United States v. Earl Daniels , 501 F. App'x 233 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4254
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EARL DANIELS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, Chief District
Judge. (1:10-cr-00968-MBS-13)
Submitted: November 9, 2012 Decided: December 20, 2012
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Thomas McBratney, III, MCBRATNEY LAW FIRM, P.A., Florence,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Julius N. Richardson, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Earl Daniels was found guilty of
conspiracy to distribute five kilograms or more of cocaine, 280
grams or more of cocaine base, and a quantity of marijuana. He
received a life sentence. On appeal, Daniels asserts, under
Batson v. Kentucky, 476 U.S. 79 (1986), that the Government’s
reasons for striking a black juror were pretext for purposeful
race discrimination.
At jury selection, the Government was given seven
peremptory strikes and Daniels was given eleven peremptory
strikes in selecting the jury of twelve jurors and two
alternates from a pool of thirty-two potential jurors. After
both parties exercised their strikes, Daniels raised a Batson
challenge. On appeal, Daniels only challenges the Government’s
use of a peremptory strike on juror number 256, who was black.
The Government explained that the juror’s son had his
license suspended and the juror had to provide transportation to
him at the end of the workday. The Government stated it was
concerned that the juror would be anxious to leave at the end of
the day to pick up his son and that he may not be paying
attention to the trial proceedings. The Government offered that
the reason that gave it the most concern, however, was the
juror’s response on the juror questionnaire that he would be “as
fair as I can.” The Government stated that it was not confident
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that the juror “could be fair in these circumstances.” After
the Government concluded, defense counsel said “I don’t have any
response to that, your Honor. . . . I know that his answers are
racially neutral.” The court replied, “[H]is answers . . .
appear to be race neutral, so I don’t – what’s your basis for
your motion?” Counsel responded, “I withdraw it.” After a
quick exchange with the court stating that counsel did not have
to withdraw the motion, defense counsel then said, “Judge, [sic]
prefer you rule on it.” The court then denied the motion.
The Equal Protection Clause prohibits the use of
peremptory challenges based solely on race or gender. Batson,
476 U.S. at 86; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
128-29 (1994). Great deference is given to a district court’s
determination of whether a peremptory challenge was based on a
discriminatory motive, and the court’s ruling is reviewed for
clear error. United States v. Farrior, 535 F.3d 210, 221 (4th
Cir. 2008); Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995).
Generally, a Batson challenge consists of three steps: (1) the
defendant makes out a prima facie case of discrimination; (2)
the Government offers a race-neutral explanation; and (3) the
trial court decides whether the defendant has carried his burden
and proved purposeful discrimination. Purkett v. Elem, 514 U.S.
765, 767-68 (1995).
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Once the neutral explanation is presented, the
complaining party must prove purposeful discrimination. Batson,
476 U.S. at 98. A movant may show purposeful discrimination by
demonstrating that the opposing party’s explanation is a mere
pretext for racial discrimination. Farrior, 535 F.3d at 221.
The party must “show both that [counsel’s stated] reasons were
merely pretextual and that race was the real reason for the
strike.” United States v. McMillon, 14 F.3d 948, 953 (4th Cir.
1994). In making this showing, the party “‘may rely on all
relevant circumstances to raise an inference of purposeful
discrimination.’” Golphin v. Branker, 519 F.3d 168, 179 (4th
Cir. 2008) (quoting Miller-El v. Dretke, 545 U.S. 231, 240
(2005)).
Here, the Government offered a race-neutral
explanation, and the district court accepted that explanation.
Importantly, Daniels did not make a claim of pretext in response
to the Government’s explanation. Instead, defense counsel
acknowledged that the explanations were race-neutral. The
failure to argue pretext after the challenged strikes have been
explained constitutes a waiver of the initial Batson objection.
See Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, 1027 (4th
Cir. 1998). In Davis, we joined several circuits in holding
“that the movant’s failure to argue pretext [after the non-
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movant proffers race neutral reasons for the strikes]
constitutes a waiver of the initial objection.” Id.We therefore conclude that Daniels has waived review
of his Batson challenge on appeal by failing to argue that the
Government’s proffered reasons for striking juror number 256
were pretextual. We affirm the judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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