United States v. Stephens, Wayne ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2892
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
WAYNE STEPHENS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 661—Matthew F. Kennelly, Judge.
____________
ARGUED MAY 24, 2007—DECIDED JANUARY 31, 2008
____________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. This is the second time this
court has considered the case of defendant Wayne
Stephens. Stephens, a Yale-educated corporate executive
in New York, was convicted of three counts of wire fraud
and was sentenced to 21 months’ imprisonment. We
previously affirmed the conviction against a sufficiency-of-
the-evidence challenge. United States v. Stephens, 421
F.3d 503 (7th Cir. 2005) (“Stephens I”). In that opinion,
this court also concluded that a prima facie Batson viola-
tion existed under step one of the three-part Batson test.
See Batson v. Kentucky, 476 U.S. 79 (1986). The case was
remanded to the district court for further proceedings to
be conducted pursuant to steps two and three of the
2 No. 06-2892
Batson test. The district court determined on remand
that the government had exercised its peremptory chal-
lenges to exclude prospective minority jurors in violation
of the Constitution, and granted Stephens a new trial. The
government appeals. We conclude there was no Batson
violation and therefore reverse. The convictions are
reinstated and affirmed, and the case is returned to the
district court for resentencing pursuant to United States
v. Paladino, 401 F.3d 471 (7th Cir. 2005).
I. HISTORY
Stephens, an African American, was an in-house man-
ager overseeing computer and technology support at the
New York City office of Accenture. Accenture is the largest
consulting firm in the world, with 158,000 employees
in 49 countries. See Wikipedia, Accenture, http://
en.wikipedia.org/wiki/Accenture (last visited Dec. 10,
2007). Accenture, like many large companies, required its
employees to submit a time and expense report. Accenture
used a computerized program, “ARTES,” as its time and
expense reporting program in 2000. The ARTES system
had a feature that allowed an employee to manually add
money to, or deduct money from, his paycheck. Apparently,
the “add to/deduct from” feature was designed for expenses
that were not addressed in other parts of the ARTES
program.
Stephens used the “add to” feature to add amounts to his
paycheck. From April through August 2000, he added
approximately $68,000 to his paychecks. Accenture did not
become aware that Stephens was increasing his pay-
check until August 2000, when its internal auditors
identified a $22,980 “add to” request made by Stephens.
Accenture fired Stephens and reported his conduct to the
government.
No. 06-2892 3
To convict Stephens of wire fraud, the government was
required to prove beyond a reasonable doubt that:
“(1) there was a scheme to defraud; (2) wires were used
in furtherance [of] the scheme; and (3) Stephens partici-
pated in the scheme with the intent to defraud.” Stephens
I, 421 F.3d at 507 (citing United States v. Owens, 301 F.3d
521, 528 (7th Cir. 2002)). It was undisputed that Stephens
took the money from Accenture through the “add to”
function in ARTES. It was also undisputed that Accenture
transferred the money to Stephens via wire transfers
from Accenture’s bank in Chicago, Illinois, to Stephens’s
personal bank account in New Jersey. Consequently, the
trial centered around whether there had been a scheme
to defraud Accenture and whether Stephens had partici-
pated in that scheme.
The government presented evidence at trial that
Stephens had engaged in a scheme because he disguised
his “add to” requests so that Accenture would not iden-
tify them. This included Stephens’s failure to submit copies
of his ARTES reports to his supervisor and Accenture’s
accounting department, as required by Accenture proce-
dure. Evidence was also presented that Stephens had
submitted his reports for review in the period that he
worked at Accenture before he began to use the “add to”
feature to take money from Accenture.
On the intent issue, the government provided evidence
of Accenture’s personnel policies, Stephens’s training on
those policies, and his prior compliance with those
policies before he began taking money via the “add to”
function. The government also provided evidence that
Stephens used the money to subsidize a lifestyle beyond
his means for himself and his family. Thus, the govern-
ment argued that Stephens knew that he should not take
money from Accenture but did so anyway out of greed.
The government also presented evidence about how
Stephens structured his “add to” requests. The first “add
4 No. 06-2892
to” request was for $7,800 and Stephens also had a
legitimate expense of $78 during that pay period. The
government argued that this demonstrated his criminal
intent because Stephens could claim a decimal error if
challenged by Accenture. However, Accenture did not
challenge the $7,800 request. After the original $7,800
success, Stephens began to increase his requests until
the final $22,980 request that Accenture uncovered in
August 2000.
Stephens testified on his own behalf and stated that he
believed that it was appropriate to obtain money via
the “add to” function. He argued that he believed that
this was an appropriate cash advance and he always
intended to repay the money to Accenture at some point
in the future. Stephens testified that he believed that
cash advances were proper based on information another
employee had told him.
The government cross-examined Stephens. It questioned
him about alleged dishonest statements made by him
on his resume concerning his educational background at
Yale University. The government also sought to impeach
him with prior acts, including his personal use of car
rentals at his last company. The government also obtained
concessions from Stephens that he did not obtain prior
approval from anyone at Accenture for the alleged cash
advances and did not sign a loan document or provide
collateral to secure the advances. This allowed the gov-
ernment to argue that common sense dictated that
Stephens knew that Accenture did not allow this type
of advance to an employee.
The jury returned a guilty verdict on all three counts.
Stephens’s motion for a judgment of acquittal challenged
the sufficiency of the evidence on the issue of whether the
government had demonstrated that Stephens had engaged
in a fraudulent scheme. More than two months after trial,
No. 06-2892 5
and before ruling on the judgment of acquittal motion
or sentencing Stephens, the district court issued a
sua sponte minute order raising the Batson issue. The
district court stated that the government had used all of
its peremptory challenges to strike minority jurors. The
court further explained that it had been concerned about
the government’s exercise of its peremptory challenges
during voir dire but assumed that the defendant
would object. The district court explained that it con-
cluded at the time that Stephens had a strategic reason
for his failure to object.
Nevertheless, after reconsidering its original evaluation
of Stephens’s failure to object, the district court con-
cluded that there was no valid reason for the defendant’s
failure. Consequently, the district court stated that it
was correcting its prior decision not to question the
government during voir dire. The court required the
government to provide non-discriminatory explanations
for its exercise of its peremptory challenges.
The government responded by arguing that the dis-
trict court lacked the authority to raise the Batson issue
sua sponte at that stage in the proceedings. The govern-
ment also provided a variety of non-discriminatory expla-
nations for its challenges. The district court then issued
a second minute order agreeing with the government’s
position that the court did not have authority to raise
the Batson issue sua sponte at that stage in the proceed-
ings and consequently vacated the original order. United
States v. Stephens, No. 02 CR 661, 2003 WL 21439862(N.D. Ill. June 20, 2003) (unpublished order). The district
court was clear to note that the vacating of its original
order did not change its view that a prima facie case of
a Batson violation existed and, consequently, the district
court advised Stephens that he should raise the issue in
a post-conviction challenge pursuant to 28 U.S.C. § 2255.
Id. at *5. The court also noted that because it had vacated
6 No. 06-2892
its original order, it no longer had the ability to perform
steps two and three of the Batson analysis.
Stephens then appealed to this court, resulting in our
Stephens I decision. That decision rejected Stephens’s
challenge to the sufficiency of the evidence for his wire-
fraud convictions. Stephens I, 421 F.3d at 507-09. As for
the Batson issue, the government dropped its objection to
Stephens’s failure to raise a timely Batson claim. Conse-
quently, the Batson claim was considered on the merits.
A divided panel held that Stephens had set forth a prima
facie case of a Batson violation pursuant to step one of the
three-part Batson test. The case was remanded to
the district court to conduct additional proceedings
pursuant to steps two and three. Id. at 518.
On remand, the government provided its non-discrim-
inatory explanations for its peremptory challenges. It
also provided its original contemporaneous notes from
voir dire to support the proffered explanations. The dis-
trict court recognized that the government had pro-
vided non-discriminatory explanations for its peremptory
challenges. These explanations were, however, dismissed
as pretextual, and the district court concluded that the
government had used its peremptory challenges to elimi-
nate minority jurors in violation of Batson. United States
v. Stephens, No. 02 CR 661, 2006 WL 1663447 (N.D. Ill.
June 9, 2006) (unpublished order).
II. ANALYSIS1
The Constitution prohibits the use of peremptory
challenges to intentionally discriminate against jurors on
1
A table setting forth characteristics of the jury venire in this
case is provided in the attached Appendix.
No. 06-2892 7
the basis of protected characteristics such as race, national
origin, and gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S.
127, 146 (1994); Batson, 476 U.S. at 99. The parties, the
jurors, and society as a whole have a right to be free from
intentional discrimination in the use of peremptory
challenges. “Although a defendant has no right to a ‘petit
jury composed in whole or in part of persons of [the defen-
dant’s] own race,’ he or she does have the right to be tried
by a jury whose members are selected by nondiscrimina-
tory criteria.” Powers v. Ohio, 499 U.S. 400, 404 (1991)
(quoting Strauder v. West Virginia, 100 U.S. 303, 305
(1879)). Additionally, “discriminatory use of peremptory
challenges harms the excluded jurors and the community
at large” because it denies those citizens the opportunity
to participate as jurors in the justice system. Id. at 406.
Disparate impact is not sufficient to cause the con-
stitutional violation; “discriminatory intent or purpose
is required to show a violation.” Hernandez v. New York,
500 U.S. 352, 360 (1991) (citing Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977) and Wash-
ington v. Davis, 426 U.S. 229, 239 (1976)). “Discriminatory
purpose implies more than intent as volition or intent
as awareness of consequences. It implies that the
decisionmaker selected a particular course of action at
least in part ‘because of, ’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.” Id. (alterations
and quotations omitted); see also McCleskey v. Kemp, 481
U.S. 279, 297-99 (1987); Pers. Adm’r of Massachusetts v.
Feeney, 442 U.S. 256, 279 (1979).
We determine whether discriminatory intent influenced
the exercise of a peremptory challenge through the three-
part Batson test. Miller-El v. Cockrell, 537 U.S. 322, 328-
29 (2003) (“Miller-El I”) (citing Batson, 476 U.S. at 96-98).
The components are: first, the challenging party makes
a prima facie showing that a peremptory challenge has
8 No. 06-2892
been exercised on the basis of an impermissible character-
istic such as race, national origin or gender; second, the
opposing party offers its non-discriminatory reasons for
striking the juror; and third, the trial court determines,
based on the parties’ submissions, whether the moving
party has met his burden of proving purposeful discrim-
ination. Id.“ ‘[T]he ultimate burden of persuasion . . . rests with, and
never shifts from, the opponent of the strike.’ ” Rice v.
Collins, 546 U.S. 333, 338 (2006) (quoting Purkett v. Elem,
514 U.S. 765, 768 (1995) (per curiam)). In this case, the
burden of persuasion has always rested with the defen-
dant, Stephens.
This court determined the existence of a prima facie
case pursuant to step one in Stephens I and therefore
we turn to steps two and three. The second step places
an affirmative requirement on the striking party to
bring forth a non-discriminatory explanation for its
peremptory challenge; a mere denial or assertion that
the party has acted in good faith is not sufficient. Batson,
476 U.S. at 98. Although the exercise of peremptory
challenges is often based on instinct, the exercising
party must “state his reasons as best he can and stand or
fall on the plausibility of the reasons he gives. A Batson
challenge does not call for a mere exercise in thinking up
any rational basis.” Miller-El v. Dretke, 545 U.S. 231, 252
(2005) (“Miller-El II ”). Justifications based on racial or
gender stereotypes—such as claiming a juror of a specific
race is not suited to serve as a juror or, if selected as
a juror, will be more likely to be partial to a party of the
same race—do not satisfy the non-discriminatory require-
ment of step two. Batson, 476 U.S. at 97-98.
“The second step . . . does not demand an explanation
that is persuasive, or even plausible,” but instead the
explanation only needs to be non-discriminatory. Purkett,
514 U.S. at 767-68. A permissible explanation can appear
No. 06-2892 9
foolish, unwise, or even unbelievable, because the only
question at stage two is whether the party has provided a
non-discriminatory explanation. Coulter v. McCann, 484
F.3d 459, 465 (7th Cir. 2007); see also Miller-El II, 545
U.S. at 267 (Breyer, J., concurring); Purkett, 514 U.S. at
768. Only during Batson’s third step does the persuasive-
ness of the justification become relevant. Purkett, 514 U.S.
at 768; Aki-Khuam v. Davis, 339 F.3d 521, 527 (7th Cir.
2003). “ ‘[T]o say that a trial judge may choose to disbelieve
a silly or superstitious reason at step three is quite
different from saying that a trial judge must terminate
the inquiry at step two when the race-neutral reason
is silly or superstitious.” Aki-Khuam, 339 F.3d at 527(quoting Purkett, 514 U.S. at 768). Terminating at step
two because of a silly, race-neutral reason “ ‘violates the
principle that the ultimate burden of persuasion regarding
racial motivation rests with, and never shifts from, the
opponent of the strike.’ ” Id. (quoting Purkett, 514 U.S.
at 768).
“The first two Batson steps govern the production of
evidence . . . . ‘It is not until the third step that the
persuasiveness of the justification becomes relevant—the
step in which the trial court determines whether the
opponent of the strike has carried his burden of proving
purposeful discrimination.’ ” Johnson v. California, 545
U.S. 162, 171 (2005) (quoting Purkett, 514 U.S. at 768).
“The relevant question during the third step of the Batson
inquiry is whether a strike was racially motivated. It
follows that Batson and its progeny direct trial judges to
assess the honesty—not the accuracy—of a proffered race-
neutral explanation.” Lamon v. Boatwright, 467 F.3d 1097,
1101 (7th Cir. 2006); see also Purkett, 514 U.S. at 769;
Hernandez, 500 U.S. at 365; United States v. George, 363
F.3d 666, 674 (7th Cir. 2004).
“The third step requires the court to weigh the evidence
and determine whether the [proffered] nondiscriminatory
reason for the strike is credible or if the [party op-
10 No. 06-2892
posing the strike] has shown purposeful discrimination.”
Coulter, 484 F.3d at 465. Consequently, the district court
must evaluate the credibility of the race-neutral explana-
tion provided in step two. “Credibility can be measured
by, among other factors, the [offering party’s] demeanor; by
how reasonable, or how improbable, the explanations are;
and by whether the proffered rationale has some basis in
accepted trial strategy.” Miller-El I, 537 U.S. at 339.
In addition, the district court may also consider whether
the justification for the exercise of the peremptory chal-
lenge corresponds to a valid challenge for cause. “While the
reason offered . . . for a peremptory strike need not rise to
the level of a challenge for cause, the fact that it corre-
sponds to a valid for-cause challenge will demonstrate its
race-neutral character.” Hernandez, 500 U.S. at 362-63
(citing Batson, 476 U.S. at 97).
Credibility may also be evaluated by considering the
offering party’s consistency in applying its non-discrimina-
tory justification. “ ‘[I]f a [party’s] proffered reason for
striking [a prospective juror of one race or gender] applies
just as well to an otherwise-similar [juror of a different
race or gender] who is permitted to serve, that is evidence
tending to prove purposeful discrimination to be consid-
ered at Batson’s third step.’ ” Coulter, 484 F.3d at 465(quoting Miller-El II, 545 U.S. at 241). When making
a side-by-side comparison of included and excluded
jurors, the district court should be mindful that “[p]icking
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.” Pruitt v. McAdory, 337 F.3d 921,
930-31 (7th Cir. 2003). The district court should also be
mindful that when making a side-by-side comparison, the
compared jurors do not have to be “exactly identical”
No. 06-2892 11
because “potential jurors are not products of a set of
cookie cutters.” Miller-El II, 545 U.S. at 247 n.6.
A further factor that may be considered in determining
the credibility of the explanation is whether the non-
discriminatory justification offered in step two results
in disparate impact on prospective jurors of one race or
gender. “ ‘[A]n invidious discriminatory purpose may
often be inferred from the totality of the relevant facts,
including the fact, if it is true, that the [classification]
bears more heavily on one race than another.’ ” Hernandez,
500 U.S. at 363 (quoting Washington, 426 U.S. at 242).
Traditionally, we review the district court’s finding of
intentional discrimination under a deferential standard
of review. “ ‘A finding of intentional discrimination is a
finding of fact’ entitled to appropriate deference by a
reviewing court.” Batson, 476 U.S. at 98 n.21 (quoting
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)); see
also Rice, 546 U.S. at 338 (“On direct appeal in federal
court, the credibility findings a trial court makes in a
Batson inquiry are reviewed for clear error.”) (citing
Hernandez, 500 U.S. at 364-66); United States v. Evans,
192 F.3d 698, 700 (7th Cir. 1999) (“The trial court’s
determination about the ultimate question of discrimina-
tory intent is a finding of fact, which will be overturned
only if clearly erroneous.”); United States v. Roberts, 163
F.3d 998, 999 (7th Cir. 1998). Under this deferential
standard, we will not reverse the district court’s decision
“simply because we ‘would have decided the case differ-
ently.’ ” Easley v. Cromartie, 532 U.S. 234, 242 (2001)
(quoting Anderson, 470 U.S. at 564), and instead will
reverse only “ ‘if, after reviewing the evidence, we are left
with a definite and firm conviction that a mistake has been
committed,’ ” United States v. Mendoza, 457 F.3d 726, 729
(7th Cir. 2006) (quoting United States v. Arocho, 305 F.3d
627, 641 (7th Cir. 2002)). Determining that “two permissi-
12 No. 06-2892
ble views of the evidence exist” is not sufficient for a
reversal. United States v. Marty, 450 F.3d 687, 690 (7th
Cir. 2006).
But deference is due only when a district court properly
performs its task in the first instance. “A district court
by definition abuses its discretion when it makes an error
of law.” Koon v. United States, 518 U.S. 81, 100 (1996)
(citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405 (1990)); cf. United States v. Robinson, 435 F.3d 699,
701 (7th Cir. 2006) (“When a judge does not properly
calculate a guidelines sentence, our review for reason-
ableness is forestalled.”); Hobley v. Burge, 433 F.3d 946,
949 (7th Cir. 2006). Additionally, we cannot defer to a
district court decision that ignores material portions of
the record without explanation. “[W]henever a district
judge is required to make a discretionary ruling that
is subject to appellate review, we have to satisfy our-
selves, before we can conclude that the judge did not
abuse his discretion, that he exercised his discretion,
that is, that he considered the factors relevant to that
exercise.” United States v. Cunningham, 429 F.3d 673, 679
(7th Cir. 2005). Our deference depends on “the district
court’s account of the facts [being] plausible in light of the
record viewed in its entirety.” Bowles v. Quantum Chem.
Co., 266 F.3d 622, 630 (7th Cir. 2001) (citations omitted).
When deferring to the district court, “reasonable doubts
should be resolved in favor of the district judge’s ruling.”
Cook v. City of Chicago, 192 F.3d 693, 697 (7th Cir. 1999).
But our exercise of deference requires the district court’s
“greater immersion in the case.” Id.Here, we are unable to defer to the district court’s
decision finding intentional discrimination by the govern-
ment. The decision of the district court incorrectly re-
counts much of the record and fails to note material
portions. Because the district court did not factor in
material portions of the record, it misapplied the Batson
No. 06-2892 13
three-part test. As a result of its misapplication of the
Batson test, no deference is due to the district court’s
decision finding intentional discrimination. We note that
even under a clearly erroneous standard of review, the
district court’s result would not pass muster. The district
court did not perform its task in accordance with Batson;
it failed to consider the entire record and misapplied the
three-part test. In making an error of law, the district
court abused its discretion. Koon, 518 U.S. at 100.
Facing this situation, we are presented with two options.
One option would be to vacate the original decision and
remand to the district court with instructions to perform
its task in the manner it should have carried out origi-
nally. We see no value in ordering another remand
for additional proceedings. Viewing the record now in
its entirety presents only one plausible conclusion—that
there is no Batson violation in this case. A second proceed-
ing in the district court would be a redundant exercise. As
such, our course is to reverse the district court. See Loyd
v. Phillips Bros., Inc., 25 F.3d 518, 524 (7th Cir. 1994)
(“We have the entire trial record before us and, having
reviewed it thoroughly, we confidently conclude that
Phillips did not carry its burden, and thus there is no need
to remand this case . . .”). As in Loyd v. Phillips Brothers,
Inc., we have the entire record before us, and have re-
viewed it thoroughly. We confidently conclude that
Stephens did not carry his burden of persuasion, as
required by Batson’s third step. Thus, remand would be
futile as there is only one plausible conclusion based on the
entire record—that there was no Batson violation. See also
Pervaiz v. Gonzales, 405 F.3d 488, 491 (7th Cir. 2005)
(stating that remand would be futile if it was clear
that petitioner’s claim would necessarily fail).
The district court’s central error was its failure to take
into account the government’s non-discriminatory ex-
14 No. 06-2892
planations for its peremptory challenges. The district court
presented the government’s explanation as one in which
the government was looking to exclusively excuse potential
jurors who lacked white-collar experience and a college
education, without a consideration of any other factors.
Although white-collar experience and a college education
were important for the government, the record demon-
strates that the government never relied on these two
factors alone. By the district court’s overemphasis of these
two characteristics—to the exclusion of other significant
points—the court turned white-collar experience and a
college education into a simple “litmus test” and ascribed
that test to the government, despite the fact that those
two factors were not used in that fashion by the govern-
ment. By transforming a lack of white-collar experience
and college education into a “litmus test,” the district court
was left with a construct in which it would simply find
that the “litmus test” was pretextual, and in light of the
finding of pretext could easily explain that this new-
found pretext was evidence of intentional discrimination.
The district court construed the following argument to
support its finding of intentional discrimination. First, the
district court noted that the government exercised only five
of its seven peremptory challenges—all five excluding
minority jurors—but did not challenge white jurors who
lacked white-collar experience or a college education. Thus,
the district court concluded, if the government was
serious about excluding non-white-collar or non-college-
educated jurors, it would have, at a minimum, used its
other two peremptory challenges to exclude two white
jurors who lacked these characteristics.
Second, the district court found the government’s
explanation pretextual because the government used its
peremptory challenge to exclude a minority juror, Juror 10,
an Asian American woman who had a college education
No. 06-2892 15
and white-collar experience. The district court concluded
that Juror 10 met the government’s “litmus test” (ascribed
to it by the court), and therefore should have been accept-
able. In light of these two inconsistencies—failing to strike
any white jurors who lacked white-collar experience or
a college education, and striking a minority juror who
had white-collar experience and a college education—
the district court concluded that the government’s ex-
planation was pretextual. Seeing pretext, the district
court reverted to its original view of this case, that the
government had used all of its peremptory challenges
to strike minority jurors and had not used a strike against
a white juror.
By placing sole emphasis on the white-collar and college-
education factors, the district court did not credit the
government’s strategy in selecting jurors. The govern-
ment’s focus was finding jurors who could understand its
case. To prove its case, the government would have to
explain accounting and business practices of Accenture—a
large international corporation—as well as the operation
of the ARTES system, and draw upon traditional work-
place practices to make its argument that Stephens had
the requisite criminal intent. The government looked to
white-collar experience and a college education as two
indicators to suggest that the juror could understand the
case, but it did not elevate these two factors to the exclu-
sion of all others.
We explicitly recognized in Stephens I that the govern-
ment explained that it was relying on a number of factors
in addition to white-collar experience and education
including “law enforcement or military experience, crimi-
nal history, association with others with law enforce-
ment or military experience or with criminal histories,
past litigation experience, and even the presence of
spelling or grammar mistakes on the forms the prospective
jurors completed.” 421 F.3d at 517. In that decision, the
16 No. 06-2892
majority specifically refused to consider these “actual”
reasons offered by the government during Stephens I
because the court was reviewing only the limited issue of
whether a prima facie case existed under step one of the
Batson test.
Thus, this case was remanded to the district court to
give it an opportunity to consider these individualized
explanations offered by the government under steps two
and three of the Batson analysis. Nevertheless, the dis-
trict court neglected to do this when it ignored all of
the individualized explanations provided by the govern-
ment and instead returned to the sole “litmus test” of
white-collar experience and college education. The dis-
trict court did not perform step three because it did not
consider the non-discriminatory explanations and sup-
porting record presented by the government. Instead, the
district court reiterated step one of the Batson analy-
sis—that the government used its strikes to eliminate
minority jurors without an apparent explanation.
But, the government did provide the district court with
detailed individualized explanations regarding its strikes
of minority jurors. For example, Juror 10, an Asian
American woman, had both undergraduate and graduate
degrees. She worked for the Chicago Department of
Human Services and her division was responsible for
providing funds to organizations helping the homeless.
The government explained that it exercised a peremptory
challenge to strike Juror 10 because “her background
and actions during jury selection made her seem poten-
tially hostile to the prosecution [and this] negative at-
titude outweighed” her education and work experience.
The government explained that, “[i]t was the impression
of the prosecutors that homeless advocates in general
have negative attitudes towards the police because they
do not see the police as interested in helping the home-
less and because many of the homeless individuals
No. 06-2892 17
they serve fear and dislike the police.” The government
also felt that Juror 10 was likely “politically quite liberal”
due to her willingness to help the homeless. “In the view
of the prosecutors, individuals with such views often are
highly skeptical of the government’s exercise of police
power, such as through criminal prosecutions, and are
more inclined to challenge or question representations
made by the government than other individuals.” One of
the prosecutors claimed to see what he perceived to be
negative body language from Juror 10 when another
prospective juror was answering a question. This led the
prosecutor to conclude that Juror 10 was unfavorable
to the government.
Juror 10 fit the court-ascribed “litmus test” by having
both a college education and white-collar experience, yet
she was clearly unacceptable to the government. But the
district court did not consider this individualized explana-
tion. Its overemphasis on white-collar experience and
college education led it to conclude that the striking
of minority Juror 10 was pretextual—even though it was
apparent that the government had a valid, unrebutted
non-discriminatory explanation for its peremptory chal-
lenge.
The district court did not consider the record and
specifically the contemporaneous notes on jury selection
provided by the government. If the district court had
considered the record it would have seen evidence demon-
strating both that the government used individual
factors and also that it did not intentionally discriminate.
The individual factors utilized by the government to
assess the prospective jurors included appropriate posi-
tive and negative non-discriminatory factors. For example,
with Juror 10, the government’s notes included such
observations as “lefty,” “social,” “social work” and “funds
homeless delivery system,” demonstrating that the gov-
ernment was authentic in its explanation that Juror 10
18 No. 06-2892
was unacceptable due to her perceived views. The gov-
ernment’s notes substantiate that the government exam-
ined a variety of individual, permissible factors related
to each juror, a fact that the majority previously recog-
nized in our Stephens I decision. Work history and educa-
tion were two primary factors but not the exclusive fac-
tors. By venturing into the record, we can see that the
government exercised its peremptory challenges in a non-
discriminatory manner.
The record demonstrates that the district court erred
in another of its conclusions. The government pointed
out to the court that Juror 4, a Hispanic juror, had been
seated and that the government did not use a strike on
Juror 13, an African American juror, as evidence that it
was not discriminating. In fact, Juror 13 was not seated
because she was struck by the defendant. The district
court, however, dismissed this argument as “not particu-
larly strong evidence,” Stephens, 2006 WL 1663447 at *7,
and instead returned to its white-collar and college-
education “litmus test.”
The government’s contemporaneous notes confirm most
of its assertions. The government gave each juror a grade
ranging on an A to F scale, apparently to rank how
favorable it believed the perspective jurors were to the gov-
ernment’s case. Juror 13, the African American juror
who was struck by a defense peremptory challenge,
received a grade of “A–” in the government’s notes. This
is the highest grade given to any juror by the govern-
ment—the government did not give any A+ or A grades
when evaluating jurors—and so Juror 13 was tied at the
proverbial top of the government’s class with Jurors, 2, 8,
14, 18, and 24. This placed Juror 13 in the top six
jurors out of the total 40 jurors in the venire. The de-
fendant used peremptory challenges to strike four of
the government’s top jurors—Jurors 8, 13, 14 and 18—
while Jurors 2 and 24 were seated.
No. 06-2892 19
Juror 13 was not only acceptable, she was a first pick
for the government. Looking at her background, it is
easy to see why. She had an MBA from the University of
Chicago and had worked as a product manager and
consultant for two cosmetics companies. She also had
lived in several places before coming to Chicago, includ-
ing St. Paul, Minnesota; St. Louis, Missouri; Paris,
France; New York, New York; and Bangkok, Thailand. The
government made a notation of “urbane” next to the list-
ing of the cities. And unlike Juror 10, who had a college
education and white-collar experience coupled with
experience unfavorable to the government (working
with the homeless), Juror 13 had additional positive
characteristics that the government valued. She had a
brother who had been a police officer for 12 years
and a friend who had recently joined the United States
Air Force Judge Advocate General Corps.
Jurors 3, 23, and 33 each received the government’s
lowest grades of “D.” Yet these three lowest-graded jurors
were all white men. This further undercuts the district
court’s general view that the government was trying to
load the jury with white jurors and exclude minorities from
the jury. The government did not use peremptory chal-
lenges on Jurors 3, 23, and 33 because all three
were excused for cause.
Juror 3 said that he would have a difficult time being
fair and impartial. Juror 23 returned late from a break
and responded during in-court voir dire that he had a hard
time following presentations or concentrating when
information was presented to him. Jurors 3 and 23 fall
into the category of lacking white-collar experience and
a college education and it appears that the govern-
ment doubted their abilities to follow the case. It is
understandable that the government would place these
jurors at the bottom of its list of jurors.
20 No. 06-2892
Juror 33 further illustrates these points. Juror 33 was
a white male with white-collar experience and a college
education, but still received a “D” grade from the govern-
ment. Juror 33 was a patent attorney but merited a “D”
grade because he informed the court that he had plans
to leave the country for business in a few days. This was
a significant distraction to him and consequently made
him an undesirable juror to the government. Although
the government did not have to use a peremptory challenge
to strike him—Juror 33 was excused for cause—it demon-
strates both that the government considered individual
factors beyond education and work experience and also
that the government was consistent in making non-
discriminatory determinations.
Looking at the totality of circumstances also helps to
explain why the government struck Jurors 1 and 27. Juror
1 was a 31-year-old single Hispanic woman with no
children, from the northwest side of Chicago. Both the
government and Stephens used a peremptory strike to
exclude her. She had a GED education with some college
courses in accounting, and had attended a vocational
banking school. She worked as a postal worker for four
years. During in-court voir dire, she disclosed that her
aunt was a police officer for twelve years in the Chicago
Police Department, Narcotics Division. Juror 1 was a
victim of a crime—she had a chain stolen from her neck.
Her brother, for reasons unknown to her, was under house
arrest at a prior time. She also testified on behalf of a
defendant in a statutory rape case. The testimony was
more than ten years earlier and involved the age of the
alleged victim. She said that she could be fair to all sides
involved in the case. The government gave Juror 1 a “C–”
grade.
The government explained that it struck Juror 1 because
she had a blue-collar job, lacked a college degree, and also
had various other characteristics that were a concern to
the government. The government was concerned with the
No. 06-2892 21
fact that she was a postal worker. Government counsel
explained that he had interviewed postal workers prior to
the Stephens case in relation to another case. He found
the postal workers generally hostile to the government.
Government counsel also explained that this was consis-
tent with the hostility that other prosecutors had experi-
enced. The government also explained that it was con-
cerned that Juror 1 had appeared as a defense witness
in a prior trial.
The government’s notes substantiate its explanations.
The government circled the answer on Juror 1’s jury
questionnaire where she listed that she was a postal
worker. The government’s notation also states that
Juror 1 “testified for defendant,” supporting the govern-
ment’s statement that it considered this a negative factor.
In the end, Juror 1 was struck by both sides.
Juror 27 was a 39-year-old married African-American
woman from the south side of Chicago, with one child. She
had a diploma in diesel mechanics from the American
Diesel Institute and had taken one year of business
courses at Chicago State University. She had worked
for sixteen years as a bus service supervisor for the
Chicago Transit Authority. Juror 27 explained during
questioning, “I fix a lot of buses.”
The government gave Juror 27 a “B–” and exercised a
peremptory challenge to excuse Juror 27. In explaining its
peremptory challenge, the government noted that she
lacked white-collar experience and a college degree. The
government also explained that it was concerned “because
her background suggested that she had the potential to
hang the jury.” The government felt that Juror 27 “was
likely to be strong-willed because, as a supervisor of a
bus mechanics, she was used to making strong-willed
people follow her orders.” Being a strong-willed person
was a concern to the government because this might
22 No. 06-2892
make it more likely that Juror 27 would remain a holdout
or try to convince others to join her views should she
determine that the defendant was not guilty.
The government’s notes also demonstrate how the
government differentiated and subdivided the class of
jurors who lacked white-collar experience and a college
education. The government needed to further subdivide
within the group of non-white-collar, non-college-educated
jurors, because this category represented a majority of
the jurors. For example, the government found Juror 2
acceptable because of her significant connection to law
enforcement—she was an office manager at a police union
and had several friends in law enforcement. Juror 11 had
been in the Army, had mentioned his experience as a
utility inspector, discussed a criminal investigation in
which he participated while at the utility, and spoke of
his nephew who was involved in law enforcement. The
government noted that Juror 16 was “blue collar”—he
worked for a power company providing power to new
homes—and had a high school education. However, Juror
16 received a “B+” grade in part because of his four years
in the Marine Corps and cousins who were in law enforce-
ment. Juror 20 received a “B–” grade. Although he worked
in a factory and had a high school education, Juror 20
was going back to school for a business degree at the age
of 50.
The government also explained that because of the
sophisticated nature of ARTES and Accenture’s account-
ing practices, it focused on the jurors’ comprehension
abilities, as demonstrated in their written and oral
responses during voir dire. The government explained that:
[S]pelling, grammatical, and comprehension errors
that the government noted stood out because the jurors
did not have the chance to say or write much. The
juror questionnaires did not ask for long written
No. 06-2892 23
answers, nor did most jurors provide them. Similarly,
most of the prospective jurors said little because
most of the Court’s questions were on paper. Accord-
ingly, if an individual [prospective juror] made re-
peated and/or glaring mistakes during the voir dire,
the government viewed that as compelling evidence of
the juror’s inability to understand the government’s
case.
Ability to understand was a key factor in the government’s
peremptory challenges against Jurors 9, 21 and 36.
Juror 9 was a 39-year-old single Hispanic man from
Berwyn, with no children. He worked for five years at a
cardboard-box factory, and before that drove a forklift
for eleven years. He lived with his retired parents. He
received a GED and was attending heating and air-condi-
tioning classes at Morton College. The government noted
misspellings on Juror 9’s questionnaire. Juror 9’s answer
to Question 13 (“What are your hobbies and spare time
activities?”) was: “going to scool for a carrer.” The govern-
ment counsel underlined “HVAC” and also made a nota-
tion, “Can he read?” The government gave him a “C” and
exercised a peremptory challenge. The government ex-
plained that it exercised a peremptory challenge on Juror
9 because his lack of education and white-collar experi-
ence, along with his juror questionnaire answers, led
the government to conclude that he would likely be
unable to understand the government’s case.
Juror 21 was a 28-year-old, married Hispanic American
man from Franklin Park, with one child. He had a high
school education and worked for four years as a “semi-
skilled technician” at a car dealership. He had previously
worked as a car-accessory installer, and had jobs at a
bakery and fast-food restaurant. The district court en-
gaged in the following exchange with Juror 21:
24 No. 06-2892
DISTRICT COURT: You answered yes to the ques-
tion about knowing someone who worked in law
enforcement.
JUROR 21: My brother-in-law.
DISTRICT COURT: Your brother-in-law, does he
work for a police department.
JUROR 21: No. He is armed service. After 911 he got
called in to be security at O’Hare Airport.
DISTRICT COURT: Is he still doing that?
JUROR 21: After the Army, he got out of there, he
applied to be a federal agent.
DISTRICT COURT: Is he working there now?
JUROR 21: Not no more. He got called in for—he
had to go to Iran.
DISTRICT COURT: So he was with the Army
Reserves, and he worked for a time for whatever they
call that agency who handles the security at O’Hare,
and now his unit has been called up.
JUROR 21: Right.
The government gave Juror 21 a grade of “C.” It also
made notations of “blue” and “language” in its notes. On
remand, the government explained that it challenged
Juror 21 because he lacked white-collar experience and a
college degree, but also “because he made so many gram-
matical and comprehension mistakes in the limited time
he was questioned during the voir dire that [this] raised
doubt about his ability to understand the government’s
case.”
Juror 36 was a 43-year-old, single African American
woman from the south side of Chicago, with no children.
She had a high school education and worked in home
health care. She had previously been a typist for the
No. 06-2892 25
Social Security Administration and the Chicago Police
Department. She disclosed that she had a brother who
had been in and out of jail for burglary. The district court
had the following exchange with Juror 36 during in-court
voir dire.
DISTRICT COURT: What does Attis Health Care do?
JUROR 36: They employ homemakers and differ-
ent—to go to patients—sick people and take care of
them.
DISTRICT COURT: It is home health care basically?
JUROR 36: Yes.
DISTRICT COURT: Got it. And you worked for the
Chicago Police Department at some point?
JUROR 36: Years ago.
DISTRICT COURT: What did you do there?
JUROR 36. I typed. I typed up the records. Criminal
arrests I typed.
DISTRICT COURT: Okay. And so you obviously
knew a lot of people who worked for the Chicago Police
Department. Do you have any relatives or close friends
who are with law enforcement now?
JUROR 36: Not that I know of.
DISTRICT COURT: Do you think that you could be
fair to both sides in considering and weighing the
testimony of a law enforcement officer?
JUROR 36: I don’t understand the question.
DISTRICT COURT: If you heard a law enforcement
officer testify in this case here, do you think that you
could be fair to both sides in considering that person’s
testimony?
26 No. 06-2892
JUROR 36: Yes.
DISTRICT COURT: Do you think that you would
tend to give that police officer or law enforcement
officer’s testimony more weight just because they
happen to be a law enforcement officer?
JUROR 36: No.
DISTRICT COURT: You applied for a job with law
enforcement. That is obviously the police department.
Is there any other job with law enforcement that
you have applied for other than your job with the
police department?
JUROR 36: No. Maybe the sheriff.
DISTRICT COURT: You may have applied for a job
with the sheriff?
JUROR 36: I would like to.
DISTRICT COURT: You would like to. In a similar
capacity, the same type of job you had with the police
department?
JUROR 36: I would like to be an officer. I would type
for the police.
DISTRICT COURT: Have you ever actually applied
to be a law enforcement officer? Is that just some-
thing you have thought about?
JUROR 36: Something I thought about.
The government gave Juror 36 a “B–.” It also wrote
“comprehend” and “didn’t get the question” in the notes.
The government explained that it struck Juror 36 be-
cause of her work experience, level of education, and
statements made during voir dire. It was also concerned
that she had written “health care aid” on the question-
naire. Additionally, the government was troubled with
No. 06-2892 27
Juror 36’s responses during the in-court voir dire and her
brother’s criminal history.
As to Jurors 9, 21, and 36, the government was obviously
concerned about their ability to comprehend and follow
what was going on in the case in light of their in-court voir
dire responses. Nevertheless, the district court again
dismissed these concerns as pretextual.
The court noted that Juror 11, a white man, had made
errors on his questionnaire and had difficulty following in-
court voir dire, yet he was not struck by the government.
The district court also took the blame for Juror 36’s
confusion saying that he “threw her a curve ball” follow-up
question causing this concern. Nevertheless, the expressed
basis for the government’s strike of Juror 36 was a valid
non-discriminatory reason—the juror’s inability to compre-
hend the questions asked by the judge. That same concern
was present with regard to Jurors 9, 21 and 36.
As discussed above, Juror 11 had other factors that the
government found favorable including his time in the
military and connection to law enforcement. Regardless,
the government’s explanation for excusing Jurors 9, 21,
and 36 was that they had difficulty understanding
what was going on in court, a non-discriminatory ex-
planation under step two, and therefore the district court
was wrong to dismiss this as pretextual.
When the record is considered in its entirety, it shows
that the government exercised its peremptory challenges
in a non-discriminatory manner. What remains of the
district court’s conclusion is merely that it sees a large
percentage of minority jurors excluded. This fact, as the
majority discussed in Stephens I, supports a prima facie
finding under step one of the Batson analysis.
However, when the government provided its explana-
tions under step two, the district court was responsible for
considering these explanations along with the record
28 No. 06-2892
in total to determine if there was evidence of intentional
discrimination. The district court did not complete this
task. Instead, it revisited the step one analysis and
went no further. The district court was required to apply
all three steps of the Batson analysis.
This error is understandable on some level due to the
tortured path taken by this case. If the Batson issue had
been addressed during the in-court voir dire much of
this could have been avoided. The government would
have been able to present its explanations and support-
ing notes immediately, when the record was still fresh in
the district court’s mind. Unfortunately, the image of a
jury composed of all white members, except for one
Hispanic member, deliberating on the fate of an African
American defendant, appears to have weighed on the
district court’s perception of discrimination and ulti-
mately overwhelmed any legitimate alternative view.
III. CONCLUSION
The decision of the district court finding a Batson
violation and granting the defendant’s motion for a new
trial is REVERSED; the defendant’s convictions are rein-
stated and AFFIRMED. Because the defendant was sen-
tenced under the then-mandatory sentencing guidelines,
we now order a LIMITED REMAND pursuant to our decision
in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005),
so that the district judge can communicate to us whether
he would have imposed the same sentence on the defen-
dant had he known that the sentencing guidelines
were advisory instead of mandatory.
No. 06-2892 29
ROVNER, Circuit Judge, dissenting. The district court
in this case properly analyzed the Batson issue, and
the majority’s treatment of that district court opinion is
so dismissive of the district court that I must write
separately to express my disagreement. The majority is
only able to reverse the district court by: (1) declaring that
the district court was so unaware of the record before
it that deference to its decision is no longer due; and
(2) usurping the role of the district court by refusing to
remand the case and instead deciding the issue for our-
selves. There is no basis for either conclusion. The majority
opinion mischaracterizes the district court opinion in
concluding that the district court failed to consider all of
the factors, and the opinion as a whole evidences a disre-
gard for the district court’s analysis and its role. Accord-
ingly, I dissent.
The majority recognizes that it is the role of the district
court at step three of the Batson inquiry to evaluate
the credibility of the race-neutral explanation and that
the role is so significant that we will not overturn those
findings unless they are clearly erroneous. Rice v. Collins,
546 U.S. 333, 338 (2006). The majority end-runs that
deferential review by stating that the district court opinion
incorrectly recounted much of the record, failed to note
material portions, and applied a “litmus test” to the Batson
issue which exclusively focused on the factors of white
collar experience and college education. Majority Op. at 14-
15. By holding that the district court did not factor
in material portions of the record, the majority concludes
that the district court is owed no deference in its applica-
tion of Batson. The majority then goes one step further,
and declines to remand the case to allow the district court
to consider the record in its entirety, instead concluding
that the record presents only one plausible conclusion,
which is that no Batson violation is present.
It is true that the district court focused predominantly
on two factors—work experience and ability to understand
30 No. 06-2892
the case—in evaluating whether the race-neutral explana-
tions were pretextual. That focus was appropriate be-
cause the government quite clearly identified those
factors as the primary reasons for its challenges. Indeed,
the government in the district court devoted the first 12
pages of its Government’s Statement of Reasons (hereinaf-
ter “Govt. Reasons”) to explaining why classifications
based on work experience and ability to understand the
case are race-neutral and are proper factors for exercis-
ing the peremptory challenges. It is not until later in
its argument that the government even explored other
related factors. In fact, the government in its argu-
ments to the district court repeatedly identified those two
factors as predominant, beginning with a section entitled
“The Government’s General Approach to Striking Jurors,”
in which the government stated:
there were two factors that the government con-
sidered to be particularly significant in this case:
(1) the juror’s work experience; and (2) the juror’s
ability to understand the government’s case. As a
general rule, the government struck prospective jurors
who lacked white collar work experience and who
demonstrated the least ability to comprehend the
government’s case. The importance of those two factors
to the government reflected the nature of the case . . .
Govt. Reasons at 2-3. The critical importance of those
factors was then developed at length, and repeatedly
emphasized. In fact, the government declared that “virtu-
ally all of the government’s strikes are readily explained
by the jurors’ work experience and ability to understand
the case.” Government’s Reply to Defendant’s Response
to Government’s Statement of Reasons (hereinafter
“Govt’s Reply) at 12. Regarding the second factor—the
ability to understand the case—the government explicitly
tied that to the level of education, declaring: “The govern-
ment assumed that people with college degrees would be
No. 06-2892 31
more likely to understand all the nuance of the govern-
ment’s case than people who had less education. Accord-
ingly, as a general rule, the government looked to strike
individuals who lacked a college degree.” Govt. Reasons
at 7.
The district court accurately characterized the govern-
ment’s arguments. The court noted that the government
considered to be “particularly significant” the factors of
work experience and the juror’s ability to understand the
government’s case. The court in fact quoted the govern-
ment’s own rationale for use of its peremptories and its
explanation of those two factors. Regarding the jurors’
ability to understand the case, the court quoted the above
language concerning the relevance of a college education,
and also noted the significant weight the government
placed on mistakes jurors made in written and oral
responses during voir dire as illuminating the potential
jurors’ ability to understand the case. The district court
properly determined that those reasons provided by the
government were race-neutral, but concluded that those
factors were not what actually motivated its peremptory
challenges.
Thus, the district court appropriately focused on the
factors identified by the government as those driving
its peremptory challenges. The majority’s characteriza-
tion of that as a “litmus test” that blinded the district
court to any other explanations is simply inaccurate. It is
disingenuous to fault the district court for focusing on
those factors when it was the government that argued to
the district court that “virtually all of the government’s
strikes are readily explained by the jurors’ work experience
and ability to understand the case.” Govt’s Reply at 12.
The district court simply quoted the government’s own
rationale. Nor was the district court unaware of the other
factors considered. The district court recognized the
government’s argument that among those unacceptable
32 No. 06-2892
jurors lacking college education and white collar experi-
ence, the government looked to other factors to decide
which jurors were the least desirable. That is because the
government did not have enough peremptory challenges to
eliminate all of the jurors in that undesirable pool. See
Govt.’s Reply at 7 (“as 17 jurors lacked a college degree
and 9 jurors had no white collar experience, it would have
been impossible for the government to strike all the
jurors in either category with its 7 peremptory challenges.
As a result, the government had to consider additional
factors among the jurors who lacked a college degree
and/or white collar experience to determine its strikes.”)
Contrary to the majority’s characterization, the district
court in fact acknowledged that the government had
identified those other factors as a means to rank the
potential jurors in that undesirable pool, ostensibly so
that the government could eliminate the least desirable
among them. In other words, the work experience and
ability to understand were the primary factors in deter-
mining a pool of potential jurors who would all be undesir-
able to the government. In choosing how to allocate the
limited number of peremptory challenges among those
undesirable jurors, the government argued that it looked
to secondary factors. But the court held that those other
factors were ultimately irrelevant, because the numbers
made it clear that the government was not doing what
it said. The government was not credible in stating that
it tried to eliminate the potential jurors who lacked the
ability to understand the case and white collar experience.
There were eleven jurors who both lacked white collar
work experience and either lacked a college degree or
allegedly showed confusion on the written and oral voir
dire, six of whom were Caucasian and five of whom
were African-American or Hispanic-American. The gov-
ernment eliminated only five of them, despite having
seven peremptory challenges available to it. If, as it
No. 06-2892 33
claimed, the government exercised its challenges so as to
remove as many potential jurors as possible who lacked
white collar experience and the ability to understand the
case, then it would have eliminated seven within that
group. No claim is made that strategy or other factors
required it to retain some peremptory challenges. Nor
was the government credible in stating that it looked to
other factors to rank the jurors within that group so as to
best allocate its challenges among those undesirable
potential jurors. If it had, then the bottom seven would
have been eliminated. Instead, only five challenges
were made to that group that the government had already
identified as undesirable, and all five were against minor-
ity jurors, eliminating every minority within that group.
The government—despite identifying white collar experi-
ence and college education as the most significant fac-
tors—did not exercise peremptory challenges against a
single one of the six Caucasian prospective jurors who both
lacked white collar experience and exhibited an inability
to understand the case. Instead, it used one of the two
remaining peremptories on an Asian-American potential
juror who possessed both white collar experience and a
college education, and it left its remaining peremptory
challenge unused, allowing on the jury the potential
Caucasian jurors who lacked both the white collar experi-
ence and the ability to understand the case that the
government had deemed so critical.
Far from being unaware of the government’s arguments
regarding the other factors, the district court was aware of
them, but stated that they were irrelevant because the
government could not explain why it had failed to use the
remaining peremptory on any Caucasian member of
that undesirable potential juror group. It was not
clearly erroneous for the district court to determine that
if those factors were so critical as to explain “virtually
all of the government’s strikes,” it would have at least
34 No. 06-2892
exercised its unused peremptory challenges against one
of the white jurors who lacked white collar experience
and the ability to understand the case, instead of eliminat-
ing only the minority jurors so situated and leaving the
peremptory challenge unused. Thus, there is absolutely
no evidence that the court was unaware of, or failed to
consider, the record as a whole, or the government’s
arguments as a whole. In fact, the district court explicitly
acknowledged those other factors. The majority clearly
would have not reached the same conclusion, but such a
difference of opinion is not a basis for reversal. Easley v.
Cromartie, 532 U.S. 234, 242 (2001); Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985). Where, as here, the dis-
trict court properly considered the record and the law as
a whole, the district court’s decision must be affirmed
unless clearly erroneous. The majority cannot avoid that
standard by mischaracterizing the district court’s opinion
and impugning the court. Because the district court
properly identified the government’s arguments and
addressed them in light of the applicable law, it is en-
titled to deference and should be affirmed.
In fact, even under its non-deferential review, there is
no support for the majority’s determination that the rec-
ord yields only one plausible conclusion in the Batson
challenge. The extensive, subjective weighing of factors,
and the conclusion regarding which are important and
which are not, that constitutes the bulk of the majority
opinion, itself reveals the fallacy of any such argument
of inevitability. The majority attempts to lend an aura of
objectivity to the process by premising the challenges on
the allegedly race-neutral grading system used by the
prosecutor, in which some potential minority jurors
received high grades and some potential white jurors
received low grades. The majority provides a chart in the
Appendix that sets forth those grades to purportedly
demonstrate that the government’s strikes were based on
its race-neutral grading system.
No. 06-2892 35
A glance at that chart belies any such easy conclusion.
Even assuming, as the majority does, that the grading
was done in a race-neutral manner, the chart reveals that
the government allowed no one on the jury who scored
below a B-, and did not challenge anyone who scored a B or
above. For those that scored a B-, however, the result was
anything but race-neutral. Five jurors received a rating
of B-, three of whom were white and two of whom were
African-American. One of those white jurors was ex-
cused for cause. Of the potential jurors remaining who had
a B- grade, the two white candidates were seated as jurors,
and the two African-American candidates were dismissed
as a result of government peremptory challenges. That is
hardly evidence of racially-neutral use of peremptory
challenges. Nor did the government have to make such a
choice at all. As the district court points out, the govern-
ment retained an unused peremptory challenge, and thus
could have excluded at least one of the remaining jurors
graded B-, yet it chose to challenge only the minority
jurors with that grade. Tellingly, all of those prospective
jurors rated B- lacked both white collar experience and a
college degree (although one white prospective juror
was attending college), and the government nevertheless
exercised its peremptories to exclude the minority candi-
dates, but allowed the white prospective jurors to serve
despite retaining an unused peremptory challenge. Al-
though the majority attempts to neutralize that deter-
mination with the listing of purported positive and nega-
tive factors for the government, the grade itself presum-
ably reflects the government’s own weighing of those
factors. It remains that among those rated a B-, the
available white candidates were allowed to serve and the
government used peremptory challenges to eliminate
both African-American candidates.
Thus, even using the purportedly neutral grading system
that the majority identifies, it does not indicate race-
36 No. 06-2892
neutrality, and certainly does not establish it to such a
degree that we could state that the record presents
only one plausible conclusion. The case at a minimum
should have been remanded to the district court if the
majority believed that the court did not apply the
proper legal standard, because the convoluted facts of
this case do not lend themselves to a decision by an
appellate court of the Batson issue as a matter of law. The
district court—and more importantly, the defendant—
deserved better than that, however, as the district court
properly analyzed the record before it. Applying the
proper standard of deferential review, the decision of the
district court should have been affirmed outright. For
that reason, I dissent.
No. 06-2892 App. Page 1
APPENDIX
Grade White- Individualized Individualized
Juror College
Race Gender Given Collar Positive Factors Negative Factors Resolution
Number Degree
by Govt Work for Government for Government
- testified for defendant in
rape case
Government
- brother on home arrest
and Defendant
1 Hispanic Female C– No No - postal worker; government
Peremptory
concerned about hostility
toward prosecution
- significant connection with
law enforcement Seated as
2 White Female A– No Yes
- office manager at a police Juror
union
- said he would have a
Excused for
3 White Male D No No difficult time being fair and
Cause
impartial
- associate’s degree in
Seated as
4 Hispanic Female B No Yes accounting; white-collar
Juror
experience
- white-collar experience as Seated as
5 White Male B+ No Yes
a bookkeeper and clerk Juror
- white-collar experience;
administrator at a Seated as
6 White Female B Yes Yes
residential house for Juror
disabled adults
- white-collar work as an Seated as
7 White Female B No Yes
account-manager assistant Juror
- white-collar experience; 14
years as an executive
Defendant
8 White Female A– No Yes assistant for a bank;
Peremptory
additional administrative
work
- many misspellings on
questionnaire: “going to
scool for a carrer” Government
9 Hispanic Male C No No
- government questioned if Peremptory
juror could read
- social worker working with
homeless: “lefty”
- government felt she
may hold negative Government
10 Asian Female C– Yes Yes attitudes about law Peremptory
enforcement
- government interpreted
facial reaction during jury
selection as hostile
No. 06-2892 App. Page 2
Grade White- Individualized Individualized
Juror College
Race Gender Given Collar Positive Factors Negative Factors Resolution
Number Degree
by Govt Work for Government for Government
- worked as utility
investigator in fraud case
- Army experience Defendant
11 White Male B+ No No
- positive impression of law Peremptory
enforcement; relatives in
law enforcement
- two relatives in law Seated as
12 White Male B No No
enforcement Juror
- lived in many large cities
before Chicago; “urbane”
- had an MBA; worked as a
Defendant
13 Black Female A– Yes Yes product manager
Peremptory
- brother had been a police
officer and was now an Air
Force JAG
- sales/account executive
- government felt that juror
14 White Female A– Yes Yes was judgmental toward her
brother for his criminal Defendant
conduct Peremptory
- putting himself through
college
- military experience; serving,
Seated as
15 White Male B+ No No at the time of trial, in the
Juror
Army National Guard
- “open” about uncle’s
criminal experiences
- ex-Marine
- cousins in law enforcement; Seated as
16 White Male B+ No No
applied for law-enforcement Juror
jobs
Defendant
17 White Female B Yes Yes - high school teacher
Peremptory
Defendant
18 White Female A– Yes Yes - loss-control consultant
Peremptory
Excused for
19 White Female B+ No Yes - real-estate appraiser
Cause
- attending college at the
time of trial, at the age of
50, after lifetime of blue-
Seated as
20 White Male B- No No collar work (would likely be
Juror
unsympathetic to
Stephens’s lies about his
Yale degree)
No. 06-2892 App. Page 3
Grade White- Individualized Individualized
Juror College
Race Gender Given Collar Positive Factors Negative Factors Resolution
Number Degree
by Govt Work for Government for Government
- made numerous
grammatical and Government
21 Hispanic Male C No No
comprehension mistakes Peremptory
when questioned by court
- white-collar work in Defendant
22 White Male B+ Yes Yes
pharmaceutical sales Peremptory
- had a hard time following Excused for
23 White Male D No No
things and concentrating Cause
- white-collar work as a Seated as
24 White Male A– Yes Yes
sales director Juror
- had worked in law
enforcement; relatives in Excused for
25 White Male B+ No No
law enforcement and Cause
judiciary
- sister a police officer
- said “unfortunately, no”
when asked if anyone was Seated as
26 White Male B– No No
arrested for stealing his Juror
trucks
- government felt she had
the potential to hang a jury
because of her 23 years
Government
27 Black Female B– No No of experience as a CTA
Peremptory
bus mechanic supervisor;
worried she would be
“strong-willed”
- account executive; had
Defendant
28 White Male B+ Yes Yes previously worked as an
Peremptory
auditor
- white-collar experience as
Seated as
29 White Female B Yes Yes office manager at graphic
Juror
artist consulting firm
- white-collar work as - was not sure she could be Excused for
30 White Female B– No Yes Cause
shipping/receiving clerk fair
- six years in military
- close friend of 25 years
was a police officer
- dismissive of son’s
Defendant
31 White Male B+ Yes Yes work as public defender for
Peremptory
“bizarre clients”
- absolved police for role
in a civil suit for malicious
prosecution
No. 06-2892 App. Page 4
Grade White- Individualized Individualized
Juror College
Race Gender Given Collar Positive Factors Negative Factors Resolution
Number Degree
by Govt Work for Government for Government
- Army experience Alternate
32 White Male B Yes Yes
- teacher Juror
- planned to leave the
- patent attorney Excused for
33 White Male D Yes Yes country in a few days and
Cause
was distracted
- was not sure he could be Excused for
34 Black Male B Yes Yes
impartial Cause
- worked as a hospital
Alternate
35 White Female B No Yes admitting representative
Juror
for 25 years
- had difficulty following
court’s simple questioning
during voir dire; did not
seem to understand; was Government
36 Black Female B– No No
confused Peremptory
- had a brother who had
been in and out of jail for
breaking into houses
- had previously worked as
a fire inspector, building - presented impartiality Excused for
37 White Male B+ No Yes
inspector, and police concerns Cause
officer
- white-collar experience - reported that it would be Excused for
38 White Female B+ Yes Yes
as Vice President of Sales very difficult to be fair Cause
- computer scientist; part-
Defendant
39 White Male B+ Yes Yes time community college
Peremptory
teacher
- social worker at a middle
school; government not
concerned about a Excused
40 White Female B Yes Yes
particular ideology
associated with this type
of social work
No. 06-2892 41
App. Page 5
Note:
The district court first considered challenges for causes.
After determining the jurors that would be excused for
cause, the district court gave each side 15 minutes to
consider their peremptory challenges. The government
was given seven peremptory challenges and the defendant
was given eleven peremptory challenges. Both sides
provided their peremptory challenges on a written piece
of paper submitted to the district court. The district
court noted that both sides exercised a peremptory chal-
lenge on Juror 1 and that the government had failed to
exercise all of its challenges. Consequently, the district
court asked the government if it wanted to exercise
another challenge. The government selected Juror 21.
Juror 40 was excused because the court had already seated
a full complement of 12 jurors and two alternates.
42 No. 06-2892
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-31-08