                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1270n.06

                                       Nos. 11-3913, 11-3997

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                                 FILED
                                                                                             Dec 11, 2012
UNITED STATES OF AMERICA,                                                            DEBORAH S. HUNT, Clerk

        Plaintiff-Appellee,

                v.                                                       On Appeal from the United
                                                                         States District Court for the
DAMIEN T. RUSS,                                                          Northern District of Ohio

        Defendant-Appellant.


                                                                 /

Before: GUY, DAUGHTREY, and STRANCH, Circuit Judges.

        RALPH B. GUY, JR., Circuit Judge.                D e f e n d a n t D a m ie n R u s s a p p e a l s h i s

conviction and sentence for being a felon in unlawful possession of a firearm in violation of

18 U.S.C. § 922(g)(1), and the subsequent revocation of and consecutive sentence for

violation of the supervised release portion of a prior federal sentence for distributing cocaine

base in violation of 21 U.S.C. § 841(a)(1).1 In these consolidated appeals, Russ contends

that the district court erred in denying his motion to suppress evidence—namely, the firearm

that Russ allegedly discarded while fleeing from police officers—and in rejecting his Batson




        1
         The prior federal sentence for distributing cocaine base included an eight-year term of supervised
release, which had been enhanced due to an earlier felony drug conviction.
No. 11-3913                                                                                   2

objections to the government’s use of three peremptory challenges. Batson v. Kentucky, 476

U.S. 79, 89 (1986). Russ also claims that the evidence was insufficient to support his felon-

in-possession conviction, and that the sentences imposed for both the firearm conviction and

the supervised release violation were unreasonable. While affirming the denial of the motion

to suppress, we find error in the district court’s ruling on the Batson objection that requires

us to reverse both the felon-in-possession conviction and the revocation of his supervised

release and remand for further proceedings consistent with this opinion.

                                              I.

       Defendant Damien Russ was arrested after fleeing from officers in the early morning

hours of July 10, 2010. He was charged in a one-count indictment with being a felon in

unlawful possession of a .38 caliber revolver that was recovered after a canine unit conducted

a search along the path Russ had taken during his flight. Russ moved to suppress the firearm

and ammunition as fruit of an illegal seizure. After an evidentiary hearing and additional

briefing, the district court found (1) that the initial encounter between Russ and the officers

was a consensual encounter—not a seizure for Fourth Amendment purposes—and (2) that

“Russ’s actions, including his conduct in pushing [Deputy U.S. Marshal] Boldin and then

running away, coupled with the fact that Boldin observed a firearm on Russ while he was

fleeing, gave the [o]fficers reasonable suspicion to detain him.” United States v. Russ, 772

F. Supp. 2d 880, 886 (N.D. Ohio 2011). For the reasons fully set forth in its opinion and

order, the district court denied the motion to suppress because there had been no Fourth
No. 11-3913                                                                                   3

Amendment violation. Id. at 892.




       Jury selection was conducted on May 10, 2011, with the entire 43-member venire

panel being given instructions and asked to complete written jury questionnaires. Some of

the prospective jurors were called into the courtroom for follow-up questions concerning

some of the answers they provided.         Prospective jurors 10 and 26 were questioned

individually, and the government sought to but did not question prospective juror 17

individually. Eleven venire members were excused for cause. After the government’s third

peremptory challenge, defense counsel objected to the government’s challenges to jurors 10

and 17. The district court engaged in a brief discussion addressing the government’s racially

neutral reasons and deemed the Batson challenge to be essentially waived because it was

untimely. When the government exercised its fourth peremptory challenge to excuse juror

26, defense counsel made another Batson objection. The government articulated its race-

neutral reason, and the district court found that, like juror 10, juror 26 had been excused for

reasons other than race. The government waived its last peremptory challenge, two alternate

jurors were seated, and the jury was sworn.

       Since we reverse on the grounds of a Batson error and need not reach the sufficiency-

of-the-evidence claim, we do not summarize the evidence presented at trial except to note

that the defense disputed that Russ had possessed the firearm in question. The jury returned

a verdict of guilty on May 13, 2011, which also formed the basis for the alleged violation of
No. 11-3913                                                                                    4

his supervised release. On August 10, 2011, Russ was sentenced above the Guidelines to a

97-month term of imprisonment for the § 922(g)(1) conviction. The district court conducted

a hearing, revoked Russ’s supervised release, and sentenced Russ to a consecutive 18-month

term of imprisonment. These consolidated appeals followed.

                                              II.

       On appeal from the decision on a motion to suppress evidence, we review the district

court’s factual findings for clear error and its legal conclusions de novo. United States v.

Townsend, 305 F.3d 537, 541 (6th Cir. 2002). When, as here, the district court denied the

motion to suppress, we must view the evidence in the light most favorable to the government.

United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc); see also United States

v. Smith, 594 F.3d 530, 535 (6th Cir. 2010). The district court’s assessment of credibility is

accorded deference “‘inasmuch as the court was in the best position to make such a

determination.’” United States v. Garrido, 467 F.3d 971, 977 (6th Cir. 2006) (citation

omitted).

       “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the

Government, and its protections extend to brief investigatory stops of persons or vehicles that

fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting

Terry v. Ohio, 392 U.S. 1, 9 (1968)). An officer may approach an individual and “generally

ask questions of that individual,” or “ ask to examine that individual’s identification” as long

as the police do not convey that compliance is required. Florida v. Bostick, 501 U.S. 429,
No. 11-3913                                                                                   5

434-35 (1991). “In order for a seizure to occur, the encounter must not be consensual and

the officers must use physical force or the individual must submit to the officers’ show of

authority.” Smith, 594 F.3d at 535 (citing Brendlin v. California, 551 U.S. 249, 254 (2007);

California v. Hodari D., 499 U.S. 621, 628 (1991)). We have explained that “a consensual

encounter becomes a seizure when ‘in view of all the circumstances surrounding the incident,

a reasonable person would have believed that he was not free to leave.’” United States v.

Jones, 562 F.3d 768, 772 (6th Cir. 2009) (quoting United States v. Mendenhall, 446 U.S.

544, 554 (1980)). Russ insists, as he did in the district court, that the initial encounter was

not consensual but constituted a seizure by virtue of the officers’ show of authority.

       The testimony given during the suppression hearing, which is set forth in detail by the

district court, established that the Deputy U.S. Marshal (DUSM) William Boldin and

Lordstown Police Detective Christopher Bordonaro were partners assigned to a Violent

Fugitive Task Force on July 10, 2010. On that day, at roughly 2:30 a.m., Boldin and

Bordonaro responded to a call to assist other officers with a fight taking place at the

Powerhouse Bar and Grill, where several shootings and gun-related offenses had occurred

in the past. Boldin and Bordonaro arrived in an unmarked dark-colored Dodge Charger,

stopped in the parking area by the front entrance, and assisted with disbursing the crowd.

Then, wearing vests with the words “U.S. MARSHAL” and “POLICE” on the front and

back, Boldin and Bordonaro drove in the Charger around to the parking lot in the back where

the encounter with Russ occurred.
No. 11-3913                                                                                6

       Entering the parking lot, the two officers observed Russ and his girlfriend, a woman

later identified as Michelle Jones, near the employee entrance. A white Cadillac was parked

near the employee entrance, and a second car was parked to the left of the employee entrance

staircase. As the district court described:

              The Officers observed Russ walking down the stairs from the employee
       entrance toward the Cadillac but noticed that, when he saw the officers pull
       into the lot, Russ “started to walk away from the car.” DUSM Boldin
       recognized Russ from prior “law enforcement contacts with him,” but could
       not recall his name or why he remembered him. The Officers exited their
       vehicle and DUSM Boldin approached Russ. Boldin testified that,

              immediately as I started to walk close to him, before I could
              really even say or do anything, he appeared startled, he appeared
              nervous, basically took a fighting stance. He clenched his fist,
              got a very determined look on his face, and began looking to his
              left and his right []very rapidly.

       Based on Russ’s behavior, DUSM Boldin “felt that there was something
       wrong,” and asked Russ “if everything was okay.” Russ responded “no,” and
       “[a]s he was saying that he began to clench his fists” and took a “fighting
       stance.” Boldin testified that, at that point, he:

              felt that something was going to happen. I wasn’t sure if he was
              going to run, if he was going to assault me, or what was going
              to happen, but I saw indicators that something bad was going to
              happen, something out of the ordinary. I immediately started to
              yell at him not to do it, whether it was going to be to run or
              fight, or whatever he was going to do. I said, “Don’t do it.”

       As he was telling Russ “don’t do it,” DUSM Boldin recalls that Russ “was
       raising his hand towards me, kind of swung his left arm towards me, and began
       to run.” DUSM Boldin testified that, as Russ “began to charge and swing” at
       him, Boldin grabbed at Russ, but his grabbing “was in response to [Russ’s]
       aggressive action.”2 Russ made “a pushing kind of contact” with Boldin,
       causing Boldin to lose his balance momentarily on the gravel parking lot. As
       he was regaining his balance and turning to chase Russ, DUSM Boldin noticed
No. 11-3913                                                                                   7

       a “shiny object in his right waistband area” which he “instantly recognized []
       as a firearm.”

              2
               The Officers testified that the initial interaction between DUSM
              Boldin and Russ “happened in a matter of mere seconds, if not
              less than that.” Indeed, DUSM Boldin explained that Russ’s
              “physical swinging of his arm toward me happened
              simultaneously with him starting to run.”

              DUSM Boldin yelled to [Officer] Bordonaro that Russ had a gun, and
       used his radio to notify other officers in the area that they were chasing an
       individual who had a firearm. Both of the Officers pursued Russ on foot, and
       TFO Bordonaro deployed his taser, which struck Russ in the back but was
       ineffective in stopping him. The Officers testified that they lost sight of Russ
       temporarily, but ultimately located him hiding behind trees and bushes near the
       front porch of a house.

               Although the Officers ordered Russ to come out from his hiding place,
       Russ failed to comply and had to be physically removed. He was then arrested,
       but did not have the firearm on his person at the time of arrest. Accordingly,
       a canine unit responded to the scene to search for the weapon. The dog
       searched along the path Russ had traveled, and alerted the Officers to a
       specific area to search. DUSM Boldin observed the weapon laying on the
       ground in the identified area, and waited for officers from the Warren police
       department to photograph the gun and take it into evidence. TFO Bordonaro
       testified that, although the ground conditions in the area were wet, he observed
       that the firearm appeared to be dry . . . . Neither Boldin nor Bordonaro handled
       the firearm.

Russ, 772 F. Supp. 2d at 883-84 (citations to the record omitted).

       The district court credited Boldin’s testimony that he parked the Charger “in such a

way that it was not blocking either vehicle from exiting,” id at 883, over Jones’s statement

that the officers parked diagonally so as to block either car from leaving, noting that Jones

was able to drive away after the officers began to chase Russ on foot, id. at 889. There is no

dispute that there were only two officers, that they both got out of their vehicle, that neither
No. 11-3913                                                                                  8

drew a weapon, and that both wore vests identifying them as law enforcement. The district

court did not err in finding that the manner in which the vehicle was parked did not transform

their arrival into a seizure. Id. at 888-89. Also, “[a]n encounter does not become compulsory

merely because a person identifies himself as a police officer.” United States v. Carr, 674

F.3d 570, 573 (6th Cir. 2012).

       Boldin approached, noticing Russ’s demeanor, and a brief exchange followed.

Although Jones testified that Boldin went right up to Russ and grabbed his shoulder, she also

testified that Russ was swinging his right arm and Boldin was grabbing Russ’s right

shoulder. Evaluating the testimony, the district court found, as a factual matter, that “the

only physical contact between Russ and DUSM Boldin consisted of Russ pushing Boldin,

and Boldin trying to grab at Russ to stop the contact.” Russ, 772 F. Supp. 2d at 890. Just

before that contact, Boldin asked Russ if everything was okay and Russ’s response caused

Boldin to yell “don’t do it” as Russ swung his arm, pushed against Boldin, and took off

running. As the district court concluded, under the circumstances, yelling “don’t do it” did

not elevate the encounter to a seizure. Id. But even if it were a show of authority that could

constitute a seizure, “Russ was not seized because he fled and thus did not submit to that

authority.” Id. (citing Brendlin, 551 U.S. at 262); see also United States v. Jones, 673 F.3d

497, 501-02 (6th Cir.), cert. denied, 133 S. Ct. 350 (2012).

       Finally, we need not determine whether there was reasonable suspicion at an earlier

point in time because no seizure occurred until Russ was located hiding in some bushes.
No. 11-3913                                                                                     9

Rather, it is sufficient to conclude, as the district court did, that once Boldin saw what he

recognized to be a firearm in Russ’s waistband, the totality of the circumstances at that

point—including Russ’s demeanor, his response when asked if everything was okay, his

physical contact with and flight from Boldin—provided reasonable suspicion to justify an

investigative detention. Russ, 772 F. Supp. 2d at 891-92. When Russ was finally seized, the

officers had reasonable suspicion to detain him such that the subsequent canine search for

the firearm was not fruit of an illegal seizure. The district court did not err in denying Russ’s

suppression motion.

                                              III.

       The Equal Protection Clause of the Fourteenth Amendment and the Due Process

Clause of the Fifth Amendment prohibit a party from using its peremptory challenges to

exclude members of the venire on account of their race. Batson v. Kentucky, 476 U.S. 79,

85-86 (1986); see also United States v. Jackson, 347 F.3d 598, 604 (6th Cir. 2003). Here,

defense counsel objected twice:       after the government exercised its third peremptory

challenge—having excused juror 10 (who was believed to be Hispanic) and juror 17 (who

was believed to be Asian)—and again after the government used its fourth peremptory

challenge to excuse juror 26 (who was determined to be of Turkish descent). Batson’s

constitutional protection is recognized as prohibiting the exercise of peremptory challenges

based on race whether or not the excluded juror and the defendant are of the same race.

Powers v. Ohio, 499 U.S. 400, 402 (1991).               Russ argues that the district court
No. 11-3913                                                                                              10

misapprehended the Batson inquiry by referencing the fact that Russ is African American,

but it is clear from the record that the district court did not reject Russ’s Batson challenges

on that basis.2

        Under Batson’s tripartite analysis, Russ first must “make out a prima facie case ‘by

showing that the totality of the relevant facts gives rise to an inference of discriminatory

purpose.’” Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at 93-

94). Once this showing is made, “the ‘burden shifts to the [government] to explain

adequately the racial exclusion’ by offering permissible race-neutral justifications for the

strikes.” Id. (quoting Batson, 476 U.S. at 94). The reason should be considered “neutral”

if it is based on something other than the race of the juror, and it “need not be particularly

persuasive, or even plausible, so long as it is neutral.” United States v. Harris, 192 F.3d 580,

586 (6th Cir. 1999) (citing Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (per curiam)). If

a race-neutral reason is offered, the court must then decide in the third step whether the

defendant has carried his burden of proving purposeful discrimination. Purkett, 514 U.S. at

767. The critical question at step three is the persuasiveness of that reason, which comes

down to its credibility. Miller-El v. Cockrell, 537 U.S. 322, 338-39 (2003). The district

court’s finding on the issue of discriminatory intent is a fact question that is accorded

significant deference. Id. at 339.


        2
         Russ also claims that the district court made a mistake of law by commenting that one of the seated
jurors was African American. While the presence of one juror of defendant’s race on the jury does not
preclude him from making a Batson challenge, United States v. Harris, 192 F.3d 580, 587 (6th Cir. 1999),
Russ’s Batson objections were not overruled for that reason.
No. 11-3913                                                                                  11



A.     Jurors 10 and 17

       Defense counsel objected pursuant to Batson and relied on the names and appearances

of jurors 10 and 17 to surmise that they were of minority races and to assert a prima facie

showing based on race.       Counsel for the government responded both by expressing

uncertainty about whether the jurors in question were minorities and by asserting race-neutral

reasons for the challenges. Specifically, juror 10 was excused because “he indicated that he

had certain problems in deciding the guilt of a person.” With respect to juror 17, counsel said

his challenge was “based on my questions or the questions asked by the court.”

       The district court faulted defense counsel for failing to object while the jurors were

still in the courtroom and could be questioned regarding the objection. The district court

explained that there was no way to know juror 17’s racial or ethnic background or whether

she was excused on account of her race and deemed the issue essentially waived. With

respect to juror 10, the district court also stated that the race-neutral reason had presented a

close question of whether to excuse him for cause. That is, when questioned individually

during voir dire, juror 10 had indicated that he would be “hesitant” and “uncomfortable”

about making a determination as to guilt or innocence. The district court later confirmed that

the government had a compelling race-neutral reason for striking juror 10.

              a.      Batson Analysis

       Arguing on appeal that no error occurred, the government contends that Russ failed
No. 11-3913                                                                                              12

to make a prima facie showing because nothing in the record established the race or ethnicity

of either of these challenged jurors. Whether or not Russ could have made this showing is

immaterial. When the trial court fails to make a finding concerning the prima facie case

before a race-neutral reason for the challenge is offered “and the trial court has ruled on the

ultimate question of intentional discrimination, the preliminary issue of whether the

defendant had made a prima facie showing becomes moot.” Hernandez v. New York, 500

U.S. 352, 359 (1991) (plurality opinion); see also Harris, 192 F.3d at 587. That is precisely

the situation with respect to juror 10 since the government immediately articulated its race-

neutral reason—that juror 10 said he was uncomfortable determining guilt or innocence—and

the district court found that reason to be compelling. The government need not rely on a

failure at step one because the district court evaluated the proffered reason and determined

that the defendant had not established purposeful discrimination. That finding is entitled to

deference on appeal.

        However, the district court did not reach the ultimate question of intentional

discrimination with respect to juror 17. Defense counsel expressed the belief that juror 17

was Asian, and the government acknowledged that the juror might be a minority before

offering a purportedly race-neutral basis for excusing her.3 The government urges us to find

that the district court essentially found that no prima facie case had been shown, while Russ



        3
         In fact, the government had asked to question juror 17 individually concerning her response to the
written question about scientific evidence, but the district court deferred the matter with the intention of
addressing the issue with jurors collectively.
No. 11-3913                                                                                  13

claims that the district court erred by accepting the government’s non-specific reason and

improperly truncating the second and third steps of the Batson analysis. See United States

v. Cecil, 615 F.3d 678, 686 (6th Cir. 2010), cert. denied, 131 S. Ct. 1525 (2011). Neither

characterization is supported by the record. Rather, it is evident that the district court

completely short-circuited the Batson analysis with respect to juror 17 because the objection

was deemed to be untimely. Although the government does not argue for waiver on appeal,

the district court’s failure to engage in the Batson analysis was error unless the objection was

waived.

              b.      Timeliness

       The Court in Batson expressly declined to decide when an objection must be made in

order to be timely, but clearly envisioned that a defendant would be required to make a timely

objection to the government’s use of its peremptory challenges. Batson, 476 U.S. 99-100;

see also Ford v. Georgia, 498 U.S. 411, 422-23 (1991) (noting that a state court could

sensibly require that a Batson claim be raised between the selection of the jurors and the

administration of the oath). Indeed, the remedies discussed in Batson presuppose an

objection during the jury selection process by indicating that the trial court could choose

whether to discharge the venire panel and begin anew, or to disallow the discriminatory

challenge and resume jury selection with the same venire panel. Batson, 476 U.S. at 99 n.24;

see also Haney v. Adams, 641 F.3d 1168, 1172-73 (9th Cir.), cert. denied, 132 S. Ct. 551

(2011). In addition, requiring a prompt objection ensures that the trial court can properly
No. 11-3913                                                                                14

evaluate the objection under Batson by allowing the trial court to determine the juror’s race,

evaluate the juror’s demeanor, and assess the credibility of the purportedly race-neutral

reason for excusing the juror. Haney, 641 F.3d at 1172-73; see also McCrory v. Henderson,

82 F.3d 1243, 1247-48 (2d Cir. 1996) (“the nature of the peremptory challenge mandates that

any objection to its use be raised and ruled upon promptly”). It also prevents manipulation

or “sandbagging” by delaying the objection until after trial started or ended unfavorably.

McCrory, 82 F.3d at 1247-48.

       Taking cues from Batson, many circuits have required that a contemporaneous

objection must be made, at the latest, before the venire is dismissed in order to preserve the

Batson claim. See, e.g., Morning v. Zapata Protein (USA), Inc., 128 F.3d 213, 216 (4th Cir.

1997); United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994); United States v. Maseratti,

1 F.3d 330, 335 (5th Cir. 1993). Other courts have suggested that the objection should be

made as soon as possible, or during voir dire, in order to be timely. See United States v.

Cashwell, 950 F.2d 699, 704 (11th Cir. 1992); United States v. Contreras-Contreras, 83 F.3d

1103, 1104 (9th Cir. 1996). Consistent with the approach taken by other circuits, this court

held in an unpublished decision that a Batson objection made after the venire was dismissed

and the jury empaneled was untimely. United States v. Peraza, 25 F.3d 1051 (6th Cir. 1994)

(table), 1994 WL 228244, at *2 (holding that defendant waived his right to question the

propriety of the government’s peremptory challenge). That does not resolve the issue here,

however, since Russ’s counsel did not delay in making the objection until after the venire had
No. 11-3913                                                                                15

been dismissed.

       In another case, this court declined to address the government’s contention that the

defendant had waived his Batson challenge by making the objection at the close of voir dire

and not when that juror was excused. United States v. Copeland, 321 F.3d 582, 600 n.4 (6th

Cir. 2003). We also need not decide this question—under what circumstances a Batson

challenge made before the venire is dismissed may be deemed to be untimely—because Russ

promptly, and by any fair reading of the record, contemporaneously objected to the

government’s exercise of its peremptory challenge to excuse juror 17. In fact, the time stamp

in the transcript reflects that defense counsel raised the Batson challenge by objecting less

than one minute after juror 17 had been “thanked and excused.” In that brief time, juror 17

apparently left the courtroom. Nonetheless, no effort was made either to locate juror 17 or

to engage in the Batson analysis, applying the assumption that she was of Asian descent.

This finding of waiver effectively circumvented the Batson inquiry, which resulted in

structural error that is not subject to harmless error review. Harris, 192 F.3d at 588; United

States v. McFerron, 163 F.3d 952, 955-56 (6th Cir. 1998).

B.     Juror 26

       When the government used its fourth peremptory challenge to excuse juror 26,

defense counsel immediately made his second Batson objection based on the juror’s

appearance. Timeliness was not an issue. Without waiting for a ruling on the prima facie

showing, the government responded that the juror’s race was unknown and offered race-
No. 11-3913                                                                                    16

neutral reasons for striking juror 26. The government explained that the juror was an

economist by occupation and that

       one of the questions, which is relating to DNA analysis, as a prosecutor, I have
       my own preconceived notions how demanding a juror can be; and thus,
       basically, I think it’s a right of the government’s strategy to select a juror that’s
       best for the government’s case. Our determination is based on the answers
       from the juror, not on the race of the juror, and as I indicated, I don’t know
       what his race is.

The district court found that, just as the government had provided a compelling reason for

excusing juror 10, juror 26 had similarly been excused for reasons other than race.

Specifically, the district court was persuaded that this juror was challenged “based upon his

education, training and background as an economist.” Russ complains that only after this

ruling did the district court conduct voir dire at side bar to determine that juror 26 was

originally from Turkey.

       As was the case with juror 10, however, the preliminary issue of whether defendant

made a prima facie showing as to juror 26 is moot because the government articulated its

race-neutral reasons and the district court ruled on the ultimate question of intentional

discrimination. Harris, 192 F.3d at 587. Defendant also argues for the first time on appeal

that the district court erred by accepting the government’s pretextual basis for excusing juror

26. We have said that a defendant’s “failure to argue pretext may even constitute waiver of

his initial Batson objection.” Jackson, 347 F.3d at 605. Whether we review for plain error

or not, Russ bore the burden to show that the explanation was merely a pretext for racial

discrimination. Braxton v. Gansheimer, 561 F.3d 453, 459 (6th Cir. 2009).
No. 11-3913                                                                               17

       A peremptory challenge may be based on a juror’s education or occupation. See

United States v. Campbell, 317 F.3d 597, 605-06 (6th Cir. 2003); United States v. Simon, 422

F. App’x 489, 494 (6th Cir.), cert. denied, 132 S. Ct. 351 (2011). Defendant argues for the

first time on appeal that pretext is shown because the answer given by juror 26 concerning

scientific evidence was similar to the answers given by other prospective jurors. This does

not support defendant’s claim of pretext, however, because juror 26 was not the only juror

asked about his attitudes toward scientific and/or DNA evidence who was excused or

challenged. The government sought to question five jurors concerning the issue: two were

excused for cause for other reasons (jurors 8 and 22) and the government used its peremptory

challenges to excuse the other three (jurors 5, 17 and 26). The record does not support the

claim that the government’s use of its peremptory challenge to excuse juror 26 was

pretextual. The district court did not clearly err in finding the race-neutral reasons to be

credible. See Braxton, 561 F.3d at 459; see also Miller-El, 537 U.S. at 339 (holding that the

factors for measuring credibility include “whether the proffered rationale has some basis in

accepted trial strategy”).

                                            IV.

       The denial of defendant’s motion to suppress evidence is AFFIRMED. Because the

Batson error with respect to juror 17 is structural, defendant’s conviction and revocation of

supervised release are REVERSED and the matter is REMANDED for further proceedings

consistent with this opinion.
