US v. Andre Whitfield

Filing 920081201


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4335 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRE D. WHITFIELD, Defendant - Appellant.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 Decided: December 1, 2008 Before WILKINSON and Senior Circuit Judge. MICHAEL, Circuit Judges, and HAMILTON, Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 of intent to distribute base; cocaine of base; a attempted in distribution cocaine possession firearm 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 court erred when it district 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 Clause. findings discriminatory Id. as to purpose offends the Equal Protection We give "great deference" to the trial court's whether a Batson violation occurred, and we review the court's findings for clear error. 57 F.3d 417, 421 (4th Cir. 1995). A claim: three-step process is used to Jones v. Plaster, analyze a Batson 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." At Id. at 365. the second step, both age and occupation are legitimate, race-neutral reasons to strike a juror. 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 who was were twenty-two, twenty-five and or the prosecutor The wanted only cited older. prosecutor 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 race-neutral its reasons at for the the strikes, step of the the Government analysis. satisfied burden second At determine strike is the third the step, the trial court's duty reason is for to a v. whether "a Government's for race-neutral pretext discrimination." United States Farrior, 535 F.3d 210, 221 (4th Cir. 2008). The defendant must 3 "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). relevant United States v. McMillon, 14 F.3d 948, 953 (4th Cir. In making this showing, the "`defendant may rely on all circumstances to raise an inference of purposeful discrimination.'" Cir. 2008) Golphin v. Branker, 519 F.3d 168, 179 (4th Miller-El v. Dretke, 545 U.S. 231, 240 (quoting (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. 1023, 1027 See Davis v. Baltimore Gas & Elec. Co., 160 F.3d (4th 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 err in rejecting Whitfield's Batson challenge, we affirm. 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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