US v. Andre Whitfield, No. 08-4335 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4335 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRE D. WHITFIELD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:07-cr-00300-HEH-1) Submitted: November 18, 2008 Before WILKINSON and Senior Circuit Judge. MICHAEL, Decided: Circuit December 1, 2008 Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Steven P. Hanna, Richmond, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Stephen W. Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Andre D. Whitfield was convicted of: two counts of using a communication facility to facilitate a drug offense; possession with distribution intent of to cocaine distribute base; cocaine possession base; of a attempted firearm in furtherance of a drug trafficking crime; and possession of a firearm by a person previously convicted of domestic violence. He received a 192-month sentence. convictions, arguing that the Whitfield now appeals his district court erred when it rejected his Batson v. Kentucky, 476 U.S. 79 (1986), challenge to the Government s peremptory strikes of three black jurors. We affirm. Under Batson, the use of a peremptory challenge for a racially discriminatory Clause. Id. findings as purpose offends the Equal Protection We give great deference to the trial court s to whether a Batson violation review the court s findings for clear error. occurred, and we Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995). A three-step process is used to analyze a Batson claim: First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the 2 defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citations omitted). When conducting this analysis, the decisive question [is] whether counsel s race-neutral explanation . . . should be believed. Id. at 365. At the second step, both age and occupation legitimate, race-neutral reasons to strike a juror. are Smulls v. Roper, 535 F.3d 853, 867 (8th Cir. 2008) (occupation); United States v. Grimmond, 137 F.3d 823, 834 (4th Cir. 1998) (age); United States v. Miller, 939 F.2d 605, 609 (9th Cir. 1991). Here, the prosecutor stated that she struck a black female juror because jurors she was who were twenty-two, twenty-five and or the prosecutor older. The wanted only prosecutor cited occupation as the reason she struck two black males: she wanted no teachers, social workers, or nurses on the jury. One of the struck jurors was a teacher, and the other was a social worker. By articulating Government race-neutral satisfied its reasons burden at for the the second strikes, the step the of analysis. At determine strike is the whether a third the pretext step, the Government s for trial race-neutral discrimination. Farrior, 535 F.3d 210, 221 (4th Cir. 2008). 3 court s duty reason United is for States to a v. The defendant must show both that [the Government s stated reasons for a strike] were merely pretextual and that race was the real reason for the strike. 1994). United States v. McMillon, 14 F.3d 948, 953 (4th Cir. In making this showing, the defendant may rely on all relevant circumstances discrimination. Cir. 2008) to raise an inference of purposeful Golphin v. Branker, 519 F.3d 168, 179 (4th (quoting Miller-El v. Dretke, 545 U.S. 231, 240 (2005)). Here, Whitfield did not challenge the Government s race-neutral explanation for striking the young female juror. The failure to argue pretext after the challenged strike has been explained constitutes a waiver of the initial Batson objection. See Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, (4th 1027 Cir. 1998). Even if there was no waiver, Whitfield did not identify a similarly situated venire member of a different race who was not peremptorily challenged, see Golphin, 519 F.3d at 179-80, or otherwise establish that race was the real reason for the strike. Similarly, he failed to meet his burden with respect to the two male jurors. Because the district court did not clearly rejecting Whitfield s Batson challenge, we affirm. err in We dispense with oral argument because the facts and legal contentions are 4 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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