                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0308n.06

                                            No. 09-4194                                   FILED
                                                                                      May 11, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
ALARIC F. SIMON,                                       SOUTHERN DISTRICT OF OHIO

       Defendant-Appellant.

                                                /




BEFORE:        BATCHELDER, Chief Judge, CLAY, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Defendant Alaric F. Simon, convicted by jury of conspiracy to

distribute and to possess with intent to distribute five or more kilograms of cocaine in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and sentenced to ten years of incarceration, appeals the

district court’s judgment denying his claim that the prosecution violated Batson v. Kentucky, 476

U.S. 79 (1986), when it used a peremptory strike to exclude an African-American juror from the jury

venire. This is the second time this matter has been before this Court; in 2008, a panel of this Court

reversed and remanded a district court order denying Defendant’s Batson claim on grounds that the

district court failed to apply the correct legal standard. See United States v. Torres-Ramos, 536 F.3d

542, 558–60 (6th Cir. 2008). On remand, the district court once again denied Defendant’s Batson
                                             No. 09-4194

claim. Defendant now appeals. For the reasons set forth below, the judgment of the district court

is AFFIRMED.

                                           BACKGROUND

       On May 26, 2004, Defendant Alaric F. Simon was arrested in Shelby County, Ohio, after

accepting delivery of nine kilograms of cocaine from co-felons who, unbeknownst to him, had

entered into a cooperation agreement with the authorities. Defendant was indicted on one count of

conspiracy to distribute and to possess with intent to distribute five or more kilograms of cocaine,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Defendant pleaded not guilty to the

charges, as did his co-felon, Rudolph Rhaburn, and their case proceeded to jury trial before the

United States District Court for the Southern District of Ohio.

       On December 8, 2005, jury selection began. The initial jury venire was comprised of fifty-six

potential jurors: fifty Caucasians, five African-Americans, and one Asian-American. After fifteen

jurors were excused for cause, thirty-six Caucasians, four African-Americans, and one Asian-

American remained on the panel. During voir dire, the prosecution was given nine peremptory

strikes, while the defense1 was given fifteen. The defense used its peremptory challenges to exclude

eight Caucasian jurors and passed on its remaining seven remaining strikes. The prosecution used

its peremptory challenges to exclude three Caucasian jurors as well as Juror No. 26, who is African-

American.

       Defendant, who is African-American, objected under Batson v. Kentucky and a hearing was

held to determine whether the prosecution’s strike of Juror No. 26 was racially motivated. When


       1
           Defendant was tried together with his co-felon, Rudolph Rhaburn.

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asked to explain the basis for its strike, the prosecution stated that Juror No. 26 had been excluded

because of his perceived lack of intelligence, which the prosecution believed was important because

“the more intelligent the juror is, the better they will see between good evidence and things that

might divert their attention from the facts of guilt.”

       In explaining why Juror No. 26 appeared to be less intelligent, the prosecution cited Juror No.

26’s educational background, which reflected that he had received a high school diploma and taken

classes at a community college and career center. The prosecution also cited Juror No. 26’s

employment status, specifically, the fact that he had been laid off from his job as a factory worker

where his responsibilities had been limited. While the prosecution made a passing reference to Juror

No. 26’s “blue collar” appearance and so-called unsophisticated handwriting, the prosecution

explained that education and employment status were the principal reasons for its strike, stating:

       We can’t look at individuals and determine whether they are intelligent or not. All
       we can do is discern from their level of education what—the amount of schooling
       they have had and tell us about on the questionnaire, what employment they have,
       what their life situation is and the information that they provide in the courtroom in
       answering questions.

The prosecution explicitly linked Juror No. 26’s employment status to his perceived level of

intelligence, stating, “I think that somebody who has been laid off and unemployed hasn’t, for

whatever reason, not been able to obtain another type of employment is not the type of juror that we

want to discern this evidence.”

       After considering the prosecution’s race neutral explanation, the district court rejected

Defendant’s Batson objection. The district court stated that while Juror No. 26’s jury questionnaire

did not support the prosecution’s conclusion that Juror No. 26 would be an unsuitable jury member,


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the court was unable to conclude that the prosecution’s explanation was a pretext for purposeful

discrimination, based on the totality of the circumstances. The district court reasoned that one

African-American juror still remained on the jury venire, and that the only other African-American

to be excused from the jury had been excused for cause. The district court also noted that the

prosecution had used its peremptory strikes to exclude several Caucasian jurors whose educational

backgrounds were similar to Juror No. 26, lending credibility to the prosecution’s race neutral

explanation. However, the district court failed to engage in a systematic comparison of jurors

excluded by the prosecution and jurors who were not excluded, to determine whether Juror No. 26

was similarly situated to jurors who remained on the panel.

       The final jury impaneled for Defendant’s trial was comprised of eleven Caucasian jurors, one

African-American juror, and two alternate jurors who were Asian-American and Caucasian,

respectively. On December 16, 2005, following a one-week trial, Defendant was convicted of one

count of conspiracy to distribute and to possess with the intent to distribute five or more kilograms

of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Defendant was sentenced to

ten years of incarceration, five years supervised release, and 100 hours of community service.

       Defendant filed a timely notice of appeal, seeking review of his sentence and conviction on

grounds that (1) evidence supporting the conviction should have been suppressed under the Fourth

Amendment exclusionary rule; (2) his arrest was not supported by probable cause; (3) his conviction

was not supported by sufficient evidence; and (4) the prosecution impermissibly struck an African-

American juror in violation of Batson.




                                                 4
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        In a decision dated August 7, 2008, a panel of this Court affirmed the district court with

respect to the first three claims, but reversed and remanded its Batson determination on grounds that

the district court misapplied the legal standard for Batson challenges. See Torres-Ramos, 536 F.3d

at 558–60. Noting that “the presence of one African-American on the jury does not preclude a

Batson challenge,” id. at 558, the panel held that the district court erred when it failed to conduct a

comparative juror analysis and examine at least three Caucasian jurors whose backgrounds were

similar to Juror No. 26’s but who remained on the jury.2 The panel stated:

        In the instant case, rather than engaging in side-by-side comparisons of some black
        venire panelists who were struck and white ones who were not, the district court
        compared the excluded African-American to other, white panelists who had also been
        excluded. In other words, rather than asking whether similarly situated people were
        treated differently, the district court instead searched for similarly situated people
        who were treated the same. This kind of inquiry, which seeks similarity and ignores
        differences, is not what the Equal Protection Clause requires.

Id. at 560 (internal citations and quotation marks omitted). The panel also stated that the district

court erred when it failed to examine the jury questionnaires and other forms of relevant and “easily

available” evidence before making its Batson ruling. Accordingly, the panel reversed and remanded

to the district court for reconsideration of whether, in light of additional evidence, Defendant’s

Batson challenge “requires that his conviction be reversed.” Id. at 561.

        On remand, the parties agreed to forgo a hearing and have decision on the briefs. The district

court received additional briefing as well as evidence in the form of jury questionnaires, an official




        2
          The three Caucasian jurors who were referred to by the panel have since been identified as Juror
Nos. 19, 21, and 23. Defendant has also identified three additional non-excluded jurors whom he believes
are similarly situated to Juror No. 26. These are Juror Nos. 2, 11, and 17.

                                                    5
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jury list and the courtroom deputy’s notes on the jury list, the voir dire transcript, an affidavit from

the prosecutor, and the prosecutor’s personal memoranda.

        In an opinion dated September 8, 2009, the district court affirmed its Batson ruling. The

district court held that Juror No. 26 was not similarly situated to any of the jurors who remained on

the panel, including the three Caucasian jurors referred to by this Court. The district court

distinguished the non-excluded jurors based on their employment status—noting that while several

jurors did not have college educations, they had jobs, were self-employed, homemakers, or retired.

The district court also commented on the character of the other jurors’ jobs—noting that when

employed, Juror No. 26 had engaged in “routine and repetitive” factory work, while the jurors who

remained on the panel had jobs that required the exercise of creativity or responsibility. The district

court proceeded to deny Defendant’s Batson claim, concluding, “the Government struck [Juror No.

26] because it believed that his lack of employment demonstrated that he was not intelligent enough

to be a good juror.”

        Defendant filed this timely appeal.

                                           DISCUSSION

I.      The District Court’s Judgment Regarding Defendant’s Batson Challenge

        A.      Standard of Review

        Because “[a]n appellate court, confined to reviewing transcripts from voir dire, is not as well

positioned as the trial court is to make credibility determinations,” we review a district court’s

determination of a Batson challenge for clear error. United States v. Watford, 468 F.3d 891, 914 (6th

Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 339 (2003) (internal quotation marks


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                                             No. 09-4194

omitted)); see also Snyder v. Louisiana, 552 U.S. 472, 477 (2008); United States v. Odeneal, 517

F.3d 406, 413 (6th Cir. 2008). However, “[d]eference does not by definition preclude relief,”

Cockrell, 537 U.S. at 340, and when a district court makes an erroneous Batson determination, it is

structural error mandating retrial. See United States v. McFerron, 163 F.3d 952, 955–56 (6th Cir.

1998).

         B.     Elements of a Batson Challenge

         In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the Equal Protection

Clause forbids the prosecution’s use of peremptory challenges to exclude jurors on the basis of race.

This holding has since been expanded to forbid the use of peremptory challenges motivated by

gender; to forbid the use of discriminatory strikes by the defense; and to permit Batson claims when

jurors of a different race than the defendant are excluded from the jury pool. See, e.g., J.E.B. v.

Alabama ex rel. T. B., 511 U.S. 127, 129–31 (1994) (banning strikes based on gender); Georgia v.

McCollum, 505 U.S. 42, 59 (1992) (discussing reverse Batson strikes by the defense); Powers v.

Ohio, 499 U.S. 400, 402 (1991) (discussing cross-racial Batson challenges).

         When a party raises a Batson challenge, courts must perform a three-step analysis. “First,

the trial court must determine whether the defendant has made a prima facie showing that the

prosecutor exercised a peremptory challenge on the basis of race.” Rice v. Collins, 546 U.S. 333,

338 (2006). A defendant establishes a prima facie case when:

         (1) he is a member of a cognizable racial group; (2) the prosecutor has exercised
         peremptory challenges to remove from the venire members of the defendant’s race;
         and (3) these facts and other relevant circumstances raise an inference that the
         prosecutor used that practice to exclude the venire men from the petit jury on account
         of their race.


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Odeneal, 517 F.3d at 418–19.

        Once a prima facie case is established, “the burden shifts to the prosecutor to present a

race-neutral explanation for striking the juror in question.” Rice, 546 U.S. at 338. At this stage, “the

prosecutor’s race-neutral explanation need not be “particularly persuasive, or even plausible, so long

as it is neutral.” Torres-Ramos, 536 F.3d at 559 (citing United States v. Harris, 192 F.3d 580, 586

(6th Cir. 1999)); see also United States v. Kimbrel, 532 F.3d 461, 467 (6th Cir. 2008) (“Unless a

discriminatory intent is inherent in the [strike proponent’s] explanation, the reason offered will be

deemed race neutral.”) (citing Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)).

        However, “the trial judge cannot simply accept the prosecution’s explanation on its face.”

Torres-Ramos, 536 F.3d at 559 (internal citations and quotation marks omitted). Rather, as a final

step, reviewing courts must assess the prosecutor’s credibility, weigh the strength of the

prosecution’s asserted justification against the defendant’s prima facie case, and determine whether

a defendant has carried his burden of proving purposeful discrimination in light of all relevant

circumstances, including comparative juror analysis and arguments related to pretext. See, e.g.,

Odeneal, 517 F.3d at 419–20; Kimbrel, 532 F.3d at 466. “In the end, the ultimate burden of

persuasion always rests with the party challenging the strike.” United States v. Cecil, 615 F.3d 678,

686 (6th Cir. 2010); see also United States v. Tucker, 90 F.3d 1135, 1142 (6th Cir. 1996) (describing

Batson as a preponderance of evidence test).

        Where, as here, the trial court has heard and ruled on the prosecution’s asserted race neutral

justification, “the issue of whether the defendant made a sufficient prima facie showing becomes

moot.” Tucker, 90 F.3d at 1142 (citing Hernandez v. New York, 500 U.S. 352, 358–59 (1991)


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                                           No. 09-4194

(plurality opinion)); accord Braxton v. Gansheimer, 561 F.3d 453, 461 (6th Cir. 2009). Therefore,

the sole issue presented in this appeal is whether Defendant established “by a preponderance of the

evidence that the peremptory strikes were intentionally discriminatory.” Tucker, 90 F.3d at 1142.

       C.      Analysis

               1.      Comparative juror analysis does not establish purposeful discrimination

       “If a prosecutor’s proffered reason for striking a black panelist equally applies to an

otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful

discrimination.” Odeneal, 517 F.3d at 420 (quoting Miller-El v. Dretke, 545 U.S. 231, 241 (2005)).

In the instant case, the prosecution struck Juror No. 26 based on his perceived lack of intelligence,

as demonstrated by his employment status and educational background, while retaining a total of six

Caucasian jurors who had similar educational backgrounds—e.g., high school diplomas with some

additional community college coursework or vocational training.

       Had the prosecution based its peremptory strike on educational status alone, Defendant on

this record may well have carried his burden of establishing pretext. See Odeneal, 517 F.3d at 420

(finding Batson violation in light of “unexplained disparate treatment”). However, in making its

initial proffer, the prosecution stated that it was striking Juror No. 26 because of his educational

background as well as his employment status, specifically, the fact that he was a laid off factory

worker. Peremptory strikes may be validly exercised on the basis of employment status and

occupation. See United States v. Yang, 281 F.3d 534, 549 (6th Cir. 2002); accord United States v.

Cruz-Escoto, 476 F.3d 1081, 1089–90 (9th Cir. 2007); United States v. Thompson, 450 F.3d 840,




                                                 9
                                             No. 09-4194

843–44 (8th Cir. 2006); Howard v. Moore, 131 F.3d 399, 408 (4th Cir. 1997); Garcia v. Excel Corp.,

102 F.3d 758, 760 (5th Cir. 1997); United States v. Hunter, 86 F.3d 679, 683 (7th Cir. 1996).

        Because the prosecution’s statement that it was considering jurors’ employment status did

not “reek[] of afterthought,” Dretke, 545 U.S. at 246, employment status may be regarded as a

material distinction for purposes of comparative juror analysis. Although a number of non-excluded

jurors had high school educations and blue collar or low skilled jobs,3 only one non-excluded juror

had a high school education and was also unemployed at the time of jury selection. This

juror—Juror No. 17—was Caucasian, 45 years old, and a high school graduate who attended beauty

school but left her position as the owner of a hair salon to become a stay at home mom. When asked

to conduct a juror comparison on remand, the district court found that Juror No. 17’s employment

history, the voluntary nature of her unemployment, and her previous job duties sufficiently

distinguished her from the excluded juror.

        Although jurors need not be identical to support a Batson challenge, Odeneal, 517 F.3d at

420, we believe the differences between these two jurors were meaningful. Accordingly, we

conclude that the district court did not commit clear error when it held that comparative juror

analysis failed to establish pretext.

                2.      The totality of circumstances do not support a finding of purposeful
                        discrimination




        3
         Juror No. 19, a 44-year-old Caucasian female, was a high school graduate who trained and cared
for horses; Juror No. 21, a 70-year-old Caucasian female, was a high school graduate self-employed as a
dance teacher; and Juror No. 23, a 40-year-old Caucasian male, was a high school graduate who worked in
shipping and receiving.

                                                  10
                                             No. 09-4194

        While the final racial composition of a jury and similarities between excluded jurors are not

determinative of whether a Batson violation occurred, see Torres-Ramos, 536 F.3d at 559–60,

Harris, 192 F.3d at 587 (“[T]he presence of one African-American on the jury does not preclude a

Batson challenge”), they are still factors relevant to the totality of the circumstances. See United

States v. Sangineto-Miranda, 859 F.2d 1501, 1520–21 (6th Cir. 1990) (discussing factors); see also

United States v. Hill, 146 F.3d 337, 342 (6th Cir. 1998) (noting that the final makeup of a jury can

be considered).

        In the instant case, the prosecution used peremptory challenges to exclude a total of four

jurors: Juror Nos. 26, 30, 25, and 56. Juror No. 26 was the only African-American juror excluded

through the prosecution’s use of a peremptory strike, and the prosecution waived a number of its

peremptory challenges, “leaving open the possibility that an African-American might be on the jury.”

Tucker, 90 F.3d at 1135 (citing Sangineto-Miranda, 859 F.2d at 1522). With the exception of Juror

No. 30, who appears to have been dismissed for perceived bias,4 the excluded jurors all shared

educational and employment characteristics in common: all three jurors failed to complete a college

degree, and all three were unemployed at the time of jury selection. These factors militate against

a finding of pretext, and they support the district court’s conclusion that discrimination did not

motivate the prosecution’s use of peremptory strikes.

        Accordingly, we hold that the district did not commit clear error when it found that

Defendant failed to carry his burden of establishing purposeful discrimination.



        4
         Juror No. 30 disclosed to the district court that she had a close family member who suffered from
drug addiction.

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                                            No. 09-4194

                                         CONCLUSION

         Because the district court did not commit clear error when it held that Defendant failed to

carry his burden of establishing purposeful discrimination, we AFFIRM the judgment of the district

court.




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