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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0371P (6th Cir.)

File Name: 03a0371p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHAWN JACKSON,

Defendant-Appellant.

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No. 02-3583

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 01-00070—Walter H. Rice, Chief District Judge.

Argued: September 11, 2003

Decided and Filed: October 20, 2003 

Before: NELSON, GIBBONS, and SUTTON, Circuit

Judges.

_________________

COUNSEL

ARGUED: Richard W. Smith-Monahan, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for

Appellant. Mona Guerrier, UNITED STATES ATTORNEY,

Dayton, Ohio, for Appellee. ON BRIEF: Richard W. SmithMonahan, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Cincinnati, Ohio, for Appellant. Mona

2 United States v. Jackson No. 02-3583

Guerrier, UNITED STATES ATTORNEY,Dayton, Ohio, for

Appellee.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Defendantappellant Shawn Jackson was convicted of one count of post

office robbery in violation of 18 U.S.C. § 2115. During jury

selection, the government exercised a peremptory challenge

to exclude Anthony Turner, who at the time was the only

African-American on the jury panel. Jackson did not object

to the government’s decision to strike Turner until the jury

and two alternates were selected. The district court asked the

government for an explanation for its decision to strike

Turner, and Jackson did not argue that the proffered

explanation was a pretext for discrimination. The district

court found that the government offered a race-neutral

explanation and overruled Jackson’s objection. Jackson now

appeals this ruling, as well as the district court’s refusal to

give the jury instructions he requested regarding his theory of

the defense and the reliability of certain identification

testimony offered at his trial. For the following reasons, we

affirm the judgment of the district court. 

I.

On August 28, 2001, Jackson was indicted by a federal

grand jury in the Southern District of Ohio for one count of

post office robbery in violation of 18 U.S.C. § 2115. The

indictment alleged that on May 24, 2001, Jackson robbed a

United States post office in Dayton, Ohio, of approximately

$1,333.00. Jackson’s trial began on November 5, 2001.

During voir dire, the district court asked the potential jurors

to indicate if they had ever been government employees, and

if so, whether their government service would affect their

ability to serve as a juror. Anthony Turner, juror number 41,
No. 02-3583 United States v. Jackson 3

responded by saying, “I served in the United States Air Force

for twenty years. And that would not affect my participation

in the court.” The government did not ask Turner any followup questions to his response. 

Nonetheless, the government later exercised a peremptory

challenge to exclude Turner. At the time, Turner was the only

African-American on the jury panel. Jackson did not raise an

objection to the government’s peremptory challenge until

after the jury and two alternates were selected. Counsel for

Jackson did not object earlier because he believed that Turner

had no chance of being on the panel, but once the selection

process was over it became clear that Turner would have been

an alternate if the government had not struck him from the

panel. In accordance with the Supreme Court’s decision in

Batson v. Kentucky, 476 U.S. 79 (1986), the court asked the

government to give its reasons for the challenge. In response,

Assistant United States Attorney Richard Chema stated that:

The gentleman was unresponsive . . . to a question of the

Court. The Court asked . . . if anyone had been involved

in the government and [would that] in some way affect

your ability to serve on the jury. He stood up and said,

he was in the Air Force for 21 years and retired from the

Air Force and that wouldn’t affect him. 

Counsel for the government, both Miss Guerrier and

myself believe that this gentleman wanted to get up and

give a speech for one reason or another. The government

didn’t like the kind of attitude that we believe he was

putting forth and his demeanor. That’s the reason the

strike was made.

Jackson did not object to the government’s proffered

explanation, nor did he argue that it was a pretext for

discriminatory animus. The district court concluded that the

government had offered a legitimate, non-discriminatory

reason in response to Jackson’s Batson challenge, and

4 United States v. Jackson No. 02-3583

Jackson did not object to that ruling or request a more

detailed record of the judge’s rationale.

On the third day of trial, the government revisited the issue

of Jackson’sBatson objection in a conference with the district

court judge. The government’s lead counsel, Mona Guerrier,

volunteered that she was the one who initially felt

uncomfortable with Turner’s demeanor and she also indicated

for the record that she is an African-American. The court

indicated that her explanation could not be considered

because it was being offered three days into the trial. Once

again, at the conclusion of the government’s comments,

Jackson made no additional objections or arguments with

respect to the Batson issue.

The evidence presented at trial established that on the day

of the robbery, Jackson went to the Dayton post office with

his girlfriend’s brother, Tim Anderson. While in the post

office, Jackson observed a transaction involving

approximately $1,900.00. As he was leaving, Jackson told

Anderson that he had “cased [his] spot.” According to

Anderson, at the time Jackson was wearing a dark-colored

windbreaker, dark pants, white tennis shoes, and a baseball

cap with a New York logo on it. After visiting the post

office, Jackson borrowed a red and white bicycle from his

friend Tony Harris.

Barbara Barnett, a postal clerk, testified that on May 24,

2001, a black male between the ages of eighteen and twenty,

wearing a New York baseball hat and a dark jacket

approached the counter and gave her a note stating, “Hand me

your cash. I have a gun.” She then “looked at him in the eyes

and said, ‘Are you sure you really want to do this?’” The

robber became angry and leaned toward her and said “give me

the damn cash.” During this exchange, Barnett noticed that

the robber had a gap between his front teeth. Barnett then

gave him the cash from her drawer.
No. 02-3583 United States v. Jackson 5

Shortly after the robbery, Barnett viewed a photo line-up

and identified Jackson as the robber. Barnett indicated that

she was sixty to seventy percent sure of her identification. At

trial, Barnett again identified Jackson as the robber. During

her testimony, Jackson was asked to smile and expose his

teeth to Barnett and the jury, and Barnett confirmed that

Jackson had a gap between his front teeth.

The government produced additional eyewitness testimony

that was incriminating to Jackson. Brian Butterbaugh, the

other postal clerk on duty on the day of the robbery, testified

that he observed a gap between the robber’s two front teeth

when the robber approached 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 saw a red bike by the

door of the post office when she entered. Green further

testified that she had observed a black male wearing a dark

jacket and a dark hat reposition himself at the back of the line

several times for no apparent reason. After completing her

transaction at the postal window, she observed the same man

exiting the post office, and she saw him jump on the red

bicycle and ride away very 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 gap between his front teeth. Jackson’s girlfriend testified

that he owned clothes matching the description provided by

the postal clerks and confirmed that he was wearing those

clothes on the day of the robbery. During the course of the

trial, the government presented additional circumstantial

evidence suggesting that Jackson had committed the robbery.

At the close of the trial, Jackson submitted several proposed

jury instructions. Specifically, Jackson requested the

following instruction on his theory of defense:

The defense says that Shawn Jackson was misidentified

as the robber of the post office by the witnesses who

were there that day. The defense further says that the

6 United States v. Jackson No. 02-3583

acquaintances of Shawn Jackson had motivations which

show they were being untruthful. 

The district court declined this request because it found that

the instruction was unnecessary and not required by law. 

Jackson also requested the following instruction regarding

some of the identification testimony that had been offered at

his trial:

You have heard the testimony of Barb Barnett and

Catherine Green, who have identified the defendant as

the person who robbed the post office. You should

carefully consider whether this identification was

accurate and reliable.

The proposed instruction also set forth factors that Jackson

wanted the jurors to consider in determining whether the

identification 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 credibility. I don’t think a separate instruction is

necessary.” The court did provide a general instruction to the

jury on assessing the credibility of each witness:

Consider carefully the circumstances under which each

witness testified. Remember the witness’s response to

questions, his or her assurance or lack of it in answering,

and the entire demeanor or appearance of that witness

while on the witness stand. 

Consider also any relation that a witness may bear to

either side of the case and his or her reasons for

testifying, any interest he or she may have in the outcome

of the case. Any prejudice or bias he or she may have

shown including any reason or motivation to bear

hostility or animosity toward a party and any partiality he

or she may have demonstrated.
No. 02-3583 United States v. Jackson 7

On November 9, 2001, the jury returned a guilty verdict.

On May 15, 2002, the district court sentenced Jackson to

ninety-six months incarceration, three years supervised

release, and one hundred hours of community service. In

addition, Jackson was ordered to pay restitution to the United

States Postal Service in the amount of $613.00 and a special

assessment of $100.00. On May 21, 2002, Jackson filed this

timely appeal.

II.

A. Jackson’s Batson Objection

Jackson argues that the government violated his right to

equal protection when it used a peremptory challenge to strike

Turner, the only remaining African-American member of the

jury panel. After counsel for Jackson raised a Batson

objection to the government’s peremptory challenge, the

district court required the government to state its reasons for

excluding Turner on the record. Counsel for the government

indicated that he struck Turner from the panel because he did

not like his demeanor and “attitude.” The district court

concluded that the government had offered a legitimate, nondiscriminatory reason for the challenge and overruled

Jackson’s objection. 

The Equal Protection Clause prohibits a party from using

peremptory challenges to exclude members of the venire on

account of their race. Batson v. Kentucky, 476 U.S. 71, 79

(1981); Edmonson v. Leesville Concrete Co., Inc., 500 U.S.

614, 630-31 (1991) (extending Batson to civil cases). In

order to establish an equal protection violation under Batson,

the complaining party must first make a prima facie showing

that the peremptory challenge was based on race. McCurdy

v. Montgomery County, 240 F.3d 512, 521 (6th Cir. 2001). If

the complaining party establishes a prima facie case, the

burden of persuasion then shifts to the party making the strike

to articulate a race-neutral explanation for removing the juror

in question. Id. This explanation “need not be particularly

8 United States v. Jackson No. 02-3583

1

In Mahan, however, this court held that a party’s use of a

peremptory challenge to strike the only prospective black juror was “more

than sufficient to establish a prima facie case of intentional

discrimination.” 190 F.3d at 424-25.

persuasive, or even plausible, so long as it is neutral.” Id. at

521 (citing United States v. Harris, 192 F.3d 580, 586 (6th

Cir. 1999)). Once a race-neutral explanation is produced, the

complaining party must prove purposeful discrimination.

Batson, 476 U.S. at 98. Purposeful discrimination may be

shown by demonstrating that the proffered explanation is

merely a pretext for racial motivation. McCurdy, 240 F.3d at

521. Throughout the Batson inquiry, the ultimate burden of

persuasion always rests with the party 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 exercise

of a peremptory challenge violates equal protection is entitled

to great deference and will not be reversed unless it is clearly

erroneous. United States v. Buchanan, 213 F.3d 302, 308-09

(6th Cir. 2000). 

In the instant case, the district court asked the government

for an explanation for its decision to strike Turner without

considering whether Jackson had established a prima facie

case.

1

 However, once a party offers a race-neutral

explanation for a peremptory challenge and the trial court has

ruled on the ultimate question of intentional discrimination,

“the preliminary issue of whether the defendant [has] made a

prima facie showing of intentional discrimination becomes

moot.” Hernandez v. New York, 500 U.S. 352, 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

Jackson has established a prima facie showing that the

peremptory challenge was based on race.

The second step in the Batson inquiry is to assess whether

the government articulated a race-neutral explanation for its

decision to strike Turner from the panel. A district court must
No. 02-3583 United States v. Jackson 9

2When an appellant fails to make an objection in the trial court, the

objection is deemed forfeited, and thus non-cognizable upon appellate

review, unless the assailed action of the trial court constituted plain error.

Fed. R. Crim. P. 52(b). To establish plain error, the appellant must show

(1) that an error occurred in the district court; (2) that the error was plain,

i.e., obvious or clear; (3) that the error affected an appellant’s substantial

rights; and (4) that this adverse impact seriously affected the fairness,

integrity or public reputation of the judicial proceedings. United States

v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998).

independently assess a race-neutral explanation and explicitly

rule on its credibility, “particularly in cases when the

purported race-neutraljustification is predicated on subjective

explanations like body language or demeanor.” McCurdy,

240 F.3d at 521. It is inappropriate for a district court to

perfunctorily accept a race-neutral explanation without

engaging in further investigation. Id. at 520-21. However, “it

is the defendant’s burden to rebut, to whatever extent

possible, the prosecutor’s reasons for exercising his or her

peremptory strikes on the record at the time such reasons are

proffered.” United States v. Harris, No. 00-3474, 2001 WL

873642, at *3 (6th Cir. July 26, 2001). If a defendant fails to

rebut a race-neutral explanation at the time it was made, the

district court’s ruling on the objection is reviewed for plain

error,

2

 United States v. Wilson, No. 99-2280, 2001 WL

549446, at *2 (6th Cir. May 14, 2001), and the movant in this

setting is in no position to register a procedural complaint that

the district court failed to give a specific reason on the record

for accepting the government’s race-neutral explanation. A

movant’s failure to argue pretext may even constitute waiver

of his initial Batson objection. Davis v. Baltimore Gas &

Elec. Co., 160 F.3d 1023, 1027 (4th Cir. 1998); United States

v. Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir. 1996);

Hopson 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-discriminatory reason 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 arguing that it was a pretext for

discrimination. On appeal, 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

challenge was based on a discriminatory purpose.

Specifically, Jackson now objects to the district court’sfailure

to weigh the credibility of the government’s explanation on

the record. He also argues for the first time on appeal that the

proffered explanation lacked credibility because the

government failed to strike similarly-situated white jurors.

Because 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 peremptory challenge is not unconstitutional solely

because it has a racially disproportionate impact. Some proof

of racially discriminatory intent or purpose is required in

order to show a violation of the Equal Protection Clause.

Hernandez, 500 U.S. at 360 (citing Arlington Heights 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 “neutral” if it is based on something other than the race of

the juror. Id. In the absence of discriminatory intent inherent

in the explanation, the reason offered is deemed race neutral.

Id. 

There was no evidence of discriminatory intent inherent in

the government’s proffered explanation in this case, and

Jackson made no attempt to argue to the district court that the

explanation was a pretext for discrimination. Furthermore,

Jackson has not asserted any arguments on appeal that suggest

the district court plainly erred by overruling his objection.

Jackson contends that the government’s failure to strike

similarly-situated white jurors from the panel should have

signaled to the district court that the government had a

discriminatory purpose when it struck Turner from the panel.

In fact, all of the “similarly-situated” white jurors Jackson

points to in his brief were responding to a different question
No. 02-3583 United States v. Jackson 11

from the one Turner was answering when he made the

statement that caused the government to object to his presence

on the panel. Turner was responding to a question about

previous government employment, while the jurors cited in

Jackson’s brief were responding to questions about their

experiences with law enforcement. Jackson did not attempt

to rebut the government’s explanation by offering additional

evidence and did not otherwise indicate a continuing

objection. The district court could have construed Jackson’s

failure to respond to the government’s explanation as an

indication that he no longer disputed the strike. See Rudas,

905 F.2d at 41. The burden was on Jackson as the party

challenging the strike to prove the existence of purposeful

discrimination, and when faced with the government’s

seemingly race-neutral explanation, Jackson made no

response. Under these circumstances, the district court did

not plainly err in overruling Jackson’s Batson objection.

B. Jackson’s Proposed Jury Instructions

Jackson’s second contention on appeal is that the district

court erred by refusing to provide the jury with instructions

on his theory of the defense and on the reliability of

identification testimony offered at his trial. A district court’s

refusal to deliver a requested jury instruction amounts to

reversible error only if the instruction (1) is a correct

statement of the law; (2) was not substantially covered by the

charge actually delivered to the jury, and (3) concerns a point

so important in the trial that the failure to give it substantially

impairs the defendant’s defense. United States v. Gibbs, 182

F.3d 408, 432 (6th Cir. 1999).

At the close of the trial, Jackson asked the district court to

instruct the jury that “[t]he defense says that Shawn Jackson

was misidentified as the robber of the post office by witnesses

who were there that day” and that “the acquaintances of

Shawn Jackson had motivations which show they were being

untruthful.” Counsel for Jackson repeatedly emphasized

these theories 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

mistaken identity and hidden motivations.” During crossexamination, defense 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 them had viewed the defendant, and any distractions or

memory lapses that might have impacted their observations.

When defense counsel gave his closing argument, he spent

considerable time emphasizing these same points, as well as

the defense’s theory that the government’s witnesses had

mistaken Jackson for Tony Harris on the day of the robbery.

The district court specifically instructed the jury to consider

“any bias or prejudice” a witness may have had when

testifying, including “any reason or motivation to bear

hostility or animosity toward any party.” In short, the failure

to give this instruction did not substantially impair Jackson’s

defense because the jury was already well aware of his theory

of the case. See United States v. Covington, 2001 WL

302067, at *2 (6th Cir. March 21, 2001); United States v.

Laury, 49 F.3d 145, 152 (5th Cir. 1995). 

Jackson also requested more detailed instructions on

identification testimony, including a set of factors for the jury

to use in determining whether an identification is accurate and

reliable. The district court overruled Jackson’s request and

gave the jury a general credibility instruction to consider “the

circumstances under which each witness testified,” as well as

the “entire demeanor or appearance” of each witness.

Identification instructions are within the discretion of the trial

court; they need only be given if there is a danger of

misidentification due to a lack of corroborating evidence.

United States v. Boyd, 620 F.2d 129, 131-32 (6th Cir. 1980).

Jackson’s identification was not uncorroborated. Two

eyewitnesses identified him as the robber, and evidence was

presented indicating that on the day of the robbery he was

wearing the same clothes as those worn by the culprit and that

he had possession of a bicycle matching the description of the

one used by the robber when he left the post office. Once

again, defense counsel discussed at length throughout the trial
No. 02-3583 United States v. Jackson 13

the accuracy and reliability of the identification testimony

offered by the government, so it cannot be said that the

district court’s failure to give Jackson’s proposed instruction

substantially impaired his defense.

III. 

For the foregoing reasons, we affirm the judgment of the

district court.