PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-2
AQUILIA MARCIVICCI BARNETTE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(3:97-cr-00023-RLV-1)
Argued: January 27, 2011
Decided: May 3, 2011
Before NIEMEYER, DAVIS, and KEENAN,
Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the major-
ity opinion, in which Judge Niemeyer concurred, and in
which Judge Keenan concurred except as to Part III.A.1.
Judge Keenan wrote a separate opinion concurring in part and
concurring in the judgment.
COUNSEL
ARGUED: Mark Evan Olive, Tallahassee, Florida, for
Appellant. Jeffrey B. Kahan, UNITED STATES DEPART-
2 UNITED STATES v. BARNETTE
MENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Claire J. Rauscher, Executive Director, Ross H.
Richardson, Assistant Federal Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Lanny A. Breuer,
Assistant Attorney General, Greg Andres, Deputy Assistant
Attorney General, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Anne M. Tompkins, United
States Attorney, Charlotte, North Carolina, for Appellee.
OPINION
DAVIS, Circuit Judge:
This federal capital case is before us for the fourth time.
See United States v. Barnette, 211 F.3d 803 (4th Cir. 2000)
(hereinafter Barnette I); United States v. Barnette, 390 F.3d
775 (4th Cir. 2004), vacated and remanded, 546 U.S. 803
(2005) (hereinafter Barnette II); United States v. Barnette,
No. 02-20-CR-97-23-V (4th Cir. filed Sept. 21, 2007). In Bar-
nette I, we reviewed the propriety of the convictions of, and
the death sentence imposed on, Appellant Aquilia M. Barnette
arising from his murder of two victims and related charges. In
the initial appeal, we affirmed the convictions but vacated the
death sentence and remanded the case for a new sentencing
proceeding. 211 F.3d at 826. Upon remand, the district court
empanelled a new jury, which recommended, after a fresh
sentencing hearing, a sentence of death. In Barnette II, the
appeal from the second sentencing hearing, we affirmed the
sentence and specifically, we rejected Barnette’s contention
that prosecutors had exercised their peremptory challenges in
a racially discriminatory manner to strike African-Americans
from the jury venire in violation of Batson v. Kentucky, 476
U.S. 79 (1986), and its progeny. 390 F.3d at 779.
Barnette sought and was granted certiorari and the
Supreme Court vacated the judgment and remanded the case
UNITED STATES v. BARNETTE 3
to us for reconsideration of Barnette’s Batson claim in light
of the Court’s intervening decision in Miller-El v. Dretke, 545
U.S. 231 (2005).
Upon the Supreme Court’s remand, after the parties filed
supplemental briefs in this court, but before any further con-
sideration of Barnette’s Batson claim by us, on Barnette’s
motion, we remanded the case to the district court "for consid-
eration of the Batson claim in the first instance in light of
Miller-El v. Dretke, 125 S. Ct. 2317 (2005)." See Docket No.
02-20, entry 212.
The district court held a hearing and thereafter issued a
memorandum opinion and order on May 19, 2010, finding
and concluding that, even in light of the elucidation of Bat-
son’s principles in Miller-El, Barnette had not met his burden
of proving that the prosecution engaged in purposeful dis-
crimination when it exercised peremptory strikes against five
African-American members of the jury venire during jury
selection for the sentencing phase in 2002. Barnette now
appeals the district court’s order denying relief on his recon-
sidered Batson claim. For the reasons set forth within, we find
no merit in Barnette’s contentions that the district court com-
mitted prejudicial error in the manner in which it conducted
the proceedings below or in its findings of fact and legal con-
clusions on the merits of Barnette’s Batson claim. Accord-
ingly, for the reasons set forth within, we affirm.
I.
A.
The facts underlying the jury’s verdict and sentence recom-
mendation on the capital counts of the indictment are set forth
fully in our prior opinion; we briefly summarize them here. In
1996, Barnette made his first attempt to kill his ex-girlfriend,
Robin Williams, upon learning that she was involved with
another man. Barnette went to Williams’ apartment in Roa-
4 UNITED STATES v. BARNETTE
noke, Virginia, where he cut the phone lines, poured gasoline
onto a window sill, set fire to the gasoline, and threw a Molo-
tov cocktail into the apartment. After waiting to confirm that
the apartment was burning, Barnette drove away. Williams
and her friend were able to jump from the second story win-
dow and escape, although Williams suffered second- and
third-degree burns. The police obtained an arrest warrant for
Barnette for two counts of attempted murder and two counts
of arson/firebombing.
Upon learning that he was wanted by the police, Barnette
hid out in Charlotte, North Carolina, with his cousin. He pur-
chased a shotgun. Then, on the night of June 21, 1996, Bar-
nette, armed with the shotgun, walked to the intersection of
Billy Graham Parkway and Morris Field Road in Charlotte.
When a car approached and stopped, Barnette put his shotgun
to the window and ordered the driver out of the vehicle and
into the woods adjacent to the road. Barnette then shot and
killed the driver, twenty-two-year-old Donald Lee Allen. He
took Allen’s wallet and drove the vehicle to Roanoke.
Barnette arrived at Williams’ mother’s house in Roanoke
and waited near the house until morning. After seeing Wil-
liams and her mother moving around inside the house, Bar-
nette entered the back yard of the house and cut the telephone
lines. Barnette then broke into the house; upon seeing Bar-
nette, Williams fled out the front door. Barnette chased her
and grabbed her and attempted to drag her to the car. He told
Williams that he was going to kill her and that he had one
shotgun shell for her and one for himself. When Williams
struggled and reached for the gun, Barnette shot her once in
her side. She then attempted to run away, but Barnette shot
her in the back. She died a short time later. Barnette testified
that the reason he did not kill himself after killing Williams
was because he panicked after seeing what the shotgun shells
did to Williams. He confessed to both murders a few days
later. Id. at 779-82.
UNITED STATES v. BARNETTE 5
B.
Barnette was convicted by the original jury after a three
week trial in January 1998 on eleven charges: (1) interstate
domestic violence, in violation of 18 U.S.C. §§ 2261(a) & (b);
(2) use of a destructive device, a firebomb, during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1); (3) using and
carrying fire and explosive materials during a felony, in viola-
tion of 18 U.S.C. § 844(h)(1); (4) making a false statement
during the purchase of a firearm, in violation of 18 U.S.C.
§§ 922(a)(6) & 924; (5) making a firearm by sawing off his
shotgun without complying with the provisions of the
National Firearms Act, in violation of 26 U.S.C. §§ 5821,
5822, 5861(f) & 5871; (6) possessing a firearm after having
been convicted of a felony, in violation of 18 U.S.C.
§§ 922(g)(1) & 924; (7) commission of a carjacking that
results in death, in violation of 18 U.S.C. § 2119(3); (8) using
and carrying a firearm during and in relation to a crime of vio-
lence, namely a carjacking, in which death occurs, in violation
of 18 U.S.C. §§ 924(c)(1) & (i)2(1); (9) transporting a stolen
vehicle in interstate commerce, in violation of 18 U.S.C.
§ 2312; (10) interstate domestic violence, in violation of 18
U.S.C. §§ 2261(a)(1) & (b)(1); and (11) using and carrying a
firearm during and in relation to a crime of violence, namely
interstate domestic violence, in which death occurs, in viola-
tion of 18 U.S.C. §§ 924(c)(1) & (i)2(1). On the jury’s recom-
mendation, Barnette was sentenced to death on counts seven,
eight, and eleven; as to the remaining counts, the district court
imposed an aggregate prison term of life.
Barnette appealed his convictions and sentence, and in
2000, this court affirmed the convictions but vacated the death
sentence and remanded for resentencing as to the capital
counts. See Barnette I, 211 F.3d 803. Barnette was resen-
tenced in July 2002 and once again received a death sentence
on counts seven, eight, and eleven. Barnette II, 390 F.3d at
783. We affirmed the reimposed death sentences. Id. at 812.
Thereafter, the Supreme Court vacated the judgment and
6 UNITED STATES v. BARNETTE
remanded for consideration in light of Miller-El v. Dretke,
545 U.S. 231 (2005).
Upon the Supreme Court’s remand, we remanded the case
to the district court for reconsideration.
C.
Upon our remand, the district court permitted the parties to
file briefs, in which Barnette sought a new sentencing hearing
or in the alternative, an evidentiary hearing. United States v.
Barnette, No. 3:97CR-23, 2010 WL 2085312, *5 (W.D.N.C.
May 20, 2010). The government requested that the court hold
another Batson hearing addressing only the issue of "pretext,"
the third prong of the Batson analysis. Id. The government did
not oppose Barnette’s request that he be allowed to present
evidence of purposeful discrimination at a hearing, but it
opposed Barnette’s motion for discovery. Id. The district
court ordered the government to submit unredacted copies of
all juror questionnaires in its possession for in camera review.
Id. at *6.
These written questionnaires had been filled out by over
400 potential venirepersons about a month prior to jury selec-
tion in Barnette’s second sentencing hearing. Id. at *9. The
questionnaire asked 129 questions submitted by both the gov-
ernment and Barnette, ranging from each juror’s personal
information, including race and gender, education, employ-
ment status and history, marital status, and health background,
to their specific beliefs and opinions regarding the death pen-
alty. Id. Counsel had received copies of the completed ques-
tionnaires prior to jury selection, which began on July 15,
2002. Id. During jury selection each side had an opportunity
to question each prospective juror, a process that took 10 days
and concluded when 65 eligible jurors had been selected. Id.
The next day, the parties appeared before the district court to
exercise peremptory strikes. Id. Each side was permitted 20
UNITED STATES v. BARNETTE 7
peremptory strikes plus an additional two strikes for the panel
of alternate jurors. Id.
The clerk would randomly select a group of 12 jurors and
the government was permitted to exercise its peremptory
strikes against this group, with the clerk replacing those who
had been struck with other eligible randomly selected jurors,
until the government had accepted 12 jurors. Id. The defense
then had the opportunity to strike jurors from this pool in the
same manner, until a panel of 12 was selected. Id. At that
point, the panel went back before the government, and the
process continued until a mutually agreeable panel of 12
jurors and four alternates were selected. Id. Two jurors were
struck for cause during this process, reducing the total number
of eligible jurors in the pool to 63. Id.
In complying with the district court’s order to submit unre-
dacted copies of the juror questionnaires in its possession for
in camera review, the government also provided copies of
handwritten notes taken by the prosecutors during voir dire.
Id. at *6. The district court denied Barnette the opportunity to
conduct discovery. Barnette vigorously opposed this refusal,
and specifically, he objected to the court’s refusal to permit
him to examine the government’s unredacted jury question-
naires and copies of the handwritten notes made by members
of the prosecution team during the jury selection process.
The district court issued an opinion and order on July 13,
2009, in which it ordered a limited hearing to require the gov-
ernment to provide an explanation for the presence of race
and gender notations on the cover sheets of the government’s
copies of the juror questionnaires. The court stated that it
would conduct a Batson-type hearing, during which only the
court would ask questions; the court would not permit Bar-
nette to cross-examine the trial prosecutors. The court also
ruled that Barnette could present evidence of purposeful dis-
crimination that was not available to him at the time he
8 UNITED STATES v. BARNETTE
mounted his original Batson challenge during and after the
voir dire questioning of jurors.
D.
After holding the renewed Batson hearing (as described
above) on September 21, 2009, the court issued its opinion
and order in May 2010. United States v. Barnette, No.
3:97CR-23, 2010 WL 2085312 (W.D.N.C. May 20, 2010). At
the start of its analysis, the court concluded that its duty upon
remand was "to reconsider its opinion with respect to whether
Barnette proved purposeful discrimination at his Batson hear-
ing in light of the law set forth in Miller-El." Id. at *7. In light
of this determination, the court concluded that it was "free to
retain any or all of its prior findings of fact and conclusions
of law with respect to Barnette’s Batson claim that, upon
reconsideration, it determines to be unaffected by Miller-El."
Id. The court then determined that it could exercise one of two
options in rehearing Barnette’s Batson claims: either "to hold
another Batson hearing whereby the Court’s previous rulings
as to steps one and two of the Batson analysis would stand,
but Barnette would be permitted to put forth any pretext argu-
ment or evidence that he wished, notwithstanding his failure
to make those arguments at his original Batson hearing," or to
limit its reconsideration "to the arguments raised at the [origi-
nal] Batson hearing, and not otherwise waived on appeal, the
issues raised on appeal, and any evidence of purposeful dis-
crimination that was not discoverable prior to the jury being
sworn." Id. at *8-9.
Concluding that it would adopt the second option it had
described, the court determined that it would reconsider: (1)
Barnette’s statistical argument; (2) whether two white jurors,
D. Edwards and D. Stanford, were similarly situated to the
five struck African-Americans who were the subject of Bar-
nette’s Batson claim on appeal; and (3) the relevant evidence
and arguments presented at the September 21, 2009 hearing.
Id. at *9.
UNITED STATES v. BARNETTE 9
Barnette’s Statistical Argument
The court rejected Barnette’s statistical argument that dis-
criminatory intent could be inferred from the number of
African-Americans the government peremptorily struck rela-
tive to their numbers in the eligible jury pool. Id. at *10-11.
The court began by noting that of the 63 eligible jurors avail-
able in the final pool, 16 were African-American, compromis-
ing 25% of the final venire. Id. at *10. Twelve of the 16 were
randomly selected as jurors or alternate jurors during the final
selection process. Id. Of those 12, two served on the jury and
one served as an alternate, with the government striking seven
and the defense striking two. Id. In selecting the jury itself,
the government used a total of 11 of 20 possible strikes, strik-
ing six black and five white jurors; then, when picking the
alternates, the government exercised both of its peremptory
strikes, against a black female and a white female. Id. Thus,
in total, the government used seven of its 22 strikes to strike
44% of the eligible black venirepersons, but accepted 25% of
the eligible black potential jurors. Id. The district court noted
that the percentage of black jurors that the government
accepted reflected the percentage of African-Americans in the
eligible jury pool. Id. The court also noted that the jury selec-
tion process demonstrated that no negative inference could be
drawn from the pattern or timing of the government’s strikes.
Id. at *11.
The Plausibility of the Prosecution’s Race-Neutral Reasons
Despite saying that it would not reconsider its conclusion
regarding the validity of the prosecution’s race neutral expla-
nations offered at step two of the Batson inquiry, see id. at *7
n.2, the district court went on to reconsider this issue and once
again rejected Barnette’s assertion that the government’s race
neutral reasons were a pretext for discrimination. Id. at *12.
Instead, the court concluded that the government’s "race-
neutral explanations for their strikes were justifiable, proba-
10 UNITED STATES v. BARNETTE
ble, and reasonable and had a basis in accepted trial strategy."
Id.
The district court began by considering the reasons given
for striking prospective jurors Bryson and R. Sanders, both of
whom had been in the first group of 12 jurors called forward
during voir dire. Id. The government had explained that Bry-
son was struck because she noted that her personal view of
the death penalty waivered, that she was not sure if she
favored abolishing the death penalty, and that she was uncer-
tain as to how she felt about the death penalty; and that pro-
spective juror R. Sanders was struck because of her
uncertainty about whether she could be fair in light of her
belief that the death penalty was applied based upon socioeco-
nomic, race, and age factors. Id. At the time of voir dire, the
trial court had found that these reasons were race neutral. Id.
Similarly, the district court below found that the record sup-
ported both of the government’s explanations and that both
were constitutionally permissible. Id. at *12-13.
The district court next considered the plausibility of the
government’s race neutral reasons for striking prospective
juror Moore. Id. at 13. The government had explained that
Moore was struck because she hesitated when asked whether
she could put the government on an equal playing field with
the defendant, and also based on her religious beliefs. Id. Dur-
ing jury selection the district court had accepted this reason as
race neutral, based on "Moore’s religious bent against the
death penalty or throwing in the question whether she could
apply it in view of those beliefs and her overall demeanor."
Id.
On further review, the district court accepted this reason-
ing, noting that "a prosecutor may use a peremptory strike
against a venireman who has reservations about the death
penalty, [. . . ] on the basis of a prospective juror’s demeanor,
[. . .] [or against] a prospective juror who has raised doubts
about her ability to be fair." Id. (internal citations omitted).
UNITED STATES v. BARNETTE 11
Noting that Barnette did not dispute Moore’s hesitation, the
court also observed that, while it could not recall Moore’s
demeanor at the time, one of the reasons it had cited at the
time of jury selection for upholding the plausibility of the
government’s race neutral reasons was Moore’s demeanor. Id.
at *14. In light of this finding, Moore’s responses reflecting
her religious beliefs, and her lack of clarity regarding whether
she could consider the death penalty as a punishment, the
court again found that these reasons were race-neutral and
supported by the record. Id.
The district court next reviewed its conclusion regarding
prospective juror K. Sanders. Id. The government explained
that it struck K. Sanders because she hesitated before answer-
ing questions as to whether she would consider the death pen-
alty and because she was "somewhat uncommunicative" with
the government. Id. The court at the time found that the gov-
ernment’s reasons were race neutral in light of her demeanor
and the overall context of her answers. Id. at *15. Noting
again that the government may exercise peremptory strikes
against prospective jurors who have reservations about the
death penalty, and also based on their demeanor, the district
court again found that the government’s reasons were sup-
ported by the record. Id. In so concluding, the court reflected
that its decision during voir dire was based on "Sanders’
demeanor and the overall tenor of her responses." Id.
Finally, the district court again reviewed its conclusion that
the government’s race neutral reasons for striking prospective
juror Blakeney were plausible. Id. The government explained
that it struck Blakeney because "he was hesitant in his
answers during voir dire," that "his views on the death penalty
were not very strong," and that "he stated during voir dire that
he did not want to sentence anyone to death." Id. Finding that
the government may strike jurors based on their reservations
about the death penalty, especially where the juror demon-
strates an unwillingness to impose the death penalty, and not-
ing evidence in the transcript to support the government’s
12 UNITED STATES v. BARNETTE
characterization of Blakeney, the court again found that these
reasons were valid and not pretextual. Id. at *16.
Comparative Juror Analysis
After reaffirming the plausibility of the government’s race-
neutral reasons for its use of peremptory strikes, the district
court independently considered Barnette’s assertion that a
comparative juror analysis established intentional discrimina-
tion in the prosecution’s use of peremptory strikes. Id. This
claim had been previously rejected by both the district court
and this court. See Barnette II, 390 F.3d at 796-97 (explaining
that Fourth Circuit precedent dictated that "Batson is not vio-
lated whenever two veniremen of different races provide the
same responses and one is excluded and the other is not")
(internal citations omitted). However, the district court recon-
sidered the claim in light of this court’s remand and the
Supreme Court’s opinion in Miller-El. See Barnette, 2010 WL
2085312 at *9.
Barnette argued that the five struck African-American
jurors were similarly situated to two white jurors, Edwards
and Stanford, because they gave substantially similar
responses about their ability to consider the death penalty, but
that the prosecution accepted only Edwards and Stanford as
jurors. Id. at *16. The district court rejected this claim as to
each of the specific comparisons. Id.
First, the court found that Moore and K. Sanders were
struck based on multiple factors, including their demeanor,
which it described as "hesitant" and "uncommunicative." Id.
The court then noted that the record did not reflect the demea-
nor of Edwards or Stanford because Barnette failed to make
this claim during his Batson hearing, and nothing in the
record indicated that they were hesitant, uncommunicative, or
shared the concerns that Moore and Sanders did. Id. Conse-
quently, the court found that Barnette could not show that
UNITED STATES v. BARNETTE 13
either Edwards or Stanford was similarly situated to Moore or
Sanders. Id.
The court then noted that Barnette could not show that
Edwards or Stanford was similarly situated to Blakeney
because Blakeney was also struck for multiple reasons. Id. at
*17. These reasons included "his hesitancy during voir dire,
the weakness of his views on the death penalty, and his state-
ment indicating a reluctance to vote for the death penalty." Id.
The court also found that Blakeney was distinguishable from
Edwards and Stanford because of his expressed reluctance to
vote for the death penalty, a reluctance that neither Edwards
nor Stanford displayed. Id. The court noted that the govern-
ment did not accept any white panelists who expressed doubt
about his or her ability to vote for the death penalty, and in
fact struck two other white panelists who expressed reluctance
similar to Blakeney. Id. On the contrary, the court noted, the
government did accept a black juror who expressed hesitation
regarding his individual responsibility for sentencing someone
to death, but who ultimately did not express a concern about
doing so as part of a jury. Id.
The court then found that neither Edwards nor Stanford
was similarly situated to R. Sanders because neither expressed
Sanders’ belief that the death penalty was unfairly applied. Id.
at *17-18.
Finally, the court determined that Bryson was struck
because she had indicated both on her questionnaire and dur-
ing voir dire that she was uncertain about whether she sup-
ported the death penalty. Id. at *18. Consequently, the court
determined that Bryson’s responses bore no similarity to
Edwards’. Id. And, while the court acknowledged that Bry-
son’s responses on her questionnaire were similar to Stan-
ford’s, it ultimately concluded that Bryson’s voir dire answers
"revealed an uncertainty with respect to the death penalty not
present in Stanford’s." Id. The court explained that Bryson
neglected to check a box on the juror questionnaire in
14 UNITED STATES v. BARNETTE
response to the question that asked, "If you favor the death
penalty, do you favor it very strongly, somewhat strongly, not
very strongly at all, or other," and then said in voir dire that
she had not formed a definite judgment as to the death pen-
alty. Id. In contrast, the court said, Stanford checked "not very
strongly at all" in response to that question, and indicated dur-
ing voir dire that her support of the death penalty depended
on the circumstances of the particular case. Id. at *19. The
court concluded that "unlike Edwards and Stanford, Bryson
never articulated a reliable or consistent conceptual support
for the death penalty, much less expressed a willingness to
impose it." Id.
The Prosecution’s Race and Gender Notations on the Cover
of the Questionnaires
After addressing Barnette’s argument based on comparative
juror analysis, the court considered the final issue on its
agenda, Barnette’s contention that the race and gender nota-
tions on the cover sheets of the government’s copies of the
juror questionnaires constituted evidence of purposeful dis-
crimination. Id. at *19-20. This claim had not been previously
considered by the court and in fact relied on evidence and
arguments presented at the September 21, 2009 hearing. See
id. at *9.
Barnette urged the court to find that there was no constitu-
tionally permissible reason for the government’s race and
gender notations on the cover sheets of the questionnaires
because the jurors had already provided identical information
in the body of the questionnaires. Id. at *20. The prosecutors
had explained at the hearing that the notations on the cover
sheets of the questionnaires were made either by them or one
of their interns for identification purposes only, as jury selec-
tion continued long after the conclusion of voir dire, and also
because they anticipated Batson challenges and wanted to be
able to quickly identify jurors if such objections arose. Id.
Barnette responded that noting a juror’s race and gender "is
UNITED STATES v. BARNETTE 15
not a plausible, race-neutral basis for a ‘quick recall’ of that
person" and cited Miller-El. Id. at *21.
The district court rejected this argument, finding that
Miller-El did not find the practice of noting the race of jurors,
on its own, to show evidence of discriminatory intent. Id.
Rather, the Miller-El Court found the practice problematic
only when viewed alongside the district attorney’s office’s
policy of systematically excluding blacks from juries. Id. The
district court found that here, "[t]he differences between
Miller-El and Barnette’s case are obvious;" namely, in this
case, there was "no evidence that the U.S. Attorney’s office
had a policy to exclude minority jurors." Id.
The court also noted that the same information was
requested on the juror questionnaire, showing that both parties
acknowledged its relevance to the jury selection process. Id.
at *22. In addition, the court noted that because the informa-
tion was contained in the body of the questionnaire, the prose-
cutors’ decision to include the same information on the cover
sheet rather than simply return to the body of the question-
naire on each occasion was "a distinction without a differ-
ence." Id. Instead, the court found that the prosecutors’ use of
the notations on the cover sheets was "understandable," and,
after reviewing the questionnaires in camera, found that the
explanation was plausible and rejected this claim. Id. at *23.
II.
In this part of our opinion in this appeal, we craft a frame-
work for analysis. We first reiterate the basic parameters of a
Batson claim (Part A). We next summarize our understanding
of what effect, if any, the Supreme Court’s Miller-El decision
and its progeny likely have on the review of Batson claims
(Part B). We then examine our precedents as to how
remanded Batson claims have been handled by us in the past,
and we draw useful lessons from those precedents (Part C).
16 UNITED STATES v. BARNETTE
A.
The steps to demonstrate a Batson violation are well-known
and long-settled. Barnette II, 390 F.3d at 794. First, the defen-
dant must establish a prima facie case of discrimination. Id.;
see Johnson v. California, 545 U.S. 162, 168 (2005) ("First,
the defendant must make out a prima facie case ‘by showing
that the totality of the relevant facts gives rise to an inference
of discriminatory purpose.’")(citation omitted)). He does so
by using the following three-part test:
(1) the defendant is a member of a distinct racial
group; (2) the prosecutor has used the challenges to
remove from the venire members of the defendant’s
race; and (3) other facts and circumstances surround-
ing the proceeding raise an inference that the prose-
cutor discriminated in his other selection of the jury
pool.
Barnette II, 390 F.3d at 794 (quoting Keel v. French, 162 F.3d
263, 271 (4th Cir. 1998)).
Once the defendant establishes a prima facie case, the bur-
den shifts to the prosecutor to provide a non-discriminatory
reason for the government’s use of the peremptory challenge.
Id.; Johnson, 545 U.S. at 168 ("Second, once the defendant
has made out a prima facie case, the ‘burden shifts to the State
to explain adequately the racial exclusion’ by offering permis-
sible race-neutral justifications for the strikes.")(citations
omitted). Then, once the prosecution has presented a non-
discriminatory reason, the district court must determine, "in
light of all the evidence with a bearing on it," whether the
defendant has proven intentional discrimination. Miller-El,
545 U.S. at 252; Johnson, 545 U.S. at 168 ("Third, ‘[i]f a
race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved pur-
poseful racial discrimination.’")(alterations in original; cita-
tion omitted)). See also Snyder v. Louisiana, 552 U.S. 472,
UNITED STATES v. BARNETTE 17
478 (2008) ("In Miller-El v. Dretke, the Court made it clear
that in considering a Batson objection, or in reviewing a rul-
ing claimed to be Batson error, all of the circumstances that
bear upon the issue of racial animosity must be consulted.").
The parties here do not dispute the basic structure of a proper
Batson analysis.
B.
Among the most important Supreme Court cases to apply
Batson in the past twenty-five years was Miller-El v. Dretke,
545 U.S. 231 (2005), a federal habeas action challenging a
pre-Batson death sentence imposed by a Texas jury. In Miller-
El’s trial for capital murder in 1985, the prosecution exercised
peremptory strikes against ten qualified black potential jurors.
Id. at 236. Miller-El objected to the strikes on the basis of race
and requested a new jury, but his request was denied. Id.
While Miller-El’s appeal was pending, the Supreme Court
decided Batson, and the Texas Court of Criminal Appeals
remanded the case to the trial court for a determination as to
whether Miller-El could show that the prosecutors’ use of
peremptory strikes in his case was because of race. Id. On
remand, the trial court rejected Miller-El’s claim, finding no
Batson violation because the prosecutors’ race-neutral reasons
for the strikes supported a finding of no purposeful discrimi-
nation. Id. The appellate court affirmed the decision. Id. at
237.
Miller-El then asserted his Batson claim before a federal
habeas court and was again denied relief. Id. After the Fifth
Circuit declined to grant a certificate of appealability, the
Supreme Court granted certiorari and reversed, found that the
denial of a certificate of appealability had been erroneous, and
ordered the Fifth Circuit to hear the appeal on the merits of
the Batson claim. Id. After considering the appeal on the mer-
its, the Fifth Circuit, applying the deferential standard of
review made applicable by the Antiterrorism and Effective
Death Penalty Act of 1996, 28 U.S.C.A. § 2254(d)(1)
18 UNITED STATES v. BARNETTE
("AEDPA"), affirmed the judgment of the lower court deny-
ing relief. Id.
The Supreme Court again granted certiorari and in 2005,
reversed the Fifth Circuit’s merits decision. Id.
Despite its seminal character, Miller-El created no new rule
of constitutional law, as we determined in Golphin v. Branker,
519 F.3d 168, 186 (4th Cir. 2008), cert. denied, 129 S. Ct. 467
(2008). In Golphin, we reasoned as follows:
Contrary to Tilmon’s belief, Miller-El II did not alter Bat-
son claims in any way. Miller-El II itself was a case under
AEDPA, so the Court, simply following clearly established
federal law as AEDPA requires, could not have crafted a new
legal standard. Moreover, subsequent to Miller-El II, the
Court has retained and continued to apply Batson’s three-step
process. See Rice v. Collins, 546 U.S. 333, 338-39, 126 S. Ct.
969, 163 L. Ed.2d 824 (2006) (applying three-step Batson
framework to claim of racial discrimination during jury selec-
tion).
Id. See also Majid v. Portuondo, 428 F.3d 112, 125-30 (2d
Cir. 2005), cert. denied sub nom. Majid v. Smith, 549 U.S.
863 (2006).
That said, there is no doubt that Miller-El had one profound
effect on this circuit’s Batson jurisprudence. Prior to Miller-
El, and indeed in this very case, see 390 F.3d at 796-97, we
adhered to the rule that comparative juror analysis was not a
critical element of a Batson claim. See Barnette II, 390 F.3d
at 796-97 (noting that "Batson is not violated whenever two
veniremen of different races provide the same responses and
one is excluded and the other is not") (quoting Howard v.
Moore, 131 F.3d 399, 408 (4th Cir. 1997) (en banc); Mat-
thews v. Evatt, 105 F.3d 907, 918 (4th Cir. 1997)). However,
in Miller-El, the Supreme Court explicitly rejected this rule,
UNITED STATES v. BARNETTE 19
holding that proper analysis of a Batson claim requires that a
court engage in comparative juror analysis:
More powerful than these bare statistics, however,
are side-by-side comparisons of some black venire
panelists who were struck and white panelists
allowed to serve. If a prosecutor’s proffered reason
for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’ s third
step. Cf. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 147 L. Ed.
2d 105 (2000) (in employment discrimination cases,
"[p]roof that the defendant’s explanation is unworthy
of credence is simply one form of circumstantial evi-
dence that is probative of intentional discrimination,
and it may be quite persuasive").
545 U.S. at 241 (emphasis added). The Court went on to con-
clude that the struck black potential jurors bore strong similar-
ities as well as some differences to nonblack jurors who were
permitted to serve, and that in light of the strong similarities,
the prosecutors’ explanations for the strikes could not be
accepted. Id. at 247. The Court rejected the idea that the trial
or appellate court could develop alternative reasons to justify
the strikes, finding that a Batson challenge must stand on the
prosecution’s stated reasons. Id. at 252 ("If the stated reason
does not hold up, its pretextual significance does not fade
because a trial judge, or an appeals court, can imagine a rea-
son that might not have been shown up as false."). Conse-
quently, it is clear that upon the remand in this case, the
district court was required to (and did in fact) engage in a
carefully calibrated comparative juror analysis. See Barnette,
2010 WL 2085312 at *16-20.
C.
Procedurally, we have trod the present terrain before. That
is to say, when the Supreme Court decided Batson v. Ken-
20 UNITED STATES v. BARNETTE
tucky, 476 U.S. 79 (1986), we had occasion to remand to the
district court two cases that had been pending on direct review
before us, United States v. Garrison, 849 F.2d 103 (4th Cir.
1988), cert. denied, 488 U.S. 996 (1988), and United States
v. Tindle, 860 F.2d 125 (4th Cir. 1988), cert. denied, 490 U.S.
1114 (1989), for further consideration in light of the Supreme
Court’s Batson decision. See 849 F.2d at 105; 860 F.2d at
127. In light of our blanket remand to the district court in the
case at bar, those cases provided the template for the manner
in which the district court proceeded here.
In Garrison, upon the remand, the district court conducted
a hearing, received affidavits, and heard argument. 849 F.2d
at 105. In addition, the district court directed the government
to submit the notes the prosecutors made during voir dire for
ex parte inspection by the court. Id. Garrison contended that
the court’s decision to examine the notes ex parte and its
refusal to permit his counsel to view them was error. Garrison
also contended that by its refusal to permit direct and cross-
examination of the lawyers, coupled with the court’s ex parte
examination of the prosecutors’ notes, the district court effec-
tively deprived him of a full adversary hearing. Id. In our con-
sideration of Garrison’s contentions, we found no prejudicial
error in the manner in which the district court had proceeded,
concluding that Garrison "misconceive[d] the Batson
inquiry":
Although a district court could conduct [a full adver-
sarial, evidentiary] hearing if it believed circum-
stances warranted it, Batson does not require this
intrusion on the trial proceedings. When, as here, the
defendant has made out a prima facie case of a dis-
crimination, Batson requires the prosecutor to "artic-
ulate a neutral explanation related to the particular
case . . . ." 476 U.S. at 98, 106 S.Ct. at 1723. The
explanation given by the prosecutor satisfied Bat-
son’s requirement for neutrality. A prosecutor is jus-
tified in striking jurors that he or she perceives to be
UNITED STATES v. BARNETTE 21
inattentive or uninterested. If the trial court believes
the prosecutor’s explanation, a reviewing court ordi-
narily should give this credibility finding "great def-
erence." 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n.
21.
Id. at 106.
In Garrison, we specifically found no prejudicial error in
the district court’s decision to conduct an ex parte examina-
tion of the prosecutor’s notes. Id. In doing so, we recognized
that "the important rights guaranteed by Batson deserve the
full protection of the adversarial process except where com-
pelling reasons requiring secrecy are shown." Id. (citing
United States v. Thompson, 827 F.2d 1254, 1258-59 (9th Cir.
1987)). We found that while ex parte examination of evidence
by the district court may be necessary on occasion, "the gov-
ernment must make a substantial showing of necessity to jus-
tify excluding the defendant from this important stage of the
prosecution." Id. (citing Thompson, 827 F.2d at 1258). We
then found that in the instance at hand, the ex parte examina-
tion of the prosecutor’s notes did not warrant reversal or
remand for a new hearing, as the notes "neither contradicted
nor added anything of substance to the government’s explana-
tions offered and debated at length in open court." Id. at 107.
In fact, we noted that the district court based its decision "on
factors of which Garrison was fully aware and which he had
been given ample opportunity to rebut." Id. Importantly, in
reaching this decision, we noted that:
The circumstances of this case are unlikely to be
repeated in current trials. Because an objection based
on Batson must be raised immediately, rarely will
the court need the prosecutor’s notes to see if they
cast any light on the prosecutor’s recollection of the
reasons for peremptory strikes. But if the court
decides to consider any notes, other documents, or
statements pertaining to the prosecutor’s explana-
22 UNITED STATES v. BARNETTE
tion, we, like the Seventh Circuit, counsel that a trial
court should ordinarily conduct adversary, rather
than ex parte, proceedings.
Id.
Ultimately, we affirmed the district court’s order on the
merits of the Batson claim. 849 F.2d at 106.
Tindle was argued before a different three-judge panel of
the court on the same day as Garrison and involved review
of trial proceedings occurring before the same district judge.
In Tindle, the district court’s after-the-fact Batson hearing had
followed substantially the same procedures as had been fol-
lowed in Garrison. We again found no error in the district
court’s refusal to conduct a full-blown adversarial evidentiary
hearing, noting that "Batson does not require a trial within a
trial, and purposely left to lower courts the method of con-
ducting inquiries into Batson-type claims." Id. at 130-31. Cit-
ing Garrison, we then concluded that the district court’s ex
parte examination of the prosecutor’s notes did not warrant
reversal:
In the Tindle case the prosecutors explained most of
their reasons for exercising their peremptory chal-
lenges in open court, and we find that the district
judge did not err in allowing some of the reasons to
be supported by the materials submitted in camera.
Compelling reasons for the use of this procedure
were clearly present in this case.
Id. at 131. Again, we affirmed the district court’s denial of
relief under Batson.
Notably, in Tindle, Judge Murnaghan filed a partial dissent.
He concluded that application of the teaching of Garrison
(which had been decided in advance of Tindle) and Batson
UNITED STATES v. BARNETTE 23
dictated that the district court had erred both procedurally and
substantively.
After briefly stating that he agreed that the district court
acted within its discretion in denying Tindle an evidentiary
hearing, Judge Murnaghan considered the district court’s
decision to review the prosecutor’s notes in an ex parte, in
camera submission. Id. at 132-33. He concluded that the dis-
trict court acted improperly in denying Tindle access to the
notes because the government failed to make a substantial
showing of necessity, as we stated was required in Garrison.
Id. at 133. He stated:
Where ex parte, in camera submission is indeed nec-
essary for some reason, obviously the excluded party
must rely on the judge to give full and fair consider-
ation to the evidence and to relevant legal and fac-
tual issues. But in our adversarial system, we
ordinarily go to great lengths to ensure that both
sides have an equal opportunity to argue all points
and all evidence before a judge reaches his decision,
and to ensure that such proceedings are open to the
public. I see no reason to stray from the usual princi-
ples in the present contest. Indeed, I would argue
that openness and candor are even more important in
a Batson-type controversy than in most other situa-
tions. Anyone denied access to purportedly exonerat-
ing materials cannot help suspecting the worst—the
best intentions of government counsel and the dis-
trict court notwithstanding—it is simply human
nature to be suspicious when relevant data is with-
held by a decisionmaker.
Id. He then specifically noted the district court’s conclusion
that examination of the prosecutor’s notes demonstrated that
the government’s reasons at the second step of the Batson
inquiry were not pretextual. Id. In such circumstances, he
argued, release of the information "would be reassuring to any
24 UNITED STATES v. BARNETTE
who suspected improper conduct by the prosecution and
would foster public confidence in the system." Id.
On the merits, Judge Murnaghan disagreed with the majori-
ty’s conclusion that the district court properly dismissed
Tindle’s Batson claim based on the reasonableness of the
prosecution’s reasons given at step two of the analysis. Id. at
134. Specifically, Judge Murnaghan argued that the district
court’s finding was clearly erroneous as to the reasons pro-
vided for two of the challenges, those made to venirepersons
Granderson and Johnson. See id. Finding the government’s
reasons "lame," Judge Murnaghan concluded that:
Batson compels me to reach the conclusion that the
government has failed to carry its burden of rebut-
ting Tindle’s prima facie case with neutral and non-
pretextual explanations for the peremptory chal-
lenges of potential jurors Granderson and Johnson. If
the explanations offered for those strikes are deemed
adequate, the burden explicitly assigned to the gov-
ernment by the Supreme Court in Batson becomes
totally illusory.
Id.
Despite the cogency of the dissent in Tindle, relied on
heavily here by Barnette, we are of course guided in our
review in this case by the panel majority in that case and by
Garrison. What can be said with unquestioned assurance is
that in the more than twenty years of experience with the
jurisprudence of Batson since our decisions in Garrison and
Tindle, Batson hearings have invariably been contemporane-
ous, adversarial proceedings, typically conducted in the midst
of, or immediately at the conclusion of, the district court’s
voir dire process. And indeed, that is true in this case, as our
earlier opinions reflect. Looking back over the decades of the
lower courts’ experience, we have confidence that the district
courts in this circuit have adhered to their obligations to scru-
UNITED STATES v. BARNETTE 25
tinize the use of preemptory strikes in the faithful perfor-
mance of their duty to combat invidious discrimination in jury
selection, while at the same time exercising a sensitive discre-
tion in their implementation of the necessary procedural inci-
dents of that task.
III.
With the above principles in mind, we proceed to consider
Barnette’s assignments of error. We have distilled the issues
raised by Barnette into three essential inquiries.
First: whether the district court erred or otherwise abused
its discretion in the manner in which it conducted the renewed
Batson hearing after our remand so as to deprive Barnette of
fundamental fairness, and specifically by: (1) reviewing the
government’s annotated copies of juror questionnaires in
camera and refusing to order their disclosure to Barnette; (2)
refusing to provide clean copies of the questionnaires to Bar-
nette; (3) refusing to allow cross-examination of the trial pros-
ecutors; and (4) refusing to provide the prosecutors’ "post-it"
notes accompanying the jury questionnaires to Barnette.
Second: whether the district court clearly erred in finding
and concluding that Barnette had failed to demonstrate that
the prosecution’s facially neutral explanations for the govern-
ment’s strikes of one or more African-American jurors failed
to show racial animus violative of Batson.
Third: whether the district court clearly erred in finding and
concluding that Barnette had failed to establish his Batson
claim through comparative juror analysis.
As to each of Barnette’s claims, we hold that the district
court committed neither prejudicial error nor (as applicable)
an abuse of its discretion which prejudiced Barnette. Accord-
ingly, we affirm the judgment.
26 UNITED STATES v. BARNETTE
A.
Barnette argues that the district court erred in the manner
in which it conducted the renewed Batson hearing by review-
ing the government’s annotated copies of juror questionnaires
in camera and refusing to order their disclosure to him, refus-
ing to provide him with clean copies of the questionnaires,
refusing to allow him to cross-examine the prosecutors, and
refusing to provide him with the prosecutors’ "post-it" notes
accompanying the jury questionnaires. To the extent that Bar-
nette sought "discovery," we review the trial court’s denial of
discovery requests and its limitation of the presentation of
evidence in the context of a Batson claim for abuse of discre-
tion. Tindle, 860 F.2d at 130-31.
Applying these standards, we conclude that reversal of the
district court is not warranted.
1.
District courts routinely use written questionnaires in the
voir dire process in high profile cases and certainly when the
government seeks the death penalty. See United States v. Qui-
nones, 511 F.3d 289, 299 (2d Cir. 2007); United States v.
McVeigh, 153 F.3d 1166, 1181 (10th Cir. 1998) (noting that
352 prospective jurors were summoned prior to voir dire to
fill out an extensive questionnaire in the capital trial of Timo-
thy McVeigh). Here, about a month prior to jury selection,
over 400 potential venirepersons filled out a 28 page ques-
tionnaire, comprised of questions submitted by both the gov-
ernment and Barnette. United States v. Barnette, No. 3:97CR-
23, 2010 WL 2085312, *9 (W.D.N.C. May 20, 2010). This
questionnaire asked 129 questions ranging from each juror’s
personal information, including education, employment status
and history, marital status, and health background, to their
specific beliefs and opinions regarding the death penalty. Id.
Both sides received copies of the completed questionnaires
prior to the start of jury selection. Id.
UNITED STATES v. BARNETTE 27
Upon remand, the district court ordered the government to
submit unredacted copies of all juror questionnaires in its pos-
session for in camera review. Id. at *6. In complying with the
district court’s order, the government also provided copies of
handwritten notes taken by the prosecutors during voir dire.
Id. at *6. Barnette vigorously objected to the court’s refusal
to permit him to examine the government’s unredacted jury
questionnaires as well as the copies of the handwritten notes
made during the jury selection process.
Careful analysis of Garrison and Tindle lead us to conclude
that the district court’s refusal to provide Barnette with copies
of the annotated questionnaires and notes does not warrant
reversal. In Garrison, we determined that a trial court should
ordinarily conduct adversarial, rather than ex parte, Batson
proceedings. 849 F.2d at 107. We determined that "the impor-
tant rights guaranteed by Batson deserve the full protection of
the adversarial process except where compelling reasons
requiring secrecy are shown." Id. (citing United States v.
Thompson, 827 F.2d 1254, 1258-59 (9th Cir. 1987). Thus, we
said that "the government must make a substantial showing of
necessity to justify excluding the defendant from this impor-
tant stage of the prosecution." Id. See also Tindle, 860 F.2d
at 131-32. We reiterate these views today and repeat that the
district court should rarely if ever resort to in camera, ex parte
examination of evidence or conduct such proceedings.
In Garrison, we found that the case presented unique cir-
cumstances in the early days of the post-Batson regime that
were unlikely to be repeated, and in such a situation, the ex
parte examination of the notes was not an abuse of discretion.
Id. at 107. We noted that the ex parte examination of the pros-
ecutor’s notes did not warrant reversal or remand for a new
hearing where they "neither contradicted nor added anything
of substance to the government’s explanations offered and
debated at length in open court." Id. Rather, the district court
"based its decision on factors of which Garrison was fully
28 UNITED STATES v. BARNETTE
aware and which he had been given ample opportunity to
rebut." Id.
In Tindle, we reached a similar conclusion, and we held
that compelling reasons existed to justify the district court’s
decision to permit some materials to be submitted in camera
where the prosecutors explained their reasons for exercising
their peremptory challenges in open court. 860 F.2d at 131-
32.
Similarly, we find that here, as in Tindle and Garrison, we
are presented with unique circumstances specific to the
unusual procedural posture of the case, and that such circum-
stances are highly unlikely to be repeated. Furthermore, as in
Tindle and Garrison, the trial court conducted a thorough
review of the prosecution’s hand-written notes on the juror
questionnaires in camera before concluding that a substantial
number contained opinion work product in the form of jury
selection strategy and mental impressions of jurors, some of
which was unflattering. The court also found that the notes
displayed no discriminatory intent on the part of the prosecu-
tors. In light of these unique circumstances, we will not dis-
turb the court’s refusal to provide Barnette with the "post-it"
notes or annotated copies of the juror questionnaires.
Important to our conclusion here is the plain fact that
except for the comparative juror analysis discussed infra, the
remand proceedings before the district court amounted essen-
tially to a procedural "do-over" from the 2002 sentencing
hearing, in which the parties and the district court revisited
ground already covered during Barnette’s vigorous Batson
challenge at the time of the 2002 sentencing hearing. Barnette
did not request permission from the district court to review
the prosecutors’ questionnaires or notes at that time and for
good reason: the challenges mounted by Barnette were fully
aired in open court and the prosecutors were duty bound to
UNITED STATES v. BARNETTE 29
offer their explanations to the court and to the defense in that
manner. They did so.*
*We respect our good colleague’s view that the district court erred in
conducting an in camera examination of the racial notations on the gov-
ernment’s juror questionnaires, as inconsistent with the "compelling rea-
sons" standard announced in United States v. Garrison, 849 F.2d 103 (4th
Cir. 1988), and United States v. Tindle, 860 F.2d 125 (4th Cir. 1988). As
we explain in text, however, we conclude that Barnette was not entitled
to examine those notations upon the remand of the case because the rele-
vant documents contained opinion work product of the prosecutors, a fact
we relied on in Garrison that remained unaltered by Miller-El.
Fundamentally, Barnette was not entitled to the information contained
on the disputed documents, not only on the basis of privilege but also
because the reasons for the prosecutors’ strikes were fully aired in open
court and on the record during voir dire. As we indicate in text, the reason-
ing of Garrison and Tindle is highly context-specific and should be read
in light of the fact that those cases arose in the wake of Batson itself,
which required courts and lawyers to "reconstruct" that which never really
happened in the first place. In other words, Batson changed the law and
criminal practice quite dramatically by empowering defendants in criminal
cases to require prosecutors to justify on an ad hoc basis, in every criminal
case, the prosecutor’s strike of even a single venireperson of the same race
as the defendant. Courts and lawyers simply were not doing that under the
regime of Swain, and the "reconstruction" tasks Batson imposed in cases
pending on direct appeal called for genuine innovation. Garrison and
Tindle are exemplars of that innovative spirit. It seems to us they were
quite right for their time and circumstances and, as we indicate in section
III.A.2. of this opinion, they retain utility today.
Nevertheless, nearly twenty years post-Batson (when the 2002 sentenc-
ing hearing took place in this case), the law had grown reasonably settled
and we are aware of no federal post-Batson trial in which a federal appeals
court ordered that a prosecutor’s notes be turned over to the defense.
Indeed, in this case, not only had the parties participated in 2002 in a fully-
adversarial Batson hearing, but as a result of the vacatur of the original
death sentence, the parties had actually been through two Batson hearings.
This procedural history rather dramatically distinguishes the procedural
posture of this case from the procedural posture of Garrison and Tindle.
For all the reasons set forth here and in text, we are unable to conclude
that the district court erred in conducting its in camera examination of the
prosecution’s work product.
30 UNITED STATES v. BARNETTE
The circumstances in this case were quite unlike those pre-
sented in Garrison and Tindle. That is, the Supreme Court’s
1986 intervening decision in Batson had introduced a wholly-
new legal regime, insofar as it rejected the nearly impossible
evidentiary burden imposed by Swain v. Alabama, 380 U.S.
202 (1965), to show a Sixth Amendment violation in the pros-
ecution’s exclusion of racial minorities from juries, and
replaced it, in overruling Swain, with the equal protection
analysis employed by Batson itself. See Batson, 576 U.S. at
100 n.25 ("To the extent that anything in Swain v. Alabama,
380 U.S. 202, 85 S. Ct. 824, 13 L.Ed.2d 759 (1965), is con-
trary to the principles we articulate today, that decision is
overruled."). In short, the relatively limited evolution of doc-
trine heralded by Miller-El, see supra p. 17 (discussing com-
parative juror analysis) simply does not compare with the
revolution in constitutional doctrine that burst on the scene
with Batson. In sum, on the record here, Barnette was no
more entitled to examine the work product of his trial prose-
cutors during the hearing on remand than he would have been
(had he asked to do so) at the initial Batson hearing in 2002.
The district court did not abuse its discretion in so concluding.
We also reject Barnette’s contention that the prosecutors’
notations of race and gender on the cover sheets of juror ques-
tionnaires demonstrates an obsession with race. The district
court rejected this claim, finding that the prosecutors’ race
neutral reasons for writing the potential jurors’ race and gen-
der on the cover sheets were not pretextual, but rather, that the
notes in fact would have provided the prosecutors with quick
access to information about each juror and also helped them
deal with any potential Batson challenges.
We see no reason to reject the conclusion of the district
court that the prosecutors’ race neutral reasons for the race
and gender notations on the cover sheets were not a pretext
for discrimination. Barnette has failed to present any evidence
suggesting that this practice was anything more than a way for
the prosecutors to identify jurors. None of the cases he cites
UNITED STATES v. BARNETTE 31
are persuasive of his contention when viewed in light of the
specifics of this case. See Miller-El, 545 U.S. at 240-266
(holding that the prosecutor’s race neutral reasons for exercis-
ing peremptory strikes were pretextual where the prosecutors
not only marked jurors’ races on juror cards, but also struck
ten black jurors, at least two of whom were struck for illegiti-
mate reasons; shuffled the jury in a way that signaled discrim-
ination; posed different voir dire questions to black and
nonblack panel members; and had a history of following a
specific policy of systematically excluding blacks from
juries); Hardcastle v. Horn, 332 Fed. Appx. 764, 766 (3rd Cir.
2009) (affirming finding of Batson violation where the prose-
cutor used twelve of fourteen peremptory strikes on African
Americans; cited pre-Batson law for the propositions that race
may be a proper consideration in exercising peremptory chal-
lenges in certain cases and that the exercise of peremptory
strikes results in unconstitutional discrimination only when it
is systematic; and coded the race of the only black juror on
the panel, as well as the race of each of the venire persons
struck by the defense, but did not note the race of the black
venire members she struck); Green v. Lamarque, 532 F.3d
1028, 1033 (9th Cir. 2009) (finding Batson violation based on
comparative juror analysis, as well as noting that the prosecu-
tor used peremptory challenges to eliminate all six African-
Americans from the seated jury pool and also noted the race
of each venire member he struck from the jury pool).
2.
In addition to requesting copies of the juror questionnaires
that contained the prosecutors’ handwritten notes, Barnette
also requested that the district court furnish his counsel with
clean copies of the completed juror questionnaires. Counsel
for Barnette did not have their copies of the juror question-
naires when the district court conducted the proceedings on
remand because defense counsel (unlike the prosecutors) had
returned them to the Clerk of Court at the conclusion of jury
selection as instructions from the district court had ordered.
32 UNITED STATES v. BARNETTE
The district court indicated upon remand that it had both the
court’s copies of the questionnaires and it received the gov-
ernment’s copies, but it appears that Barnette’s copies could
not be located by the Clerk.
The record does not disclose whether clean copies of the
questionnaires were otherwise available, but in any event, the
district court refused Barnette’s request that he be provided
with clean copies (including redacted copies of the govern-
ment’s copies) of the questionnaires:
Barnette has pressed the argument that he has been
unfairly disadvantaged on remand because he does
not have access to copies of the juror questionnaires.
However, setting aside the issue of any notes made
by prosecutors on their copies of the questionnaires,
the only purpose that would be served by granting
Barnette access to the juror questionnaires would be
to allow him to raise pretext arguments that he could
have made at his Batson hearing but did not. Indeed,
the only non-work product related basis Barnette
cited for wanting copies of the questionnaires was so
that he could look for evidence that the Government
had used disparate questioning of jurors based on the
jurors’ race (Doc. 637 12-13), something that he
could have raised at his Batson hearing.
Barnette, 2010 WL 2085312, *9.
We hold that the district court’s refusal to provide the
defense with clean copies of the juror questionnaires was
clearly an abuse of its considerable discretion in managing the
remand proceedings. We are unable to find that the govern-
ment has made "a substantial showing of necessity to justify
excluding the defendant from this important stage" of the pro-
ceedings. See Garrison, 849 F.2d at 106. Indeed, our prece-
dent dictates that Barnette should have been provided clean
copies of the questionnaires upon remand and the district
UNITED STATES v. BARNETTE 33
court’s stated reason for refusing to do so, i.e., because Bar-
nette might have pointed to "disparate questioning," which
was "something that he could have raised at his [original] Bat-
son hearing," does not withstand close scrutiny. This is
because "disparate questioning" is part and parcel of a com-
parative juror analysis, which the district court correctly iden-
tified as the gravamen of the Supreme Court’s holding in
Miller-El and the focus of our further remand of the case to
the district court after the Supreme Court vacated our judg-
ment in Barnette II. Moreover, owing to the rejection of com-
parative juror analysis in this circuit before Miller-El, see
supra p. 17, it was incumbent on the district court to ensure
that Barnette enjoyed the full panoply of tools available with
which to fortify any showing he could arising out of that
approach to Batson challenges, an approach that was not gen-
uinely available to him before Miller-El under the law of the
circuit.
We find, nevertheless, that the district court’s abuse of dis-
cretion in refusing to provide clean copies of the juror ques-
tionnaires to Barnette was harmless. See Federal Rule of
Criminal Procedure 52(a)("Any error, defect, irregularity, or
variance that does not affect substantial rights must be disre-
garded."). We base this conclusion on four reasons. First, we
recognize that Barnette has had copies of the jury question-
naires before, and in fact had them when preparing this same
issue before the district court prior to the Supreme Court’s
remand for reconsideration in light of Miller-El. Thus, this is
not a case where Barnette has been denied the opportunity to
review and examine these documents thoroughly. Second,
Barnette’s prior examination of these documents led him to
raise the very issue on which the Supreme Court’s remand
was based, comparative juror analysis. Because Barnette
raised this issue in his Batson challenge prior to the remand,
it is now preserved in its entirety for our review in the current
posture of the case. Third, while we discourage in camera
review of documents where the government fails to make a
substantial showing of necessity, we have reviewed the ques-
34 UNITED STATES v. BARNETTE
tionnaires in this case, and we are not persuaded that there is
any reasonable likelihood that the outcome of the proceedings
below might have been different if Barnette had received
clean copies of the questionnaires. Finally, and perhaps most
importantly, Barnette has not suggested that he would have
proceeded differently had he possessed the questionnaires, or
how their possession would have altered his approach in the
proceedings below. Consequently, we find that the district
court’s error in withholding clean copies of the questionnaire
from Barnette is harmless, and we see no reason to remand
the case for further proceedings. Cf. Delaware v. Van Arsdall,
475 U.S. 673, 681 (1986) ("The harmless-error doctrine rec-
ognizes the principle that the central purpose of a criminal
trial is to decide the factual question of the defendant’s guilt
or innocence, United States v. Nobles, 422 U.S. 225, 230, 95
S. Ct. 2160, 2166, 45 L.Ed.2d 141 (1975), and promotes pub-
lic respect for the criminal process by focusing on the under-
lying fairness of the trial rather than on the virtually inevitable
presence of immaterial error.").
3.
In both Garrison and Tindle, we rejected the defendants’
assignments of error pertaining to the district court’s ex parte
inspection of the prosecutors’ notes and the lack of a full
adversary hearing. See Garrison, 849 F.2d at 105; Tindle, 860
F.2d at 130-32. In Garrison, we rejected the claim that the
defendant was entitled to an evidentiary hearing in which
prosecutors and defense attorneys would be examined and
cross-examined, finding that Batson did not require such a
hearing. Id. at 106. Rather, as we restated in Tindle, the deci-
sion whether to conduct an evidentiary hearing in such cir-
cumstances is "within the sound discretion of the district
court." 860 F.2d at 130. In the present case, we are persuaded
that the district court did not abuse its discretion in denying
Barnette’s request for a full evidentiary hearing. The trial
judge at the hearing was the same judge who presided over
Barnette’s sentencing. He had conducted voir dire and jury
UNITED STATES v. BARNETTE 35
selection, and reviewed the juror questionnaires, the voir dire
transcript, and the prosecutors’ voir dire notes before conclud-
ing that he would conduct a limited hearing to allow the gov-
ernment to provide an explanation for the race and gender
notations on the cover sheets of the juror questionnaires.
Given the district court’s familiarity with the case and our
holdings in Garrison and Tindle, we discern no abuse of dis-
cretion in its decision.
B.
We next consider the district court’s rejection of Barnette’s
Batson claim on the merits. Although the district court con-
cluded that it would not reconsider issues it had resolved prior
to remand that were not altered by Miller-El, see Barnette,
2010 WL 2085312 at *7, the court nevertheless went on to
again reject Barnette’s assertion that the government’s race
neutral reasons were a pretext for discrimination. Id. at *12.
We also have considered this issue before, and we found that
the district court did not err in ruling that the government’s
peremptory challenges were not exercised for racially dis-
criminatory reasons. See Barnette II, 390 F.3d at 794-96. To
the extent that the law remains unchanged in this area since
our prior decision, we will rely on the same reasoning that
guided us to that conclusion as we reconsider the district
court’s resolution of Barnette’s claim. We again review for
clear error, giving "great deference" to the district court’s rul-
ing. Id. at 794-95 (citing United States v. Grimmond, 137 F.3d
823, 833 (4th Cir. 1998); Jones v. Plaster, 57 F.3d 417, 421
(4th Cir. 1995)).
We first note, however, one important clarification of the
law to emerge since our last opinion in Barnette II. Within the
last year, in Thaler v. Haynes, the Supreme Court directly
rejected the Fifth Circuit’s conclusion that a judge "must
reject a demeanor-based explanation for a peremptory chal-
lenge unless the judge personally observed and recalls the
36 UNITED STATES v. BARNETTE
aspect of the prospective juror’s demeanor on which the
explanation is based." 130 S. Ct. 1171 (2010)(per curiam).
The Fifth Circuit had concluded that respondent Haynes
was entitled to a new trial under Batson and Snyder because
the trial judge who ruled on the peremptory challenges was
not present in the courtroom when the attorneys questioned
the prospective jurors. Id. at 1172 (citing Haynes v. Quarter-
man, 561 F.3d 535, 541 (5th Cir. 2009); Haynes v. Quarter-
man, 526 F.3d 189, 202 (5th Cir. 2008)). Applying Snyder
and Batson, the circuit court determined that it should find
clear error "when the record reflects that the trial court was
not able to verify the aspect of the juror’s demeanor upon
which the prosecutor based his or her peremptory challenge."
Id. at 1173 (quoting Haynes, 526 F.3d at 199). Consequently,
the court held that it could not properly adjudicate the Batson
challenge based on demeanor because it would have to be "re-
lying solely on a paper record and would thereby contravene
Batson and its clearly-established ‘factual inquiry’ require-
ment." Id. (quoting Haynes, 561 F.3d at 541).
In Thaler, the Supreme Court explicitly rejected the Fifth
Circuit’s interpretation of Batson and Snyder, concluding that
"neither [Batson nor Snyder] held that a demeanor-based
explanation for a peremptory challenge must be rejected
unless the judge personally observed and recalls the relevant
aspect of the prospective juror’s demeanor." Id. at 1174. The
Court therefore reversed the decision of the lower court and
remanded the case for proceedings consistent with its opinion.
Id. at 1175.
Here, the district court accepted as reasonable the govern-
ment’s race neutral reasons for using peremptory strikes
against prospective jurors Bryson and R. Sanders. The gov-
ernment had explained that Bryson was struck because she
noted that her personal view of the death penalty waivered,
that she was not sure if she favored abolishing the death pen-
alty, and that she was uncertain as to how she felt about the
UNITED STATES v. BARNETTE 37
death penalty; and that prospective juror R. Sanders was
struck because of her uncertainty about whether she could be
fair in light of her belief that the death penalty was applied
based upon socioeconomic, race, and age factors. Id. We find
no clear error in the district court’s decision to uphold the
government’s peremptory challenges to these two jurors. As
we noted in Barnette II, "[u]nder Brown v. Dixon, 891 F.2d
490, 497-98, esp. n.15, (4th Cir. 1989), the government may
use a peremptory challenge to strike a juror who has reserva-
tions about capital punishment [. . . even where] the govern-
ment’s reason does not support a challenge for cause [. . .]."
390 F.3d at 795.
The district court next found reasonable the plausibility of
the government’s race neutral reasons for striking prospective
juror Moore. The government had explained that Moore was
struck because she hesitated when asked whether she could
put the government on an equal playing field with the defen-
dant, and also based on her religious beliefs. While the district
court stated that it could not recall Moore’s demeanor at the
time of voir dire, it noted that it had cited her demeanor as a
reason for upholding the government’s use of a peremptory
challenge at the time of jury selection. In light of Thaler, we
are constrained to the view that the district court did not err
in relying on its notations regarding Moore’s demeanor at jury
selection. See 130 S. Ct. at 1174. Furthermore, her opposition
to the death penalty based on her religious beliefs is a permis-
sible race neutral reason under Brown. 891 F.2d at 497-98.
The district court next readopted its conclusion that the
government properly exercised a peremptory strike against
prospective juror K. Sanders. The government explained that
it struck K. Sanders because she hesitated before answering
questions as to whether she would consider the death penalty
and because she was "somewhat uncommunicative" with the
government. In light of Thaler, we find no error in the district
court’s decision. See also United States v. Grandison, 885
F.2d 143, 149 (4th Cir. 1989) ("Numerous valid factors may
38 UNITED STATES v. BARNETTE
influence a prosecutor to strike a particular potential juror,
including current and past employment, general appearance
and demeanor, previous jury service, and the absence or pres-
ence of apparent prejudice.") (quoting United States v. Lane,
866 F.2d 103, 106 (4th Cir. 1989)).
Finally, the district court reconfirmed its conclusion that
the government’s race neutral reasons for striking prospective
juror Blakeney were plausible. The government explained that
it struck Blakeney because "he was hesitant in his answers
during voir dire," that "his views on the death penalty were
not very strong," and that "he stated during voir dire that he
did not want to sentence anyone to death." We again find no
clear error in the district court’s decision. See Thaler, 130 S.
Ct. at 1174; Brown, 891 F.2d at 497-98.
C.
We likewise find no error of fact or law or abuse of discre-
tion in the district court’s rejection of Barnette’s claim based
on comparative juror analysis. Barnette contends that the
prosecution used peremptory strikes to excuse five jurors
based on responses that were fundamentally the same as those
provided by two white jurors who were permitted to serve on
the jury. We rejected this claim in Barnette II, finding that
"Batson is not violated whenever two veniremen of different
races provide the same responses and one is excluded and the
other is not." Id. at 796 (quoting Matthews v. Evatt, 105 F.3d
907, 918 (4th Cir. 1997)). Since Miller-El, however, we are
bound to consider Barnette’s comparative juror analysis claim
on the merits. See 545 U.S. at 241 ("If a prosecutor’s prof-
fered reason for striking a black panelist applies just as well
to an otherwise-similar nonblack who is permitted to serve,
that is evidence tending to prove purposeful discrimination to
be considered at Batson’s third step."). In doing so, we deter-
mine that the district court did not err in denying Barnette’s
claim.
UNITED STATES v. BARNETTE 39
Barnette first contends that juror Bryson was improperly
struck based on comparative analysis. Bryson is an African-
American female. Barnette argues that white jurors Edwards
and Stanford were similarly situated to Bryson but permitted
to serve on the jury. The prosecution explained it struck Bry-
son because her personal view on the death penalty waivered,
she was not sure if she favored abolishing the death penalty,
and she was unsure about how she felt about the death pen-
alty.
The district court found that Edwards displayed nowhere
near the level of hesitation regarding the death penalty that
Bryson displayed, noting that when asked whether they
favored abolishing the death penalty, Bryson answered "Not
sure," while Edwards answered "Probably not." J.A. 299,
S.J.A. 206, 366. Edwards also said that she favored the death
penalty "somewhat strongly," while Bryson declined to
answer that question at all. J.A. 299, S.J.A. 207, 367. While
Bryson described her attitude towards the death penalty as
"uncertain," Edwards replied that she believed that once
imposed, the death penalty should be enforced "more
promptly." J.A. 299, S.J.A. 207, 376. Finally, while Bryson
said her view on the death penalty waivered, Edwards
responded that she believed the penalty "should be carried out
when the crime warrants it." J.A. 300, S.J.A. 205, 365-66. We
find no clear error in the district court’s finding that Edwards
was not similarly situated to Bryson.
The district court noted that Stanford’s responses on her
questionnaire were more similar to Bryson’s, but found that
Stanford’s responses during voir dire distinguished her from
Bryson. When asked her opinion on the death penalty, Stan-
ford said that she thought it was "probably warranted" in "cer-
tain circumstances." J.A. 300, S.J.A. 112. When asked the
same question, Bryson said, "I can’t really say. . .I can’t say
I’m really for the death penalty or totally against it. I really
haven’t formed any serious hard core judgment on that." J.A.
300, S.J.A 81. When pushed, Bryson responded that some-
40 UNITED STATES v. BARNETTE
times she supported the death penalty but sometimes she was
against it, and that she was "really unsure" of her feelings.
J.A. 300, S.J.A. 90-91. We find no clear error in the district
court’s determination that these responses distinguish Stan-
ford from Bryson.
The second venireperson Barnette claims is similarly situ-
ated to Edwards and Stanford is R. Sanders, an African Amer-
ican woman. The prosecution explained it struck R. Sanders
because she expressed uncertainty as to whether she could
fairly apply the death penalty in light of her belief that it was
unfairly based upon socioeconomic, race, and age factors. R.
Sanders wrote on her questionnaire that "the death penalty
was applied to certain cases almost automatically" and that
she had "strong feelings against the ‘fairness’ of the death
penalty as applied on [an] individual case basis." J.A. 287,
S.J.A. 232. We find no clear error in the district court’s deter-
mination that these beliefs adequately distinguish R. Sanders
from both Edwards and Stanford.
The third prospective juror Barnette challenges is Moore,
an African-American female. The prosecution explained that
it struck Moore because she hesitated a long time in response
to the question as to whether she could put the Government
on an equal playing field with the defendant. The prosecutor
also noted concern over whether her religious beliefs might
influence her ability to impose a sentence of death. The dis-
trict court noted that Moore was struck largely on her demea-
nor, namely her hesitation, and found that it had no reason to
recall the demeanor of either Stanford or Edwards, since Bar-
nette did not raise this claim at the time of the voir dire pro-
ceeding, and the record is silent on the subject. Considering
this absence of evidence, and in light of Thaler, we are not
persuaded that the district erred in denying the claim as to
potential juror Moore. See Thaler, 130 S. Ct. at 1174.
The fourth prospective juror Barnette challenges is K.
Sanders, another African American female. The prosecution
UNITED STATES v. BARNETTE 41
explained that it struck K. Sanders because of her hesitancy
regarding her ability to impose the death penalty, as well as
her long hesitations before answering questions on her opin-
ion of the death penalty and failure to communicate in voir
dire. The district court determined that Sanders was not simi-
larly situated to Edwards or Stanford since Sanders was struck
largely because of her demeanor. We discern no basis to
reject as clearly erroneous the assessment of the district court.
The fifth and final prospective juror Barnette challenges is
Blakeney. The prosecution explained it struck Blakeney
because he was hesitant in his answers, his views on the death
penalty were not very strong, and he said in voir dire that he
did not want to sentence anyone to death. When asked his per-
sonal view of the death penalty, Blakeney wrote on his ques-
tionnaire, "not very strong." J.A. 293, S.J.A. 311. During voir
dire he indicated that he had no opinion on the death penalty
and had not thought much about the issue. He said that he was
not sure he would be comfortable deliberating because he did
not want to sentence anyone to the death penalty. Then, he
hesitated before clarifying that he thought he could vote for
the death penalty despite his desire not to do so. The district
court found that Blakeney was distinguishable from Edwards
and Stanford because of his expressed reluctance to vote for
the death penalty, a reservation not shared by Edwards or
Stanford. The district court’s determination is not clearly erro-
neous.
IV.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
KEENAN, Circuit Judge, concurring in part and concurring in
the judgment:
I concur in the majority opinion, except for section III.A.1.
See slip op. at 26-31. In that section, the majority concludes
42 UNITED STATES v. BARNETTE
that the district court did not err in refusing to allow Barnette
to review the prosecutors’ race and gender notations (the race
notations), which the court considered in rejecting Barnette’s
Batson claim. In my view, in reaching its conclusion, the
majority fails to apply our holdings in United States v. Garri-
son, 849 F.2d 103 (4th Cir. 1988), and United States v. Tindle,
860 F.2d 125 (4th Cir. 1988). However, I agree with the
majority’s ultimate holding that the district court’s judgment
should be affirmed, because the record shows that the district
court’s error in refusing to allow Barnette access to the race
notations was harmless beyond a reasonable doubt.
I.
After the Supreme Court issued its decision in Miller-El v.
Dretke, 545 U.S. 231 (2005) (Miller-El II), and vacated our
prior decision affirming Barnette’s convictions, see 546 U.S.
803 (2005), vacating United States v. Barnette, 390 F.3d 775
(4th Cir. 2004), the government filed a supplemental joint
appendix in this Court that included the completed question-
naire of an African-American juror, Betty Campbell, who had
been excused for cause. On the cover sheet of Ms. Campbell’s
questionnaire was a notation that included the juror’s name,
the fact that she had been excused for cause, and the letters
"B/F," signifying that this potential juror was a black female.
Seeing this "B/F" notation for the first time, Barnette argued
that this notation was evidence that the government purpose-
fully discriminated against black jurors during jury selection.
We remanded the case to the district court for "further con-
sideration of the Batson claim in the first instance in light of
[Miller-El II]." On remand, the district court ordered the gov-
ernment to submit for in camera review copies of all juror
questionnaires in the government’s possession. See United
States v. Barnette, No. 3:97CR-23, 2010 WL 2085312, at *5
(W.D.N.C. May 20, 2010). Upon receiving the government’s
submission, the district court observed that the race and gen-
der notation on the first page of Ms. Campbell’s juror ques-
UNITED STATES v. BARNETTE 43
tionnaire was not an aberration. Rather, the district court
found that of the 204 questionnaires submitted by the govern-
ment for in camera review, 117 had a race notation on the
cover sheet, 64 of which related to eligible jurors. Id. at *20.
Although the district court rejected Barnette’s request to
obtain these unredacted copies of the juror questionnaires
containing the 117 race notations, the district court "set a
hearing for the Government to explain the presence of race
and gender notations on the cover sheets of questionnaires
from the in camera submission." Id. at *6.
The district court conducted a hearing on this issue, at
which the district court and the government, but not Barnette,
had copies of the 117 juror questionnaires containing the race
notations. Barnette’s counsel expressed an objection to the
non-adversarial, one-sided nature of this hearing, in which the
district court and the government engaged in a colloquy con-
cerning information to which Barnette was not privy. Barnette
thus was unable to question any of the explanations provided
by the government relating to the presence of the race nota-
tions.
Following the hearing, the district court issued an order and
memorandum opinion in which the court rejected Barnette’s
Batson claim. The district court’s opinion revealed to Barnette
for the first time that, in addition to the race notations hand-
written on 117 of the juror questionnaires, the prosecutors had
made race and gender notations on "sticky notes" attached to
48 of the 117 questionnaires that already had a race notation.
Id. at *20. In its opinion, the district court accepted as "plausi-
ble" the government’s explanation that the race notations
were made to help the government respond to "Batson objec-
tions." Id. at *23. The district court concluded, after reviewing
the copies of the juror questionnaires containing the race nota-
tions to which Barnette was denied access, that there was no
evidence that the prosecutors purposefully excluded any pro-
spective juror based on that person’s race. Id.
44 UNITED STATES v. BARNETTE
II.
Citing several reasons, the majority approves of the district
court’s in camera examination of the race notations, and the
effectively ex parte hearing described above. First, the major-
ity states that, "as in Tindle and Garrison, we are presented
with unique circumstances specific to the unusual procedural
posture of the case, and that such circumstances are highly
unlikely to be repeated." Slip op. at 28. Although I agree that
there are unique circumstances presented here that are not
likely to be repeated, and that the procedural posture of this
case is unusual, these facts do not support the majority’s fail-
ure to apply the central holdings of Tindle and Garrison.
In Garrison, a case also involving a Batson challenge, this
Court emphasized that "the important rights guaranteed by
Batson deserve the full protection of the adversarial process
except where compelling reasons requiring secrecy are
shown." 849 F.2d at 106 (emphasis added). We stated further
that "the government must make a substantial showing of
necessity to justify excluding the defendant from" the district
court’s ex parte examination of the prosecutor’s notes. Id. at
106 (emphasis added). We cautioned that "if the [district]
court decides to consider any notes, other documents, or state-
ments pertaining to the prosecutor’s explanation [for striking
a minority potential juror], we . . . counsel that a trial court
should ordinarily conduct adversary, rather than ex parte, pro-
ceedings." Id. at 107. Nevertheless, we concluded that any
error committed by the district court in that case was harm-
less, because "[t]he notes neither contradicted or added any-
thing of substance to the government’s explanations offered
and debated at length in open court." Id.
Our decision in Tindle again addressed whether a defendant
was entitled to the prosecutors’ notes concerning the reasons
for the exercise of peremptory challenges, which the district
court had reviewed in camera. In concluding that the district
court did not err in refusing the defendant access to those
UNITED STATES v. BARNETTE 45
notes, we observed that the district court found that the in
camera material "included extremely sensitive matters as well
as work product materials of the government attorneys. Por-
tions of the sensitive materials submitted relate to threats and
attempted intimidation fostered by defendant Tindle himself."
860 F.2d at 131. We quoted our Garrison decision exten-
sively, applied the required "compelling reasons" standard,
and concluded that "[c]ompelling reasons" for the use of [the
in camera] procedure were "clearly present" in that case. Id.
at 132.
In my view, the majority fails to apply the required "sub-
stantial showing of necessity" or "compelling reasons" stan-
dard, as mandated by our decisions in Tindle and Garrison.
Instead, the majority sidesteps these requirements, merely
concluding that "unique circumstances" are present here. In
short, the majority fails to identify any particular "compelling
reason" or basis supporting a "substantial showing of neces-
sity" that would justify the district court’s in camera consider-
ation of the prosecutors’ notes.
Most notably, the government conceded during oral argu-
ment before this Court that such "compelling reasons" do not
exist in this case. In accordance with this concession, I would
apply the "substantial showing" of "compelling reasons" stan-
dard, as required by Tindle and Garrison, and would conclude
that the government has failed to establish "compelling rea-
sons" to deny Barnette access to the materials analyzed by the
district court. My second concern with the majority’s analysis
is its reliance on the work-product status of the race notations
at issue. The fact that these notations were the prosecutors’
work product does not play a role in our analysis under Tindle
and Garrison. Rather, the work-product nature of this material
is the very reason why Garrison and Tindle are applicable in
the first place, because each of those cases also involved
attorney work product in the form of the prosecutors’ notes.
Third, in my view, the majority incorrectly relies on the
fact that, at the sentencing hearing in 2002, Barnette did not
46 UNITED STATES v. BARNETTE
request permission to review the prosecutors’ annotated ques-
tionnaires or notes. The majority emphasizes this fact in con-
cluding that the district court did not err in denying Barnette
access to this material on remand after the Supreme Court’s
decision in Miller-El II. See slip op. at 28-29. In 2002, how-
ever, Barnette was unaware that the race notations existed,
and he did not become aware that there were such notations
until the government’s submission to this Court in 2005 fol-
lowing the Miller-El II decision. Because neither Tindle nor
Garrison authorizes a "fishing expedition," Barnette should
not be faulted for failing in 2002 to seek access to the race
notations of which he was not aware.
Fourth and finally, while I appreciate the majority’s attempt
to place Garrison and Tindle in historical perspective, see slip
op. at 27-28, I fail to see how that perspective permits us to
depart from the holdings of those cases. There is nothing in
the opinions in Garrison and Tindle that suggests a time limit
regarding how many years after the Batson decision this
Court should continue to apply the "compelling reasons" stan-
dard that governs cases of this type. Cf. Grutter v. Bollinger,
539 U.S. 306, 343 (2003) ("We expect that 25 years from
now, the use of racial preferences will no longer be necessary
to further the interest approved today."). Perhaps, as the
majority suggests, the "relatively limited evolution of doctrine
heralded by [Miller-El II]," slip op. at 30, is reason to revisit
the "compelling reasons" standard, but that task would be one
for the en banc consideration of this Court, not for this panel.
In sum, I would hold that our opinions in Garrison and
Tindle plainly require that when a district court analyzing a
claim under Batson decides to consider prosecutors’ notes
regarding the reasons for the exercise of preemptory strikes,
the district court should ordinarily conduct adversarial, rather
than ex parte, proceedings. See Garrison, 849 F.2d at 107.
Therefore, I would conclude that although Barnette was not
entitled to the race notations in the first instance, he was enti-
tled to view them at the Batson hearing on remand once the
UNITED STATES v. BARNETTE 47
district court decided to consider the notations but failed to
find a "substantial showing" of "compelling reasons" to
exclude Barnette from access to them. Accordingly, I would
hold that the district court erred in denying Barnette the
opportunity to review the race notations made by the prosecu-
tors.
III.
Although I would conclude that the district court erred in
denying Barnette the opportunity to review the race notations,
I would nevertheless hold that the district court’s error was
harmless beyond a reasonable doubt. I have reviewed the cop-
ies of the juror questionnaires that contain these notations, and
would conclude, just as this Court concluded in Garrison, that
"[t]he notes neither contradicted nor added anything of sub-
stance to the government’s explanations offered and debated
at length in open court." 849 F.2d at 107. Both the district
court and the panel majority conducted a detailed and thor-
ough comparative juror analysis, in the latter of which I am
pleased to concur.
In this case, it is clear beyond a reasonable doubt that even
with the benefit of access to the prosecutors’ notes, Barnette
would not have been able to establish that the prosecutors pur-
posefully excluded any prospective juror based on that per-
son’s race. I therefore concur in the judgment reached by the
majority.