relatives being charged. But, very
frankly, the government was not willing to take the risk of perhaps being
anti-Arlie Shields, who is a witness in this particular case or
anti-government. There are several tribal members that have been prosecuted
before this court up there, judge. It had nothing to do with color whatsoever. The defense then asked what the government proffer was as to Tony
Martell. The government responded: Martell, I believe in her
questionnaire is a member ofis living in the Wolf Point area or
Poplar Area as I recall. Defense counsel replied that the government admits that
they exercised racial discrimination in exercising these peremptory challenges
because of the fact that these particular individuals happened to be
Indian. Under the governments rationale, counsel added,
every single Native American Indian must be stricken as a juror. He
admits to it, your honor. Defense counsel further argued that the
government could not challenge potential jurors on the assumption
that, for instance, in the Batson case, it was a Black juror, as a group would
have been unable to consider the states case against the defendant
impartially. Well, the proffer that was made by Mr. Seykora went to
the members of the Crow Nation. That was because of the fact of Arlie Shields
that they would not be able to listen to the case impartially
. but as
Mr. Seykora pointed out, there were questions asked to the jurors and they
didnt raise their hands. So he had no basis as individuals to think
that the taint from the group would attach to the individual jurors. The
court responded: The motion is denied. In Batson the Supreme Court outlined a three-step
process for evaluating claims that a prosecutor has used peremptory challenges
in a manner violating the Equal Protection Clause. Batson v. Kentucky, 476 U.S.
79, 96- 98, 106 S.Ct. 1712, 1722-24, 90 L.Ed.2d 69 (1986). First, the defendant
must make a prima facie showing that the prosecutor has exercised peremptory
challenges on the basis of race. Id. at 96-97, 106 S.Ct.
at 1722-23. Second, if the requisite showing has been made, the burden shifts
to the prosecutor to articulate a race-neutral explanation for striking the
jurors in question. Id. >at 97-98, 106 S.Ct. at 1723-24. Finally, the
trial court must determine whether the defendant has carried his burden of
proving purposeful discrimination. Id. at 98, 106 S.Ct. at
1723-24. In Hernandez v. New York, 500 U.S. 352, 358-59, 111
S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1990), the Supreme Court reasserted the
three-part analysis first enunciated in Batson, noting that the
analysis permits prompt rulings on objections to peremptory
challenges without substantial disruption of the jury selection
process. Id. at 358, 111 S.Ct. at 1866. This
three-step inquiry, the Court wrote, delimits our
consideration of the arguments raised by the party challenging
peremptory strikes under Batson. Id. at 359, 111 S.Ct. at
1866-67. In its most recent treatment of Batson, the Court reaffirmed
that courts facing Equal Protection challenges to the use of peremptories must
follow the three-step inquiry set out in Batson. Purkett v. Elem, 514 U.S. 765,
- , 115 S.Ct. 1769, 1770-1771, 131
L.Ed.2d 834 (1995). [*1565] In our case, the
defendants satisfied the first step by making out a prima facie case of
discrimination against Native American Indians, and the court so ruled. The
government attempted to satisfy the second step with the race-neutral
explanation that Elvira Low Dog was from the Fort Peck area, as was
one government witness, Arlie Shields, also an American Indian. The government
expressed concern, therefore, that there was the risk of
perhaps being anti-Arlie Shields or being
anti-government because several tribal members
have been prosecuted. As to Tony Martell, the governments
explanation was not fleshed out. The government said he lived in the
Wolf Point area or Poplar Area. The significance of
Martells living in the Poplar Area was not explained at all.
Apparently the government assumed that the court would know that the
headquarters of the Fort Peck Reservation were located in Poplar, and hoped
that the court would infer that the explanation for eliminating Elvira Low Dog
applied to Tony Martell as well. If these were race-neutral explanations, the
court was then obliged to determine whether the defendants had proved purposeful
racial discrimination. On their face, these explanations were arguably race-neutral. To
pass step two, the explanations need not be persuasive or even
plausible. Purkett v. Elem, 514 U.S. at
, 115 S.Ct. at 1771. In accepting the explanations as
race-neutral, the district court does not implicitly find a lack of
discriminatory intent. The courts determination occurs only at step
three when it decides whether the race-neutral explanations offered are both
plausible and persuasive. In this third step, the persuasiveness of
the justification becomes relevant. Id. The burden of proof
remains that of the objector to the peremptory. Id. But the
objector may turn the apparently-neutral response to his advantage by showing that
it is flimsy. At that stage, implausible or fantastic justifications
may (and probably will) be found to be pretexts for purposeful
discrimination. Id. The correctness of the courts ruling must be determined
in terms of the information that was before the court at the time that the
Batson objection was raised. The total area of the Fort Peck Reservation is
964,864 acres, of which 233,153 acres are tribal land, 645,114 acres are
allotted land, and the rest is owned by the United States. Approximately half
the reservation population is Sioux, one-third is Assiniboin, and the remainder
is described as of mixed blood. U.S. Department of
Commerce, Federal And State Indian Reservations 197 (1971). Assiniboin occupy
the southwestern portion of the Reservation, the Sioux occupy the southeastern
part. Id. There are about 6,000 Indians enrolled in tribes, about
6,000 Indian residents not so enrolled, and over 10,000 non-Indians. Id. 198. Judge
Shanstrom was familiar with the reservation as he had presided over at least
one trial in which the effect of marijuana on the reservation was relevant to
sentencing. United States v. Colder, CR 92-32-BLG-JDS-03 (November 11, 1992). We defer to the courts judgment of credibility of the explanation
for the peremptory, id., but when the court, as here, makes no findings and
gives no reasons, we have not much to guide us as to the courts
thinking. The court was aware that no juror had indicated any knowledge
whatsoever of Arlie Shields. Consequently, it was pure imagination on the part
of the government that the two American Indian members of the venire were or
might be anti-Arlie Shields. Hence this explanation, unsupported by any facts
before the district court, should have been seen as pretextual. The defendants
had pointed out that, when specifically asked by the court whether anyone knew
Arlie Shields, no juror had responded. Tony Martell was in the jury pool when
the court asked that question. Elvira Low Dog was not called to the jury until
later in the proceedings, but she was present in the courtroom when the court
asked whether anyone knew Shields; when, after shed been called to
the jury, the court asked whether there was any reason she could not be fair
and impartial, she had responded, No. The prosecutor told
the court that to question individual Indian jurors about Shields might be
getting into sounding like a racial type question. But the
prosecution by avoiding asking individual persons about Shields produced [*1566] the
worse result of disqualifying a whole group on a racial basis. The government also referred to prosecution of
individual members of the Tribe and of several
tribal members. As the court was aware from the points made by
defense counsel, there are members of more than one tribe in the Wolf Point
area. The court was informed that Ms. Low Dog might be Assiniboin, Sioux or
Crow. The court was not informed what tribal members the
government had prosecuted. It was nonsensical for the government to refer to
the Tribe and to speak of the prosecution of several
tribal members without identifying the particular tribe or tribes
involved. The very use of the term the Tribe reflects a
mentality treating all Indians alike. The objection assumes that a Crow will
resent the prosecution of a Sioux, that an Assiniboin will have a
fellow-feeling with a Crow. The objection reveals not a fear of tribal sympathy
but a belief that the Indians, taken collectively, will be
hostile to the government. As defense counsel pointed out to the court, the
governments response on this score was scarcely more than an
admission of racial antipathy. Finally, the governments response as to Martell was
perfunctory to the point of implausibility. The prosecutor wasnt sure
where he lived and even hedged his guesses with an as I
recall. At best, the prosecutor raised the possibility that Martell
came from an area where the Tribe had been prosecuted; and
that response has already been analyzed as discriminatory. The prosecutor
signally failed to point to any individual characteristic of the two Native
Americans he had challenged. The only characteristics alleged were group
stereotypes that served as pretextual surrogates for racial discrimination. See
United States v. Bishop, 959 F.2d 820, 825-26 (9th Cir.1992)
(striking a black juror who lived in a community in which other blacks lived on
the assumption he would sympathize with a black defendant is
precisely the kind of act [ ] prohibited
by Batson ). The majority lifts language from Burks v. Borg, 27 F.3d
1424, 1429 (9th Cir.1994), to the effect that counsel is entitled to
use his full professional judgment in exercising peremptories. The
quotation comes from a paragraph dealing with counsel making
credibility determinations. Id. To make credibility
determinations a prosecutor must do more than observe the racial
characteristics of a juror. The prosecutors explanations here did not
involve any credibility determination. The explanations simply misinformed the
trial court. The majority opinion stresses the deference we owe the trial
court. But Batson operates as a restraint on counsel who for illegitimate
reasons seek to exercise a peremptory. Here the prosecutor invented an entity
The Tribe to explain his challenge. The trial court was
thereby misinformed as to the basis of the challenge. The prosecutor compounded
this misinformation by suggesting that the challenged jurors were connected
with Arlie Shields. The prosecutor had no basis for this suggestion. Again the
trial court was misinformed. What was defense counsels obligation in the face of this
misinformation? As clearly as words could, counsel pointed out to the trial
court the racial nature of the prosecutors explanations:
every single Native American Indian must be stricken as a juror. He
admits to it, your honor. Counsels argument was absolutely
accurate. When the court ignored it and without any explanation rejected
counsels objection, there was no duty on the part of counsel to
rescue the court from the error that the prosecution and the courts
own view-point produced. As the language already quoted from Purkett indicates,
the defendant may meet his burden of proof by showing that the
prosecutors objections are implausible. Purkett, 514 U.S.
at , 115 S.Ct. at 1771. The defense made this showing. Batson error cannot be harmless when it is
structural, denying the defendants a jury composed of members of the community
without any portion of the community being discriminated against. Batson, 476 U.S.
at 100, 106 S.Ct. at 1725. The error deprives the defendants of their
constitutional right to a trial by a jury fairly drawn. It deprives the
defendants of the equal protection of the laws. It deprives the
discriminated-against members of the community of their right to [*1567] participate
in the process. Id. at 86-87, 106 S.Ct. at 1717-18. ORDER May 20, 1996 The opinion filed on February 2, 1996 is amended as follows: [Amendments incorporated for purpose of publication.] Appellants motions to permit citation to Hernandez v.
Lewis are denied. Judge Noonan would grant the motions. [Ed. note: Cf. Gonzales, Attorney General, v. Raich, S.Ct., No. 03-1454 (June 6, 2005) (medical marijuana case)] |