NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0704n.06
No. 12-6617
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. DARIN LEE MCALLISTE R, Defendan t - Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FR OM T HE UNI T ED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE

BEFORE: K

EITH , MCK

EAGU E, and DONALD, Circ uit Jud ges. DAMON J. KEITH, Circuit Judge

. I n this appea l, we revie w the distri ct co u rt’s order reje cting Def

endant Dar in L ee McAllister ’ s c h a ll eng e to the Gover nment’s use of pere mptory strikes
ag ainst an Afric an-A merica n juror, J uror Wil ly J erome Ewing , under Batson v. Kentucky , 476 U.S. 79 (1986). F or the following rea sons, we af firm the district cour

t. BACK GR OUND This is our second re view of Mc Allister’s Batson challeng e. I n our first revie w, we found th at t h e d istrict court committed an err or that preve nted us from revie wing its Batson analy sis. United States v McAllister , 693 F.3d 5 7 2 , 5 8 2 (6th Cir. 2012). As a result, we rema nded McAllister’s case , direc ting the district court to comply with its burden under B a t s o n t o make “explicit on-the-r ecor d f

in d in g s a s to w h e th e r M cAllister established the exis tence of purposef ul rac e discriminatio n i n t h e selec tion of his jury , and whether his Batson challeng e require s that hisNo. 12-6617

United States v. Darin Lee M cAllister Pag e 2 conviction be reve rsed.” Id

. Specifica lly , we directed the district court to consider “all evidence, including jur or questionnaire s, that bear on the issue of ra cial animosity .” Id . at 583.
On rema nd the district court order ed briefing

. On November 6, 2012, the district court held

a hear ing on the Gover n m en t ’s proff ere d rea sons for exercising the contested pere mptory challeng e—Juror Ewing ’s unemploy ed status and his law enfor ceme nt backg round. On Dec ember 11, 2012, the district court enter ed an order finding that McAllister’s Batson claim was meritless. McAllister appe a ls , a

r g u in g th a t th e d is tr ict court was clea rly err oneous in reje cting his Batson claim. He also claims that it failed to c omply with this C ourt’s manda te. For the re asons that foll ow, we aff irm the district court.
ANALYSIS
We revie w a Batson deter mination “‘w ith g rea t defe renc e,’ under a clea rly err oneous standard.” United States v. Cecil , 615 F.3d 678, 685 (6th Cir. 2010) (q u o t i n g Un i ted States v. Copeland , 321 F.3d 582, 599 (6th Cir. 2003)). A finding is clea rly err oneous when, althoug h there is evidence to support it, a reviewof the re cord le aves us with a “de finite and fir m conviction that a mistake ha s been c ommitt ed.” United States v. Lalonde , 509 F.3d 750, 763 ( 6th Cir. 2007). The Equal Protection Clause guar antee s a d ef en d an t “the right to be tried by a jury whose members are selec ted pursuant to nondiscriminatory cri t er i a.” Batson , 476 U.S. at 85. A Batson challeng e proce eds in three distinct and sequential steps. Th e p ro cedure assig ns burdens to the opponent of the strike, the proponent of the strike, and the court. The instant appea l only conce rns step three

. “At step three , if the proponent has produce d a fac ially valid explanation for the strike, the trial co u rt m ust decide whether the opponent has proved purposef ul discrimination.” UnitedNo. 12-6617

United States v. Darin Lee M cAllister Pag e 3 States v. K

imbrel , 532 F.3d 461, 466 (6th Cir. 2008); see also Snyder v . Louisi ana , 552 U.S. 472, 477 (2008).
To do so, the district court must assess the cre dibilit y of the proponent’s rac e-ne utral rea sons for the strike in light of all evidenc e bear ing on the issue of rac ial animosity

. See Snyder , 552 U.S.

at 478 (“[A]ll of the circ umstances that bear upon the issue of rac ial animosity must be consulted.”)

. This “plac es an aff

irmative duty on the district court to examine rele vant evidenc e that i s ea sily available ” and prohibits it from “simply acc ept[ing] the prose cu t i o n ’s explanation on its fac e.” United States v. Torres-Ramos, 536 F.3d 542, 559, 560 (6th Cir. 2008). The plausibilit y of the proponent’s explanation and whether the propone nt’s explanation wa s supported in a side-by -side
compar ison with other empane led jurors are among the fac tors a trial court m ay fi n d rele vant to

m aking i ts cre dibilit y deter mination. See Purkett v. Elem , 514 U.S. 765, 768 (1995); Mille r -E l v. Dretke , 545 U.S. 231, 241 (2 0 0 5 ). The cre dibilit y deter mination of the proponent’s rac e-ne utral explanation must be “explicitly adjudicate [d] ” so as to provide the revie wing court with a sufficie nt

rec ord to revie w the Batson challeng e. McCurdy v. Montgomery Cnty. , 240 F.3d 512, 521 (6th Cir. 2001). The dist rict court found no prete x t in the Government striking J uror Ewing beca use of his unemploy ment. McAllister arg ues this was clea r err or beca

use the Gover

nment did not pursue the issue with white empane led jurors who w ere not fully employ ed.
J uror Ew ing w as immediately identified as not f ully employ ed beca

use he indica ted on his juror questionnaire that he was unemploy ed. Meanw hile J uror Caroly n Goldtrap, a white juror who

wa s empane led, i ndicated that she was a teacher

. I t was only during voir dire that J uror GoldtrapNo. 12-6617

United States v. Darin Lee M cAllister Pag e 4

reve aled she was an interim teac her. The Gover nment assert s i t wa s n o t troubled by her partial employ ment beca

use it demonstrated a diligent eff ort to leg ally ear

n a living. J uror Be tty Goodowens, an o t h er white empane led juror, indicated that she “wor ked from home.” The
Gover nment claimed that it assumed J uror Goodowens ref err ed to homemaking or self-e mploy ment rathe r than full unemploy ment. The district court conclude d that striking J uror Ewing for his unemploy ment was sincere and plausible beca use McAllister was char g ed with financ ial fra ud and could potentially

emphasize his dire ec onomic situation as a trial strate g y . Whil e the Gover

nment ’s failure to fully investiga te the employ ment status of other jurors could have been a sign of prete x t, the court’s acc eptanc e of the Gover nment’s distinction betwee n J uror Ewi n g ’s immediately appar ent and straig htforwa rd unemploy

ment status, J uror Goldtrap’s interim-employ

ment status, and J uror Goodowens’ assumed homemaker /self-e mploy ed status was
not clea r err or. The district court’s finding of cre dibilit y , there fore , was not clea rly err oneous. See Anderson v. Be

ssemer City , 470 U.S. 564, 574 (1985) (“Where there are two permissible views of the evidenc e, the fac tfinder’ s choice betwee n them cannot be clea rly err oneous.”)

. Apar

t f rom the above- ref ere nced fac ts which wer e taken as evidenc e of the prosec utor’s sincerity , the district court specific ally found the prosec uting attorney ’s demea nor to be sin ce re as we l l. Considering this combination of fac tors, we are not left with a “def inite and firm conviction that a mistake has been committed.” Lalonde , 509 F.3d a t 763. McAllister also asser

ts that the district court did not comply with this Court’s m andate to

co n s i d er juror questionnaires in its analy sis. Although the district court did not ref ere nce j u ro r questionnaires in its order , the questionnaires wer e discussed during the rema nd hear ing. See UnitedNo. 12-6617

United States v. Darin Lee M cAllister Pag e 5 States v. Moored , 38 F.3d 1419, 1421 (6th Cir. 1994) (quoting United States v. Kikumura , 947 F.2d 72, 76 (3d Cir. 1991)) (“The trial court must implement both the letter and the spirit of the mandate, taking into account the a

ppellate c ourt’s opinion and the c ircumstance s it embrace s.”). 1
McAllister contends that the district court err ed in its compar ative juror analy sis by
compar ing J uror Ewing with other excluded jurors. The district court did make such a compar ison, and we note that a district court “misappre hend[s] the standard” of compar ative juror analy sis when it “juxt apos[es] the excluded j urors with other excluded jurors.” Cecil , 615 F.3d at 687. “[T] he district court’s duty [i s] to compar e the ex cl u d ed potential juror to other persons who wer e not excluded by the prosec ution.” Torres-Ramos , 536 F.3d at 560 (empha sis in orig inal). Nonethele ss,

as demonstrated above, the district court proper ly compar ed J uror Ewing with sever al empane led jurors in addition to its m isstep.
Be cause the di strict cour t was not clea rly err oneous i n cre diting one of t he Government’s proff ere d rea sons, we find it unnece ssary to addre ss the others. For these rea sons, the district court’s order reje cting McAllister’s Batson claim is aff irmed.

We revie w a dist rict cour t’s interpre tation of our own manda te de novo

. United States v. 1 Parks , 700 F.3d 775, 777 ( 6th Cir. 2012).