In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2515

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VIRGIL E. JONES,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 821--Elaine E. Bucklo, Judge.


Argued March 30, 2000--Decided August 11, 2000



      Before Bauer, Diane P. Wood and Williams, Circuit
Judges.

      Bauer, Circuit Judge. A federal jury convicted
Virgil E. Jones, a former Chicago alderman, of
conspiracy to commit extortion, attempted
extortion, and filing false tax returns. He
appeals his conviction, claiming that the
government’s exercise of its peremptory
challenges in a racially discriminatory manner
against four African-Americans violated Batson v.
Kentucky, 476 U.S. 79 (1986), his Fifth Amendment
Right to due process and his Fourteenth Amendment
right to equal protection. He also seeks a new
trial on the grounds that the District Court
improperly limited his cross-examination of the
government’s star witness, that the court gave an
erroneous definition of the term "willfully" in
its instructions to the jury, and that the
evidence was insufficient to convict him. Having
reviewed the judgment of the District Court, its
rulings, and the evidence, and finding no error,
we affirm the District Court.

I.  BACKGROUND
      In April, 1991, Virgil Jones, an African-
American, was elected Alderman of Chicago’s 15th
Ward. Eleven months later he was also elected
Democratic Ward Committeeman for the 15th Ward. He
won re-election to both of those offices four
years later, but never finished either term. He
was indicted on December 11, 1997 as part of
"Operation Silver Shovel."

      A politician’s duties include serving the needs
of his constituents. Unfortunately, Jones’
assistance came at a price. One person who
quickly capitalized on this was John Christopher,
the owner of several excavation and trucking
companies. Prior to Jones’ election, Christopher
operated a dumpsite in the 15th Ward. His business
ran smoothly and he was able to receive a large
share of the work coming into the ward with the
"help" of the then Alderman and Ward
Superintendent. Within months after Jones’
election, Christopher approached Jones, seeking
his assistance in continuing to operating his 15th
Ward dumpsite. Jones directed Christopher to deal
with one of his "associates" and the two
established a mutually beneficial arrangement:
Christopher got to keep his dumpsite and work was
directed to his businesses and the "associate"
got regular cash payments. The deal later grew to
include cash (paid to the "associate") in
exchange for Jones’ influence in obtaining a
permit Christopher needed to operate a rock
crusher at the site and Jones’ assistance with
violation notices Christopher received, among
other things.

      Jones came under suspicion and his days became
numbered in the fall of 1992 when the FBI
persuaded Christopher to cooperate with their
investigation. Christopher began secretly tape-
recording conversations with Jones and his
associates and arranged two meetings observed by
FBI agents at which he personally gave $4,000 and
$3,000 in small unmarked bills to Jones. Jones,
of course, never reported these payments on his
income tax returns. After having been caught in
the act, Jones was indicted on five counts of
conspiracy to commit extortion, attempted
extortion and filing false tax returns.

      Jones was convicted on all counts and sentenced
to 41 months imprisonment on the extortion counts
and 12 months imprisonment on the filing of false
income tax return charges, with the terms to run
concurrently. He was also sentenced to a two year
term of supervised release and fined $1,000. His
post-trial motions, raising the same arguments he
raises here, were all denied.

II.   DISCUSSION

       A.   Batson Challenge

      Jones complains about the government’s exercise
of its peremptory challenges to exclude four
African-Americans from the jury. Although every
defendant has "the right to be tried by a jury
whose members are selected pursuant to
nondiscriminatory criteria," Batson v. Kentucky,
476 U.S. 79, 85-86 (1986), not every strike of a
racial minority results in a violation of that
right. The District Court, after a hearing, found
that these jurors were stricken for race-neutral
reasons and that no violation of Batson had
occurred.

      This court "will only overturn the trial
court’s determination that a prosecutor’s use of
peremptory challenges was not motivated by
purposeful discrimination if that determination
is clearly erroneous." United States v. Williams,
934 F.2d 847, 849 (7th Cir. 1991). See also United
States v. James, 113 F.3d 721, 728 (7th Cir.
1997). This is because such determinations turn
largely on "evaluation of credibility," Batson,
476 U.S. at 98 n.21, and the trial judge is in
the best position to evaluate the demeanor of the
attorney exercising the challenge. Hernandez v.
New York, 500 U.S. 352, 365 (1991). We will not
reverse the trial court’s Batson findings unless
we are left with "a definite and firm conviction
that a mistake has been committed." Id. at 370.

      Venire members Passion Wiley, Deborah Miller,
Robert Holley and Barbara Johnson were excused by
the government. After jury selection, counsel for
Jones stated, "The Government excused a number of
blacks, African-Americans, and we’d like to know
whether there are any race neutral reasons for
that exclusion."/1 Under the first step of the
Batson analysis, the objecting party is required
to establish a prima facie case that peremptory
challenges were used to exclude a prospective
juror on the basis of race. Mahaffey v. Page, 162
F.3d 481, 482-83 (7th Cir. 1998), cert. denied 119
S.Ct. 1786, 143 L.Ed.2d 814 (1999), citing
Batson, 476 U.S. at 96-98. However, where, as
here, the "government volunteers a race neutral
explanation for exercising peremptory challenges
and the trial court goes on to rule on the
ultimate issue of whether the race neutral reason
was really a pretext for discrimination, the
issue of whether the challenging party has
established a prima facie case is moot." United
States v. Cooper, 19 F.3d 1154, 1160 (7th Cir.
1994). The second step of the Batson analysis
requires the government to articulate a race-
neutral reason for its challenge. Then, finally,
the court must determine whether the objecting
party has carried its burden of establishing that
the proffered reasons are pretextual and that the
government instead is engaging in purposeful
discrimination. Id. at 1158. "[T]he ultimate
burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent
of the strike." Purkett v. Elem, 514 U.S. 765,
768 (1995) (per curiam), reh’g denied 515 U.S.
1170 (1995).

      The government explained that it struck Ms.
Wiley because she was unemployed, had three
children, watched soap operas, and did not
exhibit activity in the community outside of her
home. Counsel’s concerns about her lack of
activity were confirmed, he said, when he
observed her sleeping in the jury box as the
court questioned other potential jurors at
sidebar. Neither the court nor Jones’ attorney
saw Ms. Wiley sleeping and, therefore, Jones
urges us to reject that rationale as a
fabrication. We do not do so because we believe
that inattentiveness is a legitimate reason for
striking a potential juror. See United States v.
Walton, 2000 WL 767891 (7th Cir. June 14, 2000).
As counsel for the government in Walton so aptly
argued, "[i]f anything is required of a juror
aside from impartiality, it is the willingness
and ability to pay attention and retain what is
seen and heard during the trial." Id. at *4./2
The fact that neither the trial judge nor counsel
for Jones could confirm that Ms. Wiley fell
asleep during jury selection does not dissuade us
from our holding, for the trial judge, who had
the opportunity to evaluate counsel’s demeanor
and credibility, accepted the government’s
explanation regarding Ms. Wiley and we give that
finding great deference. Hernandez, 500 U.S. at
365. "Once the trial judge has been persuaded of
the neutrality of the prosecutor’s reason for
striking a juror, we have no basis for reversal
on appeal unless the reason given is completely
outlandish or there is other evidence which
demonstrated its falsity." United States v.
Griffin, 194 F.3d 808, 826 (7th Cir. 1999), cert.
denied 120 S.Ct. 1546, 146 L.Ed.2d 358 (2000)
(internal quotations and citations omitted).
Neither of those conditions has been satisfied
here.

      Deborah Miller was excused by the government
because "each time she stood up [to answer
questions], she looked at the defendants and
looked at the defense table, [but] did not do the
same with the Government." The District Court
accepted this as a "legitimate" reason. Jones
counters that a juror’s "look" is not a
reasonable excuse for striking her. However, we
have upheld peremptory strikes based upon a
potential juror’s body language, including the
fact that a potential juror looked at one party
but not the other. Dunham v. Frank’s Nursery &
Crafts, Inc., 967 F.2d 1121, 1125-26 (7th Cir.
1992). See also Griffin, 194 F.3d at 826 (juror
refused to look around the courtroom when the
court asked her to see if she recognized anyone
there); United States v. James, 113 F.3d 721, 729
(7th Cir. 1997) (juror looked mad about being
there); United States v. Hinton, 94 F.3d 396, 397
(7th Cir. 1996) (juror had negative body language
as the government introduced its case agent and
read its witness list). Ms. Miller’s body
language in looking only at the defendant and not
the government, could cause the government to
believe that her sympathies might be directed
toward the defendant. Such "intuitive
assumptions" are often the basis for peremptory
strikes and, as long as they are race-neutral,
are permissible.

      Jones challenges only briefly (two sentences in
the summary of his argument) the dismissal of
venire members Robert Holley and Barbara Johnson.
His argument is necessarily perfunctory as both
were excused for good reason. Robert Holley was
excused because he indicated he was a close
friend of a sitting African-American alderman in
the City of Chicago. It takes little imagination
to think of all the reasons why the government
would want to excuse a potential juror who was a
close friend of a person of the same profession
as the defendant. That person, by virtue of his
friendship, could have information about the
profession that causes him to prejudge the
defendant’s guilt or innocence or could gain him
undue influence over the other jurors during
deliberations. See United States v. Evans, 192
F.3d 698, 701 (7th Cir. 1999) ("Understandably,
[the government] would not want someone who might
have specialized knowledge in this area second
guessing the [g]overnment’s witnesses during
deliberations.") Thus, we, like the District
Court, accept this as a perfectly legitimate
race-neutral reason for excusing Mr. Holley.

      The government exercised a peremptory challenge
against Barbara Johnson because she "indicated
that her son took the fall for somebody else."
The government’s reservations of Ms. Johnson seem
well-founded in light of her statement that her
son "took the fall" for a crime she believes he
did not commit. In light of her previous
experience with the criminal justice system, she
could have preconceived notions, although not
rising to the level of a challenge for cause,
that make her an undesirable juror. Excusing her
for her attitude toward the criminal justice
system is a permissible strike. Id.

      The District Court, which conducted and observed
the voir dire and the Batson hearing, chose to
credit the government’s testimony regarding its
peremptory challenges. Jones has not advanced any
reasons which would lead us to conclude that the
District Court erred. We affirm the ruling of the
District Court that the government’s exercise of
its peremptory challenges to excuse these four
African-Americans from the jury was proper.
      B.   Limitations On Cross-Examination

      Jones next argues that the District Court erred
by granting the government’s motion in limine
precluding any reference or argument regarding
John Christopher’s dealings with Edward Vrdolyak.
Jones sought to cross-examine Christopher about
payments he made to Vrdolyak, a politically
connected private attorney. Christopher was
claimed to have been making payments to Vrdolyak
for his help in securing a permit at the same
time he was making payments to Jones and his
associates. Jones said he wanted to present this
evidence to challenge Christopher’s credibility,
and to demonstrate that Christopher’s payments to
Jones were legitimate because Christopher was
already paying Vrdolyak for the same thing. The
District Court granted the motion in limine,
finding that the proffered evidence was
irrelevant.

      During Christopher’s cross-examination, Jones
was permitted to and did ask Christopher about
Vrdolyak. Counsel asked whether Christopher hired
Vrdolyak, whether he hired Vrdolyak because he
knew "city work," whether he hired Vrdolyak to
help him get "permits," and whether he hired
Vrdolyak because he was "politically
influential." Counsel also elicited testimony
from Christopher that Vrdolyak was paid money for
his services. Because Jones was able to cross-
examine Christopher in this manner, we believe
that he was able to delve into the very matter
about which he claimed to have been precluded.
His appeal on this issue is therefore moot.


      C.   Jury Instruction

      Jones attacks the District Court’s instruction
defining "willfully" under counts four and five,
the counts charging him with filing false income
tax returns. During the instruction conference,
however, counsel for Jones agreed to the
instruction that was ultimately given by the
court. He has thus waived this argument and we do
not consider it on appeal./3


      D.   Sufficiency Of The Evidence

      Finally, Jones asserts that the evidence was
insufficient to convict him for filing false tax
returns. His argument is presented in five
sentences and is supported by no case law or
other authority. The lack of development of this
argument and absence of supporting case law
"speaks to the paucity of the argument." United
States v. Watson, 189 F.3d 496, 500 (7th Cir.
1999). Arguments that are not adequately
developed or supported are waived, id., ergo we
do not consider it.

III.   CONCLUSION

      For the foregoing reasons, the judgment of the
District Court is affirmed.

AFFIRMED.

/1 In its brief, the government posits that this was
not a properly formatted and complete Batson
objection and its deficiencies obligate us to
review the District Court’s rulings merely for
plain error. We decline to do so.

/2 See also United States v. Harris, 197 F.3d 870
(7th Cir. 1999), cert. denied 1205 S.Ct. 1546, 146
L.Ed.2d 358 (2000) (it is not a violation of the
equal protection clause to strike a disabled
person because of her physical disability where
her medication is likely to cause drowsiness and
render her incapable of paying attention during
trial).

/3 In cases where a party fails to object to the
instruction about which he later complains we
review under a plain error standard. United
States v. Olano, 507 U.S. 725, 732 (1993). Even
if we were to review Jones’ complaint regarding
the instruction we would find no error under this
standard as the instruction accurately stated the
law.
