UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHAWN JACKSON, Defendant-Appellant.
No. 02-3583
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: October 20, 2003
2003 FED App. 0371P (6th Cir.)
Before: NELSON, GIBBONS, and SUTTON, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 03a0371p.06. Argued: September 11, 2003.
COUNSEL
OPINION
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Shawn Jackson was convicted of one count of post office robbery in violation of
I.
On August 28, 2001, Jackson was indicted by a federal grand jury in the Southern District of Ohio for one count of post office robbery in violation of
Nonetheless, the government later exercised a peremptory challenge to exclude Turner. At the timе, Turner was the only African-American on the jury panel. Jackson did not raise an objection to the government’s peremptory challenge until after the jury and two alternates were selected. Counsel for Jackson did not object earlier because he believed that Turner had no chance of being on the panel, but once the selection process was over it became clear thаt Turner would have been
The gentleman was unresponsive . . . to a question of the Court. The Court asked . . . if anyone had been involved in the government and [would that] in some way affect your ability to serve on the jury. He stood up and said, he was in the Air Force for 21 years and retired from the Air Force and that wouldn’t affect him.
Counsel for the government, both Miss Guerrier and myself believe that this gentleman wanted to get up and give a speech for one reason or another. The government didn’t like the kind of attitude that we believe he was putting forth and his demeanor. That’s the reason the strike was made.
Jackson did not object to the government’s proffered explanation, nor did he argue that it was a pretext for discriminatory animus. The district court concluded that the government had offered a legitimate, non-discriminatory reason in response to Jackson’s Batson challenge, and Jackson did not object to that ruling or request a more detailed record of the judge’s rationale.
On the third day of trial, the government revisited the issue of Jackson’s Batson objection in a conference with the district court judge. The government’s lead counsel, Mona Guerrier, volunteered that she was the one who initially felt uncomfortable with Turner’s demeanor and she also indicated for the record that she is an African-American. The court indicated that her explanation could not be considered because it was being offered three days into the trial. Once again, at the conclusion of the government’s comments, Jackson made no additional objections or arguments with respect to the Batson issue.
The evidence presented at trial established that on the day of the robbery, Jackson went to the Dayton post office with his girlfriend’s brother, Tim Anderson. While in the post office, Jackson observed a transaction involving approximately $1,900.00. As he was lеaving, Jackson told Anderson that he had “cased [his] spot.” According to Anderson, at the time Jackson was wearing a dark-colored windbreaker, dark pants, white tennis shoes, and a baseball cap with a New York logo on it. After visiting the post office, Jackson borrowed a red and white bicycle from his friend Tony Harris.
Barbara Barnett, a postal clerk, testified that on May 24, 2001, a black male between the ages of еighteen and twenty, wearing a New York baseball hat and a dark jacket approached the counter and gave her a note stating, “Hand me your cash. I have a gun.” She then “looked at him in the eyes and said, ‘Are you sure you really want to do this?’” The robber became angry and leaned toward her and said “give me the damn cash.” During this exchange, Barnett noticed that the robber had a gap between his front teeth. Barnett then gave him the cash from her drawer.
Shortly after the robbery, Barnett viewed a photo line-up and identified Jackson as the robber. Barnett indicated that she was sixty to seventy percent sure of her identification. At trial, Barnett again identified Jackson as the robber. During her testimony, Jackson was asked to smile and expose his teeth to Barnett and the jury, and Barnett confirmed that Jackson had a gap between his front teeth.
At the close of the trial, Jackson submitted several proposed jury instructions. Specifically, Jackson requested the following instruction on his theory of defense:
The defense says that Shawn Jackson was misidentified as the robber of the post office by the witnesses who were there thаt day. The defense further says that the acquaintances of Shawn Jackson had motivations which show they were being untruthful.
The district court declined this request because it found that the instruction was unnecessary and not required by law.
Jackson also requested the following instruction regarding some of the identification testimony that had been offered at his trial:
You have heard the testimony of Barb Barnett and Catherine Green, who have identified the defendant as the person who robbed the post office. You should carefully consider whether this identification was accurate and reliable.
The proposed instruction also set forth factors that Jackson wanted the jurors to consider in determining whether the identification was accurate and reliable. The district court again declined to give the instruction, stating: “My concern is that I think the aсcuracy of the identification can be argued under credibility. I don’t think a separate instruction is necessary.” The court did provide a general instruction to the jury on assessing the credibility of each witness:
Consider carefully the circumstances under which each witness testified. Remember the witness’s response to questions, his or her assurance or lack of it in answering, and the entire demeanor or appearance of that witness while on the witness stand.
Consider also any relation that a witness may bear to either side of the case and his or her reasons for testifying, any interest he or she may have in the outcome of the case. Any prejudice or bias he or she may have shown including any reason or motivation to bear hostility or animosity toward a party and any partiality he or she may have demonstrated.
On November 9, 2001, thе jury returned a guilty verdict. On May 15, 2002, the district court sentenced Jackson to ninety-six months incarceration, three years supervised release, and one hundred hours of
II.
A. Jackson’s Batson Objection
Jackson argues that the government violated his right to equаl protection when it used a peremptory challenge to strike Turner, the only remaining African-American member of the jury panel. After counsel for Jackson raised a Batson objection to the government’s peremptory challenge, the district court required the government to state its reasons for excluding Turner on the record. Counsel for the government indicated that he struck Turner from the panel because he did not like his demeanor and “attitude.” The district court concluded that the government had offered a legitimate, non-discriminatory reason for the challenge and overruled Jackson’s objection.
The Equal Protection Clause prohibits a party from using peremptory challenges to exclude members of the venire on account of their race. Batson v. Kentucky, 476 U.S. 71, 79 (1981); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 630-31 (1991) (extending Batson to civil cases). In order to establish an equal protection violation under Batson, the complaining party must first make a prima facie showing that the peremptory challenge was based on race. McCurdy v. Montgomery County, 240 F.3d 512, 521 (6th Cir. 2001). If the complaining party establishes a prima facie case, the burden of persuasion then shifts to the party making the strike to articulate a race-neutral explanation for removing the juror in question. Id. This explanation “need not be particularly persuasive, or even plausible, so long as it is neutral.” Id. at 521 (citing United States v. Harris, 192 F.3d 580, 586 (6th Cir. 1999)). Once a race-neutral explanation is produced, the complaining party must prove purposeful discrimination. Batson, 476 U.S. at 98. Purposeful discrimination may be shown by demonstrating that the proffered explanation is merely a pretext for racial motivation. McCurdy, 240 F.3d at 521. Throughout the Batson inquiry, the ultimate burden of persuasion always rests with the party challenging the strike. Id.; see also United States v. Mahan, 190 F.3d 416, 424 (6th Cir. 1999). A district court’s ruling on whether the exercise of a peremptory challenge violates equal protection is entitled to great deference and will not be reversed unless it is clearly erroneous. United States v. Buchanan, 213 F.3d 302, 308-09 (6th Cir. 2000).
In the instant cаse, the district court asked the government for an explanation for its decision to strike Turner without considering whether Jackson had established a prima facie case.1 However, once a party offers a race-neutral explanation for a peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination, “the preliminary issue of whether the defendant [has] made a prima facie showing of intentional discrimination becomes moot.” Hernandez v. New York, 500 U.S. 352, 359 (1991); Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 780 (6th Cir. 2003). Thus, we need not consider whether Jackson
The second step in the Batson inquiry is to assess whether the government articulated a race-neutral explanation for its decision to strike Turner from the panel. A district court must
independently assess a race-neutral explanation and explicitly rule on its credibility, “particularly in cases when the purported race-neutral justification is predicated on subjective explanations like body language or demeanor.” McCurdy, 240 F.3d at 521. It is inappropriate for а district court to perfunctorily accept a race-neutral explanation without engaging in further investigation. Id. at 520-21. However, “it is the defendant’s burden to rebut, to whatever extent possible, the prosecutor’s reasons for exercising his or her peremptory strikes on the record at the time such reasons are proffered.” United States v. Harris, No. 00-3474, 2001 WL 873642, at *3 (6th Cir. July 26, 2001). If a defendant fails to rebut a race-neutral explanation at the time it wаs made, the district court’s ruling on the objection is reviewed for plain error,2 United States v. Wilson, No. 99-2280, 2001 WL 549446, at *2 (6th Cir. May 14, 2001), and the movant in this setting is in no position to register a procedural complaint that the district court failed to give a specific reason on the record for accepting the government’s race-neutral explanation. A movant’s failure to argue pretext may even constitute waiver of his initial Batson objection. Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, 1027 (4th Cir. 1998); United States v. Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir. 1996); Hopson v. Frederickson, 961 F.2d 1374, 1377 (8th Cir. 1992); United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990).
The district court concluded that the government had come forward with a legitimate, non-discriminatory reason for its peremptory challenge, and Jackson did not object to the
court’s ruling or attempt to rebut the government’s proffered explanation by arguing that it was a pretext for discrimination. On appeal, Jackson argues that the totality of the information available to the district court at the time the strike was made indicated that the government’s peremptory challenge was based on a discriminatory purpose. Specifically, Jackson now objects to the district court’s failure to weigh the credibility of the government’s explanation on the record. He also argues for the first time on appeal that the proffered explanation lacked credibility because the government failed to strike similarly-situated whitе jurors. Because Jackson failed to rebut the government’s explanation at the time it was made, we review the district court’s ruling on his objection for plain error.
A peremptory challenge is not unconstitutional solely because it has a racially disproportionate impact. Some proof of racially discriminatory intent or purpose is required in order to show a violation of the Equal Proteсtion Clause. Hernandez, 500 U.S. at 360 (citing Arlington Heights v. Metro. Hous. Dev. Co., 429 U.S. 252, 264-64 (1977)). In the Batson context, a party’s explanation for its decision to strike is “neutral” if it is based on something other than the race of the juror. Id. In the absence of discriminatory intent inherent in the explanation, the reason offered is deemed race neutral. Id.
There was no evidence of discriminatory intent inherent in the government’s proffered explanation in this case, and Jackson made no attempt to аrgue to the district court that the explanation was a pretext for discrimination. Furthermore, Jackson has not asserted any arguments on appeal that suggest the district court plainly erred by overruling his objection. Jackson contends that the government’s failure to strike similarly-situated white jurors from the panel should have signaled to the district court that the government had a discriminatory purpose when it struck Turner from the panel. In fact, all of the “similarly-situated” white jurors Jackson points to in his brief were responding to a different question from the one Turner was answering when he made the statement that caused the government to object to his presence on the panel. Turner was responding to a question about previous government employment, while the jurors cited in Jackson’s brief were responding to questions about their experiences with law enforcement. Jackson did not attempt to rebut the government’s explanation by offering additional evidence and did not otherwise indicate a continuing objection. The district court could have construed Jackson’s failure to respond to the government’s explanation as an indication that he no longer disputed the strike. See Rudas, 905 F.2d at 41. The burden was on Jackson as the party challenging the strikе to prove the existence of purposeful discrimination, and when faced with the government’s seemingly race-neutral explanation, Jackson made no response. Under these circumstances, the district court did not plainly err in overruling Jackson’s Batson objection.
B. Jackson’s Proposed Jury Instructions
Jackson’s second contention on appeal is that the district court erred by refusing to provide the jury with instructions on his theory of the defense and on the reliаbility of identification testimony offered at his trial. A district court’s refusal to deliver a requested jury instruction amounts to reversible error only if the instruction (1) is a correct statement of the law; (2) was not substantially covered by the charge actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it substantially impairs the defendant’s defense. United States v. Gibbs, 182 F.3d 408, 432 (6th Cir. 1999).
At the close of the trial, Jackson asked the district court to instruct the jury that “[t]he defense says that Shawn Jackson was misidentified as the robber of the post office by the witnesses who were there that day” and that “the acquaintances of Shawn Jackson had motivations which show they were being untruthful.” Counsel for Jackson repeatedly emphasized these theories to the jury throughout the entire trial, beginning with his opening statement that “this case is really about mistaken identity and hiddеn motivations.” During cross-examination, defense counsel questioned the government’s witnesses at length regarding how much time each had spent actually looking at the defendant, the distance at which each of them had viewed the defendant, and any distractions or memory lapses that might have impacted their observations. When defense counsel gave his closing argument, he spent considerable time emphаsizing these same points, as well as the defense’s theory
Jackson also requested more detailed instructions on identification testimony, including a set of factors for the jury to use in determining whether an identification is accurate and reliable. The district court overruled Jackson’s request and gave the jury a general credibility instruction to consider “the circumstances under which each witness testified,” as well as the “entire demeanor or appearance” of each witness. Identification instructions are within the discretion of the trial court; they need only be given if there is a danger of misidentification due to a lack of corroborating evidence. United States v. Boyd, 620 F.2d 129, 131-32 (6th Cir. 1980). Jackson’s identification was not uncorroborated. Two eyewitnesses identified him as the robber, and evidence was presented indicаting that on the day of the robbery he was wearing the same clothes as those worn by the culprit and that he had possession of a bicycle matching the description of the one used by the robber when he left the post office. Once again, defense counsel discussed at length throughout the trial the accuracy and reliability of the identification testimony offered by the government, so it cannot be said that the district court’s failure to give Jackson’s proposed instruction substantially impaired his defense.
III.
For the foregoing reasons, we affirm the judgment of the district court.