United States Court of Appeals For the First Circuit

No. 17-1721

UNITED STATES OF AMERICA,

Appellee,

v.

LYNROLTE CEZAIRE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Thompson, Kayatta, and Barron, Circuit Judges.

James M. Falvey for appellant. Robert E. Richardson, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

September 23, 2019 BARRON, Circuit Judge. Lynrolte Cezaire challenges her

2017 convictions, after trial in the United States District Court

for the District of Massachusetts, for disclosure of social

security numbers, in violation of

(a)(8), and

aggravated identity theft, in violation of 18 U.S.C. § 1028A. She

was sentenced to one day of imprisonment for the first conviction

and to twenty-four months of imprisonment for the second. Cezaire,

who is Haitian American, raises only one issue on appeal: whether

the District Court abused its discretion by refusing her "request

for generalized and public race-based voir dire."

In arguing that the District Court abused its

discretion, Cezaire relies on Rosales-Lopez v. United States,

(1981). There, the Supreme Court of the United States

held that, under the federal Constitution, a trial judge in a

criminal case must ask prospective jurors, at least as a group,

about their potential racial biases during voir dire when "racial

issues [are] 'inextricably bound up with the conduct of the

trial,'" such as when a defendant asserts that he was framed

because of his race.

. The Court also held pursuant to

its supervisory powers over the federal judiciary that "federal

trial courts must [voir dire prospective jurors, at least as a

group, regarding racial bias] when requested by a defendant accused

of a violent crime and where the defendant and the victim are

members of different racial or ethnic groups,"

, but

- 2 - that, otherwise, a federal district court's "[f]ailure to honor [a

defendant's] request . . . will be reversible error only where the

circumstances of the case indicate that there is a reasonable

possibility that racial or ethnic prejudice might have influenced

the jury,"

.

Cezaire contends that, under Rosales-Lopez, her

convictions cannot stand. She asserts that she requested that the

District Court ask the prospective jurors as a group a question

during voir dire about whether any of them harbored racial bias,

the District Court denied that request, and there was a "reasonable

possibility" that racial bias might have affected the jury.1

To support that last contention, Cezaire notes that her "Haitian

background came up throughout the trial," as both Cezaire and the

government's main witness, Emeline Lubin, offered testimony

regarding their shared Haitian heritage and the Haitian practice

of establishing "sols" with family members in Haiti.

According to Cezaire, a "sol" is a "Haitian term that

refers to 'a short-term money saving method among a group of

people.'" Cezaire's testimony about "sols" was key, she claims,

because it helped to show that potentially incriminating text

messages between Cezaire and Lubin were actually about money she

1 Cezaire did not request that the District Court ask the prospective jurors individually about their possible racial biases, and so we do not address that issue.

- 3 - needed to withdraw from a "sol" she shared with an associate of

Lubin's brother.

To assess the merits of Cezaire's challenge, we begin by

reviewing the following colloquy between Cezaire's counsel and the

District Court that occurred during voir dire:

DEFENSE COUNSEL: Okay. I –- I didn’t ask for this, but I wonder if the Court would consider giving a race question to the jury. My client’s Haitian American. I note that the cooperating witness is also Haitian American, but there obviously are going to be witnesses who are not. I’m wondering if the Court would give that type of instruction. THE COURT: I don’t see anything in the case that would make it necessary. It’s not that kind -– you know, it’s not a -– DEFENSE COUNSEL: It is not that kind of case, but I just given the current climate in the –- THE COURT: I think –- DEFENSE COUNSEL: -- country, I always think it’s prudent to err on the side of caution to the extent that any jurors might give –- THE COURT: I think that the issue will be –- anyone who would answer the question adversely to their public image would answer one of my other questions that way, I think. DEFENSE COUNSEL: Okay. THE COURT: So let’s see. DEFENSE COUNSEL: Thank you.

Cezaire contends that this colloquy shows that she

requested that a question concerning racial bias be asked of the

group of prospective jurors during voir dire and that the District

Court denied her request, such that her challenge is preserved and

our review is for abuse of discretion. But, we do not agree.

- 4 - The District Court did not respond to the initial

suggestion by Cezaire's counsel to ask a question about racial

bias during voir dire by simply refusing to grant it. The District

Court instead stated that, although it did not see anything about

the case that indicated a need to ask such a question, it would be

willing to consider that request after it had an opportunity to

question the prospective jurors about their biases in general. As

the District Court put it, "anyone who would answer the [race]

question adversely to their public image would answer one of my

other questions that way, I think."

But, at that point, Cezaire's counsel did not then object

to the proposed course of action. Instead, she simply said,

"[o]kay," to which the District Court then added, "let's see."

And Cezaire's counsel then brought the exchange to a close by

saying only, "[t]hank you."

The record further shows that, after the District Court

asked the prospective jurors about whether they harbored any biases

that might affect their impartiality, Cezaire's counsel did not

then request that the District Court ask an additional question

that probed specifically for racial bias. Instead, Cezaire's

counsel chose not to raise the issue at all until she did so in

her opening brief to us on appeal.

Accordingly, we conclude that, even if the record does

not suffice to show that Cezaire waived the objection to the

- 5 - District Court's failure to ask a question about racial bias during

voir dire, it does suffice to show that the objection was at least

forfeited.2 Our review, therefore, is only for plain error. United

States v. Espinal-Almeida,

(1st Cir. 2012)

(citing United States v. Rivera-Rodríguez,

, 600–04

(1st Cir. 2010)).3 And, as Cezaire fails to make any argument as

to how she can meet that demanding standard, her claim must fail.

To be sure, there is precedent to indicate that jurors

will be forthcoming in some instances in disclosing their racial

biases, even when asked in a group setting. See United States v.

Casanova,

(1st Cir. 2018) (noting that three jurors

stood up to answer "yes" when asked if they "had 'any feelings of

any kind that may affect [their] ability in any way to be a fair

and impartial juror in the trial of an African American

defendant'"); State v. Long,

(N.J. 1990)

(Handler, J., concurring in part and dissenting in part) (stating

2"Forfeiture is the failure to make the timely assertion of a right, an example of which is an inadvertent failure to raise an argument. Waiver, in contrast, is the intentional relinquishment or abandonment of a known right." Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist.,

(3d Cir. 2017) (alteration omitted) (internal quotation marks omitted) (citations omitted). 3United States v. Bates,

(11th Cir. 2014) -- on which Cezaire relies in contending that she properly objected during voir dire -- is not to the contrary, as there the district court was faced with a request to ask a question concerning bias on the basis of sexual orientation in "clear and simple" terms and "specifically denied it."

at 885 n.2.

- 6 - that "[f]our jurors answered 'yes'" when asked "[w]ould the fact

that the defendant is black and one of the victims is white affect

or influence your judgment in this case?"). But, while this

precedent would appear to confirm the value of asking questions

specifically probing for racial bias, Cezaire fails to show that

the District Court's decision not to ask such a question here was

a clear or obvious error. In fact, far from making out that case,

Cezaire states in her reply brief that her challenge, on this

record, is "inconsistent" with our prior ruling in United States

v. Gelin,

(1st Cir. 2013).

There, the criminal defendants, who were also Haitian

Americans being tried for federal health-care fraud charges,

objected to the district court's failure to ask prospective jurors

about racial bias during voir dire. See

. On appeal,

the defendants challenged the district court's failure to ask about

racial bias on the ground that "race became a highly relevant issue

through the trial because extensive portions of the testimony

pointed to their Haitian heritage 'in [a] very inflammatory

manner.'"

(alteration in original). We rejected that

challenge, notwithstanding that the testimony of one government

witness did contain "racial overtones."

. We explained

that the defendants did not address the relevant case law in their

briefs, including Rosales-Lopez, see

, and that most of

- 7 - the trial "concentrated exclusively on the details of the

underlying fraudulent scheme,"

.

Cezaire makes no argument that Gelin itself is

distinguishable. Instead, she contends only that it may not

control because we have decided other cases since Gelin that have

considered challenges to a district court's decision regarding the

asking of prospective jurors about racial bias, such as United

States v. Parker,

(1st Cir. 2017), cert. denied,

(2018), and Casanova,

. But, neither case in

any way suggests that, given Gelin, it was clear or obvious error

for the District Court in this case to refuse to ask such a

question.

Accordingly, the judgment is affirmed.

- 8 -