United States v. Stephens, Wayne ( 2005 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 03-2964
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    WAYNE STEPHENS,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 02 CR 661—Matthew F. Kennelly, Judge.
    ____________
    ARGUED OCTOBER 28, 2004—DECIDED AUGUST 29, 2005
    ____________
    Before POSNER, KANNE, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Wayne Stephens was em-
    ployed as a manager in a technical support unit for
    Accenture’s New York office when he repeatedly used an
    “add to pay” function on his time and expense reports to
    obtain a total of approximately $67,395 in unauthorized
    cash advances for personal use. That conduct resulted in his
    criminal conviction for wire fraud in violation of 
    18 U.S.C. § 1343
    .
    In his position at Accenture, Stephens was required to use
    the computer program called Automatic Remote Time and
    Expense System (ARTES) to file a bi-weekly time
    and expense report (hereinafter “expense report”) that
    was used in calculating his paycheck. Through ARTES,
    employees would input information regarding expenses
    2                                               No. 03-2964
    incurred, and Accenture would use that information to
    bill the client and to reimburse the employee in the pay-
    check. Employees could request reimbursement for
    business-related expenses by filling in the fields labeled
    “expenses without receipt,” “expenses with receipt,” and
    “business meals.” In addition, the form included a “add
    to pay/deduct from pay” line which allowed employees to
    add to or deduct from their paychecks. The “deduct from
    pay” line could be used for certain personal expenses, such
    as charges incurred by employees as a result of per-
    sonal telephone calls or use of a concierge service that
    Accenture operated for its employees. The proper use of the
    “add to” function was at issue in the trial. Some testimony
    indicated that the “add to” function was to be used only for
    business-related expenses such as expenses related to
    international assignments or employee relocations.
    Stephens, on the other hand, argued that there was no
    policy related to the use of that function, and that it could
    be used for personal expenses. Prior to January 2000,
    Accenture’s written Policy 526 stated that “[c]ash advances
    are not provided via time reports nor through petty cash in
    the offices.” In January 2000, however, that policy was
    replaced by Policy 63.044, which did not contain that
    sentence. Policy 526 was in place at the time Stephens was
    hired, but Policy 63.044 had subsumed it by the time of the
    criminal actions. Therefore, during the time period of the
    conduct at issue here, Accenture did not have a written
    policy regarding the availability of cash advances through
    the time and expense reports. Accenture’s Policy 63.044 did
    expressly allow the use of corporate credit cards for cash
    advances or for personal expenses, but further declared that
    Accenture had no liability for the balance on the accounts
    and that employees were required to directly pay the entire
    balance on their monthly statements.
    Once an employee completed the expense report, it was
    sent electronically to Accenture’s processing center and
    its payroll department, where the employee’s check was
    No. 03-2964                                                3
    automatically generated based upon that information
    and deposited into the employee’s bank account. Approxi-
    mately 5% of the expense reports were audited after they
    were submitted. In addition, the expense reports con-
    tained a field for the name of the employee’s supervisor, and
    a copy of the expense report was automatically sent to that
    designated supervisor upon submission. The supervisor
    could also access a supervisee’s expense report by using the
    “auditor’s view” of the ARTES program and typing in the
    supervisee’s identification number.
    When Stephens was hired in May 1999, his supervisor
    was Sandra Lieb-Geiger. Lieb-Gieger required Stephens
    to submit his expense report to her the day before it
    was due. She would then review it and once approved,
    would personally submit it to the processing center. While
    Lieb-Gieger was his supervisor, Stephens often recorded
    business expenses, but never sought a cash advance using
    the “add to” function. He also consistently entered Lieb-
    Gieger’s name in the reviewer field. Beginning in March
    2000, Neil Penney became Stephens’ supervisor. Penney did
    not preapprove expense reports prior to submission to the
    processing department. Instead, Penney allowed Stephens
    to submit the expense reports directly to the processing
    department, but required Stephens to e-mail a copy to him.
    Penney testified, however, that he did not check those
    expense reports and did not notice when his supervisees
    failed to e-mail copies to him.
    In March 2000, shortly after Penney became his super-
    visor, Stephens submitted his expense report and e-mailed
    a copy to Penney. Stephens did not request a cash advance
    through the “add to” function on that expense report.
    Beginning on April 30, 2000, however, Stephens began
    utilizing the “add to” function to secure cash advances. His
    April 30 expense report requested a cash advance in the
    amount of $7,800. Stephens did not include Penney’s
    name in the reviewer field of that expense report, in-
    4                                                No. 03-2964
    stead designating himself as his own reviewer, and he
    did not e-mail a copy to Penney. He also requested reim-
    bursement for business expenses in the amount of $78.00.
    The government argued at trial that Stephens used the
    $7,800 figure in the “add to” function because, if confronted,
    he could argue that it reflected his business expenses of
    $78.00 and was a mistake in the placement of the decimal
    point.
    Stephens continued that use of the “add to” function for
    the next six expense reports. On each of six expense reports
    between April 30 and July 31, 2000, Stephens requested
    cash advances in amounts between $9,800 and $9,985,
    increasing his cash advance yield to $67,395. None of those
    reports were reviewed by Penney because Stephens did not
    e-mail a copy to Penney and did not include Penney’s name
    in the reviewer field, thus bypassing the automatic sending
    of the report to Penney.
    In his August 15, 2000, expense report, Stephens deviated
    from his previous pattern of keeping his requests slightly
    under the $10,000 mark. Instead, he requested a cash
    advance of $22,980. That request was noticed by
    Accenture’s audit team, and Stephens was fired on August
    23, 2000 based on unauthorized cash advances.
    Stephens was subsequently convicted of wire fraud
    and sentenced to 21 months’ imprisonment, 2 years super-
    vised release, and $50,000 in restitution. He appeals that
    conviction, alleging that the evidence was insufficient to
    support the jury verdict and that the jury selection process
    violated the Equal Protection Clause.
    I
    We turn first to Stephens’ challenge to the sufficiency
    of the evidence. In considering this claim, we consider the
    evidence in the light most favorable to the government,
    No. 03-2964                                                  5
    making all inferences in its favor, and must affirm if a
    rational trier of fact could have found all the elements of the
    offense beyond a reasonable doubt. United States v. Owens,
    
    301 F.3d 521
    , 527 (7th Cir. 2002); United States v. Paneras,
    
    222 F.3d 406
    , 410 (7th Cir. 2000). In order to convict
    Stephens of wire fraud under 
    18 U.S.C. § 1341
    , the jury had
    to find that: (1) there was a scheme to defraud; (2) wires
    were used in furtherance on the scheme; and (3) Stephens
    participated in the scheme with the intent to defraud.
    Owens, 
    301 F.3d at 528
    . Stephens contends that the jury
    could not rationally find either a scheme to defraud or the
    intent to defraud. Instead, Stephens contends that the
    evidence at best establishes simple theft. He argues that
    the government failed to demonstrate that Accenture’s
    policy expressly prohibited Stephens from making requests
    for personal cash advances. Furthermore, he asserts that
    the government failed to establish that he made affirmative
    misrepresentations or misleading statements when seeking
    the cash advances or that he engaged in elaborate efforts to
    conceal his cash requests.
    In determining whether conduct evinced a scheme to
    defraud, the Supreme Court has noted that the words “to
    defraud” in the mail fraud statute “refer ‘to wronging one in
    his property rights by dishonest methods or schemes,’ and
    ‘usually signify the deprivation of something of value by
    trick, deceit, chicane or overreaching.’ ” McNally v. United
    States, 
    483 U.S. 350
    , 358 (1987), quoting Hammerschmidt
    v. United States, 
    265 U.S. 182
    , 188 (1924); United States v.
    Lack, 
    129 F.3d 403
    , 406 (7th Cir. 1997); see also United
    States v. Wingate, 
    128 F.3d 1157
    , 1162 n.3 (7th Cir. 1997)
    (“Cases construing the mail fraud statute are equally
    applicable to the wire fraud statute.”). We have previously
    held that “a necessary element of a scheme to defraud is the
    making of a false statement or material misrepresentation,
    or the concealment of a material fact.” Williams v. Aztar
    Indiana Gaming Corp., 
    351 F.3d 294
    , 299 (7th Cir. 2003).
    6                                                No. 03-2964
    We have held that the concept includes both statements
    that the defendant knows to be false, as well as a “half
    truth” that the defendant knows to be misleading and which
    the defendant expects another to act upon to his detriment
    and the defendant’s benefit. Emery v. American General
    Finance, Inc., 
    71 F.3d 1343
    , 1346 (7th Cir. 1995). In Emery,
    we further noted that “[a] half truth, or what is usually the
    same thing a misleading omission, is actionable as fraud .
    . . if it is intended to induce a false belief and resulting
    action to the advantage of the misleader and the disadvan-
    tage of the misled.” 
    Id. at 1348
    . The mere failure to disclose
    information will not always constitute fraud, but an
    omission accompanied by acts of concealment or affirmative
    misrepresentations can constitute fraud.
    The government presented sufficient evidence for a
    rational jury to find a scheme to defraud. Stephens
    utilized the cash advance field in his expense report
    although the money was not sought for any purpose related
    to work. A jury could find that the request for funds on that
    expense report carried the implied representation that it
    was for purposes related to work. Moreover, even if a jury
    were inclined to believe Stephens that he thought the “add
    to” line could be used to receive cash advances that he could
    subsequently repay using the “deduct from” line, a jury
    could find that Stephens’ actions were inconsistent with
    that use of the “add to” option. The sheer frequency of his
    requests, along with the increasingly large amounts
    requested, belie any intention of repaying the funds and are
    inconsistent with what an employee could reasonably
    believe an employer would allow. Accenture allowed the use
    of credit cards for cash advances, but held the employee
    responsible for clearing the balances on a monthly basis.
    Given those conditions on the use of the credit card, the
    contention that Stephens’ actions were a proper use of the
    “add to” function need not be credited. Accordingly, a jury
    could find that Stephens used that function in a improper
    No. 03-2964                                                7
    manner to obtain corporate funds for personal use.
    Moreover, a jury could find that Stephens engaged in
    a number of actions to conceal his acquisition of the cash.
    Accenture maintained a system of supervisor review to
    ensure that only authorized expenses were allowed. When
    Lieb-Gieger was Stephens’ supervisor, she reviewed his
    expense reports prior to submission, and Stephens never
    attempted to seek cash advances using the “add to” func-
    tion. He also did not do so in his first expense report under
    his new supervisor, Penney. With his second expense report
    under Penney’s supervision, Stephens did not use the “add
    to” function, but included his own name rather than
    Penney’s in the reviewer field and did not forward a copy of
    the report to Penney via e-mail. Only when those actions
    went unchallenged, indicating that his expense reports were
    not being monitored, did Stephens proceed to use the “add
    to” line to acquire cash. Even then, he structured his first
    request in a manner to avoid suspicion, seeking $7,800
    under the “add to” function while seeking $78.00 in pay-
    ment for proper business expenses. A jury could find that
    the amounts were calculated to provide him with a plausi-
    ble explanation if the “add to” request was noticed, in that
    he could claim that it merely reflected the $78.00 business
    expenses and he misplaced the decimal point. When
    that request was successful, Stephens increased the amount
    of the requests, but kept the amount just under the $10,000
    amount that could possibly trigger an audit—another
    indication that he was attempting to avoid detection.
    Stephens nevertheless argues that he made no mis-
    representations or misleading omissions, and that his
    actions therefore constitutes simple thefts at worst. A
    similar argument was made, unsuccessfully, in United
    States v. Lack, 
    129 F.3d 403
    , 406 (7th Cir. 1997), a case
    which involved mail fraud. Lack was employed as a materi-
    als manager by Dairyland Power Cooperative (“Dairyland”),
    8                                                No. 03-2964
    responsible for the sale of scrap or salvage items on behalf
    of Dairyland. 
    Id. at 404
    . In that capacity, he devised a
    scheme to steal money from Dairyland. He accomplished
    this by opening a checking account in the name of Darrell
    H. Lack, d/b/a Dairyland Power Conversion, division of
    Midwest Computer. 
    Id. at 404-05
    . Bank statements were
    mailed to Lack providing a record of all action on that
    account. 
    Id. at 405
    . When Lack sold a scrap or salvage item
    to a buyer, he would deposit the check in that checking ac-
    count rather than forwarding it to his employer. 
    Id.
     Occa-
    sionally, he would forward a check in a smaller amount to
    his employer Dairyland, with the original purchaser listed
    as remittur. 
    Id.
     That check would either be delivered or
    mailed to Dairyland. 
    Id.
     Lack argued that his actions
    constituted a series of simple thefts rather than a scheme
    to defraud, because he merely took the funds that were
    meant for Dairyland, but did not do so by means of decep-
    tion. 
    Id. at 406
    . We rejected that argument.
    We held that the pattern of deceit and the use of
    false pretenses by Lack constituted a scheme to defraud. 
    Id.
    Essentially, Lack obtained funds meant for one pur-
    pose (implicitly at least representing to the buyers that they
    were paying the proper party for the purchases), converted
    them to his own personal use, and then engaged in conduct
    designed to deceive his employer so as to prevent the
    employer from obtaining knowledge of his improper use of
    the money. 
    Id.
     That is similar to the scheme in the present
    case. Stephens obtained funds through the “add to” provi-
    sion meant to clear an existing personal expense balance
    that Accenture owed employees. He then converted them to
    his own personal use even though he knew Accenture did
    not owe him any money and that his use was unrelated to
    his employment. In order to evade detection, he misrepre-
    sented the name of his reviewer on the form, failed to send
    the copy to his supervisor as required, and structured his
    requests and his other expense requests so as to avoid an
    No. 03-2964                                                  9
    audit. That evinces the type of pattern of deceit that
    properly demonstrates a scheme to defraud.
    Stephens also contends that the jury lacked sufficient
    evidence to find an intent to defraud. The intent require-
    ment targets “a willful act by the defendant with the
    specific intent to deceive or cheat, usually for the purpose of
    getting financial gain for one’s self or causing financial loss
    to another.” Owens, 
    301 F.3d at 528
    . Because direct evi-
    dence of fraudulent intent is rare, “ ‘specific intent to
    defraud may be established by circumstantial evidence and
    by inferences drawn from examining the scheme itself that
    demonstrate that the scheme was reasonably calculated to
    deceive persons of ordinary prudence and comprehension.’”
    
    Id.,
     quoting Paneras, 
    222 F.3d at 410
    . Examination of the
    scheme in this case provides ample evidence that it was
    reasonably calculated to deceive. Stephens began his “add
    to” request only after changing supervisors and ascertaining
    that his new supervisor was not monitoring the expense
    reports. He structured his requests so as to avoid detection,
    beginning with an amount that resembled his proper
    business expenses so as to provide him with an explanation
    if it were detected. After that request was successful, he
    continued the requests, keeping them near, but not over,
    the $10,000 mark that could plausibly trigger an audit. In
    each case, he prevented detection by failing to correctly
    identify his reviewer on the form and by failing to e-mail a
    copy to his supervisor. Those actions were reasonably
    calculated to deceive his employer as to the unauthorized
    cash payments he was receiving. The evidence was suffi-
    cient to support the jury verdict here.
    II
    Stephens next argues that even if he is not entitled to
    judgment of acquittal on the sufficiency of the evidence, he
    nonetheless should receive a new trial because the jury
    10                                              No. 03-2964
    selection was unconstitutional. Specifically, Stephens
    contends that the government exercised its peremptory
    challenges in a discriminatory manner in violation of the
    Equal Protection Clause.
    In Batson v. Kentucky, 
    476 U.S. 79
     (1986), the Supreme
    Court reaffirmed the principle that the Equal Protection
    Clause prohibits a prosecutor from using a peremptory
    challenge to strike a prospective juror based on race. The
    Court recognized that the harm inflicted by such an ac-
    tion extends beyond the defendant to the entire community,
    and undermines public confidence in the fairness of our
    justice system. 
    Id. at 87
    . Recently, the Supreme Court again
    catalogued the harms inherent in the discriminatory use of
    peremptory challenges. The Court noted that the constitu-
    tional interests Batson sought to vindicate “are not limited
    to the rights possessed by the defendant on trial, nor to
    those citizens who desire to participate in
    the administration of the law, as jurors,” but extend to
    the entire community, undermining public confidence
    in the fairness of our system of justice. Johnson v. Califor-
    nia, ___ U.S. ___, 
    125 S. Ct. 2410
    , 2418 (2005).
    In an effort to identify and to prevent such harmful
    practices, Batson set forth the test for analyzing such
    claims: first, the defendant must establish a prima facie
    case of racial discrimination by showing facts and cir-
    cumstances that raise an inference of discrimination, 
    476 U.S. at 93-94
    ; second, once the prima facie case is estab-
    lished, the government must offer a race-neutral explana-
    tion for the challenged strike, 
    id. at 97
    ; and third, the
    defendant may then offer additional evidence to demon-
    strate that the proffered justification was pretextual or
    to otherwise establish that the peremptory strike was
    motivated by a discriminatory purpose, 
    id. at 98
    .
    A.
    No. 03-2964                                                11
    The only issue in this appeal is whether Stephens set
    forth a prima facie case of discrimination. That issue comes
    to us via a circuitous path not typically seen. During jury
    selection, the Batson issue was never raised by the parties.
    It was in fact flagged in the first instance by the district
    court after the jury returned the guilty verdict. The court at
    that time expressed its concerns that the government’s
    peremptory challenges were disproportionately exercised
    against prospective non-white jurors, a fact that the court
    had noticed during jury selection but had not addressed
    because defense counsel had failed to object. Upon reflec-
    tion, the court regretted its failure to confront the Batson
    issue, determining that it should have required the govern-
    ment to provide explanations for its challenges. The court
    ultimately concluded that the time for filing a motion for a
    new trial had elapsed, and therefore that it was without
    authority to order a new trial. Accordingly, it concluded that
    it could not address the Batson issue, but it informed
    Stephens of legal avenues still available to pursue the
    challenge.
    Because the issue was not raised at trial by Stephens, the
    government could have argued before this court that it was
    forfeited. Of course, the government was well aware that a
    forfeiture on direct appeal would merely delay consideration
    of the issue. The district court had already informed the
    defendant of his right to pursue the Batson issue in the
    context of a post-conviction motion under § 2255. Rather
    than argue forfeiture and proceed along that path, the
    government instead informed both Stephens and this court
    that it would affirmatively waive any forfeiture argument
    it may have on this issue for purposes of this appeal, and
    the issue was briefed to this court on the merits.
    The dissent protests our consideration of the Batson issue
    now despite the government’s waiver, concluding that a
    first-time consideration at this late stage is particularly
    unwise. The dissent argues that the deference due a district
    12                                               No. 03-2964
    court judge has little force when that judge fails to act
    contemporaneously, and decries the district court judge’s
    consideration of a jury selection matter for which he could
    provide no remedy.
    We note initially that although deference is afforded
    fact findings in a Batson challenge, the prima facie determi-
    nation is subject to de novo review. United States v. Jordan,
    
    223 F.3d 676
    , 686 (7th Cir. 2000). Moreover, the record is
    quite clear that the district judge raised the Batson issue in
    order to provide a remedy, and that the court in fact
    believed—even at the time of jury selection—that the use of
    peremptory challenges by the prosecutor raised at least an
    inference of discrimination under Batson. Although the trial
    court raised the Batson issue only after the guilty verdict,
    the court then revealed that it perceived a Batson problem
    at the time of voir dire. At that time, the court did not sua
    sponte raise the issue because defense counsel had not
    objected. The court later concluded that it had erred in
    failing to raise Batson sua sponte, because the court, not
    just the defendant, has an interest in a trial process free of
    discrimination. The court concluded that the prima facie
    case had been met.
    Because the court noted the problem at the time of
    voir dire, we have the court’s fresh recollection of the
    manner in which those peremptories were used. The court
    in fact was so troubled by what it perceived at that time
    to be a discriminatory use in the voir dire, that it raised the
    issue on its own after the verdict. That commitment by the
    court to a fair trial process should be commended. Only
    after the government objected to the court’s Batson ruling
    did the district court judge determine that it could not in
    fact remedy the situation because the time period for filing
    a motion for a new trial had already elapsed and thus the
    court lacked the authority to order a new trial. Therefore,
    the district court judge did not, as the dissent implies, raise
    No. 03-2964                                              13
    an issue for which it knew it could not provide a remedy. It
    goes without saying that a defendant risks forfeiting an
    issue by failing to timely raise it, and that a court should
    address a Batson issue pre-trial. But that gets us nowhere.
    Although not the preferred route by any measure, this is
    the situation we must face. The issue was noted but not
    addressed by the court pre-trial, and the government has
    affirmatively waived its forfeiture argument on appeal. The
    issue therefore is properly before us now. It will be no
    fresher in a post-conviction proceeding.
    B.
    The Supreme Court in Batson held that in order to
    establish a prima facie case, the defendant must show that
    he is a member of a cognizable group, that the prosecutor
    has exercised peremptory challenges to remove venire
    members of his race, and that the relevant circumstances
    raise an inference that the prosecutor excluded venire
    members. Id. at 96. That test was expanded in Powers v.
    Ohio, 
    499 U.S. 400
    , 402, 415 (1991), in which the Court held
    that a defendant may object to race-based peremptory
    challenges whether or not the excluded jurors are the
    same race as the defendant.
    It has further been clarified by Supreme Court recently in
    Johnson v. California, ___ U.S. ___, 
    125 S. Ct. 2410
     (2005).
    In Johnson, the Court considered the showing required to
    establish a prima facie case. The California Supreme Court
    had held that an objector could not establish a prima facie
    case by presenting merely some evidence permitting the
    inference of discrimination, but instead must provide strong
    evidence that makes discriminatory intent more likely than
    not if the peremptory challenges are not explained. 
    Id. at 2415
    . It therefore held that the prima facie showing was not
    met in that case, where the Batson showing consisted
    primarily of the statistical disparity of peremptory chal-
    14                                               No. 03-2964
    lenges between African-Americans and others. 
    Id.
     The
    Supreme Court granted certiorari to determine whether
    Batson permits a court to require, at the prima facie stage,
    that the objector show it is more likely than not that the
    peremptory challenges, if unexplained, were based on
    impermissible group bias. The government makes the same
    argument in this appeal, contending that a prima facie case
    is established only if Stephens presented evidence establish-
    ing that discrimination was more likely than not. In
    Johnson, however, the Court held that such a require-
    ment was inappropriate at the prima facie stage:
    [I]n describing the burden-shifting framework, we
    assumed in Batson that the trial judge would have the
    benefit of all relevant circumstances, including the
    prosecutor’s explanation, before deciding whether it was
    more likely than not that the challenge was improperly
    motivated. We did not intend the first step to be so
    onerous that a defendant would have to persuade the
    judge—on the basis of all the facts, some of which are
    impossible for the defendant to know
    with certainty—that the challenge was more likely than
    not the product of purposeful discrimination. Instead, a
    defendant satisfies the requirements of Batson’s first
    step by producing evidence sufficient to permit the trial
    judge to draw an inference that discrimination has
    occurred.
    
    Id. at 2417
    . The Court further clarified that the first
    two steps of Batson govern the production of evidence which
    allows the trial court, at the third step, to determine the
    persuasiveness of the defendant’s constitutional claim. 
    Id. at 2417-18
    . An attempt to transport that final persuasive-
    ness inquiry into the prima facie stage was therefore
    improper. 
    Id.
     The California Supreme Court
    had acknowledged that it certainly appeared suspicious that
    all three African-American prospective jurors were removed
    No. 03-2964                                                      15
    from the jury by the prosecutor’s peremptory challenges.
    That suspicion constituted an inference that discrimination
    may have occurred, thus establishing a prima facie case
    under Batson. 
    Id. at 2419
    . Therefore, the Court clarified in
    Johnson that the burden at the prima facie stage is low,
    requiring only circumstances raising a suspicion that
    discrimination occurred, even where those circumstances
    are insufficient to indicate that it is more likely than not
    that the challenges were used to discriminate.
    Among the circumstances relevant in making that
    determination, a pattern of strikes against jurors of a
    particular race may give rise to an inference of discrimina-
    tion. Batson, 
    476 U.S. at 97
    .1 Such a pattern can be evident
    where a prosecutor uses peremptory challenges to eliminate
    all, or nearly all, members of a particular race. In determin-
    ing whether a pattern is present, courts have
    also considered whether a disproportionate number of
    peremptory challenges were exercised to exclude members
    of a particular cognizable group. Miller-El v. Cockrell, 
    537 U.S. 322
    , 331, 342 (2003); United States v. Overton, 
    295 F.3d 270
    , 279 (2d Cir. 2002); Fernandez v. Roe, 
    286 F.3d 1073
    , 1078 (9th Cir. 2002); Coulter v. Gilmore, 
    155 F.3d 912
    ,
    918-19 (7th Cir. 1998).2 The strikes in Stephens’ case
    1
    The dissent in fact appears to fault us for heeding the man-
    date of Batson, protesting our reliance on the pattern of strikes.
    Batson held that “the trial court should consider all relevant
    circumstances . . . [f]or example, a ‘pattern’ of strikes against
    black jurors included in the particular venire might give rise to an
    inference of discrimination.” 
    476 U.S. at 97
    . The district court, and
    this court, properly followed that precedent in consider-
    ing whether a pattern was apparent.
    2
    The dissent asserts that “it is problematic to infer that strikes
    may be discriminatory simply because peremptory strikes fall
    disproportionately among members of a certain group,” citing
    (continued...)
    16                                                     No. 03-2964
    evidence a pattern that gives rise to an inference of discrim-
    ination.
    After prospective jurors were excused for hardship or
    cause, the venire consisted of prospective jurors of the
    following races: 24 Caucasians, 3 African-Americans, 4
    Hispanic-Americans, and 1 Asian-American. The govern-
    ment exercised 6 of the 7 peremptory challenges available
    2
    (...continued)
    three cases to support that point. Those cases, however, are
    inapposite. Two of them did not even address the prima facie
    stage of the Batson inquiry, instead discussing the quantum of
    proof necessary to establish discrimination in the second and third
    steps. Alverio v. Sam’s Warehouse Club, 
    253 F.3d 933
    , 940 (7th
    Cir. 2001) (prima facie case conceded) and United States
    v. Roberts, 
    163 F.3d 998
    , 999 (7th Cir. 1998) (prima facie case a
    moot issue). Those cases provide no guidance on whether a
    pattern of disproportionate use may establish an inference of
    discrimination. The remaining case, United States v. Cooke, 
    110 F.3d 1288
    , 1301 (7th Cir. 1997), involved a single peremptory
    strike of an African-American potential juror, and the defendant
    provided no context for that strike, failing even to identify who the
    juror was and who struck the juror. That case never addresses
    whether a pattern of disproportionate use of peremptory chal-
    lenges can raise an inference of discrimination. In contrast, the
    Supreme Court and many circuits have concluded that
    such a pattern can indeed establish a prima facie case of dis-
    crimination. See cases following note. Although the dissent
    dismisses Miller-El as itself involving the third step of Batson,
    that comparison is invalid. Evidence sufficient to prove dis-
    crimination at the third step is necessarily sufficient to establish
    an inference at the first step of Batson. Therefore, Miller-El is
    relevant. The reverse, however, is not true. Evidence may be
    insufficient to prove discrimination at the third step of Batson
    that would have been enough to demonstrate an inference at the
    first step. For that reason, the third-step cases cited in the dissent
    are irrelevant in defining what evidence establishes an inference
    of discrimination at the first step.
    No. 03-2964                                             17
    to it. Of those challenges, none were exercised against
    Caucasian prospective jurors. The government used six
    peremptory challenges to eliminate 2 African-Americans, 3
    Hispanic-Americans, and the sole Asian-American. The
    defendant excluded the remaining African-American
    prospective juror, and the jury ultimately was comprised of
    11 Caucasians and one Hispanic-American, with two
    Caucasian alternate jurors.
    We consider first the use of two peremptory strikes
    against African-American venire members. With those
    challenges the government eliminated 66% of the African-
    American prospective jurors. Moreover, with those chal-
    lenges, the prosecutor used 33% of its strikes against
    African-Americans, who comprised less than 10% of the
    venire. We are cognizant that with the small numbers
    involved, a pattern is difficult to detect, and we need not
    determine whether those strikes alone would demonstrate a
    prima facie case. Instead, we follow the Supreme Court’s
    command to consider “all relevant circumstances” in
    determining whether an inference of discrimination is met.
    One such relevant circumstance is the prosecutor’s use of
    the remaining peremptory challenges. See, e.g., Fernandez
    v. Roe, 
    286 F.3d 1073
    , 1079 (9th Cir. 2002) (considering
    strikes against African-American prospective jurors
    in context of previous disproportionate strikes against
    Hispanic-American venire members). In this case, all of the
    six peremptory challenges were used against members of
    minority racial groups. Three challenges were used against
    Hispanic-Americans, eliminating 75% of the Hispanic-
    Americans on the venire. That also represented a use
    disproportionate to the representation on the venire, with
    the government using 50% of its challenges to eliminate
    members of a racial group that comprised approximately
    13% of the venire. Finally, the prosecutor struck the sole
    Asian-American venire member. Even more compelling,
    however, is that the prosecutor used no challenges at all
    18                                               No. 03-2964
    against prospective white jurors, which meant that the
    government used 0% of its challenges on the group that
    comprised 75% of the venire at the time the peremptories
    were exercised. As the Supreme Court has said,
    “[h]appenstance is unlikely to produce this disparity.”
    Miller-El v. Cockrell, 
    537 U.S. 322
    , 342 (2003) (prosecutor’s
    use of 10 of 14 strikes against African-Americans, resulting
    in only one African-American serving on the jury, was
    evidence of race-based use of peremptories.) The use of
    challenges to stack the jury with one race is no more
    constitutional than the use to eliminate one race.
    The dissent complains that—looking only at statistics—
    Stephens is “lucky” that the government did not initiate
    a challenge of its own because he struck one-third of
    the African-Americans (by using one peremptory challenge)
    and one-quarter of the Hispanic-Americans (again, reflect-
    ing only one peremptory challenge). If the dissent
    is suggesting that discrimination by the government in jury
    selection would be constitutional as long as the defendant
    also discriminated against prospective jurors, that would be
    an astounding proposition. See Miller-El v. Dretke, ___ U.S.
    ___, 
    125 S. Ct. 2317
    , 2333 n.14 (2005) (hereinafter Miller-El
    II) (defendant’s conduct “flatly irrelevant” to the question of
    whether the prosecutor’s conduct revealed a desire to
    exclude African-Americans); Eagle v. Linahan, 
    279 F.3d 926
    (11th Cir. 2001) (potential Batson violation by prosecutor
    not cured by court’s observation that the defendant may
    have also been using peremptory challenges in a discrimina-
    tory manner; Batson is meant to vindicate the rights of
    venire members, not just defendants). It is also an irrele-
    vant proposition here, because Stephens’ statistics bear a
    symmetry to the venire composition that stands in stark
    contrast to the government’s statistics. Stephens used 82%
    of his challenges (9 in all) against whites who comprised
    75% of the venire; he used 9% of his challenges (1 in all)
    against African-Americans who comprised 9% of the venire;
    No. 03-2964                                               19
    he used 9% of his challenges (1 in all) against Hispanic-
    Americans who made up 12.5% of the venire; and he
    employed 0% of his challenges against Asian-Americans
    who reflected 3% of the venire. Nothing in that use of
    peremptories suggests an effort to disproportionately
    eliminate a particular racial group. In fact, that is as
    proportionate a use of challenges as one could imagine.
    In contrast, the government used 0% of its challenges
    against whites who comprised 75% of the venire; 33% of
    its challenges against African-Americans who made up 9%
    of the venire; 50% of its challenges against Hispanic-
    Americans who comprised only 12.5% of the venire; and
    17% of its challenges against Asian-Americans who re-
    flected 3% of the venire. More significantly, that use by the
    prosecutors eliminated all but one minority venireperson
    from the jury. Although the Batson prima facie inquiry
    certainly does not demand such close proportionality, the
    symmetry between Stephens’ challenges and the represen-
    tation of minority venirepersons should at a minimum belie
    any claim that Stephens is “lucky” that the government did
    not initiate a Batson challenge to his strikes.
    The dissent complains that we are simply aggregating
    small numbers to create a pattern, but the Supreme
    Court in fact requires us to consider context in evaluating a
    Batson claim. The exclusion of nearly all persons of color
    from the trial of an African-American defendant looks no
    less suspicious to the community as a whole because the
    prosecutor targeted all persons of color rather than solely
    those of one ethnicity. The suspicions of discrimination are
    only heightened where no challenges at all are used against
    prospective white jurors who comprised 75% of the venire.
    That inference of discrimination is furthered when
    considering the context of the strikes as a whole. Although
    the crime in this case was wire fraud and did not involve
    issues of race, the defendant was African-American and the
    witnesses were all Caucasian. Because Stephens’ actions
    20                                               No. 03-2964
    were not contested at trial, the case hinged upon the jury’s
    determination of Stephens’ knowledge and intent, issues
    particularly centering on credibility. Therefore, the nature
    of the case does nothing to lessen the inference of discrimi-
    nation raised by the strikes, and in fact furthers it. See
    Holloway v. Horn, 
    355 F.3d 707
    , 723 (3d Cir. 2004) (in
    finding prima facie showing, court considered as relevant
    circumstance that the case largely turned on the credibility
    of the defendant, who was African-American, and the police
    officer who took his statement, who was Caucasian). We
    must respectfully disagree with the dissent’s contention
    that “[t]his is simply not a case in which there is a legiti-
    mate concern that racial issues could play a role in jury
    selection or the outcome of the trial.” As Justice Breyer
    documents at length in his concurrence in Miller-El II, “the
    use of race- and gender-based stereotypes in the jury
    selection process seems better organized and more system-
    ized than ever before.” 125 S. Ct. at 2342; see generally
    
    125 S. Ct. 2341
    -43 and citations therein. Unfortunately,
    racial stereotyping and unconscious bias is not limited to
    one particular area of society, and certainly cannot be
    limited to cases of violent interracial crimes. The evidence
    of continued racial stereotyping in employment, housing,
    insurance, and many other areas makes that apparent.
    Here, the jury had to determine the credibility of an
    African-American defendant in characterizing his conduct
    as a white-collar employee, weighed against contrary
    testimony by Caucasian employees. There is no reason to
    believe that a jury would be immune to those racial stereo-
    types in determining credibility or analyzing motives, or
    that a prosecutor would not see an advantage in an all-
    white jury in this case.
    Johnson made clear that “[t]he Batson framework is
    designed to produce actual answers to suspicions and
    inferences that discrimination may have infected the
    jury selection process . . . . The inherent uncertainty present
    No. 03-2964                                               21
    in inquiries of discriminatory purpose counsels against
    engaging in needless and imperfect speculation when a
    direct answer can be obtained by asking a simple question.”
    [citations omitted] 125 S. Ct. at 2418. Here, the starkly
    disproportionate use raises suspicions of discrimination that
    were obvious to the trial judge, and rather than speculate
    as to reasons for it, as the government would have us do,
    Batson and Johnson require that we simply ask the prose-
    cutor for those reasons.
    C.
    The government asserts that the pattern of strikes
    does not in fact yield an inference of discrimination in
    this case because there are race-neutral reasons for the
    disparity apparent in the record. We have recognized
    that courts considering Batson claims at the prima facie
    stage may consider apparent reasons for the challenges
    discernible on the record, regardless of whether those
    reasons were the actual reasons for the challenge. Mahaffey
    v. Page, 
    162 F.3d 481
    , 483 n.1 (7th Cir. 1998). In Mahaffey,
    we provided the hypothetical in which all stricken jurors
    were attorneys, in which that apparent explanation could
    negate an inference of race discrimination regardless of
    whether the attorney status was the actual reason for the
    strike. 
    Id.
     Actual reasons need not be stated at the prima
    facie stage, but in considering “all relevant circumstances,”
    courts may consider distinctions such as attorney status in
    determining whether the inference of discrimination is
    demonstrated. Of course, in the above example, if the
    prosecutor had failed to strike attorneys who were not
    members of the cognizable group, the court would consider
    that as well. See Henderson v. Briley, 
    354 F.3d 907
    , 908 (7th
    Cir. 2004) (at prima facie stage, comparative evidence
    between stricken jurors and empaneled jurors is relevant
    although not required).
    22                                              No. 03-2964
    This consideration of “apparent reasons” is in fact nothing
    more than a consideration of “all relevant circumstances”
    when determining whether an inference of discrimination
    is established. Our cases provide for it and it normally
    works to the government’s advantage, showing that a
    seemingly discriminatory pattern of peremptories is readily
    explained by factors apparent in the record. Mahaffey, 162
    F.3d at 483 n.1; see also Johnson v. Campbell, 
    92 F.3d 951
    ,
    953 (9th Cir. 1996) (in finding no prima facie case, court
    relied on the “obvious neutral reason for the challenge,”
    that the challenged juror had served in a previous trial
    involving similar allegations of excessive police force and
    outcome of that trial was unknown); Capers v. Singletary,
    
    989 F.2d 442
    , 446 (11th Cir. 1993) (any inference of discrim-
    ination arising from the pattern of strikes against African-
    American jurors was rebutted by evident, racially neutral
    justifications for the majority of challenges, including that
    ten of the African-American potential jurors responded in
    voir dire that they were sympathetic to the defendants’
    actions and blamed the riots on the failure of the criminal
    justice system). The use of apparent reasons spares the
    government the second and third steps of Batson in appro-
    priate cases. In other words, the government is under no
    obligation to point out apparent reasons for strikes at the
    prima facie stage but may do so in an attempt to short-
    circuit the Batson process. Once the government raises
    apparent reasons, we are obliged to consider them.
    After Johnson and Miller-El II, however, it is clear that
    this is a very narrow review. The Supreme Court made
    clear that the persuasiveness of the constitutional challenge
    is to be determined at the third Batson stage, not the first,
    and has rejected efforts by the courts to supply reasons for
    the questionable strikes. See, e.g., Johnson, 
    125 S. Ct. at 2414-18
     (finding prima facie case established even though
    trial judge’s examination of the record convinced him that
    the prosecutor’s strikes could be justified by race-neutral
    No. 03-2964                                                   23
    reasons); Miller-El II, 125 S. Ct. at 2332 (noting that a
    Batson inquiry is not a “mere exercise in thinking up any
    rational basis”). In light of Johnson, an inquiry
    into apparent reasons is relevant only insofar as the strikes
    are so clearly attributable to that apparent, non-discrimina-
    tory reason that there is no longer any suspicion, or infer-
    ence, of discrimination in those strikes.
    Here, the prosecutor argues that the education and work
    history of the prospective jurors provide apparent race-
    neutral explanations for the pattern of strikes, with the
    strikes eliminating the least educated and those with
    little or no work history in an office setting. The record fails,
    however, to reveal such an “apparent” basis for the peremp-
    tory challenges. The government acknowledges that it
    accepted five Caucasian jurors who, similar to the stricken
    jurors, lacked both a college degree and white-collar work
    experience. Moreover, it further concedes that it struck one
    Asian-American prospective juror who possessed both a
    college degree and a white-collar position. The educational
    and work history, therefore, do not provide “apparent”
    explanations for the peremptory strikes, because some of
    those Caucasian jurors not stricken by the government
    lacked both the college degree and the white-collar work
    experience. The government has failed to point to any non-
    discriminatory factor or factors in the record which provide
    that “apparent” explanation for the prosecutor’s strikes.
    The government attempts to avoid this by examining each
    challenge individually, identifying a combination of other
    factors in the record that led to the challenge, and then
    explaining why those factors had different impacts in the
    decision in each individual case. For instance, the govern-
    ment attributes its choices with respect to those prospective
    jurors to a combination of factors on the record including
    law enforcement or military experience, criminal history,
    association with others with law enforcement or military
    experience or with criminal histories, past litigation
    24                                                No. 03-2964
    experience, and even the presence of spelling or grammar
    mistakes on the forms the prospective jurors completed.
    This identification of numerous unrelated factors, in its
    specificity and complexity, has all the appearance of a
    recitation of the government’s “actual” reasons for its use of
    peremptories, but the government has explicitly disavowed
    that notion, insisting that these are merely reasons “appar-
    ent” in the record, and therefore confining us to the prima
    facie portion of the Batson inquiry. The weighing of those
    multiple factors in determining how to exercise the peremp-
    tory challenge, however, is not the type of apparent expla-
    nation that alters the inference of discrimination at the
    prima facie stage because there is no objective basis for us
    to apply those factors. The government recognized as much,
    quoting Pruitt v. McAdory, 
    337 F.3d 921
    , 930-31 (7th Cir.
    2003) to emphasize that the selection process could not be
    narrowed to a single trait or set of traits:
    Picking jurors is a complex and multifaceted process.
    Individual factors or characteristics often do not provide
    the ‘silver bullet’ that will mean acceptance or rejection
    of any potential juror. Rather, it is the combination of
    factors that will determine whether a party believes a
    juror will be favorable to their side.
    The weighing process by the government in this case
    was inherently subjective, turning for each challenge on the
    government’s choice as to which factors were most impor-
    tant in each individual case. The factors identified could as
    easily have resulted in accepting some minority jurors and
    striking Caucasian jurors. In fact, a number of prospective
    jurors with three or four of the “positive” factors were
    challenged, while Caucasian jurors with similar positives
    were chosen. The result is that the empaneled jurors shared
    many of those same characteristics with the eliminated
    jurors, and no apparent race-neutral pattern is discernible.
    An apparent explanation for challenges must be just
    that—apparent—in that the court can readily attribute the
    No. 03-2964                                              25
    challenges to that discernible, consistent explanation (as
    with the attorney example discussed earlier). The subjective
    weighing of factors offered by the government is not such an
    “apparent” explanation, and has no place in the prima facie
    determination.
    That is not to imply that the government in fact lacked
    legitimate non-discriminatory reasons for the choices
    it made. Instead, the only question before us is whether the
    government should be required to articulate its
    actual reasons for the peremptory challenges. The district
    court would then determine whether the government’s
    explanation for its challenges is credible. The government’s
    detailed recitation of multiple factors and its weighing
    of those for each individual prospective juror is more
    appropriate at the next stages of review. And the govern-
    ment’s contention that the defendant at the prima facie
    stage must establish that discrimination is more likely than
    not has been squarely rejected in Johnson. Consistent with
    Johnson, we would not involve the court in an extensive
    inquiry at the prima facie stage. Instead, if the strikes
    raised an inference of discriminatory use, then we would
    not have the court engage in “needless and imperfect
    speculation when a direct answer can be obtained by asking
    a simple question.” Johnson, 
    125 S. Ct. at 2418
    . The prima
    facie showing in this case did not stem from the exercise of
    a single peremptory challenge against a member of a
    cognizable group. Instead, it was the result of a pattern of
    challenges that were exercised in a grossly disproportionate
    manner against members of cognizable racial groups, which
    was rendered more questionable by the context in which: no
    peremptory challenges were exercised against potential
    Caucasians jurors who comprised 75% of the venire; the
    defendant was African-American and all of the witnesses
    were Caucasian; the case turned on the jury’s assessment
    of the defendant’s credibility and motives; and there was no
    apparent explanation in the record that would attribute the
    26                                               No. 03-2964
    challenges to a non-discriminatory basis. Moreover, our
    opinion explicitly rejects the government’s attempt
    to transport the detailed weighing process from the
    second and third steps of Batson to the prima facie analysis.
    We make it clear that the examination of “apparent”
    reasons in the record for peremptory challenges involves
    only reasons for the challenges that are objectively evident
    in the record, and does not enmesh the court in an ex-
    amination of the government’s detailed recitation of multi-
    ple factors. This approach, rather than that of the dissent,
    would ensure that the prima facie stage remains a
    straightforward, preliminary showing of an inference that
    Batson and Johnson requires, not the establishment of
    ultimate discrimination that is reserved for the third step.
    This case is REMANDED for further proceedings consistent
    with this opinion. If the district court ultimately concludes
    that no equal protection violation occurred in jury selection,
    then it should reconsider its sentencing in light of United
    States v. Booker, ___ U.S. ___, 
    125 S. Ct. 738
     (Jan. 12,
    2005).
    KANNE, Circuit Judge, concurring in part and dissenting
    in part. I concur with the majority’s cogent analysis and
    conclusion respecting Stephens’s challenge to the sufficiency
    of the evidence contained in Part I.
    I must, however, part ways with the majority in its
    treatment of Stephens’s Batson claim in Part II. It is unwise
    No. 03-2964                                                 27
    to consider Stephens’s Batson claim in the first instance
    when he failed to preserve the issue by objection during jury
    selection, and the district court did not raise the issue until
    long after it could have fashioned any relief. Even on the
    merits, however, I do not believe that Stephens has estab-
    lished a prima facie Batson claim warranting a remand.
    Moreover, the majority’s analysis muddles the three-part
    framework and the allocation of the burden of persuasion as
    set forth in the Batson line of cases.
    At the outset, it bears repeating that this case comes to us
    in an unusual posture, in which Stephens’s Batson chal-
    lenge was considered in the first instance at the appellate
    stage rather than at the district court level. At trial, the
    parties conducted jury selection—including the govern-
    ment’s peremptory strikes at issue here—without a whiff of
    complaint or objection on the part of Stephens’s counsel or,
    for that matter, the district court itself.
    The only reason Stephens’s Batson claim is before us
    and not forfeited is the government’s agreement to waive
    any forfeiture argument for purposes of this appeal, so long
    as Stephens brought the Batson challenge on appeal rather
    than as a collateral attack under 
    28 U.S.C. § 2255
    . The
    rationale, we learn, is the government’s hope that we clarify
    something that should by now be perfectly obvious—under
    the Batson framework, a defendant has a meaningful
    burden to establish a prima facie case of discrimination
    before a court may require explanation from the govern-
    ment. This burden is not to be taken for granted or ignored.
    See United States v. Stewart, 
    65 F.3d 918
    , 925 (11th Cir.
    1995); United States v. Bergodere, 
    40 F.3d 512
    , 516 (1st Cir.
    1994).
    Even though the government acquiesced to Stephens’s
    28                                                   No. 03-2964
    belated Batson challenge,1 I believe that a first-time
    consideration of his claim at this late stage is particularly
    unwise. The majority and I agree that one of the reasons we
    deferentially review district judges’ factual determinations
    with regard to Batson is the fact that they “sit[ ] in the
    unique position to make credibility assessments of the
    actions of trial attorneys . . . [and] ha[ve] the opportunity to
    observe patterns and practices of particular attorneys
    during prior jury selections.” United States v. Cooper, 
    19 F.3d 1154
    , 1161-62 (7th Cir. 1994); accord Bergodere, 
    40 F.3d at 517
    . This deference is in part due to judicial recogni-
    tion that jury selection is a nuanced process “that is not an
    exact science. Its watchwords are judgment, flexibility, and
    discretion.” Bergodere, 
    40 F.3d at 517
    ; see also Dunham v.
    Frank’s Nursery & Crafts, Inc., 
    967 F.2d 1121
    , 1126 (7th
    Cir. 1992). Therefore, it is axiomatic that trial judges are
    normally in the best position to observe jury selection and
    resolve Batson challenges in the first instance and in the
    1
    Naturally, the government understood that Stephens could
    have brought a Batson challenge by collateral attack rather than
    on direct appeal. At argument, the government expressed its
    concern that trial courts, when resolving Batson challenges, often
    rubber-stamp defendants’ prima facie burden and move prema-
    turely to the second and third stages, thus making it the govern-
    ment’s burden to offer its actual reasons every time it strikes
    minority venirepersons. The government wanted Stephens’s case
    to be heard on the merits in order to clarify a Batson challenger’s
    burden at the prima facie stage, see discussion infra. The govern-
    ment certainly could have made a compelling argument that
    Stephens forfeited his Batson claim by not raising it in a timely
    fashion in the district court. See, e.g., McCrory v. Henderson, 
    82 F.3d 1243
    , 1249 (2d Cir. 1996) (reversing grant of habeas writ,
    holding that “the failure to object to an adversary’s use of
    peremptory challenges until after the completion of jury selection
    waives the right to do so”).
    No. 03-2964                                                 29
    appropriate time frame. It is at this point that the majority
    and I must part ways. The reasons for deference have little
    force when the district court fails to act contemporaneously
    in response to an objection or even its own perception of
    possible discrimination during jury selection. See United
    States v. Chandler, 
    12 F.3d 1427
    , 1431 (7th Cir. 1994)
    (“Contemporaneous objection is imperative with respect to
    Batson claims because the trial court frequently is in a
    position to rule on the objection, and in all probability[,] to
    resolve such claims. . . .”).
    The jury’s verdict in the case was returned on February
    21, 2003. Then, over two months after completion of the
    trial, the district judge sua sponte raised the Batson issue.
    It is baffling that the district judge brought up a jury
    selection matter for which he no longer could provide a
    remedy. Moreover, it seems a distinctly bad idea for us to
    compound the problem by taking up where the district
    judge left off. Stephens’s counsel never made a timely
    objection during jury selection (or at any time, for that
    matter), nor did he speak up when the district court
    asked whether either side had any concerns following
    the peremptory strikes and before empaneling the jury.
    Cf. Aki-Khuam v. Davis, 
    339 F.3d 521
    , 527 (7th Cir.
    2003); United States v. Brisk, 
    171 F.3d 514
    , 523 (7th Cir.
    1999); Holder v. Welborn, 
    60 F.3d 383
    , 388 (7th Cir. 1995);
    Doe v. Burnham, 
    6 F.3d 476
    , 481 (7th Cir. 1993).
    The majority aptly describes Stephens’s Batson claim
    as coming before us “via a circuitous path not typically
    seen.” And with good reason—abundant caselaw instructs
    that a party failing to make a timely Batson objection
    forfeits the right to do so on appeal. See, e.g., Chandler, 
    12 F.3d at 1431-32
    ; accord Brown v. Kinney Shoe Corp., 
    237 F.3d 556
    , 561-62 (5th Cir. 2001); McCrory, 
    82 F.3d at 1249
    .
    This is a sensible rule for any number of reasons, includ-
    ing judicial economy and fairness. See Ford v. Georgia, 
    498 U.S. 411
    , 422 (1991); McCrory, 
    82 F.3d at 1247
     (“If . . . a
    30                                               No. 03-2964
    Batson objection may be raised after the jury has been
    sworn and trial has begun, there can be no remedy short of
    aborting the trial. This would permit the defendant to
    manipulate the system to the extreme prejudice of the
    prosecution and give the defendant a strong inducement to
    delay raising the objection until trial is underway.”). In
    addition, the opportunity to vindicate the rights of an
    excluded venireperson will be lost if an error is not cor-
    rected prior to empaneling the jury. See Galarza v. Keane,
    
    252 F.3d 630
    , 642-43 (2d Cir. 2001) (Walker, C.J., dissent-
    ing). These considerations do not disappear simply be-
    cause the government affirmatively relinquished its
    forfeiture arguments, nor should the district court’s post-
    trial ruminations about possible discrimination—at a
    point when its ability to do something about the strikes had
    long since expired—weigh in favor of our hearing Stephens’s
    Batson challenge in the first instance.
    This is not to imply that the district court’s belated order
    was on a par with a defendant’s tardy Batson objection
    brought after a guilty verdict. The district judge indeed was
    in a position to evaluate the government’s peremptory
    strikes (as was Stephens’s counsel) and to take action in
    a timely fashion. It is an open question whether a trial
    court must sua sponte raise a Batson issue at the first
    sign that something may be amiss. See Burnham, 
    6 F.3d at 481
     (“We are aware of no case which authorizes a judge
    to invoke Batson when a party has never objected on that
    basis.”); accord Clark v. Newport News Shipbuilding & Dry
    Dock Co., 
    937 F.2d 934
    , 939 (4th Cir. 1991) (“Neither Batson
    nor its progeny suggests that it is the duty of the court to
    act sua sponte to prevent discriminatory exclusion of jurors.
    Rather, even in criminal cases, the objection is deemed
    waived if not timely raised.”). But even if there is such an
    obligation, a court’s intervention should be timely, just as
    courts require of Batson objections from parties. Putting off
    action on potential Batson problems ill serves the parties
    No. 03-2964                                                31
    and excluded venirepersons, and also increases costs to the
    judicial system. See Brisk, 
    171 F.3d at 523
     (“When a new
    trial must be granted because of an untimely Batson
    decision, the error imposes an additional and unnecessary
    expenditure of judicial and litigant resources since a new
    trial could have been avoided by a timely decision.”)
    (citation and internal quotation marks omitted).
    Finally, the nuanced nature of voir dire itself demands
    prompt resolution of potential Batson problems. See
    McCrory, 
    82 F.3d at 1248
    . Delay increases the risk that the
    lawyers involved in jury selection will not be available or
    will not adequately recall details of voir dire and the actual
    reasons for striking particular venirepersons. See Holder, 
    60 F.3d at 388
    . Indeed, I note that in the government’s motion
    to vacate the district court’s post-trial Batson ruling, filed
    less than four months after voir dire, the government
    represented that its prosecutors could not reliably recall
    details of the racial composition of the venire. (R. 39 at 16.)
    Assuming these same prosecutors are available to appear at
    a Batson hearing on remand, it is unlikely that their
    memories have improved in the years since jury selection in
    this case. Cf. Carter v. Hopkins, 
    151 F.3d 872
    , 875 (8th Cir.
    1998).
    These prudential concerns aside, a review of Stephens’s
    belated challenge on the merits must comport with the well-
    established Batson framework. In the first stage of this
    three-part framework, a defendant seeking to establish a
    prima facie case “must point to facts and circumstances
    raising an inference that the potential jurors were excluded
    because of race.” Cooper, 
    19 F.3d at 1159
    . Only after the
    defendant makes out a prima facie case do matters proceed
    to the second stage, in which the government must offer
    race-neutral actual reasons for its challenges, see McCain
    v. Gramley, 
    96 F.3d 288
    , 290 (7th Cir. 1996), and the final
    stage, in which the trial court decides whether the govern-
    ment’s proffered reasons are pretextual, indicating that race
    32                                               No. 03-2964
    discrimination is afoot. See United States v. Alanis, 
    265 F.3d 576
    , 584 (7th Cir. 2001). At all times during this
    analysis, the burden of persuasion rests with, and never
    shifts from, the opponent of the peremptory strike. See
    Purkett v. Elem, 
    514 U.S. 765
    , 768 (1995) (per curiam);
    United States v. George, 
    363 F.3d 666
    , 673 (7th Cir. 2004).
    Despite the government’s hopes, the majority’s analysis
    does nothing to clarify the prima facie burden of a defen-
    dant making a Batson challenge. The majority instead finds
    a pattern of racially disproportionate strikes by the govern-
    ment despite the small numbers involved and then effec-
    tively places the burden on the government to rebut the
    inference of discrimination, even though it is Stephens who
    must carry the burden at this stage. Under the majority’s
    analysis, the statistically disproportionate strikes alone
    apparently are enough to satisfy that burden, so the
    challenging party really does not need to come forward with
    any evidence at all. Thus, a party must explain its actions
    any time it strikes a minority venireperson in a manner
    disproportionate to the racial makeup of the venire, no
    matter that the numbers of minorities on the venire are so
    small that even a single strike may be facially dispropor-
    tionate.
    In this case, the government used 33% of its strikes (2 out
    of 7) against African-Americans, who represented 9.7% of
    the venire (3 out of 31, following strikes for cause). Accord-
    ing to the majority, the inference of discrimination arises
    from this disproportionate use of peremptory challenges
    against African-Americans, and statistical evidence of the
    government’s strikes against the other minorities constitute
    additional “relevant circumstances” supporting an inference
    of discrimination. But we have expressed doubt that
    statistical evidence alone rises to the level of establishing a
    prima facie case. See McCain, 
    96 F.3d at 291
     (“[I]t is
    illogical to infer in every case a discriminatory intent from
    noting that the percentage of challenges used by one party
    No. 03-2964                                                     33
    against members of a racial group is either more or less
    than the percentage of that group’s total percentage of the
    venire panel.”); accord Allen v. Lee, 
    366 F.3d 319
    , 330 (4th
    Cir. 2004) (en banc) (“Though statistics are not utterly
    bereft of analytical value, they are, at best, manipulable
    and untrustworthy absent a holistic view of the circum-
    stances to which they apply.”).
    Rather than looking to circumstances that actually might
    be relevant, the majority simply looks to more raw num-
    bers—the government’s strikes against Hispanics and the
    sole Asian venireperson—and concludes that the pattern of
    discrimination is established. It is, however, problematic to
    infer that strikes may be discriminatory simply because
    peremptory strikes fall disproportionately among members
    of a certain group. See United States v. Roberts, 
    163 F.3d 998
    , 999 (7th Cir. 1998) (“Batson establishes a rule of
    disparate treatment, not of disparate impact. . . .”); United
    States v. Cooke, 
    110 F.3d 1288
    , 1301 (7th Cir. 1997) (“[The
    defendant] must do more than merely point to the fact that
    the government excluded an African-American venireperson
    . . . .”); Alverio v. Sam’s Warehouse Club, Inc., 
    253 F.3d 933
    ,
    941 (7th Cir. 2001) (“[T]he exclusion of all members of a
    specific minority group does not, on its own, establish that
    the peremptory strikes were discriminatory.”).2 An appar-
    2
    My colleagues dismiss these cases as inapposite with regard to
    the prima facie stage. I cite these cases, however, for the broad
    point that racially disproportionate strikes alone will not suffice
    to show that peremptory strikes are discriminatory, whether at
    the prima facie stage or beyond. But if these cases are inapposite
    for not addressing the quantum of proof required at the prima
    facia stage, so is Miller-El (cited by the majority), which itself
    concerned the third stage of the Batson framework. See Miller-El
    v. Cockrell, 
    537 U.S. 322
    , 339 (2003). More relevant, the other case
    I cite, McCain, was decided by this court, directly addresses the
    (continued...)
    34                                                    No. 03-2964
    ently dispropor-tionate pattern of strikes may have rele-
    vance, but even so, the existence of such a pattern alone
    does not end the inquiry. See McCain, 
    96 F.3d at 292
    .
    A “pattern” is more appropriately understood from a
    party’s actions and the way in which it conducts peremptory
    strikes, as opposed to raw numbers alone. See 
    id. at 291-92
    (“[A] ‘pattern’ does not necessarily correlate to the racial
    proportions of the venire panel. . . . A ‘pattern’ is more likely
    demonstrated by the manner in which a party uses its
    strikes as compared to its total strikes or to the total
    number of members of the racial group.”) (emphasis in
    original). Thus, “even if a ‘pattern’ could be said to
    exist, that fact is not dispositive. Courts must look to the
    totality of the circumstances, including the final make-up of
    the jury and the questions asked by the party.” 
    Id.
     (citing
    Batson and Splunge v. Clark, 
    960 F.2d 705
    , 707 (7th Cir.
    1992) (finding relevant that the prosecutor demanded
    certain responses only from African-American venire-
    persons)); accord Bergodere, 
    40 F.3d at 516
     (“A defendant
    who advances a Batson argument ordinarily should come
    forward with facts, not just numbers alone.”) (citation and
    internal quotes omitted).
    The totality of the circumstances present in this case
    reveals that there is no prima facie evidence of race discrim-
    ination. The district judge alone conducted voir dire, so
    there could not have been discriminatory questioning by the
    2
    (...continued)
    prima facie question, and expresses this circuit’s skepticism that
    numbers alone will satisfy the prima facie stage. In contrast, the
    majority cites cases from the Second and Ninth Circuits, which,
    unlike this court, have expressly adopted the position that
    statistical disparity alone may satisfy the burden at the prima
    facie stage. Cf. Brewer v. Marshall, 
    119 F.3d 993
    , 1004-05 (1st Cir.
    1997) (contrasting Second and Ninth Circuit views on statistical
    evidence with McCain’s reservations regarding same).
    No. 03-2964                                               35
    prosecutors, and there is nothing in the record to indicate
    any discriminatory behavior or statements on the prosecu-
    tors’ part. The only hint of discrimination to be found comes
    from racial statistics, and these are inadequate to carry
    Stephens’s prima facie burden.
    A closer look at the parties’ use of peremptory strikes
    reveals why it would be inappropriate to conclude that
    “numbers alone” can constitute a pattern satisfying the
    prima facie burden. Because the number of minority
    venirepersons was so small, the magnitude of the statisti-
    cally disproportionate strikes against minorities was
    exaggerated to such an extent that it would have been
    impossible for the government to strike any minorities
    without creating an inference of discrimination under
    the majority’s expansive formulation. For example, even
    if the government had used all 7 of its strikes, and elimi-
    nated even one African-American, 14.2% of its strikes would
    have eliminated a minority representing only 9.7% of the
    venire. The effect is even more pronounced if (as happened
    here) the government strikes the lone member of a particu-
    lar minority group—in this case, the government used one
    of its six strikes to remove the sole Asian-American
    venireperson (thus using 17% of its challenges to eliminate
    3% of the venire).
    The majority simply aggregates the statistically dispro-
    portionate strikes against members of several minority
    groups to find a “pattern,” and the majority’s view makes no
    allowance for the exaggerated effect due to small numbers.
    True, our caselaw does not suggest a numerical cutoff for
    when a disproportionate pattern of strikes by itself may
    become statistically significant and properly support an
    inference of discrimination. But surely this court’s demon-
    strated reluctance to rely on numbers alone (and our
    requirement that a Batson challenger point to additional
    “facts and circumstances”) is at least partly a response to
    making too much of statistics when the numbers involved
    36                                               No. 03-2964
    are so small. Cf. Cooke, 
    110 F.3d at 1301
    ; McCain, 
    96 F.3d at 291-92
    .
    Instead of looking to numbers alone, the better approach
    is to look at the manner of the strikes, and other facts that
    indicate whether a party acted with discriminatory purpose,
    in order to put statistics into a useful context. See McCain,
    
    96 F.3d at 291-92
    . In this case, for example, the majority
    focuses solely on the raw numbers of the government’s
    peremptory strikes, but does not address the inferences to
    be drawn by the strikes the government did not make. It
    must be relevant, for example, that the government did not
    exercise all of its peremptory challenges, although minori-
    ties remained in the venire and eligible for jury service. Cf.
    United States v. Griffin, 
    194 F.3d 808
    , 826 (7th Cir. 1999)
    (“[T]he fact that the [g]overnment did not challenge the
    other black juror further weakens the argument that the
    government’s strikes were based on a motive to discrimi-
    nate.”) (citation and internal quotes omitted). Specifically,
    the government did not use its remaining peremptory
    challenge to remove Juror #4, a Hispanic woman who was
    seated as a juror, or Juror #13, an African-American
    woman. Indeed, with regard to these jurors, the prosecutors’
    acquiescence to their service is consistent with the “appar-
    ent” reasons for its peremptory strikes, as discussed infra.
    But even if numbers alone can trigger an inference of
    discrimination, Stephens is lucky that the government
    did not initiate a Batson challenge of its own. Stephens
    himself struck from the venire one African-American (Juror
    #13), one Hispanic, and nine Caucasians. Looking only at
    statistics, as the majority does, one could arguably infer
    discrimination on Stephens’s part—after all, he complains
    on appeal that no African-Americans and only one Hispanic
    remained on the petit jury, yet he struck one third of the
    African-Americans and one quarter of the Hispanic
    venirepersons himself.
    No. 03-2964                                                 37
    The majority questions this observation and infers that I
    suggest that the government’s actions are immune from
    scrutiny because Stephens himself struck minority
    venirepersons. I certainly wish to dispel any illusion that I
    subscribe to the latter proposition. I have called attention
    to Stephens’s strikes not to suggest that they cancel out
    possible wrongdoing on the government’s part, but in-
    stead, to further illustrate the problem of inferring discrimi-
    natory intent from statistics alone. We have said that one
    relevant factor to consider in the totality of the circum-
    stances is the final makeup of the jury, e.g., McCain, 
    96 F.3d at 292
    , and it is indisputable that Stephens himself
    has helped to bring about a jury with no African-Americans
    and one fewer Hispanic. Cf. Mahaffey v. Page, 
    162 F.3d 481
    ,
    484-85 (7th Cir. 1998) (noting that the most important
    factor in the case was that the jury did not include any
    African-Americans, and thus “not a single member of
    Mahaffey’s own race was seated on the jury that decided his
    fate”).
    Nevertheless, the majority instead praises Stephens’s
    strikes because they bear a symmetry to the racial composi-
    tion of the venire and concludes that nothing about
    Stephens’s strikes suggests an effort to disproportion-
    ately eliminate a particular racial group. Racial proportion-
    ality is not, however, the standard by which we are to
    assess whether a party’s peremptory strikes run afoul of
    Batson. If that is what the majority proposes (that racially
    proportionate strikes are necessarily immune from Batson
    scrutiny), it is the majority that has endorsed an astound-
    ing proposition. There is no principle requiring racially
    proportional strikes. E.g., Batson, 
    476 U.S. at
    86 n.6;
    McCain, 
    96 F.3d at 291
    . And individuals, not racial groups,
    have the right to serve on juries. Cf. Powers v. Ohio, 
    499 U.S. 400
    , 409-10 (1991). Indeed, if a party purposely set out
    to empanel a jury directly proportional to the racial makeup
    of the venire, it very likely would be forced to discriminate
    38                                               No. 03-2964
    against some venirepersons on the basis of race in order to
    achieve that balance. No matter how noble its intentions,
    such a strategy would offend Batson just as surely as one
    that struck jurors on the basis of discriminatory stereo-
    types. Cf. United States v. Nelson, 
    277 F.3d 164
    , 209-12 (2d
    Cir. 2002) (concluding that racial or religious
    “jurymandering,” whether by the parties or by the trial
    court, is impermissible).
    Having found a prima facie case on the numbers alone,
    the majority looks to other factors present in this case and
    concludes that none of them changes its conclusion. For
    example, the majority concludes that because Stephens is
    African-American, and the trial witnesses Caucasian, a
    circumstance arises that “does nothing to lessen the
    inference of discrimination.” To me, this puts the cart before
    the horse, because it suggests that the government must, at
    the prima facie stage, present evidence to contradict the
    majority’s conclusion that Stephens has met his burden.
    In any event, the fact that the prosecution’s witnesses
    were all Caucasian does not present a racially sensitive
    situation whereby peremptory challenges against African
    American jurors (let alone jurors of other minority races)
    are to be viewed with even greater scrutiny. Moreover, the
    underlying facts and subject matter of the case are not
    racially charged and do not suggest that strikes against
    minority venirepersons might weigh in favor of finding
    an inference of discrimination. This case is therefore
    quite unlike those cases in which race had special signifi-
    cance—for example, the racially inflammatory situation
    presented in Mahaffey, in which an African-American
    defendant from Chicago’s south side was prosecuted for
    horrific crimes committed against a Caucasian family
    who lived in a north side neighborhood. See Mahaffey, 162
    F.3d at 485; accord Stewart, 
    65 F.3d at 925
    .
    In the present case, Stephens, who attended Yale, was
    No. 03-2964                                                39
    holding down a white-collar management position at
    Accenture and was accused of using a computer function to
    defraud his employer of over $60,000 in unauthorized
    cash advances. Nothing about the crime alleged raises
    the specter of racial inflammation, and the fact that
    the prosecution’s witnesses all happened to be Caucasian
    does not change this conclusion. Cf. United States v.
    Grandison, 
    885 F.2d 143
    , 149 (4th Cir. 1989) (“[T]o infer
    prosecutorial discrimination because of the race of govern-
    ment witnesses has serious implications. . . . [A]ny party is
    forced to take its witnesses as it finds them.”). This
    is simply not a case in which there is legitimate con-
    cern that racial issues could play a role in jury selection or
    the outcome of the trial.
    The majority also finds additional support for Stephens’s
    prima facie case by engaging in a detailed parsing of
    what the government offers as “apparent” race-neutral
    reasons for its strikes (reasons that the government appar-
    ently felt compelled to offer in order to rebut the presump-
    tion of discrimination). In this regard, it is worth noting
    that Stephens, the government, and the majority all go to
    great lengths to stress that the government’s “apparent”
    rationale is not the same as its “actual” reasons for the
    strikes, which, it is alleged, the government has not yet
    presented. This seems to be nothing but a convenient
    fiction, in which everyone can pretend that we still are at
    the prima facie stage of the Batson inquiry simply by
    agreeing that the reasons “apparent” in the record are not
    the same as whatever actual reasons the government has
    yet to offer. Accord Stewart, 
    65 F.3d at 925
     (“No party
    challenging the opposing party’s use of a peremptory strike
    . . . is entitled to an explanation for that strike, much less
    to have it disallowed, unless and until a prima facie show-
    ing of racial discrimination is made.”); cf. Mahaffey, 162
    F.3d at 483-84.
    Though it claims to be doing otherwise, the majority
    40                                               No. 03-2964
    weighs the very factors that it concedes to be appropriate in
    the next stage of review and finds the govern-
    ment’s “apparent” reasons insufficient to undermine the
    inference drawn from the disproportionate strikes alone.
    And in weighing the government’s “apparent” reasons, and
    giving them no credit whatsoever, the majority blurs
    the Batson framework by shifting the burden of persua-
    sion to the government at the prima facie stage.
    The majority does this by scouring the government’s
    “apparent” race-neutral justifications for purported
    contradictions—namely, that some Caucasian jurors shared
    certain traits with dismissed minority venirepersons—and
    concludes that the record fails to provide evidence to negate
    the majority’s inference of discrimination. Cf. Alverio, 
    253 F.3d at 941
     (“[W]here a party gives multiple reasons for
    striking a juror, it is not enough for the other side to assert
    that the empaneled juror shares one attribute with the
    struck juror.”) (citation omitted). But this conclusion seems
    to me nothing more than a thinly disguised finding that the
    government’s reasons, whether one calls them “apparent” or
    “actual,” are not to be credited because the supposed
    contradictions render them suspect.
    The majority thus holds the government to a higher
    standard, at the prima facie stage, than the ordinarily low
    threshold the government must meet in the second stage of
    the Batson framework. See Purkett, 
    514 U.S. at 769
     (noting
    that a “ ‘legitimate reason’ is not a reason that makes sense,
    but a reason that does not deny equal protection[,]” and
    finding acceptable the prosecutor’s explanations that he
    struck jurors for “long, unkempt hair, a mustache, and a
    beard”); see also United States v. Evans, 
    192 F.3d 698
    , 701
    (7th Cir. 1999) (“Any neutral reason, no matter how
    implausible or fantastic, even if it is silly or superstitious,
    is sufficient to rebut a prima facie case of discrimination.”)
    (citation and internal quotes omitted). Certainly, the
    required showing is minimal compared to the burden the
    No. 03-2964                                                 41
    majority has effectively imposed on the government here at
    the prima facie stage, in which facially race-neutral “appar-
    ent” reasons are found wanting by the majority. This
    amounts to a finding that the government has offered
    pretextual reasons for its strikes—a determination appro-
    priate only in the final stage of the Batson inquiry, not at
    the prima facie stage. Cf. Purkett, 
    514 U.S. at 768
     (“It is not
    until the third step that the persuasiveness of the justifica-
    tion becomes relevant[.]”)
    Nevertheless, the government’s “apparent” reasons for its
    peremptory strikes—including, for example, level of educa-
    tion, employment, or errors on jury questionnaires—are not
    facially discriminatory, outlandish, or otherwise improper.
    See, e.g., Alanis, 
    265 F.3d at 584
     (education); Alverio, 
    253 F.3d at 941
     (employment); United States v. Smith, 
    324 F.3d 922
    , 927 (7th Cir. 2003) (mistakes on juror questionnaire).
    In fact, given the nature of the case against Stephens, the
    “apparent” reasons for the government’s strikes are per-
    fectly consistent with what we may assume was the govern-
    ment’s prosecution strategy. As the government pointed out,
    this case is a white-collar fraud case. Much of the evidence
    against Stephens involved accounting and computer
    functions, so it is not surprising that the government would
    seek jurors apparently better suited to understand the
    nature of the case and the evidence.
    Despite the majority’s assumption from supposed incon-
    sistencies in the record that the government was of a mind
    to discriminate, the government’s actions in exercising its
    strikes are perfectly consistent with a legitimate, race-
    neutral strategy given the nature of the wire-fraud case
    against Stephens.
    Indeed, as explained earlier, the government did not
    strike Juror #13, an African-American woman, from the
    venire. The government’s reasons for wanting Juror #13 on
    the jury are readily apparent from the record—on her
    42                                             No. 03-2964
    juror questionnaire and during voir dire, Juror #13 indi-
    cated that she had experience working in the business
    world and holds an MBA from the University of Chicago. In
    other words, Juror #13 was an ideal juror from the govern-
    ment’s standpoint, because her education and experience
    would be helpful in understanding the evidence presented
    at trial. Likewise, the government did not strike Juror #4,
    a Hispanic woman, who has an associate’s degree in
    accounting. As with Juror #13, the government likely
    viewed Juror #4 as being well suited to understand the
    evidence against Stephens. The prosecutors therefore did
    not strike either of these minority venirepersons, but did
    strike other minorities who did not have comparable traits.
    Stephens, in contrast, apparently struck jurors according
    to an opposite strategy. As noted earlier, it was Stephens,
    not the government, who struck Juror #13, again for
    reasons not difficult to divine. Juror #13’s qualifica-
    tions—particularly her education and white-collar business
    experience—made her more likely to understand the
    technical aspects of the prosecution’s case, possibly pro-
    business, and perhaps less sympathetic to Stephens.
    The majority sidesteps all of these relevant factors in
    its zeal to find inconsistencies in the government’s “appar-
    ent” facts. Worse, the majority places no stock in any
    of these other “apparent” facts, so I wonder what “actual”
    reasons the government on remand could possibly offer in
    an attempt to undermine the apparently foregone conclu-
    sion that it has engaged in discrimination because the
    numbers are so far out of kilter. At any rate, a Batson
    hearing seems largely superfluous at this point, given the
    majority’s conclusions that the government’s “apparent”
    reasons for its strikes are inconsistent (and therefore,
    presumably, pretextual).
    Finally, I must reiterate the government’s concern that
    parties making Batson challenges should offer some
    No. 03-2964                                                43
    meaningful quantum of proof, not merely statistics, in order
    to satisfy their prima facie burden. Batson and its progeny
    make clear that courts are not simply to skip over the prima
    facie stage. Aki-Khuam, 
    339 F.3d at 527
     (finding that the
    trial court improperly “replaced the first step of the Batson
    analysis with [its] presumption of purposeful discrimina-
    tion, thereby saddling [the party making the strikes] with
    the burden of overcoming that presumption”). As in the
    present case, local demographics and chance largely
    determine the racial makeup of any given venire, and
    peremptory strikes may as a consequence disproportion-
    ately affect certain racial groups simply as a matter of
    numbers (particularly where the numbers are small, as in
    this case). But courts must look beyond statistics and
    require litigants to carry their respective burdens under the
    Batson framework, or we risk paying lip service to clearly
    established caselaw and arguably set the stage for a rule
    that in practice (just as Stephens would have it) calls for a
    Batson hearing every time a party strikes a minority
    member from the venire. See Cooke, 
    110 F.3d at 1301
     (“[The
    defendant] must point to facts and circumstances raising an
    inference that the potential juror was excluded because of
    race. Otherwise, every peremptory challenge used to
    exclude any cognizable minority from a petit jury would
    require a Batson-type hearing.”) (citation and internal
    revisions omitted).
    Although my colleagues reprove me for suggesting a
    “parade of horribles,” I believe the majority’s Batson holding
    represents yet another step toward elimination of the
    peremptory challenge, which is undeniably an important
    and integral part of jury selection in our adversarial system.
    See Batson, 
    476 U.S. at 112
     (Burger, C.J., dissenting)
    (observing that the peremptory challenge is “a procedure
    which has been part of the common law for many centuries
    and part of our jury system for nearly 200 years.”);
    Burnham, 
    6 F.3d at 481
     (“Tradition engraves the process of
    44                                               No. 03-2964
    peremptory challenges into our system[.]”). At the least, a
    jury selection regime that places undue emphasis on racial
    proportions places form over substance and creates im-
    proper incentives. For example, parties may opt to use all
    of their peremptory strikes in order to mitigate any possible
    disproportionate impact on minorities (or anyone else
    protected by Batson and its progeny). Worse, parties could
    engineer their peremptory challenges to mirror the racial
    proportions of the venire, thus discriminating on the basis
    of race. And courts that fail sua sponte to respond to
    statistically disproportionate strikes risk remand, even if
    (as in this case) ample evidence supports the jury’s verdict
    and there is no indication that race was at issue in the trial.
    Before long, peremptory challenges will simply merge with
    challenges for cause if litigants must explain every strike of
    a protected venireperson, thus eliminating altogether a
    practice designed to assist litigants in the imprecise but
    necessary science of jury selection. Cf. Pruitt v. McAdory,
    
    337 F.3d 921
    , 930-31 (7th Cir. 2003) (“Picking jurors is a
    complex and multifaceted process. Individual factors or
    characteristics often do not provide the ‘silver bullet’ that
    will mean acceptance or rejection of any potential juror.
    Rather, it is a combination of factors that will determine
    whether a party believes a juror will be favorable to their
    side[.]”).
    In conclusion, for the reasons set forth above, I respect-
    fully dissent as to Part II of the majority opinion.
    No. 03-2964                                         45
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—8-29-05
    

Document Info

Docket Number: 03-2964

Judges: Per Curiam

Filed Date: 8/29/2005

Precedential Status: Precedential

Modified Date: 9/24/2015

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McNally v. United States , 107 S. Ct. 2875 ( 1987 )

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