United States v. Thompson

• Decision Date: 18 November 2013
• Docket Number: No. 12–31203.,12–31203.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Eugene THOMPSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

735 F.3d 291

UNITED STATES of America, Plaintiff–Appellee,

v.Eugene THOMPSON, Defendant–Appellant.

No. 12–31203.

United States Court of Appeals, Fifth Circuit.

Nov. 12, 2013.

As Modified Nov. 18, 2013.

Theodore R. Carter, III, Assistant U.S. Attorney, Kevin G. Boitmann, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, New Orleans, LA, for Plaintiff–Appellee.

Marion Dean Floyd, Esq., Kenner, LA, for Defendant–Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Eugene Thompson, as a member of a six-person drug conspiracy, was convicted by a jury of violations of federal drug and gun laws. He appeals the denial of his Batson challenge and questions the sufficiency of the evidence. Finding no reversible error, we affirm.

I.

Thompson faced four counts. He was charged in Count One with conspiracy to distribute and possess with intent to distribute more than 280 grams of crack cocaine, in violation of 21 U.S.C. § 846; in Count Two with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and (C) and 18 U.S.C. § 2; in Count Three with possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 2; and in Count Four with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 942(a)(2).

During voir dire, Thompson challenged the government's decision to use five of its seven peremptory strikes against black prospective jurors (Jurors 4, 23, 25, 26, and 37) under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Assuming arguendo that Thompson had established a prima facie case of discrimination, the district court asked the prosecutor to articulate the reasons for the strikes. For Jurors 23 and 37, the government justified its decision solely on its observations of the juror's demeanor ¹ during voir dire.² For Jurors 4, 25, and 26, the government relied on both observations of the juror's demeanor ³ and other perceived sources of bias toward the government.⁴

After hearing each of the prosecutor's justifications, the court gave Thompson an opportunity to argue that those reasons were pretext for discrimination. Defense counsel disputed the government's characterizations of the jurors' demeanor ⁵ and the other stated justifications.⁶ Having been able to witness the voir dire and assess each side's credibility, the court denied the Batson challenge, finding each of the government's proffered reasons credible. Thompson appeals the denial of his Batson challenge.

Following this exchange, in light of the fact that the defense had used all eleven of its peremptory challenges on white jurors, the government made a reverse Batson challenge. Just like the government, defense counsel justified some of its peremptory challenges solely on the basis of demeanor. ⁷ As with the government, the district court credited the defense's observations of the jurors as facially-neutral, non-pretextual justifications. The court, however, found two of the justifications given by defense counsel to be pretextual.⁸ Thompson does not appeal the grant of the reverse Batson challenge.⁹

After the close of the government's case, Thompson moved for a judgment of acquittal, which, after hearing arguments, the district court denied. The jury found Thompson guilty on all counts. Thompson appeals the denial of the motion for acquittal.

II.

In Batson v. Kentucky, 476 U.S. 79, 93–98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Court outlined a three-part framework for evaluating claims that a prosecutor used peremptory challenges in violation of the Equal Protection Clause. To raise a successful Batson challenge, a defendant must first make a prima facie showing that the prosecutor used a peremptory challenge to strike a juror on the basis of his race. Second, if the defendant has made such a showing, the prosecution must then offer a race-neutral basis for the strike. Finally, the district court must determine whether the defendant has carried his burden of proving purposeful discrimination.

A district court makes a finding of fact when it determines whether a prosecutor has purposively discriminated on the basis of race in striking a juror. See Hernandez v. New York, 500 U.S. 352, 367, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). This court does not overturn such factual findings absent clear error. See United States v. Bentley–Smith, 2 F.3d 1368, 1372 (5th Cir.1993). These factual findings warrant great deference, because the district court “observ[es] the voir dire, know[s] the layout of the courtroom better than a written description can provide, and [is] able to consider the demeanor of the prosecutor.” United States v. Turner, 674 F.3d 420, 436 (5th Cir.), cert. denied,––– U.S. ––––, 133 S.Ct. 302, 184 L.Ed.2d 178 (2012).¹⁰ We review the government's proffered race-neutral explanation as a legal issue de novo. United States v. Williams, 264 F.3d 561, 571 (5th Cir.2001).

Thompson has raised Batson challenges on all of the five black jurors struck. To succeed on his Batson challenge, however, he only needs to show that the prosecutor struck one juror on the basis of race.¹¹

We do not need to address whether Thompson has sufficiently established a prima facie case of discrimination. The government's offer of race-neutral reasons removes that question from our review.¹²

Turning to Batson's second step, for two of the five black jurors struck, the government justified its decision solely ¹³ on its observations of the jurors' demeanor during voir dire. For the other three black jurors, the government justified its decision to strike on both observations of demeanor and other perceived sources of bias toward the government. None of these justifications, on its face, invokes the juror's race.¹⁴

Thus, moving to Batson's third step, the question is whether, contrary to the district court's finding, Thompson has proven that the government's purported facially neutral reasons were pretexts for purposeful discrimination. At this step in the Batson analysis, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). A prosecutor's intuitive assumptions, inarticulable factors, or even hunches can, however, be proper bases for rejecting a potential juror. See Bentley–Smith, 2 F.3d at 1374. At Batson's third step, courts do not assess whether “counsel's reason is suspect, or weak, or irrational.” Id. at 1375. Instead, courts address “whether counsel is telling the truth in his or her assertion that the challenge is not race-based.” Id. In determining whether a prosecutor discriminated on the basis of race, a court should consider “the totality of the relevant facts.” Hernandez, 500 U.S. at 363, 111 S.Ct. 1859 (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)).

Thompson only hints at three possible reasons the government's justifications could be pretext for purposeful racial discrimination. First, Thompson points to the relatively high percentage of black potential jurors struck by the prosecutor—here 71%. This fact by itself, while certainly relevant, does not establish purposeful discrimination.¹⁵

Second, Thompson argues that because the prosecutor treated similarly-situated jurors of a different race unequally, the prosecutor's race-neutral justification should be viewed as pretext for purposeful discrimination. The Supreme Court has recently endorsed such a side-by-side analysis.¹⁶ Of the five black prospective jurors challenged, Thompson has, however, only sought comparison of Juror 4 with other non-black jurors in an effort to show purposeful discrimination. We accordingly limit our side-by-side comparison analysis to Juror 4.

As discussed above, the government relied on two race-neutral justifications in striking Juror 4. First, it struck her on the basis of demeanor, observing that “throughout the case, she sat there ... look[ing] perturbed throughout the whole process.” Second, the government justified striking Juror 4 because “her son was arrested for selling weed.” In response, Thompson contends that the venire contained “multiple white jurors who indicated that family members had been subject to criminal convictions and/or arrests” and who were not similarly struck.

The district court considered Jurors 7, 40, and 44 as potential similarly situated non-black jurors whom the government failed to strike.¹⁷ The government also urged the court to use Juror 16, also a black female with a family member convicted of a criminal offense (armed robbery), as the proper basis for comparison. The government justified its decision not to strike Juror 16, because, unlike Juror 4, Juror 16 did not have a perturbed demeanor: “Based [on] ... her demeanor [in] the courtroom, the government chose not to strike her. .... They are quite similar in their background. One sat there, looked pained and bothered. One did not.”

In justifying its decision not to strike Jurors 7, 40, and 44, the government similarly noted that, as a general matter, those jurors did not share Juror 4's demeanor: “Those jurors did not sit there looking bothered and pained to be here.” In fact, the government pointed out that it nevertheless would have struck Juror 7 if Thompson had not done so first. The government thought Juror 44 “never would have come into play,” presumably because a jury would have already been selected before reaching him. The government did not provide any additional specific justification for its decision not to strike Juror 40. The district court found the government's explanation to be “credible.”

This side-by-side comparison does not...