Case Information
*1 Before: KEITH, CLAY, and STRANCH, Circuit Judges.
_________________
COUNSEL ARGUED: Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Stephanie M. Gorgon, OFFICE OF THE UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Stephanie M. Gorgon, OFFICE OF THE UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
DAMON J. KEITH, Circuit Judge. A jury convicted Nabila Mahbub of conspiring to commit healthcare fraud under 18 U.S.C. § 1349. The district court sentenced Mahbub to a below-guidelines range sentence of forty-six months in prison. Mahbub timely appealed. On appeal, Mahbub contends the following: (1) the district court erred in denying Mahbub’s
1
challenge under
Batson v. Kentucky
,
Because the district court erred in denying Mahbub’s challenge, we REMAND the case to the district court for further proceedings, but AFFIRM the district court in all other respects.
I. FACTUAL BACKGROUND
At trial, the government’s theory of the case, in relevant part, was as follows: All American Home Care, Inc. (“All American”) was a health agency that purportedly provided a range of therapy-related services at the homes of patients. R. 716 at 7314. All American was a Medicare [1] provider that submitted claims directly to Medicare. Id. Mahbub was an office manager at All American, which meant that she would assist in managing the day-to-day operations at All American. at 7315, 7317. All American submitted claims to Medicare for the cost of various therapy services that were medically unnecessary and not provided. at . According to the government, Mahbub specifically created, fabricated and falsified medical and billing documents. at 7318. This was done to facilitate the commencement of home health services purportedly provided by therapy assistants working for All American. Id. at 7318–19. The parties stipulated that All American was paid $5,809,435.74 by Medicare for home-health services between September 2008 and November 2009. R. 717 at 7606.
In 2012, Mahbub, along with other individuals, was indicted for her participation in this fraudulent scheme. R. 451. In 2013, a jury convicted Mahbub of conspiracy to commit healthcare fraud under 18 U.S.C. § 1349, R. 568, and Mahbub was sentenced to forty-six months in prison, R. 682.
The following facts are relevant to this appeal.
a. Voir Dire.
During voir dire , [2] the government asked Mr. Syed, a prospective juror, questions related to the responses he had provided in a questionnaire. [3] R. 716 at 7339. For example, the government asked Mr. Syed whether he had seen Southeast Asians [4] “charged [with committing crimes] in [certain] news stories.” Id. at 7340. [5] The government also asked him whether he felt like the “South[]Asian” community was being “unfairly targeted.” The exchange continued as follows:
THE GOVERNMENT: Do you feel like the Government has unfairly targeted the [S]outh[] Asian community in any way?
MR. SYED: No. I feel like they did it, that’s why.
THE GOVERNMENT: So—
MR. SYED: If they commit the fraud, so they were charged with it. THE GOVERNMENT: So you don’t feel like it is unfair to focus on the— MR. SYED: I wouldn’t say it is unfair. It’s fair.
Id. at 7340–41.
Defense counsel then proceeded to ask Mr. Syed questions. Defense counsel asked Mr. Syed to explain what the hijab was. at 7341. The hijab , Mr. Syed explained, is a headscarf that Muslim women don. Id. Defense counsel asked him whether the hijab made him feel a certain way. at 7342. Mr. Syed replied:
Yes, in a good way, or I respect to her. Like, I’m more—just because I’m from that culture and I myself as a Muslim and my sister also wears the hijab and she is just more respectful.
Id .
Later, defense counsel presented a factual scenario to the prospective jurors. Id. at 7345– 46. In that scenario, defense counsel expressed his concern that his daughter might “end up working at a clinic, someplace where they don’t do things right and she might get caught up in something that ends her up in a place like . . . where Ms. Mahbub is sitting.” Id. While discussing the scenario, defense counsel noticed Mr. Syed shake his head in agreement. Id. at 7346. Defense counsel asked Mr. Syed whether he had the same concern for his children or his family. Id. Mr. Syed replied in the affirmative. Id. Defense counsel asked him to elaborate on his response, and Mr. Syed replied as follows:
A: I—as you said, do you want your daughter to work at a place where these kinds of things happen, and oh, there might be a reason that they—where I been there and were you aware of depending on the person and the position.
When defense counsel repeated the hypothetical question to the other prospective jurors, he noticed that another prospective juror shook her head. That juror, Ms. Brown, expressed the following:
A: Yes. I wouldn’t want them to be in a position where they feel they can’t, you know, get out of it if they find out there is something going on. That it should be, you know, but because of authority over them or because they need the job or, you know, they feel they have to stay.
. . . .
A: Sometimes you feel like you don’t have a voice. You need the job. You don’t want to say anything because you don’t want to lose the job or anything like that, so somebody—you know, you might go along with it or, you know, look past it or, you know, not speak up or anything. at 7347–48.
Later, the government asked Ms. Brown a follow-up question: Q: Finally, I want to turn to Ms. Brown in seat 1. . . . I think you said that it became—that sometimes younger people get caught in sticky situations and don’t know how to get out, am I characterizing it?
A: Not just younger people.
Q: But folks generally.
A: Yes.
Q: And does that make you want to give a pass to people in certain situations? Well, you might say, this is—well, they got caught up, or let’s say it is the first time someone has done something wrong, are you willing to give them a pass, maybe they didn’t know how to get out of it or are you going to go by weighing the evidence?
A: I have to weigh the evidence.
Id. at 7378–79. The prosecutor did not ask Mr. Syed the same follow-up question.
i. Mahbub raises a Batson challenge.
The government peremptorily challenged two jurors, one of whom was Mr. Syed. A peremptory challenge is “[o]ne of a party’s limited number of challenges that do not need to be supported by a reason unless the opposing party makes a prima facie showing that the challenge was used to discriminate on the basis of race, ethnicity, or sex.” Black’s Law Dictionary (10th ed. 2014). Mahbub made a Batson challenge as to Mr. Syed, explaining “I believe there are only two that I can identify as potential Muslims” in the entire jury pool, “maybe only one, and [Mr. Syed] is one obviously.” R. 716 at 7399. Specifically, “[t]o excuse the only Muslim on a panel, and only one of two, leaves . . . Mahbub facing a trial without having any juror of her peers here.” Id. According to defense counsel, “excusing the only Muslim on the panel, possibly the only one in this array, is a matter to make sure that a Muslim doesn’t get on the jury, which is improper under .” Id. at 7400.
In response, the government indicated that there is “factually no basis that the [g]overnment is trying to eliminate all Muslim[s] or South Asians from the jury.” at 7401. The government also interpreted Mahbub’s challenge as one challenging the makeup of the jury pool, and indicated that the “jury pool is drawn from people registered in the state[,] and it is a randomly selected pool of people.” Id. at 7400. Thus, according to the government, “there is [no] basis to conclude that somehow the pool was rigged.” Id.
After hearing the government’s explanation, the district court clarified that it expected the government to proffer a “non-discriminatory” explanation for excusing Mr. Syed. Id. at 7401. The government responded as follows:
[T]he reason was that I felt uncomfortable with his answer to whether or not he would be able to—there is some discomfort if someone was younger whether or not he would have difficulty seeing them, being able to fairly evaluate them. And also, he indicated that, and I think along the lines of the question I asked Ms. Brown as well as the fact that . . . sometimes people get in situations they can’t get themselves out of . . . and . . . he viewed sometimes defendants in those situations through the person and family members[,] and he expressed some discomfort with respect to the notion of judging it. That was the basis. at 7401–02.
Defense counsel responded that the government’s reason was “disingenuous” because Mr. Syed indicated in his questionnaire that “if a younger person defrauded Medicare no matter what age that the person is, they should be punished.” Id. at 7402. Defense counsel then conceded that a “recent Sixth Circuit case that upheld the jury wheel in the Eastern District [of Michigan]” foreclosed him from challenging the jury pool. Id. at 7403. Even so, defense counsel further pressed that such a random draw “cannot accurately reflect the ethnic makeup of the population . . . .” Id.
Before ruling, the district court summarized the government’s reasons for excusing Mr. Syed was his apparent “discomfort with the answer to the question about a younger person and a person not being able to get out of the situation they’re in.” at 7404. The government confirmed that the district court’s articulation of the reasons was correct. Id. The court then took a ten-minute recess.
ii. District court ruling on Batson challenge.
After recess, the district court first asked defense counsel whether the government asked any questions of Mr. Syed related to his religious or ethnic background. Id. Once defense counsel indicated that he did not think the government posed any such question, the court announced that it was ready to rule on the Batson challenge. Id. at 7405. The district court stated that the elements of the prima facie Batson case were:
One, their membership in a recognized and cognizable race or religious group. Two, that the members of the person’s race or religion have been removed from the venire via peremptory challenged by the other party.
And three, that the underlying facts and relevant circumstances indicate that the other party employed a method . . . to exclude veniremen from the petit jury on account of their race, because in it was a challenge to race.
Id. at 7405–06. The district court listed three ways of proving an inference of discrimination. Id. First, there might be a “pattern of discrimination against [minority] jurors in a specific venire;” second, “an inference may be found in questions and attempts made during voir dire proceedings;” third, the challenger might show that the party making the peremptory strike made statements or asked questions or otherwise made attempts that support an inference of discrimination during the “exercise of the peremptory challenge.” Id. at 7406–07.
The district court indicated that Mahbub had not shown that any of these methods applied here. Id. at 7406–07. It ruled on the first two elements. It indicated that it did not think that Mahbub had met her burden that she was a “member of racial or religious group;” further, “there hasn’t been any showing that other members [of a racial or religious group] have been removed . . . .” at 7407. The district court also noted that it did not think that the government “asked any questions relative to Mr. Syed’s ethnic background or his race or religious background.” ; see id. at 7406 (“I actually think all of the questions posed about anything related to religion or ethnic background or their coming from that region of South Asian descent are all questions that have been raised by the Defense . . . .”).
The district court then noted that “if . . . a prima facie case had been made, the burden would shift back to the opposing party to provide a neutral explanation for challenging . . . the jurors.” Id. at 7408. The court also found that the government’s reasons were “neutral.” Id. Further, the district court explained:
[The government] said [Mr. Syed] answered the younger person question with some hesitation, that he could see that there was some hesitation, that he could see that there was some discomfort in the person being in a situation where they did not expect to be in, and while I don’t think that his answers were—well, they certainly weren’t strong enough to raise to the level of a challenge for cause, and while I don’t specifically remember them being specifically any stronger, I believe, than some of the other jurors that are sitting here, they certainly arise from the racial and religious, not racial, as well. And while I don’t think they’re such great reasons for exercising your peremptory challenges, I don’t think that we probably even necessarily get that far because I don’t think you have made out the prima facie case.
Id. at 7408–09.
After the ruling, the parties engaged in an extensive colloquy with the court about the use of questionnaires. Id. at 7409–15. Defense counsel explained that the government did not need to ask any questions about race or ethnicity because such information could be gleaned from the questionnaires themselves. Id. at 7410. The district court, after reviewing Mr. Syed’s responses to the questionnaire, responded that it could not “see how [Mahbub] can hold the [g]overnment accountable for that if [the parties] agreed to the questions.” Id. at 7413. The court suggested that the government may have had an additional reason for exercising its peremptory strike: “It is of interest to me that the [g]overnment in their response didn’t say that we know this person is seeing a physical therapist, they already have a strong feeling about fraud, it might taint them, it is not followed up at all by the [g]overnment.” at 7414. In any case, the district court concluded, Mahbub had not made a prima facie case. at 7415.
b. Trial proceedings .
The next day, outside the presence of the jury, the government sought to clarify the record regarding the challenge. R. 717 at 7519. The government wanted to note for the record that it asked Mr. Syed a question related to his nationality. The question had asked was whether Mr. Syed felt that the government was “improperly targeting any communities.” Id. The government referred to a November 28, 2011 Detroit Free Press article about whether the government was “unfairly targeting foreigners.” Id. at 7520. According to the government, because Mr. Syed indicated that he followed stories in the news about South Asians charged with committing crimes, see R.716 at 7340, it was an appropriate question to ask, R. 717 at 7519–20.
Defense counsel indicated that the government’s response “fortified the need to renew [Mahbub’s] Batson challenge.” Id. at 7520. Like the government, defense counsel also took the opportunity to clarify the record. Id. at 7521–22. He indicated that the other juror who he thought was Muslim was not; she was Indian. Defense counsel had peremptorily stricken her from the jury pool. See R. 716 at 7418, 7466. The court responded that the two categories— Indian and Muslim—were not mutually exclusive. [8] R. 717 at 7522.
Trial took place over five days. [9] Appellee Br. 13. On April 17, 2013, the jury convicted Mahbub of conspiring to commit healthcare fraud under 18 U.S.C. § 1349. R. 568. On April 16, 2014, a judgment was entered against Mahbub. R. 682. She timely appealed. R. 683.
II. DISCUSSION
A. Batson challenge
Mahbub contends that she presented a prima facie case of purposeful discrimination during her Batson challenge. Appellant Br. 28. In support of this argument, Mahbub argues that Mr. Syed and Ms. Brown were similarly situated—here, that means both initially responded similarly to the scenario about younger people finding themselves in difficult situations. Id. However, the government excused Mr. Syed for providing the same response as Ms. Brown did.
1.
Standard of review
.
“We review a district court’s determination of a
Batson
challenge with ‘great deference,’
under a clearly erroneous standard.”
United States v. Cecil
,
None of the
Batson-
arguments Mahbub raises on appeal were presented to the district
court, and all are thus unpreserved.
See, e.g.
,
United States v. Crawford
,
(1) there must be a legal error . . . ; (2) the error must be clear; (3) the error must have affected the appellant’s substantial rights in that it affected the outcome of the district court proceedings; and (4) the error must have seriously affected the fairness, integrity, or public reputation of the judicial proceedings.
See United States v. Lawrence
,
2. Burden-shifting framework under Batson There are three steps to a Batson inquiry:
Step one. To prevail on a Batson claim, the defendant must first “make a prima facie showing of discriminatory use of peremptory challenges.” United States v. Harris , 192 F.3d 580, 586 (6th Cir. 1999). Under Batson , a prima facie case is established by showing each of the following elements:
[1] that [the defendant] is a member of a cognizable racial group . . .
[2] that the prosecutor has exercised peremptory challenges to remove from the [jury pool] members of the defendant’s race . . . [and]
[3] that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the [potential jurors] from the petit jury on the account of their race.
Batson
,
In determining whether a prima facie case exists, the trial court “should consider all relevant circumstances.” Batson , 476 U.S. at 96. “For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination.” at 97. “Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Id. These examples, the Batson Court held, are “merely illustrative,” and the Court reasoned that trial judges, “experienced in supervising voir dire , will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” Id.
Step two.
Once this showing is made, the government must offer a “race-neutral
explanation for challenging the jurors.”
Harris
,
Step three.
Once a race-neutral explanation is “tendered, the trial court must then decide
. . . whether the [party raising the
Batson
challenge] has proved purposeful racial
discrimination.”
Odeneal
,
Noticeably,
Batson
contains no discussion of religion as the district court erroneously
suggested. As the government correctly points out, whether
Batson
’s reasoning extends to
religion remains unclear.
See
Appellee Br. 17;
see also United States v. Stafford
,
3. Merits of Mahbub’s prima facie challenge
The issue that we must resolve is whether the district court improperly denied Mahbub’s
prima facie challenge. In other words, we must determine whether the district court erred in
concluding that Mahbub had not met her burden of showing that the government’s peremptory
strike of Mr. Syed from the jury raised an inference of purposeful discrimination. Upon review
of the
voir dire
transcript and relevant case law, we conclude that the district court: (1) erred in
requiring Mahbub to show that she was a member of cognizable racial group; and (2) failed to
recognize that the government’s use of “contrasting
voir dire
questions” could raise an inference
of discrimination.
See Dretke
,
i.
First element of prima facie case.
The Supreme Court held in
Powers v. Ohio
that a white criminal defendant could
challenge under
Batson
a prosecutor’s race-based peremptory strike.
In denying Mahbub’s Batson challenge, the district court concluded that Mahbub did not show that she was a member of a cognizable racial group. R. 716 at 7407. The district court was right. At no point before the district court’s ruling did defense counsel ever show that Mahbub was a member of cognizable racial group. But this failure on Mahbub’s part is of no legal consequence. See Echlin , 995 F.2d at 1350. Thus, the district court’s reliance on Mahbub’s failure to identify herself as a member of a cognizable racial group in denying the Batson challenge was a mistake of law, and so remand is proper. Cecil , 615 F.3d at 685. Though remand is proper on this ground, we nonetheless discuss the district court’s rulings with respect to the other elements of the prima facie case.
ii. Second element of prima facie case. As explained above, the prospective juror need not be of the same race as the defendant. Powers , 499 U.S. at 402; Echlin , 995 F.2d at 1350. It is unclear whether the district court prima facie challenge. Ervin ’s reading of Hernandez is persuasive, and so we similarly conclude that the main issue on appeal is whether the district court erred in denying Mahbub’s prima facie challenge.
believed that Mahbub and Mr. Syed had to be of the same race in order for Mahbub to prevail on her Batson challenge. R. 716 at 7407. For that reason, we take no position on whether the district court erred here, but we take this opportunity to clarify this element in order to avoid confusion on remand.
iii.
Third element of prima facie case.
The district court also erred when it addressed the third element of the prima facie case—
namely, that the facts and relevant circumstances raise an inference that the juror was excluded
on the basis of race.
See Batson
,
By requiring that the questions themselves must relate to a juror’s race, the district court
narrowed
Batson
, and thus placed a more “onerous” burden on Mahbub than one warranted
under the law.
Johnson v. California
,
The use of “contrasting questions” here is similar to the questions at issue in
Dretke
,
which confirms that the district court’s error was plain. In proving purposeful discrimination, the
Dretke
petitioner relied on the prosecutor’s use of “contrasting
voir dire
questions posed
respectively to black and nonblack panel members, on two different subjects.”
Dretke
, 545 U.S.
at 255. For example, the prosecutor made statements before asking prospective jurors their
thoughts on capital punishment. According to the petitioner, “[s]ome of these prefatory
statements were cast in general terms, but some followed the so-called graphic script, describing
the method of execution in rhetorical and clinical detail.”
Id.
This was purportedly “intended
. . . to prompt some expression of hesitation to consider the death penalty and thus to elicit
plausibly neutral grounds for a peremptory strike of a potential juror subjected to it, if not a strike
for cause.” “If the graphic script is given to a higher proportion of blacks than whites, this is
evidence that prosecutors more often than not wanted blacks off the jury, absent some neutral
Motors Corp.
,
and extenuating explanation.” Id. After considering the questionnaires and voir dire testimony, as well as the prosecutor’s explanations, the Court concluded that the “black venire members were more likely than nonblacks to receive the graphic script.” Id. at 258. The Court referred to the prosecutor’s use of contrasting questions as “disparate questioning.” at 256. Dretke counsels that, when determining if an inference of purposeful discrimination exists, an inquiry solely into whether the question posed related to race—like the type of inquiry the district court engaged in here—is deficient.
The district court’s error in narrowly reading Batson is a mistake of law that does not pass muster under plain-error review.
***
In sum, the district court misstated and misapplied the law in denying the challenge. In doing so, it made it more difficult for Mahbub to prevail than the law permits. For
this reason, we reverse the district court’s ruling and we remand the issue of whether, upon
applying the correct legal standard and test, Mahbub’s
Batson
challenge requires that the
conviction be reversed.
See McAllister
,
iv. Miscellaneous argument. Mahbub also urges us to perform a comparative juror analysis between Mr. Syed and Ms. Brown. Appellant Br. 28. This argument is also unpreserved. See Crawford , 60 F. App’x. at 535. Faced with this situation, the Supreme Court has cautioned that a
retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable.
Snyder v. Louisiana
,
Because we conclude that remand is appropriate for separate reasons, we need not decide
whether a comparative juror analysis is appropriate here. In any event, our case law explains that
this court is by no means compelled to conduct a comparative juror analysis when a defendant
failed to preserve the issue.
Cecil
,
B. Jury Instruction
For the first time on appeal, Mahbub argues that the district court’s jury instruction
concerning the element of criminal conspiracy was erroneous. Appellant Br. 33–38. Thus, this
issue is unpreserved. Mahbub concedes that the plain-error standard of review applies here.
Id.
at 38–39;
see also United States v. Morrow
,
The district court used the Sixth Circuit Pattern Criminal Jury Instruction § 3.03, which, in relevant part, stated as follows:
If you are convinced that there was a criminal agreement, then you must decide whether the Government has proved that the Defendant knowingly and voluntarily joined the agreement. To convict the Defendant, the Government must prove that she knew the conspiracy’s main purpose and that she voluntarily joined it intending to help advance or achieve its goals.
This does not require proof that the Defendant knew everything about the conspiracy or everyone else involved in it, or that she was a member of it from the very beginning. Nor does it require proof that the Defendant played a major role in the conspiracy or that her connection to it was substantial. A slight role or connection may be enough.
But proof that the Defendant simply knew about a conspiracy or was present at times or associated with members of the group is not enough, even if she approved of what was happening or did not object to it. Similarly, just because the Defendant may have done something that happened to help a conspiracy does not make her a conspirator.
R. 720 at 8064–65. Mahbub contends that the jury instruction lowers the burden of proof to
support a conviction. Appellant Br. 34 (citing
Sullivan v. Louisiana
,
Mahbub’s contention lacks merit. The instruction states, and the district court read, “[a]
slight role
or connection may be enough” to link a defendant to a conspiracy, which is an
accurate legal proposition.
See United States v. Price
,
In support of Mahbub’s argument that the jury instruction was erroneous, Mahbub relies
on a concurring opinion in
United States v. Huezo
,
C. Ineffective assistance of counsel
Mahbub also asserts that her counsel rendered ineffective assistance of counsel for failing
to object to the jury instruction containing the “slight connection” language. Appellant Br. 41.
To prevail on this claim, Mahbub must satisfy the two-prong test established by the Supreme
Court in
Strickland v. Washington
,
In this case, however, the ineffective-assistance-of-counsel claim is predicated on
Mahbub’s counsel’s purported failure to object to the jury instruction, which, as shown above,
was consistent with Sixth Circuit case law.
Price
, 258 F.3d at 544. Because Mahbub’s
ineffective-assistance-of-counsel argument is contingent on her successful challenge of the jury
instruction, it too is meritless.
United States v. Jones
,
D. Sentencing
Mahbub next challenges the district court’s imposition of her 46-month sentence. 1. Calculation of Loss
Mahbub contends that the district court incorrectly calculated the monetary loss that should be attributed to her. Appellant Br. 55. According to Mahbub, she was “personally . . . paid $33,000,” and the district court should have imposed a six-level increase to her offense level rather than an eighteen-level increase. Id. at 60. Mahbub’s applicable guideline range would have been, therefore, 15–21 months. at 61. The district court, however, estimated the entire loss to be between $2.5 million and $7 million. R. 722 at 8187. This rendered an applicable guideline range of 63-78 months. In the end, Mahbub was sentenced to forty-six months. R. 682.
We review a district court’s calculation of the amount of loss for clear error.
United
States v. Blackwell
,
During the sentencing hearing, the district court relied on the stipulations provided by
Mahbub’s counsel in order to conclude that the loss amounts exceeded $2.5 million but were less
than $7 million. R. 722 at 8186–87. In this instance, reliance on this stipulation was not clear
error.
See, e.g.
,
United States v. Davis
,
2. Sentence Disparity Mahbub also argues that the district court’s sentence creates a disparity between Mahbub and the other two defendants indicted in the same conspiracy, Mohammed Shahab and Hassan Akhtar. See Appellant Br. 56. Specifically, Mahbub argues that Akhtar’s sentence is twenty months shorter than Mahbub’s sentence yet he was “second in command under Shahab” and “received kickbacks from therapists, forged a doctor’s signature, and laundered money.” at 57. Meanwhile, Mahbub argued that Shahab was the “mastermind[]” as he was the owner of eight companies and defrauded Medicare of more than $18 million. He, however, received a sentence of fifty months—four months longer than Mahbub’s. See id.
We review the reasonableness of a sentence under the abuse-of-discretion standard. Gall
v. United States
,
Here, although 18 U.S.C. § 3553(a)(6) identifies “the need to avoid unwarranted sentence
disparities” as a factor at sentencing, we have previously explained that “this factor concerns
national
disparities between defendants with similar criminal histories convicted of similar
criminal conduct—not disparities between co-defendants.”
United States v. Conatser
, 514 F.3d
508, 521 (6th Cir. 2008) (citing
United States v. Simmons
, 501 F.3d 620, 623–24 (6th Cir.
2007)). The district court was simply not required to consider Mahbub’s sentence in light of
sentences imposed on Akhtar and Shahab. “A district judge, however,
may
exercise his or her
discretion and determine a defendant’s sentence in light of a co-defendant’s sentence.”
Simmons
, 501 F.3d at 624. That is what the district court did here. Even though Mahbub’s
“leadership” role warranted a two-level enhancement under § 3B1.1, it declined to apply it after
Mahbub’s trial counsel argued that Maria Suleman—another clinic office manager—did not
receive that same enhancement.
See
R. 722 at 8177–8181;
id.
at 8211 (“I don’t think, to be
consistent with the participation of her and Ms. Suleman, there should not be any points given
for adjustment for [her] role in the offense. . . .”). Put another way, the district court’s effort to
avoid sentencing disparities only benefitted Mahbub. In this regard, the imposition of the
sentence was not substantively unreasonable. We also note that Mahbub’s 46-month sentence is
below the 63-78 months range calculated by the district court. R. 722 at 8213. Defendants who
seek to prevail on a substantive-reasonableness challenge to a below-guidelines sentence “bear a
heavy burden”—a point Mahbub concedes—but she simply failed to carry that burden here.
United States v. Greco
,
3.
Offer to cooperate
Mahbub next contends that she is entitled to a lesser sentence because the government
“declined her offer to cooperate.” Appellant Br. 60. So, she argues she should have received a
one-level reduction in her offense level. But because Mahbub offers no legal argument in
support of this position and fails to identify the applicable guideline provision upon which she
relies, we decline to consider this argument.
See McPherson v. Kelsey
,
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court in every respect except for the Batson ruling. We REMAND the case to the district court for a proper determination of whether there is an inference that the government engaged in purposeful discrimination. If so, the district court must proceed to the subsequent steps of the inquiry to determine whether a new trial is warranted.
Notes
[1] Medicare is “the federal health insurance program for people who are 65 or older, certain younger people with disabilities, and people with End-State Renal Disease (permanent kidney failure requiring dialysis or a transplant . . . .” Medicare.gov, https://www.medicare.gov/glossary/m.html (last visited February 9, 2016).
[2] Voir dire is a “preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury.” Black’s Law Dictionary (10th ed. 2014).
[3] The questionnaire had been prepared by defense counsel and the government and had been circulated to the prospective jurors for completion. See R. 716 at 7333.
[4] Although the government refers to the “Southeast Asian” community, it probably meant to use the term “South Asian.” “South Asian” is a term used to describe inhabitants of countries that make up South Asia, including Pakistan and Bangladesh. See “South Asian, adj. and n.,” OED Online (January 2016), http://www.oed.com/view/Entry/242301?redirectedFrom=south+asian#eid (last visited Jan. 26, 2016).
[5] An example of this news story, the government later explained, is a Detroit Free Press article dated November 28, 2011. R. 717 at 7520. In the response brief, the government provided the following citation for the article: “Judges saying ‘no bond’ to white-collar suspects,” Detroit Free Press , Nov. 28, 2011, available at 2011 WLNR 24603864. Appellee Br. 23. The article described, in relevant part, the flight risk posed by a Pakistani businessman charged with “bilking” $31 million from Medicare.
[6] By contrast, a challenge for cause is one supported by “specified reason, such as bias or prejudice, that would disqualify that potential juror.”
[7] In his questionnaire, Mr. Syed indicated, among other things, that: he is Pakistani; he has friends who are physical therapists; he thinks people who defraud Medicare should be punished; and he has been seeing a physical therapist because of a back injury. See R. 746.
[8] The court tried to clarify whether Mahbub’s Batson challenge was based on “religion and area of nationality or area of the world.” R. 717 at 7523. Although defense counsel referred to Mr. Syed’s nationality, he still implied that the challenge was based on religion: “I believe the juror who was excused said he was from Pakistan. Pakistan is known to be a Muslim country. Based on the way he answered the questions, he is obviously of the Muslim religion, as is Ms. Mahbub.” Id.
[9] On the last day of trial testimony, the government again raised the challenge before the court, see R. 708 at 7024–26, to make sure the court had ruled on what the government viewed as a renewed Batson challenge. Although the district court indicated that it would “close the loop but not the section”—and it is not clear what “section” refers to—it later stated emphatically that it “closed the loop.”
[10] Although the record does not indicate Ms. Brown’s race, her race is presumably different from Mr. Syed’s based on the context of the colloquies in the district court.
[11]
We also note that while “[o]rdinarily Rule 52(b) is invoked by counsel[,] who, in preparing an appeal,
discover what they consider to be error to which they took no objection below . . . the rule is not so limited.”
United
States v. Finch
,
[12]
Batson
has been expanded to cover other categories of potential jurors. “Under the Equal Protection
Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the
juror’s gender, ethnic origin, or race.”
United States v. Martinez-Salazar
, 528 U.S. 304, 315 (2000) (collecting
cases).
At this point, we note that the parties and the district court used multiple terms to describe the categories of
groups that purportedly fall within
Batson
’s reach—Muslims (R. 716 at 7399) and South Asians (R. 716 at 7406).
The categorization of “South Asian” as a race or ethnicity is the subject of academic scholarship.
See, e.g.
, Vinay
Harpalani, Ambiguity, Ambivalence, and Awakening: a South Asian becoming “critically” aware of race in
America, 11 Berkeley J. Afr.-Am. L. & Pol’y 71 (2009); Charu A. Chandrasekhar, Note, Flying While Brown:
Federal Civil Rights Remedies to Post 9/11 Airline Racial Profiling of South Asians, 10 Asian Law J. 215 (2003).
Courts have not consistently referred to “South Asian” as either a race or an ethnicity.
See, e.g.
,
Nayyar v. Mount
Carmel Health Sys.
, Nos. 2:12–CV–00189, 2:10–CV–00135,
[13]
In its brief, the government indicates that the district court completed all three steps of the
Batson
inquiry. Appellee Br. 25. (“The district court also arguably sufficiently addressed ’s third step when ‘it
rejected the
Batson
challenge after the government offered its race-neutral explanation and the defense counsel
offered a brief rebuttal’ before ‘allowing the proceedings to continue.’”) (quoting
United States v. Du
, 570 F. App’x
490, 497 (6th Cir. 2014)). According to the government, the relevant inquiry on appeal might be whether the district
court clearly erred in ruling that there was no evidence of purposeful discrimination—and
not
whether there was any
inference of purposeful discrimination to support a prima facie case.
However, it is clear that the district court never ruled on the ultimate question of discrimination. We faced
the same set of circumstances in
United States v. Ervin
, 266 F. App’x 428 (6th Cir. 2008). In
Ervin
, the district
court ruled that the defendant failed to make a prima facie showing, but still invited the prosecutor to provide a race-
neutral explanation. at 433. After the prosecutor provided one, the district court denied the challenge. In
arguing that the district court failed to complete all three
Batson
steps, the defendant relied on the Supreme Court’s
reasoning in
Hernandez v. New York
,
[14] We recognize that defense counsel also stated that the questions themselves needed to relate to race or ethnicity. See, e.g. , R. 716 at 7410 (“What I’m saying is that Batson says that if the [g]overnment makes inquiries to the juror about racial and ethnic reasons as one of the factors the Court considers in evaluating if the challenge is appropriate or discriminatory. . . .”); id. at 7410–11 (“I think what the Court was saying is that if the Government seeking this information from jurors as a basis for peremptory challenge, that is a factor to consider.”). To the extent that the defense counsel agreed with the district court that the questions must relate to race or ethnicity, we think it is appropriate to sua sponte address this mistake of law. See, e.g. , Rodgers v. Fisher Body Div. Gen.
[15] Presumably, this amount reflects the total amount Mahbub was paid during her tenure at All American.
[16] The colloquy on this point occurred as follows: THE COURT: And do you think that during the trial, the amount of all the billings made during the time she was there is part of the evidence. GOVERNMENT: The billings during the time she was there, she stipulated to it. THE COURT: And that’s the 5.8 DEFENSE COUNSEL: We stipulated that the company billed Medicare in these amounts. GOVERNMENT: And stipulated to the time frame she was there. She stipulated she received checks from 2008 to September 2009. THE COURT: That is an amount more than 4.6 DEFENSE COUNSEL: It is. It is still less than 7, but more than 4.6 R. 722 at 8186–87.
[17] Another argument that Mahbub makes is that the district court should not have increased her offense score by two levels for being a manager because she was “at the bottom of the organizational chart.” Appellant Br. 60. This argument is without merit, as the district court did not add a two-level enhancement for her role. R. 722 at 8211. Mahbub later acknowledges in her reply brief that she did not receive a two-level enhancement. Reply Br. 9.