United States v. J.B. Brown

In the

United States Court of Appeals

For the Seventh Circuit

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No. 14-3652

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

J.B. BROWN, JR.,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Central District of Illinois, Urbana Division.

No. 14-CR-20007 — Colin S. Bruce, Judge.

____________________

ARGUED NOVEMBER 12, 2015 — DECIDED JANUARY 4, 2016

____________________

Before BAUER, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge. During jury selection for defendant

J.B. Brown’s trial, the government used a peremptory strike to

remove one of the two African American members of the ve-

nire. Brown objected under Batson v. Kentucky, 476 U.S. 79

(1986), and the government proffered a race-neutral justifica-

2 No. 14-3652

tion for the strike. The district court found that the govern-

ment’s justification was sincere and rejected Brown’s Batson

challenge. Following trial, the jury found Brown guilty.

On appeal, Brown argues that the district court improp-

erly rejected his Batson challenge. Accordingly, he claims that

he is entitled to a reversal of his conviction. We disagree and

affirm the judgment of the district court.

I. Background

On June 26, 2013, Brown was arrested after making a con-

trolled purchase of heroin. Police found Brown at his resi-

dence with over 100 grams of heroin, a loaded semi-automatic

pistol, drug trafficking items, and more than $4,000 in cash.

During interrogation, Brown admitted on videotape that he

possessed both the heroin and the firearm.

Brown was charged in the Central District of Illinois with

possession of 100 grams or more of heroin with intent to dis-

tribute pursuant to 21 U.S.C. § 841 and with possession of a

firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Brown

pled not guilty and requested a jury trial.

Jury selection took place on July 29, 2014. The panel con-

sisted of twenty-eight potential jurors and four potential al-

ternates. Two members of the panel were African American.

Prior to jury selection, the panel members had completed

questionnaires. These questionnaires asked a number of

standard questions, including questions about age, residence,

education, and relationship with law enforcement. The ques-

tionnaires also asked “the arrest questions”:

39. Have you, any member of your family or

close friend(s) ever been arrested, prosecuted or

convicted of a criminal offense

No. 14-3652 3

40. If your answer is yes, state who and what of-

fense was charged, and the outcome

The questionnaires did not ask about race. Both Brown and

the government had an opportunity to review the panel’s re-

sponses prior to jury selection.

That same day, the potential jurors came before the district

court. The court asked the panel a number of questions. Jury

selection moved quickly. Although the district court offered

both parties the opportunity to ask individual follow-up

questions, neither party asked any questions.

Following questioning, and outside the presence of the ve-

nire, the government exercised its peremptory strikes. After

the government used its fifth peremptory strike against Juror

74, an African American, Brown objected. The government

proffered a race-neutral justification for the strike. The gov-

ernment pointed to Juror 74’s response to the arrest questions,

to which he answered, “Yes. Warrant for my arrest, wrong

person.” The government claimed that this response “jumped

out to us as a person … who would be thought to have bias

against law enforcement,” thus justifying the strike. The gov-

ernment claimed that Juror 74 was on its “list” of potential

strikes prior to even seeing the venire.

The district court found that the government had prof-

fered a race-neutral justification. But Brown contended that

the government was being insincere. He pointed out that the

government did not ask about Juror 74’s arrest during jury se-

lection when his response “could have been clarified.” The

government claimed that it did not want to address the issue

in front of the other potential jurors, to which Brown re-

sponded that the government could have taken a sidebar.

4 No. 14-3652

Brown emphasized that, as a result of the strike, the govern-

ment left only one African American on the panel.

The district court accepted the government’s proffered jus-

tification and rejected Brown’s objection. It found that the jus-

tification was corroborated by Juror 74’s questionnaire. The

court also concluded that the government was sincere and

was not trying to deceive the court as to its real motive for the

strike.

Later in the proceedings, at the government’s request, the

district court revisited Brown’s Batson challenge. The govern-

ment asserted that it had reviewed all of the questionnaires

and that Juror 74 was the only one to indicate that he had been

falsely arrested. The court stated that it had also reviewed the

juror questionnaires and agreed with the government. The

court asked Brown whether he agreed with the government’s

analysis of the questionnaires and he responded, “I don’t

doubt it.”

After a two-and-a-half day trial, the jury convicted Brown

of both counts. The court sentenced him to 174 months’ im-

prisonment. This appeal followed.

II. Discussion

Batson v. Kentucky establishes a three-step framework for

challenging a peremptory strike. 476 U.S. 79 (1986). First, the

defendant must make out a prima facie case that a strike was

exercised on the basis of race. Id. at 94. Second, the govern-

ment must articulate a race-neutral justification for the strike.

Id. at 97. Third, the trial court must determine whether the de-

fendant has shown purposeful discrimination. Id. at 98.

We review a district court’s Batson findings for clear error.

United States v. Yarrington, 640 F.3d 772, 778 (7th Cir. 2011). We

No. 14-3652 5

give substantial deference to a district court’s credibility de-

terminations. Id. at 779. However, where the plaintiff alleges

that the district court committed legal error by conducting a

Batson inquiry improperly, our review is de novo. United

States v. McMath, 559 F.3d 657, 663 (7th Cir. 2009).

In response to Brown’s Batson objection, and without re-

quiring Brown to establish a prima facie case, the government

proffered a race-neutral justification for striking Juror 74: The

juror was potentially biased against law enforcement as a re-

sult of his wrongful arrest. The district court determined that

this justification was credible and that Brown failed to show

purposeful discrimination.

The gravamen of Brown’s argument on appeal is that the

government applied its race-neutral justification inconsist-

ently, thus demonstrating that the justification was pretextual.

According to Brown, the government’s justification—poten-

tial bias against law enforcement—applied equally well to

three other potential jurors based on their responses to the ju-

ror questionnaire. Yet, the government did not strike these ju-

rors. In particular, Juror 81 stated that he had been arrested

for assault but that the charges were dropped. Juror 3 stated

that he had been charged and convicted for driving under the

influence. And Juror 13 did not respond to the arrest ques-

tions at all. Brown insists that these responses showed as

much potential for bias against law enforcement as Juror 74’s

response.

Brown makes two related arguments based on the re-

sponses of these three other potential jurors. First, Brown con-

tends that the district court did not consider the responses of

Jurors 81, 3, and 13 in finding that the government’s race-neu-

tral explanation was credible. Accordingly, Brown claims that

6 No. 14-3652

the district court did not consider all material evidence in

evaluating his Batson challenge.

“[A]ll of the circumstances that bear upon the issue of ra-

cial animosity must be consulted” in conducting a Batson in-

quiry. Snyder v. Louisiana, 552 U.S. 472, 478 (2008); see also

United States v. Stephens, 514 F.3d 703, 712 (7th Cir. 2008)

(“[W]e cannot defer to a district court decision that ignores

material portions of the record without explanation.”). Alt-

hough Brown would have us believe otherwise, the district

court did consider the questionnaires of the three other poten-

tial jurors. When the government stated that it had reviewed

all of the questionnaires and that Juror 74 was the only poten-

tial juror who indicated that he had been falsely arrested, the

court responded that it too had “reviewed all … the juror in-

formation sheets, and that is a correct statement.” Therefore,

the court did consider all of the material evidence in conduct-

ing its Batson inquiry.

Brown maintains that the district court erred because it

did not consider his comparison argument—that three other

jurors were similarly situated to Juror 74. But the court is not

required to anticipate arguments based on that evidence. It is

the defendant’s burden to raise specific arguments that the

government’s justification was pretextual so that the court can

properly address them. See United States v. Hendrix, 509 F.3d

362, 371 (7th Cir. 2007) (rejecting the defendant’s Batson argu-

ment in part because he “did not challenge the prosecution’s

explanations during voir dire, nor did he offer any reasons for

the court to cast doubt on the explanations for the strikes …

where the court could have addressed any concerns”). Brown

cannot demonstrate that the district court erred by alleging

that it failed to consider an argument he never raised.

No. 14-3652 7

Second, Brown argues that the government’s use of a strike

against Juror 74 but not Jurors 81, 3, or 13, demonstrates that

its proffered justification was pretextual. 1 Both the Supreme

Court and this Court have approved of the use of side-by-side

comparisons to show that a proffered justification was in fact

pretextual. See, e.g., Miller-El v. Dretke, 545 U.S. 231, 241 (2005);

Stephens, 514 F.3d at 711. However, the jurors that Brown

points to were not similarly situated to Juror 74. With regard

to Juror 81, having charges dropped is distinguishable from

being wrongly arrested. The fact that charges are dropped

does not affirmatively suggest innocence in the way a wrong-

ful arrest does. Additionally, Juror 81 indicated that he had

relatives in law enforcement, whereas Juror 74 did not.

As for Juror 3, being charged and convicted is readily dis-

tinguishable from being wrongly arrested. A conviction indi-

cates guilt, whereas a wrongful arrest indicates innocence.

Moreover, Juror 3 had been the victim of the crime while Juror

74 had not and Juror 3 had previously served on a state grand

jury while Juror 74 had not.

Finally, regarding Juror 13, a blank response does not af-

firmatively suggest bias against law enforcement. More prob-

lematically, Juror 13 was the only other African American on

the venire. A side-by-side comparison of two African Ameri-

cans, one who is allowed to serve as a juror and one who is

1 The government argues that Brown forfeited this argument because

he never raised these comparisons before the district court. Nevertheless,

Snyder suggests that “a retrospective comparison of jurors based on a cold

appellate record” is permissible in at least some circumstances. 552 U.S. at

483. And because we conclude that the substance of Brown’s comparison

argument lacks merit, we need not address the government’s forfeiture

argument.

8 No. 14-3652

struck, does not support a finding of pretext. See Miller-El, 545

U.S. at 241 (approving of comparisons between “a black pan-

elist” and “an otherwise-similar nonblack who is permitted to

serve” (emphasis added)). In fact, Brown’s argument actually

cuts against him—if the government had intended to discrim-

inate, it may well have struck Juror 13 as well as Juror 74. See

United States v. Cruse, 805 F.3d 795, 808–09 (7th Cir. 2015) (not-

ing that the racial makeup of the final jury panel is relevant in

assessing the government’s intent). In sum, Brown has not

shown that the government’s justification of potential bias

against law enforcement “applies just as well to an otherwise-

similar nonblack [panelist] who is permitted to serve … .”

Miller-El, 545 U.S. at 241.

Next, Brown argues that if the government was truly con-

cerned that Juror 74 was biased against law enforcement, it

should have asked him a follow-up question during the voir

dire. As an initial matter, we are skeptical as to whether the

failure to ask a follow-up question in this case suggests pre-

text. The jury selection process moved quickly and neither

counsel asked any questions. Thus, it appears likely that the

government did not want to interrupt the flow of the proceed-

ing, not that it was trying to deceive the court. Additionally, it

is difficult to see how follow-up questions would have clari-

fied Juror 74’s response in any meaningful way. Perhaps fur-

ther questioning could have revealed the nature of Juror 74’s

wrongful arrest or ensured that Juror 74 understood the arrest

questions properly. But Juror 74’s response was clear enough

on its face that it is unlikely that further questions would have

changed the government’s impression that Juror 74 poten-

tially harbored bias against law enforcement.

No. 14-3652 9

Even assuming arguendo that the government’s failure to

ask Juror 74 follow-up questions did constitute evidence of

pretext, Brown presented this exact same argument to the dis-

trict court. Yet, the court credited the government’s race-neu-

tral explanation over Brown’s argument. In particular, the

court read Juror 74’s responses and found “that [the response]

does not require any clarification.” And the court concluded

that the government’s justification was sincere. Brown has not

offered any reason for us to second guess the district court’s

credibility finding on appeal. See Yarrington, 640 F.3d at 780.

Thus, the district court did not clearly err.

Finally, Brown suggests that the government’s proffered

justification for the strike—bias against law enforcement—is

not race-neutral because African Americans are dispropor-

tionately affected by negative interactions with law enforce-

ment. Even accepting the premise of this argument, it does

not support a finding of pretext. Batson protects against inten-

tional discrimination, not disparate impact. See Cruse, 805 F.3d

at 806 (“[D]efendants must show that the government used its

peremptory strikes with discriminatory intent; disparate im-

pact does not violate the Equal Protection Clause.” (citation

omitted)). Moreover, we have acknowledged that bias against

law enforcement is a legitimate race-neutral justification. See,

e.g., United States v. Smallwood, 188 F.3d 905, 915 (7th Cir. 1999).

Therefore, we conclude that the district court correctly

conducted the Batson inquiry and did not clearly err in dis-

missing Brown’s challenge.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.