On Appeal from the United States District Court for the District of New Jersey. D.C. Crim. No. 90-00164-09
Before: Cowen, Nygaard, and Weis, Circuit Judges
Darrin Casper challenges the judgment of conviction entered against him following a jury trial. At issue in this appeal is whether the circumstantial evidence presented by the government against Casper for violations of the Travel and Hobbs Acts was sufficient to support the guilty verdict rendered by the jury. In addition, Casper contends that a new trial is required because the government used its peremptory challenges to exclude minority jurors from the petit jury venire in violation of the Equal Protection Clause of the Fourteenth Amendment. We conclude that the evidence was insufficient to convict and will reverse.
On April 30, 1990, Casper and nine others were named in a nine-count indictment in the District of New Jersey. The indictment alleged a variety of RICO, Hobbs Act and Travel Act offenses. The allegations contained in the indictment centered around the door-to-door candy sales business run by codefendant Gerald Winters. Following a trial of nine of the ten defendants, which lasted over two months, Casper was acquitted of all but Counts Five and Six. Count Five alleged a conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951 (1988). Count Six alleged a violation of the Travel Act, 18 U.S.C. § 1952 (1988).
The district court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231. This court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). A district court's determination that a defendant has failed to make a prima facie showing of racial discrimination in violation of the Equal Protection Clause will be reversed only if that determination is clearly erroneous. United States v. Grandison, 885 F.2d 143, 146 (4th Cir. 1989). As an appellate court reviewing the sufficiency of the evidence presented at trial, we must uphold the verdict of the jury "if there is substantial evidence, taking the view most favorable to the government, to support it." Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680 , 62 S. Ct. 457 (1942); United States v. Aguilar, 843 F.2d 155, 157 (3d Cir.), cert. denied, 488 U.S. 924 (1988).
Casper contends that the government exercised its peremptory challenges against "minority" jurors in contravention of the Supreme Court's holding in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 , 106 S. Ct. 1712 (1986). In Batson and its progeny, the Supreme Court set forth the factors necessary to make a prima facie showing of racial discrimination. First, the defendant must show that the challenged jurors were members of a cognizable racial or ethnic group.*fn1 United States v. DiPasquale, 864 F.2d 271, 277 (3d Cir. 1988), cert. denied, 492 U.S. 906 (1989). Then the defendant must show that the relevant facts and circumstances of the case raise an inference that the prosecution used its peremptory challenges to exclude members of the venire from the petit jury on account of their race. Batson, 476 U.S. at 96. Relevant circumstances include "(1) the fact that peremptory challenges permit a prosecutor predisposed to discriminate to do so; (2) any other pattern of discriminatory conduct; and (3) any prosecutorial statements." United States v. Clemons, 843 F.2d 741, 746 (3d Cir.), cert. denied, 488 U.S. 835, 102 L. Ed. 2d 73 , 109 S. Ct. 97 (1988).*fn2 If the defendant makes out a prima facie case, the burden shifts to the prosecution to come forward with some neutral explanation for challenging black members of the venire. Batson, 476 U.S. at 97.
A race neutral explanation means an explanation based on something other than the race of the juror. Hernandez v. New York, 114 L. Ed. 2d 395, 111 S. Ct. 1859, 1966 (1991) (plurality). At this stage the issue focuses on the facial validity of the prosecutor's explanation. Thus unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. Id.
The Batson Court stated that explanations must be "clear and reasonably specific." 476 U.S. at 98 & n.20. Explanations based on a prosecutor's mere "good faith" or "intuition" do not suffice. Id. ; See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989) (per curiam) ("I just got a feeling about him" is insufficient). The government's explanation, however, need not rise to the level of just cause, Batson, 476 U.S. at 97, nor need it be "quantifiable" to be race neutral. See United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988). A district court may also choose to accept the prosecution's explanation as race neutral where it rests upon the prosecution's evaluation of a venireperson's credibility and demeanor. See id. (prosecutor's observation of eye contact and demeanor was significant and constituted neutral explanation of peremptory exclusion); United States v. Hughes, 911 F.2d 113, 114-15 (8th Cir. 1990) (challenges based on education, sarcastic responses, appearance, and background, were reasonably neutral).
The trial Judge plays "a pivotal role" in determining whether a prima facie case has been established. Clemons, 843 F.2d at 745. See also Batson, 476 U.S. at 97, 98 n.21, 99 n.22; United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987); United States v. Allen, 814 F.2d 977, 978 (4th Cir. 1987); United States v. Mathews, 803 F.2d 325, 330 (7th Cir. 1986), rev'd on other grounds, 485 U.S. 58, 99 L. Ed. 2d 54 , 108 S. Ct. 883 (1988). A trial Judge's finding as to intentional discrimination or lack thereof is a finding of fact. Batson, 476 U.S. at 98 n.21. We review for clear error. United States v. Clemmons , 892 F.2d 1153, 1157 (3d Cir. 1989).
There will seldom be much direct evidence of discriminatory intent. Such invidious intent does not rear its ugly head for everyone to see; instead it hides behind the cloak of pretext. Consequently, the trial Judge's finding of discrimination largely turns on evaluation of the credibility and demeanor of the attorney who exercises the challenge. Hernandez, 111 S. Ct. at 1870. This evaluation lies "peculiarly within a trial Judge's province." Id. Because trial Judges' experiences, instincts, and ...