United States of America v. John Roger Reed

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN ROGER REED,
Defendant-Appellant.
No. 18-10307
D.C. No.
3:17-cr-08178-SMM-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted December 4, 2019**
San Francisco, California
Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit
Judges.
John Roger Reed appeals his jury convictions for assault with a dangerous
weapon, a violent crime against a child, in violation of 18 U.S.C. §§ 1153,
113(a)(1), and 3559(f)(3); assault resulting in serious bodily injury, in violation of
FILED
DEC 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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18 U.S.C. §§ 1153 and 113(a)(6); and assault with a dangerous weapon, in
violation of 18 U.S.C. § 1153 and 113(a)(3). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
The district court did not err in permitting the prosecution to peremptorily
challenge the only Native American prospective juror left in the jury pool at the
time of the strike. See Batson v. Kentucky, 476 U.S. 79, 98 (1986). A Batson
challenge triggers a three-step inquiry:
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. Second, if that
showing has been made, the prosecution must offer a race-neutral basis
for striking the juror in question. Third, in light of the parties'
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir. 2015) (quoting Miller-
El v. Cockrell, 537 U.S. 322, 328–29 (2003)). Because the first issue under Batson
is moot, see Hernandez v. New York, 500 U.S. 352, 359 (1991), we address only
the second and third steps.
We review de novo whether the government’s reasoning withstands scrutiny
at step two, United States v. Steele, 298 F.3d 906, 910 (9th Cir. 2002), and
conclude that it was both facially race-neutral and “related to the particular case to
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be tried,” Yee v. Duncan, 463 F.3d 893, 898 (9th Cir. 2006) (quoting Batson, 476
U.S. at 98).
The prosecutor premised the strike on the juror’s “hostility.” A prospective
juror’s perceived hostility is facially unrelated to race. See United States v. Power,
881 F.2d 733, 740 (9th Cir. 1989) (finding race-neutral reason in prosecutor’s
speculation that prospective juror “might be hostile to the government”); see also
Williams v. Rhoades, 354 F.3d 1101, 1109 (9th Cir. 2004) (affirming rejection of
Batson challenge where prosecutor struck venire person for being “cold and
evasive”), cert. denied, 543 U.S. 926 (2004). Additionally, a juror’s hostility
toward the prosecution, on which the burden of proof rests, and the trial court,
which will provide instructions that are to guide a juror’s determination of the case,
plainly implicates an individual’s fitness for jury service. Cf. Kesser v. Cambra,
465 F.3d 351, 364 (9th Cir. 2005) (en banc) (holding that stated reason for strike
was unrelated to case where prosecutor failed to explain why prospective juror’s
“pretentious” attitude about her job “would render her unsuitable for the jury” in
criminal case); United States v. Bergodere, 40 F.3d 512, 517 (1st Cir. 1994)
(explaining that “core purpose” of voir dire is to “ferret[] out bias”).
In this case, the prospective juror expressed hostility toward the prosecutor
and the government’s theory. As the district court observed in denying the Batson
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challenge: “[The prospective juror] was openly hostile to the government and the
point of view—even openly hostile to the Court.” In sum, the record supports the
district court’s conclusion that the prosecutor had race-neutral reasons for
exercising the peremptory challenge.
AFFIRMED.
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