In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2007 & 05-2008
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STYLES TAYLOR AND KEON THOMAS,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:01-cr-00073-CRN—Charles R. Norgle, Sr., Judge.
____________
ARGUED MARCH 26, 2007—DECIDED DECEMBER 7, 2007
____________
Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Styles Taylor and Keon Thomas,
both African-American, were jointly tried for the armed
robbery of a gun store and the murder of its elderly owner,
who was Caucasian. The government sought the death
penalty for both men, but ultimately they were sentenced
to life imprisonment after the jury found them guilty.
Taylor and Thomas contend that their convictions are
tainted by the government’s use of peremptory challenges
to strike African Americans from the jury pool, in viola-
tion of Batson v. Kentucky, 476 U.S. 79 (1986). Addition-
ally, Taylor alone argues that his rights under the Con-
frontation Clause were violated at trial. For the reasons
2 Nos. 05-2007 & 05-2008
set forth in the following opinion, we conclude that the dis-
trict court did not commit clear error in resolving the
bulk of the defendants’ challenges under Batson. However,
we are unable to draw this conclusion with respect to
potential juror Heshla Watson because the district court
did not put factual findings on the record regarding the
credibility of the government’s reason for striking her. For
that reason we will remand to the district court for
supplemental factfinding on this point. Finally, we re-
ject Taylor’s Confrontation Clause argument because it
does not implicate the improper admission of testimonial
evidence.
I.
In April 2001 a grand jury returned a seven-count
indictment against Taylor and Keon Thomas, as well as
Damione Thomas and Adam Williams, Jr. As relevant
here, Taylor and Keon Thomas (“the defendants”) were
charged with conspiracy to commit robbery and murder,
18 U.S.C. § 1951, robbery in violation of the Hobbs Act, id.,
and murder committed during the course of a robbery, id.
§ 924(c) & (j). Damione Thomas and Williams pleaded
guilty to various charges; Taylor and Keon Thomas
pleaded not guilty and proceeded to trial. On November 19,
2003, Judge Sharp, who was then presiding, denied the
defendants’ motion for severed trials, but granted sever-
ance for the penalty phases.
Jury selection for the joint trial began before Judge
Sharp on July 6, 2004. Beforehand the entire jury pool
had filled out a lengthy questionnaire that included
questions probing the potential jurors’ views on the death
penalty. Question 133 would become a major part of the
parties’ selection decisions. The question asked each
potential juror to circle the letter corresponding to the
statement that best expressed his or her view on the
Nos. 05-2007 & 05-2008 3
death penalty. The responses ranged from “A,” the most
anti-death penalty stance, to “I,” which represented the
view that the juror would always vote for the death
penalty where requested. Generally, “E” represented the
most neutral stance, with A through D representing
varying degrees of opposition to the death penalty and F
through I including a range of pro-death penalty views.
Under the district judge’s rules, all the voir dire was
conducted by the court, and the parties could exercise
peremptory challenges only at the end of each day. The
voir dire consisted first of questioning the potential
jurors as a group, and then following up with each individ-
ual potential juror, in particular about his or her views
on the death penalty. The government, which sought the
death penalty for both defendants despite forensic evid-
ence that only one had committed the murder, requested
that Judge Sharp ask each potential juror whether he or
she would consider imposing the death penalty on a “non-
shooter.”1 Judge Sharp refused to ask the question be-
cause he did not “want to wade into who is the triggerman
and who is not a triggerman.” That first day, three
jurors were empaneled. The following day, Judge Sharp
recused himself due to illness. Eventually the case was
reassigned to Judge Norgle.
Jury selection resumed on July 29, 2004, before Judge
Norgle, who imposed a different set of procedures. Judge
Norgle began with a group voir dire and then individually
1
Both fatal shots apparently were fired from the same gun by
the same defendant. In support of its proffered question, the
government cited an Eighth Circuit decision in which the court
held that it was not error to exclude for cause a potential juror
who stated that she could not impose a death sentence on a
defendant who was not the shooter. See United States v. Moore,
149 F.3d 773, 780 (8th Cir. 1998).
4 Nos. 05-2007 & 05-2008
examined each potential juror, but he also allowed the
parties to follow up with their own questions. Addi-
tionally, Judge Norgle decided that challenges should be
raised as they arose, rather than at the end of the day.
Over the defendants’ objection, the government was
permitted to ask potential jurors whether they could
impose the death penalty on a non-shooter. It posed the
question to most, but not all, potential jurors, and the
parties followed up to varying degrees on this point.
As jury selection progressed, the government used
peremptory challenges to exclude seven African Ameri-
cans—five from the pool of regular jurors and two poten-
tial alternates. All told, of the 94 potential jurors inter-
viewed by the court, 16 were African-American. Three
were dismissed at the outset due to family or health
concerns, seven were dismissed for cause, and five were
dismissed upon the government’s peremptory challenges.
That left one African American on the jury. Five of the 21
potential alternates questioned by the court were African-
American; of these, two were dismissed on the govern-
ment’s peremptory challenges, and three were seated
as alternates.
The first peremptory strike of an African-American
potential juror met with no objection. The government
soon exercised a peremptory strike against another
African American, Heshla Watson, and the defendants
did not object immediately. However, the defendants
raised a Batson objection after a third African-American
potential juror, Jamie Golliday, was dismissed based on
the government’s peremptory challenge. That challenge
applied to the dismissals of both Watson and Golliday.
From that point on, the defense raised a Batson objection
every time the government exercised a peremptory chal-
lenge against an African-American member of the venire.
In each case, Judge Norgle found that a prima facie case
had been established and required the government to
Nos. 05-2007 & 05-2008 5
supply a race-neutral explanation for the strike. In all
but one case, the district court concluded that the gov-
ernment’s reasons were not pretext for racially motivated
strikes. The district court apparently overlooked this
last step with respect to one potential juror.
After the five-week guilt phase of the trial, the jury
found both defendants guilty on all counts. Taylor’s sen-
tencing phase came first, after which the jury recom-
mended a sentence of life imprisonment. The government
then withdrew its notice of intent to seek the death
penalty as to defendant Thomas. The district court im-
posed sentences of life imprisonment on both defendants.
II.
We begin with the defendants’ joint argument that the
government engaged in unlawful discrimination during
jury selection. In Batson v. Kentucky, the Supreme Court
reaffirmed that the government violates the Equal Pro-
tection Clause when it exercises peremptory challenges
based on race. 476 U.S. at 93. To resolve claims about
the discriminatory use of peremptory challenges, the
Court set out a three-part process requiring: (1) that the
defendant make a prima facie case of discrimination;
(2) that the government provide a race-neutral explana-
tion for its peremptory challenges; and (3) that the trial
court decide whether the defendant established that the
government’s stated reason is pretext for racial discrim-
ination. Id. at 94-98; United States v. McMahon, 495 F.3d
410, 420 (7th Cir. 2007).
Only the third part of the inquiry is at issue in this
case, and it involves a credibility determination by the
district court to which we owe substantial deference.
Batson, 476 U.S. at 98 n.21. We will reverse only in the
case of clear error; that is, if we are left with the firm and
6 Nos. 05-2007 & 05-2008
definite conviction that a mistake was made. United States
v. White, 416 F.3d 634, 640 (7th Cir. 2005); United States
v. George, 363 F.3d 666, 673 (7th Cir. 2004). We decline
the defendants’ invitation to apply de novo review be-
cause of what it characterizes as the district court’s
misapprehension of the Batson procedure. After review-
ing the transcripts, we are convinced that the defend-
ant’s claims of legal error are overstated. More impor-
tantly, the level of scrutiny the defendants seek is inherent
in the clear-error standard. See Hobley v. Burge, 433 F.3d
946, 949 (7th Cir. 2006) (“[W]hile factual findings are
usually reviewed for clear error, findings which are
bound up with the application of an inapposite legal
standard are subject to closer review”); Maynard v.
Nygren, 332 F.3d 462, 467 (7th Cir. 2003) (same). In Koon
v. United States, 518 U.S. 81 (1996), when addressing
another deferential standard of review, abuse of discretion,
the Court held that a “unitary” standard applies even to
legal issues because the abuse-of-discretion standard
“includes review to determine that the discretion was not
guided by erroneous legal conclusions.” Id. at 100. Like-
wise, any misapprehension of the law in this case would
simply inform our analysis of whether the district court
clearly erred.
We turn now to the defendants’ particular Batson
arguments, and we will recount the additional relevant
facts as they enter our analysis. The defendants first
contend that two African American potential jurors
were struck by the government for reasons that it did not
find disqualifying with respect to Caucasian venire
persons. Indeed, one way for a defendant to establish
that the government’s stated reasons for a peremptory
challenge are pretextual is to compare the African Ameri-
cans who were struck to Caucasians who were em-
paneled. Miller-El v. Dretke, 545 U.S. 231, 241 (2005)
Nos. 05-2007 & 05-2008 7
(“Miller-El II”). “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 discrimina-
tion to be considered at Batson’s third step.” Id.
The defendants first compare potential juror Watson, an
African American, to Caucasian jurors Wills, Evans
and Nowak.2 When called upon to provide a race-neutral
explanation for excluding Watson (whom the government
had unsuccessfully challenged for cause), the government
cited her statement that she would not consider imposing
the death penalty on a non-shooter. When asked by the
government whether she could consider doing so, Watson
in fact had replied, “No.” The government did not fol-
low up, but after questioning by the defense, Watson
stated that she would want to hear evidence about the
level of the suspect’s participation and planning, and
that she would “follow the Court’s instructions on that
question and consider[ ] that information before [deter-
mining] whether or not the death penalty would be im-
posed.”
The defendants point to three Caucasian jurors who
expressed similar reservations about executing a non-
shooter but were not challenged by the government. We
find their argument persuasive, particularly the com-
parison between Watson and Nowak. Both unequivocally
answered “no” when first asked if they could impose
the death penalty on a non-shooter. The government, in
contrast to its practice with most other potential jurors,
did not follow up with either of these potential jurors
2
The defendants also cited juror Brand as a comparator, but the
government has asserted, and the defendants now appear to
agree, that juror Brand is in fact an African American who
was selected as an alternate juror.
8 Nos. 05-2007 & 05-2008
for a more detailed explanation of the “no” answer. The
defense, however, elicited responses from both Watson and
Nowak revealing a willingness to consider the non-
shooter’s level of participation and follow the law.
We can discern no material difference between Watson
and Nowak with respect to their views on the non-shooter
issue—the sole reason the government supplied for its
use of a peremptory strike against Watson. The govern-
ment now distinguishes Nowak by asserting that she
had difficulty hearing; although this is true, the tran-
script confirms that she heard the non-shooter question.3
Because the answer that was disqualifying for Watson
was not also disqualifying for Nowak, we are inclined to
view with skepticism the government’s rationale for
exercising a peremptory challenge against Watson. Com-
paring Watson to Wills and Evans compounds that skepti-
cism. Wills in particular expressed views akin to Watson’s:
general but not forceful opposition to the death penalty
(expressed on the questionnaire and during voir dire) and
initial resistance to the idea of executing a non-shooter
later tempered in responses to follow-up questions. Yet the
government challenged only Watson.
Despite these troubling comparisons, we are not unmind-
ful of the standard of review; it is the district court’s job,
3
When prosecutor Philip Benson began his questions, Nowak
stated that she was having trouble hearing him, and he began
using a microphone. Throughout voir dire Nowak did not
hesitate to ask to have questions repeated when needed, yet
when Benson asked if she would consider imposing the death
penalty on a non-shooter, she answered a clear “No.” Benson then
asked, “Under no circumstances?” Nowak replied, “I don’t . . .
I don’t think so.” Prosecutor David Vandercoy was the next
questioner. He asked if Nowak had heard “all Mr. Benson’s
questions,” and she replied, “Yeah.” Thus there is no evidence
that Nowak did not hear the non-shooter question.
Nos. 05-2007 & 05-2008 9
not ours, to weigh the credibility of the government’s
reason for the peremptory challenge and decide whether
the defendants met their burden of establishing discrimi-
nation. And upon close examination we find ourselves
with a record that is silent as to the district court’s
rationale for denying defendants’ Batson challenge with
respect to Watson. As we have stated, the defendants
simultaneously raised Batson challenges to “two peremp-
tory challenges in a row” after the government excluded
Watson and Jamie Golliday in quick succession. The
district court ruled that a prima facie case was estab-
lished, and the government offered race-neutral reasons
for excluding both Watson and Golliday: Watson had
answered “no” to the non-shooter question and Golliday
had stated that she would “go for life” instead of impos-
ing the death penalty. In ruling on whether pretext had
been established, however, the district court addressed
only Golliday, stating that the government’s reason, “that
the prospective juror would always use the term choice
always for life,” was not “a cover-up for racial discrim-
ination or . . . subterfuge.” Nothing in this ruling can be
read to apply to Watson. Without the court’s explanation
for upholding the strike (we say this because the peremp-
tory strike stood despite the lack of a clear ruling), we
have nothing to review. The third step of Batson is a
credibility determination—a question of fact. See George,
363 F.3d at 673. Only the district judge, who observed
the voir dire firsthand, can make that determination in
the first instance.
Accordingly, even though the defendants have made a
strong case that the government removed Watson for
discriminatory reasons, we must find out what the dis-
trict court perceived before we can decide that issue. In
this case, unlike many others, all the necessary informa-
tion was put before the district court at the time, and
there is no need for a further Batson hearing. We simply
10 Nos. 05-2007 & 05-2008
need to learn the district court’s assessment of the chal-
lenge in light the record made during voir dire. Therefore,
we will retain jurisdiction over this case but remand to
the district court for the limited purpose of supplement-
ing the record with its findings about whether the gov-
ernment’s stated reason for exercising a peremptory
challenge against Watson is credible, or whether the
defendants met their burden of demonstrating discrim-
ination.
Moving on, the defendants next contend that the gov-
ernment excluded potential juror Golliday for reasons
that it did not find prohibitive for white jurors Duggins,
Stachura, Kasch, and Blaszak. When the district court
asked the government for a race-neutral explanation for
excluding Golliday, the prosecutor stated: “[H]er views
indicate that death would be a problem, can’t be sure if
she could follow the law, think I could go—think I would
go for life when presented with the choice between life
and death, and then later on she answered, ‘would go for
life.’ ” Despite the defendants’ protestations that other
jurors with reservations about the gravity of their sen-
tencing decision had been seated, the district court deter-
mined that “there is not enough to support an argument
that [the challenge] is race-based.”
The defendants cite a number of white jurors who
expressed reservations comparable to Golliday’s. During
voir dire, Golliday stated, “when it comes to making
[the decision to impose the death penalty], I think it
would be a problem for me.” She also stated that, although
she “would like” to say that her opinion about the death
penalty would not impair her performance as a juror,
she “really can’t be sure about that.” When asked if her
views would allow her to impose a sentence of life im-
prisonment or the death penalty, Golliday said, “I think
I would live with life better than I could the death part,”
and “If there were some other sentence, I [sic] probably go
Nos. 05-2007 & 05-2008 11
with the other than the death penalty.” Golliday also
stated that she had an open mind, that she would try
her best to follow the law, and that she would make her
decisions based on the evidence. On her questionnaire,
Golliday had circled “C” when asked to select the state-
ment that best expressed her view on the death penalty.
Answer “C” states: “I am philosophically, morally, or
religiously opposed to the death penalty. Nonetheless
I believe that I can vote to impose the death penalty if it
is called for by the facts and the law in the case.”
For comparison the defendants first point to juror
Duggins, who stated in regard to the death penalty:
“I would have to see the evidence, but it would be an aw-
ful tough thing.” She said it would be “easier” to impose a
sentence of life in prison without parole. However, she
also stated that her opinion on the death penalty would
not impair her ability to follow the court’s instructions
and her oath as a juror. Because Duggins was inter-
viewed by Judge Sharp, the parties had no opportunity
to delve further into her views. The defendants next
point to juror Kasch, who stated that she believed in the
death penalty in principle but she didn’t “like to be
responsible for being the one imposing it.” She discussed
misgivings based on what she had heard about Illinois
death sentences “they had to undo.” Kasch opined that
her views on the death penalty would not impair her
performance as a juror and that it was her duty to fol-
low the law. She, too, suggested that it would be easier
to impose a life sentence, saying “I would think you
might consider that you’d go on the side of caution and
maybe not go with the death penalty.” Finally, the defen-
dants compare Golliday with juror Blaszak, who also
expressed misgivings about death sentences that had
been overturned in Illinois. Blaszak swore that her
opinions on the death penalty would not prevent her
from imposing either the death penalty or life imprison-
12 Nos. 05-2007 & 05-2008
ment. She also stated, however, that during the guilt
phase of trial it would be difficult to “block out” the
fact that “the end result could be if someone was found
guilty that the death penalty was a potential end result.”
In order to try to focus only on the guilt phase, she “would
hope that in the sentencing phase, maybe the death
penalty wouldn’t be [her] only option.” However, she
had no “moral or religious reservations” about imposing
a death sentence. Finally, the defendants cite alternate
juror Stachura, who stated that he would have “more of a
problem signing a death sentence” than imposing a
sentence of life imprisonment. Stachura had described
his view of the death penalty as “neutral.”
The defendants contend that there is no material
difference between Golliday and these white venire-
persons who were seated as jurors or alternates, and
the degree of similarity suggests purposeful discrimina-
tion as the real reason underlying the exclusion of
Golliday. But the defendants’ side-by-side comparisons
do not convince us that the government excluded Golliday
for a reason other than her inclination to “go for life” if
given the choice. First, although most of the jurors the
defendants cite expressed reservations about the dif-
ficulty of being responsible for choosing between life and
death, Golliday alone questioned her own ability to be fair
and stated that she would pick the life sentence if given
the choice. The next strongest answer was Katsch’s, but
even she stated only that she would “consider” erring on
the side of caution. Second, only Golliday expressed
opposition to the death penalty on her juror questionnaire;
she selected “C” whereas Duggins, Blaszak, and Stachura
picked “E” and Kasch circled “J.” Response “E” reflects a
neutral stance on the death penalty, and “J” is simply
“None of the above.” These distinctions are minor but
not trivial, and we cannot say that it was clear error to
accept the government’s stated reason for excluding
Golliday.
Nos. 05-2007 & 05-2008 13
The defendants next argue the government struck
potential juror Washington, an African American, for
discriminatory reasons, as evidenced by his exclusion
based on what they characterize as one anomalous
answer. According to the government at the time it was
asked for a reason for its peremptory challenge, Washing-
ton was not suitable because he answered “yes” to the
question of whether his views on the death penalty
would prevent him from imposing a death sentence
regardless of the law. The defendants contend, however,
that this answer was so out of line with Washington’s
other statements about the death penalty that the gov-
ernment’s reliance on it must be pretext for discrimination.
The defendants point to Washington’s questionnaire,
where he indicated that “it is important that we have the
death penalty as punishment” and that his support of the
death penalty would make it difficult to be fair and
impartial during the guilt phase. Washington did not
answer the question asking him to circle the statement
that best expressed his views on the death penalty; in-
stead he wrote, “The death penalty has been here for
years. If you try to live right and work hard in life there
[sic] no need for crime. Most of all pray. Do the right thing.
Count on God.”
During voir dire, Washington elaborated on his views.
He began by responding that he had no opinion on the
death penalty other than that it was “the truth,” and that
it was for the jurors to decide. When asked to further
explain his views, he spoke at length about his parents
and his strict upbringing but did not address the death
penalty. When questioned about how religious beliefs
influenced his views, he stated, “I feel that everybody
should pay for what they do.” He said he would still
be able to weigh all the appropriate factors and consider
imposing the death penalty on a non-shooter. He said
“I wouldn’t want to be the one to take somebody’s life,”
14 Nos. 05-2007 & 05-2008
but added that he would be able to fairly consider the
evidence and return whatever decision was appropriate
under the facts and the court’s instructions.
The defendants insist that Washington’s support for
the death penalty is evident and that his one statement
that his views might prevent him from imposing it was
an anomaly, but the government maintains that “one
cannot possibly determine Washington’s views on the
death penalty.” We are inclined to agree that Washington’s
position is difficult to decipher based on his responses
at voir dire, and his questionnaire is similarly unillumi-
nating. Moreover, while the defendants portray the
isolated answer as the government’s sole reason for the
challenge, the government also highlighted the overall
ambiguity of Washington’s answers. The government
noted that it could not decipher which of Washington’s
expressed views was “right in his view as he sits
here today,” and further stated, “[T]he ambiguity in his
answers gives the government the right to exercise its
peremptory challenge.” In fact, the government cited the
ambiguity as the reason it had not challenged Washington
for cause; it simply could not tell whether he held strong
views that would prevent him from serving. We find
this situation not unlike the White case, in which the
challenged juror “singled herself out with a cryptic
answer that called into question her ability to fulfill her
obligations as a juror.” 416 F.3d at 641. Likewise, Wash-
ington responded cryptically to questions that directly
implicated his ability to be impartial, and it was not
clear error for the district court to accept the govern-
ment’s explanations for the strike.
The defendants next argue that the government gave
an “explicitly race-based” reason for striking potential
juror Hicks and that the district court therefore was
required to uphold their Batson challenge. Hicks was a co-
parishioner with and a member of the same Masonic
Nos. 05-2007 & 05-2008 15
lodge as a potential witness for defendant Thomas, and
he expressed his inclination to give more weight to the
testimony of “a fellow Mason.” Additionally, ten years
before the defendants’ trial Hicks was an alternate on a
jury that acquitted an African-American defendant of
the murders of seven Caucasian individuals. He had
been present for the jury’s deliberations. The govern-
ment challenged Hicks for cause based on his relation-
ship with the prospective witness, and after the district
court denied the challenge, the government exercised a
peremptory strike. When called upon to provide a race-
neutral reason for striking Hicks, the government stated
that it was exercising the challenge “based upon the
previous arguments,” that is, the relationship with the
witness. It said Hicks’ prior service on a jury was an-
other reason. The prosecutor, familiar with the earlier
case, described the acquittal as a “shocking” result in a
“highly volatile murder case” that “involved racial issues.”
He noted that evidence had been presented at trial that
the defendant committed the murders “because he didn’t
like white individuals.”
The defendants argue that “there was no reason to
describe in detail the racial aspects of the previous case”
unless the prosecutor “thought those aspects relevant to
his decision.” We are not convinced. First, the govern-
ment’s primary motivation for excusing Hicks was his
relationship with a witness—a drug abuse counselor
who had treated defendant Thomas. His jury service was
a secondary reason. We do not know why the prosecutor
shared his knowledge of the prior case, but, unlike the
defendants, we do not see his description as amounting
to an explicitly race-based reason for the peremptory
challenge. The government did not rely on the unfounded
assumption of racial solidarity that Batson intends to
mitigate. See Batson, 476 U.S. at 97-98 (explaining that
assumption of partiality toward defendant based on
16 Nos. 05-2007 & 05-2008
shared race is impermissible). Rather, the strike was
based on a specific occurrence unique to Hicks that the
government found troubling. Hicks had been present
during the prior jury’s deliberations, and there is nothing
implausible about the government’s concern that it
could not know whether and how he was influenced by that
experience. See Jones, 224 F.3d at 621 (explaining that
“intuitive assumptions” are permissible basis for peremp-
tory challenges so long as they are race-neutral). This is
particularly true where the government was prevented—as
a result of the defendants’ successful objection—from
obtaining more information from Hicks about the jury
deliberations in the prior trial and his impressions about
the process.
The defendants turn next to potential alternate juror
Cole, whom the government stated it was challenging
because she circled “B” on the questionnaire that probed
her views on the death penalty. Choice “B” signifies:
“I am strongly opposed to the death penalty, and I will
have a difficult time voting to impose it.” But the pros-
ecutor did not stop there; he further represented that he
was “absolutely certain” that the government had not
accepted any jurors who had answered “C,” and that the
jury “might have had one ‘D.’ ” Although at the time the
defense did not fact-check the government’s statement,
it now asserts, and the government agrees, that the
representation was inaccurate. In fact the government
(at that point) had not allowed any juror who had an-
swered “B” to be empaneled, but one juror who had
answered “C” and four who had answered “D” had been
seated. But, as we have said, the defendants did not
scrutinize the government’s representation at the time,
and it admits that “the district judge was unaware of
this misstatement.” The burden was on the defendants to
establish pretext, see Purkett v. Elem, 514 U.S. 765, 768
(1995), but they concede that they did not do so because
Nos. 05-2007 & 05-2008 17
they were “lulled” by the government’s expression of
certainty. The government was correct in stating that
theretofore it had rejected all jurors like Cole who had
selected “B.” We cannot fault the district court for not
realizing spontaneously what we recognize in hindsight,
that the government was mistaken about the jurors
who answered “C” or “D.”
Finally, the defendants raise a confusing argument that
they were denied the opportunity to raise a Batson chal-
lenge with respect to one African-American potential
juror because she was excused for cause on the govern-
ment’s motion. Potential juror Artis was dismissed after
she explained that she was against the death penalty and
that she could not recommend a death sentence. The
defendants’ argument rests on pure speculation—they
merely suspect that the government would have exercised
a peremptory challenge against Artis had its challenge
for cause been denied. Moreover, Batson prohibits the use
of peremptory challenges in a discriminatory fashion; it
does not require a district court to deny challenges for
cause with respect to African-American potential jurors
just to guarantee the defendants the opportunity to raise
a Batson challenge. The defendants also fault the district
court for supplying reasons for the dismissal for cause
beyond those given by the government. But dismissals
for cause are distinct from peremptory challenges in
that the district court may exclude any juror who ap-
pears unable to render impartial service; no motion by
counsel is even required. 28 U.S.C. § 1866(c)(2); see Hughes
v. United States, 258 F.3d 453, 464 (6th Cir. 2001); United
States v. Torres, 128 F.3d 38, 43 (2d. Cir. 1997). There is
nothing improper about a district court articulating
its own reasons for a dismissal for cause. The defendants
do not argue that cause was lacking, and so we find no
error with respect to Artis.
18 Nos. 05-2007 & 05-2008
Having addressed the defendants’ Batson arguments,
we turn now to defendant Taylor’s somewhat cursory
argument that his rights under the Confrontation Clause
were violated when Thomas’s counsel, during closing
argument, used Taylor’s name when referencing a writ-
ten statement from which the judge had ordered it re-
dacted. The statement in question was given to police by
Thomas. He told police that on the day of the murder,
“Styles4 and Bud” had borrowed his car (which was
spotted at the crime scene) from Damione Thomas, who
had the keys at the time. In order to avoid a Confronta-
tion Clause problem, the district court redacted Taylor’s
name from the statement, which was admitted into
evidence during the testimony of an ATF agent. See Bruton
v. United States, 391 U.S. 123 (1968); United States v.
Souffrant, 338 F.3d 809, 828-29 (7th. Cir. 2003). The jury
heard only that Thomas told police that he lent his car
to “Bud and another person.” But during closing argu-
ment, Thomas’s attorney mentioned Taylor, apparently
accidentally. Counsel stated that Thomas told police that
“Damione told them he gave the keys to another person
and to Styles—I’m sorry, another person and Bud.” The
context suggests that counsel verbally redacted the
wrong name. Taylor did not object. However, he later
moved for a new trial in part on the basis of this incident,
and he now contends that the attorney’s comment vio-
lated his right to confront the witnesses against him.
Taylor’s argument fails because the attorney’s remark
he challenges is not “testimonial evidence” covered by
the Confrontation Clause. See Crawford v. Washington,
542 U.S. 36 (2004); United States v. Ellis, 460 F.3d 920,
923-24 (7th Cir. 2006). Taylor does not quarrel with
the district court’s ruling that Thomas’s statement could
4
Styles is Taylor’s first name.
Nos. 05-2007 & 05-2008 19
be admitted only in redacted form. Instead he is com-
plaining about a comment made by Thomas’s attorney
during closing argument.5 As every jury is instructed,
lawyers’ statements are not evidence. To the extent that
Taylor has a valid complaint, it has to do with an improper
remark or characterization of the evidence by Thomas’s
counsel that implicates the fairness of the joint trial. See,
e.g., Zafiro v. United States, 506 U.S. 534, 538-39 (1993);
United States v. Carrillo, 435 F.3d 767, 778-79 (7th Cir.
2006); United States v. Mietus, 237 F.3d 866, 874 (7th Cir.
2001). Taylor, however, raises no such argument. We
certainly do not endorse what happened here, but it
does not implicate the Confrontation Clause.
III.
Defendant Taylor has not established a violation of the
Confrontation Clause nor presented any alternate basis
for challenging the remark of Thomas’s attorney during
closing argument. Additionally, we conclude that the
district court did not clearly err in its handling of the
defendants’ objections with respect to the dismissals of
potential jurors Golliday, Washington, Hicks, Artis, and
Cole. The defendants have not demonstrated that the
reasons given by the government for using peremptory
challenges against these potential jurors were pretext
for unlawful discrimination. However, we are unable to
come to any conclusion with respect to potential juror
Watson because the district court did not make a record of
its credibility determination at the third stage of the
Batson inquiry. Accordingly, we order a LIMITED REMAND
5
This is true despite Taylor’s mischaracterization of his
argument in his brief as a challenge to “the admission of his non-
testifying co-defendant’s statement implicating him.”
20 Nos. 05-2007 & 05-2008
so that the district court has the opportunity to supple-
ment the record with its reasons for denying the Batson
challenge with respect to Heshla Watson. Because the
scope of our remand is so narrow, we anticipate an ex-
peditious response from the district court. In all other
respects, we AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-7-07