United States v. Juana Espericueta De Gross

with whom Circuit Judges WALLACE, HUG, SCHROEDER and ALARCON, join, concurring in the judgment:

I agree with the majority that De Gross’s conviction must be reversed. However, I do not agree that a criminal defendant is a state actor. Accordingly, I do not join in the majority’s reasoning. To the contrary, I base my decision to reverse on the very proposition rejected by the majority in its opinion.

A

The majority holds that, under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the government may object to the exercise of peremptory challenges by criminal defendants. Central to the majority’s holding is its conclusion that those whom the state seeks to incarcerate (or possibly even execute) — the quintessential adversaries of the -state — are state actors. If, as I believe, criminal defendants cannot be so characterized, then their actions cannot violate the Constitution, and the government may not assert, as it was permitted to do here, a Batson objection to a challenge of a prospective juror made by the defendant. See Edmonson v. Leesville Concrete Co., — U.S. -, 111 S.Ct. 2077, 2082 , 114 L.Ed.2d 660 (1991). According to the majority, the Supreme…

A jury convicted Juana Espericueta De Gross of aiding and abetting the transportation of an alien within the United States. De Gross appealed her conviction. A panel of this court reversed her conviction. 913 F.2d 1417 . The panel’s judgment was vacated, however, by our decision to rehear this case en banc. 930 F.2d 695 . Now, after supplemental briefing and argument by the parties and by amicus curiae, we once again determine to reverse the judgment of the district court.

BACKGROUND

De Gross pled not guilty to three counts of aiding and abetting the transportation of an alien within the United States. During voir dire, the government objected to De Gross’ peremptory challenge of Wendell Tiffany, a male venireperson. At that point, De Gross had peremptorily struck 1 *1436 seven male venirepersons. The government argued that this pattern of striking males established De Gross’ discriminatory intent to exclude male venirepersons in violation of their constitutional rights to equal protection of the laws. The district court ruled that the government had established a prima facie case of purposeful discrimination, and required De Gross to justify her challenge. De Gross offered no…

960 F.2d 1433 60 USLW 2639 UNITED STATES of America, Plaintiff-Appellee, v. Juana Espericueta DE GROSS, Defendant-Appellant. No. 87-5226. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted Sept. 26, 1991. Decided April 2, 1992. Edmundo Espinoza, San Diego, Cal. on brief, for defendant-appellant. William Braniff, U.S. Atty., San Diego, Cal., for plaintiff-appellee. Judy Clarke, McKenna & Cuneo, Mario G. Conte and Sara Rapport, Federal Defenders of San Diego, Inc., San Diego, Cal., for amicus curiae Nat. Ass'n of Crim. Defense Lawyers. Betty Wheeler, ACLU Foundation of San Diego, San Diego, Cal., for amicus curiae American Civil Liberties Union. Appeal from the United States District Court for the Southern District of California. Before: WALLACE, Chief Judge, HUG, TANG, SCHROEDER, ALARCON, D.W. NELSON, REINHARDT, BEEZER, WIGGINS, RYMER, FERNANDEZ, Circuit Judges. WIGGINS, Circuit Judge: 1 A jury convicted Juana Espericueta De Gross of aiding and abetting the transportation of an alien within the United States. De Gross appealed her conviction. A panel of this court reversed her conviction. 913 F.2d 1417 . The panel's judgment was vacated, however, by our…