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Pemberthy v. Beyer

filed: March 16, 1994.



Before: Becker, Nygaard, and Alito, Circuit Judges.

Author: Alito


ALITO, Circuit Judge :

The State of New Jersey has appealed from two orders of the district court granting Gabriel Pemberthy's and Rigoberto Moncada's petitions for writs of habeas corpus. The district court held that the prosecutor at the petitioners' joint trial violated their equal protection rights by peremptorily challenging five prospective jurors. After conducting a hearing regarding the prosecutor's reasons for these challenges, the district court held that the prosecutor had dismissed the jurors in question simply because they were Latinos and not because of a sincere concern about their ability as Spanish speakers to accept the translation of tape recorded conversations offered in evidence. In the alternative, the court broadly held that dismissing Latino jurors because they can speak Spanish is tantamount to dismissing them based on race and is thus unconstitutional.

We hold that the district court erred in failing to accept the state appellate court's factual determination that the prosecutor dismissed the five jurors, two of whom were not Latinos, because of their ability to speak Spanish and because the translation of taped conversations in Spanish was expected to be hotly contested at trial. We also hold that the Equal Protection Clause does not prohibit a trial attorney from peremptorily challenging jurors because of their ability to understand a foreign language the translation of which will be disputed at trial. We therefore reverse the orders of the district court.


In April 1983, a New Jersey state court issued an order authorizing a wiretap of a telephone in Pemberthy's apartment in Elizabeth. Conversations on that line were monitored and recorded for approximately one month. Most of these conversations were conducted in Spanish, and therefore they were monitored and translated into English by Spanish-speaking law enforcement officers. Law enforcement authorities concluded that many of the conversations, although cryptic, related to the importation of cocaine from Colombia.

In late May, Pemberthy and Moncada were arrested, and the police then executed search warrants for their residences and for various vehicles. In one of the vehicles, more than eight kilograms of cocaine were found. Pemberthy and Moncada, together with five others, were subsequently indicted by a state grand jury for three drug-related offenses: conspiracy to distribute and possess with intent to distribute one ounce or more of cocaine, simple possession of cocaine, and possession of cocaine with intent to distribute. Pemberthy was also indicted for an additional offense, theft of services.

Pemberthy and Moncada both moved to suppress all of the wiretap evidence, arguing, among other things, that the interceptions had not been properly minimized due to the monitors' deficient knowledge of Spanish. As Moncada's attorney later put it in his brief to the Appellate Division:

It is clear that part of the problem here came from the fact that non-professional Spanish-speaking "monitors" listened to these predominantly foreign conversations. The Detectives, Troopers and Officers apparently felt, in their own minds at least, that they had to listen to everything in order to get legitimate translation.

Moncada's Br. at 44, State v. Moncada, No. A-1994-84-T4 (App. Div.). Likewise, Pemberthy contended that "persons not sufficiently fluent in the language being spoken on the wiretaps could never minimize calls because they would have to listen over and over and for longer periods of time in order to get proper translations." Pemberthy Br. at 9-10, State v. Pemberthy, No. A-767-84-T4 (App. Div.). See also id. at 17-19. After an extensive hearing on minimization and on the audibility of the tapes, the trial Judge denied the motions to suppress and ruled that the taped conversations were admissible.

Jury selection took place on four days in June 1984, well before the New Jersey courts or the United States Supreme Court had held that peremptory challenges of individual jurors based on race or national origin violated either the state or federal constitution. See Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986); State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986), aff'g 199 N.J. Super. 389, 489 A.2d 1175 (App. Div. 1985). Because the translation of the tapes had been an issue at the suppression hearings and promised to be an issue at trial as well, the prosecutor asked the trial Judge to question the prospective jurors about their ability to speak Spanish. The trial Judge did so, and the prosecutor subsequently exercised the five peremptory challenges that are at issue here.

The first of these challenges concerned Alberto R. Casanova, who had been born in Cuba and had spoken Spanish all his life. J.A. 22, 45. In response to questioning by the court, Mr. Casanova stated that he spoke Spanish "perfectly." J.A. 42. The following exchange then occurred:

THE COURT: . . . There will in this case, I know, be a lot of Spanish being spoken. . . . If you're on the jury in this case, you're going to hear some tapes of conversations, telephone calls, and they will be in Spanish predominantly . . . .

Would you . . . accept the interpretation as given with respect to the language . . . and not substitute your own versions of what really it's about, but accept what comes through from the Court?

Can you do that?

MR. CASANOVA: Certainly.

J.A. 42-43. The trial Judge subsequently informed Mr. Casanova that not only would there be "a lot of Spanish-speaking witnesses," but that not all would have the "same background." J.A. 45. The court continued: "Some will be people that were born in Cuba, some may be from Puerto Rico, some may be officers who would be born here and speak Spanish." J.A. 45. Mr. Casanova reiterated, however, that he could follow the court's instruction. Id. After this colloquy, counsel for Pemberthy and Moncada stated that they would object to "every person who speaks Spanish being called to sidebar or grilled or questioned" (J.A. 46), and thereafter the trial Judge did not question Spanish-speaking jurors in the same detail.

The next of the five jurors at issue was Gonzalo Quesada, who stated that he had spoken Spanish his entire life. J.A. 79. When the prosecutor asked the Judge to inquire "where [Mr. Quesada] was from" (J.A. 84), the following exchange occurred (J.A. 84-85):

THE COURT: I'll ask the Spanish he knows.


THE COURT: Cuban. What is it? I want to know.

[MONCADA'S COUNSEL]: That was my question.

THE COURT: All right. Fine.

[End of side bar].

THE COURT: Mr. Quesada, sir, you mentioned you speak Spanish.

MR. QUESADA: Yes, sir.

THE COURT: All right. What is the Spanish you speak. What is it, Cuban Spanish?


The third juror who spoke Spanish was Catherine Rocca, who stated that she had taught Spanish in high school. J.A. 159. Mrs. Rocca was not questioned about her ancestry.

The fourth Spanish-speaking juror was Irma Quinones, who stated that she was of Puerto Rican ancestry, that she had spoken Spanish since she was a young child, and that she now usually spoke Spanish only at work. J. A. 220-21. She also revealed that her nephew had been "caught breaking and entering" and that during the previous year her daughter, then 13, had been accused of attempting to murder an eight-year old but that no charges had been brought. J.A. 217-19.

The final juror at issue was Mr. Bodet, who was originally from Haiti (J.A. 405) and stated that he "spoke [just a little bit] of Spanish" (J.A. 403). When informed that some of the defendants resided in Elizabeth, Mr. Bodet asked where they lived because he also resided in that city in an area with many Colombians. J.A. 400. It was discovered, however, that he did not live in the same part of the city. J.A. 401.

Defense counsel did not object to the prosecution's exercise of peremptory challenges until after the jury had been empaneled and sworn. At that point, counsel for Pemberthy and Moncada moved for a mistrial. In addition to arguing that Hispanics had been underrepresented in the jury pool, counsel for Pemberthy argued that the prosecution had discriminated against blacks and Hispanics in the use of its peremptory challenges. Counsel for Pemberthy stated that "there's no question in my mind that any juror that said they spoke Spanish was excused and that was more than just Hispanic jurors." J.A. 441. When the court questioned whether every Spanish-speaking juror had in fact been stricken, Pemberthy's counsel responded:

Everyone. There was one juror that I remember specifically who was not Hispanic who taught ...

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