FILED

NOT FOR PUBLICATION

AUG 30 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50015

Plaintiff-Appellee, D.C. No. 3:15-cr-00622-LAB-1 v.

MARCELO JOEL SANTOS-CORDERO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted August 8, 2018 Pasadena, California

Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,** District Judge.

Marcelo Joel Santos-Cordero (Santos) appeals from the district court’s

denial on remand of his challenge to the government’s peremptory challenge to a

Hispanic juror. See Batson v. Kentucky, 476 U.S. 79 (1986). In particular, Santos

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. asserts that even on remand the district court misunderstood the purpose of a

Batson proceeding and was overly concerned with labeling the prosecutor as racist.

He also argues that the prosecutors should be compelled to submit their jury

selection notes to the district court for in camera review. We affirm.1

1. Whether the district court properly applied the Batson framework is

reviewed de novo and its findings are reviewed for clear error. United States v.

Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir. 2015). Also, the opponent to the strike

has the burden of proving a challenge was improper by a preponderance of the

evidence. Shirley v. Yates, 807 F.3d 1090, 1107 (9th Cir. 2015).

In Santos’s initial appeal, the Ninth Circuit determined that the district court

had violated the Batson framework when, “before offering defense counsel an

opportunity to explain its objection, it offered its own speculation as to reasons the

prosecutor might have challenged the juror.” United States v. Santos-Cordero, 669

F. App’x 417, 418 (9th Cir. 2016).

On remand, the district court, although asserting that it had not speculated,

allowed Santos’s counsel to explain the Batson objection and had the prosecutor

state her reasons for the challenge. The court then held that the explanation—that

1 Because the parties are familiar with the factual and procedural history of the case, we need not recount it here. 2 Ms. Perez’s answers had demonstrated a lack of confidence in her ability to be

impartial—was racially neutral, conformed to the court’s observation of Ms. Perez,

and did not reflect a systematic pattern of discrimination. Santos offered nothing

to suggest that Ms. Perez’s answers did not reflect a lack of confidence.

Instead, Santos argues that because the district court’s conclusion “was the

result of a faulty process,” it cannot stand. But this elevates form over substance.

The district court ultimately completed the three steps of the Batson process and

the record fully supports the determination that Santos has failed to show a

discriminatory purpose for the challenge.

2. Although courts have reviewed jury selection notes when adjudicating

Batson challenges, no court has suggested that the prosecutor is compelled to

disclose those notes, even for in camera inspection. Here, the evidentiary hearing

on remand was only two years after voir dire, the original prosecutor participated

in the hearing and had a clear memory of voir dire, and there are no inconsistencies

or questionable representations by the prosecutor that might suggest a

discriminatory purpose. Thus, even if in some instance a prosecutor might be

compelled to disclose jury selection notes, Santos has not shown the need for such

an unprecedented holding in this case.

The district court’s rejection of Santos’ Batson claim is AFFIRMED.

3