     Case: 12-31044      Document: 00512542463         Page: 1    Date Filed: 02/24/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                      No. 12-31044                          February 24, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff – Appellee
v.

RONALD WAYNE WILKERSON,

                                                 Defendant – Appellant


                  Appeals from the United States District Court
                      for the Middle District of Louisiana
                            USDC No. 3:11-CR-124-1


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ronald Wilkerson was convicted by a jury on twenty-one counts related
to a scheme of preparing false tax returns.                In this appeal, Wilkerson
challenges the district court’s denial of his Batson challenge. Specifically,
Wilkerson argues that the race-neutral reasons that the Government offered
for striking juror Lusenda Carney were pretextual. Because the district court
did not clearly err in denying Wilkerson’s Batson challenge, we AFFIRM
Wilkerson’s conviction.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 12-31044     Document: 00512542463     Page: 2   Date Filed: 02/24/2014



                                  No. 12-31044
                                        I.
      Between 2004 and 2007, Wilkerson operated Wilkerson Tax Services,
LLC (“WTS”). WTS prepared income tax returns and electronically submitted
them to the IRS. In addition, WTS provided other income-tax related services
such as allowing income-tax refund checks to be obtained electronically and
providing refund-anticipation loans. WTS collected fees for these services.
      During this time, WTS filed more than 600 false returns claiming more
than $1.4 million in false telephone excise credits. Based on these false credits,
the IRS issued refunds of $119,000. The fraud was discovered before the IRS
issued the balance of the refunds.
      Based on this conduct, Wilkerson was charged in a twenty-three count
indictment. Two of the counts were later dropped at the Government’s request.
                                       II.
      Wilkerson’s jury trial on these counts began in May 2012. During jury
selection, forty-eight prospective jurors made up the venire, and thirteen of
these identified themselves as African Americans.           Initially, the court
requested that the venire members state their name, age, gender, and race.
Next, the district judge questioned each venire member about his or her
employment and marital status.         The district judge then proceeded to
additional questioning in which he would ask the entire venire a question, ask
those with affirmative responses to raise their hands, and then question those
members who indicated an affirmative response.
      After this questioning, the Government moved to strike two prospective
jurors for cause: a twenty-seven-year-old African American female, and a forty-
nine-year-old African American male. The district court granted the motion
as to the forty-nine-year-old male but rejected the motion as to the female.
      After these for-cause challenges, the parties proceeded to their
peremptory strikes. The Government used five of its six peremptory challenges
                                        2
    Case: 12-31044    Document: 00512542463      Page: 3   Date Filed: 02/24/2014



                                 No. 12-31044
on African Americans (the sixth was used on a Caucasian). Based on the
proportion of strikes used against African Americans, Wilkerson raised a
Batson challenge.    Batson v. Kentucky, 476 U.S. 79 (1986).          Wilkerson
challenged the striking of four African American prospective jurors.         The
Government offered race-neutral reasons for striking the prospective jurors.
The district court accepted the reasons offered by the Government and
therefore denied Wilkerson’s Batson challenge.
      In this appeal, Wilkerson only challenges the district court’s denial
regarding one prospective juror – Lusenda Carney. Thus we will give a more
detailed recitation of the facts surrounding that prospective juror.         The
Government provided several race-neutral reasons for striking Carney, a fifty-
one-year-old African American woman. Specifically, the Government asserted
that Carney was “absolutely nonresponsive” to questions in general – based on
the fact that Carney did not respond to any of the court’s open-ended questions.
The Government argued that this non-responsiveness called into question
Carney’s ability to understand the complex case.              Additionally, the
Government stated that it was concerned about Carney’s lack of real-world
experiences.
      Wilkerson countered that the Government’s responses were a “charade,”
arguing that the case was not overly complex and that Carney’s failure to
answer the majority of questions presented was irrelevant.
      After declining to respond directly to Wilkerson’s arguments, the
Government was given a final chance to sum up its reasons for striking Carney.
The Government again pointed to Carney’s lack of responsiveness, but also
provided a list of further reasons: (1) Carney had no experience with law
enforcement; (2) she “didn’t have any experience at work” and “wasn’t a
supervisor”; (3) her life was apparently made up only of going to work and then
going home; and (4) Carney appeared to be sleeping at times during the
                                       3
    Case: 12-31044    Document: 00512542463       Page: 4   Date Filed: 02/24/2014



                                   No. 12-31044
proceedings (though the Government acknowledged that it may have been the
glare from Carney’s glasses that created this impression to them).
      Wilkerson provided his final response to these race-neutral reasons.
First, Wilkerson questioned the Government’s suggestion that Carney was
asleep during the proceedings. Wilkerson highlighted that the Government
admitted that it did not know if Carney was asleep or if it was a glare from her
glasses and argued that if the Government had actually believed that Carney
was asleep, it would have been the first reason the Government provided for
striking Carney. Second, Wilkerson argued that the Government had no basis
for assuming that Carney’s life only consisted of working and then going home
as the Government had not asked any questions about Carney’s life outside of
work. Third, Wilkerson again argued that Carney’s failure to respond to some
of the questions was irrelevant.
      The district court denied Wilkerson’s challenge, finding that the
Government’s concerns regarding Carney’s age (though the Government never
raised any such concerns), her lack of responsiveness, and her ability to
understand the issues were race-neutral, despite the fact that the district court
might not have agreed with the Government’s evaluation.
      Wilkerson was subsequently convicted on all twenty-one counts,
sentenced to a total term of ninety-two months, and ordered to pay more than
$450,000 in restitution. Wilkerson then brought this appeal, challenging only
the district court’s denial of his Batson challenge with regards to Carney.
                                       III.
                                        A.
      Wilkerson argues that the district court erred in denying his Batson
challenge by failing to recognize that the Government’s race-neutral
explanations were merely pretextual.          A district court’s decision on the
question of whether the prosecutor possessed a discriminatory intent is
                                        4
    Case: 12-31044     Document: 00512542463      Page: 5    Date Filed: 02/24/2014



                                  No. 12-31044
afforded great deference and reviewed for clear error.           United States v.
Williamson, 533 F.3d 269, 274 (5th Cir. 2008). That said, appellate review of
an alleged Batson violation “is not a hollow act.” Id.
        There are three distinct steps in analyzing a Batson claim. This appeal
challenges only the third step. First, the defendant must make a prima facie
showing that the prosecutor has exercised a peremptory strike on the basis of
race.   Next, the burden shifts to the prosecutor to provide a race-neutral
explanation for the challenged strike. Finally, the trial court must determine
whether the defendant has carried his burden of proving purposeful
discrimination.    Hernandez v. New York, 500 U.S. 352, 358–59 (1991).
Determining whether a prosecutor intended to discriminate on the basis of race
is “a question of historical fact.” Id. at 367. And the court’s ultimate inquiry
“is not whether counsel’s reason is suspect, or weak, or irrational, but whether
counsel is telling the truth in his or her assertion that the challenge is not race-
based.” United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir. 1993).
        This final determination of whether the prosecutor engaged in
purposeful discrimination is based largely on the district court’s evaluation of
the prosecutor’s demeanor and credibility. Id. at 1373. Other evidence which
may be relevant includes the plausibility of the prosecutor’s race-neutral
explanation and side-by-side comparisons of the challenged juror with
similarly situated jurors of a different race.      Specifically, “implausible or
fantastic justifications may (and probably will) be found to be pretexts for
purposeful discrimination.” Smith v. Cain, 708 F.3d 628, 636 (5th Cir. 2013).
If the Government asserts “that it struck a black juror with a particular
characteristic, and it also accepted nonblack jurors with that same
characteristic, this is evidence that the asserted justification was a pretext for
discrimination.” Id. And if the Government “asserts that it was concerned
about a particular characteristic but did not engage in meaningful voir dire
                                         5
    Case: 12-31044     Document: 00512542463    Page: 6    Date Filed: 02/24/2014



                                 No. 12-31044
examination on that subject, then the [Government’s] failure to question the
juror on that topic is some evidence that the asserted reason was a pretext for
discrimination.” Id.
      In determining whether the Government’s proffered reasons are
pretextual, Wilkerson “may rely on all relevant circumstances to raise an
inference of purposeful discrimination.” Miller-El v. Dretke, 545 U.S. 231, 240
(2005) (internal quotation marks omitted). Finally, in making a determination
about purposeful discrimination, the court “must consider only the
[Government’s] asserted reasons for striking the black jurors and compare
those reasons with its treatment of the nonblack jurors.” Reed v. Quarterman,
555 F.3d 364, 376 (5th Cir. 2009).
                                      B.
      We begin our analysis of Wilkerson’s claim by emphasizing that the
district judge found the Government’s race-neutral reasons credible. That is,
even though the district judge noted that he may not agree with the
Government’s reasons for striking Carney, he nonetheless found that the
Government did in fact strike Carney for the offered race-neutral reasons. This
finding of credibility is an important starting point in our analysis.        See
Bentley-Smith, 2 F.3d at 1373. We now move to Wilkerson’s arguments as to
why the district judge’s decision was clearly erroneous.
      In pressing this issue on appeal, Wilkerson relies heavily on side-by-side
juror comparisons. Wilkerson points to these comparisons as evidence that
white jurors who exhibited similar reticence during voir dire were allowed to
serve, thereby discrediting the Government’s assertion that it struck Carney
for race-neutral reasons. A brief analysis of these side-by-side comparisons
demonstrates that the district court did not err in denying Wilkerson’s Batson
challenge.


                                       6
    Case: 12-31044    Document: 00512542463    Page: 7   Date Filed: 02/24/2014



                                No. 12-31044
      Wilkerson points to two white jurors who were allowed to serve on the
jury: Jill Sellers and Benjamin Shoumaker. Although Wilkerson contends that
these two white jurors were as nonresponsive as Carney, they are both
distinguishable in relevant respects.
      Taking Sellers first, it is true that she did not answer any of the open-
ended questions that were asked, exactly as Carney did not. The Government,
however, contends that it drew an inference distinguishing Sellers from
Carney based on the information available. Specifically, Sellers worked for
eleven years as a dental assistant.     Compared with Carney’s twenty-year
career as a janitor, the Government argues that Sellers’s career as a dental
assistant indicated an increased likelihood that Sellers had some advanced
education. This education, in the Government’s view, made Sellers more likely
to understand the Government’s case.
      As for Shoumaker, the Government distinguishes him from Carney on
two grounds. First, in contrast to Carney, Shoumaker did answer one of the
open-ended questions asked of the entire venire. The district judge asked
whether any members of the panel recognized any other panel members.
Shoumaker answered affirmatively, explaining that one of the other venire
members worked at a Chase Bank branch that he used. He further explained
that this other venire member helped him clear up a situation in which his
credit card had been stolen. The Government points to this interaction as
demonstrating that Shoumaker was attentive enough to recognize and identify
another venire member that he interacted with. In contrast, Carney did not
respond affirmatively when asked whether she knew any other panel members
despite the fact that another member indicated that he recognized Carney.
Second, the Government distinguishes Shoumaker by pointing to his
comments about possessing a credit card.       The Government argues that
Shoumaker’s possession of a credit card and his interaction with Chase Bank
                                        7
    Case: 12-31044    Document: 00512542463     Page: 8   Date Filed: 02/24/2014



                                 No. 12-31044
raised a plausible inference that he would be better versed in financial dealings
than Carney.      This understanding of common financial dealings made
Shoumaker more likely to understand the facts underlying the Government’s
case against Wilkerson.
      The Government thus argues that, based on the information collected
during voir dire, it reasonably could infer that Sellers had a higher level of
education than Carney, and that Shoumaker was both more attentive and
more financially aware than Carney. In addition to these distinctions the
Government draws, we are reminded that the Supreme Court has cautioned
appellate courts about taking up these side-by-side comparisons for the first
time on appeal.
      “[A] retrospective comparison of jurors based on a cold appellate
      record may be very misleading when alleged similarities were not
      raised at trial. In that situation, an appellate court must be
      mindful that an exploration of the alleged similarities at the time
      of trial might have shown that the jurors in questions were not
      really comparable.”
Snyder v. Louisiana, 552 U.S. 472, 483 (2008). Here, Wilkerson did not raise
any of these comparisons at trial, thus robbing the Government of the
opportunity to demonstrate other meaningful distinctions.
      Even without this opportunity, however, the Government has, in our
view, adequately demonstrated a good faith and reasonable belief that the
proposed similarly situated jurors were not actually similarly situated. Each
was distinguishable from Carney in a meaningful way.          Combining these
distinctions with the district judge’s crediting of the Government’s reasons at
trial, we hold that the district court did not clearly err in denying Wilkerson’s
Batson claim.




                                       8
    Case: 12-31044   Document: 00512542463   Page: 9   Date Filed: 02/24/2014



                              No. 12-31044
                                   IV.
     Because the district court did not clearly err in denying Wilkerson’s
Batson challenge, we AFFIRM Wilkerson’s conviction.
                                                                AFFIRMED.




                                    9
