NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0308n.06 No. 09-4194 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. ALARIC F . SIMON, Defendan t-Appellant. / ON AP P EAL F ROM THE UN ITED STATE S DISTRICT COURT F OR THE SOUTH ERN DISTRICT OF OHIO

BEFORE: BATCHEL DER, Chief Ju dge, CLAY, and S UTTON, Circuit Judges. CLAY, Circuit Judge. Def endant Alaric F. Simon, convicted by jury of conspirac y to distribute a

nd to possess with intent to di stribute five or mor e kilogr ams of coca ine in violation of 21 U.S.C. §§ 841(a) (1), (b)( 1)(A) , and 846, and sentenc ed to ten y ear s of incar cer ation, appea ls the district court’s judgme nt denyi n g h i s claim that the prosec ution violated Batson v. Kentucky , 476 U.S. 79 (1986), when it used a pere mptory strike to exclude an Afric an-A merica n juror from the jury venire

. This is the second time this matter has been befor e this Court; in 2008, a panel of this Court

reve rsed and rema

nded a district court order denying Def endant’ s Batson claim on g rounds that the district court failed to apply the corr ect leg al standard. See United States v. Torres-Ramos , 536 F.3d 542, 558–60 (6th Cir. 2008)

. On re mand, the district cour t once a g ain denied D efe ndant’s BatsonNo. 09-4194

claim. Def

endant now a

ppeals. F or the re asons set for th below, the judg ment of the district court is AF F IRMED

. BACK GR OUND On May 26, 2004 , Def

endant Alaric F. Simon was arr ested in Shelby County , Ohio, afte r

acc epti ng delivery of nine kilogr ams of coca ine from co-f elons who, unbeknownst to him, had
enter ed into a cooper ation ag ree ment with the authorities. Def endant was indicted on one count of conspirac y

to distribute and to possess with intent to distribute five or more kilogr ams of coc aine, in violation of 21 U.S.C. §§ 841(a) (1), (b)( 1)(A) , and 846. Def en d an t pleade d not guilty to the char g es, as did his co-f

elon, Rudolph Rhaburn, an d t h ei r case proce eded to jury trial befor e the United States District Court for the Southern D istrict of Ohio. On Dec ember 8, 2005, jur

y selec tion beg an. The initial jury venire was comprised of fifty -six potential jurors: fifty Cauca sians, five Afric an-A merica ns, and one Asian-Ame rica n. After fiftee n jurors wer e excused for ca u s e, t hirty -six Cauca sians, four Afric an-A merica ns, and one AsianAmeric an rema ined on the panel. During voir dire, the prosec ution was g iven n i n e p er emptory strikes, while the defe nse was g iven fiftee n. The defe nse used its pere mptory challeng es to exclude 1 eig ht Ca ucasia n jurors and passed on its rema ining seven rema ining strikes. The prosec ution use d its pere mptory challeng es to exclude three Cauca sian jurors as well as J uror No. 26, who is Afric anAmeric an. Def endant, who is Afric an-A merica n, objected under Batson v. Kentucky and a hear ing was held t o deter

mine whether the prosecution’s strik e o f J uror No. 26 was racially motivated. When

Def end ant was tr ie d t ogethe r wi th his co-felo n, Rud olp h Rha bur n. 1 2No. 09-4194

asked to explain the basis for its strike, the prosec ution state d that J uror No. 26 had been excluded beca use of his perc eived lack of intelligenc e, which the prosec ution believed was important beca use “the more intelligent the j u ro r i s , the better they will see betwee n g ood evidenc e and things that might diver

t their attention from the f acts of guilt.” In explaining why J uror No. 26 appea red to be less intelligent, the prosec ution cited J uror No. 26’s educational background, which ref lected that he had rec eived a high school diploma and taken classes at a community colleg e and car eer cente r. The prosec ution also cited J u ro r No

. 26’s employ ment status, specifica lly , the fact that he had be en laid off from his job as a f

actor y worke r wher e his responsibilities had been limit ed. Whil e the prosec ution made a passing ref ere nce to J uror No. 26’s “blue collar” appea ranc e and so-ca lled u n s o p h isticated handwr iting, the prosec ution explained that education and employ ment status were the principa l rea sons for its strike, stating: We can’ t look at i ndividuals and determine wh et her they are intelligent or not. All we can do is discern from t h ei r l evel of education what—the amount of schooling they h av e h ad and tell us about on the questionnaire, what employ ment they have, what their life situation is and the information that they provide in the courtroom in answe ringquestions. The prosec ution expli citly linked J u ro r No

. 26’s employ ment status to his perc eived level of intelligenc e, stating, “I think that somebody who has been laid off and u n em p l o y ed hasn’t, for whateve r rea son, not been able to obtain another ty pe of employ

ment is not the ty

pe of juror that we want to discer

n this evidence .” After considering the prosec ution’s rac e neutra l explanation, the district court reje cted Def endant’ s Batson objection. The district court stated that while J uror No. 26’s jury questionnaire did not support the prosec ution’s conclusion that J uror No. 26 would be an unsuitable jury member,

3No. 09-4194

the court was unable to conclude that the prosec ution’s explanation was a p re t ex t for purposef ul dis cr i m i n at i on, based on the totality of the circ umstances. The district court rea soned that one Afric an-A merica

n juror still rema ined on the jury venire , and that the only other Afric an-America n to be excused from the jury had been ex cu s ed for cause . The district court also noted that the prosec ution had used its pere mptory strikes to exclude sever al Cauca sian jurors whose educational backgrounds wer e simil ar to J uror No

. 2 6 , lending cre dibilit y to the prosec ution’s rac e neutra l explanation. Howeve r, the district court failed to eng ag e in a sy stematic comparison of jurors excluded by the prosec ution and jurors who wer e not excluded, to deter mine whether J uror No. 26 was similarly

situated to jurors who re mained on the pa nel. The final jury impaneled for Def endant’ s trial was comprised of eleve n Cauca sian jurors, one Afric an-A merica

n juror, and two alternate jur o rs wh o wer e Asian-Ame rica n and Cauca sian, respe ctively

. On Dec ember 16, 2005, following a one-w eek trial, Def endant was convicted of one count of conspirac y to distribute and to possess with the intent to distribute five or more kilogr ams of coca ine in violation of 21 U.S.C. §§ 841(a) (1), (b)( 1)(A) , and 846. Def endant was sentenc ed to ten y ear s of incar cer ation, five year s supervised r elea se, and 100 hour s of community service

. Def endant filed a timely notice of appea l, seeking revie w of his sentenc e and conviction on g rounds that (1) evidenc e supporting the conviction should have been suppressed under the Four th Amendment exclusionary rule; (2) his arr est was not supported by probable cause ; (3) his conviction

was not supported by sufficie nt evidenc e; and (4) the prosec ution impermissibly struck an Afric anAmeric an juror in violation of Batson

.

4No. 09-4194

In a decision dated August 7, 2008, a panel of this Court aff irmed the district court with respe ct to the first three claims, but reve rsed and rema nded its Batson deter

mination on g rounds that the district court misapplied the leg al standard for Batson challeng es. See Torres-Ramos , 536 F.3d
at 5 58–60. Noting that “the prese nce of one Afric an-A merica n on the jury does not p re cl u d e a Batson challeng e,” id. at 558, the panel held that the district court err ed when it failed to conduct a

co m p arative juror analy sis and examine at least three Cauca sian jurors whose backgrounds we re simil ar to Juror No. 26’s but who re mained on the jury

. The pa nel stated: 2 In the instant c ase, rathe r than eng ag ing in side-by -side compar isons of some black venire panelists who wer e struck and white ones who wer e not, t h e district court compar ed the e xc lu d e d A f r ic a n-Amer ican to other, white panelists who had also been excluded. In other words, rathe r than asking whether simil arly situated people wer e treated differ ently , the district court instead sear ched for simil ar l y situated people who wer e treated the same. This kind of inquiry , which seeks simil arity and ignor es differ ence s, is not what the Equal Protection Clause r equire s. Id. at 560 (interna l citations and quotation marks omitted). The panel also stated that the district
court err ed when it failed to examine the jury questionnaires and other forms of rele vant and “ea sily available ” evidenc e befor e making its Batson ruling

. Acc ording ly , the panel reve rsed and rema nded
to the district co u rt for rec onsideration of whether , in light of additional evidenc e, Def endant’ s Batson challeng e “r equire s that his conviction be re verse d.” Id. at 561. On rema nd, the parties agree d to forg o a hear ing and have decision on the briefs. The district
court rec eived additional briefing as well as evidenc e in the form of jury questionnaires, an officia l

T he t hre e Ca uca si an j uro rs who we re re fe rr ed to by the pan el have sinc e been ide nti fi ed as J uro r 2 Nos. 19, 21, and 23. Def end ant has al so ide nti fi ed thr ee addi ti ona l non- exc lud ed j uro rs whom he bel ie ves ar e s imila rl y sit uat ed t o J uro r No . 26. T hes e a re J uro r No s. 2 , 11, and 17. 5No. 09-4194

jury list and the courtroom deputy ’s notes on the jury list, the voir dire transcr ipt, an aff idavit from the prosec utor, and the pr osecutor’ s persona l memoranda

. In an opinion dated September 8, 2009, the district court aff irmed its Batson ruling

. The district court held that J uror No. 26 was not simil arly situated to any of the jurors who rema ined on the panel, in cl u d i n g t h e three Cauca sian jurors ref err ed to by this Court. The district court distinguished the non-excluded jurors based on their employ ment status—noting that while sever al jurors did not have colleg e educations, they had jobs, wer e self-e mploy ed, homemaker s, or retire d. The d i s t ri ct court also commented on the char acte r of the other jurors’ jobs—noting that when employ ed, J uror No. 26 had eng ag ed in “routine and repe titive” fac tory work, while the jurors who

rema ined on the panel had jobs that require d the exercise of cre ativity or responsibility

. The district
court proce eded to deny Def endant’ s Batson claim, concluding , “the Gover nment struck [J uror No. 26] beca use it believed that his lack of employ ment demonstrated that he was not intelligent enoug h to be a g ood juror.” Def endant f iled this ti mely

appea l. DISCUSSIO N I. The District C ourt’s Judgm ent Re garding Defend ant’s Batson Challenge A. Stand ard of Review Be cause “[a]n appellate court, confine d to revie wing transcripts from voir dire, is not as well positioned as the trial court is to make cre dibilit y deter minations,” we revie w a district court’s deter mination of a Batson challeng e for clea r err or. United States v. W atford , 468 F.3d 891, 914 (6th Cir. 2006) (citing Miller-El v. Cockrell , 537 U.S. 322, 339 (2003) (i n t er n al quotation marks

6No. 09-4194

omitted)); see also Snyder v. Louisi ana , 552 U.S. 472, 477 (2008); United S t ates v. Odeneal , 517 F.3d 406, 413 (6th Cir. 2008). Howeve r, “[d] efe renc e does n o t b y d efinit ion prec lude relief ,” Cockrell , 537 U.S. at 340, and when a district court makes an err oneous Batson deter mination, it is
structura l e rror

mandatingretria l. See U nited States v. Mc

Ferron , 163 F.3d 952, 955–56 ( 6th Cir. 1998). B. Elem ents of a Batson Challenge In Batson v. Kentucky , 476 U.S. 79 (1986), the Supreme Court held that the Equal Protection Clause forbids the prosec ution’s use of pere mptory challeng es to exclude jurors on the basis of rac e. T h i s h o l d ing has since been expanded to forbid the use of pere mptory challeng es motivated b y g ender ; to forbid the use of discriminatory strikes by the defe nse; and to permit Batson claims when jurors of a differ ent rac e than the defe ndant are excluded from the jury p o o l. See, e.g., J.E.B. v. Alabama ex rel. T. B ., 511 U.S. 127, 129–31 (1994) (banning strikes based on g ender); Georgia v. McCollum , 505 U.S. 42, 59 (1992) (discussing reve rse Batson strikes by the defe nse); Powers v. Ohio , 499 U.S. 400, 402 (1991) (discussingcross-r acia l Batson challeng es). When a party raises a Batson challeng e, courts must perf orm a three-step analy sis. “F i rst, t h e t ri al court must deter mine whether the defe ndant has made a prima fac ie showing t h at t h e prosec utor exercised a pere mptory challeng e on the basis of race.” Rice v. Colli ns , 546 U.S. 3 33, 338 (2006). A de fenda

nt establishes a prima f

acie case when: (1) he is a m em b er of a cog nizable rac ial g roup; (2) the prosec utor has exercised pere mptory challeng es to remove from the venire members of the defe ndant’s rac e; and (3) these fac ts and other rele vant circ umstances raise an i n fer ence that the prosec utor used that prac tice to exclude the venire men from the petit jury on acc ount of their r ace .

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Odene al , 517 F.3d a

t 418–19. Once a prima fac ie case is established, “the burden shifts t o t h e p ro secutor to prese nt a

rac e-ne utral explanation for striking the juror in question.” Rice , 546 U.S. at 338. At this stag e, “the prosec utor’s rac e-ne utral explanation need not be “par ticularly persua sive, or even plausible, so long

as it is neutra l.” Torres-Ramos , 536 F.3d at 559 (citing United States v. Harris , 192 F.3d 580, 586 (6th Cir. 1999)); see also United States v. Kimbrel , 532 F.3d 461, 467 (6t h C i r. 2 0 0 8) (“Unless a discriminatory

intent is inherent in the [st rike proponent’s] explanation, the rea son offe red w ill be deeme d rac e neutr al.”) (citing Purkett v. E lem , 514 U.S. 765, 768 (1995) (pe r cur iam)). Howeve r, “the trial judge cannot sim ply acc ept t he prosecution’s ex plana t i on on its fac e.” Torres-Ramos , 536 F.3d at 559 (interna l citations and quotation marks omitted). Rather, as a final
ste p , re v i ew ing courts must assess the prosec utor’s cre dibilit y , weigh the streng th of the prosec ution’s asser

ted justification ag ainst the defe ndant’s prima fac ie case , and deter mine whether

a defe ndant has car

ried h i s b u rden of proving purposef ul discrimination in light of all rele vant circ umstances, including compar ative juror analy sis and arguments related to prete x t. See, e.g., Odene al , 517 F.3d at 419–20; Kimbrel , 532 F.3d at 466. “In the end, the ultimate burd en of persua sion alway s rests with the party challeng ing the strike.” United States v. Cecil , 615 F.3d 678, 686 (6th Cir. 2010); see also United States v. Tucker , 90 F.3d 1135, 1142 (6th Cir. 1996) (desc ribing Batson as a pr eponder ance of evide nce te st). Where, as here , the trial court has hear d and ruled on the prosec ution’s asser ted rac e neutra l justification, “the issue of whether the defen d an t m ad e a sufficie nt prima fac ie showing become s moot.” Tucker , 90 F.3d at 1 1 4 2 (c i t ing Hernande z v. New Y

ork, 500 U.S. 352, 358–59 (1991)

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(plurality opinion)); accord Braxton v. Gansheime r , 561 F.3d 453, 461 (6th Cir. 2009). There fore , the sole issue prese nted in this appea l is whether Def endant established “by a preponde ranc e of the evidenc e that the pere mptory strikes wer e intentionally discriminatory .” Tucker , 90 F.3d at 1142. C. Analysis 1. Com parative juror analysi s does not establish pu r po s e fu l di s c r im ination “I f a prosec utor’s proff

ere d rea son for striking a black panelist equally applies t o an otherwise- simil ar nonblack who is permitted to serve , that is evidenc e tending to prove purposef ul discrimination.” Odene al , 517 F.3d at 420 (quoting Miller-El v. Dretke , 545 U.S. 231, 241 (2005))

. In the instant c ase, the prosec ution struc k J uror No. 26 based on his perc eived lack of intelligenc e,

as demonstrated by his employ ment status and educational background, while reta ining a total of six Cauca sian jurors who had simil ar educational backgrounds— e.g., high school diplomas with some additional community

colleg e cour sework or

vocational tra ining. Had the prosecution base d its peremptory strike on educ ational status alone, De fenda nt on this rec ord may well have car ried his burden of establishing prete x t. See Odene al , 517 F.3d at 420 (finding Batson violation in light of “unexplained disparate trea t ment”). Howeve r, in making its initial proff

er, the prosec ution stated that it was striking J uror No. 26 beca use of his educational b ackground as well as his employ ment status, specific ally , the fac t that he was a laid off fac t o ry worke r. Peremptory strikes may be v al i d ly exercised on the basis of employ ment status and occupation. See United States v. Y ang , 281 F.3d 534, 549 (6th Cir. 2002) ; accord United States v. Cruz-Escoto , 476 F.3d 1081, 1089–90 (9th Cir. 2 0 07); United St ates v. T hompson , 450 F.3d 840,

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843–44 (8th Cir. 2006); Howard v. Moore , 131 F.3d 399, 408 (4th Cir. 1997); Garcia v. Exc el Corp ., 102 F.3d 758, 760 ( 5th Cir. 1997); United States v. Hunte r , 86 F.3d 679, 683 ( 7th Cir. 1996). Be cause the prosec ution’s statement that it was considering jurors’ employ ment status did
not “re ek[] of afte rthoug ht,” Dretke , 545 U.S. at 246, empl o y m ent status may be reg arde d as a materia l distinction for purposes of compar ative juror analy sis. Although a number of non-excluded jurors had high school educations and blue collar or low skilled jobs, only one non-excluded juror 3 had a high school educa ti o n an d wa s also unemploy ed at the time of jury selec tion. This juror—Juror No. 17—was Cauca sian, 45 y ear s old, and a high school g radua te who attended beauty school but left her position as the owner of a hair salon to become a stay at home mom. When asked to conduct a jur or compa

rison on rema

nd, the district c ourt found that J uror No. 17’s employ ment history , the voluntary nature of her unemploy ment, an d h er previous job duties sufficie ntly distinguished her

from the e x cluded juror

. Although jurors need not be identical to support a Batson challeng e, Odene a l , 517 F.3d at 420, we believe the differ ence s betwee n these two jurors wer e meaning ful. Acc ordi n gl y , we conclude that the district court did not commit clea r err or when it held that compar ative juror analy sis failed to establish prete x t.

2. The totality of circ um stances do not sup port a fi ndi ng o f p u rp oseful discrim ination

J uro r No . 19, a 44- year- old Cauc asi an female, was a high sch ool gradua te who t ra ine d an d ca re d 3 for hor ses ; J uro r No. 21, a 70- year- old Cauc asi an fe m al e, was a high s c h o o l gradua te sel f- employed as a dan ce te ach er ; and J uro r No. 23, a 40- year- old Cauc asi an m al e, was a high schoo l gradua te who worked in shi ppi ng and r ece iving. 10No. 09-4194

Whil e the final rac ial composition of a jury and simil arities betwee n exc luded jurors are not deter minative of whether a Batson violation occur red, see Torres-Ramos , 536 F.3d at 559–60, Harris , 192 F.3d at 587 (“[T]he prese nce of one Afric an-A merica n on the jury does not pr eclude a Batson challeng e”) , they are still fac tors rele vant to the totality of the circ umstances. See United States v. Sangineto-Miranda , 859 F.2d 1501, 1520–21 (6th Cir. 1990) (discussing fac tors); see also United States v. Hill , 146 F.3d 337, 342 (6th Cir. 1998) (noting that the final makeup of a jury can be conside red)

. In the instant ca s e, the prosec ution used pere mptory challeng es to exclude a total of four jurors: J uror Nos. 26, 30, 25, and 56. J uror No. 26 was the only Afric an-A merica

n juror excluded
t h rough the prosec ution’s use of a pere mptory strike, and the prosec ution waived a nu m b er o f i t s pere mptory challeng es, “lea ving open the possibili ty that an Afric an-A meric a n mi ght b e o n the jury .” Tucker , 90 F.3d at 1135 (citing Sangineto-Miranda , 859 F.2d at 1522). Wit h the exception of J uror No. 30, who appea

rs t o h av e b ee n dismiss ed for perc eived bias, the excluded jurors all share d 4 educational and employ

ment char acte ristics in common: all three jurors failed to complete a colleg e deg ree , and all three wer e unemploy ed at the time of jury selec tion. These fa ctors militate ag ainst

a finding of prete x t, and they support the district cour t ’s co n cl u s ion that discrimination did not motivate the prosec ution’s use of per emptory strikes. Acc ording ly , we hold that the district did not commit clea r err or when it found that Def endant f ailed to ca

rry his burden of e stablishing purpose ful discrimination.

J uro r No. 30 dis cl ose d to the dis tr ic t cou rt tha t she had a cl ose fa m il y m ember who suf fe re d fr om 4 dru g addic ti on. 11No. 09-4194 CONCLUSION Be cause the di strict co u rt d i d not commit clea r error when i t held t hat Defenda nt failed to

car ry his burden of establishing purposef ul discrimination, we AF F IRM the judgme nt of the district
court.

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