                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 14a0198p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 UNITED STATES OF AMERICA,                              ┐
                                  Plaintiff-Appellee,   │
                                                        │
                                                        │       No. 13-5625
        v.                                              │
                                                         >
                                                        │
 CHRISTOPHER TOMLINSON,                                 │
                               Defendant-Appellant.     │
                                                        ┘
                         Appeal from the United States District Court
                     for the Western District of Tennessee at Memphis.
                   No. 2:12-cr-20160—Jon Phipps McCalla, District Judge.
                             Decided and Filed: August 20, 2014

               Before: DAUGHTREY, CLAY and STRANCH, Circuit Judges.

                                     _________________

                                          COUNSEL

ON BRIEF: Valentine C. Darker, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. S. Keenan Carter, UNITED STATES ATTORNEY’S
OFFICE, Memphis, Tennessee, for Appellee.

                                     _________________

                                          OPINION
                                     _________________

       STRANCH, Circuit Judge. Christopher Tomlinson appeals his conviction by jury for
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The issue
before us is whether Tomlinson raised a timely objection under Batson v. Kentucky, 476 U.S. 79
(1986), to the government’s use of its first five peremptory strikes to remove African Americans
from the jury. We conclude that Tomlinson’s Batson objection was timely because he raised it
before the jury was sworn and the trial commenced. We therefore REVERSE the district court’s



                                               1
No. 13-5625              United States v. Tomlinson                             Page 2

ruling that Tomlinson waived his Batson challenge by failing to raise it at a point earlier in the
voir dire. We REMAND the case to the district court for a Batson hearing.

                         I. FACTS AND PROCEDURAL HISTORY

       In June 2012, a grand jury charged Tomlinson with unlawful possession of a Marlin
.35 caliber rifle on March 21, 2012, in violation of § 922(g)(1). Represented by an Assistant
Federal Public Defender, Tomlinson proceeded to jury trial in January 2013.

       The first day of trial was devoted entirely to choosing the jury. The jury venire included
approximately 36 prospective jurors, but the record does not disclose the precise racial
composition of the venire.

       At the beginning of jury selection, the district court awarded Tomlinson ten peremptory
challenges and the government six.       The court initially filled the jury box with fourteen
prospective jurors. The court and counsel extensively questioned the jurors. Challenges for
cause were granted, and the court called additional jurors from the venire. After both parties
passed for cause the fourteen prospective jurors seated in the jury box, the court asked counsel to
exercise simultaneous peremptory strikes.

       During the first round of peremptory challenges, the government exercised three strikes
and the defense exercised five. Because one juror was challenged by both parties, the court
charged the peremptory strike to the government. As a result, the defense had six strikes
remaining, and the government had three. The court asked if either party objected to the strikes
of the other party. Both counsel responded that they had no objections. The court then excused
the seven jurors who were struck and allowed them to leave the courthouse immediately. The
court called more prospective jurors to the box.

       After seven additional jurors were passed for cause, the court asked for a second round of
peremptory challenges. The government did not exercise any strikes, but the defense exercised
four. The government had no objection to the defense strikes. The court excused the four jurors
struck by the defense, and called four more to the jury box. The same qualifying process
continued.
No. 13-5625                United States v. Tomlinson                           Page 3

          In the third round, the government used two peremptory strikes and the defense used one,
leaving each side with one remaining peremptory strike. Neither party objected to the other’s
strikes. The court excused the three jurors who were struck, and called three more to the jury
box.

          In the fourth round, each party exercised its last peremptory strike. Tomlinson objected
to the government’s last strike against Ms. Jackson, an African American juror, stating: “I think
we are going to bring a Batson challenge. I think all of the strikes by the government were
African-Americans, and this last one is also an African-American.” R. 75 Page ID 288. The
court ruled that Tomlinson had waived any objection to the government’s first five peremptory
strikes by failing to object earlier. The court initiated the Batson inquiry with respect to the
government’s strike of Ms. Jackson. After the prosecutor stated her race-neutral reasons for
striking Ms. Jackson, defense counsel renewed her Batson objection. She asked the court to
consider that all six of the government’s peremptory strikes were used against African American
jurors.

          The court analyzed Tomlinson’s Batson objection only with respect to Ms. Jackson. The
court explained why it was persuaded that the government’s strike of Ms. Jackson was not based
on race. The court filled the final two seats on the jury and excused the last four prospective
jurors who were not needed for jury service. The trial continued the following day, and the jury
convicted Tomlinson as charged.

                                          II. ANALYSIS

          The government violates the equal protection component of the Fifth Amendment’s Due
Process Clause if it uses peremptory challenges to exclude prospective jurors from the petit jury
on account of their race. Batson, 476 U.S. at 86, 89; United States v. Angel, 355 F.3d 462, 471
(6th Cir. 2004).      “Purposeful racial discrimination in selection of the venire violates a
defendant’s right to equal protection because it denies him the protection that a trial by jury is
intended to secure.” Batson, 476 U.S. at 86. The harm caused by racial discrimination in
choosing a jury extends beyond the defendant to affect “the entire community” and “undermine
public confidence in the fairness of our system of justice.” Id. at 87. The burden to prove
purposeful discrimination is on the defendant, who must initially establish a prima facie case. Id.
No. 13-5625               United States v. Tomlinson                              Page 4

at 95–97. Once he does so, the burden shifts to the prosecution to give a race-neutral reason for
the peremptory strike. Id. at 94, 97–98. The court must then determine whether “the defendant
has established purposeful discrimination.” Id. at 98.

       The issue before us is whether, in order to preserve a Batson claim, a party must object
contemporaneously to his opponent’s use of a peremptory strike.            We hold that a strictly
contemporaneous objection is not required and that a party’s Batson objection is timely if it is
made before the jury is sworn and the trial commences. Our holding is rooted in Batson, Ford v.
Georgia, 498 U.S. 411 (1991), and cases decided by other federal circuits.

       In Batson, the challenge to the prosecutor’s use of peremptory strikes against African
American jurors was deemed timely because, before the jury was sworn, the defendant moved to
discharge the jury as unconstitutionally selected. Batson, 476 U.S. at 83, 100. As in this case,
Batson’s challenge was summarily rebuffed and he was convicted at trial. Because the trial court
did not require the prosecutor to explain the reasons for the peremptory strikes, the Supreme
Court remanded the case for further proceedings, instructing that, “[i]f the trial court decides that
the facts establish, prima facie, purposeful discrimination and the prosecutor does not come
forward with a neutral explanation for his action, our precedents require that petitioners’
conviction be reversed.” Id. at 100.

       In light of various jury selection practices followed in state and federal courts, the
Supreme Court declined “to formulate particular procedures to be followed upon a defendant’s
timely objection to a prosecutor’s challenges” and made “no attempt to instruct these courts how
best to implement” the Batson holding. Id. at 99 & n.24. The Court expressed “no view on
whether it is more appropriate in a particular case, upon a finding of discrimination against black
jurors, for the trial court to discharge the venire and select a new jury from a panel not previously
associated with the case, or to disallow the discriminatory challenges and resume selection with
the improperly challenged jurors reinstated on the venire.” Id. (cited cases omitted).

       A few years after Batson, the Supreme Court considered the application of a procedural
rule adopted by the Supreme Court of Georgia requiring that “‘any claim under Batson should be
raised prior to the time the jurors selected to try the case are sworn.’” Ford v. Georgia, 498 U.S.
411, 422 (1991) (quoting State v. Sparks, 355 S.E.2d 658, 659 (Ga. 1987)). The Court observed
No. 13-5625               United States v. Tomlinson                             Page 5

that requiring “any Batson claim [to] be raised not only before trial, but in the period between the
selection of the jurors and the administration of their oaths, is a sensible rule.” Id. The Court
ultimately concluded, however, that the Supreme Court of Georgia erred in applying Sparks to
Ford, whose trial occurred before Sparks was decided. Id. at 424. Because Sparks did not
establish an independent and adequate state-law ground to bar Ford’s Batson claim, the Court
reversed and remanded for further proceedings on the Batson claim. Id. at 425.

       The federal circuits have not settled on a single rule for assessing the timeliness of Batson
objections. Some courts take the view that a Batson objection is timely if it is made as soon as
possible or by the close of voir dire. See e.g., United States v. Cashwell, 950 F.2d 699, 704 (11th
Cir. 1992); Gov’t of Virgin Islands v. Forte, 806 F.2d 73, 75–76 (3d Cir. 1986). Other courts
find a Batson challenge timely if it is raised before the jury venire is dismissed and before the
trial commences. 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)); United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.
1989). Still other courts take the position that a Batson challenge is timely if it is “made as soon
as possible and preferably before the jury is sworn.” See e.g., United States v. Contreras–
Contreras, 83 F.3d 1103, 1104 (9th Cir. 1996)).

       Each of these rules recognizes the practical necessity of selecting the time frame for a
Batson objection that provides sufficient time for counsel to ascertain the propriety of an
objection (as to one strike or a pattern of strikes) while the jurors are still present, thereby
alleviating premature Batson objections, hasty determinations of Batson waivers, and post-trial
Batson inquiries. On the other hand, each rule acknowledges the importance of assuring that
both the Batson inquiry and the trial will proceed efficiently. These rules and ours fall within a
comparable time frame, one that fairly balances these pragmatic concerns.

       Tomlinson raised his challenge to the government’s first five peremptory strikes of
African American jurors before his jury was sworn and the trial began. See Batson, 476 U.S. at
83, 100; Ford, 498 U.S. at 422.       Yet, by utilizing a jury selection procedure that forced
Tomlinson to raise his Batson objection earlier or waive it, the district court placed defense
counsel in an untenable position. Early in the jury selection procedure, defense counsel could
No. 13-5625                    United States v. Tomlinson                                        Page 6

not fully appreciate whether the government’s use of peremptory challenges formed a pattern of
strikes against African American jurors. See Batson, 476 U.S. at 97 (recognizing that a pattern
of strikes “in the particular venire might give rise to an inference of discrimination.”). See also
Rice v. White, 660 F.3d 242, 255 (6th Cir. 2011) (addressing argument that peremptory strike,
considered in context with two prior strikes, violated Batson, without commenting on timeliness
of the objection).        After successive rounds of jury selection, however, it became clear to
Tomlinson’s counsel that the government was using its peremptory challenges to strike only
African Americans from the jury. Tomlinson raised his Batson objection immediately after the
government cast its sixth peremptory strike against an African American juror. By the time
Tomlinson’s counsel determined in her professional judgment that a Batson objection was
warranted, the court had allowed previously-removed jurors to leave the courthouse,
complicating any potential Batson inquiry.

         We recognize, as the Supreme Court did in Batson, that district courts employ various
methods for choosing juries, see id. at 99 n.24, and our opinion should not be read as requiring
any particular method of jury voir dire. But our holding recognizes as timely any Batson
challenge that is made before the jury is sworn and the trial commences, no matter which method
of jury selection is used.

         Our opinion is consistent with the decision in United States v. Russ, 508 F. App’x 377
(6th Cir. 2012), where the district court employed a jury selection procedure similar to the one
used at Tomlinson’s trial. After the government’s third peremptory challenge, defense counsel
objected to the removal of two jurors, but the court “faulted defense counsel for failing to object
while the jurors were still in the courtroom and could be questioned regarding the objection.” Id.
at 379, 383. On appeal it was evident to this court that the district court “completely short-
circuited the Batson analysis” because the court deemed the defense objection untimely. Id.
Relying on Batson and Ford, we reversed and remanded for further proceedings.1 Id. at 386.




         1
           In another decision, this court held that a Batson objection first raised after the jury venire was dismissed
and after the jury was sworn was untimely. United States v. Peraza, 25 F.3d 1051 (table), 1994 WL 228244, at *2
(6th Cir. 1994)). But Peraza does not control here because Tomlinson did not wait until after the venire was
dismissed and the jury was sworn to object to the government’s peremptory strikes. See id.
No. 13-5625               United States v. Tomlinson                              Page 7

        The decisions of the Supreme Court in Batson and Ford and the instructive opinions of
other circuits lend support to our holding that a Batson objection is timely if it is made before the
jury is sworn and the trial commences. Tomlinson’s Batson objection to the government’s use of
its first five peremptory challenges to remove African Americans from the jury was timely under
this rule.

                                       III. CONCLUSION

        Accordingly, for the reasons stated, we REVERSE the district court’s ruling that
Tomlinson waived his Batson challenge and we REMAND the case for further proceedings. We
instruct the district court to hold a Batson hearing and make findings on whether Tomlinson
established the existence of purposeful race discrimination in the selection of his jury that
warrants reversal of his conviction. See Batson, 476 U.S. at 100; United States v. McAllister,
693 F.3d 572, 582–83 (6th Cir. 2012); United States v. Harris, 192 F.3d 580, 588 (6th Cir.
1999). Because Batson error is structural and is not subject to harmless error review, only
reversal of the conviction and a new trial could remedy any Batson error found. See Kimbrel,
532 F.3d at 468–69; Harris, 192 F.3d at 588.
