United States v. Jackson

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Jackson No. 02-3583 ELECTRONIC CITATION: 2003 FED App. 0371P (6th Cir.) File Name: 03a0371p.06 Guerrier, UNITED STATES ATTORNEY, Dayton, Ohio, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X JULIA SMITH GIBBONS, Circuit Judge. Defendant- appellant Shawn Jackson was convicted of one count of post Plaintiff-Appellee, - office robbery in violation of 18 U.S.C. § 2115. During jury - - No. 02-3583 selection, the government exercised a peremptory challenge v. - to exclude Anthony Turner, who at the time was the only > African-American on the jury panel. Jackson did not object , to the government’s decision to strike Turner until the jury SHAWN JACKSON , - Defendant-Appellant. - and two alternates were selected. The district court asked the government for an explanation for its decision to strike N Turner, and Jackson did not argue that the proffered Appeal from the United States District Court explanation was a pretext for discrimination. The district for the Southern District of Ohio at Dayton. court found that the government offered a race-neutral No. 01-00070—Walter H. Rice, Chief District Judge. explanation and overruled Jackson’s objection. Jackson now appeals this ruling, as well as the district court’s refusal to Argued: September 11, 2003 give the jury instructions he requested regarding his theory of the defense and the reliability of certain identification Decided and Filed: October 20, 2003 testimony offered at his trial. For the following reasons, we affirm the judgment of the district court. Before: NELSON, GIBBONS, and SUTTON, Circuit Judges. I.

_________________ On August 28, 2001, Jackson was indicted by a federal grand jury in the Southern District of Ohio for one count of COUNSEL post office robbery in violation of 18 U.S.C. § 2115. The indictment alleged that on May 24, 2001, Jackson robbed a ARGUED: Richard W. Smith-Monahan, OFFICE OF THE United States post office in Dayton, Ohio, of approximately FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for $1,333.00. Jackson’s trial began on November 5, 2001. Appellant. Mona Guerrier, UNITED STATES ATTORNEY, During voir dire, the district court asked the potential jurors Dayton, Ohio, for Appellee. ON BRIEF: Richard W. Smith- to indicate if they had ever been government employees, and Monahan, OFFICE OF THE FEDERAL PUBLIC if so, whether their government service would affect their DEFENDER, Cincinnati, Ohio, for Appellant. Mona ability to serve as a juror. Anthony Turner, juror number 41,

1 No. 02-3583 United States v. Jackson 3 4 United States v. Jackson No. 02-3583

responded by saying, “I served in the United States Air Force Jackson did not object to that ruling or request a more for twenty years. And that would not affect my participation detailed record of the judge’s rationale. in the court.” The government did not ask Turner any follow- up questions to his response. On the third day of trial, the government revisited the issue of Jackson’s Batson objection in a conference with the district Nonetheless, the government later exercised a peremptory court judge. The government’s lead counsel, Mona Guerrier, challenge to exclude Turner. At the time, Turner was the only volunteered that she was the one who initially felt African-American on the jury panel. Jackson did not raise an uncomfortable with Turner’s demeanor and she also indicated objection to the government’s peremptory challenge until for the record that she is an African-American. The court after the jury and two alternates were selected. Counsel for indicated that her explanation could not be considered Jackson did not object earlier because he believed that Turner because it was being offered three days into the trial. Once had no chance of being on the panel, but once the selection again, at the conclusion of the government’s comments, process was over it became clear that Turner would have been Jackson made no additional objections or arguments with an alternate if the government had not struck him from the respect to the Batson issue. panel. In accordance with the Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986), the court asked the The evidence presented at trial established that on the day government to give its reasons for the challenge. In response, of the robbery, Jackson went to the Dayton post office with Assistant United States Attorney Richard Chema stated that: his girlfriend’s brother, Tim Anderson. While in the post office, Jackson observed a transaction involving The gentleman was unresponsive . . . to a question of the approximately $1,900.00. As he was leaving, Jackson told Court. The Court asked . . . if anyone had been involved Anderson that he had “cased [his] spot.” According to in the government and [would that] in some way affect Anderson, at the time Jackson was wearing a dark-colored your ability to serve on the jury. He stood up and said, windbreaker, dark pants, white tennis shoes, and a baseball he was in the Air Force for 21 years and retired from the cap with a New York logo on it. After visiting the post Air Force and that wouldn’t affect him. office, Jackson borrowed a red and white bicycle from his friend Tony Harris. Counsel for the government, both Miss Guerrier and myself believe that this gentleman wanted to get up and Barbara Barnett, a postal clerk, testified that on May 24, give a speech for one reason or another. The government 2001, a black male between the ages of eighteen and twenty, didn’t like the kind of attitude that we believe he was wearing a New York baseball hat and a dark jacket putting forth and his demeanor. That’s the reason the approached the counter and gave her a note stating, “Hand me strike was made. your cash. I have a gun.” She then “looked at him in the eyes and said, ‘Are you sure you really want to do this?’” The Jackson did not object to the government’s proffered robber became angry and leaned toward her and said “give me explanation, nor did he argue that it was a pretext for the damn cash.” During this exchange, Barnett noticed that discriminatory animus. The district court concluded that the the robber had a gap between his front teeth. Barnett then government had offered a legitimate, non-discriminatory gave him the cash from her drawer. reason in response to Jackson’s Batson challenge, and No. 02-3583 United States v. Jackson 5 6 United States v. Jackson No. 02-3583

Shortly after the robbery, Barnett viewed a photo line-up acquaintances of Shawn Jackson had motivations which and identified Jackson as the robber. Barnett indicated that show they were being untruthful. she was sixty to seventy percent sure of her identification. At trial, Barnett again identified Jackson as the robber. During The district court declined this request because it found that her testimony, Jackson was asked to smile and expose his the instruction was unnecessary and not required by law. teeth to Barnett and the jury, and Barnett confirmed that Jackson had a gap between his front teeth. Jackson also requested the following instruction regarding some of the identification testimony that had been offered at The government produced additional eyewitness testimony his trial: that was incriminating to Jackson. Brian Butterbaugh, the other postal clerk on duty on the day of the robbery, testified You have heard the testimony of Barb Barnett and that he observed a gap between the robber’s two front teeth Catherine Green, who have identified the defendant as when the robber approached his window at the post office. the person who robbed the post office. You should Catherine Green, a customer who was at the post office on the carefully consider whether this identification was day of the robbery, testified that she saw a red bike by the accurate and reliable. door of the post office when she entered. Green further testified that she had observed a black male wearing a dark The proposed instruction also set forth factors that Jackson jacket and a dark hat reposition himself at the back of the line wanted the jurors to consider in determining whether the several times for no apparent reason. After completing her identification was accurate and reliable. The district court transaction at the postal window, she observed the same man again declined to give the instruction, stating: “My concern exiting the post office, and she saw him jump on the red is that I think the accuracy of the identification can be argued bicycle and ride away very fast. She also identified Jackson under credibility. I don’t think a separate instruction is as the man she saw at the post office riding away on the bike. necessary.” The court did provide a general instruction to the Several of Jackson’s acquaintances testified that Jackson had jury on assessing the credibility of each witness: a gap between his front teeth. Jackson’s girlfriend testified that he owned clothes matching the description provided by Consider carefully the circumstances under which each the postal clerks and confirmed that he was wearing those witness testified. Remember the witness’s response to clothes on the day of the robbery. During the course of the questions, his or her assurance or lack of it in answering, trial, the government presented additional circumstantial and the entire demeanor or appearance of that witness evidence suggesting that Jackson had committed the robbery. while on the witness stand.

At the close of the trial, Jackson submitted several proposed Consider also any relation that a witness may bear to jury instructions. Specifically, Jackson requested the either side of the case and his or her reasons for following instruction on his theory of defense: testifying, any interest he or she may have in the outcome of the case. Any prejudice or bias he or she may have The defense says that Shawn Jackson was misidentified shown including any reason or motivation to bear as the robber of the post office by the witnesses who hostility or animosity toward a party and any partiality he were there that day. The defense further says that the or she may have demonstrated. No. 02-3583 United States v. Jackson 7 8 United States v. Jackson No. 02-3583

On November 9, 2001, the jury returned a guilty verdict. persuasive, or even plausible, so long as it is neutral.” Id. at On May 15, 2002, the district court sentenced Jackson to 521 (citing United States v. Harris, 192 F.3d 580, 586 (6th ninety-six months incarceration, three years supervised Cir. 1999)). Once a race-neutral explanation is produced, the release, and one hundred hours of community service. In complaining party must prove purposeful discrimination. addition, Jackson was ordered to pay restitution to the United Batson, 476 U.S. at 98. Purposeful discrimination may be States Postal Service in the amount of $613.00 and a special shown by demonstrating that the proffered explanation is assessment of $100.00. On May 21, 2002, Jackson filed this merely a pretext for racial motivation. McCurdy, 240 F.3d at timely appeal. 521. Throughout the Batson inquiry, the ultimate burden of persuasion always rests with the party challenging the strike. II. Id.; see also United States v. Mahan, 190 F.3d 416, 424 (6th Cir. 1999). A district court’s ruling on whether the exercise A. Jackson’s Batson Objection of a peremptory challenge violates equal protection is entitled to great deference and will not be reversed unless it is clearly Jackson argues that the government violated his right to erroneous. United States v. Buchanan, 213 F.3d 302, 308-09 equal protection when it used a peremptory challenge to strike (6th Cir. 2000). Turner, the only remaining African-American member of the jury panel. After counsel for Jackson raised a Batson In the instant case, the district court asked the government objection to the government’s peremptory challenge, the for an explanation for its decision to strike Turner without district court required the government to state its reasons for considering whether Jackson had established a prima facie excluding Turner on the record. Counsel for the government case.1 However, once a party offers a race-neutral indicated that he struck Turner from the panel because he did explanation for a peremptory challenge and the trial court has not like his demeanor and “attitude.” The district court ruled on the ultimate question of intentional discrimination, concluded that the government had offered a legitimate, non- “the preliminary issue of whether the defendant [has] made a discriminatory reason for the challenge and overruled prima facie showing of intentional discrimination becomes Jackson’s objection. moot.” Hernandez v. New York, 500 U.S. 352, 359 (1991); Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d The Equal Protection Clause prohibits a party from using 776, 780 (6th Cir. 2003). Thus, we need not consider whether peremptory challenges to exclude members of the venire on Jackson has established a prima facie showing that the account of their race. Batson v. Kentucky, 476 U.S. 71, 79 peremptory challenge was based on race. (1981); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 630-31 (1991) (extending Batson to civil cases). In The second step in the Batson inquiry is to assess whether order to establish an equal protection violation under Batson, the government articulated a race-neutral explanation for its the complaining party must first make a prima facie showing decision to strike Turner from the panel. A district court must that the peremptory challenge was based on race. McCurdy v. Montgomery County, 240 F.3d 512, 521 (6th Cir. 2001). If the complaining party establishes a prima facie case, the 1 burden of persuasion then shifts to the party making the strike In Mahan, however, this court held that a party’s use o f a to articulate a race-neutral explanation for removing the juror peremptory challenge to strike the only prospective black juror was “more in question. Id. This explanation “need not be particularly than sufficient to establish a prim a facie case of intentional discrimination.” 190 F.3d at 424-25. No. 02-3583 United States v. Jackson 9 10 United States v. Jackson No. 02-3583

independently assess a race-neutral explanation and explicitly court’s ruling or attempt to rebut the government’s proffered rule on its credibility, “particularly in cases when the explanation by arguing that it was a pretext for purported race-neutral justification is predicated on subjective discrimination. On appeal, Jackson argues that the totality of explanations like body language or demeanor.” McCurdy, the information available to the district court at the time the 240 F.3d at 521. It is inappropriate for a district court to strike was made indicated that the government’s peremptory perfunctorily accept a race-neutral explanation without challenge was based on a discriminatory purpose. engaging in further investigation. Id. at 520-21. However, “it Specifically, Jackson now objects to the district court’s failure is the defendant’s burden to rebut, to whatever extent to weigh the credibility of the government’s explanation on possible, the prosecutor’s reasons for exercising his or her the record. He also argues for the first time on appeal that the peremptory strikes on the record at the time such reasons are proffered explanation lacked credibility because the proffered.” United States v. Harris, No. 00-3474, 2001 WL government failed to strike similarly-situated white jurors. 873642, at *3 (6th Cir. July 26, 2001). If a defendant fails to Because Jackson failed to rebut the government’s explanation rebut a race-neutral explanation at the time it was made, the at the time it was made, we review the district court’s ruling district court’s ruling on the objection is reviewed for plain on his objection for plain error. error,2 United States v. Wilson, No. 99-2280, 2001 WL 549446, at *2 (6th Cir. May 14, 2001), and the movant in this A peremptory challenge is not unconstitutional solely setting is in no position to register a procedural complaint that because it has a racially disproportionate impact. Some proof the district court failed to give a specific reason on the record of racially discriminatory intent or purpose is required in for accepting the government’s race-neutral explanation. A order to show a violation of the Equal Protection Clause. movant’s failure to argue pretext may even constitute waiver Hernandez, 500 U.S. at 360 (citing Arlington Heights v. of his initial Batson objection. Davis v. Baltimore Gas & Metro. Hous. Dev. Co., 429 U.S. 252, 264-64 (1977)). In the Elec. Co., 160 F.3d 1023, 1027 (4th Cir. 1998); United States Batson context, a party’s explanation for its decision to strike v. Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir. 1996); is “neutral” if it is based on something other than the race of Hopson v. Frederickson, 961 F.2d 1374, 1377 (8th Cir. 1992); the juror. Id. In the absence of discriminatory intent inherent United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990). in the explanation, the reason offered is deemed race neutral. Id. The district court concluded that the government had come forward with a legitimate, non-discriminatory reason for its There was no evidence of discriminatory intent inherent in peremptory challenge, and Jackson did not object to the the government’s proffered explanation in this case, and Jackson made no attempt to argue to the district court that the explanation was a pretext for discrimination. Furthermore, 2 Jackson has not asserted any arguments on appeal that suggest W hen an appellant fails to make an objection in the trial court, the the district court plainly erred by overruling his objection. objection is deem ed forfeited, and thus non-cognizable upon appellate review, unless the assailed action of the trial court constituted plain error. Jackson contends that the government’s failure to strike Fed. R. Crim. P. 52(b). To establish plain error, the appellant must show similarly-situated white jurors from the panel should have (1) that an error occurred in the district court; (2) that the error was plain, signaled to the district court that the government had a i.e., obvious or clear; (3) that the error affected an appellant’s substantial discriminatory purpose when it struck Turner from the panel. rights; and (4) that this adverse impact seriously affected the fairness, In fact, all of the “similarly-situated” white jurors Jackson integrity or public reputation of the judicial pro ceed ings. United States v. Ko eberlein, 161 F.3d 94 6, 949 (6th Cir. 1998). points to in his brief were responding to a different question No. 02-3583 United States v. Jackson 11 12 United States v. Jackson No. 02-3583

from the one Turner was answering when he made the with his opening statement that “this case is really about statement that caused the government to object to his presence mistaken identity and hidden motivations.” During cross- on the panel. Turner was responding to a question about examination, defense counsel questioned the government’s previous government employment, while the jurors cited in witnesses at length regarding how much time each had spent Jackson’s brief were responding to questions about their actually looking at the defendant, the distance at which each experiences with law enforcement. Jackson did not attempt of them had viewed the defendant, and any distractions or to rebut the government’s explanation by offering additional memory lapses that might have impacted their observations. evidence and did not otherwise indicate a continuing When defense counsel gave his closing argument, he spent objection. The district court could have construed Jackson’s considerable time emphasizing these same points, as well as failure to respond to the government’s explanation as an the defense’s theory that the government’s witnesses had indication that he no longer disputed the strike. See Rudas, mistaken Jackson for Tony Harris on the day of the robbery. 905 F.2d at 41. The burden was on Jackson as the party The district court specifically instructed the jury to consider challenging the strike to prove the existence of purposeful “any bias or prejudice” a witness may have had when discrimination, and when faced with the government’s testifying, including “any reason or motivation to bear seemingly race-neutral explanation, Jackson made no hostility or animosity toward any party.” In short, the failure response. Under these circumstances, the district court did to give this instruction did not substantially impair Jackson’s not plainly err in overruling Jackson’s Batson objection. defense because the jury was already well aware of his theory of the case. See United States v. Covington, 2001 WL B. Jackson’s Proposed Jury Instructions 302067, at *2 (6th Cir. March 21, 2001); United States v. Laury, 49 F.3d 145, 152 (5th Cir. 1995). Jackson’s second contention on appeal is that the district court erred by refusing to provide the jury with instructions Jackson also requested more detailed instructions on on his theory of the defense and on the reliability of identification testimony, including a set of factors for the jury identification testimony offered at his trial. A district court’s to use in determining whether an identification is accurate and refusal to deliver a requested jury instruction amounts to reliable. The district court overruled Jackson’s request and reversible error only if the instruction (1) is a correct gave the jury a general credibility instruction to consider “the statement of the law; (2) was not substantially covered by the circumstances under which each witness testified,” as well as charge actually delivered to the jury, and (3) concerns a point the “entire demeanor or appearance” of each witness. so important in the trial that the failure to give it substantially Identification instructions are within the discretion of the trial impairs the defendant’s defense. United States v. Gibbs, 182 court; they need only be given if there is a danger of F.3d 408, 432 (6th Cir. 1999). misidentification due to a lack of corroborating evidence. United States v. Boyd, 620 F.2d 129, 131-32 (6th Cir. 1980). At the close of the trial, Jackson asked the district court to Jackson’s identification was not uncorroborated. Two instruct the jury that “[t]he defense says that Shawn Jackson eyewitnesses identified him as the robber, and evidence was was misidentified as the robber of the post office by witnesses presented indicating that on the day of the robbery he was who were there that day” and that “the acquaintances of wearing the same clothes as those worn by the culprit and that Shawn Jackson had motivations which show they were being he had possession of a bicycle matching the description of the untruthful.” Counsel for Jackson repeatedly emphasized one used by the robber when he left the post office. Once these theories to the jury throughout the entire trial, beginning again, defense counsel discussed at length throughout the trial No. 02-3583 United States v. Jackson 13

the accuracy and reliability of the identification testimony offered by the government, so it cannot be said that the district court’s failure to give Jackson’s proposed instruction substantially impaired his defense. III. For the foregoing reasons, we affirm the judgment of the district court.