UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-11111
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MATHIS PERRY PERKINS, III, and
MICHAEL GEORGE SMITH,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
January 30, 1997
Before JOLLY, JONES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
A jury convicted appellants, Mathis Perry Perkins, III
(“Perkins”), and Michael George Smith (“Smith”), of conspiring to
commit interstate theft. The district court sentenced Perkins to
41 months’ imprisonment, Smith to 60 months’ imprisonment and both
defendants to three years’ supervised release and a payment of
$30,964.30 in restitution. We affirm.
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JURY SELECTION
Perkins and Smith argue that the prosecutor failed to
articulate a clear and reasonably specific explanation for
excluding an African-American venire person from the jury and that
the prosecutor’s explanation for the strike was not race-neutral.
A prosecutor violates the Equal Protection Clause when
potential jurors are challenged solely on the basis of their race.
Batson v. Kentucky, 476 U.S. 79, 89 (1986); see United States v.
Clemons, 941 F.2d 321, 323 (5th Cir. 1991). The process for
examining an objection to peremptory challenges under Batson is as
follows:
(1) a defendant must make a prima facie showing that the
prosecutor has exercised his peremptory challenges on the
basis of race, (2) the burden then shifts to the
prosecutor to articulate a race-neutral reason for
excusing the juror in question, and (3) the trial court
must determine whether the defendant has carried his
burden of proving purposeful discrimination.
Clemons, 941 F.2d at 324. When the record contains an explanation
for the Government’s peremptory challenges, this court will review
“only the propriety of the ultimate finding of discrimination vel
non.” United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.
1987). Jury selection is subjective, and a Batson determination
turns largely on the court’s evaluation of the credibility of
counsel’s explanation. United States v. Wallace, 32 F.3d 921, 925
(5th Cir. 1994). The district court’s decision on the ultimate
question of discriminatory intent is a finding of fact which is
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accorded great deference. United States v. Fike, 82 F.3d 1315,
1319 (5th Cir.), cert. denied, 117 S. Ct. 242 (1996). “Unless a
discriminatory intent is inherent in the prosecutor’s explanation,
the reason offered will be deemed race-neutral.” Purkett v. Elem,
115 S. Ct. 1769, 1775 (1995) (quotations and internal citation
omitted); United States v. Krout, 66 F.3d 1420, 1429 (5th Cir.
1995), cert. denied, 116 S. Ct. 963 (1996).
At trial, the defense challenged the prosecution’s use of a
peremptory challenge which excluded an African-American venire
person, referred to as Juror 7, pursuant to Batson. Following the
defense’s Batson challenge, the court asked the prosecutor to state
her reason for striking the juror. The prosecutor responded in
pertinent part:
Number 7, the question was asked about whether the
defendant -- whether when individuals walked into the
courtroom they knew right away who the defendant was and
who the attorneys were and he started shaking his head
and kind of had a disgusted look on his face. And from
that I got the impression that he might be somebody who
would have some ill feeling about the fact that there
could have been some sort of a -- a -- something against
the defendants because of their race. . . .1
Counsel for Perkins responded that the proffered explanation failed
to articulate a sufficient reason and that it “indicated that there
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Counsel for Perkins asked during voir dire, “With respect
to the presumption of innocence, when y’all walked in this room
here did you look around the courtroom and be able to figure in
your mind who the defendants were and who the lawyers were and
who the prosecutors were pretty quickly? Did you do that?”
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was some kind of racial connotation on her analysis.” The
district court ruled:
On Number 7, I find that the government did not base its
decision on the race of the juror. It based its decision
on the juror’s apparent concern about the fairness of the
prosecution.
As I understand it, this is the kind of thing that
would have caused the government concern regardless of
the race of the juror. It is the juror’s reaction to the
question. And I find that the government did not base
its decision in whole or in part on the juror’s race and
therefore I overrule the Batson challenge.
No further objection was made by the defense.
Perkins argues that the “some sort of something” referred to
by the prosecutor is “fatally vague” and “facially ambiguous”.
Taken as a whole, Perkins interprets the prosecutor’s proffered
reason as the prosecutor’s subjective opinion that the juror’s
“outward expression indicated racial sympathy because the venire
member and the defendants were both black.” Perkins thus argues
that the prosecutor believed that the juror would unfairly
sympathize with the defendants because they were of the same race.
Accordingly, the appellants argue that the prosecution acted on
account of the venire member’s race.
The Government argues that the prosecutor struck the venire
member because she believed that Juror No. 7 displayed concern that
the prosecution had something against the defendants because of
race. The Government relies on this court’s recent decision in
Fike, 82 F.3d at 1315. In Fike, defense counsel asked during voir
dire if the venire members would "have a concern" if an all white
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jury was selected in this case. Id. at 1319. An African-American
venireman, Williams, answered, "Yes, based on the practice of the
U.S. Justice System." Id. Although no follow-up questions were
asked, the prosecutor struck him. Id. Following a Batson motion,
the prosecutor explained that Williams had been struck because he
“expressed concerns about past practices of the government -- of
the U.S. Judicial System” and lacked faith in the judicial system.
Id. This court stated that “Batson does not forbid striking a
juror who holds a particular opinion about the U.S. justice system.
Rather, it forbids striking jurors based on their race.” Id. at
1320.
Arguing that the prosecutor relied upon a race-based
assumption rather than a race-neutral assumption, appellants
attempt to distinguish Fike because Juror No. 7, unlike Williams,
did not express concern about the judicial system. Appellants
argue that the instant case is more analogous to the Ninth
Circuit’s decision in United States v. Bishop, 959 F.2d 820 (9th
Cir. 1992), in which the Ninth Circuit held that the prosecutor's
articulated reason for striking an African-American venire member
was inadequate under Batson. The prosecutor explained that he
struck the individual because she was poor and lived in a poor,
violent area of Los Angeles where residents are anesthetized to
violence and probably believe police "pick on" African-American
people. Id. at 822. The defendant established that the
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correlation between residence in that area of town and being
African-American was very high and that the prosecutor's reason was
a surrogate for racial bias. Id. at 823. The Ninth Circuit held
that the reason was not race-neutral because it was a generic
reason and a group-based presumption that a poor African-American
person could not fairly try an African-American defendant. Id. at
824-27.
The instant case is not factually identical to Bishop or Fike.
Unlike Fike, the juror did not orally express his concerns, but
unlike Bishop, the prosecutor pointed to the juror’s personal
conduct which the prosecutor interpreted to mean that the juror was
skeptical of the judicial system. Appellants have not shown that
distrust of the judicial system is a surrogate for racial bias. As
the Government notes, the appellants’ interpretation of the
prosecutor’s explanation is not what the district court understood
her to mean. The district court understood her to express concern
about Juror No. 7's belief in the prosecution’s fairness to the
defendants. The district court did not find the explanation vague
or unclear. A juror’s trust in the fairness of the system is not
inherently based upon race. As in Fike, the juror’s action
“removes the specter of generic reason or group based presumption.”
Fike, 82 F.3d at 1320. The prosecutor articulated specific conduct
which conveyed such an attitude. Under the "great deference"
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standard of review, we affirm the district court's assessment of
the prosecutor’s articulated reason.
ENHANCEMENT FOR ROLE IN THE OFFENSE
Perkins argues that the district court failed to make specific
findings when it “enhanced” Perkins’ sentence by two levels for his
role in the offense. Perkins argues that his conduct, managing
assets of the organization, did not “warrant an upward departure”
under application note 2 of U.S.S.G. § 3B1.1. Perkins argues that
the Government failed to prove that he “exercised management
responsibility” over the assets as required under note 2.
Section 3B1.1(c) provides for a two-level increase in the
offense level "[i]f the defendant was an organizer, leader,
manager, or supervisor in any criminal activity" that involved
fewer than five participants and was not otherwise extensive.
An application note to § 3B1.1 provides that
[t]o qualify for an adjustment under this section, the
defendant must have been the organizer, leader, manager,
or supervisor of one or more other participants. An
upward departure may be warranted, however, in the case
of a defendant who did not organize, lead, manage, or
supervise another participant, but who nonetheless
exercised management responsibility over the property,
assets, or activities of a criminal organization.
§ 3B1.1, comment. (n.2) (emphasis added).
The Government objected to Perkins’ presentence report (PSR)
because Perkins had not received “an adjustment” for his role in
the offense. The Government argued that Perkins controlled the
assets of the conspiracy in that he received the payments for the
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stolen goods and either cashed the checks or deposited the funds in
one of his own accounts. The Government further argued that
Perkins “exercised management responsibility by negotiating the
transactions that led to the sale of the stolen goods to Wade
Investments.” The Government concluded that an “upward departure”
was warranted.
The probation officer responded that the Government’s argument
“for a role adjustment” was based on the rationale for an upward
departure. When asked to clarify its position, the Government
advised the probation officer that Perkins’ involvement in the
offense warranted a role adjustment pursuant to § 3B1.1(c). The
probation officer recomputed the guidelines by increasing Perkins’
offense level by two levels under § 3B1.1(c) based on his role in
the offense as cited by the Government. The district court adopted
the factual findings and guidelines application in the PSR.
Perkins did not object to the enhancement and, thus, presents
this challenge for the first time on appeal. Parties are required
to challenge errors in the district court. When a defendant in a
criminal case has forfeited an error by failing to object, this
court may remedy the error only in the most exceptional case.
United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en
banc), cert. denied, 115 S. Ct. 1266 (1995).
Under FED. R. CRIM. P. 52(b), this court may correct forfeited
errors only when the appellant shows: (1) there is an error, (2)
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that is clear or obvious, and (3) that affects his substantial
rights. Id., 37 F.3d at 162-64. If these factors are established,
the decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 735-36 (1993).
A two-level upward adjustment under § 3B1.1(c) is proper only
if Perkins was “the organizer or leader of at least one other
participant in the crime and [if] he assert[ed] control or
influence over at least that one participant.” See United States
v. Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996). An upward departure,
however, may be warranted if the defendant exercised management
responsibility over the property, assets, or activities of a
criminal organization.” § 3B1.1(c), comment. (n.2).
Perkins did not exercise such control over another person, but
the facts show that he managed the accounts. Consequently, the
district court erred in enhancing Perkins’ sentence under §
3B1.1(c), but it could have validly departed upward based upon his
management of the organization’s assets.
Regardless, there is “little functional difference” between an
enhancement and an upward departure. United States v. Knight, 76
F.3d 86, 88 (5th Cir. 1996). The difference derives from “notice
considerations.” Id. Perkins had notice that the increase would
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be considered. Therefore, we conclude that he has not shown an
error that implicates the integrity of the judicial process.
CONCLUSION
Based on the foregoing, we AFFIRM Perkins’ and Smith’s
convictions and sentences.
AFFIRMED.
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