       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Jackson                    No. 02-3583
    ELECTRONIC CITATION: 2003 FED App. 0371P (6th Cir.)
                File Name: 03a0371p.06                    Guerrier, UNITED STATES ATTORNEY, Dayton, Ohio, for
                                                          Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               OPINION
                _________________                                             _________________

 UNITED STATES OF AMERICA , X                               JULIA SMITH GIBBONS, Circuit Judge. Defendant-
                                                          appellant Shawn Jackson was convicted of one count of post
            Plaintiff-Appellee, -                         office robbery in violation of 18 U.S.C. § 2115. During jury
                                  -
                                  -  No. 02-3583          selection, the government exercised a peremptory challenge
           v.                     -                       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
 SHAWN JACKSON ,                  -
        Defendant-Appellant. -                            and two alternates were selected. The district court asked the
                                                          government for an explanation for its decision to strike
                                 N                        Turner, and Jackson did not argue that the proffered
      Appeal from the United States District Court        explanation was a pretext for discrimination. The district
      for the Southern District of Ohio at Dayton.        court found that the government offered a race-neutral
  No. 01-00070—Walter H. Rice, Chief District Judge.      explanation and overruled Jackson’s objection. Jackson now
                                                          appeals this ruling, as well as the district court’s refusal to
              Argued: September 11, 2003                  give the jury instructions he requested regarding his theory of
                                                          the defense and the reliability of certain identification
         Decided and Filed: October 20, 2003              testimony offered at his trial. For the following reasons, we
                                                          affirm the judgment of the district court.
  Before: NELSON, GIBBONS, and SUTTON, Circuit
                     Judges.                                                            I.

                  _________________                          On August 28, 2001, Jackson was indicted by a federal
                                                          grand jury in the Southern District of Ohio for one count of
                       COUNSEL                            post office robbery in violation of 18 U.S.C. § 2115. The
                                                          indictment alleged that on May 24, 2001, Jackson robbed a
ARGUED: Richard W. Smith-Monahan, OFFICE OF THE           United States post office in Dayton, Ohio, of approximately
FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for            $1,333.00. Jackson’s trial began on November 5, 2001.
Appellant. Mona Guerrier, UNITED STATES ATTORNEY,         During voir dire, the district court asked the potential jurors
Dayton, Ohio, for Appellee. ON BRIEF: Richard W. Smith-   to indicate if they had ever been government employees, and
Monahan, OFFICE OF THE FEDERAL PUBLIC                     if so, whether their government service would affect their
DEFENDER, Cincinnati, Ohio, for Appellant. Mona           ability to serve as a juror. Anthony Turner, juror number 41,

                            1
No. 02-3583                   United States v. Jackson        3   4    United States v. Jackson                    No. 02-3583

responded by saying, “I served in the United States Air Force     Jackson did not object to that ruling or request a more
for twenty years. And that would not affect my participation      detailed record of the judge’s rationale.
in the court.” The government did not ask Turner any follow-
up questions to his response.                                       On the third day of trial, the government revisited the issue
                                                                  of Jackson’s Batson objection in a conference with the district
  Nonetheless, the government later exercised a peremptory        court judge. The government’s lead counsel, Mona Guerrier,
challenge to exclude Turner. At the time, Turner was the only     volunteered that she was the one who initially felt
African-American on the jury panel. Jackson did not raise an      uncomfortable with Turner’s demeanor and she also indicated
objection to the government’s peremptory challenge until          for the record that she is an African-American. The court
after the jury and two alternates were selected. Counsel for      indicated that her explanation could not be considered
Jackson did not object earlier because he believed that Turner    because it was being offered three days into the trial. Once
had no chance of being on the panel, but once the selection       again, at the conclusion of the government’s comments,
process was over it became clear that Turner would have been      Jackson made no additional objections or arguments with
an alternate if the government had not struck him from the        respect to the Batson issue.
panel. In accordance with the Supreme Court’s decision in
Batson v. Kentucky, 476 U.S. 79 (1986), the court asked the          The evidence presented at trial established that on the day
government to give its reasons for the challenge. In response,    of the robbery, Jackson went to the Dayton post office with
Assistant United States Attorney Richard Chema stated that:       his girlfriend’s brother, Tim Anderson. While in the post
                                                                  office, Jackson observed a transaction involving
  The gentleman was unresponsive . . . to a question of the       approximately $1,900.00. As he was leaving, Jackson told
  Court. The Court asked . . . if anyone had been involved        Anderson that he had “cased [his] spot.” According to
  in the government and [would that] in some way affect           Anderson, at the time Jackson was wearing a dark-colored
  your ability to serve on the jury. He stood up and said,        windbreaker, dark pants, white tennis shoes, and a baseball
  he was in the Air Force for 21 years and retired from the       cap with a New York logo on it. After visiting the post
  Air Force and that wouldn’t affect him.                         office, Jackson borrowed a red and white bicycle from his
                                                                  friend Tony Harris.
  Counsel for the government, both Miss Guerrier and
  myself believe that this gentleman wanted to get up and           Barbara Barnett, a postal clerk, testified that on May 24,
  give a speech for one reason or another. The government         2001, a black male between the ages of eighteen and twenty,
  didn’t like the kind of attitude that we believe he was         wearing a New York baseball hat and a dark jacket
  putting forth and his demeanor. That’s the reason the           approached the counter and gave her a note stating, “Hand me
  strike was made.                                                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
Jackson did not object to the government’s proffered              robber became angry and leaned toward her and said “give me
explanation, nor did he argue that it was a pretext for           the damn cash.” During this exchange, Barnett noticed that
discriminatory animus. The district court concluded that the      the robber had a gap between his front teeth. Barnett then
government had offered a legitimate, non-discriminatory           gave him the cash from her drawer.
reason in response to Jackson’s Batson challenge, and
No. 02-3583                    United States v. Jackson       5    6      United States v. Jackson                    No. 02-3583

   Shortly after the robbery, Barnett viewed a photo line-up           acquaintances of Shawn Jackson had motivations which
and identified Jackson as the robber. Barnett indicated that           show they were being untruthful.
she was sixty to seventy percent sure of her identification. At
trial, Barnett again identified Jackson as the robber. During      The district court declined this request because it found that
her testimony, Jackson was asked to smile and expose his           the instruction was unnecessary and not required by law.
teeth to Barnett and the jury, and Barnett confirmed that
Jackson had a gap between his front teeth.                           Jackson also requested the following instruction regarding
                                                                   some of the identification testimony that had been offered at
   The government produced additional eyewitness testimony         his trial:
that was incriminating to Jackson. Brian Butterbaugh, the
other postal clerk on duty on the day of the robbery, testified        You have heard the testimony of Barb Barnett and
that he observed a gap between the robber’s two front teeth            Catherine Green, who have identified the defendant as
when the robber approached his window at the post office.              the person who robbed the post office. You should
Catherine Green, a customer who was at the post office on the          carefully consider whether this identification was
day of the robbery, testified that she saw a red bike by the           accurate and reliable.
door of the post office when she entered. Green further
testified that she had observed a black male wearing a dark        The proposed instruction also set forth factors that Jackson
jacket and a dark hat reposition himself at the back of the line   wanted the jurors to consider in determining whether the
several times for no apparent reason. After completing her         identification was accurate and reliable. The district court
transaction at the postal window, she observed the same man        again declined to give the instruction, stating: “My concern
exiting the post office, and she saw him jump on the red           is that I think the accuracy of the identification can be argued
bicycle and ride away very fast. She also identified Jackson       under credibility. I don’t think a separate instruction is
as the man she saw at the post office riding away on the bike.     necessary.” The court did provide a general instruction to the
Several of Jackson’s acquaintances testified that Jackson had      jury on assessing the credibility of each witness:
a gap between his front teeth. Jackson’s girlfriend testified
that he owned clothes matching the description provided by             Consider carefully the circumstances under which each
the postal clerks and confirmed that he was wearing those              witness testified. Remember the witness’s response to
clothes on the day of the robbery. During the course of the            questions, his or her assurance or lack of it in answering,
trial, the government presented additional circumstantial              and the entire demeanor or appearance of that witness
evidence suggesting that Jackson had committed the robbery.            while on the witness stand.

  At the close of the trial, Jackson submitted several proposed        Consider also any relation that a witness may bear to
jury instructions. Specifically, Jackson requested the                 either side of the case and his or her reasons for
following instruction on his theory of defense:                        testifying, any interest he or she may have in the outcome
                                                                       of the case. Any prejudice or bias he or she may have
  The defense says that Shawn Jackson was misidentified                shown including any reason or motivation to bear
  as the robber of the post office by the witnesses who                hostility or animosity toward a party and any partiality he
  were there that day. The defense further says that the               or she may have demonstrated.
No. 02-3583                    United States v. Jackson      7    8       United States v. Jackson                         No. 02-3583

  On November 9, 2001, the jury returned a guilty verdict.        persuasive, or even plausible, so long as it is neutral.” Id. at
On May 15, 2002, the district court sentenced Jackson to          521 (citing United States v. Harris, 192 F.3d 580, 586 (6th
ninety-six months incarceration, three years supervised           Cir. 1999)). Once a race-neutral explanation is produced, the
release, and one hundred hours of community service. In           complaining party must prove purposeful discrimination.
addition, Jackson was ordered to pay restitution to the United    Batson, 476 U.S. at 98. Purposeful discrimination may be
States Postal Service in the amount of $613.00 and a special      shown by demonstrating that the proffered explanation is
assessment of $100.00. On May 21, 2002, Jackson filed this        merely a pretext for racial motivation. McCurdy, 240 F.3d at
timely appeal.                                                    521. Throughout the Batson inquiry, the ultimate burden of
                                                                  persuasion always rests with the party challenging the strike.
                              II.                                 Id.; see also United States v. Mahan, 190 F.3d 416, 424 (6th
                                                                  Cir. 1999). A district court’s ruling on whether the exercise
  A. Jackson’s Batson Objection                                   of a peremptory challenge violates equal protection is entitled
                                                                  to great deference and will not be reversed unless it is clearly
  Jackson argues that the government violated his right to        erroneous. United States v. Buchanan, 213 F.3d 302, 308-09
equal protection when it used a peremptory challenge to strike    (6th Cir. 2000).
Turner, the only remaining African-American member of the
jury panel. After counsel for Jackson raised a Batson               In the instant case, the district court asked the government
objection to the government’s peremptory challenge, the           for an explanation for its decision to strike Turner without
district court required the government to state its reasons for   considering whether Jackson had established a prima facie
excluding Turner on the record. Counsel for the government        case.1 However, once a party offers a race-neutral
indicated that he struck Turner from the panel because he did     explanation for a peremptory challenge and the trial court has
not like his demeanor and “attitude.” The district court          ruled on the ultimate question of intentional discrimination,
concluded that the government had offered a legitimate, non-      “the preliminary issue of whether the defendant [has] made a
discriminatory reason for the challenge and overruled             prima facie showing of intentional discrimination becomes
Jackson’s objection.                                              moot.” Hernandez v. New York, 500 U.S. 352, 359 (1991);
                                                                  Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d
   The Equal Protection Clause prohibits a party from using       776, 780 (6th Cir. 2003). Thus, we need not consider whether
peremptory challenges to exclude members of the venire on         Jackson has established a prima facie showing that the
account of their race. Batson v. Kentucky, 476 U.S. 71, 79        peremptory challenge was based on race.
(1981); Edmonson v. Leesville Concrete Co., Inc., 500 U.S.
614, 630-31 (1991) (extending Batson to civil cases). In            The second step in the Batson inquiry is to assess whether
order to establish an equal protection violation under Batson,    the government articulated a race-neutral explanation for its
the complaining party must first make a prima facie showing       decision to strike Turner from the panel. A district court must
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
                                                                      1
burden of persuasion then shifts to the party making the strike         In Mahan, however, this court held that a party’s use o f a
to articulate a race-neutral explanation for removing the juror   peremptory challenge to strike the only prospective black juror was “more
in question. Id. This explanation “need not be particularly       than sufficient to establish a prim a facie case of intentional
                                                                  discrimination.” 190 F.3d at 424-25.
No. 02-3583                            United States v. Jackson              9    10    United States v. Jackson                     No. 02-3583

independently assess a race-neutral explanation and explicitly                    court’s ruling or attempt to rebut the government’s proffered
rule on its credibility, “particularly in cases when the                          explanation by arguing that it was a pretext for
purported race-neutral justification is predicated on subjective                  discrimination. On appeal, Jackson argues that the totality of
explanations like body language or demeanor.” McCurdy,                            the information available to the district court at the time the
240 F.3d at 521. It is inappropriate for a district court to                      strike was made indicated that the government’s peremptory
perfunctorily accept a race-neutral explanation without                           challenge was based on a discriminatory purpose.
engaging in further investigation. Id. at 520-21. However, “it                    Specifically, Jackson now objects to the district court’s failure
is the defendant’s burden to rebut, to whatever extent                            to weigh the credibility of the government’s explanation on
possible, the prosecutor’s reasons for exercising his or her                      the record. He also argues for the first time on appeal that the
peremptory strikes on the record at the time such reasons are                     proffered explanation lacked credibility because the
proffered.” United States v. Harris, No. 00-3474, 2001 WL                         government failed to strike similarly-situated white jurors.
873642, at *3 (6th Cir. July 26, 2001). If a defendant fails to                   Because Jackson failed to rebut the government’s explanation
rebut a race-neutral explanation at the time it was made, the                     at the time it was made, we review the district court’s ruling
district court’s ruling on the objection is reviewed for plain                    on his objection for plain error.
error,2 United States v. Wilson, No. 99-2280, 2001 WL
549446, at *2 (6th Cir. May 14, 2001), and the movant in this                        A peremptory challenge is not unconstitutional solely
setting is in no position to register a procedural complaint that                 because it has a racially disproportionate impact. Some proof
the district court failed to give a specific reason on the record                 of racially discriminatory intent or purpose is required in
for accepting the government’s race-neutral explanation. A                        order to show a violation of the Equal Protection Clause.
movant’s failure to argue pretext may even constitute waiver                      Hernandez, 500 U.S. at 360 (citing Arlington Heights v.
of his initial Batson objection. Davis v. Baltimore Gas &                         Metro. Hous. Dev. Co., 429 U.S. 252, 264-64 (1977)). In the
Elec. Co., 160 F.3d 1023, 1027 (4th Cir. 1998); United States                     Batson context, a party’s explanation for its decision to strike
v. Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir. 1996);                       is “neutral” if it is based on something other than the race of
Hopson v. Frederickson, 961 F.2d 1374, 1377 (8th Cir. 1992);                      the juror. Id. In the absence of discriminatory intent inherent
United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990).                           in the explanation, the reason offered is deemed race neutral.
                                                                                  Id.
  The district court concluded that the government had come
forward with a legitimate, non-discriminatory reason for its                        There was no evidence of discriminatory intent inherent in
peremptory challenge, and Jackson did not object to the                           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,
    2                                                                             Jackson has not asserted any arguments on appeal that suggest
       W hen an appellant fails to make an objection in the trial court, the      the district court plainly erred by overruling his objection.
objection is deem ed forfeited, and thus non-cognizable upon appellate
review, unless the assailed action of the trial court constituted plain error.
                                                                                  Jackson contends that the government’s failure to strike
Fed. R. Crim. P. 52(b). To establish plain error, the appellant must show         similarly-situated white jurors from the panel should have
(1) that an error occurred in the district court; (2) that the error was plain,   signaled to the district court that the government had a
i.e., obvious or clear; (3) that the error affected an appellant’s substantial    discriminatory purpose when it struck Turner from the panel.
rights; and (4) that this adverse impact seriously affected the fairness,         In fact, all of the “similarly-situated” white jurors Jackson
integrity or public reputation of the judicial pro ceed ings. United States
v. Ko eberlein, 161 F.3d 94 6, 949 (6th Cir. 1998).
                                                                                  points to in his brief were responding to a different question
No. 02-3583                      United States v. Jackson       11    12    United States v. Jackson                      No. 02-3583

from the one Turner was answering when he made the                    with his opening statement that “this case is really about
statement that caused the government to object to his presence        mistaken identity and hidden motivations.” During cross-
on the panel. Turner was responding to a question about               examination, defense counsel questioned the government’s
previous government employment, while the jurors cited in             witnesses at length regarding how much time each had spent
Jackson’s brief were responding to questions about their              actually looking at the defendant, the distance at which each
experiences with law enforcement. Jackson did not attempt             of them had viewed the defendant, and any distractions or
to rebut the government’s explanation by offering additional          memory lapses that might have impacted their observations.
evidence and did not otherwise indicate a continuing                  When defense counsel gave his closing argument, he spent
objection. The district court could have construed Jackson’s          considerable time emphasizing these same points, as well as
failure to respond to the government’s explanation as an              the defense’s theory that the government’s witnesses had
indication that he no longer disputed the strike. See Rudas,          mistaken Jackson for Tony Harris on the day of the robbery.
905 F.2d at 41. The burden was on Jackson as the party                The district court specifically instructed the jury to consider
challenging the strike to prove the existence of purposeful           “any bias or prejudice” a witness may have had when
discrimination, and when faced with the government’s                  testifying, including “any reason or motivation to bear
seemingly race-neutral explanation, Jackson made no                   hostility or animosity toward any party.” In short, the failure
response. Under these circumstances, the district court did           to give this instruction did not substantially impair Jackson’s
not plainly err in overruling Jackson’s Batson objection.             defense because the jury was already well aware of his theory
                                                                      of the case. See United States v. Covington, 2001 WL
  B. Jackson’s Proposed Jury Instructions                             302067, at *2 (6th Cir. March 21, 2001); United States v.
                                                                      Laury, 49 F.3d 145, 152 (5th Cir. 1995).
   Jackson’s second contention on appeal is that the district
court erred by refusing to provide the jury with instructions            Jackson also requested more detailed instructions on
on his theory of the defense and on the reliability of                identification testimony, including a set of factors for the jury
identification testimony offered at his trial. A district court’s     to use in determining whether an identification is accurate and
refusal to deliver a requested jury instruction amounts to            reliable. The district court overruled Jackson’s request and
reversible error only if the instruction (1) is a correct             gave the jury a general credibility instruction to consider “the
statement of the law; (2) was not substantially covered by the        circumstances under which each witness testified,” as well as
charge actually delivered to the jury, and (3) concerns a point       the “entire demeanor or appearance” of each witness.
so important in the trial that the failure to give it substantially   Identification instructions are within the discretion of the trial
impairs the defendant’s defense. United States v. Gibbs, 182          court; they need only be given if there is a danger of
F.3d 408, 432 (6th Cir. 1999).                                        misidentification due to a lack of corroborating evidence.
                                                                      United States v. Boyd, 620 F.2d 129, 131-32 (6th Cir. 1980).
  At the close of the trial, Jackson asked the district court to      Jackson’s identification was not uncorroborated. Two
instruct the jury that “[t]he defense says that Shawn Jackson         eyewitnesses identified him as the robber, and evidence was
was misidentified as the robber of the post office by witnesses       presented indicating that on the day of the robbery he was
who were there that day” and that “the acquaintances of               wearing the same clothes as those worn by the culprit and that
Shawn Jackson had motivations which show they were being              he had possession of a bicycle matching the description of the
untruthful.” Counsel for Jackson repeatedly emphasized                one used by the robber when he left the post office. Once
these theories to the jury throughout the entire trial, beginning     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.
