[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15680 AUG 11, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 3:08-cr-00091-LC-3
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
BRIAN LAKEITH ROWE,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 11, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Brian Lakeith Rowe appeals his conviction for conspiracy to distribute and
possess with intent to distribute five kilograms or more of cocaine, in violation of
21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii). On appeal, Rowe claims that
the district court erred in failing to grant his challenge to the government’s
peremptory strikes of two black venire members pursuant to Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712 (1986).1
Batson established a three-step, burden-shifting inquiry to assess whether
the government unconstitutionally exercised its peremptory challenges to exclude
venire members from the jury on the basis of their race, United States v. Houston,
456 F.3d 1328, 1335, n. 5 (11th Cir. 2006) (noting that Batson applies equally to
the federal government):
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race; second, if that
showing has been made, the prosecution must offer a race-neutral basis
for striking the juror in question; and third, in light of the parties’
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S. Ct. 1203, 1207 (2008)
(alterations and citations omitted).
Here, the district court found on Rowe’s first objection to the prosecution’s
strike of a black venire member that Rowe had failed to make a prima facie case of
1
We review de novo challenges to jury selection pursuant to Batson, but review
underlying factual findings for clear error. United States v. Campa, 529 F.3d 980, 992 (11th Cir.
2008). The district court’s finding as to why a juror is excused is a factual finding, and the
court’s credibility determinations are entitled to “great deference.” United States v. Gamory, 635
F.3d 480, 495 (11th Cir. 2011).
2
discrimination.2 In response to Rowe’s objection to the strike of the second black
juror, the prosecutor volunteered a race-neutral reason before the court ruled on
the first Batson step. The court gave no clear ruling on the second step either,
responding simply, “All right. That’s noted,” and moving to the next juror. After
selection concluded with the seating of one minority juror as an alternate, Rowe
reiterated his objection to the jury selection on Batson grounds. He did so again
before the trial began, and the court simply noted his objections for the record,
effectively overruling them.
The district court never ruled on whether Rowe established a prima facie
case with his second objection and instead considered the reasons the prosecutor
volunteered. Thus, we consider whether Rowe has shown that the prosecutor’s
reasons were pretext. See United States v. Edouard, 485 F.3d 1324, 1342-43 (11th
Cir. 2007) (citing Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859,
1866 (1991) (plurality opinion)) (finding that “whether [defendant] made out the
prima facie case is moot” because “the district court considered the prosecution’s
non-discriminatory reasons for exercising the strikes” and overruled the
objections).
2
Rowe’s appeal is based on his later objections, and he does not challenge the court’s
ruling on this first objection.
3
As Rowe argues on appeal, a defendant can demonstrate pretext by showing
that the government’s reasons for the strike applies with equal force to “otherwise-
similar” venire members of another race who were not challenged. Miller-El v.
Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 2325 (2005).3 But here, Rowe has not
carried his burden because he has not shown for either peremptory strike that the
proffered reasons for the strike applied equally to the excluded and accepted
venire members. Rowe neither argued at trial nor argues on appeal that the
prosecution’s main proffered reason for the first strike—that she “appeared
completely disinterested”—was false or applied to any of the white venire
members. See United States v. Cordoba-Mosquera, 212 F.3d 1194, 1197 (11th
Cir. 2000) (noting that “inattentiveness is a proper race-neutral reason for using a
peremptory strike”). Meanwhile, Rowe’s comparison of the second challenged
3
In the district court, Rowe never specifically raised the argument he raises here, and we
have previously found such failure to raise “comparability analysis”—comparing the excluded
prospective minority jurors and included white jurors to show the government’s proffered
reasons are pretextual—is fatal to a Batson claim on appeal. See Houston, 456 F.3d at 1338-39
(refusing to find error when defendant “never alerted the court to the existence of white venire
members whom he now contends were similarly situated” as to the proffered reasons for the
strikes of minority venire members). However, the Supreme Court’s subsequent analysis in
Snyder casts doubt on our reasoning in Houston. The Snyder Court “recognize[d] that a
retrospective comparison of jurors based on a cold appellate record may be very misleading when
alleged similarities were not raised at trial” because “an exploration of the alleged similarities at
the time of trial might have shown that the jurors in question were not really comparable.” 522
U.S. at 483, 128 S. Ct. at 1211. Nonetheless, the Court found that the record was sufficient to
evaluate the claimed similarities and went on to find a Batson violation on that basis. Id. We
need not decide whether or how Snyder alters circuit law because, even considering his
comparability analysis, Rowe’s claim fails on the merits.
4
black venire member with a white juror fails because their responses to the
pertinent question—about criminal charges against the venire member’s family
members—were substantially different. The questionnaire of the venire member
who was challenged indicated only that her son had been charged with a crime and
that charges had been dismissed. The white comparison juror, by contrast, stated
that his sister had been charged with an offense, “but I don’t know the details. We
aren’t close.” Furthermore, the government did strike a white venire member who
had noted that her sister had faced criminal charges but, unlike the comparison
white juror and like the challenged black venire member, did not indicate that she
was not “close” with the relevant family member. Rowe’s comparison thus fails to
show that the prosecutor’s facially neutral reasons were pretext, and so we cannot
say the court reversibly erred in overruling the Batson objections.
Accordingly, upon review of the record and consideration of the parties’
briefs, we AFFIRM Rowe’s conviction.
AFFIRMED.
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