United States v. Olufemi Adigun

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-3230
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UNITED STATES OF AMERICA
v.
OLUFEMI ADIGUN,
Appellant
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. Action No. 1-11-cr-00151-001)
District Judge: Honorable Christopher C. Conner
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 26, 2015
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Before: GREENAWAY, JR., KRAUSE, and GREENBERG, Circuit Judges.
(Opinion Filed: May 7, 2015)
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OPINION*
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GREENAWAY, JR., Circuit Judge.
Olufemi Adigun (“Appellant”) appeals the District Court’s judgment of conviction
on conspiracy, fraud, unlawful monetary transactions and money laundering charges.
Appellant argues that the Government improperly struck the sole potential African-
American juror on the basis of her race and gender in violation of the Fourteenth
Amendment. We hold that the District Court properly applied Batson v. Kentucky, 476
U.S. 79 (1986) and correctly determined that the Government’s peremptory strike did not
violate the Equal Protection Clause. We will affirm.1
I. Factual and Procedural History
Appellant was indicted for counts of conspiracy to commit mail and wire fraud,
money laundering, and related charges in connection with a complex fraud and money
laundering scheme. After an initial mistrial, Appellant was re-tried and convicted on
several counts.
During jury selection at the second trial, the Government exercised a peremptory
strike to exclude an African-American woman as a potential alternate juror. Appellant
raised a Batson challenge, arguing that the strike was racially motivated. In response, the
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; we have
jurisdiction pursuant to 28 U.S.C. § 1291.
2
Government explained they had eliminated the juror because: (1) she was a state
employee, and the Government’s experience was that state employees had a “liberal
standpoint;” (2) she had only recently moved to Harrisburg, the trial venue; and (3) she
was a relatively uneducated typist. App. 117–18. The Government later added that the
juror was “also a woman,” and they were “looking for male juror[s] [who] tend to be
stronger leaders in the jury room.” App. 119.
Appellant moved for a mistrial and to re-panel the jury, arguing that the
Government’s proffered race-neutral reasons for striking the juror were pretextual. The
District Court denied Appellant’s motions, crediting the Government’s explanation.
Appellant did not object to the strike as gender-based before the close of venire.
On the first day of trial, the District Court raised the issue of the Government’s
gender-based rationale sua sponte. The District Court acknowledged that intentional
discrimination on the basis of gender in the use of peremptory strikes violates the Equal
Protection Clause, but upheld the strike under Gattis v. Snyder, 278 F.3d 222 (3d Cir.
2002), finding that the Government would have struck the juror even in the absence of
any gender-related reason.
Appellant was convicted and sentenced following the jury trial.
II. Analysis
Appellant argues that the District Court erred in permitting the Government to
strike the sole African-American juror based on her race and gender in violation of the
Fourteenth Amendment.
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A. Race-based challenge
“We review the District Court’s factual determination of whether discriminatory
intent motivated the government’s peremptory strikes for clear error.” United States v.
DeJesus, 347 F.3d 500, 505 (3d Cir. 2003) (citing United States v. Uwaezhoke, 995 F.2d
388, 394 (3d Cir. 1993), cert. denied, 510 U.S. 1091 (1994)).
Under Batson, a court shall employ a three-step procedure for evaluating claims of
discrimination in the jury selection process:
“First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. Second, if that showing
has been made, the prosecution must offer a race-neutral basis for striking
the juror in question. Third, in light of the parties’ submissions, the trial
court must determine whether the defendant has shown purposeful
discrimination.”
Williams v. Beard, 637 F.3d 195, 205 (3d Cir. 2011) (quoting Miller-El v. Cockrell, 537
U.S. 322, 328–29 (2003) (discussing three-step inquiry under Batson)).2
As to step two, the record is clear that the Government provided several race-
neutral reasons for striking the juror. The Government noted that the juror may have had
a liberal bias based on being a state employee, had only recently moved to the city of the
trial, and was relatively uneducated. “[T]he Supreme Court has purposely set a relatively
low bar at step two . . . . ‘Unless a discriminatory intent is inherent in the prosecutor’s
2
Because the Government offered several race-neutral reasons for the strike and
the District Court proceeded to a full Batson analysis, the issue of whether Appellant
made a prima facie showing of racial discrimination is moot. See Johnson v. Love, 40
F.3d 658, 663–64 (3d Cir. 1994) (citing Hernandez v. New York, 500 U.S. 352, 359
(1991)).
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explanation, the reason offered will be deemed race neutral.’” Hardcastle v. Horn, 368
F.3d 246, 257 (3d Cir. 2004) (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per
curiam)). The Government’s asserted reasons are not inherently discriminatory and thus
satisfy step two.
Finally, at step three, the District Court did not abuse its discretion in determining
that the Government advanced non-pretextual, race-neutral reasons in support of the
strike. In this context, we afford the trial court’s determination considerable deference
because it depends in large part upon the credibility of the attorney exercising the strike.
Forrest v. Beloit Corp., 424 F.3d 344, 350 (3d Cir. 2005) (citing United States v. Casper,
956 F.2d 416, 419 (3d Cir. 1992)). We will not reverse the trial court’s determination
“‘unless it is completely devoid of minimum evidentiary support displaying some hue of
credibility.’” Id. (quoting United States v. Milan, 304 F.3d 273, 281 (3d Cir. 2002)). In
light of the juror’s statements that she was a state employee, typist, and had only recently
moved to Harrisburg, we cannot say that the District Court clearly erred in determining
that the Government’s asserted reasons for the strike were not pretextual.
Thus, the District Court properly concluded that the peremptory strike was not
race-based and therefore did not violate the Fourteenth Amendment.
B. Gender-based challenge
Appellant did not raise a contemporaneous Batson objection on the basis of
gender. Accordingly, we will review for plain error. See Gov’t of Virgin Islands v.
Forte, 806 F.2d 73, 75–76 (3d Cir. 1986) (objection must be made contemporaneously or
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at the close of voir dire in order to preserve Batson claim); United States v. Heron, 721
F.3d 896, 901–02 (7th Cir. 2013) (race-based Batson objection did not preserve religion-
based Batson claim and plain error applied). To prevail, Appellant must show that the
error “is plain, . . . affected his substantial rights, and . . . would seriously affect the
fairness, integrity or public reputation of judicial proceedings.” United States v. Ward,
626 F.3d 179, 183 (3d Cir. 2010) (citing United States v. Russell, 564 F.3d 200, 203–04
(3d Cir. 2009)).
We have recognized that the strike of a juror motivated in part by an
impermissible reason—like gender—may nevertheless be valid if the prosecutor
demonstrates that it would have taken the same action in the absence of the impermissible
motivation. Gattis, 278 F.3d at 234–35. The District Court specifically found that the
Government would have struck the potential alternate juror even in the absence of any
gender-related reason and that the Government’s impermissible gender-based
consideration was “strictly de minimus.” App. 128–29. In light of the Government’s
proffered gender and race-neutral reasons for the strike, we discern no error in the
District Court’s determination that the peremptory strike was valid.
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s judgment of
conviction.
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