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w . v i l l a no v a . e du/thir dc ir c uit_2015/468NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 3230

_____________ UNITED STATES OF AMERICA

v. OLUFEMI ADIGUN, Appellant

______________ Appeal from the United States District Court for the Middle District of Pennsylvania ( D.C. Crim. Action No. 1

- 11

- cr - 00151

- 001 ) District Judge: Honorable Christopher C. Conner

______________ Submitted Under Third Circuit L

. A

. R

. 34.1(a)

March 26, 2015

_____________ _ ______________ Before: GREENAWAY, JR., KRAUSE, and GREENBERG, Circuit Judges

.

(Opinion Filed: May 7, 2015 )2 ______________ OPINION *

______________ GREENAWAY, JR., Circuit Judge

. Olufemi Adigun (“ Appellant ”) appeals the District Court ’ s judgment of conviction

on conspiracy, fraud, unlawful monetary transactions and money laundering charges

. Appellant argues that the G overnment improperly struck the sole potential African

American juror on the basis of her race and gender in violation of the Fourteenth Amendme nt. We hold that the District Court properly applied Batson v. Kentucky , 476 U.S. 79 (1986) and correctly determined that the G overnment ’ s peremptory strike did not violate the Equal Protection Clause

. We will affirm. 1

I. Factual and Procedural Histor y Appellant was indicted for counts of conspiracy to commit mail and wire fraud, money laundering, and related charges in connection with a complex fraud and money laundering scheme. After an initial mistrial, Appellant was re

- tried and convicted on

seve ral counts. During jury selection at the second trial, the G overnment exercised a peremptory strike to exclude an African

- American woman as a potential alternate juror. Appellant raised a Batson challenge , arguing that the strike was racially motivated. In response, t he

* This disposition is not an opinion of the full Court and pursuant to I. O.P. 5.7 does not constitute binding precedent

.

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; we have jurisdiction pursuant to 28 U.S.C. § 1291.3

G overnment explained they had eliminated the juror because: (1) s he was a state employee, and the G overnment ’ s experience was that state employees had a “liberal standpoint ; ” (2) she had only recently moved to Harrisburg , the trial venue ; and (3) she

was a relative ly uneducated typist. App. 117

– 18

. The G overnment later added that the juror was “ also a woman, ” and they were “ looking for male juror [s] [ who ] tend to be stronger leaders in the jury room.” App. 119. Appellant moved for a m istrial and to re

- panel the jury , arguing that the G overnment ’ s proffered race - neutral reasons for striking the juror were pretextual. The District Court denied Appe llant ’ s motions, crediting the G overnment ’ s explanation. Appellant did not object to the strike as gender

- based before the close of venire

. On the first day of trial, the District Court raised the issue of the G overnment ’ s gender

- based rationale sua sponte . The District Court acknowledged that intentional discrimination on the basis of gende r in the use of peremptory strikes violates the Equal Protection Clause, but upheld the strike under Gattis v. Snyder , 278 F.3d 222 (3d Cir. 2002), finding that the G overnment would have struck the juror even in the absence of any gender

- related reason.

A ppellant was convicted and sentenced following the jury trial.

II . Analysis Appellant argues that the District Court erred in permitting the G overnment to strike the sole African

- American juror based on her race and gender in violation of the Fourteenth A mendment.4

A

. Race

- based challenge

“ We review the District Court ’ s factual determination of whether discr iminatory intent motivated the g overnment ’ s peremptory strikes for clear error. ” United States v.
DeJesus , 347 F.3d 500, 505 (3d Cir. 2003) (citing U nited States v. Uwaezhoke, 995 F.2d 388, 394 (3d Cir. 1993), cert. denied , 510 U.S. 1091 (1994)). Under Batson , a court shall employ a three

- step procedure for evaluating claims of discrimination in the jury selection 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. Third, in light of the parties ’ sub missions, the trial court must determine whether the defendant has shown purposeful discrimination. ”
Williams v. Beard , 637 F.3d 195, 205 (3d Cir. 2011) (quoting Miller

- El v. Cockrell , 537 U.S. 322, 328

– 29 (2003) (discussing three

- step inquiry under Bats on )). 2 As to step two , the record is clear that the G overnment provided several race

neutral reasons for striking the juror. The G overnment noted that the juror may have had a l iberal bias based on being a state employee, had only r ecently moved to the city of the trial , and was relatively uneducated. “ [ T ] he Supreme Court has purposely set a relatively low bar at step two . . . . ‘ U nless a discriminatory intent is inherent in the prosecutor ’ s

2 Because the G overnment offered several race

- neutral reasons for the strike and the Di strict Court proceeded to a full Batson analysis, the issue of whether Appellant made a prima facie showing of racial discrimination is moot. See Johnson v. Love , 40 F.3d 658, 663

– 64 (3d Cir. 1994) (citing Hernandez v. New York , 500 U.S. 352 , 359 (1991)).5

explanation, the reason offered will be deemed race neutral. ’ ” Hardcastle v. Horn , 368 F.3d 246, 257 (3d Cir. 2004) (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) ( per curiam )). T he G overnment ’ s asserted reasons are not inherently discriminatory and thus satisfy step two

. Finally, at step three , the District Court did not abuse its disc retion in determining that the G overnment advanced non

- pretextual, race

- neutral reasons in support of the strike. In this context, w e afford the trial court ’ s determination considerable deference because it depends in large pa rt upon the credibility of the attorney exercisin g the strike. Forrest v. Beloit Corp. , 424 F.3d 344 , 350 (3d Cir. 2005) (citing United States v. Casper , 956 F.2d 416, 419 (3d Cir. 1992) )

. We will not reverse the trial court ’ s determination

“ ‘ unless it i s completely devoid of minimum evidentiary support displaying some hue of credibility. ’ ” Id. (quoting United States v. Milan , 304 F.3d 273, 281 (3d Cir. 2002) )

. In light of the juror ’ s statements that she was a state employee, typist, and had only recent ly moved to Harrisburg, we cannot say that the District Court clearly erred in determining that the G overnment ’ s asserted reas ons for the strike were not pre textual. Thus, the District Court properly concluded that the peremptory strike was not

race - base d and therefore did not violate the Fourteenth Amendment. B. Gender

- based challenge Appellant did not raise a contemporaneous Batson objection on the basis of gender. Accordingly, w e will review for plain e rror . See Gov ’ t of Virgin Islands v.
Forte , 80 6 F.2d 73, 75

– 76 (3d Cir. 1986) ( objection must be made contemporaneously or6

at the close of voir dire in order to preserve Batson claim ) ; United States v. Heron , 721 F.3d 896, 901

– 02 (7th Cir. 2013) ( race - based Batson objection did not preserve religion

b ased Batson claim and plain error applied )

. To prevail, Appellant must show that the error “is plain, . . . affected his substantial rights, and . . . would seriously affect the fairness, integrity or public reputation of judicial proceedings.” United St ates v. Ward , 626 F.3d 179, 183 (3d Cir. 2010) (citing United States v. Russell , 564 F.3d 200, 203

– 04 (3d Cir. 2009))

. We have recognized that the strike of a juror motivated in part by a n i m permissible reason

— like gender

— may nevertheless be valid if the prosecutor demonstrates that it would have taken the same action in the absence of the impermissible motivation. Gattis , 278 F.3d at 234

– 35. The District Cou rt specifically found that the G overnment would have struck the potential alternate juror even in the absence of any gender

- related reason and that the G overnment ’ s impermissible gender

- based consideration was “strictly de minimus .” App. 128

– 29. In light of the G overnment ’ s proffered gender and race

- neutral reasons for the strike, w e discern no error in the District Court ’ s determination that the peremptory strike was valid. III . Conclusion For the foregoing reasons, we will affirm the District Court ’ s judgment of conviction.