On Appeal From the United States District Court For the District of New Jersey. D.C. Criminal Action No. 90-00372-02
Before: Stapleton and Mansmann, Circuit Judges, and Pollak, District Judge*fn*
STAPLETON, Circuit Judge.
This appeal challenges the conviction of Nduche Chima Uwaezhoke. Mr. Uwaezhoke, who is black, was charged, together with one Tony Butts, with four counts of heroin importation and related conspiracies. Mr. Butts pleaded guilty to one count of the indictment. Mr. Uwaezhoke went to trial. Mr. Butts was a principal witness at the trial, which resulted in a jury verdict of guilty on all four counts. Mr. Uwaezhoke was sentenced to concurrent terms of 216 months on each of the four counts.
The sole question presented by Mr. Uwaezhoke's appeal is whether, in the course of jury selection, the prosecution exercised one of its peremptory challenges in a racially discriminatory way, in contravention of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
Appellant had ten peremptory challenges and exercised all of them. The government had six peremptory challenges and exercised two. The first of the government's peremptory challenges was directed at venireperson 324, Douglas Bath, a single unemployed male carpenter; the record contains no concrete evidence with respect to Mr. Bath's ethnicity, but since Mr. Uwaezhoke has not complained about the striking of Mr. Bath, it seems a fair inference that Mr. Bath was not black. The second of the government's peremptory challenges was directed at venireperson 169. Kim R. Lucas, a black woman residing in Newark, New Jersey, who had appeared in the jury box as a replacement for the panelist who was the object of Mr. Uwaezhoke's ninth peremptory challenge. The record shows the following exchange with respect to the striking of Ms. Lucas:
THE CLERK: Juror 3, 169, Kim R. Lucas.
THE COURT: Yes. Miss Lucas.
PROSPECTIVE JUROR NO. 3: A. five years. B. I'm a postal employee. I've been there four years. Not married. Single parent, two small children at home. I rent, aerobics, I cut hair, and I take tennis lessons. High School. I have a license in cosmetology and I go to college.*fn1
THE COURT: And did you hear the questions that I asked the other jurors?*fn2
PROSPECTIVE JUROR NO. 3: Yes.
THE COURT: Is your answer yes to any of them?
PROSPECTIVE JUROR NO. 3: No.
THE COURT: All right. Thank you very much. Mr. Tannenbaum.
MR. TANNENBAUM: The United States would request that Juror 3 be excused.
THE COURT: All right. Miss Lucas, thank you very much.
MR. BROWN: I want to be heard at sidebar, if your Honor please.
(The following occurs at sidebar.)
MR. BROWN: Your Honor, this is obviously racial. I wanted to make a challenge. People sat in that seat time and again. Everyone was approved. The moment a black sits down there is a targeted thrust at that particular person.
I realize that it's peremptory, but I understand that under your rules, the Supreme Court ruled that if there is an indication of racial selectivity, that that is illegal and is to be prohibited. That was as clear as a bell.
THE COURT: Mr. Tannenbaum, what was the basis for the challenge?
MR. TANNENBAUM: We challenged her because it's a general policy. She was a postal employee, and we usually don't like to have postal employees on the jury. It has nothing to do with any racial --
MR. BROWN: Judge. I've tried cases in this courthouse for a long time. If that is a new policy to challenge postal authorities, that is a brand new policy.
As a matter of fact, the practical approach has been that these people favor the federal government because they are employed by them. But to say that there is a policy to challenge postal employees --
THE COURT: Are you stating?
MR. REPETTO: It's not a policy.
MR. TANNENBAUM: No, it's not a policy per se.
MR. BROWN: I would like to have what he said read back.
THE COURT: No. Mr. Repetto?
MR. REPETTO: We have a black juror that has been on from the initial panel. Nobody challenged her.
THE COURT: I want to know why you challenged this particular juror.
MR. REPETTO: This particular juror is employed by the Postal Service. There is a problem with Postal Service jurors in these kinds of cases. It is a person that is a single parent, it's also a person that rents, it's a person that may be involved in a drug situation where she lives.
There is a lot going to this other than the fact that she is black, and there is a black juror on that nobody touched.
MR. BROWN: That's the point.
THE COURT: I'm going to accept the government's explanation.
MR. BROWN: But, Judge, I challenge the concept that postal workers --
THE COURT: Other reasons were given. We'll stand on the record.
MR. BROWN: There were no other reasons. The neighborhood?
THE COURT: The record will speak for itself.
MR. BROWN: Yes, it shall, and I want to go on the record objecting and asking for a mistrial based upon a deliberate use of a prejudice and racial challenge.
THE COURT: I will note that Juror No. 4 is black and has not been challenged throughout.
MR. BROWN: But that's not the standard. The standard is why is someone challenging for racial reasons. The answer that there is a ...