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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-11111

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MATHIS PERRY PERKINS, III, and

MICHAEL GEORGE SMITH,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Texas

January 30, 1997

Before JOLLY, JONES and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

A jury convicted appellants, Mathis Perry Perkins, III

(“Perkins”), and Michael George Smith (“Smith”), of conspiring to

commit interstate theft. The district court sentenced Perkins to

41 months’ imprisonment, Smith to 60 months’ imprisonment and both

defendants to three years’ supervised release and a payment of

$30,964.30 in restitution. We affirm.
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JURY SELECTION

Perkins and Smith argue that the prosecutor failed to

articulate a clear and reasonably specific explanation for

excluding an African-American venire person from the jury and that

the prosecutor’s explanation for the strike was not race-neutral.

A prosecutor violates the Equal Protection Clause when

potential jurors are challenged solely on the basis of their race.

Batson v. Kentucky, 476 U.S. 79, 89 (1986); see United States v.

Clemons, 941 F.2d 321, 323 (5th Cir. 1991). The process for

examining an objection to peremptory challenges under Batson is as

follows:

(1) a defendant must make a prima facie showing that the

prosecutor has exercised his peremptory challenges on the

basis of race, (2) the burden then shifts to the

prosecutor to articulate a race-neutral reason for

excusing the juror in question, and (3) the trial court

must determine whether the defendant has carried his

burden of proving purposeful discrimination. 

Clemons, 941 F.2d at 324. When the record contains an explanation

for the Government’s peremptory challenges, this court will review

“only the propriety of the ultimate finding of discrimination vel

non.” United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.

1987). Jury selection is subjective, and a Batson determination

turns largely on the court’s evaluation of the credibility of

counsel’s explanation. United States v. Wallace, 32 F.3d 921, 925

(5th Cir. 1994). The district court’s decision on the ultimate

question of discriminatory intent is a finding of fact which is
 

1 Counsel for Perkins asked during voir dire, “With respect

to the presumption of innocence, when y’all walked in this room

here did you look around the courtroom and be able to figure in

your mind who the defendants were and who the lawyers were and

who the prosecutors were pretty quickly? Did you do that?” 

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accorded great deference. United States v. Fike, 82 F.3d 1315,

1319 (5th Cir.), cert. denied, 117 S. Ct. 242 (1996). “Unless a

discriminatory intent is inherent in the prosecutor’s explanation,

the reason offered will be deemed race-neutral.” Purkett v. Elem,

115 S. Ct. 1769, 1775 (1995) (quotations and internal citation

omitted); United States v. Krout, 66 F.3d 1420, 1429 (5th Cir.

1995), cert. denied, 116 S. Ct. 963 (1996).

At trial, the defense challenged the prosecution’s use of a

peremptory challenge which excluded an African-American venire

person, referred to as Juror 7, pursuant to Batson. Following the

defense’s Batson challenge, the court asked the prosecutor to state

her reason for striking the juror. The prosecutor responded in

pertinent part:

Number 7, the question was asked about whether the

defendant -- whether when individuals walked into the

courtroom they knew right away who the defendant was and

who the attorneys were and he started shaking his head

and kind of had a disgusted look on his face. And from

that I got the impression that he might be somebody who

would have some ill feeling about the fact that there

could have been some sort of a -- a -- something against

the defendants because of their race. . . .1 

Counsel for Perkins responded that the proffered explanation failed

to articulate a sufficient reason and that it “indicated that there
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was some kind of racial connotation on her analysis.” The

district court ruled:

On Number 7, I find that the government did not base its

decision on the race of the juror. It based its decision

on the juror’s apparent concern about the fairness of the

prosecution. 

As I understand it, this is the kind of thing that

would have caused the government concern regardless of

the race of the juror. It is the juror’s reaction to the

question. And I find that the government did not base

its decision in whole or in part on the juror’s race and

therefore I overrule the Batson challenge.

No further objection was made by the defense. 

Perkins argues that the “some sort of something” referred to

by the prosecutor is “fatally vague” and “facially ambiguous”.

Taken as a whole, Perkins interprets the prosecutor’s proffered

reason as the prosecutor’s subjective opinion that the juror’s

“outward expression indicated racial sympathy because the venire

member and the defendants were both black.” Perkins thus argues

that the prosecutor believed that the juror would unfairly

sympathize with the defendants because they were of the same race.

Accordingly, the appellants argue that the prosecution acted on

account of the venire member’s race. 

The Government argues that the prosecutor struck the venire

member because she believed that Juror No. 7 displayed concern that

the prosecution had something against the defendants because of

race. The Government relies on this court’s recent decision in

Fike, 82 F.3d at 1315. In Fike, defense counsel asked during voir

dire if the venire members would "have a concern" if an all white
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jury was selected in this case. Id. at 1319. An African-American

venireman, Williams, answered, "Yes, based on the practice of the

U.S. Justice System." Id. Although no follow-up questions were

asked, the prosecutor struck him. Id. Following a Batson motion,

the prosecutor explained that Williams had been struck because he

“expressed concerns about past practices of the government -- of

the U.S. Judicial System” and lacked faith in the judicial system.

Id. This court stated that “Batson does not forbid striking a

juror who holds a particular opinion about the U.S. justice system.

Rather, it forbids striking jurors based on their race.” Id. at

1320.

Arguing that the prosecutor relied upon a race-based

assumption rather than a race-neutral assumption, appellants

attempt to distinguish Fike because Juror No. 7, unlike Williams,

did not express concern about the judicial system. Appellants

argue that the instant case is more analogous to the Ninth

Circuit’s decision in United States v. Bishop, 959 F.2d 820 (9th

Cir. 1992), in which the Ninth Circuit held that the prosecutor's

articulated reason for striking an African-American venire member

was inadequate under Batson. The prosecutor explained that he

struck the individual because she was poor and lived in a poor,

violent area of Los Angeles where residents are anesthetized to

violence and probably believe police "pick on" African-American

people. Id. at 822. The defendant established that the
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correlation between residence in that area of town and being

African-American was very high and that the prosecutor's reason was

a surrogate for racial bias. Id. at 823. The Ninth Circuit held

that the reason was not race-neutral because it was a generic

reason and a group-based presumption that a poor African-American

person could not fairly try an African-American defendant. Id. at

824-27.

The instant case is not factually identical to Bishop or Fike.

Unlike Fike, the juror did not orally express his concerns, but

unlike Bishop, the prosecutor pointed to the juror’s personal

conduct which the prosecutor interpreted to mean that the juror was

skeptical of the judicial system. Appellants have not shown that

distrust of the judicial system is a surrogate for racial bias. As

the Government notes, the appellants’ interpretation of the

prosecutor’s explanation is not what the district court understood

her to mean. The district court understood her to express concern

about Juror No. 7's belief in the prosecution’s fairness to the

defendants. The district court did not find the explanation vague

or unclear. A juror’s trust in the fairness of the system is not

inherently based upon race. As in Fike, the juror’s action

“removes the specter of generic reason or group based presumption.”

Fike, 82 F.3d at 1320. The prosecutor articulated specific conduct

which conveyed such an attitude. Under the "great deference"
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standard of review, we affirm the district court's assessment of

the prosecutor’s articulated reason.

ENHANCEMENT FOR ROLE IN THE OFFENSE

Perkins argues that the district court failed to make specific

findings when it “enhanced” Perkins’ sentence by two levels for his

role in the offense. Perkins argues that his conduct, managing

assets of the organization, did not “warrant an upward departure”

under application note 2 of U.S.S.G. § 3B1.1. Perkins argues that

the Government failed to prove that he “exercised management

responsibility” over the assets as required under note 2. 

Section 3B1.1(c) provides for a two-level increase in the

offense level "[i]f the defendant was an organizer, leader,

manager, or supervisor in any criminal activity" that involved

fewer than five participants and was not otherwise extensive. 

An application note to § 3B1.1 provides that

[t]o qualify for an adjustment under this section, the

defendant must have been the organizer, leader, manager,

or supervisor of one or more other participants. An

upward departure may be warranted, however, in the case

of a defendant who did not organize, lead, manage, or

supervise another participant, but who nonetheless

exercised management responsibility over the property,

assets, or activities of a criminal organization.

§ 3B1.1, comment. (n.2) (emphasis added). 

The Government objected to Perkins’ presentence report (PSR)

because Perkins had not received “an adjustment” for his role in

the offense. The Government argued that Perkins controlled the

assets of the conspiracy in that he received the payments for the
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stolen goods and either cashed the checks or deposited the funds in

one of his own accounts. The Government further argued that

Perkins “exercised management responsibility by negotiating the

transactions that led to the sale of the stolen goods to Wade

Investments.” The Government concluded that an “upward departure”

was warranted. 

The probation officer responded that the Government’s argument

“for a role adjustment” was based on the rationale for an upward

departure. When asked to clarify its position, the Government

advised the probation officer that Perkins’ involvement in the

offense warranted a role adjustment pursuant to § 3B1.1(c). The

probation officer recomputed the guidelines by increasing Perkins’

offense level by two levels under § 3B1.1(c) based on his role in

the offense as cited by the Government. The district court adopted

the factual findings and guidelines application in the PSR. 

Perkins did not object to the enhancement and, thus, presents

this challenge for the first time on appeal. Parties are required

to challenge errors in the district court. When a defendant in a

criminal case has forfeited an error by failing to object, this

court may remedy the error only in the most exceptional case.

United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en

banc), cert. denied, 115 S. Ct. 1266 (1995). 

Under FED. R. CRIM. P. 52(b), this court may correct forfeited

errors only when the appellant shows: (1) there is an error, (2)
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that is clear or obvious, and (3) that affects his substantial

rights. Id., 37 F.3d at 162-64. If these factors are established,

the decision to correct the forfeited error is within the sound

discretion of the court, and the court will not exercise that

discretion unless the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. United

States v. Olano, 507 U.S. 725, 735-36 (1993).

A two-level upward adjustment under § 3B1.1(c) is proper only

if Perkins was “the organizer or leader of at least one other

participant in the crime and [if] he assert[ed] control or

influence over at least that one participant.” See United States

v. Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996). An upward departure,

however, may be warranted if the defendant exercised management

responsibility over the property, assets, or activities of a

criminal organization.” § 3B1.1(c), comment. (n.2). 

Perkins did not exercise such control over another person, but

the facts show that he managed the accounts. Consequently, the

district court erred in enhancing Perkins’ sentence under §

3B1.1(c), but it could have validly departed upward based upon his

management of the organization’s assets. 

Regardless, there is “little functional difference” between an

enhancement and an upward departure. United States v. Knight, 76

F.3d 86, 88 (5th Cir. 1996). The difference derives from “notice

considerations.” Id. Perkins had notice that the increase would
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be considered. Therefore, we conclude that he has not shown an

error that implicates the integrity of the judicial process.

CONCLUSION

Based on the foregoing, we AFFIRM Perkins’ and Smith’s

convictions and sentences.

AFFIRMED.