On Appeal From the United States District Court For the Western District of Pennsylvania. (Pittsburgh), D.C. Crim. Action No. 88-00056-01.
Higginbotham, Stapleton, and Cowen, Circuit Judges.
STAPLETON, Circuit Judge:
Ralph Clemmons raises four issues on appeal from his conviction for selling stolen United States Treasury Bonds in violation of 18 U.S.C. § 510(b): (1) whether the prosecutor's peremptory challenge of a purportedly black venireman violated Clemmons' equal protection rights as interpreted in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986); (2) whether this peremptory challenge violated Clemmons' Sixth Amendment right to a jury drawn from a "fair cross-section of the community"; (3) whether his indictment failed to address a necessary element of the offense charged and was therefore defective under Federal Rule of Criminal Procedure 7 and the Fifth Amendment; and (4) whether the evidence that he knew the bonds at issue were stolen was sufficient to support the jury's guilty verdict. We have jurisdiction under 28 U.S.C. § 1291 and consider each issue in turn.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the Supreme Court adopted a new test for determining when a prosecutor violates a criminal defendant's equal protection rights by exercising peremptory challenges against prospective jurors on the basis of race or other cognizable group status. More than twenty years earlier, the Court had declared in Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), that discriminatory peremptory strikes violate the Fourteenth Amendment.*fn1 But experience had proved that Swaine saddled defendants with too onerous a burden of proof and, consequently, that the rights declared in that decision were rarely vindicated.*fn2 In Batson, therefore, the Court tailored a new test under which defendants can more effectively protect themselves against the discriminatory use of peremptory challenges.
Batson's new test consists of two steps. The defendant must first make a prima facie case supporting an inference that the prosecutor challenged prospective jurors on account of their race. To make such a case, the defendant must demonstrate that he and the prospective juror are members of the same "cognizable group." 476 U.S. at 82, 96. Additionally, the defendant must point to circumstances surrounding the peremptory challenges--including any unusual pattern of strikes or other suggestive comments or acts by prosecutors -- that "give rise to an inference of discrimination." Id. at 96-97. The Court expressly left to the trial judges the task of determining when the circumstances justify that inference. Id. at 97.
If the defendant makes a prima facie showing of discrimination, the burden shifts to the prosecutor to articulate a neutral, non-discriminatory explanation for the troubling strike or strikes. Though the prosecutor's explanation must be "clear and reasonably specific," id. at 98 n.20, it "need not rise to the level justifying exercise of a challenge for cause." Id. at 97. The trial judge must then decide whether the defendant has proved that the prosecutor struck the prospective jurors because of their race or cognizable group status. Because this determination is factual and turns largely on an assessment of credibility, the Court instructed that the finding of the trial court merits great deference on review. Id. at 98 n.21.
Clemmons' Batson claim centers on the prosecutor's peremptory challenge to venireman Balhadra Das. When the prosecutor moved to strike Das, Clemmons' attorney objected:
Your Honor, I ask the record show my client . . . is a black man, and the only black man within the first 28 jurors on this jury has not been chosen. The government has stricken that man from the jury, and under . . . Patton v. Kentucky [sic] I believe I have a valid objection and ask the Court to require the Government to state its reasons for striking this man from the jury. Otherwise, we deprive this man from being an impartial juror under this case and deny his rights to the Sixth Amendment.
Appendix for Appellant ("App.") at 57. The district court, without expressly finding that the defendant had tendered a prima facie case, asked the prosecutor to justify the challenge to Das. The prosecutor responded that he believed that Das was of Asian-Indian descent, not black, and that Das was "probably Hindu in religion. . . ." App. at 57. "Hindus tend . . . to have feelings a good bit different from ours about all sorts of things" the prosecutor explained, and he struck Das because he "may have religious beliefs that may affect his thinking." Id. The district court agreed that Das did not appear to be black and accepted the prosecutor's explanation that he struck Das because of uncertainty about his religious views and not on racial grounds.
We cannot discern from the record whether the district court actually decided that Clemmons made a prima facie showing before it demanded the prosecutor's explanation. There is reason, however, to believe that it did not. As noted above, the record contains no such express finding. Clemmons simply raised the Batson objection, claiming that Das was the first black venireman to be considered for the petit jury, and the court then asked the prosecutor to justify the challenge. Moreover, it is not clear that the situation supported an inference of intentional racial discrimination. The prosecutor did not challenge any other blacks and said nothing else that raises an inference of discrimination. Though no blacks sat on the petit jury as eventually constituted, one of the alternate jurors was black. Most notably, though Batson specifies that only challenges to prospective jurors of the same cognizable group as the defendant satisfy the prima facie burden, the district court required the prosecutor to explain his challenge despite the fact that it did not believe that Das, unlike the defendant, was black.
Nevertheless, we agree with Clemmons that we should assume that he made out his prima facie case. Though Das did not appear black to the district court judge, the record indicates that the court explicitly prohibited defense counsel from questioning Das about his race. App. at 57. Because the court cut off that inquiry, we feel bound to assume that Das is black, thus eliminating one of the bases for rejecting Clemmons' prima facie claim. In addition, independent of the strength of the evidence tendered as a prima facie case, once a prosecutor attempts to explain a peremptory challenge, we believe the trial and reviewing courts should look to the entire record to determine if intentional discrimination is present. If the prosecutor's explanation raises more concern than it puts to rest, courts cannot effectively close their eyes to that fact by simply deciding that the defendant has not made out a prima facie case. While we thus assume, without deciding, that Clemmons made out a prima facie case of racial discrimination, we do not thereby suggest that it is desirable for trial courts to turn immediately to the second step of the Batson test. The Batson Court contemplated that the traditional peremptory challenge process would not be intruded upon absent some reason to believe that discrimination might be at work. See 476 U.S. at 99 n.22. Accordingly, district courts should expressly address the prima facie issue before requiring an explanation from the prosecutor.*fn3
Assuming, therefore, that Das is black and that Clemmons raised an inference of discrimination, we turn to whether the district court committed clear error in finding that the prosecutor did not strike Das because he was black. As we have noted, the district court had before it the prosecutor's representation that he did not strike Das because of his race but rather because of uncertainty about his religious beliefs. In addition, by way of support for this racially neutral explanation, the court had the facts that (1) Das did not appear to the court to be black and did appear to the court to be Asian-Indian, (2) Das' appearance and his name -- Balhadra Das--could suggest to a rational person that he was "probably Hindu," (3) the prosecutor had permitted a black juror to be seated as an alternate, and (4) Das was the only juror stricken by the prosecutor who was perceived by anyone to be black. On the other hand, Clemmons' position that the prosecutor's explanation was a pretext for racial discrimination is arguably supported by the facts that the prosecutor (1) challenged a prospective juror who was in fact (we assume) black, (2) did not know whether Das was, in fact, Hindu, and (3) did not articulate why Hinduism might affect the juror's ability to sit in this particular case. On this record, reasonable minds might differ on whether the prosecutor's explanation should be credited. In particular, we find troubling the prosecutor's failure to articulate a connection between his concerns and the issues in this case. Nevertheless, the issue that confronts us is a credibility one with respect to which the trial court's judgment is entitled to great deference. Granting that deference, we are not prepared to say that its acceptance of the prosecutor's explanation as sincere was clearly erroneous.
Having accepted the district court's appraisal of the prosecutor's explanation, we must reject Clemmons' Batson challenge to his conviction. Even assuming, as we do, that counsel for Clemmons would have established that Das was black had the district court permitted further inquiry, Clemmons' right to equal protection was violated only if the prosecutor engaged in intentional racial discrimination. See Washington v. Davis, 426 U.S. 229, 240, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976) ("the invidious quality of the law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose"); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977) (same). Accordingly, if the prosecutor subjectively believed Das was of ...