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U.S. v. Collins, No. 06-50339 (1-7-09). Batson comes to the 9th again. This was a drug conviction, in which the government struck the only remaining African American. The defendant asked for justification, arguing that a prima facie Batson showing was made. The court said "no" because the defense had struck an African American, and there was no pattern shown as the prosecutor only struck one African American (albeit the only remaining one). The 9th (Gibson with a concurrence by Graber) reversed and remanded for an evidentiary hearing. The 9th reasoned that patterns and statistics were meaningless when there is only a sample of one. Adding to the difficulty is the fact that the court conducted the voir dire (another argument for attorney participation in voir dire). However, looking at other jurors similarly situated, and the totality of circumstances, the 9th felt that the defendant had met his burden, and so the government has to set forth its reasons at a hearing. The other grounds on appeal concerned the suppression of an audiotape recording that supposedly helped prove an entrapment defense, and the government's refusal to accept a subpoena for a witness of uncharged activities that supposedly supported the entrapment charge. The 9th affirmed the court's rulings on those claims. The defendant had notice of the recording's substance, and that a threat had been made, which was brought out at trial. As for the witness, the defendant knew of him before disclosure was required, and the government was not preventing or impending him from testifying. He was just ducking process. Graber, concurring, emphasizes the better practice for the prosecutor to state his reasons for striking jurors at the time of a Batson challenge. Dissenting, O'Scannlain argues that the majority applied the wrong standard of review -- a de novo rather than clear error. O'Scannlain would use a clear error because the district court later, at a new trial motion, stated that there was no justification or inference of discrimination, hence there was a finding.

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