*1 America, STATES UNITED
Plaintiff-Appellee, STEPHENS,
Wayne Defendant-
Appellant.
No. 03-2964. Appeals, Court
United States Circuit.
Seventh 28, 2004.
Argued Oct. Aug.
Decided *2 input regarding
ees would information ex- incurred, Accenture penses would use the client and that information to bill in the employee paycheck. reimburse the *3 Employees request could reimbursement by filling expenses for business-related in “expenses the fields labeled without re- ceipt,” “expenses receipt,” and “busi- addition, ness meals.” In the form includ- pay” from pay/deduct ed “add line allowed to add to or employees which de- from paychecks. duct their “deduct for pay” line could be used certain expenses, charges personal such as in- person- employees curred as a result of telephone a concierge al calls or use of for its operated service Accenture em- (argued), Niewoehner Of- Christopher S. “add ployees. proper use of the to” Attorney, fice of the States Chica- United in trial. function was at issue Some IL, go, Plaintiff-Appellee. for testimony indicated that the “add to” func- tion was to used for business- be (ar- Levenstam, Barry Irina Dmitrieva expenses expenses related such as related Block, IL, Chicago, gued), & for Jenner assignments employee to international Defendant-Appellant. hand, Stephens, relocations. on the other POSNER, KANNE, and Before argued policy was no related to there ROVNER, Judges. Circuit function, that it the use of that could Prior personal expenses. used for ROVNER, DIAMOND ILANA Circuit January Policy Accenture’s written Judge. 526 stated advances “[clash Wayne employed Stephens was through pet- via nor provided reports time manager support in a technical unit for January In ty cash the offices.” office Accenture’s New York when he re- however, replaced was Poli- policy pay” an “add to function on peatedly used 63.044, contain that cy which did not sen- expense reports his obtain a time and Policy place time tence. 526 was $67,395 in total of unautho- approximately hired, Policy 63.044 had Stephens was but personal use. rized cash advances it of the criminal subsumed the time That in his criminal con- conduct resulted Therefore, period the time during actions. viction fraud violation of 18 for wire here, of the conduct at Accenture did issue § U.S.C. regarding policy not have a written through the availability of cash advances Accenture, position Stephens his reports. time and Accenture’s expense computer program required was to use the Policy expressly 63.044 allow use of did Time Ex- called Automatic Remote (ARTES) corporate cards for cash advances or credit bi-weekly to file a pense System (hereinafter further declared personal expenses, expense report time and “ex- liability for the Accenture had no calculating used pense report”) that was employ- and that ARTES, balance on the accounts paycheck. Through employ- his directly pay required expense report ees were the en- his copy and e-mailed a monthly Penney. on their tire balance statements. did not request a cash through advance the “add to” function on employee completed Once an the ex- that expense report. Beginning April sent pense report, electronically however, Stephens began utiliz- processing pay- Accenture’s center and its ing the “add to” function to secure cash department, employee’s roll where the April advances. His 30 expense report automatically generated check was based requested a cash advance the amount of upon deposited that information and into $7,800. Stephens did not Penney’s include bank account. employee’s Approxi- name in the reviewer field of that expense mately expense reports 5% *4 report, designating instead himself as his they audited after were In submitted. reviewer, own and he did not e-mail a copy addition, reports expense contained a Penney. requested to He also reimburse- employee’s field for the name of the super- ment for expenses business in the amount visor, copy expense of the report and argued at trial $78.00. automatically to that designated sent Stephens $7,800 figure used the in the supervisor upon supervi- submission. The because, confronted, “add to” function he supervisee’s sor could also access a ex- argue could that it reflected his business pense report by using the “auditor’s view” expenses of and was a mistake $78.00 program typing the ARTES and in the placement of the decimal point. supervisee’s identification number. Stephens continued that use of the “add Stephens 1999, in May When was hired to” function for the expense next six re- supervisor his was Sandra Lieb-Gieger. ports. On each of six expense reports Lieb-Gieger required Stephens to submit 31, 2000, April July between 30 and Ste- his to expense report day her the before it phens requested cash advances amounts was due. would then She review it and $9,800 $9,985, between increasing his approved, personally once submit it yield $67,395. cash advance None of to the processing center. While Lieb- reports those by Penney reviewed Gieger supervisor, Stephens was his often Stephens copy did not e-mail a expenses, recorded business but never Penney and did not Penney’s include name sought using a cash advance the “add to” field, in the reviewer bypassing thus function. consistently He also entered sending automatic report Penney. Lieb-Gieger’s name the reviewer field. 2000, Beginning 15, in March Penney 2000, Neil be- In August expense his report, Stephens’ supervisor. Penney came Stephens did previous deviated from his pat- not preapprove expense reports prior to tern of keeping requests his slightly under $10,000 submission to the processing department. Instead, mark. requested he Instead, Penney Stephens $22,980. allowed to sub- cash advance of request That mit expense reports directly team, the was noticed Accenture’s audit processing department, required Stephens 23, Ste- was fired on August 2000 phens copy to e-mail a to him. Penney based on unauthorized cash advances. testified, however, that he did not check Stephens was subsequently convicted of those expense reports and did not notice wire fraud and 21 sentenced to months’ when supervisees his failed to cop- e-mail 2 imprisonment, years release, supervised ies to him. $50,000 in restitution. appeals He 2000,
In March shortly Penney conviction, after alleging that the evidence became supervisor, Stephens his submitted was insufficient to support jury verdict
507 States, Hammerschmidt v. process quoting violated United selection 188, 511, 182, 44 68 L.Ed. 265 U.S. Equal Protection Clause. Lack, (1924); 968 United States v. 129 (7th I 403, Cir.1997); see F.3d also 1157, Wingate, F.3d States v. United chal Stephens’ turn first We Cir.1997) (“Cases (7th construing 1162 n. 3 sufficiency of the evidence. lenge to the equally mail applica fraud statute are claim, considering this we consider statute.”). to the fraud We ble wire have light favorable to evidence most necessary “a previously held that element in its making all inferences government, making of a scheme to defraud of a favor, if a rational trier of and must affirm misrepresenta statement or material false the elements of have found all fact could tion, or the concealment of a material doubt. beyond a reasonable the offense Gaming v. Aztar fact.” Williams Indiana Owens, United States (7th Cir.2003). Corp., 351 F.3d Paneras, (7th Cir.2002); United States concept have includes held We Cir.2000). In order both statements defendant knows fraud convict wire under false, as a “half truth” to be as well § had to find that: U.S.C. *5 misleading defendant knows to be (2) defraud; (1) there was a scheme expects another to act which defendant used furtherance wires were to his upon detriment and defendant’s (3) scheme; Stephens participated Fi Emery benefit. v. American General with the intent defraud. the scheme Inc., nance, 1343, Cir. Owens, Stephens con 1995). In we that Emery, further noted rationally jury could not tends that truth, usually the half or what is same “[a] to defraud or the find either a scheme omission, thing misleading a is actionable Instead, Stephens con intent defraud. ... fraud if it is intended to induce at best tends that the evidence establishes resulting ad false belief and action argues simple govern He that the theft. vantage of misleader and the disadvan that Accen ment failed to demonstrate 1348. The tage of the misled.” Id. at expressly prohibited Stephens policy ture’s information mere failure to disclose will requests personal for cash making fraud, an always but omis constitute Furthermore, he advances. asserts accompanied by of concealment sion acts government failed to establish that he misrepresentations can con affirmative or affirmative or misrepresentations made fraud. stitute seeking the misleading statements when engaged or that in elabo cash advances he presented sufficient ev- requests. his cash rate efforts to conceal a scheme jury for rational to find idence the cash Stephens utilized determining conduct evinced to defraud. whether report al- defraud, expense in his Supreme Court advance field a scheme to sought any though money was not for “to defraud” has noted words jury to work. A could wronging purpose mail ‘to related fraud statute “refer request funds on that find that property rights one dishonest his schemes,’ implied repre- signify expense report carried the ‘usually methods or purposes it was for related something of value deprivation sentation ” Moreover, jury trick, if a deceit, overreaching.’ to work. even chicane or States, that he Stephens to believe McNally inclined v. United U.S. (1987), thought the “add to” line could used L.Ed.2d 292 penses. jury receive cash advances he could A subse- could find that quently repay using the “deduct from” provide amounts were calculated to him line, jury Stephens’ could find ac- plausible explanation with a to” the “add tions were inconsistent that use of the noticed, request was in that he could claim option. frequency “add to” The sheer merely that it reflected the business $78.00 requests, along his with the increasingly expenses misplaced and he the decimal large requested, amounts belie inten- successful, point. request When was tion of funds and repaying the are incon- Stephens increased the amount of re- employee sistent with what an could rea- quests, just but the amount kept under sonably employer believe an would allow. $10,000 possibly trigger amount that could Accenture allowed the use of credit cards indication audit —another that he was advances, for cash held employee attempting to avoid detection. responsible clearing the balances on monthly basis. Given those conditions on argues nevertheless he card, the use of the credit the contention misrepresentations misleading made no that Stephens’ actions were a proper use omissions, and that his actions therefore of the “add to” function need not be credit- simple constitutes thefts at worst. A simi- Accordingly, ed. could find that made, lar argument unsuccessfully, in Stephens used that function in a improper Lack, United States v. corporate manner to obtain per- funds for (7th Cir.1997), a case which mail involved sonal use. fraud. employed Lack was as a materials Moreover, could find that Ste- Dairyland manager by Cooperative Power phens engaged in a number of actions to (“Dairyland”), responsible for the sale *6 acquisition conceal his of the cash. Accen- scrap or items on salvage Dairy- behalf of system ture maintained a of supervisor land. Id. at In 404. he capacity, review to ensure that authorized ex- devised a money scheme to steal from penses were allowed. When Lieb-Gieger Dairyland. accomplished by open- He Stephens’ was supervisor, she reviewed his ing a checking account in the name expense reports submission, to prior Lack, Darrell H. Dairyland Power d/b/a Stephens attempted never to seek cash Conversion, division of Computer. Midwest using advances “add to” function. He Id. at Bank 404-05. statements were also did not do so his expense first providing mailed to Lack all a record of report supervisor, under his new Penney. action on that account. Id. at 405. When expense With his report second under scrap Lack sold a or salvage to a item Penney’s supervision, Stephens did not use buyer, deposit he would the check in that function, “add to” but included his own checking forwarding account rather than Penney’s name rather than in the reviewer to his employer. Id. Occasionally, he field and copy did not forward a of the forward a check a smaller amount report Penney to Only via e-mail. when Dairyland, to his employer origi- with the those actions unchallenged, went indicating nal purchaser listed as remittur. That Id. expense that his reports were not being check would either delivered or mailed monitored, Stephens proceed did to use Dairyland. to argued Id. Lack his acquire “add to” line to cash. Even then, actions a series of simple constituted thefts he his request structured first in a defraud, rather than a to $7,800 manner to avoid scheme suspicion, seeking under the he merely “add to” function took the funds that seeking while were meant in payment proper for Dairyland, ex- did $78.00 business but not do so means at 410. Examination rejected of the deception. Id. at We case provides ample scheme evi- argument. reasonably dence that it was calculated to pattern of deceit and held that the We Stephens began deceive. his “add to” re- Lack consti- pretenses use false quest only supervisors after changing Essential- to defraud. Id. tuted scheme supervisor that his ascertaining new was funds Lack meant one ly, obtained reports. monitoring expense He to (implicitly representing least purpose requests structured his so as to avoid de- they prop- buyers paying tection, beginning with an amount purchases), for the converted party er proper expenses his so resembled business use, and personal to his then them own provide to him an if it explanation as designed to deceive his conduct engaged request were detected. After that was prevent employer so as to employer successful, requests, he continued the knowledge improper of his obtaining near, over, keeping them Id. is similar to money. of the That use $10,000 plausibly trigger mark could Stephens present in the case. the scheme prevented an audit. In each he de- provi- through the “add to” obtained funds by failing correctly tection to his identify existing personal meant to clear sion the form to e- failing reviewer on balance that Accenture owed em- expense mail a his copy supervisor. Those ac- them to then converted his ployees. He reasonably tions were calculated to deceive though even he knew personal own use his as to the cash employer unauthorized money him Accenture did not owe receiving. The payments he was evidence employ- to his that his use was unrelated support verdict sufficient detection, he ment. order evade here. name his misrepresented the reviewer form, copy to his failed send the II his
supervisor
required,
as
and structured
requests so
requests
expense
and his other
argues
next
that even
to avoid an audit. That evinces the
judgment
acquittal
he
not entitled
properly
pattern
of deceit that
type
evidence,
sufficiency
he none
a scheme
defraud.
demonstrates
*7
trial
theless
receive a new
should
the
was unconstitutional.
selection
also
contends
Stephens
Stephens contends that
the
Specifically,
find
jury lacked
evidence to
an
sufficient
chal
government
peremptory
exercised its
requirement
to
intent
defraud.
intent
manner in viola
lenges
discriminatory
in a
by
“a
targets willful act
the defendant with
Equal
tion of the
Protection Clause.
cheat,
to
specific
the
intent
deceive or
usu
79, 106
Kentucky,
In
476 U.S.
getting
for the
financial
ally
purpose
(1986),
financial
briefed to this court on the merits. A. protests The dissent our consideration despite the Batson issue now the govern- appeal issue waiver, ment’s concluding that a first-time *8 whether set forth prima a facie consideration at late stage particu- is case discrimination. That issue comes larly argues unwise. The dissent to us path via a circuitous typically not deference due a district court has judge jury selection, seen. During the Batson judge little force when that fails to act issue was by never raised the It parties. contemporaneously, and decriers dis- the was in fact in flagged the by first instance judge’s trict court consideration of a the district court after the returned selection matter for provide which he could the guilty verdict. The court at that time remedy. no expressed its govern concerns that the ment’s peremptory challenges dispro were note initially although We that deference portionately exercised prospective afforded in findings is fact a Batson chai- Although the preferred where. not route is determination prima the lenge, facie measure, is situation we by any United States the novo review. subject de (7th Cir.2000). Jordan, 676, 686 The must face. issue was noted but not v. Moreover, quite clear that record is pre-trial, the court and the addressed the the issue judge raised Batson district affirmatively has waived its remedy, provide a in order to The argument appeal. forfeiture issue at the time of in court fact believed—even It before us now. properly therefore of peremptory the use jury selection—that post-conviction pro- in a will be no fresher raised at challenges by prosecutor ceeding. under an inference discrimination
least raised Although the trial court Batson. B. ver guilty Batson issue after dict, per that it then revealed court Supreme The Batson held Court at time problem a Batson ceived prima a order establish facie time, the court did not dire. At voir he a must show that the defendant because defense sponte raise the issue sua cognizable group, of a member objected. court not The later counsel had peremptory chal- prosecutor has exercised failing it erred in had concluded lenges members of his to remove venire sponte, sua raise Batson race, circumstances and that the relevant defendant, court, an inter just not has prosecutor raise an inference that the ex- free of discrimination. process in a trial est venire members. Id. cluded prima court concluded that expanded in 1712. That test was S.Ct. had met. case been Ohio, 400, 402, 415, 111 499 U.S. Powers problem at the court noted the Because (1991), L.Ed.2d dire, the court’s time voir we have that a defendant which the Court held of the manner which fresh recollection object peremptory chal- to race-based used. The court peremptories those not the excluded lenges whether or per- it what in fact was so troubled as the defendant. are the same race discriminatory time to be a ceived by Supreme It further clarified has been dire, that it raised issue use the voir California, recently in Johnson Court commit- own after the verdict. That on its — U.S. -, 2410, 162 L.Ed.2d 125 S.Ct. process court to a fair trial ment (2005). Johnson, the Court consid Only after the be commended. should to establish showing required ered the objected the court’s Supreme case. California judge court deter- ruling the district did objector could had held that Court remedy in fact that it could not mine by presenting case establish filing period time because the situation the infer permitting some evidence merely already trial had motion for new discrimination, must but instead ence of thus the court lacked au- elapsed and dis strong evidence that makes provide Therefore, trial. thority to order new likely than not criminatory more intent not, as judge court did the district challenges are not ex the peremptory it an issue for which implies, dissent raise held Id. at 2415. It therefore plained. remedy. It provide knew could *9 met showing was not prima that the saying a defendant risks goes without facie showing in the Batson where failing timely raise forfeiting an issue to dis primarily of the statistical a consisted it, a court address Bat- and that should challenges between parity peremptory gets But us no- pre-trial. issue son Id. An African-Americans others. The attempt transport to that final Supreme granted to Court certiorari de- persuasiveness inquiry into prima fa- permits a court termine whether to stage improper. cie was therefore Id. require, prima stage, at the The California Supreme Court ac- had facie objector it is than likely show more knowledged certainly appeared that it sus- peremptory challenges, unex- picious that all three African-American plained, based on impermissible were jurors prospective were removed from the group bias. makes the prosecutor’s peremptory chal- argument appeal, same contending lenges. suspicion That constituted an in- that a prima case is established facie ference that discrimination have oc- if Stephens presented evidence establish- curred, establishing prima thus a ing that likely discrimination was more case under at Batson. Id. 2419. There- Johnson, however, than not. the Court fore, the Court clarified Johnson that requirement held that a inappro- such was at the burden priate stage: at the low, requiring only raising circumstances describing burden-shifting [I]n suspicion occurred, that discrimination framework, we assumed Batson that where even those circumstances are insuf- judge the trial would have benefit to likely ficient indicate that it is more circumstances, all including relevant challenges than that the used explanation, prosecutor’s deciding before discriminate. more likely
whether was than not that Among the circumstances relevant challenge was improperly motivated. making determination, pattern We did not intend the first to be step so against jurors particular onerous that defendant would have race persuade judge may give of all rise to an inference basis of discrimi —on facts, impossible Batson, some which 97, nation. U.S. 106 S.Ct. for the defendant to know with certain- 1712.1 Such pattern can be evident ty challenge more likely was a prosecutor where uses —that chal product than not the of purposeful dis- lenges all, all, nearly eliminate mem Instead, crimination. a defendant satis- of a particular bers In determining race. requirements fies the first Batson’s pattern whether a present, courts have step by producing evidence sufficient to also considered a disproportionate whether permit judge the trial draw infer- of peremptory challenges number were ex ence that discrimination has occurred. particular ercised exclude of a members Cockrell, cognizable group. Miller-El v. Id. 2417. The Court further clarified 322, 331, 342, 1029, 537 U.S. 123 S.Ct. steps govern first two of Batson (2003); Newton, L.Ed.2d 931 production Overton v. evidence which allows (2d court, Cir.2002); the trial at the 295 F.3d third step, deter- Fernan Roe, mine persuasiveness of the defen- dez v. Cir. dant’s 2002); Gilmore, constitutional claim. at 2417- Id. Coulter v. appears
1. The
fact
dissent in
particular
might
to fault us for
give
ed in
venire
rise to
Batson,
heeding
protesting
the mandate of
an inference of discrimination.” 476 U.S. at
pattern
our reliance
of strikes. Batson
court,
513 against Cir.1998).2 used of its strikes African- (7th The strikes Ste- 33% 918-19 Americans, comprised who less than gives 10% pattern case evidence phens’ cognizant that of the venire. We are with to inference of discrimination. rise an involved, pattern the small numbers is jurors were excused After prospective detect, we difficult to need deter- cause, venire consisted hardship mine whether those strikes alone would jurors following of the prospective of Instead, prima demonstrate case. facie Caucasians, 3 African-Ameri- races: 24 Supreme Court’s command we follow cans, 1 Asian- 4 Hispanic-Americans, circumstances” to “all consider relevant 6 government The exercised of Ameriean. of determining whether inference dis- to challenges available it. peremptory the 7 is met. crimination challenges, none were exercised Of those jurors. The prospective against Caucasian One such relevant circumstance is peremptory used chal- government six prosecutor’s remaining per use African-Americans, 2 3 lenges eliminate to See, challenges. e.g., emptory Fernandez Asian- Hispanic-Americans, and the sole (9th Cir.2002) Roe, v. F.3d The excluded the Ameriean. defendant (considering against strikes African-Amer prospective remaining African-American previ of prospective ican context ultimately com- juror, was disproportionate against ous His Hispanic- and one prised of Caucasians members). In this panic-American venire American, alternate with two Caucasian case, challenges peremptory all of the six jurors. against minority were used members of peremp- groups. challenges use of racial Three used We first the two consider Hispanic-Americans, eliminating against African-American ve- tory strikes Hispanic-Americans 75% of the ve challenges those nire members. With dispro represented the Afri- nire. That also a use eliminated 66% of jurors. representation portionate More- prospective can-American over, venire, using 50% with the challenges, prosecutor those juror. who That case problematic "it is struck 2. The dissent asserts that discriminatory dispro- may pattern sim infer that strikes never addresses whether dispropor ply peremptory strikes fall challenges portionate use of can among tionately of a certain members In con- raise an inference of discrimination. citing group," support three cases to trast, many Supreme Court and circuits however, cases, inapposite. point. Those pattern can in- have concluded that such Two did not even address the of them case of discrimi- deed establish facie inquiry, dis stage of the Batson instead following Although note. nation. See cases necessary quantum proof cussing the as itself involv- the dissent dismisses Miller-El discrimination in the second and establish Batson, step comparison ing the third Club, steps. third v. Sam's Warehouse Alverio prove dis- Evidence sufficient invalid. (7th Cir.2001) {prima step necessarily third crimination conceded) Roberts, case and United States an inference at first sufficient to establish Cir.1998) (7th (prima Therefore, step is rele- Miller-El of Batson. issue). provide no case a moot Those cases however, reverse, true. Evi- is not vant. dispropor guidance pattern on whether a may prove discrimi- dence be insufficient an inference dis tionate use establish step of that would at the third nation remaining United crimination. an infer- enough have to demonstrate been Cooke, States reason, step. ence the first For that 1997), single peremptory Cir. involved a strike third-step in the are irrele- cases cited dissent potential juror, and of an African-American defining establishes an vant what evidence provided no for that the defendant context step. strike, first identify juror at the failing inference discrimination who the even *11 514 members, to eliminate of a challenges rights
its members to vindicate the of venire defendants). comprised approximately group just racial that is It also an irrele- Finally, prosecutor of the venire. proposition here, 13% vant because Stephens’ venire struck the sole Asian-American bear symmetry statistics to the venire however, compelling, more member. Even in composition that stark stands contrast challenges used no prosecutor is that the to the Stephens statistics. jurors, prospective white against all (9 all) challenges 82% of used his in government which used 0% meant that against comprised whites who 75% of the challenges group com- its venire; (1 he used of his challenges 9% in prised venire at the time the 75% of all) against African-Americans who com- As peremptories exercised. the Su- prised venire; 9% of the he used 9% of his said, preme “[hjappenstance has Court is (1 all) challenges against in Hispanic- unlikely produce disparity.” Mil- Americans who made 12.5% of up the veni- Cockrell, 322, 342, 537 ler-El v. U.S. 123 re; employed and he challenges 0% his (2003) L.Ed.2d (prose- S.Ct. against who Asian-Americans reflected 3% 10 of 14 against cutor’s use of Nothing of the venire. in that use of African-Americans, only resulting one peremptories suggests an effort dispro- jury, serving African-American portionately particular eliminate racial perempto- evidence of race-based use of fact, In group. as proportionate that is ries.) challenges stack The use challenges use of imagine. as one could race is no with one more constitution- contrast, government used 0% of its al than use to one eliminate race. challenges against who comprised whites complains looking The dissent venire; 75% of the of its challenges that — 33% “lucky” Stephens is against statistics — up African-Americans who made did challenge not initiate a venire; 9% of the of its challenges 50% of its own because he struck one-third of against Hispanic-Americans who com- (by using per African-Americans one venire; prised only 12.5% of the and 17% challenge) emptory one-quarter challenges of its against Asian-Americans Hispanic-Americans (again, reflecting only who reflected 3% of the venire. More peremptory challenge). one If the dissent significantly, by prosecutors use suggesting discrimination eliminated all minority but one venireper- selection would be con jury. son from the Although the Batson long stitutional as as the defendant also prima inquiry certainly does not de- jurors, prospective discriminated such proportionality, mand close sym- that would an astounding proposition. metry between Stephens’ challenges and — Dretke, U.S. -, See Miller-El representation minority venireper- n. 162 L.Ed.2d minimum sons should at a belie claim (2005) (hereinafter II) (defen Millet-El “lucky” govern- “flatly dant’s conduct irrelevant” to the did ment Batson challenge initiate a question of the prosecutor’s whether con his strikes. duct revealed a desire to African- exclude Americans); Linahan, Eagle v. The dissent complains we are sim- (11th Cir.2001) (potential ply aggregating small numbers Batson viola to create a tion prosecutor pattern, Supreme not cured court’s Court fact observation that the requires defendant have us to consider context evaluat- also peremptory challenges been using ing a Batson claim. exclusion of near- manner; discriminatory ly Batson is meant persons all of color from the trial of an *12 housing, in in stereotyping employment, less looks no defendant African-American surance, community many as whole other areas makes that and suspicious the per- Here, prosecutor targeted all jury the the had to deter apparent. because solely than those color rather credibility sons of the an mine of African-Ameri suspicions of ethnicity. The discrimi- one in characterizing defendant his con can where no chal- heightened nation are employee, weighed as a duct white-collar y against lenges prospective at all are used testimony by Caucasian contrar the comprised 75% of jurors white who There is no reason to believe employees. venire. jury be immune those stereo-types determining racial in credibil fur- inference of discrimination is
That motives, analyzing prosecu or that a ity considering context of the thered when an in an all- advantage tor would not see in the crime Although strikes as whole. jury in this in- white case. fraud and did not this case was wire race, the defendant volve issues made clear Batson “[t]he Johnson and the witnesses were African-American designed produce framework is actual Stephens’ actions all Caucasian. Because suspicions answers to and inferences that trial, hinged the case were not contested may have infected discrimination Stephens’ upon jury’s determination process .... The inherent uncer- selection intent, particularly and issues knowledge tainty present inquiries in discriminato- Therefore, credibility. centering on against engaging in ry purpose counsels nothing does lessen nature of case when a imperfect speculation and needless the inference of discrimination raised by asking can obtained direct answer strikes, in fact furthers it. See and question.” omitted] 125 simple [citations (3d Horn, Holloway Here, starkly dispro- at 2418. S.Ct. Cir.2004) (in showing, finding prima facie of discrim- suspicions use raises portionate as relevant circumstance court considered the trial ination that were obvious to turned on the credi- largely that the case speculate as to judge, and rather than defendant, who was African- bility of the it, government would reasons for as the American, who took police and the officer do, require have us Batson and Johnson Caucasian). statement, We his who was prosecutor simply we ask the disagree with the dis- respectfully must reasons. those simply “[t]his sent’s contention legitimate in is a con- a case which there a role play cern that racial issues could C. or the outcome of the trial.”
jury selection asserts Breyer at length As documents Justice yield in fact does not pattern II, use in Miller-El “the his concurrence in this inference of discrimination case an gender-based stereotypes and of race- reasons for there race-neutral process selection seems better in the record. disparity apparent We systemized than ever organized more considering courts recognized that have 2342; generally see before.” S.Ct. claims at the Batson therein. 2341-43 citations for the apparent consider reasons un- Unfortunately, stereotyping racial record, re challenges discernible particu- to one conscious bias is not limited those reasons were gardless of whether certainly cannot be society, lar area challenge. Ma actual reasons for of violent interracial limited cases n. 1 haffey Page, of continued racial crimes. The evidence Cir.1998). Mahaffey, provided jurors we potential responded voir dire they in which all hypothetical sympathetic stricken were to the defendants’ attorneys, in which that apparent actions and blamed the riots on the failure justice negate could inference of of the criminal explanation system). The use of discrimination regardless race of whether apparent spares reasons attorney status was actual reason steps second and third words, for the Id. Actual appropriate *13 strike. reasons need not In cases. other prima stage, be stated at the but in government obligation point is under no facie circumstances,” considering relevant apparent “all out reasons for strikes may courts consider prima stage distinctions such as do an so facie attorney determining attempt status whether the pro- to short-circuit the Batson inference of discrimination is demonstrat- cess. Once the appar- raises course, Of example, reasons, ed. the above obliged ent we are to consider prosecutor attorneys had failed to strike them.
who of cognizable were not members II, After Johnson and Miller-El howev- group, the court would consider that as er, it very is clear that is a narrow well. See Briley, Henderson v. 354 F.3d Supreme review. The Court clear made (7th Cir.2004) (at prima facie persuasiveness of the constitution- stage, comparative evidence between challenge al is to be determined at the jurors stricken empaneled jurors first, stage, third Batson not the and has although not required). relevant rejected efforts supply the courts to questionable See, reasons for the strikes. This consideration of “apparent Johnson, e.g., 125 S.Ct. at (finding 2414-18 in fact nothing reasons” is more than a case though established even of “all consideration relevant circum trial judge’s of examination the record con- determining stances” when an in whether vinced him that prosecutor’s strikes of ference discrimination is established. justified by reasons); could be race-neutral provide Our cases for it and it normally II, Miller-El (noting S.Ct. at 2332 works to the advantage, inquiry a Batson is not a “mere exercise showing a seemingly discriminatory basis”). any thinking up light rational pattern of peremptories readily ex Johnson, of inquiry into apparent rea- plained by apparent factors in the record. sons is relevant insofar as the strikes Mahaffey, 1; 162 F.3d at n. see also clearly are so appar- attributable to that Campbell, Johnson v. ent, non-discriminatory reason that there Cir.1996) (in finding no longer any inference, is no suspicion, or of court relied on the “obvious neutral reason discrimination those strikes. challenge,” for the ju that the challenged ror had in previous Here, served involving trial prosecutor argues similar allegations of police excessive force history education and work prospec- unknown); and outcome jurors trial was provide tive apparent race-neutral Capers v. Singletary, 989 F.2d 446 explanations strikes, pattern (11th Cir.1993) (any inference of discrimi with eliminating the strikes the least edu- nation arising pattern of cated and those with little or no work jurors African-American history was re in an setting. office The record evident, fails, however, butted racially justifi neutral “appar- reveal such an majority cations for the in challenges, ent” basis for the peremptory challenges. cluding that ten African-American acknowledges that it ac- who, pri- at the inference discrimination jurors similar five cepted Caucasian objec- col- both a ma because there is no jurors, lacked stricken to the experi- apply white-collar work tive us to those lege degree and basis for factors. Moreover, much, it further concedes recognized The government ence. prospective Asian-American it struck one quoting McAdory, Pruitt college degree (7th Cir.2003) both a juror possessed who to emphasize that 930-31 The edu- position. white-collar and a process could not be nar- selection therefore, history, do and work cational single trait or set of traits: rowed “apparent” explanations not provide jurors complex and Picking is a multifac- strikes, some process. Individual factors or eted stricken those Caucasian provide often do not characteristics college degree government lacked both acceptance will mean ‘silver bullet’ that experience. white-collar work and the rejection juror. potential *14 non- point has failed to government Rather, it is the combination of factors in rec- or factors the discriminatory factor a party will be- that determine whether expla- provide “apparent” that ord which juror will be to their lieves favorable prosecutor’s strikes. nation for the side. attempts to government avoid process government weighing individually, challenge each examining subjective, inherently in this case combination of other factors identifying a turning challenge govern- for each challenge, led to the in record that as which factors were ment’s choice why factors had explaining those then important in each individual most case. in each in the decision impacts different easily The factors identified could have instance, the govern- individual case. For minority jurors in accepting resulted some respect to attributes its choices with ment fact, jurors. Caucasian striking jurors to a combination prospective those jurors with three or prospective number including en- law of factors record “positive” factors were chal- four of the military experience, criminal or forcement jurors with similar lenged, while Caucasian law history, association with others with The result that positives were chosen. military experience or or enforcement many empaneled shared histories, past litigation ex- criminal with elimi- characteristics with the those same spell- presence perience, and even jurors, apparent race-neutral nated no the forms the ing grammar mistakes on expla- apparent An pattern is discernible. identi- jurors completed. This prospective just that— challenges nation for must factors, in of numerous unrelated fication readily the court can apparent —in all complexity, its has specificity discernible, challenges to attribute the appearance govern- of a recitation of (as with the attor- explanation consistent per- for its “actual” reasons use ment’s earlier). The sub- ney example discussed explic- emptories, has offered jective weighing of factors notion, itly insisting disavowed “apparent” government is not such an ex- merely “apparent” in reasons these place prima in the planation, and has no record, us confining and therefore determination. facie in- portion of the Batson prima facie gov imply That is not to multiple weighing of those quiry. The legitimate non-dis ernment in fact lacked determining how to exercise the factors for the however, choices criminatory reasons is not the peremptory challenge, Instead, only before question alters explanation that made. type apparent tory challenges us is whether the should be involves for reasons required to articulate actual for its reasons challenges objectively that are evident challenges. The district record, in the and does not enmesh the court would then determine whether the court examination of the govern- challenges government’s explanation its multiple ment’s detailed recitation of fac- government’s credible. The detailed tors. This approach, rather than multiple weigh- recitation of and its factors dissent, ensure that the ing each prospective of those for individual straightforward, pre- remains a juror appropriate is more the next liminary showing of an inference that Bat- stages of review. And the son requires, and Johnson not the estab- contention that the defendant at the prima lishment ultimate discrimination that is stage must that discrimina- establish step. reserved the third likely tion is more than not has been pro This case is Remanded for further rejected squarely in Johnson. Consistent ceedings opinion. consistent with If Johnson, would not we involve the ultimately district court concludes that in an inquiry court extensive at the equal protection no violation occurred Instead, stage. if the strikes raised jury selection, then it should its reconsider use, discriminatory an inference of then we sentencing light of United States v. would not have the court engage “need- — Booker, U.S. -, 125 S.Ct. *15 imperfect less and speculation when a di- (Jan. 2005). L.Ed.2d rect asking answer can be obtained Johnson, simple question.” KANNE, Judge, Circuit concurring in 2418. The prima showing in this facie part in dissenting part. and case did not stem from the exercise of a single peremptory challenge against a I concur with the majority’s cogent anal- Instead, of member a cognizable group. it ysis and respecting Stephens’s conclusion was the a pattern challenges result of of challenge sufficiency to the of the evidence grossly in dispropor- exercised in I. contained Part tionate manner cogni- members of must, however, I part ways with the zable groups, racial which was rendered majority in its treatment Stephens’s of more questionable by the in context which: Batson claim in Part II. It is unwise no peremptory challenges were exercised Stephens’s consider Batson claim in the against potential Caucasians who first instance preserve when he failed to comprised venire; of 75% the the defen- objection the issue during jury selec- dant was all African-American and of the tion, and the district court did not raise Caucasian; witnesses were the case turned the issue until long after it could have jury’s on the of assessment the defendant’s any merits, Even fashioned relief. credibility motives; and there was no however, I do not believe that Stephens apparent explanation in the record that has established a Batson claim challenges attribute the to a non- warranting Moreover, a remand. the ma- Moreover, discriminatory opin- basis. our jority’s analysis muddles three-part explicitly ion rejects government’s at- framework and the allocation the bur- tempt to transport weighing the detailed of persuasion den as set forth in the Bat- process from the second and steps third son line of cases. Batson to the prima analysis. We make outset, it clear “ap- that the examination of At bears repeating that parent” reasons in peremp- the record for case comes us in an unusual pos- position unique in the to make credi ture, Stephens’s challenge “sit[ ] Batson in which bility at the assessments actions of trial the first instance was considered attorneys at the district ... opportunity [and] rather than appellate ha[ve] trial, parties practices At conducted patterns partic court level. to observe including jury attorneys during prior jury ular selec selection— strikes at issue here —without Cooper, tions.” United States v. objection (7th complaint Cir.1994); on a whiff 1161-62 accord Ber or, for that part Stephens’s counsel godere, F.3d 517. This deference is matter, district court itself. judicial part recognition jury due to process selection is nuanced “that is not Stephens’s reason an exact science. Its watchwords are us and not forfeited is the claim is before judgment, flexibility, Ber discretion.” to waive for- government’s agreement 517; godere, F.3d at see Dunham also argument purposes ap- feiture Inc., Nursery Crafts, v. Frank’s & long brought the Bat- peal, so as (7th Cir.1992). Therefore, than challenge appeal son rather judges it is axiomatic that trial are normal § 2255. collateral attack under 28 U.S.C. ly position in the best to observe rationale, learn, govern- is the we challenges selection resolve Batson something that hope clarify ment’s that we appropriate instance and perfectly now obvious—under should first It is point time at this framework, has a the Batson a defendant frame. I majority part ways. and must The rea meaningful burden establish sons for deference have little force when court case of discrimination before a contempora the district court fails act may require govern- from the explanation response objection neously or even ment. This burden is not be taken perception possible its own discrimina ignored. granted or See United States *16 Stewart, 918, Cir.1995); during tion selection. See United 65 F.3d 925 (7th Chandler, 1427, 512, States v. 12 F.3d 1431 Bergodere, v. 40 F.3d United States Cir.1994) Cir.1994). objection (1st (“Contemporaneous is 516 imperative respect with to Batson claims though the government acquiesced Even in frequently the trial court is a because challenge,1 I Stephens’s belated Batson objection, position to rule on the all that a first-time consideration believe ”). to resolve such claims.... probability[,] particularly his claim at this late jury’s The verdict the case was re- majority agree The I unwise. 21, Then, February turned on 2003. over deferentially one of the reasons we review trial, completion judges’ factual with two months after district determinations regard they judge sponte to Batson is the fact that the district sua raised clarify Naturally, a chal- understood that merits order Batson stage, Stephens brought lenger's at see could have a Batson chal- burden government certainly lenge by collateral attack rather than di- discussion infra. compelling argument a appeal. argument, have made rect At could courts, expressed not its concern that trial when forfeited his Batson claim challenges, raising timely resolving it in a fashion in district Batson often rubber- Henderson, See, McCrory stamp e.g., v. 82 defendants’ burden court. 1243, (2d Cir.1996) (reversing prematurely 1249 move to the second and third F.3d writ, government's grant holding stages, making that “the failure thus it the bur- habeas adversary’s peremptory every object it to an use of den to offer its actual reasons time challenges jury minority venirepersons. govern- completion strikes until after so”). right Stephens's selection waives the to do ment wanted case to heard on 520 It baffling issue. do disappear simply
Batson
dis
erations
not
brought
a
judge
up
trict
selection
government affirmatively relinquished
longer
pro
for which he no
could
matter
arguments,
its forfeiture
nor should the
Moreover,
a
a
remedy.
vide
seems
dis
district
post-trial
court’s
about
ruminations
tinctly
to compound
bad
for us
idea
possible discrimination —at a point when
taking
problem by
up where the district
ability
its
do something
about
judge
Stephens’s
left off.
counsel never
long
strikes had
since expired weigh in
—
objection
a timely
during
made
selec
hearing Stephens’s
favor
our
Batson
(or
time,
matter),
any
tion
for that
nor
challenge in the first instance.
speak up
did he
when the district court
imply
This is not to
the district
asked whether either side had
con
court’s belated order was on a
with
par
a
following
peremptory
cerns
strikes and
tardy
objection
defendant’s
Batson
empaneling
jury.
before
Aki-
Cf.
brought after
guilty
a
verdict. The dis-
Davis,
(7th
521,
Khuam v.
339 F.3d
527
judge
trict
position
indeed was
Cir.2003);
Brisk,
171
United States
F.3d
evaluate the
(7th
514,
Cir.1999);
Welborn,
Holder v.
(as
counsel)
Stephens’s
and to
(7th
383,
Cir.1995);
60 F.3d
Doe v.
timely
take action
fashion.
It is an
(7th
Burnham,
Cir.1993).
open question whether
trial
court must
aptly
The majority
Stephens’s
describes
sua
sponte raise Batson issue at the first
claim coming
before us “via a
sign that something may be amiss. See
circuitous
path
typically seen.” And
Burnham,
(“We
A
look at the
use
better
closer
strikes,
why it
be
the
and other facts that indicate
strikes reveals
emptory
party
discriminatory
acted with
to conclude
“numbers whether
inappropriate
satisfying
put
pattern
purpose,
constitute a
order
statistics into
alone” can
McCain,
burden. Because the
useful context. See
the
case,
minority
example,
was so 291-92.
for
venirepersons
number of
small,
statistically majority
solely
focuses
the raw num-
magnitude
on
government’s
against
peremptory
strikes
minorities
bers of the
disproportionate
strikes,
an extent that
but does
address
infer-
exaggerated
such
for
impossible
gov-
gov-
ences to be drawn
the strikes
would have been
It
any minorities without
ernment did not make.
must
rele-
ernment
to strike
vant,
example,
government
un-
that the
did
creating an inference of discrimination
all of its
chal-
majority’s expansive
peremptory
formulation. not exercise
der
lenges, although
if the
had
minorities remained
example,
government
For
even
strikes,
service.
eligible
all 7 of its
and eliminated
the venire and
used
African-American,
Griffin,
of its
14.2%
United States v.
even one
Cf
(7th Cir.1999) (“[T]he
minority
fact that
strikes would have eliminated a
challenge the
[government
venire. The
did not
other
representing
9.7% the
(as
argument
juror
further weakens the
pronounced
hap-
effect
even more
black
here)
strikes were based
pened
government
strikes
discriminate.”) (citation and
minority
a motive to
particular
member of a
lone
omitted).
quotes
Specifically, the
group
used
internal
this—in
remaining per-
did not use its
one of its six strikes to remove
sole
(thus
challenge
Juror #
venireperson
using
emptory
to remove
Asian-Ameriean
ju-
as a
challenges
Hispanic
3% of
woman who was seated
of its
eliminate
17%
venire).
ror,
#
an African-American
Juror
Indeed,
ju-
regard
to these
woman.
the sta
majority simply aggregates
rors,
prosecutors’ acquiescence
their
tistically disproportionate strikes
“apparent”
is consistent with
service
minority
groups
members of several
strikes,
for its
as dis-
reasons
majority’s
view
“pattern,”
find
cussed infra.
exaggerated
makes no allowance for the
True,
trigger
can
our
But even if numbers alone
effect due
small numbers.
discrimination,
Stephens
cut
an inference of
suggest
caselaw does not
a numerical
lucky
government did not initiate
disproportionate pattern
off for
when
challenge
own.
statistically
a Batson
its
itself
become
from the
one Afri-
support an infer
himself struck
venire
significant
properly
(Juror
13),
#
surely
Hispanic,
one
But
can-American
ence
discrimination.
Looking only at sta-
rely
reluctance to
on and nine Caucasians.
court’s demonstrated
does,
(and
tistics,
majority
one could
as the
requirement
alone
our
numbers
*20
Stephens’s
infer discrimination on
There
no
arguably
principle
tion.
is
ra-
requiring
all,
Batson,
complains
cially
he
on
part
appeal
proportional
E.g.,
strikes.
—after
6,
1712;
that no African-Americans
one
U.S. at 86 n.
106 S.Ct.
McCain,
petit jury, yet
individuals,
Hispanic remained
he
at 291.
F.3d
And
one third
the African-Americans
not racial groups,
right
struck
have the
to serve
Ohio,
quarter
Hispanic
juries.
of the
venireper-
one
on
Powers v.
499 U.S.
Cf.
400, 409-10,
sons himself.
L.Ed.2d
(1991). Indeed,
a party purposely
majority questions
this observation
jury
empanel
directly
set out to
propor-
I
suggest
govern-
infers
venire,
makeup
tional to the racial
of the
it
scrutiny
ment’s actions are immune from
very likely would be forced to discriminate
Stephens
minority
because
himself struck
venirepersons
some
on the basis of
I
venirepersons.
certainly
dispel
wish
race in order to achieve that balance. No
I
illusion that
subscribe to the latter
intentions,
matter how noble its
such a
proposition.
I have called attention to Ste-
strategy would
just
offend Batson
as sure-
not
phens’s
suggest
they
strikes
ly
jurors
that struck
on
one
the basis
possible
cancel out
wrongdoing
gov-
discriminatory stereo-types.
United
Cf.
instead,
part,
ernment’s
il-
to further
Nelson,
(2d
States
209-12
problem inferring
lustrate
discrimi-
Cir.2002) (concluding that racial or reli-
natory intent from statistics alone. We
gious “jurymandering,”
whether
have said that one relevant factor to con-
court,
parties
impermissi-
the trial
is
totality
in the
sider
is
circumstances
ble).
McCain,
jury,
makeup
e.g.,
final
and it is indisputable
Having found
case on the
Stephens
alone,
himself has helped
bring
majority
numbers
looks to other
jury
about a
with no African-Americans
present
factors
in this case and concludes
Hispanic.
and one fewer
Mahaffey
changes
none
them
its conclusion.
Cf.
(7th Cir.1998)
Page, 162 F.3d
example,
484-85
For
majority
concludes that
(noting
important
the most
African-American,
factor
because
is
was that
case
did not
Caucasian,
include
and the trial witnesses
a cir-
any African-Americans, and thus “not a
cumstance arises that “does
nothing
single
Mahaffey’s
member of
own race was
lessen
inference of discrimination.” To
fate”).
me,
seated on the
puts
horse,
that decided his
the cart before the
suggests
because it
Nevertheless,
majority
instead
must, at the prima
present
stage,
praises Stephens’s strikes
they
evidence to contradict
majority’s
con-
a symmetry
bear
to the racial composition
clusion that Stephens has met his burden.
of the venire and
nothing
concludes that
Stephens’s
about
suggests
event,
In any
strikes
an effort
prosecu-
the fact that the
disproportionately
particular
eliminate a
tion’s witnesses were all Caucasian does
not,
racial group.
proportionality
Racial
present
not
a racially sensitive situation
however,
the standard
whereby
which we are to
peremptory challenges against
(let
party’s
assess whether
jurors
African
American
alone
races)
run
strikes
afoul Batson. If that is what
minority
other
are
viewed
(that
majority
proposes
racially pro-
greater scrutiny. Moreover,
with even
portionate
necessarily
are
underlying
immune
subject
facts and
matter of the
scrutiny),
majority
racially
ease
charged
and do
that has
an astounding
suggest
endorsed
proposi-
against minority
that strikes
veni-
*21
nothing
This seems to be
but a
finding
favor of
sented.
might weigh in
repersons
fiction, in
everyone
which
can
This case
convenient
of discrimination.
an inference
at the
pretend
prima
cases in
that we still are
quite uniike those
is therefore
facie
stage
inquiry simply by
of the Batson
significance
special
race had
which
—for
agreeing
“apparent”
that
the reasons
racially inflammatory situa
example, the
the
not
as
record are
the same
whatever
Mahaffey,
which
presented
tion
government
yet
actual reasons the
has
to
defendant from Chica
African-American
Stewart,
offer.
for horrific
Accord
prosecuted
side was
go’s south
(“No
opposing par-
the
party challenging
Caucasian
crimes committed
...
strike
is
neighbor
ty’s
use of a
family
in a
side
who lived
north
strike,
485;
explanation
entitled to an
that
Mahaffey, 162 F.3d at
hood. See
disallowed,
Stewart,
it
much
to have
unless and
F.3d
less
accord
showing
until
of racial dis-
who at
present
Stephens,
In the
made.”);
Mahaffey,
crimination
is
cf.
Yale,
holding down a white-
tended
F.3d at 483-84.
position at Accenture
management
collar
otherwise,
to
computer
Though
doing
it claims
be
func
using
accused of
and was
majority weighs
very
the
factors that it
of over
the
employer
his
tion to defraud
in the
$60,000
appropriate
cash
concedes
next
in unauthorized
advances.
government’s
the
alleged raises the
of review
finds
the crime
Nothing about
inflammation,
“apparent”
reasons insufficient
under-
fact
specter of racial
dispro-
all
mine the inference drawn
hap
witnesses
prosecution’s
that
weighing
And in
portionate strikes alone.
change
does not
pened to be Caucasian
reasons,
“apparent”
government’s
States v. Gran
this conclusion.
United
Cf.
(4th Cir.1989)
whatsoever,
dison,
the ma-
giving them no credit
(“[T]o
framework
jority blurs the Batson
prosecutorial
infer
discrimination
persuasion to the
shifting
wit
the burden of
government
race of
because
stage.
implications....
[A]ny government at
has serious
nesses
as it
to take its witnesses
party is forced
by scouring
majority does this
The
them.”).
a case in
simply
This is
finds
jus-
“apparent” race-neutral
government’s
legitimate
is
concern
ra
which there
purported
contradictions—
tifications
selec
play
could
a role
cial issues
jurors shared
namely, that
Caucasian
some
trial.
or the outcome of the
tion
minority
certain traits with dismissed
veni-
the record
concludes that
sup-
repersons
additional
majority
also finds
—and
negate
provide
fails to
evidence
Stephens’s prima
case
port for
of discrimination.
majority’s
of what the
inference
engaging
parsing
in a detailed
Cf.
(“[Wjhere
Alverio,
party
at 941
as
race-neu-
government
“apparent”
offers
(reasons
juror,
striking a
gives multiple reasons for
its strikes
tral reasons for
enough
it is
for the other side
assert
compelled
felt
government apparently
juror shares one at-
presumption
empaneled
to rebut the
offer
order
(citation
discrimination).
juror.”)
it
tribute with the struck
regard,
omitted).
to me
this conclusion seems
But
noting
Stephens,
govern-
worth
find-
ment,
thinly disguised
than a
go
great
nothing
all
more
majority
and reasons,
wheth-
ing
government’s
lengths to
stress
“actual,”
“apparent”
er one calls them
is not the same
its
“apparent” rationale
sup-
strikes, which,
are not to be credited
for the
“actual” reasons
suspect.
them
pre-
posed contradictions render
alleged,
yet
has not
out,
majority
gy.
thus holds the
As
government pointed
*22
standard, at
higher
a
the prima
a
case is white-collar fraud case. Much of
facie
stage,
ordinarily
the
than
low threshold
against Stephens
the evidence
ac-
involved
government
the
must meet in the second
counting
computer functions,
it is
so
stage of the Batson framework. See Purk
surprising
not
the
would
ett,
769,
at
514
merge challenges litigants cause if explain every protected
must strike
venireperson, eliminating thus altogether
practice designed litigants to assist
imprecise necessary science of selection.
Cf McAdory, Pruitt v. . (7th Cir.2003) (“Picking 930-31 complex
is a In process. multifaceted
dividual or factors characteristics often do provide the ‘silver bullet’ will rejection
mean acceptance poten *24 Rather, juror.
tial ais combination of par
factors that will determine whether
ty juror believes will be favorable to side[.]”).
their conclusion, for the reasons set forth
above, respectfully I dissent as to Part II
of majority opinion. FUESTING,
Arthur W.
Plaintiff-Appellee,
ZIMMER, INC., Defendant-Appellant.
No. 04-2158.
United States Court of Appeals,
Seventh Circuit.
Argued Jan. 2005. Aug.
Decided