United States v. Stephens, Wayne

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