United States v. Kaboni Savage

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-9003

_____________

UNITED STATES OF AMERICA

v.

KABONI SAVAGE,

a/k/a Joseph Amill,

a/k/a Bonnie,

a/k/a Yusef Billa,

agent of Dirt,

agent of Bighead,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-07-cr-00550-003

District Judge: The Honorable R. Barclay Surrick

Argued January 7, 2020

Before: SMITH, Chief Judge, JORDAN, and FUENTES,

Circuit Judges

(Filed: August 11, 2020)

David E. Troyer

Robert A. Zauzmer [ARGUED]

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Madeline S. Cohen

1942 Broadway

Suite 314

Boulder, CO 80302

Barry J. Fisher

Office of Federal Public Defender

39 North Pearl Street

5th Floor

Albany, NY 12207

Lawrence S. Lustberg [ARGUED]

Gibbons

One Gateway Center

Newark, NJ 07102

Counsel for Appellant

Geoffrey M. Wyatt

Skadden Arps Slate Meagher & Flom

1440 New York Avenue, N.W.

2

Washington, DC 20005

Counsel for Amicus Appellant

________________

OPINION OF THE COURT

________________

SMITH, Chief Judge.

TABLE OF CONTENTS

I. Introduction ...................................................................... 4

II. Factual Background .......................................................... 5

III. Procedural History .......................................................... 12

IV. Gaps in the Record ......................................................... 15

V. Substitution of Counsel .................................................. 27

VI. Vicinage Challenge......................................................... 47

VII. Fair-Cross-Section Challenge ........................................ 51

VIII. Batson Objection .......................................................... 73

IX. Transferred Intent Instruction ......................................... 98

X. Lay Opinion Instruction ............................................... 123

XI. Penalty-Phase Proceedings ........................................... 134

A. Background ................................................................. 135

B. The Government permissibly argued that Savage posed

a risk of future dangerousness. ........................................ 141

C. The District Court did not plainly err by admitting

victim-impact statements. ................................................ 159

3

D. The District Court’s admission of autopsy photographs

offered to support the “especially heinous, cruel, or

depraved” aggravator was not improper. ......................... 169

E. The Government’s argument against the “equally

culpable” mitigator did not violate the Fifth or Sixth

Amendments. ................................................................... 176

F. The Government properly rebutted the mitigators

relating to Savage’s relationship with his family. ........... 184

G. The verdict sheet’s format did not violate the Eighth

Amendment...................................................................... 196

XII. Conclusion ................................................................... 200

I. INTRODUCTION

Kaboni Savage led a regional drug trafficking operation

in North Philadelphia referred to at trial as the Kaboni Savage

Organization (KSO). The KSO distributed large quantities of

controlled substances and, not surprisingly, fiercely protected

its network and territory through the use of guns and violence.

Threats to the organization, whether perceived or real, were

quickly tamped down or extinguished. Early in the KSO’s

operation, Savage took care of such threats himself, but as his

power grew, his enforcers did his bidding without question.

Even while detained on criminal charges, Savage

continued to manage the affairs of the KSO from his prison

cell. He led by retaliating against those who dared to cooperate

with government agents and prosecutors. What makes this

case stand out is that Savage not only arranged for the murder

4

of the prosecution’s main witness in a murder case; in a later

case, he orchestrated the firebombing of the family home of

another cooperating witness in a fashion that ensured no one

would survive. Eventually, Savage was charged with, inter

alia, a dozen counts of murder in aid of racketeering, among

other serious offenses. The Government sought the death

penalty.

This appeal follows the jury’s guilty verdict on all

charges and the imposition of a sentence of death. For the

reasons that follow, we will affirm.

II. FACTUAL BACKGROUND

Savage began his career in illegal drug trafficking by

selling for others. By the early 1990s, he was peddling

phencyclidine (PCP) on his own, operating predominantly out

of his mother’s house on Darien Street in North Philadelphia.

Before long, he was a distributor selling PCP in various forms,

as well as marijuana. He utilized numerous dealers who

controlled drug corners in the vicinity of Erie Avenue in North

Philadelphia. For a time, he was in a partnership distributing

crack cocaine. But by the late 1990s, Savage had come into

his own. He was “running everything,” A17:8749,1 dealing in

“more than five, six, seven kilos” of cocaine at a time.

A17:8759.

As his cocaine sales increased, Savage began to dilute

the drug and then recompress it to increase the quantity. His

1

The citation to A17:8749 indicates that the quotation is from

the Appendix, Volume 17, Page 8749.

5

profit margin rose accordingly. In the early 2000s, Savage’s

“right-hand man” was Eugene Coleman. A21:10960–61.

Coleman helped distribute cocaine to various individuals in the

“family”—Savage’s distribution network—and also handled

proceeds from the drug sales. A17:8728, 8764. Savage’s inner

circle included “enforcers” who carried out Savage’s

commands without hesitation. Among the enforcers were

Kareem Bluntly and Lamont Lewis. Although loyal to Savage

for a time, Coleman and Lewis eventually cooperated with the

Government prior to their respective guilty pleas in February

2004 and April 2011. Both testified at Savage’s trial about the

operations of the KSO and its use of violence.

And that violence was often deadly. For example, in

March 1998, when Savage was in the vicinity of competitor

Tybius Flowers’s drug corner, a driver by the name of Kenneth

Lassiter accidentally bumped into Savage’s car. A

confrontation ensued and Savage demanded that Lassiter pay

for the damage. Despite Lassiter’s apology, Savage “pulled a

gun out . . . and shot him once.” A13:6461. Lassiter died from

the gunshot wound. Flowers witnessed the murder.

More violence followed. Mansur Abdullah belonged to

the Savage “family,” and he and Savage would supply each

other with cocaine. It was Savage who first taught Abdullah

how to dilute and recompress cocaine, which eventually raised

the suspicion in Savage’s mind that Abdullah was

overcharging him. In September 2000, Abdullah visited

Savage to collect a debt. Savage paid him with cash placed in

a red sneaker box. He then directed Kareem Bluntly to

accompany Abdullah back to his home, ostensibly to provide

protection because of robberies that had recently taken place.

6

Bluntly was armed. Coleman was directed to pick up Bluntly

soon afterward. When Coleman and Bluntly returned a half-

hour later, Bluntly handed Savage the red sneaker box with the

cash still inside. Although Bluntly had carried out the

instruction to shoot Abdullah, he was unsure if Abdullah was

actually dead. Savage instructed Coleman to find out.

Coleman followed orders and later confirmed that he saw

Abdullah “keeled over” in his car. A17:8823. Philadelphia’s

assistant medical examiner determined that the cause of death

was multiple gunshot wounds to the head, chest and abdomen.

Carlton Brown was another victim of multiple gunshot

wounds to the head and chest. Although Brown was a member

of the Savage family, Savage suspected Brown of killing

Savage’s good friend Ronald Walston. Savage instructed

Lewis that “he ha[d] to do it,” which Lewis understood to mean

he had to kill Brown. A21:10923. Lewis obeyed, and Brown

died.

Lewis also killed Barry Parker at Savage’s direction. It

appeared Parker was attempting to take over Steven

Northington’s drug corner, so Northington complained to

Savage, his supplier. Savage replied to Northington that

“[n]obody come and take nothing. You have to handle your

business. This is what we do.” A17:8850. On February 26,

2003, at Savage’s command, Lewis left Savage’s house with

Northington, who identified Parker at the drug corner. Lewis

then eliminated Northington’s competition by shooting Parker

several times in the chest. Clearly Savage did not hesitate to

protect his organization by killing those who threatened to

interfere with his distribution network.

7

He also had no qualms about murdering those he

believed were cooperating with law enforcement. In March of

2003, Savage suspected that Tyrone Toliver, Coleman’s friend,

was a “snitch.” A17:8873. When Toliver had difficulty filling

a cocaine order, he looked to Savage to supply him. Although

Savage did not have cocaine available, he agreed to help and

directed Coleman to take Toliver to Coleman’s apartment

where the organization regularly recompressed cocaine.

Bluntly arrived at the apartment shortly thereafter. To

Coleman’s surprise, Bluntly shot Toliver in the head. At

Savage’s direction, Bluntly and Coleman disposed of the body.

In addition to the benefit of eliminating someone

Savage thought was a snitch, the Toliver murder allowed

Savage “to put some dirt on” Coleman. A21:10959. Coleman

knew a lot about the KSO’s operations, and “everybody

thought [Coleman] was weak and if he got into some trouble,

he would tell.” A21:10960.

Around this same time, in a further effort to assure the

loyalty of those closest to him and to thwart any thoughts his

allies might have of cooperating with law enforcement,

Savage, along with Lewis and two other high-ranking members

of the KSO, made a pact. In short, the men agreed that if any

one of them cooperated with law enforcement, “our mothers’

lives would be in danger.” A21:10960. Although Coleman

was not present when the deadly pact was made, Savage made

sure that Coleman learned of it.

In 2004, Savage was prosecuted for Lassiter’s murder.

While jailed awaiting trial, Savage continued to intimidate and

threaten others with retaliation if he suspected they were

8

working with the Government. First, Savage set his sights on

eyewitness Tybius Flowers, the prosecution’s main witness.

Savage told Lewis, who was also in jail, that he was not

worried because Flowers “would never make it to court.”

A21:10915. Savage made similar remarks to another prisoner.

Savage’s prophecy came true when Flowers was killed in a

shower of bullets as he sat in his car outside of his aunt’s house

the night before trial. While there were no eyewitnesses,

Northington later told a fellow prisoner of his disdain for

snitches and disclosed that “he [had] slumped [Flowers] and

sent him to rat heaven.” A23:11738–40. Savage, too, revealed

he had played a part in Flowers’s murder, advising the same

fellow prisoner that he had “spanked the case” and would be

released soon. A23:11831.

Savage’s brutal efforts paid off. Lacking Flowers’s

testimony, the prosecution foundered and Savage was

acquitted of Lassiter’s murder. He was released from

Philadelphia County prison on April 8, 2004. But within a

week, federal authorities arrested him on drug trafficking and

other charges.2 Even while detained, Savage continued to

direct the KSO’s operations from his jail cell. He was enraged

that Coleman, who was also in jail, was assisting the

2

A jury ultimately convicted Savage in December 2005 of 14

federal counts related to charges stemming from his role in the

KSO, including conspiracy to distribute cocaine, money

laundering, firearm offenses, and threatening to retaliate

against witnesses. On April 27, 2006, he was sentenced to

thirty years’ imprisonment. We affirmed the conviction and

sentence. See United States v. Walker, 392 F. App’x 919, 921

(3d Cir. 2010).

9

prosecution. Coleman received threats from other inmates who

had connections to the KSO. While in the visiting room of the

prison, Coleman saw Savage’s sister, Kidada Savage. She

encouraged him not to “let these crackers break you.”

A18:8938. Kidada later wrote to Coleman, encouraging him

not to reveal anything to federal agents, closing her letter with

the statement: “Death before Dishonor (to your family).”

A18:8946. Coleman understood that parenthetical to threaten

his personal family, not members of the KSO. Later, when

Coleman was in a holding cell in the federal courthouse,

Savage and one of his associates were placed in an adjacent

cell. Immediately, Savage spoke of killing the “rats” and told

Coleman that his family should die as well. A18:8953–54.

By this time, Savage had instructed Kidada to have

Lewis firebomb Coleman’s family home in retaliation for

Coleman’s cooperation with the Government. In a telephone

call from prison on the evening of October 8, 2004, Savage

spoke with both Kidada and Lewis. Lewis agreed to do

anything Savage ordered, even if it meant “kill[ing] somebody

for him.” A21:10981. After the call concluded, Kidada

relayed to Lewis the directive from Savage to firebomb the

Coleman house. She instructed Lewis to torch the home late

that night when “everybody”—Coleman’s mother and

brother—would be there. A21:10986. Kidada drove Lewis to

the block where Coleman lived and “pointed out the house.”

A21:10988. She also informed him that guns and a pit bull

may be inside. Lewis told Kidada that his cousin, Robert “BJ”

Merritt, would help him. Kidada promised Lewis $5000 for

doing the job.

10

Around 4:00 a.m. the following morning, Lewis and

Merritt took two cans filled with gasoline to Coleman’s house.

Lewis kicked in the door and fired his gun twice. Merritt lit

and threw both cans into the house, causing an explosion. Fire

then ravaged the structure, resulting in the deaths of all six

occupants: Coleman’s mother, Marcella Coleman; his infant

son, Damir Jenkins; his twin-brother’s fifteen-year-old son,

Sean Rodriguez; his sister Regina Nash’s twelve-year-old son,

Tajh Porchea; his cousin, Tameka Nash (whom Coleman

regarded as a sister); and Tameka’s ten-year-old daughter,

Khadijah Nash.

Acting on Kidada’s instruction, Lewis called her and

left a message that Savage’s order had been carried out. It was

not until later that Lewis learned that four children had died in

the fire. When Lewis confronted Kidada about the children in

the house, Kidada responded to Lewis, “F*** ’em.”

A21:11006. Kidada paid Lewis only part of the $5000 he had

been promised. Merritt received a used car and $500.

Subsequent recordings of prison conversations between

Savage and others demonstrated his complicity in the Coleman

firebombing. They also revealed Savage’s great satisfaction

that the killings had taken place, and the intercepted

conversations revealed plans to kill yet other witnesses and

their families. Savage’s continued threats were troubling

enough that in February 2007, the United States Attorney

General authorized the Bureau of Prisons to impose Special

Administrative Measures (SAMs) restricting Savage’s

communications with others, including his family. See 28

C.F.R. § 501.3. In April 2009, an indictment in this case was

returned naming Savage, Lamont Lewis, Robert Merritt and

11

Steven Northington as defendants. United States v. Savage,

No. 2:07-cr-550, ECF 51 (E.D. Pa. Apr. 8, 2009).

III. PROCEDURAL HISTORY

The Fourth Superseding Indictment was later filed in

May 2012 against Savage, Merritt, Northington and Savage’s

sister, Kidada Savage. By the time of trial,3 the charges against

Savage were as follows:

 one count of conspiracy to participate in a

racketeering (RICO4) enterprise, 18 U.S.C. §

1962(d);

 twelve counts of violent crime in aid of racketeering

(VICAR) murder, § 1959(a)(1), for the Lassiter,

Abdullah, Brown, Parker, Toliver, Flowers, and six

arson murders;

 one count of VICAR conspiracy to commit murder,

§ 1959(a)(5), for the conspiracy to commit the arson

murders;

 one count of retaliating against a witness, § 1513, for

the arson murders in retaliation for Eugene

Coleman’s testimony and other cooperation; and

3

Before trial, the District Court dismissed a witness tampering

count under 18 U.S.C. § 1512(a)(1)(A).

4

Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C. §§ 1961–68.

12

 one count of using fire to commit a felony, §

844(h)(1), for the fire used to commit VICAR

murder at the Coleman house.

Shortly after Savage was indicted in 2009, the District

Court appointed Christopher Warren as counsel of record.

Because the charges carried a maximum penalty of death, the

District Court also appointed Timothy Sullivan as learned

capital-qualified counsel pursuant to 18 U.S.C. § 3005.5

Savage sought a replacement for Warren, so in 2010 the

District Court appointed Christian Hoey and allowed Warren

to withdraw. Sullivan’s conditional appointment as a federal

magistrate judge spurred further substitution. In November

2012, the District Court granted Savage’s motion to appoint

additional learned counsel, appointing William Purpura. The

District Court then allowed Sullivan and his associate to

withdraw in December 2012. At trial, Hoey and Purpura acted

as counsel of record.

The Government provided pretrial notice of its intent to

seek the death penalty for the VICAR murder and witness

retaliation counts,6 as required by 18 U.S.C. § 3593(a). The

District Court rebuffed Savage’s attempts to strike the notice.

5

The District Court later allowed Sullivan’s associate, Brett

Cook, to join the defense team.

6

When retaliation against a witness consists of killing a person,

as in this case, the punishment is that associated with murder

and manslaughter. 18 U.S.C. § 1513(a)(1), (2)(A); see also

§ 1513(c) (addressing maximum term of imprisonment for

13

The extensive pretrial proceedings also addressed the

composition of the jury. The District Court rejected defense

efforts to limit potential jurors to residents of Philadelphia

County and to expand the source of potential jurors beyond

voter registration lists.

Hundreds responded to the summons to jury service and

filled out questionnaires at the District Court’s instruction. The

District Court and counsel questioned potential jurors during

voir dire proceedings that began on November 5, 2012. After

thirty days of voir dire, jury selection concluded. The panel

was composed of ten white jurors, two black jurors and six

alternates—five white and one black. Although Savage

interposed Batson challenges to the exclusion of certain black

jurors, the District Court determined that the Government

exercised its peremptory strikes on a race-neutral basis.

Trial began on February 4, 2013. The Government’s

case featured more than seventy witnesses, over a thousand

exhibits and many recordings of intercepted conversations. On

the fifty-fifth day of trial, the jury returned a verdict finding

Savage guilty of all counts. At the conclusion of the guilt

phase, the District Court placed the jurors in recess for seven

days (extended an eighth day), after which the penalty phase

commenced.

The capital sentencing hearing, conducted pursuant to

18 U.S.C. § 3593(b) before the same jury, took seven days.

The jury was presented with evidence of both aggravating and

retaliation based on attendance at or testimony in criminal

case).

14

mitigating factors under § 3592, and on May 31, 2013, it

unanimously voted that Savage be sentenced to death on each

of the thirteen eligible counts, pursuant to §§ 3591(a)(2) and

3593(e).

On June 3, 2013, the District Judge formally

pronounced a sentence of death on each eligible count: twelve

VICAR murders plus witness retaliation. Savage was also

sentenced to life imprisonment for the racketeering conspiracy,

as well as two ten-year terms of imprisonment for the VICAR

conspiracy and the use of fire to commit a felony. The District

Court waived a $1600 special assessment as to all counts.

After sentencing, Savage moved for a judgment of

acquittal under Federal Rule of Criminal Procedure 29, a new

trial under Rule 33 and arrest of judgment under Rule 34. The

District Court denied those requests in September 2014.

Savage timely appealed from final judgment and the

denial of his new-trial motion.7 Although he raises a host of

issues on appeal, he does not challenge the sufficiency of the

evidence for any of the crimes of conviction.

IV. IF ANY GAPS EXIST IN THE RECORD, THEY DO NOT

ENTITLE SAVAGE TO RELIEF.

We first address Savage’s most foundational claim of

error, an error which he contends prevented him from proving

7

The District Court had jurisdiction over the federal charges

against Savage pursuant to 18 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291.

15

that he preserved certain issues while also eclipsing his ability

to spot and raise other issues. Despite the vast appellate record

before us—over eighteen thousand pages spanning more than

thirty-four volumes—Savage contends he lacks access to “at

least 50 letters, e-mails, and other undocketed written

communications that the district court exchanged with the

parties.” Def. Br. 339. He also claims the record omits “at

least 50 unrecorded” oral communications involving the

District Court, including sidebars, in-chambers charge

conferences to hammer out jury instructions, and conversations

between the District Court and jurors where counsel was not

present. Id. Savage argues these alleged omissions violate the

Constitution, the Federal Death Penalty Act and the Court

Reporter Act. But “the real centerpiece of [his] argument” is

Federal Rule of Appellate Procedure 10. Oral Argument Tr.

126:20–24.

Rule 10 provides appellants a way to reconstruct

missing portions of an appellate record. And though we have

previously granted a new trial when an incomplete record

prejudiced an appellant, see Simmons v. Beyer, 44 F.3d 1160,

1168-69 (3d Cir. 1995), we have always required appellants to

attempt Rule 10 reconstruction before seeking relief. See, e.g.,

Roberts v. Ferman, 826 F.3d 117, 125 (3d Cir. 2016).

Yet Savage attempts to skirt that prerequisite. He

argues that before forcing him to undertake Rule 10

reconstruction, we should permit him to take wide-ranging

discovery from the District Court—including searching the

District Judge’s files for any undocketed written

communications and scouring his personal notes for insight

into any untranscribed oral communications. Alternatively,

16

Savage contends the District Court’s refusal to submit to that

examination entitles him (at least) to a presumption that the

defense properly preserved all issues or (at most) to a new trial.

Quite simply, Savage overreaches. The record in its

existing form enables us to decide his appeal consistent with

precepts of fundamental fairness and with our obligation under

the Federal Death Penalty Act to “review the entire record.” 18

U.S.C. § 3595(b). If indeed gaps exist—and the Government

argues there are none—Savage’s failure to pursue Rule 10

reconstruction forecloses relief.

* * *

We can easily dispatch Savage’s constitutional claim.

Although due process demands a record “sufficiently

complete” to facilitate “an adequate review of [the

defendant’s] conviction . . . . neither the Supreme Court, nor

our Court, has held that due process requires a verbatim

transcript of the entire proceedings or that an incomplete record

confers automatic entitlement to relief.” Fahy v. Horn, 516

F.3d 169, 190 (3d Cir. 2008). That’s hardly surprising, since

at the time of the Founding and for generations thereafter,

contemporaneous (let alone verbatim) accounts of trial

proceedings in federal court were the exception and not the

norm. See Oswald M. T. Ratteray, Verbatim Reporting Comes

of Age, 56 Judicature 368, 368–69, 373 (1973); see also Miller

v. United States, 317 U.S. 192, 198–99 (1942).8 We decline to

8

Indeed, incomplete transcription remained common in some

state courts until relatively recently. See Oliver v. Zimmerman,

720 F.2d 766, 768 (3d Cir. 1983) (“The general trial practice

17

graft what is a relatively modern development onto the Due

Process Clause or any other constitutional guarantee. The

Constitution does not require an all-encompassing trial record

to identify issues for appeal.

The same goes for Savage’s Federal Death Penalty Act

claim. As he points out, § 3595(b) obliges us to “review the

entire record” in capital cases. But that subsection also

specifies a minimum set of contents the “record” must include:

1. “the evidence submitted during the trial”;

2. “the information submitted during the sentencing

hearing”;

3. “the procedures employed in the sentencing

hearing”; and

4. “the special findings returned” as to aggravating and

mitigating factors.

Id.; cf. Gardner v. Florida, 430 U.S. 349, 361 (1977) (“[I]t is

important that the record on appeal disclose to the reviewing

court the considerations which motivated the death sentence in

every case in which it is imposed.”). Savage does not dispute

either that the current record clears these statutory minima or

that it adequately discloses why he received the death penalty.

in Pennsylvania is that only testimony of witnesses and

statements of the court are transcribed as of course. Opening

and closing speeches are not transcribed unless requested by

counsel, but any objection lodged during the course of such

speeches is transcribed together with the judge’s ruling

thereon.”).

18

Nor does Savage explain why, even if our § 3595(b)

obligation extends beyond the four discrete categories we have

enumerated, it stretches so far as to cover the items he claims

are missing. At most, we think our obligation to “review the

entire record” is cabined by Rule 10(a), which defines “the

record on appeal” as “the original papers and exhibits filed in

the district court; the transcript of proceedings, if any; and a

certified copy of the docket entries prepared by the district

clerk.” In other words, § 3595(b) does not reach the

untranscribed conversations and many9 of the unfiled writings

9

Insofar as any of the writings Savage identifies could be

considered “original papers and exhibits filed in the district

court,” he has failed to adequately demonstrate any non-

speculative prejudice from the absence of those writings on

appeal. Relatedly, Savage has not articulated how the

purportedly missing items could or would give rise to “any

difference[s] . . . about whether the record truly discloses what

occurred in the district court,” and, indeed, failed to have any

such differences settled by the District Court, as is his

obligation. Fed. R. App. P. 10(e)(1). Neither Rule 10(a) nor

§ 3595(b), to the extent that statute incorporates Rule 10(a),

provides an appellant relief in such circumstances. See United

States v. Smart, 448 F.2d 931, 936 (2d Cir. 1971) (“The

missing documents would appear to have no significance to the

issues which could be advanced on appeal. Those records

necessary for prosecution of the appeal—the minutes of the

trial and the minutes of the suppression hearing—are intact and

were available to [the appellant] and his appellate counsel.

[The appellant] has failed to show any prejudice to his right to

appeal resulting from the missing documents.”).

19

Savage claims are missing here. Indeed, for those

communications (or their reconstructions) to have become part

of the “record on appeal,” Savage needed to move to

supplement the record. Cf. United States v. Moreno, 857 F.3d

723, 727 (5th Cir. 2017). He did not, so there is no Federal

Death Penalty Act violation.

That leaves his Court Reporter Act claim, which—as

Savage acknowledged at oral argument—applies only to any

untranscribed oral communications. The Court Reporter Act

requires “[e]ach session of the court” to be “recorded

verbatim,” including “all proceedings in criminal cases had in

open court.” 28 U.S.C. § 753(b). Though the Act does not

prescribe a remedy for violations, courts have awarded relief

up to a new trial. E.g., Simmons, 44 F.3d at 1168–69; see

United States v. Sussman, 709 F.3d 155, 170–72 (3d Cir.

2013); see also United States v. Kelly, 167 F.3d 436, 438 (8th

Cir. 1999) (collecting cases).

Litigants typically seek relief under the Court Reporter

Act when an unanticipated technical malfunction, human error

or natural disaster renders transcripts of proceedings

unavailable. See, e.g., Kelly, 167 F.3d at 437 (recording and

notes destroyed in a fire before they could be transcribed);

United States v. Brand, 80 F.3d 560, 562 (1st Cir. 1996)

(transcripts “permanently lost”); United States v. Sierra, 981

F.2d 123, 125 (3d Cir. 1992) (court-reporting system

malfunctioned); United States v. Antoine, 906 F.2d 1379, 1380

(9th Cir. 1990) (court reporter “unable to locate her trial notes

and tapes”); United States v. Preciado-Cordobas, 981 F.2d

1206, 1209 (11th Cir. 1993) (transcription unavailable because

of a “defective ribbon in the stenotype machine used . . . to take

20

down the proceedings” and since the “backup” “tape

recording” “either could not be found or was unintelligible”);

United States v. Selva, 559 F.2d 1303, 1304–05 (5th Cir. 1977)

(court reporter’s tape recorder malfunctioned). But a few

courts have concluded that “[t]he duty to comply with” the

Court Reporter Act “lies with the court, not the parties,” and

they have granted relief when a district court held off-the-

record sidebars—something Savage claims occurred in this

case. United States v. Nolan, 910 F.2d 1553, 1560 (7th Cir.

1990); see also, e.g., United States v. Haber, 251 F.3d 881,

889–90 (10th Cir. 2001); United States v. Gallo, 763 F.2d

1504, 1529–30 (6th Cir. 1985); United States v. Garner, 581

F.2d 481, 488–89 (5th Cir. 1978); see also Sierra, 981 F.2d at

127 (“The Court Reporter Act applies to all proceedings in

open court, which includes sidebar conferences.”).

At the outset, we question whether Savage

appropriately invokes the Court Reporter Act for the first time

on appeal. To be sure, remanding a case for record

reconstruction or a new trial over a Court Reporter Act

violation makes some sense when a conversation everyone

thought was being recorded evades transcription because of an

unforeseeable circumstance. In such a case, no one could have

known to raise the Court Reporter Act in the District Court.

Yet granting Savage’s request for relief under the Court

Reporter Act—raised now for the first time—makes far less

sense. His trial counsel apparently knew the untranscribed

conversations were not being recorded and thus arguably

“waive[d] an objection to the court’s failure to comply with

§ 753(b) . . . by acquiescing in the court’s procedure.” Nolan,

910 F.2d at 1560; see also Gallo, 763 F.2d at 1531; cf. Garner,

21

581 F.2d at 488 & n.4. But even were we to excuse Savage’s

failure to object at trial, his Court Reporter Act claim still fails

on its merits. We cannot excuse Savage’s failure to pursue

Rule 10 reconstruction.

Only when a defendant shows a “colorable need” for the

missing transcripts will we grant Court Reporter Act relief.

Fahy, 516 F.3d at 190 (quoting Karabin v. Petsock, 758 F.2d

966, 969 (3d Cir. 1985)). To show a colorable need, a

defendant must do two things. First, a defendant must make “a

specific showing of prejudice.” Sierra, 981 F.2d at 125. In

other words, a defendant must particularly assert what the

missing record would show and why it would justify relief. See

id. at 127. Second, a defendant must explain why Rule 10(c)’s

record-reconstruction procedure cannot cure the prejudice. See

Roberts, 826 F.3d at 124–25 (collecting cases).10

10

Every circuit to consider this issue has agreed that an

appellant must specifically show prejudice and explain why

Rule 10 reconstruction won’t work before obtaining Court

Reporter Act relief. See Kelly, 167 F.3d at 438 (collecting

cases). That said, the Fifth Circuit has relaxed those

requirements when an appellant has new counsel on appeal and

the alleged omission is “substantial and significant.” Selva,

559 F.2d at 1306. (The Eleventh Circuit follows that rule as

binding precedent, since it predates 1981 legislation splitting

the original Fifth Circuit into the present-day Fifth and

Eleventh Circuits. See Preciado-Cordobas, 981 F.2d at 1212.)

Savage tries to engraft that partial exception onto our caselaw,

but we have already refused. See Sierra, 981 F.2d at 126

(noting “[t]he Selva approach has not been widely followed”

22

Savage comes closest to alleging prejudice by

speculating that a more complete record might show that he

preserved objections to various legal issues we must otherwise

review under the heightened plain-error standard applicable to

unpreserved error. We address standard-of-review issues as

we encounter them in the following Parts. To resolve his Court

Reporter Act claim, we need only note that Savage has never

and explaining how it perversely incentivizes “defendant[s] to

dismiss trial counsel and seek appointment of new counsel on

appeal”); see also Haber, 251 F.3d at 889–90.

What’s more, even under the Fifth and Eleventh Circuits’

standard, Savage still would not obtain relief: the omissions he

alleges don’t qualify as “substantial and significant.” Whether

a gap counts as substantial and significant in those courts

“depends upon the likelihood that error which could be pursued

on appeal occurred during those parts of the trial for which we

do not have a verbatim transcript, and which the reconstruction

does not allow us to review.” Preciado-Cordobas, 981 F.2d at

1214. In practical terms, gaps relating to “indispensable part[s]

of the proceedings, both in terms of time spent and potential

influence on the outcome,” might justify reversal. Id. But

“[m]ere speculation, entirely unsupported or contradicted by

the record, that error may have been committed during an

unrecorded part of the trial simply is not enough to support a

finding that omissions are substantial and significant.” Id. The

latter aptly describes Savage’s approach here. Savage does not

dispute that we know what happened during the most critical

trial stages. Rather, he seeks a new trial because we don’t

know what happened in some sidebar and in-chambers

conferences.

23

formally sought to reconstruct any untranscribed

conversation—even though Rule 10 “provides a specific

mechanism by which the parties can have [a] dispute over the

contents of the trial court record resolved, and clearly places

the responsibility for initially creating the record on the

appellant.” Roberts, 826 F.3d at 123.

Savage argues it would be futile to pursue Rule 10

reconstruction since his attorneys on appeal did not participate

in his trial and therefore cannot be expected to know what went

on in the untranscribed conferences. But Rule 10 provides for

that eventuality: a defendant may submit a declaration saying

he does not remember what happened, passing the ball to the

government to document its recollection and giving the

defendant a chance to object before allowing the District Judge

to resolve any remaining discrepancies in accordance with the

provided documentation and with any notes he has retained and

his own recollections. At least one court of appeals has

approved that very procedure under similar circumstances. See

United States v. Wilson, 16 F.3d 1027, 1029 (9th Cir. 1994).

That reasoning also thwarts Savage’s stunning request

for discovery of the District Court’s files, the District Judge’s

personal notes, and the work-product of every lawyer involved

in the case. Of course, the District Judge may rely on his notes

and recollection in certifying a reconstruction’s accuracy—just

as prosecutors may rely on their notes and recollections to rebut

an appellant’s initial reconstruction. But it does not follow that

Savage can discover everyone else’s notes or recollections.

Savage cites no rule entitling him to such discovery, and we

will not create one. Nor will we wade into the thorny privilege

24

questions and perverse incentives that such a rule would surely

precipitate.

In short, Rule 10’s text puts the ball in Savage’s court.

The Rule and our caselaw require a collaborative

reconstruction effort that includes opposing counsel and the

District Judge. But it starts with the appellant. Otherwise, an

appellant could “manufacture his own disputes, attribute legal

significance to them, and then claim that they only can be

resolved by an examination of testimony that is unavailable.”

Sussman, 709 F.3d at 172. That appears to be what Savage

attempts here, and it is an approach we will not countenance.

* * *

We close this Part with three observations from our

supervisory perch as a Court of Appeals, and from our shared

perspective as three former trial judges. First, the record

omissions Savage most often rehashes include the two

untranscribed charge conferences (one during the guilt phase

and one during the penalty phase), plus “extensive[]”

undocketed emails swapping proposed jury instructions (which

we view as a “virtual” charge conference). Def. Br. 344. To

the extent Savage claims that this constitutes legal error,

neither Federal Rule of Criminal Procedure 30 nor the Court

Reporter Act require on-the-record charge conferences. Still,

and even though off-the-record charge conferences routinely

occur in the Eastern District of Pennsylvania (and elsewhere),

we observe that the practice does have the potential to allow a

legal error to go unnoticed and uncorrected. Relative to the

costs of an entire criminal prosecution—especially a four-year,

multidefendant capital case like this one—there seems little

25

expense saved or convenience gained by a charge conference

conducted without a court reporter present.

Second, when it comes to making motions and

preserving objections, the obligation rests with trial counsel to

ensure the record reflects all motions or objections. Deciding

to raise or to forgo a potentially meritorious objection often

entails balancing fraught—and sometimes countervailing—

considerations, both tactical and strategic. We will not bless a

result where any potential record gap empowers creative

counsel to resuscitate a waived objection on appeal.

Third, Savage credibly alleges that the District Court

twice talked to the jury without counsel or a court reporter

present. We know about the first conversation because the

transcript from the last day of the Government’s guilt-phase

case reveals that the District Judge advised counsel, after the

Government rested: “I’m going to go back and talk to the jury

and tell them what we’re doing, the fact that we’re not going

to be back until next Monday.” A25:13393–94; see also id. at

13406 (“Ladies and gentlemen, at this point we’re going to

recess, and let you go back to get some lunch. It’s 12 o’clock.

I understand lunch is on its way up. I will come back and talk

to you briefly to advise you of the schedule that we are going

to be operating from here on. Okay?”). But the actual

discussion was not transcribed, and we are unaware of its being

restated on the record later.

We know about the second conversation because, in a

break during the various closing arguments, an attorney

brought up a “housekeeping matter”: “I believe the Court

yesterday was going to talk to the jury about whether or not

26

they are available tomorrow or not.” The District Judge

responded, “They will be here tomorrow if—I told them also

tomorrow if I can charge—if I can begin charging the Jury in

the morning, first thing, then we will do that and let them

deliberate. However, if closings—if closing statements are still

going on tomorrow morning, we are going to recess until

Monday and let them come back on Monday for the charge.”

A28:14848. Here too, this after-the-fact summary is the only

information we have about the judge–jury exchange.

Though we cannot know exactly what was said, what

we do know assures us that the conversations were entirely

scheduling-related. That said, we further stress the advisability

of having counsel present for all interactions between the court

and jurors, and our preference that such interactions be

transcribed. See also Gallo, 763 F.2d at 1529 n.37.

V. THE DISTRICT COURT DID NOT ERR BY SUBSTITUTING

COUNSEL.

Savage claims that he was denied his Sixth Amendment

right to counsel because the District Court waited until four

days before voir dire began to substitute new lead counsel. We

conclude that the District Court’s substitution constituted

neither structural nor trial error.11

11

We leave for a future date the question of whether a

structural error claim is subject to waiver or forfeiture. That

said, we are not persuaded by the Government’s argument that

Savage waived, forfeited or invited any alleged trial error.

27

A. Background

On June 23, 2009, the District Court appointed Timothy

Sullivan to represent Savage as learned capital-qualified

counsel. Christian Hoey was appointed to represent Savage

alongside Sullivan on February 19, 2010. In January 2011,

Sullivan was appointed as a U.S. Magistrate Judge, but because

this appointment was contingent on the current incumbent of

that magistrate judgeship being confirmed as a district court

judge, there remained uncertainty as to if and when Sullivan

would assume his new office. While the record does not make

clear when Sullivan first brought this issue to the District

Court’s attention, it does contain representations that Sullivan

advised the District Court of his pending appointment as early

as January 2011.

The District Court addressed the issue of Sullivan’s

pending appointment during a June 2012 hearing. Soon

afterward, on June 19, 2012, Sullivan submitted a letter to the

District Court proposing the appointment of William Purpura

as additional learned capital-qualified counsel.12 The letter

explained that

[i]f circumstances warrant, and Mr. Sullivan

seeks leave to withdraw from this case in the

near-future, Mr. Purpura has indicated that he

wishes the Court to be on notice that he might

request a short continuance until October 2012.

This request will only be made if Mr. Purpura

12

Around this time, Sullivan’s associate, Brett Cook, also

joined the defense team.

28

requires additional time to prepare for trial and

for any penalty hearing case. Mr. Purpura is

prepared to meet with the Court to discuss these

matters.

A33:17393. Accompanying the letter was an account of Mr.

Purpura’s considerable capital case experience. Sullivan

followed up with the District Court’s courtroom deputy via

email on June 25, 2012, writing, “Mr. Purpura is anxious to

receive word from the Court on his appointment since each day

counts now.” A4:1864. The record does not reveal a response

to Sullivan’s letter and follow-up email.

On either June 24 or July 24, 2012,13 Savage submitted

a pro se, ex parte “emergency motion” for appointment of new

counsel or to proceed pro se. A4:1858–63. Savage asserted

that the District Court was “well aware” of Sullivan’s pending

appointment, that Sullivan was “preoccupied” with his

appointment, and that Sullivan was “underperforming” in

preparing Savage’s case. Id. at 1858. Savage also claimed that

Sullivan “knows nothing about the basic facts,” did not visit

him unless there was to be a hearing, was “wholly ineffective,”

“cares nothing about my case,” and like Hoey, was a

“compulsive liar[].” Id. at 1858–59, 1862. Moreover, Savage

alleged that there were disputes between Sullivan and Hoey

resulting from ineffective communication.

13

While the motion was dated June 24th, Savage states in the

body of the motion that he is writing on the 24th of July. That

said, the District Court did not receive the motion until August

9, 2012.

29

He then requested “concerned dedicated counsel” to

protect his Sixth Amendment rights. Id. at 1858. Savage

closed stating: “If a man/attorney does not want to be apart

[sic] of a defense team, why would I want him to defend me or

why would the court keep him on my case[?]” Id. at 1862.

On August 10, 2012, the District Court’s courtroom

deputy forwarded Savage’s letter to Sullivan, observing that

the letter was received in chambers and adding simply, “Please

advise.” Id. at 1857. The District Court took no further action

with respect to Savage’s self-styled motion.

Savage, through counsel, moved ex parte for

appointment of Purpura as additional learned counsel on

October 16, 2012. This motion explained that Sullivan could

be sworn in before the end of the year (at which time he would

immediately assume his duties as a magistrate judge) and that

“Mr. Purpura will be prepared to move forward with the

representation of Mr. Savage under existing [sic] Court’s

schedule.” A33:17390. It also expressed that “[t]he

appointment of Mr. Purpura must occur as soon as possible in

order to permit him sufficient time to familiarize himself with

the discovery, work with Mr. Sullivan and become familiar

with the mitigation evidence, the aggravating evidence and for

any penalty hearing.” Id. Counsel further represented that

“Mr. Savage has no objection to Mr. Purpura replacing Mr.

Sullivan, if necessary.” A33:17391.

On November 1, 2012, the District Court held a hearing

to address the motion for appointment of counsel. Sullivan

advised the District Court that he had discussed the matter with

Savage, declaring: “I believe Mr. Savage is amenable and

30

consents to the relief that we seek.” A7:3312. The District

Court then confirmed this, asking Savage: “You are satisfied if

this Court were to go ahead and make that appointment; is that

correct?” Id. Savage responded, “Yes.” Id. The District Court

then turned to Purpura and asked if he was “ready to take over

representation of Mr. Savage,” to which Purpura replied:

Your Honor, I cannot represent that I’m ready to

take over the representation of Mr. Savage. I

don’t think the Court would expect me to make

that representation. I have met with Mr. Savage.

We met back in June. At that time I know Mr.

Sullivan filed the first motion on this particular

issue.

Obviously jury selection starts on Monday. I’ve

talked to Christian Hoey, who seems to know the

case almost as well as Mr. Savage himself, as far

as going through the discovery. So we have gone

through everything there.

Mr. Cook, as well, and Mr. Sullivan, has had this

case in litigation as well as the defense. I believe

that I can add right now a lot to this team to keep

this train on the track and to go forward at this

point. But if the Court is asking me specifically,

if at this very moment could I step into the shoes

of Mr. Sullivan who has been here for three and

a half years, I would have to honestly tell the

Court that that is not possible.

31

A7:3312–13. Seeking clarification, the District Court inquired

further: “[A]re you satisfied that you can get yourself up to

speed so that this matter is not going to be delayed?” A7:3313–

14. Purpura responded,

Judge, I can tell the Court honestly that I am

experienced in Federal as well as State capital

cases. I would do nothing except this particular

case, whatever amount of time it took me per

day.

Teresa Whalen[14] is a close associate and friend

of mine. I’ve tried capital cases in the District of

Maryland with her, and I know that she will help

bring me up to speed as well as everybody else.

It’s a big team effort.

So the answer is yes, I’ll do everything in my

power to be brought up to speed, and I have the

experience to do it. I hope to make Mr. Savage

satisfied of that as well.

A7:3314. The Government did not object to the motion, and

after conferring with the local office of the Federal Public

Defender, the District Court recorded the appointment of

Purpura.15

14

Teresa Whalen was an attorney representing co-defendant

Kidada Savage.

15

The District Court entered an order formally appointing

Purpura as additional learned counsel on November 16, 2012.

32

The initial hardship stage of jury selection had already

taken place on September 26 and 27, 2012, but voir dire began

on November 5, 2012, less than a week after Purpura’s oral

appointment. Savage then moved, on December 13, 2012, for

the appointment of additional associate counsel Marta Kahn

and Brady Locher. No order reflecting their appointment

appears in the record, however, and neither Kahn nor Locher

appear as counsel of record on the District Court docket.

Nevertheless, the Government avers—and the record

reflects—that Kahn did participate as additional counsel.

Sullivan and Cook moved to withdraw on December 19, 2012,

which the District Court granted.

At no time did either side seek a continuance.

Voir dire concluded on Tuesday, January 29, 2013. The

following Monday, February 4, 2013, the guilt phase of trial

got underway. Although substantial discovery was conducted

pretrial, Purpura never told the Court that he was inadequately

prepared or that he needed more time. The trial concluded

more than three months later, with the jury returning a guilty

verdict on all charges on May 13, 2013. The proceedings next

advanced to the penalty phase, which began on May 21, 2013.

The jury returned a death penalty verdict on May 31, 2013.

B. Savage did not suffer a constructive denial of

counsel: there was no structural error.

The Sixth Amendment guarantees a criminal defendant

the right “to have the Assistance of Counsel for his defense.”

U.S. Const. amend. VI. In practice, this means that

33

constructive denial of the assistance of counsel requires per se

reversal.16 See Perry v. Leeke, 488 U.S. 272, 280 (1989).

The Supreme Court has held that “it is a denial of the

accused’s constitutional right to a fair trial to force him to trial

with such expedition as to deprive him of the effective aid and

assistance of counsel.” White v. Ragen, 324 U.S. 760, 764

(1945); see also United States ex rel. Tillery v. Cavell, 294 F.2d

12, 20 (3d Cir. 1961) (“Effective aid and assistance of counsel

is of necessity impossible where counsel is not given

reasonable time to consult with the accused and prepare the

case.”). Yet the Court has declined to “fashion a per se rule

requiring reversal of every conviction following tardy

appointment of counsel.” Chambers v. Maroney, 399 U.S. 42,

54 (1970); see also United States v. Cronic, 466 U.S. 648, 661

16

“In Arizona v. Fulminante, 499 U.S. 279 (1991), the

Supreme Court recognized a distinction between structural

defects, which require reversal, per se, and trial errors, which

require a reviewing court to engage in harmless error analysis.

Structural defects are defects in the constitution of the trial

mechanism, which defy analysis by harmless-error standards.

A structural defect affect[s] the framework within which the

trial proceeds, rather than simply an error in the trial process

itself. Without these basic protections, a criminal trial cannot

reliably serve its function as a vehicle for determination of guilt

or innocence, and no criminal punishment may be regarded as

fundamentally fair.” Lewis v. Pinchak, 348 F.3d 355, 357 (3d

Cir. 2003) (internal quotation marks and citations omitted).

34

(1984) (“[E]very refusal to postpone a criminal trial will not

give rise to [a presumption of prejudice].”).

Instead, courts must look to whether “the surrounding

circumstances make it unlikely that the defendant could have

received the effective assistance of counsel.” Cronic, 466 U.S.

at 666; see also id. at 659–60 (circumstances necessitating a

per se reversal may exist “when although counsel is available

to assist the accused during trial, the likelihood that any lawyer,

even a fully competent one, could provide effective assistance

is so small that a presumption of prejudice is appropriate

without inquiry into the actual conduct of the trial”). This

question

necessarily involves a comparison of the time of

the appointment with all the attendant

circumstances, such as the gravity of the charge,

the experience of appointed counsel, the extent

of his knowledge and participation in similar

cases, his opportunity for preparation and even

what he may have been told by the defendant

which may reduce the area of necessary

preparation.

Moore v. United States, 432 F.2d 730, 735 (3d Cir. 1970).

Precedent provides some insight into the circumstances

that constitute a constructive denial of counsel requiring per se

reversal. In Avery v. Alabama, the Supreme Court held that

there was no denial of counsel where counsel was appointed

three days before a capital trial began. 308 U.S. 444, 453

(1940). The Court concluded that the defendant was “afforded

35

the assistance of zealous and earnest counsel” who “contested

every step of the way leading to final disposition of the case.”

Id. at 450. “That the examination and preparation of the case,

in the time permitted by the trial judge, had been adequate for

counsel to exhaust its every angle is illuminated by the absence

of any indication, on the motion and hearing for new trial, that

they could have done more had additional time been granted.”

Id. at 452.

We similarly held, in Tillery, that per se reversal was

not warranted where an attorney was appointed to represent a

defendant on the day of trial.17 294 F.2d at 22. There, the

attorney had practiced law for fifteen years, had met with the

defendant twice prior to trial, and had heard his account of the

crime. Id. The defendant had also failed to disclose any

witness or alibi requiring investigation. Id. at 20–22.

Likewise, in United States ex rel. Mathis v. Rundle, we held

that the late appointment of counsel did not require per se

reversal where counsel had “a good reputation and solid

credentials” and was able to review a colleague’s notes from

an interview with the defendant, but did not have time to

interview the defendant himself, did not ask for a continuance

when witnesses did not appear because he “had no reasonable

expectation” that the witnesses would help, and “was unable to

say that he had been insufficiently prepared to go to trial.” 394

F.2d 748, 752–54 (3d Cir. 1968), overruled on other grounds

by Moore, 432 F.2d 730.

17

As federal capital cases rarely involve a constructive denial

of counsel, we turn to non-capital caselaw for guidance.

36

In contrast, the Supreme Court has clearly stated that

trial counsel who merely goes through the motions is really no

counsel at all. The Court concluded in Powell v. Alabama that

per se reversal was required since the defendants “were not

accorded the right of counsel in any substantial sense”: the

representation provided was “pro forma rather than zealous

and active”; “[n]o attempt was made to investigate” and “[n]o

opportunity to do so was given”; and the defendants were

instead “hurried to trial.” 287 U.S. 45, 58 (1932).

We similarly held, in United States ex rel. Washington

v. Maroney, that the defendant was constructively denied

assistance of counsel where counsel was appointed the day of

trial, made no pretrial preparations, consulted with the

defendant only briefly in the back of the courtroom, did not

object to the admission of a possibly coerced confession, and

failed to impeach the key government witness or call any

character witnesses on the defendant’s behalf. 428 F.2d 10,

14–15 (3d Cir. 1970); see also Vance v. Lehman, 64 F.3d 119,

122 (3d Cir. 1995) (explaining that the per se rule may apply

where counsel fails to subject the prosecution’s case to

adversarial testing, has little or no legal training, or is prevented

from assisting the defendant).

Savage argues that Purpura’s late substitution

constituted a constructive denial of counsel that requires per se

reversal. Several facts weigh in favor of Savage’s claim:

 The District Court appointed Purpura only four days

before voir dire began. See Moore, 432 F.2d at 735 (“A

belated appointment of counsel [is] strong evidence in a

defendant’s behalf.”).

37

 The guilt-phase trial lasted slightly longer than the time

Purpura had between appointment and trial to prepare.

See Washington, 428 F.2d at 14 (“[C]ounsel for an

indigent defendant, held in custody, must be appointed

by the court sufficiently far in advance of trial to enable

counsel adequately to prepare the defense.” (internal

quotation marks omitted)).

 This was a complex death penalty prosecution involving

conduct that extended over more than a decade and

involved twelve murders. Discovery was substantial,

including numerous recordings that would have

required significant time to review. See, e.g.,

A34:18093 (MR. PURPURA: “We understand the

Government has given us volumes of evidence, actually

probably too much evidence for me to review. We are

trying to review it and trying to catch up. . . . At this

point I’m having difficulty between the forest and the

trees.”); A34:18100 (MR. PURPURA: “The amount of

discovery here is so gargantuan that we have no

notice.”); cf. United States v. Accetturo, 842 F.2d 1408,

1413–14 (3d Cir. 1988) (concluding that the district

court’s determination that twenty-four days was

sufficient for counsel to prepare was not an abuse of

discretion where the district court stated the amount of

evidence was rather discrete, intermittent and of small

quantity).

 The District Court may have been aware of Sullivan’s

potential exit from the case as early as January 2011, but

it failed to act until November 2012. Cf. Chambers, 399

38

U.S. at 54 (“Unquestionably, the courts should make

every effort to effect early appointments of counsel in

all cases.”). Because courts have an independent

obligation to ensure that the rights of criminal

defendants are protected, this delay does give us

pause.18 See, e.g., Gregg v. Georgia, 428 U.S. 153, 187

(1976) (“When a defendant’s life is at stake, the Court

has been particularly sensitive to insure that every

safeguard is observed.”); Glasser v. United States, 315

U.S. 60, 71 (1942), superseded on other grounds by

Fed. R. Evid. 104(a) (“Upon the trial judge rests the duty

of seeing that the trial is conducted with solicitude for

the essential rights of the accused.”).

Nonetheless, Savage fails to take into account numerous

facts that undermine his constructive denial of counsel claim:

 In addition to representing to the District Court that he

had the experience to familiarize himself with the case

in a timely manner and that he was prepared to

undertake the efforts necessary to do so, Purpura

affirmatively stated to the District Court that he could

be ready for trial. See Morris v. Slappy, 461 U.S. 1, 12

(1983) (“In the face of the unequivocal and

uncontradicted statement by a responsible officer of the

court that he was fully prepared and ‘ready’ for trial, it

18

We also recognize that this substitution involved lead

counsel, the only capital-qualified counsel then on the record.

See 18 U.S.C. § 3005; see also § 3599; Martel v. Clair, 565

U.S. 648, 659 (2012).

39

was far from an abuse of discretion to deny a

continuance. On this record, it would have been

remarkable had the trial court not accepted counsel’s

assurances.”).

 The District Court’s statements on the record indicate

that it thought Purpura would be able to adequately

prepare in the amount of time available. See, e.g.,

A34:18070 (THE COURT: “I would anticipate that Mr.

Purpura could get up to speed by that time.”).

 Purpura was an experienced death penalty counsel.

 Savage did not lodge any pro se objection to the

substitution or lack of a continuance.

 Neither Purpura nor Savage pro se moved for a

continuance.

 Sullivan consistently indicated a desire to remain on the

case while his appointment to a judgeship was pending

and was uncertain about if or when he would need to

withdraw. He even contributed to and participated in

over six weeks of voir dire.

 Hoey’s contribution to Savage’s defense was

substantial. He was on the case almost from the

beginning, remained after Sullivan withdrew, and

according to Purpura, seemed to know the case almost

as well as Savage did—at least as to discovery

materials.

40

 The District Court had to weigh significant issues of

judicial administration, including the involvement of

multiple defendants and the availability of numerous

attorneys.19

Considering all the attending circumstances, we

conclude that Savage did not suffer a constructive denial of

counsel. First, Purpura was an experienced capital-qualified

counsel. Second, Purpura relied on his experience in

representing to the District Court that he could get “up to

speed” in time for trial. Third, neither Purpura nor Savage

himself moved for a continuance or indicated that Purpura was

unprepared to proceed to trial. Given that capital defense

counsel are not, as a rule, timid creatures, we have every reason

to believe that if Purpura thought he needed additional time to

prepare, he would have moved for a continuance. Fourth,

although Purpura was lead counsel and the only capital-

qualified counsel, Hoey had been a member of Savage’s

defense team for several years, and he remained on the team to

assist Purpura in both preparing and trying the case. See United

States v. Merlino, 349 F.3d 144, 149–50 (3d Cir. 2003)

19

See Morris, 461 U.S. at 11–12 (“Trial judges necessarily

require a great deal of latitude in scheduling trials. Not the least

of their problems is that of assembling the witnesses, lawyers,

and jurors at the same place at the same time, and this burden

counsels against continuances except for compelling reasons.

Consequently, broad discretion must be granted trial courts on

matters of continuances; only an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable

request for delay violates the right to the assistance of counsel.”

(internal quotation marks and citations omitted)).

41

(defendant was not “left bereft of counsel”). Fifth, it is

reasonable for us to infer that Purpura inherited some work

product from Sullivan and Hoey. Sixth, and most importantly,

our careful examination of the record confirms that Purpura

provided Savage with zealous representation throughout trial.

See United States ex rel. Chambers v. Maroney, 408 F.2d 1186,

1195–96 (3d Cir. 1969) (“This is not a case where belated

appointment of counsel may have resulted in the failure to call

witnesses . . . or in the failure to raise defenses of which counsel

was unaware or which he was unprepared to pursue, or in an

improvident plea of guilty.” (internal footnotes omitted)), aff’d

sub nom. Chambers, 399 U.S. 42. In fact, it is unclear to us

what more Purpura could have done had he requested and

received additional time to prepare.20

The situation that the District Court confronted was not

one where, “although counsel is available to assist the accused

during trial, the likelihood that any lawyer, even a fully

competent one, could provide effective assistance is so small

that” per se reversal is required. Cronic, 466 U.S. at 659–60.

Thus, there was no structural error.

20

Savage has alleged that the late appointment of Purpura

violated both his Sixth Amendment right to counsel and his

enhanced right to capital counsel under 18 U.S.C. §§ 3305 &

3599, but Savage was never without capital counsel. We

conclude that his statutory right to capital counsel was not

violated for the same reasons that his Sixth Amendment right

was not.

42

C. The District Court committed no trial errors in

the substitution of counsel.

In addition to his structural error claim, Savage alleges

that the District Court erred in delaying the substitution of

counsel by (1) overlooking Sullivan’s June 2012 letter; (2)

failing to adequately address Savage’s pro se, ex parte

emergency motion; and (3) granting substitution in November

2012 without a continuance.

1. Standard of Review

We review a district court’s decision regarding

substitution for an abuse of discretion. See Martel, 565 U.S. at

663–64. While “[t]here are no mechanical tests for

determining an abuse of discretion,” United States v. Restaino,

405 F.2d 628, 631 (3d Cir. 1968), the Supreme Court has held

that a motion for substitution should be granted when it is in

the “interests of justice,” Christeson v. Roper, 574 U.S. 373,

377 (2015). See also Martel, 565 U.S. at 652 (holding that

district courts “should employ the same ‘interests of justice’

standard that [is applied] in non-capital cases” in evaluating

motions to replace capital counsel). “[F]actors a court of

appeals should consider in determining whether a district court

abused its discretion . . . ‘include: the timeliness of the motion;

the adequacy of the district court’s inquiry into the defendant’s

complaint; and the asserted cause for that complaint, including

the extent of the conflict or breakdown in communication

between lawyer and client (and the client’s responsibility, if

any, for that conflict).’” Christeson, 574 U.S. at 377 (quoting

Martel, 565 U.S. at 663); see also United States v. Goldberg,

67 F.3d 1092, 1098 (3d Cir. 1995) (additional considerations

43

include “the efficient administration of criminal justice; the

accused’s rights, including the opportunity to prepare a

defense; and the rights of other defendants awaiting trial who

may be prejudiced by a continuance”).

An abuse of discretion may also occur where a court

makes no inquiry into a defendant’s request to substitute

counsel. See Goldberg, 67 F.3d at 1098; United States v.

Welty, 674 F.2d 185, 187 (3d Cir. 1982); see also McMahon v.

Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987) (“Even when the

trial judge suspects that the defendant’s contentions are

disingenuous, and motives impure, a thorough and searching

inquiry is required.”).21

2. The District Court did not abuse its

discretion in its handling of counsel’s June

2012 letter.

Savage treats Sullivan’s June 2012 communication as

akin to a motion. Yet it was no more than a letter and did not

purport to be anything other than that. As such, the District

Court was not called upon to grant or deny relief.

Even if we were to conclude that the District Court

should have acted based on the letter, the District Court did so

21

Welty and its progeny are the basis for much of our Court’s

substitution of counsel caselaw. Yet for our purposes, they are

hardly a perfect fit. The court in Welty, for instance, denied

substitution. 674 F.2d at 187. Here, the District Court

eventually granted relief by appointing Purpura. Furthermore,

Savage consented to the substitution.

44

approximately four months later with the appointment of

Purpura. Savage’s only objection is that the District Court

should have acted sooner. Given the deference afforded to

district courts in matters of case administration, see Morris,

461 U.S. at 11–12; Fuller v. Diesslin, 868 F.2d 604, 611–12

(3d Cir. 1989), we see no abuse of discretion in the District

Court’s failing to substitute counsel promptly upon receipt of

Sullivan’s letter.

3. The District Court did not abuse its

discretion in forwarding Savage’s pro se,

ex parte emergency motion to counsel.

In his June/July 2012 pro se, ex parte emergency motion

seeking substitution of counsel or to proceed pro se, Savage

made several allegations that may have constituted good cause:

Sullivan was not working on the case diligently;

communication between Savage and Sullivan had broken

down; and Savage felt that Sullivan was untrustworthy. The

District Court did not directly address these claims. Rather, the

courtroom deputy transmitted Savage’s letter to Sullivan,

asking counsel to advise the District Court.

Considering the procedural history of this case, the

District Court’s actions were appropriate. Savage had

previously submitted numerous pro se filings seeking

substitution of counsel or permission to proceed pro se. The

District Court held hearings to address each of those motions

in turn, and Savage always retracted his grievances. While

courts must proactively address motions, given Savage’s past

actions and the deference afforded to district courts in matters

of case administration, see Fuller, 868 F.2d at 612, there was

45

no abuse of discretion in the District Court’s handling of

Savage’s pro se, ex parte emergency motion.

4. The District Court did not abuse its

discretion by substituting counsel without

a continuance in November 2012.

For the reasons stated below, we conclude that the

District Court did not abuse its discretion in substituting

Purpura for Sullivan.

First, Purpura was a highly experienced death penalty

counsel. His background could reasonably be expected to save

him valuable preparation time, not to mention court time.

Moreover, Purpura’s background and experience make it

extremely likely that he would have sought a continuance if he

believed he needed it. See Moore, 432 F.2d at 735. No

continuance was sought.

Second, Purpura affirmatively represented to the

District Court that he would be ready for trial. See Morris, 461

U.S. at 12 (noting that it “would have been remarkable had the

trial court not accepted counsel’s assurances”).

Third, Purpura was hardly alone in representing Savage.

He joined a team of committed lawyers, see Merlino, 349 F.3d

at 149–50, that included Hoey—who had been on the case for

nearly three years. Hoey helped Purpura prepare and was

involved extensively in voir dire, trial and sentencing.

Finally, Sullivan consistently indicated a desire to

remain on the case while his appointment was pending,

46

uncertain as he was about if or when he would need to

withdraw.

* * *

We are well satisfied that Savage did not suffer a

constructive denial of counsel and that the District Court did

not commit trial error in the handling of substitution of counsel.

VI. SAVAGE’S VICINAGE ARGUMENT LACKS MERIT.

Section 3235 of Title 18 provides that a trial in a capital

case “shall be had in the county where the offense was

committed.” 18 U.S.C. § 3235. Savage contends that the

“language and history” of this statutory section “show that it

encompasses the right to a jury drawn from the county of the

offense.” Def. Br. 115. The District Court disagreed, and so

do we.22

Section 3235 has its roots in the 1789 Judiciary Act.

The relevant section provided

[t]hat in cases punishable with death, the trial

shall be had in the county where the offence was

committed, or where that cannot be done without

great inconvenience, twelve petit jurors at least

shall be summoned from thence.

22

Because statutory interpretation presents a question of law,

we exercise plenary review. United States v. Randolph, 364

F.3d 118, 121 (3d Cir. 2004).

47

Act of Sept. 24, 1789, ch. 20, § 29, 1 Stat. 88. This statute

remained unchanged until 1862. At that time, Congress

enacted a new law that specified “[t]hat so much of section

twenty-nine of [the Judiciary Act] . . . as requires in cases

punishable with death, twelve petit jurors to be summoned

from the county where the offence was committed, be, and the

same is hereby, repealed.” Act of July 16, 1862, ch. 189, § 2,

12 Stat. 589. Thus, Congress explicitly eliminated in 1862 the

requirement in the Judiciary Act for a local jury in a capital

case. Thereafter, in 1948, § 3235—Venue in Capital Cases—

was codified in its current form:

The trial of offenses punishable with death shall

be had in the county where the offense was

committed, where that can be done without great

inconvenience.

18 U.S.C. § 3235. Consistent with the 1862 repeal, the title

and text of § 3235 omit any reference to vicinage or a

requirement for a jury to be summoned from the county where

the offense occurred.

In light of this statutory history and consistent with the

plain text of the statute, we conclude that the District Court did

not err in rejecting Savage’s “attempt to import a ‘vicinage

requirement’ into the statute.” A1:29–30. We agree with the

District Court that “[t]here is nothing in § 3235 that requires

the jury to be selected from the county of the offense.” A1:29;

see United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241

(1989) (instructing that “where . . . the statute’s language is

plain, ‘the sole function of the courts is to enforce it according

to its terms’”) (quoting Caminetti v. United States, 242 U.S.

48

470, 485 (1917)). Inasmuch as our task in interpreting a statute

is “to give effect to the intent of Congress,” we refuse to add a

vicinage requirement that Congress eliminated more than a

century ago. United States v. Am. Trucking Ass’ns, 310 U.S.

534, 542 (1940).

Indeed, our caselaw already acknowledges the repeal of

the Judiciary Act’s vicinage requirement in capital cases. In

Zicarelli v. Gray, we addressed whether a state prisoner’s

Sixth Amendment right to trial by a fair cross-section of the

community was “violated when he [was] indicted for crimes

arising out of acts occurring in one county of the state and

[was] subsequently tried before a jury drawn exclusively from

a second county in the state.” 543 F.2d 466, 468 (3d Cir. 1976)

(en banc). Our late colleague Judge Adams examined the

vicinage requirement under English common law, the

Constitution’s guarantee of a trial in the State where the crime

occurred,23 and the 1789 Judiciary Act together with its

requirements of vicinage in capital and noncapital cases. Id. at

475–76. He distilled three themes from his historical review:

First, the proposition that a trial must take place

before a jury drawn from within the state and

federal judicial district in which the crime was

committed was considered salient enough to be

23

Article III, § 2, clause 3 of the U.S. Constitution provides in

relevant part: “The Trial of all Crimes . . . shall be by Jury; and

such Trial shall be held in the State where the said Crimes shall

have been committed.” The Sixth Amendment also guarantees

that the trial shall be held in the district where the crime

occurred. U.S. Const. amend. VI.

49

guaranteed by the Constitution. Second, the

concept that a criminal trial must be before a jury

composed of residents of the county where the

crime occurred was not deemed to be of

sufficient consequence to be guaranteed by the

Constitution. Rather, if such a rule was to be

adopted, it would have to be done by Congress.

Id. at 477–78 (footnote omitted). The third theme concerned

the vicinage of jurors in both capital and noncapital trials,

prompting the observation that “[t]he mandate that 12 jurors be

summoned from the county of the crime in capital cases was

repealed in 1862.” Id. at 478 n.60.

In short, no vicinage requirement has existed in capital

cases since 1862. If there is to be such a rule, Congress will

need to enact it once again.24

Finally, we reject Savage’s assertion that the District

Court’s denial of the motion to empanel a jury drawn solely

from Philadelphia County amounted to structural error. “The

purpose of the structural error doctrine is to ensure insistence

on certain basic, constitutional guarantees that should define

the framework of any criminal trial.” Weaver v.

Massachusetts, 137 S. Ct. 1899, 1907 (2017) (emphasis

24

Even if Savage’s argument had some traction, it would

derive from the right to have the trial conducted in the county

of the offense. That right is not “absolute . . . , but only a

qualified right in cases where such a trial could be had ‘without

great inconvenience.’” Brown v. United States, 257 F. 46, 48

(5th Cir. 1919), rev’d on other grounds, 256 U.S. 335 (1921).

50

added). Yet we observed in Zicarelli that the vicinage

requirement of drawing a jury in a capital trial from “the county

where the crime occurred was not deemed to be of sufficient

consequence to be guaranteed by the Constitution.” 543 F.2d

at 477–78. Accordingly, there is no constitutional guarantee to

support Savage’s contention that a structural error occurred

when the District Court refused to seat a jury comprised solely

of Philadelphia residents.

In sum, the District Court did not err in denying the

motion to secure the jury from the county of offense pursuant

to 18 U.S.C. § 3235.

VII. SAVAGE HAS NOT ESTABLISHED A VIOLATION OF HIS

CONSTITUTIONAL AND STATUTORY RIGHTS TO A JURY

DRAWN FROM A FAIR CROSS-SECTION OF THE

COMMUNITY.

Under the Sixth Amendment, a criminal defendant is

entitled to a trial by an “impartial” jury.25 One important step

in furthering impartiality is to draw jurors from diverse

segments of the population. See Holland v. Illinois, 493 U.S.

474, 480 (1990). The Supreme Court has declared this method

a constitutional guarantee by concluding that “the selection of

a petit jury from a representative cross section of the

community is an essential component of the Sixth Amendment

25

“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed . . . .” U.S. Const. amend. VI.

51

right to a jury trial.” Taylor v. Louisiana, 419 U.S. 522, 528

(1975).

A corresponding statutory framework facilitates the

selection of a representative jury. The Jury Selection and

Service Act of 1968 (JSSA) provides that federal juries are to

be “selected at random from a fair cross section of the

community.” 28 U.S.C. § 1861. Federal district courts are

tasked with creating jury-selection plans consistent with this

fair-cross-section principle. § 1863(a). These plans generally

must draw potential jurors from “voter registration lists” or

“lists of actual voters,” but they also must identify other

sources “where necessary to foster the policy and protect the

rights secured by” the JSSA’s fair-cross-section principle.

§ 1863(b)(2).

The U.S. District Court for the Eastern District of

Pennsylvania has long drawn its potential jurors exclusively

from voter registration lists. See, e.g., Savage v. United States,

547 F.2d 212, 214–16 (3d Cir. 1976) (unrelated case describing

1968 version of jury-selection plan); A1:66 n.7 (describing

2009 version applicable here). That approach reflects the

Eastern District’s assessment that “[v]oter registration lists

represent a fair cross section of the community in the Eastern

District of Pennsylvania.” U.S. Dist. Ct. for Eastern Dist. of

Pennsylvania, Plan for the Random Selection of Grand and

Petit Jurors § 3 (adopted 2017).

52

The Eastern District forms its jury pool through

essentially three steps.26 Every two years, registered voters in

the jurisdiction are randomly selected to populate a master jury

wheel. Then the master wheel is culled by randomly choosing

individuals, mailing each of them a juror qualification form,

and evaluating their responses to identify who is disqualified,

exempt or excused from service. The result is a qualified jury

wheel. Finally, individuals randomly selected from the

qualified wheel are summoned to serve on venires (i.e., panels)

of potential jurors in Eastern District trials.

In preparing to challenge the Eastern District’s jury-

selection system, Savage sought discovery of extensive

information that went into creating the master wheel, the

qualified wheel and the venire.27 See 28 U.S.C. § 1867(f)

(providing for discovery). The District Court granted Savage’s

discovery motion in part, providing him access to the Eastern

District’s jury plan (2009 version) and spreadsheets containing

statistical information about the race and ethnicity of:

26

For purposes of this overview, the applicable 2009 version

of the Eastern District’s plan—as described by the District

Court in this case—does not differ from the presently operative

2017 version. See A1:66 n.7; 2017 Jury Plan §§ 3–7.

27

Savage’s co-defendant Steven Northington filed this

discovery motion and the follow-up motion to strike the

venires. We refer to both motions as filed by Savage since the

District Court determined that Savage had standing to join

them.

53

 the potential jurors on the master and qualified

jury wheels assembled in 2007, 2009 and 2011;

 the grand jurors who returned the First

Superseding Indictment;

 the potential petit jurors who were summoned;

and

 the subset of potential petit jurors who

“responded to the summons and showed up to fill

out a jury questionnaire on September 26 and 27,

2012.”28

A1:39.

Asserting a violation of his Sixth Amendment right to a

jury selected from a fair cross-section of the community,

Savage moved to strike the two panels of prospective jurors.29

He urged the District Court to draw jurors instead from lists

maintained by the Administrative Office of Pennsylvania

28

This was a case-specific jury questionnaire that the District

Court administered to the panels of potential jurors.

29

We assume the Eastern District summoned two panels

because of the impending trial in this case. See 2017 Jury Plan

§ 7(b) (providing option of two panels in anticipation of “a

highly publicized or extremely lengthy case or cases” calling

for “an extraordinary [sic] large panel of jurors”). In any event,

two more panels were added later because of “the Court

needing two additional panels to fill out questionnaires.”

A1:65 n.5; see also A1:70 n.9.

54

Courts, which supplemented voter registration rolls with

various other sources. The District Court denied the motion

because Savage had not made a threshold showing of a fair-

cross-section violation under Duren v. Missouri, 439 U.S. 357

(1979), and United States v. Weaver, 267 F.3d 231 (3d Cir.

2001). Savage now argues the District Court erred in

determining that he failed to satisfy two prongs of the Duren

standard.

After briefing in this case concluded, a different panel

of this Court decided a case presenting a fair-cross-section

claim, Howell v. Superintendent Rockview SCI, 939 F.3d 260

(3d Cir. 2019), reh’g denied, No. 17-1758 (3d Cir. Nov. 26,

2019), petition for cert. filed, Howell v. Garman, No. 19-8378

(Apr. 24, 2020). The Government raised Howell in a Rule 28(j)

letter, to which Savage responded. The parties had a further

opportunity to address Howell’s import at oral argument.

A. Standard for a Fair-Cross-Section Challenge30

Savage has the burden to establish a violation of his fair-

cross-section rights by identifying (1) “a ‘distinctive’ group in

the community” (2) that was “not fair[ly] and reasonab[ly]”

represented among potential jurors compared with its

representation in the community (3) because of “systematic

30

“Whether a defendant has been denied his or her right to a

jury selected from a fair cross section of the community is a

mixed question of law and fact, and is reviewed de novo.”

Weaver, 267 F.3d at 235.

55

exclusion of the group in the jury-selection process.”31, 32

Duren, 439 U.S. at 364.

In Duren, women comprised 54% of the relevant

population, but only approximately 15% of the weekly venires

in state court. Id. at 362–63, 365. Recognizing that women

were a distinctive group, the Supreme Court determined that

their underrepresentation was not only unfair, but attributable

to systematic exclusion because the underrepresentation

“occurred not just occasionally but in every weekly venire for

a period of nearly a year.” Id. at 364–66. The Court could

easily pinpoint the exclusionary processes: the jury-selection

system included several exemptions expressly for women,

including an automatic exemption upon failure to respond to

the summons and appear for service. Id. at 361–62, 366–67.

31

If Savage can make this prima facie showing, then the

Government would “bear[] the burden of justifying this

infringement by showing attainment of a fair cross section to

be incompatible with a significant state interest.” Weaver, 267

F.3d at 237 (quoting Duren, 439 U.S. at 368) (internal

quotation marks omitted). In this case, we need not reach the

Government’s rebuttal burden.

32

Savage forfeited the opportunity to pursue a JSSA claim here

by failing to raise it in the District Court. See United States v.

Baxter, 951 F.3d 128, 136 (3d Cir. 2020), petition for cert.

filed, No. 20-5133 (July 14, 2020). But because the fair-cross-

section standard is equivalent for claims under the Sixth

Amendment and the JSSA, Weaver, 267 F.3d at 236–37,

excluding the JSSA claim makes little difference to our

analysis.

56

Here, Savage established the first Duren prong by

identifying a similarly distinctive group: black individuals.

But the District Court correctly determined that he failed at the

second prong because he had not demonstrated unfair and

unreasonable representation of that group. We also agree with

the District Court’s third-prong determination that Savage did

not show that any underrepresentation stemmed from

systematic exclusion.

B. Savage has not made a prima facie showing of a

fair-cross-section violation.

1. Blacks are a distinctive group.

To satisfy the first prong, Savage points to the alleged

underrepresentation of Blacks among prospective jurors. We

ask whether that group is “sufficiently numerous and distinct

from others in the population that if members of the group are

systematically eliminated, the defendant’s right to a jury

composed of a fair cross section of the community would be

violated.” Weaver, 267 F.3d at 239–40. We routinely

recognize that Blacks qualify as a distinctive group. See, e.g.,

id. at 240; Howell, 939 F.3d at 266. No further discussion is

necessary on this point.

2. Blacks were not unfairly or unreasonably

represented on the qualified jury wheel.

Savage argues that representation of Blacks among

potential jurors was not “fair and reasonable” when compared

to the proportion of that group within the Eastern District

population. In evaluating Savage’s argument as to the second

57

prong, we look to statistics to assess the degree, if any, to which

Blacks were underrepresented. Weaver, 267 F.3d at 240

(noting the inquiry is “at least in part, a mathematical exercise,

and must be supported by statistical evidence”).

Our analysis involves (1) identifying that share of the

Eastern District population who are Blacks; (2) determining

the share of the Eastern District’s jury wheel or the venires in

this case that consisted of Blacks; and (3) deploying statistical

methods to evaluate any disparity between the two shares. See

id. at 240–44 (analyzing portion of master wheel); Duren, 439

U.S. at 364–66 (using venires).

Population Percentage. Savage relied on census data

compiled by a consulting firm to calculate that Blacks

comprised 16.82% of the Eastern District population as of his

2012 motion. The District Court accepted this undisputed

statistic. But the District Court should have distilled the jury-

service-eligible population of Blacks in the Eastern District.

See Berghuis v. Smith, 559 U.S. 314, 319, 323 (2010); Howell,

939 F.3d at 263, 266; Ramseur v. Beyer, 983 F.2d 1215, 1231

(3d Cir. 1992) (en banc). That jury-service-eligible statistic

does not appear in the record, so despite the District Court’s

error, we will consider the statistic representing the full

population of Blacks in the Eastern District.

Jury Wheel Percentage. The District Court decided it

was more appropriate to assess Blacks’ representation on the

qualified wheel than either the master wheel or two venires

assembled for Savage’s trial. In the District Court’s view, the

wheels would better capture any systematic exclusion. And as

between the two wheels, the master wheel contained limited

58

racial data, so the District Court determined the qualified wheel

reflecting juror questionnaire responses was preferable for fair-

cross-section purposes. The District Court also noted the

venire-based statistic was incomplete, for it did not account for

two more venires empaneled while the fair-cross-section

motion was pending.

On appeal, Savage does not challenge the District

Court’s reliance on the Eastern District’s qualified wheel33—

consisting of 8.37% black individuals,34 A1:71—so we will

rely on it as well. Precedent reinforces that the qualified wheel

is a valid option for assessing a fair-cross-section claim. See

Duren, 439 U.S. at 363–64 (stating fair-cross-section principle

with respect to “jury wheels, pools of names, panels, or venires

from which juries are drawn” (quoting Taylor, 419 U.S. at 538)

(internal quotation marks omitted)); Savage, 547 F.2d at 214

(construing cross-section challenge as targeting qualified

wheel).

Statistical Methods. We work with two statistical

inputs: Blacks represented 16.82% of the Eastern District

population, but only 8.37% of the qualified wheel. We

evaluate the significance of this shortfall by calculating two

33

Specifically, the District Court considered “the 2011

Qualified Jury Wheel as of August 29, 2012.” A71.

34

Savage misattributes the 8.37% statistic to the master wheel

but does not object to our use of that statistic.

59

metrics: absolute and comparative disparities.35 Howell, 939

F.3d at 268.

Absolute disparity is simply the difference between our

two statistical inputs, or 8.45%. See Weaver, 267 F.3d at 238.

That means if we drew a venire of one hundred people from

the qualified wheel, we would expect to find about eight fewer

Blacks among them than if we drew one hundred people from

the Eastern District at large. See Howell, 939 F.3d at 268 n.7.

Comparative disparity is the quotient of the absolute

disparity and the population percentage. Weaver, 267 F.3d at

238. We divide 8.45% by 16.82% for a comparative disparity

of 50.24%. Thus, Blacks were about half as likely to appear in

the qualified wheel as we would expect based on their share of

the Eastern District’s population. See Howell, 939 F.3d at 268

n.8; Weaver, 267 F.3d at 238 n.5.

The two methods have countervailing weaknesses when

it comes to evaluating the underrepresentation of a relatively

small minority: Absolute disparity tends to understate any

discrepancy, while comparative disparity tends to overstate it.

Weaver, 267 F.3d at 242–43 (collecting cases). So relying on

these methods “can be misleading” when a group’s population

percentage is small. Berghuis, 559 U.S. at 329; see, e.g.,

United States v. Ashley, 54 F.3d 311, 313–14 (7th Cir. 1995)

(denying fair-cross-section claim when group comprised 3% of

35

We have also used a third metric, standard deviation, to

assess the reliability of sample data. See Howell, 939 F.3d at

266–68. But no sampling occurred here. Instead we rely on a

statistic representing the entire qualified wheel.

60

relevant population but 0% of venire, due to absolute disparity

of merely 3%).

Still, the Supreme Court has expressly left open the

question of which method(s) courts should use to assess a fair-

cross-section challenge. Berghuis, 559 U.S. at 329–30

(mentioning absolute disparity, comparative disparity and

standard deviation). In Duren, the Court did not discuss any

methods, but simply determined the second-prong showing

was satisfied based on a side-by-side comparison of the

percentages of women in the population (54%) and in the

weekly venires (15%). See 439 U.S. at 362–66. That seemed

to endorse the absolute disparity method. See Weaver, 267

F.3d at 242. But more recently, in Berghuis v. Smith, the Court

observed that “neither Duren nor any other decision of this

Court specifies the method or test courts must use to measure

the representation of distinctive groups in jury pools.” 559

U.S. at 329 (emphasis added).

This Court continues to use both absolute and

comparative disparity methods, see Howell, 939 F.3d at 268–

69, because, when applied together, one method can be

reasonably expected to offset the shortcomings of the other, see

Weaver, 267 F.3d at 241–43. Nevertheless, taking our cues

from Duren and persuasive authority, we have shown some

solicitude for absolute disparity. See id. at 242 (observing it

“seems to be the preferred method of analysis in most cases”).

We considered the interplay of absolute disparity and

comparative disparity most recently in Howell, where Blacks

comprised 10.7% of the relevant population. 939 F.3d at 266,

268. The absolute disparity of 5.83% was “lower than or

61

similar to absolute disparities in other cases where courts have

found no constitutional violation, and in fact, numerous courts

have noted that an absolute disparity below 10% generally will

not reflect unfair and unreasonable representation.” Id. at 268

(collecting cases). We were also persuaded by authority

determining that “comparative disparities similar to the

comparative disparity in [Howell], 54.49%, were insufficient

to demonstrate unfair and unreasonable representation.” Id.

(collecting cases). Evaluating the two statistical methods

together in light of “factually similar cases,” we concluded that

Howell had not met his burden under Duren’s second prong.

Id. at 269.

Savage argues that the District Court inappropriately

took “bright-line” approaches dismissive of an absolute

disparity under 10% and a comparative disparity for a small

population. These characterizations fail to appreciate the

District Court’s nuanced treatment of the absolute and

comparative disparities together. With the benefit of Howell,

we reach the same conclusion as the District Court—that the

two disparities are insufficient to show unfair and unreasonable

representation under Duren.36

36

We easily dispose of Savage’s argument that the District

Court failed to account for the “practical realit[ies]” of these

absolute and comparative disparities. Def. Br. 141–42. He

tries to explain, in layman’s terms, what the results of these

methods say about underrepresentation of Blacks from the

Eastern District. The only authority he cites is inapposite. See

id. at 141 (citing Garcia-Dorantes v. Warren, 801 F.3d 584,

588 (6th Cir. 2015)). So we maintain our established approach.

62

Here, the absolute disparity of 8.45% is only slightly

higher than the absolute disparities that fell short in Howell and

other cases where a minority group’s population percentage

was comparable to that of Blacks within the Eastern District.

See 939 F.3d at 268 (absolute disparity of 5.83%; population

percentage of 10.7%); United States v. Davis, 854 F.3d 1276,

1295 (11th Cir. 2017) (absolute disparity of 6.7%; population

percentage of 12.1%); United States v. Grisham, 63 F.3d 1074,

1078–79, 1081 (11th Cir. 1995) (absolute disparity in one

instance of 4.72%; relevant population percentage of 18.31%);

United States v. Clifford, 640 F.2d 150, 154–55 (8th Cir. 1981)

(absolute disparity of 7.2%; population percentage of 15.6%);

cf. Ramseur, 983 F.2d at 1230–32 (absolute disparity of 14.1%

was “of borderline significance” in equal-protection analysis

overlapping with fair-cross-section analysis; population

percentage of 35.9%).

Although Howell looked favorably on jurisdictions that

have adopted 10% thresholds, see 939 F.3d at 268; see also

Davis, 854 F.3d at 1295; Ashley, 54 F.3d at 314; Clifford, 640

F.2d at 155; United States v. Maskeny, 609 F.2d 183, 190 (5th

Cir. 1980),37 we are wary of ossifying that consideration

through a rule when our own precedent requires us to consider

comparative disparity as well.38

37

In Berghuis, the Supreme Court was asked to impose a 10%

threshold, but the Court declined to reach the issue. 559 U.S.

at 330 n.4.

38

Just as the Supreme Court has “not augur[ed] or authorize[d]

the fashioning of detailed jury selection codes by federal

courts,” we faithfully maintain that “[t]he fair-cross-section

63

Turning to comparative disparity, the 50.24% figure

here is similar to those deemed insufficient in other cases,

especially Howell. See 939 F.3d at 268 (comparative disparity

of 54.49%; population percentage of 10.7%); United States v.

Orange, 447 F.3d 792, 796, 798–99 (10th Cir. 2006)

(comparative disparities “rang[ing] from 38.17% to 51.22%”;

population percentages ranging from 1.64% to 8.63%); United

States v. Chanthadara, 230 F.3d 1237, 1256–57 (10th Cir.

2000) (comparative disparities of 40.89% and 58.39%;

population percentages of 7.9% and 2.74%, respectively); cf.

Weaver, 267 F.3d at 240, 243 (considering comparative

disparities of 40.01% and even 72.98% to be “of questionable

probative value” due to particularly small population

percentages of 3.07% and 0.97%, respectively).

Savage points out that the comparative disparity here

exceeds the “about 40%” disparity we called “borderline” in

Ramseur. 983 F.2d at 1230, 1232 (population percentage of

35.9%). But even if Ramseur lent some support when Savage

filed his briefs, it is less helpful in the wake of Howell. There

we determined that a comparative disparity of 54.49%—higher

than both Ramseur’s 40% and Savage’s 50.24%—was not

enough to tip the scales. The comparison with Howell is not

quite open-and-shut, for the somewhat higher population

percentage here (16.82% vs. Howell’s 10.7%) makes the

comparative disparity a slightly more accurate indicator of

underrepresentation. But we are unpersuaded that the statistics

in Savage’s case differ meaningfully.

principle must have much leeway in application.” Taylor, 419

U.S. at 537–38.

64

Savage attempts to bolster his comparative disparity

argument by briefly invoking out-of-circuit authority that sets

a more modest standard for establishing unfair and

unreasonable representation. In Garcia-Dorantes v. Warren,

the Sixth Circuit decided that a habeas petitioner made the

requisite showing based on a population percentage of 8.24%,

an absolute disparity of 3.45%, and a comparative disparity of

42%, caused by a glitch in the electronic jury selection system.

801 F.3d 584, 590–93, 600, 603 (6th Cir. 2015). Because the

disparities in Savage’s case are somewhat larger, and the

population percentage is somewhat higher, his case may clear

the Sixth Circuit’s second-prong hurdle. No matter, we must

adhere to our own standard. Moreover, Garcia-Dorantes is

distinguishable on its merits for at least two reasons.

First, the Sixth Circuit expressly prefers comparative

disparity where small populations are involved because

absolute disparity tends to understate discrepancies in those

instances. Id. at 601–02. We agree with that premise, but we

also recognize the tendency of comparative disparity to

exaggerate discrepancies for small populations. Weaver, 267

F.3d at 242. For that reason, we do not give comparative

disparity pride of place. See id. at 241–43. Second, the

Garcia-Dorantes court relied on non-Third Circuit precedent

indicating that even more modest disparities met the second-

prong standard. See 801 F.3d at 601–02 (citing Smith v.

Berghuis, 543 F.3d 326, 336–39 (6th Cir. 2008), rev’d on other

grounds, 559 U.S. 314 (2010); United States v. Rogers, 73 F.3d

774, 776–77 (8th Cir. 1996)). We must look to Third Circuit

caselaw, where Savage runs up against Howell and our other

precedent. Garcia-Dorantes may inform our understanding of

65

absolute and comparative disparities, but we are certainly not

bound by it.

Here, we have considered the absolute and comparative

disparities together in light of the relevant authorities, Howell

most particularly. We conclude that Savage fails to meet his

burden of proving that Blacks were unfairly and unreasonably

represented on the Eastern District’s qualified jury wheel.

Because Savage has not satisfied Duren’s second prong, he

cannot establish a violation of his fair-cross-section rights.39

3. Alternatively, Blacks were not

systematically excluded from the qualified

jury wheel.

Even if Savage were able to meet Duren’s second

prong, he would still need to show that Blacks were

underrepresented on the Eastern District’s qualified jury wheel

due to systematic exclusion from the jury-selection process.

The District Court observed no such third-prong showing.

Looking again to Howell, we agree.

39

Although “petit juries must be drawn from a source fairly

representative of the community,” the Supreme Court has

never required “that petit juries actually chosen must mirror the

community and reflect the various distinctive groups in the

population.” Taylor, 419 U.S. at 538. Still, we note Savage’s

concession elsewhere that two of twelve empaneled jury

members (16.67%) were black, approximating their 16.82%

share of the Eastern District population.

66

This is not a case where an exclusionary process is

“readily apparent” as it was with the several exemptions for

women in Duren. Howell, 939 F.3d at 269. Even so, a

defendant may establish an exclusionary process by identifying

“a large discrepancy over time such that the system must be

said to bring about the underrepresentation.” Id. (quoting

Weaver, 267 F.3d at 244) (internal quotation marks omitted).

We evaluate evidence of “the nature of the system, length of

time studied, and ‘efforts at reform to increase the

representativeness of jury lists.’” Id. (quoting Ramseur, 983

F.2d at 1234–35). From the record in this case, we are not

convinced that these factors demonstrate systematic exclusion

of Blacks.

Nature of the System. It goes without saying that

overtly barring a racial group from jury service constitutes

systematic exclusion from participation in the process.40 Such

practices are offensive not only to the Constitution but to our

values as a free society. Similarly, if a jury-selection plan

simply gave a racial group additional opportunities to opt out

that were not provided to others, and members of that group

often availed themselves of those opportunities, then the plan

would be systematically excluding that group too.41 See

Duren, 439 U.S. at 366–67 (evaluating results of exemptions

for women). Otherwise, “[a] selection process that is facially

40

Such a plan would also violate the JSSA’s ban on excluding

potential jurors based on protected characteristics such as race.

28 U.S.C. § 1862.

41

The absence of intentional discrimination is not dispositive

of a fair-cross-section claim, Weaver, 267 F.3d at 244, unlike

an equal-protection claim, Duren, 439 U.S. at 368 n.26.

67

neutral is unlikely to demonstrate systematic exclusion.”

Howell, 939 F.3d at 269.

Savage has not identified anything on the face of the

Eastern District’s jury selection process that draws racial

distinctions. The process relies exclusively on voter

registration lists, consistent with other facially neutral

processes this Circuit has upheld. See id. (voter registration

lists and driving records); Weaver, 267 F.3d at 237, 244–45

(voter registration lists); Ramseur, 983 F.2d at 1229, 1235

(voter registration and licensed driver lists); Savage, 547 F.2d

at 215 (voter registration list).

We have, nevertheless, left open the possibility that

drawing on voter registration lists alone might be actionable

“under some circumstances” when use of those lists “over time

did have the effect of sizeably underrepresenting a particular

class or group on the jury venire.” Weaver, 267 F.3d at 244–

45. Accordingly, facial neutrality alone of a selection system

is not dispositive.

Length of Time Studied. Even if a process is facially

neutral, it might consistently produce disproportionately low

representation of a particular group. The Duren Court saw a

large shortfall in women’s representation in “every weekly

venire for a period of nearly a year,” reinforcing that

exemptions for women generated their systematic exclusion

from venires. 439 U.S. at 366–67. Extrapolating from Duren,

we have suggested that the use of a voter registration list alone

might still run afoul of the third prong if it produced

underrepresentation “over time”—enough time to deem the

underrepresentation “persistent.” Weaver, 267 F.3d at 244–45.

68

But we have yet to determine the duration that would have to

be shown to constitute “persistence.” A two-year showing is

not necessarily enough, see Ramseur, 983 F.2d at 1230, 1235,

but something even shorter might suffice if the cause of the

underrepresentation were as “readily identifiable” and the

evidence as “similarly specific” as it was in Duren. Howell,

939 F.3d at 269–70 (eight months sufficient in Duren, but not

six months in Howell).

At oral argument, Savage conceded that he had not

provided the District Court with any record of

underrepresentation over time. Oral Argument Tr. 185:15–

186:3; see also id. 186:19–20 (as noted by panel). But Savage

rejected the suggestion that this concession doomed his prima

facie case; instead, he insisted that a showing of duration is not

an “absolute requirement” to meet Duren’s third prong. Id.

186:19–187:12. Howell forecloses that argument by stating

flatly that a study of underrepresentation “must have

demonstrated ongoing discrimination over a sufficient period

of time.”42 939 F.3d at 269 (emphasis added).

Savage’s failure to show the District Court that Blacks

were underrepresented on an ongoing basis prevents him from

establishing systematic exclusion. While he points to other

evidence he submitted to the District Court, none of that

material is availing.43 Nor can we consider evidence Savage

42

We read Howell’s reference to “discrimination” in context to

include unfair and unreasonable representation resulting from

a facially neutral system.

43

In the District Court, Savage identified two pieces of point-

in-time evidence to suggest that exclusion was systematic:

69

failed to present to the District Court. See Howell, 939 F.3d at

269 n.9. Even if we were to consider such new evidence, as

we occasionally have, S.H. ex rel. Durrell v. Lower Merion

Sch. Dist., 729 F.3d 248, 267 n.27 (3d Cir. 2013), the evidence

Pennsylvania state legislation and a Pennsylvania state

commission report. See A2:529–30.

In 2007, state legislation expanded the sources of potential

jurors available to state courts, Act of July 17, 2007, P.L. 123,

No. 37, § 3 (codified as amended at 42 Pa. Cons. Stat.

§ 4521.1), and soon made information available to federal

district courts in Pennsylvania as well “[u]pon request,”

§ 4521.1(d)(2) (2008 amendment). See also A2:529–30.

Also in 2007, a state commission asserted that using voter

and vehicle registration lists alone frequently distorts the

representation of certain groups on venires, which as a result

“may not be reflective of the community-at-large, particularly

the minority community.” A2:530; Def. Br. 145–46 (quoting

Pa. Interbranch Comm’n for Gender, Racial, & Ethnic

Fairness, Suggested Standardized Procedures for Jury

Selection in Pennsylvania (Sept. 12, 2007)) (internal quotation

marks omitted).

This “snapshot” evidence fails to demonstrate systematic

exclusion in 2007, much less in 2012 when Savage moved to

strike the venires. Neither the state legislation nor the state

report specifically addresses underrepresentation of Blacks on

jury wheels or venires in federal court in the Eastern District of

Pennsylvania.

70

in his opening and reply briefs is likewise unpersuasive.44, 45

44

In his opening brief, Savage argues that the federal district

courts in Pennsylvania have failed to implement a jury-

selection lesson learned by their sister courts within the Third

Circuit. Federal district courts in New Jersey, Delaware and

the Virgin Islands supplement voter lists with at least one other

source. See Dist. Ct. of Virgin Islands, Juror Selection Plan

§ E (rev. Feb. 20, 2019) (voter registration and licensed driver

lists); Plan of Implementation of U.S. Dist. Ct. for Dist. of New

Jersey Pursuant to Jury Selection & Service Act of 1968

§ C(1)(a) (rev. Mar. 20, 2009) (voter registration lists, and if

available, lists of licensed drivers, state income tax filers, and

Homestead rebate application filers); Revised Plan of U.S.

Dist. Ct. for Dist. of Delaware for Random Selection of Grand

& Petit Jurors, as Amended § 4 (Dec. 22, 2008) (voter

registration, licensed driver, and state ID card lists). Yet this

contrast suffers a flaw similar to Savage’s evidence in the

District Court: the use of supplementary sources in other

jurisdictions does not by itself demonstrate systematic

exclusion of Blacks in the Eastern District of Pennsylvania.

Savage’s opening brief also insists that “black people in

Pennsylvania have faced significant challenges in participating

in the voting process.” Def. Br. 147 n.67. This “one-sentence

footnote”—devoid of authority or record citation—“falls far

short of meeting the requirement that an appellant raise an issue

in his opening brief or else waive the issue on appeal.” United

States v. Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008).

45

Savage’s reply brief relies on two additional sources in an

attempt to demonstrate systematic exclusion: a law review

71

We need not reach Howell’s third factor, jury selection

reform initiatives, to conclude that Savage has failed to

demonstrate systematic exclusion. His fair-cross-section

challenge fails on these grounds as well.46

article by the Chief Judge of the Eastern District, and another

article reporting results of a voter study in Pennsylvania.

Similar to the state commission discussed above, Chief

Judge Juan R. Sanchez explains that a discrepancy in voter

registration rates would generate underrepresentation of some

groups among potential jurors. Hon. Juan R. Sanchez, A Plan

of Our Own: The Eastern District of Pennsylvania’s Initiative

to Increase Jury Diversity, 91 Temp. L. Rev. Online 1, 13

(2019). According to the other article, a Pennsylvania state law

enacted in 2012 reportedly disenfranchised voters in mostly

black districts at a much higher rate. Edward A. Purcell, Jr.,

Reflections on the Fiftieth Anniversary of the March and the

Speech: History, Memory, Values, 59 N.Y. L. Sch. L. Rev. 17,

54 (2014–2015) (citing study).

Even assuming arguendo that this evidence is timely

presented in reply, it hardly furthers Savage’s argument. These

observations are unspecific to the Eastern District, and they fail

to demonstrate underrepresentation over time.

46

It is presumably the Eastern District’s institutional role—not

the role of Savage or the District Judge in this case—to conduct

a study and make findings before deciding that voter

registration lists must be supplemented with other sources.

After all, the responsibility to create a jury-selection plan

consistent with § 1861, and to modify it as needed, resides

firmly with the respective district court under the supervision

72

* * *

The District Court correctly determined that Savage was

unable to establish a prima facie violation of his Sixth

Amendment right to a jury drawn from a fair cross-section of

the community. Even if Savage had not forfeited the

corresponding statutory claim, he would still be unable to

establish a prima facie violation of the JSSA.

VIII. THE DISTRICT COURT DID NOT ERR IN DENYING THE

BATSON OBJECTION.

Savage raised a Batson47 challenge to the Government’s

peremptory strike of Prospective Juror 185, a black female.

The District Court determined that the Government’s reasons

for striking Number 185 were race-neutral and that the

of a reviewing panel comprised of the circuit’s judicial council

and the district’s chief judge or designee. 28 U.S.C. § 1863(a).

47

Batson v. Kentucky, 476 U.S. 79 (1986), held that a

prosecutor’s purposeful racial discrimination in the selection

of the jury violated the state prisoner’s equal protection rights

under the Fourteenth Amendment. Savage asserts an

analogous claim under “the implicit equal protection

component of the Fifth Amendment.” United States v.

Clemmons, 892 F.2d 1153, 1155 n.1 (3d Cir. 1989) (citing

United States v. Frame, 885 F.2d 1119, 1137 (3d Cir. 1989)).

For ease of reference, we will refer to Savage’s claim as a

Batson claim. The critical inquiry for a trial court is “whether

the defendant has shown purposeful discrimination.” Foster v.

Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v.

Louisiana, 552 U.S. 472, 476–77 (2008)).

73

prosecution did not strike her because of race. We conclude

that the District Court did not clearly err.

A. Background

Savage raised his first Batson challenge when the

Government exercised a peremptory challenge to Number

185,48 the eighth black prospective juror to be considered. The

prior seven had been addressed as follows:

 Number 2 was seated;

 Number 11 was excused for cause;

48

Prior to jury selection, the Government filed a motion

seeking an anonymous jury panel and heightened jury security.

The Government asked to shield from the parties, their

attorneys and the public the prospective jurors’ names,

addresses and employers. The request was based on the

“history of violence and intimidation” and a view that such

safeguards were “necessary to protect jurors from the threat of

danger posed by Defendants.” A1:18. The District Court

granted the motion, ordered an anonymous jury, and required

the shielding of each prospective juror’s name, address and

place of employment. The District Court noted these same

measures had been taken in Savage’s 2005 federal jury trial

and that, while detained in the Federal Detention Center in

Philadelphia, Savage had “plotted to obtain the addresses and

telephone numbers of the jurors” serving in that trial. A1:20.

In addition, the U.S. Marshals Service was ordered to transport

the jurors each day from an undisclosed location to court and

back to that location at the end of the day.

74

 Number 20 was stricken by the Government’s

peremptory challenge;

 Number 79 was excused for hardship;

 Number 108 was excused for cause;

 Number 110 was excused for “anonymity reasons,”

A34:18041, which are not contained in the record; and

 Number 118 was excused for hardship.49

Number 185, who was age thirty-one, lived in North

Philadelphia with her seventy-eight-year-old grandmother, her

eleven-year-old daughter and her brother. According to her

jury questionnaire, she was an unemployed home health aide

who planned to return to college in the fall semester to pursue

a nursing degree. During voir dire, she stated that she was

actively seeking part-time, evening work that would run from

7:00 to 11:00 p.m. She did not believe that such part-time work

would interfere with her performance as a juror. When asked

her general view of the death penalty, she replied that it

“depend[ed] on the circumstances” and that it isn’t “fair to

judge someone for the death penalty without knowing the

circumstances.” A34:18019. The prosecutor described her

answers to questions on the subject as “straight down the

middle.” A34:18019.

But Number 185 resided in North Philadelphia, and the

Savage prosecution involved drug transactions, violent crimes

49

The circumstances supporting the excusal of these six black

prospective jurors, including the peremptory strike of Number

20, have been gleaned from the arguments made at the time of

the Batson challenge at issue here.

75

and murders that occurred in that part of the city. The evidence

to be presented at trial could be expected to involve frequent

references to locations within North Philadelphia. Yet when

asked by the prosecutor if she had any concerns about being on

the jury, she replied: “No.”

Neither side moved to strike Number 185 for cause.

The prosecution did, however, exercise a peremptory strike. In

response, defendant Merritt raised a Batson challenge, which

was joined by Savage, Northington and Kidada. The

prosecutor responded to the challenge this way:

[F]irst of all, there’s been no prima facie case

made in this case. The government has, of

course, seated one African-American juror.

There’s no pattern of racial discrimination.

Secondly, as to this juror, in an abundance of

caution I would like to proffer our reasons for

striking this juror; the primary reason being that

she is unemployed and as a result she will be in

court four days a week, all day long, would be

unable to seek work during that time.

She would also not be able to get work during

that time and even if she were to obtain night

shift work as she said she was seeking, that

would take her working all day long in court, and

then until 11 o’clock on the night shift. That’s

simply not conducive to being able to serve and

to pay attention despite her statements that she

would try to do that.

76

So that is the first reason.

The second reason is that in this case, especially

with all of the events and all of the threats and

the way this is from North Philadelphia, the fact

that she lives in North Philadelphia is

troublesome. There are a lot of events that

occurred, and even though these specific areas

did not give this juror cause for concern, it still

concerns the government.

There are potentially 200, 250 witnesses in this

case, many of them are going to be from North

Philadelphia, who would testify to events that

happened there.

This is a case that involves violence, witness

intimidation. There’s even a statement in the

Court, intercepted communications from Mr.

Savage indicating that he wanted to go after a

juror. It’s a big concern to the government that

we would have a juror specifically from North

Philadelphia.

A34:18030–31.

Northington responded that the Government had not

taken issue with seating Number 149—a white male—the day

before, even though he would have been working seventy to

eighty hours a week while serving as a juror and working in the

77

business that he partially owned.50 Northington also pushed

back on the Government’s second reason for striking Number

185, pointing out that the crimes in this case had actually been

committed in various parts of the city. Counsel added that the

Government had “already exercised strikes on minorities.”

A34:18033. The District Court interjected that some of the

strikes of minorities had been made by the defense. Merritt’s

50

Number 149 testified that he was part-owner of a business

and the “sole person in the organization that deals with

contracts for new work.” A34:17975. He expressed his belief

it would be a hardship to serve, but thought it was “doable.”

Id. When questioned further by Savage’s counsel, the

prospective juror mentioned his two-hour commute into the

city and stated that jury service would be “extremely difficult.”

A34:17982. Yet Number 149 acknowledged he was used to

working long hours and believed he could be a fair and

impartial juror. The Government saw no need to strike for

cause. But Savage moved to strike for cause based on hardship

and because he believed Number 149 was “substantially

impaired from considering in a meaningful way mitigation

circumstances based on this strong sense of accountability.”

A34:18005. In short, Savage considered Number 149 as

moving “the needle towards the death penalty.” A34:18006.

The District Court rejected the request to excuse for hardship,

highlighting the prospective juror’s “willingness to be fair and

impartial.” Id. When Savage’s counsel argued that this

prospective juror would be unable to give full attention to the

case, the District Court disagreed. After his unsuccessful bid

to excuse Number 149 for cause, Merritt exercised a

peremptory strike.

78

counsel then noted that residents of North Philadelphia are

primarily black, with Savage’s counsel then speculating that

the Government was “disappointed they didn’t get [Number

185] to say something” that would have been a basis to excuse

her for cause. A34:18036.

The District Court took the Batson challenge under

advisement and commenced the voir dire of the last

prospective juror of the day. That person was excused, and the

parties returned to the subject of the Batson challenge.

Kidada’s counsel recounted that there had been eight black

prospective jurors called and summarized the status of each.51

She acknowledged that

we don’t have a long laundry list of individuals

to show that there is a pattern, I think the case

law talks about a pattern within the confines of

the number of minorities that you actually bring

into the courtroom and actually interview as we

have done here. Strictly with regard to race, our

position is that the government has peremptory

challenges of two of these African-Americans,

and that if you expand on that, there was one

51

As noted previously, Number 2 had been seated, Number 11

was stricken for cause, Number 20 was removed by the

Government’s peremptory strike, Number 79 was excused for

hardship, Number 108 was removed for cause, Number 110

was excused due to anonymity concerns, and Number 118 was

excused for hardship. Number 185 was the eighth black

prospective juror interviewed.

79

Hispanic that the government exercised a

peremptory challenge today.52

A34:18042.

Savage argued that excluding prospective jurors simply

because they reside in North Philadelphia—especially when

they have not expressed concern about serving on the jury—

was improper. He asserted that the prosecution should have

moved to exclude generally on that basis prior to voir dire if

they were seeking such a limit on who from Philadelphia

County could serve on the jury. North Philadelphia, the

defendants argued, comprises a vast area and that striking

prospective jurors because they come from that part of the city

is tantamount to “striking people on the basis of their race.”

A34:18049.

The prosecution repeated that its primary concern was

Number 185’s unemployment and that it did not “want

unemployed people on the jury as a rule. It doesn’t make any

difference whether they are white, black or otherwise.”53

A34:18049. The Government noted that it was not challenging

the prospective juror for cause, but using a peremptory strike.

As to Number 185’s residing in North Philadelphia, the

prosecutor stated that this was, for him, reason for having a

“residual concern” about her. Id. at 18051. Finally, the

52

The record does not indicate which prospective jurors were

Hispanic and the extent to which they were challenged for

cause or the subject of a peremptory strike.

53

The prosecution also offered that it struck an unemployed

white female, which Savage does not dispute.

80

Government emphasized that this prosecution was not only

about drug dealing but also included episodes of violence and

witness intimidation, pointing to Savage’s cellblock comments

about “going after jurors.” Id. at 18052.

The District Court ruled that the prosecution provided

“race neutral reasons.” A34:18055. The judge declared:

In looking at the situation, counsel has given me

information with regard to what has transpired

during the course of the jury selection that’s

helpful information. We do have one African-

American juror who was already selected to sit

in this case. There was one other African-

American juror that was excused as a result of a

peremptory challenge by the government. We

now have this juror who is African-American,

and the government has exercised a peremptory

challenge. It does not appear to me that the

government is exercising its challenges, at least

at this juncture, based upon race. As I said a

minute ago, the reasons given by the government

are race neutral. It’s not unusual for an attorney,

whether it be the defense or a prosecutor, to be

concerned about a juror who may live in an area

where the crime scene is by and large located.

With regard to the juror’s hardship, there is no

question but that having her here and looking for

a job, and if she finds a job, working almost

around the clock would be a difficult situation.

81

Under the circumstances, I’m going to deny the

Batson challenge. I think that the government

has not exercised its challenge for racial reasons.

A34:18055–56. In response to a question from Northington’s

counsel, the District Court acknowledged the broad expanse of

North Philadelphia and gave leave to the defense to ask

additional questions during voir dire of other prospective jurors

from North Philadelphia “without getting into exactly where

the juror lives.”54 Id. at 18057.

54

Subsequently, Savage raised a Batson challenge to the

exclusion of Number 364, a forty-six-year-old black woman.

The District Court recounted the following:

The Government offered the following reasons

for the strike. First of all, that the juror has

indicated that she does not support the death

penalty. On the jury questionnaire she indicated

that she was opposed to the death penalty and

that it should be used only in extreme cases. The

Government also indicated that they were

concerned that the juror’s son had been involved

in a shooting incident. He was shot while sitting

in a car and that this was similar to a matter that

is before this court, the Tybius Flowers shooting.

The Government points out that the juror became

very emotional during the questioning with

regard to that incident, actually started crying.

82

The voir dire process resulted in seventy-eight qualified

prospective jurors who were neither removed for cause nor for

hardship. Of these seventy-eight, eleven were black. After the

parties exercised their peremptory strikes, the jury was

comprised of ten white venirepersons, two black

venirepersons, five white alternates, and one black alternate.

The jury went on to find Savage guilty as charged.

Post-trial, Northington filed a timely motion for a new

trial, which Savage joined. The motion asserted, inter alia, that

the District Court erred by rejecting the Batson challenges

raised by the defense. Judge Surrick noted that the

Government’s reasons for striking Number 185 were: (1) that

“she was unemployed, was actively seeking a job, and was

looking for a position where she could work night shifts”; and

(2) that “the Government had concerns about the juror’s

The juror also indicated that the crime had not

been solved and that she thought the police were

indifferent in dealing with it. The Government

also indicated that the juror’s boyfriend was

arrested on an assault charge and the juror visited

that boyfriend in prison.

The Government was concerned about all of

these things and these are the reasons why they

exercised the peremptory challenge. These

reasons are all race neutral and they are credible.

A34:18073–74. Savage does not challenge the District Court’s

ruling as to this prospective juror on appeal.

83

residency—North Philadelphia—in light of the circumstances

of this case.” A1:158. The judge upheld his earlier conclusion

that the strike had been for legitimate race-neutral reasons. He

explained that “[b]ased upon all of the circumstances,

including the fact that, prior to this strike, an African-American

juror had already been empaneled, and taking into account the

prosecutor’s demeanor and credibility, we are satisfied that the

Government’s reason for striking the juror was not pretextual

and not in any way motivated by a discriminatory intent.”

A1:159.

B. Applicable Law

In Batson v. Kentucky, the Supreme Court explained

that “[p]urposeful racial discrimination in selection of the

venire violates a defendant’s right to equal protection because

it denies him the protection that a trial by jury is intended to

secure.” 476 U.S. at 86. When determining whether there has

been purposeful discrimination in the striking of a prospective

juror, the district court engages in a three-step process:

First, a defendant must make a prima facie

showing that a peremptory challenge has been

exercised on the basis of race; second, if that

showing has been made, the prosecution must

offer a race-neutral basis for striking the juror in

question; and third, in light of the parties’

submissions, the trial court must determine

whether the defendant has shown purposeful

discrimination.

84

Snyder, 552 U.S. at 476–77 (citations and internal quotation

marks omitted). The Snyder Court emphasized that this

analysis requires consideration of “all of the circumstances that

bear upon the issue of racial animosity.” Id. at 478.

In Hernandez v. New York, the Supreme Court

instructed that when the prosecution offers to explain its

reasons for exercising its peremptory strike “without any

prompting or inquiry from the trial court,” “the preliminary

issue [at step one] of whether the defendant had made a prima

facie showing becomes moot.” 500 U.S. 352, 359 (1991).

“The second step of this process does not demand an

explanation that is persuasive, or even plausible.” Purkett v.

Elem, 514 U.S. 765, 767–68 (1995) (per curiam). Rather, it

requires

[a] neutral explanation . . . mean[ing] an

explanation based on something other than the

race of the juror. At this step of the inquiry, the

issue is the facial validity of the prosecutor’s

explanation. Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the

reason offered will be deemed race neutral.

Hernandez, 500 U.S. at 360.

The third step requires the trial court “to determine if

the defendant has established purposeful discrimination.”

Batson, 476 U.S. at 98. “It is not until the third step that the

persuasiveness of the justification becomes relevant.” Purkett,

514 U.S. at 768. “Step three of the Batson inquiry involves an

evaluation of the prosecutor’s credibility, . . . and the best

85

evidence of discriminatory intent often will be the demeanor of

the attorney who exercises the challenge.” Snyder, 552 U.S. at

477 (internal quotation marks, bracket and citations omitted).

This step requires the trial judge to decide “whether the

prosecutor’s proffered reasons are the actual reasons, or

whether the proffered reasons are pretextual and the prosecutor

instead exercised peremptory strikes on the basis of race. The

ultimate inquiry is whether the [government] was ‘motivated

in substantial part by discriminatory intent.’” Flowers, 139 S.

Ct. at 2244 (quoting Foster, 136 S. Ct. at 1754).

The “question of discriminatory intent [at step three]

represents a finding of fact of the sort accorded great deference

on appeal.” Hernandez, 500 U.S. at 364. Because this finding

will “largely turn on . . . credibility,” id., it is reviewed for clear

error, id. at 369. See also Snyder, 552 U.S. at 477 (“On appeal,

a trial court’s ruling on the issue of discriminatory intent must

be sustained unless it is clearly erroneous.”). As the Supreme

Court has instructed, “where there are two permissible views

of the evidence, the factfinder’s choice between them cannot

be clearly erroneous.” Hernandez, 500 U.S. at 369 (quoting

Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).

In ruling upon a Batson objection, the circumstances

warranting consideration may include statistical evidence

relating to the government’s use of peremptory strikes. Miller-

El v. Dretke, 545 U.S. 231, 240–41 (2005). But side-by-side

comparisons can be more powerful than statistics. Id. at 241.

“If a prosecutor’s proffered reason for striking a black panelist

applies just as well to an otherwise-similar nonblack who is

permitted to serve, that is evidence tending to prove purposeful

discrimination to be considered at Batson’s third step.” Id.

86

C. Savage’s Claims of Error

Against this legal backdrop, we turn to the substance of

Savage’s Batson challenge. Savage agrees there’s no need to

address the first step in the analysis as the prosecution offered

its reasons for exercising the peremptory strike. See

Hernandez, 500 U.S. at 359. Nor does Savage contend that the

Government failed to offer race-neutral reasons for striking

Number 185: the prospective juror’s unemployment and the

safety concerns associated with her residence are both facially

neutral.55 Savage tacitly acknowledges as much in that he

targets the District Court’s engagement with the third step of

the Batson analysis: its determination that there was no

purposeful discrimination. See Def. Br. 155–56. Savage

contends that the nondiscrimination finding was clearly

55

Of course, the defense did assert during voir dire that striking

Number 185 because she lived in North Philadelphia—an area

that was in their view “predominantly” black—was simply a

proxy for “striking people on the basis of their race.”

A34:18034; 18049. But the record here is devoid of evidence

concerning the racial composition of North Philadelphia.

Moreover, the Government did not simply identify where

Number 185 resided as the reason for striking her. It noted its

concern about safety and security given the circumstances of

the case that warranted the empanelment of anonymous juries

in 2005 and again in this prosecution. Considering the totality

of the Government’s second reason for exercising a

peremptory strike, we see nothing inherently suggestive of

racial discrimination.

87

erroneous because the District Court procedurally and

substantively erred.

1. Procedural Error in the District Court’s

Analysis

The Supreme Court has reiterated that trial courts must

consider “all of the circumstances that bear upon the issue of

racial animosity” in ruling on a Batson objection. Foster, 136

S. Ct. at 1748 (quoting Snyder, 552 U.S. at 478); see also

Miller-El, 545 U.S. at 239. Savage contends that the District

Court failed to heed this instruction and engage with the

evidence before it.

We cannot conclude that the District Court failed to

consider all of the circumstances. We have “note[d] that ‘a

judge considering a Batson challenge is not required to

comment explicitly on every piece of evidence in the record.’”

Hardcastle v. Horn, 368 F.3d 246, 259 (3d Cir. 2004) (quoting

Riley v. Taylor, 277 F.3d 261, 290 (3d Cir. 2001)). Here, the

District Court heard argument from counsel for all the parties,

took the objection under advisement, entertained further

argument from the parties, was very familiar with the security

issues surrounding this prosecution, and had the opportunity to

observe the demeanor of counsel and all prospective jurors

before ruling on any challenges.

2. Substantive Challenges to the District

Court’s Ruling

Savage first faults the District Court for considering the

fact that a black juror had already been seated. Savage relies

88

on Sanchez v. Roden, 753 F.3d 279, 299 (1st Cir. 2014), in

arguing that this observation by the judge constituted error. In

Sanchez, the First Circuit reviewed a ruling in a § 2254 petition

and concluded that the Massachusetts Appeals Court had

unreasonably applied Batson at step one by acknowledging the

“presence of other black people on the jury.” Id. The First

Circuit explained that “by focusing exclusively” on the fact

that some black jurors had already been seated, the court “sent

the unmistakable message that a prosecutor can get away with

discriminating against some African Americans . . . so long as

a prosecutor does not discriminate against all such

individuals.” Id. (emphasis omitted). Because the prosecution

had not been required to articulate a race-neutral explanation

for its challenge, the First Circuit vacated the judgment and

remanded for further proceedings.

Savage’s reliance on Sanchez is misplaced. It is one

thing for a court to “focus[] exclusively” at step one on the fact

that some black individuals have been seated on a jury, Id.

Such a narrow focus would be error. But a court may—indeed

should—consider all the circumstances at step three, including

the status of black prospective jurors who were not excused for

cause or hardship. Here, it was Kidada who, in responding to

the Government’s reasons for exercising its strike, initially

reviewed the status of the seven black prospective jurors called

prior to Number 185. And contrary to Savage’s assertion, the

District Court recited more than the mere fact that one black

juror had been seated. In ruling, the judge recounted the status

of the three black individuals who had not been excused

(Numbers 2, 20 and 185), and then considered the reasons

proffered by the Government for striking Number 185. The

89

District Court’s mentioning that Number 2, a black person, had

been seated on the jury was insufficient, by itself, to constitute

error in the ruling as to Number 185.

a. Number 149 and Number 185 are

not similarly situated.

Savage asserts that the District Court “failed to consider

or address the contrast between the Government’s treatment of

Jurors 149 and 185.”56 Def. Br. 160. In Savage’s view,

56

In a footnote, Savage submits that the Government’s

acceptance of other white prospective jurors with more

pressing hardships further demonstrates that its reasons for

striking Number 185 were pretextual. Def. Br. 161 n.71. He

specifically refers to Numbers 315, 551 and 734. But these

prospective jurors were not comparable. Savage cites the

“extreme inconvenience” of Number 315’s unavailability to

her children. Id. (citing A33:17562). Number 315, however,

was a working mother with two children, and the concern she

expressed was based in part on the possibility that the jury

would be sequestered. Number 551, Savage contends, had a

more pressing hardship than Number 185 as his “employer

could not find a replacement.” Def. Br. 161 n.71. But the

concern expressed about a replacement was assuaged when

Number 551 realized that finding a replacement was his

employer’s concern and not his. He therefore conceded he did

not have a personal hardship that would affect juror service.

As to Number 734, Savage cites her husband’s upcoming

surgery and her caregiver responsibility for her eighty-eight-

year-old mother as hardships that were greater than Number

185’s extended day. The transcript of voir dire reveals,

90

Number 149, a white male, and Number 185, a black female,

were similarly situated. If both served, he claimed, each would

be subject to extremely long days that might interfere with his

or her service on the jury. While the Government did not

object to Number 149, it did move to strike Number 185.

Miller-El teaches that “side-by-side comparisons” can

be “powerful” evidence “tending to prove purposeful

discrimination.” 545 U.S. at 241. Yet Savage correctly notes

that the District Court did not discuss Number 149. We do not

consider this an oversight. Number 149 had been voir dired

and challenged by the defense just the day before, so the

District Court no doubt recalled what that voir dire had

revealed. While there is some congruence between Numbers

149 and 185 in that each would have been required to serve a

long day (yet only if Number 185 was able to obtain

employment) there were also significant differences. Notably,

Number 149 was not unemployed. In fact, he was a business

owner whose track record included regularly “work[ing] long

hours.” A34:18003. Number 185 had no such track record, so

her capacity and stamina for serving both on the jury and in a

part-time job were unknown. Further, the Government had no

however, that Number 734’s caregiver responsibility was not

for her mother, but her mother-in-law. Moreover, that

caregiver responsibility was simply companionship; her

mother-in-law would not be in physical danger if she were to

serve on the jury. And although her husband’s surgery would

require him to temporarily be in a sling, Number 734 stated

that he could “take care of himself,” A34:18129, and that after

the first four weeks of his recovery, her husband could then

assist with his mother’s care.

91

reason to be concerned for Number 149’s safety based on his

area of residence. Given the differences between Number 149

and Number 185, the side-by-side comparison does not support

Savage’s claim.

b. The Government’s concern about

Number 185’s safety was not

baseless.

Savage also contends that the Government’s express

concern for Number 185’s safety because she resided in North

Philadelphia was baseless. We acknowledge, as we must, that

Number 185 denied knowing any of the prospective witnesses

named on eleven pages of the jury questionnaire, and that she

did not express concern about serving on the jury. Yet her

responses do not themselves render the Government’s stated

safety concerns without merit. The indictment charged Savage

and others with participating in a RICO conspiracy that

involved murders, drug trafficking and arson, not to mention

tampering with and retaliating against a witness. The District

Court had already demonstrated its safety concerns by

directing that the jury would serve anonymously and that

special security measures were to be taken in transporting

jurors to and from court. And the District Court noted that an

anonymous jury had been seated in Savage’s 2005 trial. There

was also the prosecution’s stark reminder that Savage had

threatened to “go[] after jurors.” A34:18052.

Nor can we ignore that Number 185’s stated

unfamiliarity with those named in the jury questionnaire did

not rule out that she may have been unwittingly acquainted

with any one of them based on physical appearance from

92

having previously seen the person somewhere or even knowing

of a person by nickname. Based on the foregoing, we reject

Savage’s contention that the Government’s express concern

regarding Number 185’s North Philadelphia residence lacked

factual support.

c. Statistical evidence does not compel

a conclusion that the Government’s

peremptory strike was racially

motivated.

Savage’s final argument in support of his Batson claim

marshals statistical evidence that he claims demonstrates that

the Government’s strike was motivated by race.57 Savage

notes that of the seventy-eight prospective jurors in the venire,

the Government exercised twenty-two peremptory strikes, and

that six of them were against black prospective jurors. This

57

He asserts that statistical evidence was presented to, but

ignored by, the District Court when the defense raised its final

Batson challenge to Number 364. At that time, Savage

asserted that there was an “even greater pattern” of

discrimination, A34:18065, as the Government had exercised

twelve peremptory strikes and “50 percent of them have been

against minorities, four African-Americans and two

Hispanics.” A34:18061. Given the substance of Number

364’s voir dire examination and her emotional response to the

questioning about her son, the District Court was not obliged

to comment on all of the evidence before ruling from the bench.

There were several patently race-neutral grounds cited by the

prosecution for striking Number 364, all of which the District

Court found credible.

93

yields a 27.3% strike rate against Blacks that “far exceeded

[their] representation . . . in the venire as a whole (9.67%) as

well as in the master jury wheel for the Eastern District of

Pennsylvania (8.37%).” Def. Br. 165.

Savage also points out that the Government struck six

of the eleven black prospective jurors, which equates to a strike

rate of 54.5%. In contrast, the Government struck only sixteen

of the sixty-seven non-black prospective jurors, yielding a

23.9% strike rate.

Unsurprisingly, the Government contends that these

statistics are not a basis for overturning the District Court’s

Batson findings. Rather than address the total number of

Blacks in the venire, the Government focuses on the number of

Blacks at the time of the second Batson challenge to Number

364, when there were forty-three individuals in the venire, six

of whom were black. The Government highlights that it had

accepted three Blacks: Number 2, who was the first black juror

seated on the jury, and two others who, ironically, the defense

had struck.

We acknowledge that there is more than one way to

analyze the racial statistics presented in this case. Most

instructive for us are the numbers considered by the Supreme

Court in its more recent Batson cases, Miller-El, Foster and

Flowers—the total number of Blacks in the venire and the

number of strikes of those black venire members.

In Miller-El, there were eleven Blacks in the venire.

545 U.S. at 240, 265. The government struck ten of the eleven

94

black prospective jurors, which constitutes a “strike rate”58 of

91%. Id. at 240–41. These strikes were made “in a selection

process replete with evidence that the prosecutors were

selecting and rejecting potential jurors because of race” by

“shuffl[ing]” the jury59 and using “disparate lines of

questioning . . . meant to induce qualms about applying the

death penalty (and thus explain a strike),” id. at 265, as well as

phrasing questions in a way “meant to induce a disqualifying

answer,” id. at 266. Given these circumstances, the Court

rejected the state’s argument that it had not stricken two of the

prospective jurors because they were black. Id.

In Foster, stark numbers also contributed to the Court’s

conclusion that the prosecution had violated Batson. The

venire’s composition in that case included four Blacks. 136 S.

Ct. at 1743. The government struck each of them, yielding a

100% strike rate for the black prospective jurors. Id. at 1742–

43. Those numbers were accompanied by shifting

explanations for why the strikes were made,

misrepresentations about the record, and a copy of the

prosecutor’s annotated file identifying not only which

venirepersons were black but also focusing on race in several

other respects with an eye to seating an all-white jury. Id. at

1744–45, 1754. The Supreme Court commented that the

58

Miller-El does not utilize the term “strike rate.” But it did

compute the percentage of Blacks in the venire that were

stricken by the government. For that reason, we use the term

“strike rate.”

59

Miller-El explained that jury shuffling is a Texas procedure

that allows either party to rearrange the order in which the

venire is seated and questioned. 545 U.S. at 253.

95

“sheer number of references to race in that file is arresting.”

Id. at 1755.

Most recently, the Supreme Court vacated the judgment

of the Mississippi Supreme Court in Flowers after concluding

that the evidence demonstrated the state court had committed

clear error in rejecting the defendant’s Batson challenge. 139

S. Ct. at 2251. The venire in Flowers’s sixth trial included six

Blacks. The state moved to strike five of the six Blacks in the

venire, yielding a strike rate of 83%. Id. at 2237. The Supreme

Court also considered the state’s repeated use of peremptory

strikes in all of Flowers’s six trials, cumulatively removing

forty-one of forty-two Blacks, an overall strike rate of 97.6%.60

Id. at 2235–36. This usage of strikes against black

venirepersons was consistent with other evidence of

discriminatory strikes. Together, all the evidence convinced

the Court that striking one of the black prospective jurors had

been “motivated in substantial part by discriminatory intent.”

Id. at 2248. The Court “reiterate[d]” that it did not “decide that

any one . . . fact[] alone would require reversal.” Id. at 2251.

Rather, it emphasized that “all of the relevant facts and

circumstances taken together establish that the trial court at

Flowers’s sixth trial committed clear error” in denying the

defendant’s Batson objection. Id.

Here, contrary to Savage’s characterization, the

numbers are not comparable. There were eleven Blacks among

the prospective jurors. The Government’s challenging of six

of the eleven established a 54.5% strike rate. That percentage

60

At times, the state used all, or almost all, of its peremptory

strikes against Blacks. 139 S. Ct. at 2236–37.

96

is well below the strike rates of 91% in Miller-El, 100% in

Foster, and 83% in Flowers.

Moreover, the 54.5% rate in this case is not nearly as

powerful as Savage contends because we may take into

account the seating of the black alternate. See Bond v. Beard,

539 F.3d 256, 269–70 (3d Cir. 2008) (considering black

alternates in determining whether the government’s strikes

raised an inference of discrimination). Accordingly, there

were twelve Blacks in the venire thereby yielding a strike rate

of 50%. That strike rate, by itself, hardly supports Savage’s

Batson claim.

* * *

In sum, we conclude that Savage has failed to establish

that the District Court clearly erred when it found that the

Government’s strike of Number 185 was not motivated by

race. At the time of this Batson challenge, the District Court

made a finding that the “government ha[d] not exercised its

challenge for racial reasons.” A34:18056. Later, in ruling on

post-trial motions, the District Court expressly took “into

account the prosecutor’s demeanor and credibility” and found

that the Government was not “motivated by a discriminatory

intent.” A1:159. These factual findings are entitled to “great

deference.” Hernandez, 500 U.S. at 364. We will not disturb

them.

97

IX. THE DISTRICT COURT DID NOT PLAINLY ERR IN

INSTRUCTING THE JURY ON THE DOCTRINE OF

TRANSFERRED INTENT.

This claim concerns the 2004 firebombing of the

Coleman house. Recall that Coleman’s mother, Marcella, was

in the home with his infant son (Damir Jenkins), his twelve-

year-old nephew (Tajh Porchea), his fifteen-year-old nephew

(Sean Rodriguez), his cousin (Tameka Nash) and her ten-year-

old daughter (Khadijah Nash). All six individuals—two adults

and four children—perished in the fire. Savage was charged

with the six murders as violent crimes in aid of racketeering

(“VICAR”) under 18 U.S.C. § 1959.

In his jury charge, Judge Surrick explained the doctrine

of transferred intent. That instruction was given to assist the

jury in deciding whether, if it found that Savage had a specific

intent to kill Marcella Coleman, such intent could be

“transferred” to the five other victims to meet the intent

element of the six VICAR murder charges. Specifically, the

District Court instructed:

Now, in determining whether a defendant, in this

instance Kaboni Savage, Robert Merritt, Kidada

Savage, committed the murders of the Nash

family as noted in Counts 10 through 15, you

may find that any such crime was committed in

aid of racketeering by applying the following

principle of transferred intent. The doctrine of

transferred intent and its additional application

says that if a defendant shoots one person with

the intent to kill and inadvertently kills another,

98

you are permitted to attribute or transfer the

defendant’s intent to kill to the second person.

Now, as applied in this case, ladies and

gentlemen, that principle says that if a defendant

planned to commit a murder to maintain or

increase his or her position in an enterprise and

in attempting to carry out that plan committed a

murder of another person, the intent of the

planned murder may be transferred to the other

murders. What this means for your purposes,

ladies and gentlemen, is that the government

may prove the fourth and fifth elements of the

offense charged in Counts 11 through 15 by

proving that on October 9, 2004, Defendants

Kaboni Savage, Robert Merritt and Kidada

Savage specifically intended to cause the death

of Marcella Coleman for the purpose of

maintaining or increasing their position in the

enterprise, and then willfully set the fire that

killed Tameka Nash, Sean Anthony Rodriguez,

Tajh Porchea, Khadijah Nash and Damir

Jenkins, as well as Marcella Coleman. So the

intent to kill Marcella Coleman is transferred to

the other victims.

A29:15197–99 (emphasis added).

Savage claims this instruction incorrectly defined the

doctrine of transferred intent and thereby impermissibly “gave

jurors permission to ‘transfer’—or more accurately, to

multiply—Savage’s alleged intent that Lamont would kill

Marcella Coleman . . . to the other arson victims, including the

99

children.”61 Def. Br. 167. In addition, because a similar

instruction was given at sentencing, Savage claims the

instruction “infected Savage’s capital-sentencing hearing,

producing an unreliable death verdict.” Id. We are not

persuaded.

A. Standard of Review

A defendant claiming error in jury instructions must

inform the District Court of any specific objection and specify

the grounds for it. See Gov’t of Virgin Islands v. Cruz, 478

F.2d 712, 718 (3d Cir. 1973); Fed. R. Crim. P. 30(d), 52(b).

Savage did not object on the trial record to the transferred

intent instruction, despite the District Court’s reminders to

counsel that they should do so. See A29:15225 (“All right,

counsel, any additions or corrections to the Court’s charge?”);

A29:15227 (In response to a reference to a discussion during

the charge conference, the District Court stated: “You better be

more specific because we were in chambers, and it’s not on the

record.”).

Because the claimed error is unpreserved, we review for

plain error. Jone

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