United States v. Rafael Chinchilla and Carlos Alberto Escobar

dissenting:

I agree that a prima facie case of discrimination was made out. I agree that Batson v. Kentucky, 476 U.S. 79 , 98 n. 21, 106 S.Ct. 1712 , 1724 n. 21, 90 L.Ed.2d 69 (1986) requires us to give “great deference” to the trial court judge’s determination whether the defendant has established purposeful discrimination in the jury selection context.

For those very reasons, however, I would affirm Judge Thompson’s ruling of no purposeful exclusion because of his better opportunity to gauge the credibility of the government’s explanation. Although one of the bases for challenge enunciated by the government — the place of residence of juror Osuna — was inadequate because an unchallenged juror resided in the same location, three other possible legitimate grounds remain — the age and appearance of the alternate juror and the occupation of juror Osuna. In its valuation of these latter three stated reasons for the government’s challenges, the trial court found no evidence of systematic exlusion of hispanic jurors and was satisfied with the government’s explanation. Summary though it might be, such finding should have been accorded the “great deference” required by Batson .

874 F.2d 695 UNITED STATES of America, Plaintiff-Appellee, v. Rafael CHINCHILLA and Carlos Alberto Escobar, Defendants-Appellants. Nos. 87-5102, 5112. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 11, 1987. Decided May 11, 1989. 1 Cynthia G. Aaron, Charles D. Weisselberg, Trial Attorney, Federal Defenders of San Diego, Inc., Maxine I. Dobro, San Diego, Cal., for defendants-appellants. 2 William D. Baldwin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. 3 Appeal from the United States District Court for the Southern District of California. 4 Before O'SCANNLAIN and LEAVY, Circuit Judges, and WILLIAMS, * District Judge. SPENCER WILLIAMS, District Judge: 5 Chinchilla and Escobar appeal their conviction for crimes related to the importation and possession of marijuana. Their principal attack alleges discriminatory use of peremptory challenges in jury selection. We agree and reverse. FACTS AND PROCEEDINGS 6 On November 1, 1986, Arnoldo Fuentes drove a van containing marijuana across the Mexico-United States border. After crossing the border, authorities found the marijuana and arrested Fuentes. 7 Fuentes told agents that Chinchilla had (1) paid him…

Chinchilla and Escobar appeal their conviction for crimes related to the importation and possession of marijuana. Their principal attack alleges discriminatory use of peremptory challenges in jury selection. We agree and reverse.

FACTS AND PROCEEDINGS

On November 1, 1986, Amoldo Fuentes drove a van containing marijuana across the Mexico-United States border. After crossing the border, authorities found the marijuana and arrested Fuentes.

Fuentes told agents that Chinchilla had (1) paid him $150 to drive the van from Tijuana, Mexico to Los Angeles; (2) introduced him to Escobar, who then drove Fuentes to San Ysidro, California, a city adjacent to the border; and (3) given Fuentes a number to call if he needed additional help.

Fuentes then helped the authorities by drawing Chinchilla and Escobar into incriminating tape-recorded conversations. Shortly after his arrest, Fuentes called Chinchilla and told him the van had broken down in San Ysidro and that he smelled marijuana in the van. Chinchilla said he would send Escobar to help bring the van back. Chinchilla also said he would now pay Fuentes $4,000 to $5,000 to bring the van back.

*697 Several hours later, Escobar arrived.…