                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 12-2553
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                CARLOS JAMAL SMITH

                                                       Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. No. 2-10-cr-00075-001)
                      District Judge: Honorable David S. Cercone
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 17, 2013

              Before: SMITH, FISHER and CHAGARES, Circuit Judges.

                                  (Filed: June 20, 2013)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Carlos Jamal Smith appeals from his judgment of conviction in the Western

District of Pennsylvania, arguing that the District Court erred in overruling his objection

under Batson v. Kentucky, 476 U.S. 79 (1986), and in failing to hold an evidentiary
hearing pursuant to United States v. Starks, 515 F.2d 112 (3d Cir. 1975). For the reasons

stated below, we will affirm.

                                              I.

       Because we write principally for the parties, we will set forth only the factual

background and procedural history necessary to our analysis.

       In a superseding indictment, Smith, an African American, was charged with one

count of conspiring to maintain drug-involved premises in violation of 21 U.S.C. §§ 846

and 856(a)(1), and four counts of possession with intent to distribute and distribution of

crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). All five counts alleged

that the offenses were committed while Smith was on pre-trial release as provided by 18

U.S.C. § 3147. The charges were based on controlled buys of crack cocaine from Smith

that were purportedly recorded on audio and video devices by confidential informant

Frankie Turner in collaboration with Pennsylvania State Police Trooper Michael Poulos.

       Before trial, Smith moved for a Starks hearing to challenge the admissibility of the

recordings. The District Court granted the motion, ordering: “To the extent the parties

are unable to stipulate as to the admissibility of the recordings the court will schedule a

pretrial hearing to review the proffered recordings and issue rulings on the admissibility

of the same thereafter.” App. II at 62-63. Although the District Court subsequently

conducted a pre-trial status conference and a pre-trial motion hearing, it never held a




                                              2
Starks hearing. Smith, for his part, never again referenced his Starks request and did not

object to the introduction of the recordings into evidence at his eventual trial.

       During jury selection, thirty-two potential jurors, including three African

Americans, were chosen from the venire. The District Court required the parties to

exercise all of their peremptory strikes. See United States v. Ruuska, 883 F.2d 262, 266

(3d Cir. 1989) (describing “struck jury” system). After striking two jurors, including one

African American, Juror Number 163, for race-neutral reasons,1 the Government

exercised its four remaining peremptory challenges by striking the last four potential

jurors, including another African American, Juror Number 87, from the venire list. Smith

raised a Batson objection, which the District Court overruled.

       Smith was convicted on the conspiracy and two of the four distribution charges.2

After trial, Smith filed multiple motions for judgment of acquittal, arguing, inter alia, that

the District Court erred in failing to hold a Starks hearing. The District Court denied the

motions, and Smith timely appealed.

                                              II.

       The District Court had jurisdiction over Smith’s case under 18 U.S.C. § 3231, and

we have jurisdiction over his appeal under 28 U.S.C. § 1291.

       1
         Smith does not appeal the District Court’s finding that the Government exercised
its peremptory challenge as to Juror Number 163 in a race-neutral manner consistent with
Batson v. Kentucky, 476 U.S. 79 (1986).
       2
           The jury was deadlocked on the other two distribution charges.


                                              3
       In analyzing Smith’s Batson argument, we review for clear error the District

Court’s factual determination that discriminatory intent did not motivate the

Government’s peremptory strikes. United States v. DeJesus, 347 F.3d 500, 505 (3d Cir.

2003). In considering Smith’s Starks claim, we review for an abuse of discretion the

District Court’s decision not to hold an evidentiary hearing. United States v. Hines, 628

F.3d 101, 104 (3d Cir. 2010). But if Smith forfeited his claim, we will review the District

Court’s decision for plain error, and if Smith waived his claim, we will not review the

District Court’s decision. Gov’t of the V.I. v. Rosa, 399 F.3d 283, 290-91 (3d Cir. 2005).

                                             III.

                                             A.

       Smith argues that the District Court erred in overruling his objection as to Juror

Number 87 under Batson, which held that “the Equal Protection Clause forbids the

prosecutor to challenge potential jurors solely on account of their race.” 476 U.S. at 89.

Overcoming the presumptive validity of a peremptory strike is a three-step process:

(1) the defendant must make a prima facie showing that the strike was based on race;

(2) the Government must state a race-neutral reason for the strike; and (3) the trial court

must determine whether the strike was purposefully discriminatory. DeJesus, 347 F.3d at

506. The defendant bears the burden of persuasion at each step, but the Government

shoulders the burden of production at the second step. Lark v. Sec’y Pa. Dep’t of Corr.,

645 F.3d 596, 619 (3d Cir. 2011).


                                              4
       At the first step, a court considers, among other factors, “how many members of

the cognizable racial group are in the venire panel,” and whether there is a “pattern of

peremptory strikes” against those members. Id. at 620 (citation and quotation omitted).

Before the District Court, Smith argued that the strike of Juror Number 87 was race-

based because the Government challenged two out of the three African Americans in the

jury pool. Since the Government does not contest the point, we will assume, without

deciding, that the District Court correctly found that Smith made a prima facie showing

of a Batson violation.

       In step two, a court examines whether the Government’s rationale is “facially

race-neutral,” regardless of whether it is “persuasive, or even plausible.” DeJesus, 347

F.3d at 506. Before the District Court, the Government explained that it exercised its first

two peremptory strikes for race-neutral reasons, and that it did not intend to use its last

four challenges. But because it was required to use up all of its challenges, it exercised

its leftover strikes “straight from the bottom [of the jury list] up,” thereby removing Juror

Number 87. App. III at 213. Because no “discriminatory intent [wa]s inherent” in the

Government’s justification, the District Court did not clearly err in finding that it was

race-neutral on its face. Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality

opinion).

       Smith’s appeal focuses on the third step, during which a court determines whether

the Government’s proffered reasons are pretextual by consulting “all of the circumstances


                                              5
that bear upon the issue of racial animosity,” Coombs v. DiGuglielmo, 616 F.3d 255, 262

(3d Cir. 2010) (quotation omitted), including the relative rates of peremptory strikes

“compared to the final composition of the jury,” id. (citation omitted). Smith argues that

the Government’s approach disproportionately affected African Americans, and that the

District Court failed to analyze whether striking jurors from the top or middle of the jury

list would have yielded a different result.

       However, as the District Court pointed out, the Government struck four

Caucasians, three of whom were challenged for the same reason as Juror Number 87. See

id. (explaining that evidence of purposeful discrimination exists where the Government’s

proffered reason applies equally to two otherwise similar panelists of different races, only

one of whom is struck by the Government). The District Court also demonstrated “some

engagement with the evidence,” id. (quotation omitted), reasoning that it was “more

logical” to exclude jurors from the bottom of the list than from the top or middle thereof.

App. III at 216. The District Court did not clearly err in finding that the Government’s

strike of Juror Number 87 was not purposefully discriminatory.

                                              B.

       Smith also claims that the District Court erred in failing to hold a hearing on the

admissibility of the recordings pursuant to Starks, where we held that “the burden is on

the government to produce clear and convincing evidence of authenticity and accuracy as

a foundation for the admission of such recordings.” 515 F.2d at 121 (quotation omitted).


                                              6
The Government counters that Smith waived his right to a Starks hearing. The District

Court agreed with the Government, ruling, in response to Smith’s motions for judgment

of acquittal, that he waived his right to a Starks hearing by making “a strategic decision

to capitalize on the nature and quality of the video and audio recordings as part of his

defense at trial.” App. II at 116.

       “[W]aiver is the intentional relinquishment or abandonment of a known right.”

United States v. Olano, 507 U.S. 725, 733 (1993) (quotation omitted). The record

reflects that before trial, Smith moved for a Starks hearing, showing that he was aware of

his right to challenge the admissibility of the recordings. The District Court granted

Smith’s Starks motion “[t]o the extent the parties [we]re unable to stipulate as to the

admissibility of the recordings.” App. II at 62. But Smith did not mention his Starks

motion during the later pre-trial status conference that he requested or the pre-trial

hearing on his unrelated motion in limine. Then, at trial, he explicitly declined to object

to the introduction of the recordings. App. III at 336. Indeed, he strategically relied on

the recordings to cross examine Trooper Poulos, id. at 356-62, demonstrating his

abandonment of his right to a Starks hearing. See Rosa, 399 F.3d at 291 (recognizing

waiver where a defendant refrains from objecting for tactical reasons). In these

circumstances, we conclude that Smith waived his right to a Starks hearing.

                                             IV.

       For the reasons stated above, we will affirm the judgment of conviction.


                                              7
