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United States v. Collins

January 7, 2009


Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding. D.C. No. CR-04-01222-RGK-01.

The opinion of the court was delivered by: Gibson, Circuit Judge



Argued and Submitted March 6, 2008-Pasadena, California

Before: John R. Gibson,*fn1 Diarmuid F. O'Scannlain, and Susan P. Graber, Circuit Judges.

Concurrence by Judge Graber; Partial Concurrence and Partial Dissent by Judge O'Scannlain


Gwaine Lavon Collins was indicted, along with four other individuals, for six counts of conspiracy to possess with intent to distribute and to distribute methamphetamine, 21 U.S.C. §§ 846 and 841(a)(1), and possession of methamphetamine, 21 U.S.C. § 844. He was tried on the conspiracy count and on two counts of distribution: first, for distributing 919 grams of methamphetamine on August 10, 2004, and second, for distributing 3,124 kilograms of methamphetamine on August 17, 2004. Collins was convicted of each count after a trial by jury. At trial, Collins admitted to his participation in the drug sales, but he argued that he was entrapped to perform those sales by government informant James Kim. On appeal, he raises three arguments: (1) the district erred in refusing to require the government to state its reason for striking the sole remaining African-American from the potential jury, Batson v. Kentucky, 476 U.S. 79 (1986); (2) the government suppressed an audiotape recording of a conversation between Kim and another drug dealer in contravention of Collins's constitutional rights under the compulsory process clause, Brady v. Maryland, 373 U.S. 83 (1963), and the confrontation clause; and (3) the district court erred when it refused to require the government to accept a subpoena for confidential informant Danny Yim, a principal witness in the uncharged misconduct of the defendant that Collins argued supported his entrapment defense. We affirm in all respects except the Batson issue, on which we reverse and remand for an evidentiary hearing.

We need not recount Collins's participation in the two August methamphetamine transactions because Collins does not dispute his involvement in those sales. Rather, we set forth the facts alleged at trial that are necessary to understand Collins's entrapment defense, which is largely drawn from Collins's own testimony.

Collins and Kim befriended one another while incarcerated in the Metropolitan Detention Center in Los Angeles, California. While in prison, Kim and Collins discussed Kim helping Collins become involved with Kim's import/export business of (non-narcotic) goods. According to Collins, when he was released he soon contacted Kim, and they proceeded together on several potential business ventures, none of which appears to have been executed. Unbeknownst to Collins, Kim was already preparing to work as a government informant as far back as their time in prison together.

The crux of Collins's entrapment claim is that, according to Collins, in late June 2004, Kim became distraught because he needed a lot of money to pay off the escrow on his restaurant, which was subject to a lien. According to Collins, Kim asked him to find some drugs they could sell. Collins claimed Kim was agitated and intoxicated when he told him about the restaurant problem. Despite Kim's predicament, Collins claimed that he initially refused because he had no desire to get back into the drug business. But, Collins testified, Kim repeatedly called him, with some new "drama," and continued to ask him about selling drugs. Collins testified that he tried to convince Kim that they could make the money Kim needed through their other ventures and even offered to give Kim his share of the profits from a DVD import deal they had previously discussed. Kim, however, was unresponsive to any of Collins's inquires regarding the other business. Finally, Collins relented and helped Kim procure methamphetamine in July, although Collins claimed that he received no money from that deal, but rather did it solely to help the distraught Kim. After the uncharged deal in July, Collins claimed that he initially refused to be involved further with drugs. Collins relented again and participated in the two August deals, which formed the basis for his convictions. He admitted that he intended to invest his own money in a pound of methamphetamine so he could sell it. Kim testified that Collins never said he did not want to do the drug deals, but that "he always wanted to do it."


[1] "[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Batson, 476 U.S. at 89. When a defendant alleges a Batson violation, a three-part burden shifting test is used to determine if the potential juror was challenged on the basis of impermissible discrimination. At the outset, the defendant must make a prima facie showing that the challenge was based on an impermissible ground, such as race. Id. at 96. "This is a burden of production, not a burden of persuasion." Green v. Lamarque, 532 F.3d 1028, 1029 (9th Cir. 2008); accord Johnson v. California, 545 U.S. 162, 170-71 (2005). "Second, if the trial court finds the defendant has made a prima facie case of discrimination, the burden then shifts to the prosecution to offer a race-neutral reason for the challenge that relates to the case." Green, 532 F.3d at 1030; accord Batson, 476 U.S. at 97. "Third, if the prosecutor offers a race-neutral explanation, the trial court must decide whether the defendant has proved the prosecutor's motive for the strike was purposeful racial discrimination." Green, 532 F.3d at 1030; accord Johnson, 545 U.S. at 168; Batson, 476 U.S. at 98.

[2] Collins objected when the prosecution struck Juror No. 9, the only remaining African-American member on the panel, and argued that she was struck on account of her race. The district court found that Collins failed to make a prima facie showing of discrimination and did not require the government to explain why it peremptorily removed Juror No. 9. We generally review a district court's Batson determination for clear error because of the intrinsically factual nature of the claim. Tolbert v. Page, 182 F.3d 677, 681-82 (9th Cir. 1999) (en banc). However, where the district court applies the wrong legal standard, we review the claim de novo. See Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004) (concluding that the state court applied the wrong standard by requiring defendant to "show a strong likelihood" of bias). The correct test for a prima facie case of discrimination is whether the defendant has shown that "(1) the prospective juror is a member of a cognizable racial group, (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motivated by race." Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006) (internal quotation marks omitted), cert. denied, 127 S.Ct. 2249 (2007). A pattern of striking panel members from a cognizable racial group is probative of discriminatory intent, but a prima facie case does not require a pattern because "the Constitution forbids striking even a single prospective juror for a discriminatory purpose." United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994); accord United States v. Esparza-Gonzalez, 422 F.3d 897, 904 (9th Cir. 2005) (holding that prima facie case was shown where prosecutor struck the only Latino prospective juror as well as the only Latino potential alternate juror).

When Collins objected to the government's challenge of Juror No. 9, the district court offered the government the opportunity to respond but the government declined, stating, "I don't believe sufficient showing has been made." The district court proceeded to rule that no prima facie case had been made. "First [African-American panel member was] excused by defense. First time [the government] has excused any [African-American panel members]. No pattern. No. Overrule without prejudice." Collins protested, "I'm objecting that it can't be a pattern because it's the only one [African-American panel member] left." The court did not address Collins's argument, but said "Okay. With the defense," and voir dire continued."

[3] Based on the court's brief statements, we conclude that it applied an improper standard by requiring Collins to demonstrate a pattern of strikes against a cognizable racial group before requiring the government to state a reason. Vasquez-Lopez, 22 F.3d at 902. The government's attempts on appeal to interpret the district court's comments in any other way are unconvincing. Moreover, we conclude that the district court did not correct its error when Collins renewed his Batson motion after trial. Although the court recited the proper standard at the post-trial hearing, it did not recognize its prior error: it said, "I have no reason to reverse the original ruling." Consequently, we cannot be certain that the district court was not under the impression that a "pattern" of strikes was required. Therefore, we review de novo Collins's equal protection argument.

[4] The first two elements of a prima facie case do not appear to be in dispute; Juror No. 9 is a member of a cognizable racial group, and the prosecutor used a peremptory strike to remove her. Rather, the parties' debate concerns whether the allegation gives "rise to an inference" of discrimination, which is a less burdensome standard of proof than the preponderance ("more likely than not") standard. Johnson, 545 U.S. at 168. "[T]he burden for making a prima facie case is not an onerous one." Boyd, 467 F.3d at 1151. At the prima facie stage of a Batson challenge, the burden of proof required of the defendant is small, especially because proceeding to the second step of the Batson test puts only a slight burden on the government. This is because the government never bears the ultimate burden of persuading the district court that it did not act with a discriminatory purpose; that burden persists with the defendant. Johnson, 545 U.S. at 170-71. Rather, an easily met burden of proof momentarily shifts, at step two, to the government: to meet its burden, the government need only disclose its (nondiscriminatory) purpose for striking the potential juror. See id. at 171 (stating that the government satisfies its burden of proof even if it presents "only a frivolous or utterly nonsensical justification for its strike"). The ultimate burden then returns to the defendant at step three, and the defendant must persuade the district court that the govern-ment's (nondiscriminatory) reason is pre-textual. Id. A single inference of discrimination based on "all [the] relevant circumstances" and the "totality of relevant facts" is sufficient to move the Batson inquiry to step two. See, e.g., Batson, 476 U.S. at 94, 96.

[5] The government relies heavily upon Vasquez-Lopez, 22 F.3d at 902, where we said that "the fact that the juror was the one [b]lack member of the venire does not, in itself, raise an inference of discrimination." See id. (applying clear error standard of review). This should not be a controversial statement because it is not the prosecutor who chooses the panel members. Therefore, under a Batson challenge, we do not hold against the government the fact that the panel lacked African-American members.*fn2 The lack of diversity in the panel, along with the removal of each African-American, however, does justify close scrutiny of the challenge. See United States v. Chinchilla, 874 F.2d 695, 698 n.5 (9th Cir. 1989) ("However, although the striking of one or two members of the same racial group may not always constitute a prima facie case, it is preferable for the court to err on the side of the defendant's rights to a fair and impartial jury."). Moreover, if we do not look closely at the prosecutor's challenge of the sole African-American, it would be impossible for a defendant in Collins's position to establish a case of prima facie discrimination.

Courts have discussed several situations in which a prima facie case of discrimination may exist. The Supreme Court has said that the existence of a pattern of striking minority panel members is a relevant consideration that may raise an inference of discrimination. Batson, 476 U.S. at 96-97. We have found an inference of discrimination where the prosecutor strikes a large number of panel members from the same racial group, or where the prosecutor uses a disproportionate number of strikes against members of a single racial group. Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002). Striking members of more than one protected group is also relevant and may indicate a discriminatory intent. Id. at 1079-80. A prosecutor's questions and statements to the venire are relevant because they might provide insight into her motive. ...

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