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