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ATION: 2003 FED App . 0371P (6th C ir.) File Name: 03a03 71p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

S HAWN J ACKSO N , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-3583

Appeal from the United States District Court for the Southern District of Ohio at Day ton. No. 01-00070—Walter H. Rice, Chief District Judge.

Argued: September 11, 2003
Decided and Filed: October 20, 2003

Befor e: NEL SON, GI

BBONS, and SUTTO

N, Circui t Judges.

_________________ COUNSEL

ARGUED: Richard

W. Smith-Monahan, OFFICE OF THE F EDERAL

PUBLI C DEFENDER, Cincinnati, Ohio, fo r Ap pellant. Mona Guerrier, UNI TED STATES ATTORNE Y , Dayton, Ohio, for Appellee. ON BRI EF: Richard W. SmithMonahan, OFFICE OF THE FED ER AL PU BLI C DEFEND ER, Cinc innati, Ohio, for Appellant. Mona 2 United States v. Jackson No. 02-3583

Guerrier, UNITED STATES ATTOR NEY, Da yt on, Ohio, for Appellee.

_________________

OPINION

_________________ JU LIA SMITH

GIB BONS, Cir

cuit J u dge. De fendant

appellant Shawn Jackson was convicted of one count of

post office robbery

in violation of 18 U.S.C. § 2115. During jury selection, the g over

nmen t exe r cised a perem ptory chal lenge to exclude Anthony Turner, w ho at t he time wa s the only African-American

on the jury

panel. Jackson did not object to the gov ernment ’s decis ion to strike Turner until the jury and two alternates wereselected. The district court asked the go vernment

for an explanation for its decision to stri k e Turner, and Jac kson did not argue that the proffered explanation was a pretext for discrimination. The district court found tha

t the gov ernment

o ff ered a race-neutra

l explanation and overruled Jackson’s objection. Jackson now ap peals this ruling, as well as the district court’s re fusal t o give the jury instructions he requested regarding his theory of the defense and the reliab i lity of certain identifica tion testimony offered at his trial. For the following reasons, we affirm the judgment of the district court.

I.

OnAugust 28, 2001, Jackson was i ndicted by a fe deral grand jury in the Southern District of Ohio for one count o f po st office robbery

in violation of 18 U.S.C. § 2115. T h e in dictme ntalleged that on May 24, 2001, Jackson robbed a United States p ost offic e in Day ton, Ohio, of appro ximately $1,333.00. Jac kson’s trial began on November 5, 2001. Durin g voir dire, the district court asked the potential juror s to indicate

if they had

ever been government employ ees, and if so, wheth er their

gover nment ser

vice wou ld affe ct their ability to serve as a juror. Anthony Turner, jur or number 41,No. 02-3583 United States v. Jackson 3

responded

by saying, “ I served in the United States Air Force for twenty years. A nd that would not affect

my participation inthe court.” The government did not ask Turnerany followup questions to his response.

Nonethe less, the government later exercised a per emptory chall enge to exclude Turner. At the time, Turner was the onl y African-American

on the jury

panel. Jac

kson did no t raise

an objectionto the governmen t’s pere mptory challen ge until after the jury

and two alternates were selected. Counsel for Jackson did notobject

earlier because he believed tha t Turner had no chance of being on the panel, but once the selection process was over it became clear that Turne

r would have been
analternate if the gover

nment had not struck him from the panel. Inacc ordance

with the Sup

reme Cour

t’s decis ion in Batson v. Kentucky , 476 U.S. 79 (1986), the court asked the government

to give its reasons for the challenge. I n response, AssistantUnited States Attorney Richar d Chema stated tha

t:
The gentleman was unresponsive . . . to a question of the Court. The Court asked

. . . if anyone

had been involved inthe gov ernme nt and [would that] in some way affec t your ability to serve on the ju ry. He stood up and said, he was in the

Air Force for 21 y

ears and retired from the Air Force and that wouldn’t affec t him.

Counsel for

the government, both Miss Guerrier and mys elf belie

ve that th is gentl eman wa

nted to get up and give a speech for

one reason or another. The government didn’tlike the kind of attit ude that we believe he was putting forth and his demeanor. That’s the rea son the strike was made.

Jackson did not object to the govern men t’s proffered explanation, nor did he argue that it was a pret ext for discriminatory

animus. The district

court concluded

that the government

had offered a l eg itimate, non-discriminatory
reason in respon se to Jacks on’s Bats on ch allenge, and 4 United States v. Jackson No. 02-3583

Jackson did no t object to that ruling or request a more detailed record of the judge’s r ationale.

Onthe third day of trial, the government revisited the issue of Jackson’s Batson objection in a confer ence wi ththe district court judge. The government’s lead counsel, Mona Guer rier, volunteered tha t she was t he one who initially

felt uncomfor tablewith Tu rner’ s demeanor and she also indicated for the record that she is an Africa n-American. The court indicated that h er explanation could not be considered because it was being offer ed th ree day s into the trial. Once
a g ain, at the conclusion o f the governmen t’s comme

nts, Jackson made no a

dditional o

bjection s or arg

uments wit

h respect to the Batson issue.

The evidence presented at trial established that on the day of the robbery , Jackson went to the Day ton post of

fice wit h his girlfrien d’s broth er, Tim An derson. Wh

ile in the p ost office, Jackson observed a transa ction invo lvin g approxima

tely $1,900.00. As he was leav ing, Jackson told Anderson that he ha

d “case d [his] sp ot.” Ac cording to Anderson, at th e time Jackson was wearing a dark-c olored windbreaker, dark pants, white tennis shoes, and a b aseball cap with a Ne

w York logo on it. Aft er visi ting the p ost office, Jackson borrowe d a r ed and wh ite bicy cle fro m his friend T ony

Harris.

Barbara Barnett, a p ostal clerk, testified that on May 24, 2001, a black male be tw ee n t he ag es of ei gh te en an d t we nt y, wearing a New Y ork ba seball hat and a dark jacket approached

the counter

and gave her

a note sta ting, “H and me your cash. I have a

gun.” She then “looked at him in the eyes and said, ‘Are y

ou sure you re ally want to do this?’” The robber became angry

and leaned toward

her and s aid

“give me the damn cash .” During this exchange, Barne tt noticed that the r obber ha

d a gap betwee n his fron t teeth. B arnett the n gave him the cash from her drawer.No. 02-3583 United States v. Jackson 5

Shortly after the ro bb er y, Barnett viewed a photo line-up and identified Jackson as the robber. Bar nett indicated that she was sixty to seventy

percent sure of her

identification. At trial, Barnett again identified Jackson as the robber . During her te stimony, Jackson was asked to smile and expose hi s teeth to Bar ne tt and the jury, and B arnett confirmed that Jackson had a gap between his front teeth.

The government produced additional eyewitness

testimony that was incriminating to J ackso n. Brian Butterbaugh, the other postal clerk on duty on

the day of the

robbery, te stified that he observed

a ga p betwee

n the robb er’s two

front tee th when the robber approach ed his window at the post office. Catherine Green, a customer who was at the post office on the day of the robbery , testified that she s aw ared bike by the door of the post office when she en tered. Green further testified that she had observed a black male wear ing a dark jacket and a dark hat reposition himself at the back of the line several times f

o r no apparent reason. After completing her transaction

at the postal window, she observed the same man exiting the post office, and she s aw h im jump on the red bicy cle and ride away ve

ry fast. She

also identified Jackson
as the man she saw

at the post office riding

away on the

bike. Several of Jackson’s acquaintances testified that Jackson had
a ga p betwe en his f

ron t te eth . Ja cks on’s girlfriend testified that he owned

cloth es matching the description provided by the postal cl er ks and co nfirmed t hat he wa s wearin

g those clothes on the day of the r obbery. Dur

ing the course of the trial, the gov ernment

present ed additi onal c irc umstantial evidence suggesting that Jackson had committed

th e r ob be ry.
At the close of the trial, Jackson submitted several prop ose d jury instructi ons. Spec ific ally , Jackson requested the following instruction on his theory of defense:

Th e d ef en se sa ys that Shawn Jackson was misidentified
as the robber of the post office by the wi tnesses who
were th e re that day. T

he defense further say

s that the 6 United States v. Jackson No. 02-3583

acquaintances of Shawn Jacksonhad motivations which show they wer

e being untruthful.

The district court declined this re que st because it found that the instruction was unnecessary and not required by

law.

Jackson also requested the following instruction rega rding some of the identification testimony that had bee n offered at his trial:

You have he ard the t

est imon y of Ba

rb Barnett and Catherine Green , who have identified the defendant as the person who robbed the post office

. You should caref ully consider

whether this identi fi cation was accurate and reliable.

The proposed instruction also s et fort h factors that Jackson wanted the jurors to consid

er in d etermining whether the identifica tio n was accurate and reliable. The district court again declined to give the instruction, stating: “My concern is that I think the accuracy

of the identification can be argued under credibi lity . I don’t think a separa te in stru ction is necessary .” The court did provide a genera l instruction to the jury on assess ing the c

redibilit y of each wi tness:
Consider carefully the circumstances under which each witness testifie d. Rememb er t he witnes s’s resp onse to questions
, his or her a ssuranc e or lack of it in ans werin g, and the entire demeano r or appe arance of that wi

tness while on the witness stand.

Consid er also any relation that a wit

ness may bear to either side of the case an d his or her reason s fo r testi fying, any

interest he or she may

have in the outc ome of the case. Any

prejudice or bias he o r she ma y have shownincluding a ny reason or motivation to bear hostility or animos ity

toward a party and any partiali ty he or she may ha

ve demonstrated.No. 02-3583 United States v. Jackson 7

OnNovembe

r 9, 2001, the jury

returne d a guilt

y ve rdict. OnMay 15, 2002, t

he distric t cour t sentenc ed Jackson to ninety -six months incarceration, three y ears sup ervised release, and one hun dre d ho urs of c om mu ni ty se rvi ce. In addition, Jackson was orde red to pa y r estitution to the United States Postal Service in the amount of $613.00 and a special assessment

of $100.00. On May 21, 2002, Jackson fi led this timely appeal.

II.

A. Jackson ’s Batson Objection

Jackson argues that the government violated his righ t to equal prote ction when i t used a perem ptory chal lenge to strike Turner, the only remaining African-American

member of the j ury panel. After counsel for Jackson raised a Batso n objectionto th e g ov er nm en t’ s p er em pt or y c h allenge, the districtcourt required the government to state its rea sons for excluding Turner on the record. Counsel for the government indicated that he struck Turner from the panel because hedid not like his demeanor and “attitude.” The district court concluded

that the government had offered alegitimate, nondiscrimina t ory

reason for the challenge a nd overruled Jackson’s objection.

The Equal Protection Clause prohibits a party f ro m u sing peremptory

challenges to e xclude members of the venire on account of their race. Batson v. Kentucky , 476 U. S. 71, 7 9 (1981); Edmonson v. Leesville Concrete Co., Inc. , 500 U.S. 614, 630-3 1 (199 1) (ex tendi ng Batson to civi l case s). In order to establish

an equal protection violation under Batson , the complaining party

must first make a prima facie showing that the per emptory challenge was based on race. McCurdy

v. Montgome

ry County , 240 F.3d

512 , 52 1 (6 th Ci r. 2 001 ). If the complaining party

establishes a prima facie case, the burden of persuasion

then shifts to the party making the strike to articula te a race-neutral explanation for removing the juror inquestion

. I

d. This explanation “ne ed not be p articula rly 8 United States v. Jackson No. 02-3583

1 In Mahan , however , th is cour t hel d that

a p arty’s use o f a peremptory challenge to stri ke the only prospective black juror was “more than suff

icie nt t o establ ish a prim a fac ie case o f in ten tional disc rimi nati on.” 190 F.3d at 424-25. persuasive, or even plausible, so lon g as it is neutral.” Id. at 521 (citi ng Unit

ed States v. Harris , 192 F.3d 580, 586 ( 6th Cir. 1999)). Once a race-neutral explanation is produced, the complaining party must prove purpos ef ul discrimination. Batson , 476 U.S. at 98. Purposeful discrimination may be shownby demonstrating that the proffe r ed explana tion is merely a pretext for

racial motivation. McCurdy , 240 F.3d at 521. Throughout the Batson inquiry, the ultimate burden of persuasion

alway s rests wi th the par ty challenging the strike. Id. ; see also United

States v. Mahan , 190 F.3d 416, 424 ( 6th Cir. 1999). A district court’s ruling on whether the exerc ise of a peremptory

challenge violates equal protection is entitled to great deference

and will no t be reve

rsed unle ss it

is clear ly
errone ous. United States v. Buchanan , 213 F.3d 302, 308-09 (6th Cir. 2000).

Inthe instantcase, the district court asked the government for an explanation for its decision to stri ke Tu rner without consideringwhether Jackson had established a prima fa c ie
case. 1 However, once a party offers a race-neutra

l explanation for

a peremptory c

hallenge and the trial court has ruled on the ultimate question of inten tio nal discrimination, “the preliminary issue of

whether the defendant [has] made a prima facie

showing of intentional discriminat ion b ecomes moot.” Hernande

z v. New York

, 500 U.S. 35 2, 359 ( 1991); Roberts ex rel. Johnson v. Galen of Virginia, Inc. , 325 F.3d 776, 780 (6th Cir. 2003). Thus, we need not consider whether J ackson has established a prima faci e showing

that th e peremptory c

hallenge was based on race

. The second st

ep in the Batson inquiry

is to assess whether th e gover nment ar ticulate d a race -neutra

l explanati on for its decisionto strike Turner from the pane l. A distric t court mus tNo. 02-3583 United States v. Jackson 9

2 W hen an appellant fai ls to make an objection in t he trial court, the obj ec ti on is deem ed fo rfeited, a nd thu s non-c ogniz able u pon app ellate review, unless t

he assailed acti on of the tri al court constitut ed plain error. Fed. R. Cri m. P. 52( b). To establi sh pl ain error , the appel lant must show (1) that an error occurred i n the di stri ct court; (2) th at the error was plain, i.e., obviou s or c lear ; (3) tha t t he error aff

ected an appell ant’ s subst anti al rights; and (4) that this adverse im pact seriously affected the fairness, integrity or public reputation of t he judici al pro ceed ings. United States v. Ko ebe rlein , 161 F.3d 94 6, 949 (6th Cir. 1998). independ ently asse ss a r ace -neu tral exp lan ation and

explicitly rule on its credibility, “part ic ularly in case s when the purported r ace-neutral justifi cation is predicated on subjective explanations like body lang uage or deme anor.” McCurdy
, 240 F.3d at 5 21. I

t is inappr

opriate for a dis trict cou

rt to perfunc torily acc e pt a race-neutral explanation without engaging in further investigation. Id. at 520-21 . Howeve r, “it is the defendant’s burden to rebut
, to whatever extent possible, the prosecutor’s reasons for exercising his or he r peremptory

strikes on the record at

the time such reasons are proffered.” United States v. Harris , No. 00-3 474, 2 001 WL 873642, at

*3 (6th Cir. July 26, 2001). I f a defenda nt fails to rebut a race-neutral explanation at the time it wa s m ade, the districtcourt’s ruling on the objection is review ed f or plain error, 2 United States v. Wilson , No. 9 9-2280, 2001 W L 549446, at *2 (6th Cir. May 14, 2001), and the movan

t in this setting is in no position to register a procedural complaint that the district court failed to give a specific rea son on the record for accept ing the governme

nt’s race-neutral explanation. A movant’s failure to argue pretext may even constitute waiver of his initial Batson objection. Davis v. Balt imor e Gas & Elec. Co. , 160 F.3d

1023, 1027(4th Cir. 1 998); United States

v. Contreras-Contreras , 83 F.3d 1103, 1105 (9th Cir. 1996); Ho pson v. Frederickson , 961 F.2d 1374, 1377 (8th Cir. 1992); United States v. Rudas , 905 F.2d 38, 41 (2d Cir. 1990).

The district court concluded that the government had come forward with a legitimate, non-di sc riminator y r eason for its peremptory

challenge, and Jackson did not object to the 10 United States v. Jackson No. 02-3583

court’s ruling or

attempt to rebut

the government’s proffered explanation by a rguing that it was a pretext for discrimination. On appea l, Jackson argues that the totality of the information available to the district court at the time the strike was made indicated that the government’s peremptory chall enge was based on a discrim inatory purpose. Sp ec if ic al ly, Jackson now objects to the district cou rt’s fa ilure to weigh the credibility

of the gover

nment’s explanation on the record. He also a

rgues f or the fir st time on appeal that the proffered explanat ion lacked credibility be cause the governm ent failed to

strike sim

ilarly -situate d white jur

ors. Becau se Jackson failed to rebut the government’s explanation at the time it was made, we review the district court’s ruling on his objection for plain error.

A perempt

ory challen ge is not unconstit

utional so lely because it has a racia

lly disproportionate impact. Some proof of ra ci al ly d is cr im in at or y i n tent or pu rpose is r

equired in
or der to show a violation of the Equal Protection Clau se

. Hernandez
, 500 U. S. at 360 (c itin g Arlington Hei ghts v. Metro. Hous. Dev. Co. , 429 U.S. 252, 264-64 (1977)). In the Batson context, a party’ s explanation for its decision to strike is “neutra l” if it is based on something other than the race of the juror. Id. In the absence of discriminatory

intent inherent inthe explanation, the reason o ffere d is deeme d race neutral. Id.

There was no evidence of discriminatory intent inherent

in the gover nment’s proffer

ed explana

tion in th i s case, and Jackson made no a

ttempt to a

rgue to the district court that the explanation was a pr

etext for d

is crim ination. Furthermore, Jackson has not

asserted any

argume nts on appe al that sug

gest the district court plainly erre d by overru li ng his objection. Jackson contends that the government’s failur e to strike similarly-situated

white jurors from the p an el should have signaled to the distr

ic t court that the government had a discriminatory

purpose w

hen it stru ck Turne r from the panel. In fact, all of the “similarly-situated” white jurors Jacks o n points to in his brief

were responding to a

different questionNo. 02-3583 United States v. Jackson 11

fromthe one Turn er was answering when he made the statement that c au sed the government to object to his presence
onthe panel. Turn er wa s responding to a question about previous government employ ment, while the ju

rors cite d in Ja ckson’s brief we

re resp onding to

questions

about th ei r experiences with law enforcement. Jacks on did not attempt to rebut the government’s explanation by offering additional
ev idence and did not otherwise indicate a continuing objection. The district court could have construed Jackson’s f ailure to respon

d to the g overnme

nt’s explan

ation as a n indicationthat he no longer di s puted the strike. See Rudas
, 905 F.2d at 41. T he bur den was on Jackson a s the par ty challen gin g t he strike to prove the existence of purposeful discrimination, and when faced w

ith the government’s seeming ly

race-neutral explana

tio n, Jackson made no response. Under th ese cir cumsta n ces, the district c ourt did not plainly

err in ov erruling

Jackson’s Batson objection.

B. Jackson’ s Propos ed Jury Inst ructions

Jackson’s second c ontentio n on appeal is that the district court erred by refusingto prov ide the jury with instructions
onhis theory of

the de fense and on the reliability of identificationtestimony offere d at his trial. A district court’s refusal to deliver a req

u ested jur

y in struction

amounts to
revers ible error

on ly if the instruction (1) is a cor rect statement of the law; (2) was not substantially cove red by the charge actually

deliver ed to the jury, and (3)

concerns a point
so important

in the tria l that the f ailure to give it substant

ially impairs the defendant’s defense. United States v. Gibbs , 182 F.3d 408, 432 (6th Cir. 1999).

At the close of the tri al, Jackson asked the district c ourt to instruct the jury that “[t]he defense say s that Shawn Jackson
was misidentified

as the robber of the post office by witnesses who were there that day ” and that “the acquai nta nces of ShawnJackson had motivations which show they were being untruthful.” Counsel for J acks on repeatedly emphasized thesetheories to the jury

throughout the entire trial, beginning 12 United States v. Jackson No. 02-3583

with his opening statement that “this case is really about

m istake nidentity

and hidde

n motivations.” Dur

ing cro ssexamination, de fen se counsel questioned the government’s witnesses at length regarding how much time each had spent actually looking

at the defendant, the distance at which each of the m had viewed the defendant, and any distractions or memory lapses th at might have impa cted the ir observa tions. When defense cou

nsel g ave his closing argument, he spent consider able time emphasizing these sa me points, as well as the defense ’s theor

y that the g overnme

nt’s witne ss es had mistaken Jackson for Tony Har ris on the day

of th e r ob be ry. The district c ourt sp ecifica lly instructed the jury to consider “any bias or prejudice” a witness may have had when testi fying, including “any reason or motivation to bear hostility or animosity toward any

party.” I n short, the failure to give thi s instruct

ion did not s

ubstantia lly i mpair Jackson’s defense because the jury

was already

well aware of

his theory of the case. See United Sta tes v . Cov ington , 2001 WL 302067, at *2 (6th Cir . March 2 1, 2001); United States v. Laury , 49 F.3d 145, 152 (5th Cir. 1995).

Jackson also requested mo re detailed instructions on identificationtestimony, including a set of factors for the jury to use in determining whether an identi fication

is accurate and reliable. The district court overrul ed Jackson’s request and gave the jury

a general credibility

instruction to consider “the circumstances under which each witness testified,” as well as the “ en tire deme anor or a ppeara nce” of each wi

tness. Identification

instructions are within the discretion of the trial court; they need only

be given if the re is a danger of mis identificationdue to a lack of corroborating e vide nce

. United States v. Boyd , 620 F.2d 129, 131-32 (6th Cir. 1980). Jackson’s identification was not uncorroborated. Two eyewitnesse s identified him as the robber, and evidence was presented in di ca ti ng th at on th e d ay o f t he ro bb er y he wa s wearing the same clothes as those worn by the culprit and that he had possession of a bicyc le matching the description of the
one use d by the ro bber when he left the post office. Once again, defense counseldiscussed at length throughout the trialNo. 02-3583 United States v. Jackson 13

the accuracy

and re liability of the identification testimony offered by the g overnment, so it ca nnot be said that the districtcourt’s failure to give Jackson’s proposed instruction substantially impaired his defense

. III.

For the fore going

reasons , we aff

irm the jud

gment of th e district c ourt.