On Appeal from the United States District Court for the District of New Jersey District Court Judge: Honorable Jerome B. Simandle (D.C. No. 99-cr-00728)
Before: Fuentes, Stapleton, Circuit Judges, and
O'KELLEY,*fn1 District Judge.
The opinion of the court was delivered by: Fuentes, Circuit Judge
Argued on December 13, 2002
The primary issue in this appeal is whether the government violated the Equal Protection Clause when it peremptorily struck two African American, presumably Christian, jurors from the venire. The District Court held that race was not a factor in the strikes and that the government's religion-related reasons for the strikes were permissible. Because we are satisfied that the government's peremptory strikes in this case were based on the jurors' heightened religious involvement rather than a specific religious affiliation, and because they were not racially motivated, we will affirm.
Following a report of a stolen car and a high-speed pursuit, Jerry DeJesus was stopped, arrested, and found to be carrying a firearm and two magazine clips in his jacket pocket. Due to a prior felony conviction, DeJesus was charged with the illegal possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). DeJesus' first trial ended in a mistrial after the jury was unable to reach a verdict. After a three-day retrial, the jury found him guilty. Thereafter, DeJesus was sentenced to a prison term of 110 months, three years of supervised release, and a special assessment of $100. DeJesus filed a timely notice of appeal. In addition to DeJesus' jury selection claim, he appeals his sentence. We will set forth only the facts that relate to these two issues.
Jury selection for DeJesus' retrial was conducted in three phases. First, the prospective jurors were asked to complete a questionnaire. Second, the District Court conducted individual voir dire of prospective jurors. Third, the government and the defense had an opportunity to exercise their statutorily-allotted peremptory strikes.
During the selection process, prospective juror Ronald McBride revealed that a cousin to whom he had been close had been murdered, but that he had learned to forgive the murderer. (App. at 126). On the juror questionnaire McBride stated that: (a) his hobbies involve civic activities with his church; (b) he reads the Christian Book Dispatcher; (c) he holds several biblical degrees; (d) he is a deacon and Sunday School teacher in the local church; and, (e) he sings in a couple of church choirs. Id. at 93, 127. Prospective juror James Bates revealed that: (a) he is an officer and trustee in his church; (b) he reads the Bible and related literature; and, (c) his hobbies are church activities. Id. at 91, 130.
The government peremptorily struck Bates and McBride. As a result, defense counsel posed a Batson challenge.*fn2
Defense counsel asserted that the only thing Bates and McBride had in common was that they were both African American. She also pointed out that there was only one other African American juror remaining in the jury pool.*fn3
The District Court asked the government to state the reasons for the strikes.
In response, the government explained that the strike against McBride was based on the juror's high degree of religious involvement and his ability to forgive his cousin's murderer, both of which might make him reluctant to convict. Id. at 128-29. In regard to the strike against Bates, the government explained that when Bates was brought "from the jury pool up into the box and throughout the duration," the juror "looked the government's way and then turned his eyes away several times." Id. at 130. According to the government, Bates' unwillingness to make eye contact demonstrated a possible anti-government prejudice. The government also explained that Bates' "fairly strong religious beliefs" might prevent him from rendering judgment against another human being. Id.
The District Court asked the government if it was "undervaluing" the fact that Bates and McBride "answered questions to the effect that they would follow the law and that they would consider only the evidence in this case." Id. at 130. The government responded, "No, your Honor, I don't think we are.... [T]he government submits that the answers about the strong [religious] beliefs outweigh, in this case, their ability to be fair and impartial jurors." Id. at 131.
Defense counsel responded that peremptory strikes based on religion would be just as improper as those based on race, and urged the District Court to grant the Batson challenge on that ground as well. Id. at 128. Counsel continued to argue, though, that the government's stated reasons were a pretext for racial discrimination. Id. at 131-32. As proof, defense counsel pointed to the fact that the same two government attorneys did not strike Jacquelin Wood as a juror in DeJesus' first trial. Id. at 131. Wood was a minister who had several degrees in different religious studies. Id. In response, the government stated that "Ms. Wood did have some religious convictions.... She was not stricken. But, again, we believe we've learned from the experience. Why we're all here today on a retrial, it may very well have been, your Honor, some type of religious belief that infected or paraded into the jury's province in the first trial." Id. at 133.
The District Court accepted the government's stated reasons for the peremptory strikes against jurors Bates and McBride, and denied defense counsel's Batson challenge. Id. at 134. The District Court explained its understanding that the defendant's challenge was not "a challenge based on some denomination of religion, but it is a challenge based upon how the jurors chose to spend their time, reading the bible." Id. at 135.
Thereafter, the government used another peremptory strike to remove prospective juror George B. Pressey, a Caucasian man, from the jury pool. Id. at 146. This juror listed his interests as being active in his church, including serving on the board of trustees, heading up the building of a new sanctuary, and being in charge of the ushering department. Id. at 144-45. The government was not called upon to explain its reasons for striking Pressey.
The final jury, including one alternate, was comprised of three African Americans, nine Caucasians, and one Hispanic. There were six men and seven women. The government had three of its six peremptory strikes remaining, and the defense had three of its ten strikes remaining. Id. at 17 n.2.
The next day, defense counsel moved for a mistrial on the basis of the Batson objections. Id. at 247. Counsel argued that the government's peremptory strikes against Bates and McBride were impermissibly motivated by either the race or the religious affiliation of the jurors. Id. at 243-45. Counsel also belatedly objected to the peremptory strike of Pressey, a Caucasian man, because that strike, too, was motivated by his religious affiliation. Id. at 245. According to defense counsel, the religious denominations of Bates, McBride, and Pressey were clearly Christian because "they stated that they studied and read the Bible." Id. at 244. In response, the government stated that it had "no idea" as to the specific religious affiliation of the stricken jurors because that was not developed during voir dire. Id. at 247. The District Court provisionally denied the mistrial application and allowed the trial to go forward, pending additional research on the issue. Id. at 249.
B. District Court Opinion
On January 24, 2002, the District Court issued an opinion denying DeJesus' mistrial application. The District Court held that "while Batson may extend to protect against striking a potential juror based upon the juror's membership in a particular religious denomination having no relevance to the issues in the case, none of these jurors were struck by the government upon an impermissible ground." Id. at 13.
During the sentencing proceeding on January 25, 2002, defense counsel objected to the four-level upward adjustment recommended by the Probation Department under United States Sentencing Guidelines § 2K2.1(b)(5). The District Court identified the issue as "whether the defendant possessed a firearm in connection with another felony offense of car theft and receiving stolen property." Id. at 262. Defense counsel argued that the government had failed to meet its burden of proving that there was a connection between DeJesus' possession of a firearm and his commission of another felony offense. In fact, counsel asserted that "the firearm played no role in the actual car theft. He did not use the gun in any manner to facilitate the car theft." Id. The government argued that the fact that DeJesus did not actually display the gun during the car theft is of no moment under the case law; the mere fact that he had a firearm in his possession emboldened him to steal the car. Id. at 265.
The District Court found that DeJesus had a firearm in his right jacket pocket when he was arrested, which was within 10 to 15 minutes of the car theft. The District Court, concluding that it is reasonable to infer that the purpose of possessing a handgun ...